United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.H., Appellant
and
U.S. POSTAL SERVICE, EMBARCADERO
POST OFFICE, San Francisco, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0255
Issued: January 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 16, 2016 appellant, through counsel, filed a timely appeal from a
September 22, 2016 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 to consider the merits of the 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.

Appellant submitted additional evidence after OWCP’s September 22, 2016 decision was issued. 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).
3

ISSUE
The issue is whether appellant has met her burden of proof to modify the July 24, 2013
wage-earning capacity determination.
On appeal counsel contends that a medical report dated March 25, 2016 was not properly
considered by OWCP.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as
follows.
On July 29, 1998 appellant, then a 35-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed left foot plantar fasciitis due to walking and
standing as part of her job duties. OWCP assigned the claim, File No. xxxxxx649 and accepted
it for left plantar fasciitis. On October 27, 1998 it authorized wage-loss compensation benefits.5
Appellant returned to full-duty employment on July 14, 2000.
On September 15, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging an
acute lumbar sprain and right hand contusion and sprain when she fell backward at work.
OWCP assigned the claim File No. xxxxxx781 and accepted it for lumbar and neck sprain as
well as a right hand contusion.6
Appellant subsequently filed a traumatic injury claim (Form CA-1) alleging that on
May 22, 2008 she sustained a low back strain/sprain when she felt resistance while lifting a door
overhead and then a pinch in her back when she placed a lock on the door. OWCP assigned the
claim File No. xxxxxx670 and accepted it for lumbosacral sprain on July 22, 2008.7
Appellant returned to light duty on February 8, 2009 as a modified mail handler. She
filed claims for recurrence of disability (Form CA-2a) on September 10, 2009 and August 13,
2010 when the employing establishment was unable to provide work within her restrictions.
Appellant stopped work completely on August 15, 2010. OWCP authorized wage-loss
compensation benefits and later placed on the periodic rolls.
Dr. Michael E. Hebrard, a Board-certified physiatrist, examined appellant on January 5,
2011 and diagnosed lumbar spondylosis with chronic lumbar discogenic pain and lumbar
spondylolisthesis related to her employment. On February 8, 2011 he diagnosed chronic lumbar
strain, intermittent sciatica, and lumbosacral sprain.
4

Docket No. 12-0609 (issued July 18, 2012); Docket No. 15-0495 (issued May 13, 2015).

5

File No. xxxxxx649.

6

File No. xxxxxx781.

7

File No. xxxxxx670.

2

On December 27, 2010 OWCP referred appellant for a second opinion examination with
Dr. John H. Welborn, a Board-certified orthopedic surgeon. On January 19, 2011 Dr. Welborn
examined appellant and described her history of injury. He diagnosed lumbar sprain/strain and
lumbar degenerative disc disease and opined that she had no residuals of the 2004 and 2008 work
injuries. Dr. Welborn noted that appellant recovered from the lumbar sprain, but now had
lumbar degenerative disc disease which was preexisting and nonindustrial. He opined that
appellant’s work restrictions resulted from her preexisting lumbar degenerative disc disease, not
an employment injury.
On February 18, 2011 OWCP determined that there was a conflict of medical opinion
between Drs. Hebrard and Welborn and referred appellant for an impartial medical examination
with Dr. Justus Pickett, a Board-certified orthopedic surgeon. Dr. Pickett examined appellant on
February 28, 2011 and found that she had no residuals or disability from her 2004 and 2008 falls
and, therefore, did not qualify as an injured worker. He completed a work capacity evaluation
indicating that appellant was not at maximum medical improvement (MMI) and that she had
restrictions precluding her from performing her date-of-injury position.
On May 17, 2011 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits based on Dr. Pickett’s report. On July 1, 2011 it finalized the termination of her
wage-loss compensation and medical benefits, effective July 3, 2011. Appellant requested
reconsideration on September 8, 2011.
On August 30, 2011 appellant’s podiatrist, Dr. Richard C. Lavigna, reported that
appellant needed a plantar fascial release and heel spur removal. On November 14, 2011
Dr. Lavigna requested that OWCP expand appellant’s claim under File No. xxxxxx649 to accept
bilateral work-related plantar fasciitis.8
Appellant returned to full-time work on October 23, 2011.
By decision dated December 7, 2011, OWCP denied modification of its July 1, 2011
termination decision. Appellant requested reconsideration on September 8, 2011 and submitted
additional medical evidence. On January 19, 2012 she appealed the December 7, 2011 decision
to the Board.
By decision dated July 18, 2012,9 the Board reversed the December 7, 2011 OWCP
decision. It found that OWCP had not met its burden of proof to terminate appellant’s wage-loss

8

On December 22, 2011 appellant filed claims for wage-loss compensation (Form CA-7) for the periods of
November 1 through 12, and 22, 2011 and January 30 to March 30, 2012. OWCP authorized benefits from
October 10, 2011 through April 19, 2012. It authorized plantar fascial release and removal of the plantar calcaneal
spur on January 10, 2012. On January 31, 2012 Dr. Lavigna performed this surgery on appellant’s left foot. On
May 2, 2012 OWCP accepted the additional conditions of right plantar fasciitis and left calcaneal spur and paid
wage-loss compensation benefits.
9

Docket No. 12-0609 (issued July 18, 2012).

3

compensation and medical benefits as Dr. Pickett did not sufficiently address whether appellant’s
ongoing back condition was causally related to her work injuries.10
In a letter dated July 27, 2012, OWCP referred appellant for vocational rehabilitation
services due to her accepted bilateral plantar fasciitis.
Dr. Lavigna, on August 9, 2012, indicated that appellant had an ongoing back injury with
pain from her foot to her back. He indicated that she had scheduled an abdominal surgery that
would disable her for up to 12 weeks. On October 29, 2012 Dr. Lavigna opined that appellant’s
heel surgery and slow healing aggravated her low back injury. He noted that heel surgery could
take 18 months to heal.
Dr. Hebrard examined appellant on October 4 and November 2, 2012. He found that she
had functional deficits in sitting, standing, and walking as a combination of her lumbosacral
spine and plantar fasciitis conditions, in addition to gait balance and coordination issues due to
foot pain which had caused biomechanical instability in the lumbosacral spine causing irritation
of the lumbosacral nerve roots and aggravation of her back pain. Dr. Hebrard opined that
appellant could stand and walk for no more than 25 minutes. He deemed her work status as
sedentary with 20 minutes of standing and 45 minutes of sitting. On November 16, 2012
Dr. Hebrard diagnosed bilateral plantar fasciitis, calcaneal spur, compensable left ankle tibial
tendon dysfunction, bilateral Achilles tendinitis, and aggravation of a preexisting lumbar spine
condition secondary to calf tightness and gait instability. He reiterated that appellant’s foot
condition caused gait instability which resulted in tightness along the heel cords and tightness in
the gastro soleus. Appellant’s lumbar instability led to a lumbar strain and aggravation of
sciatica. Dr. Hebrard found that appellant could return to work in a sedentary position.
On December 17, 2012 the vocational rehabilitation counselor identified two positions as
appropriate for appellant, information clerk and cashier. She determined that appellant’s training
and work experience qualified her for a cashier position with vocational preparation of 30 days
to 3 months, and the position of cashier was being performed in sufficient numbers so as to make
it reasonably available within her commuting area. The vocational rehabilitation counselor
further determined that the physical demands of the cashier position were sedentary with lifting
up to 10 pounds and no climbing, balancing, stooping, kneeling, crouching, or crawling and
noted that sedentary work involved sitting most of the time, but may involve walking or standing
for brief periods of time. The weekly wage for a full-time cashier position was $460.00
On December 19, 2012 OWCP referred appellant to Dr. Juon-Kin K. Fong, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a January 16, 2013 report,
Dr. Fong noted that appellant had three injuries, bilateral plantar fasciitis, back contusions, and
lumbar sprain. He reviewed her treatment records and performed a physical examination.
Dr. Fong diagnosed bilateral plantar fasciitis and chronic lumbalgia with permanent aggravation
of lumbar degenerative disc disease. He found that appellant did not require further treatment
and recommended conservative care.
10

On August 30, 2012 OWCP authorized compensation benefits from July 3 through October 11, 2011. On
September 5, 2012 it advised appellant that her claim was reopened for medical treatment due to her May 22, 2008
work injury.

4

After a February 15, 2013 functional capacity evaluation (FCE), Dr. Fong reviewed the
findings in a report of February 26, 2013. He completed a work restriction evaluation form,
noting that appellant was totally disabled from her date-of-injury job as she could no longer
stand or walk as required, but that she could work eight hours a day. Dr. Fong restricted
appellant to standing and walking for two to three hours. Appellant could bend and stoop for
two hours; push up to 30 pounds for four hours; pull up to 30 pounds for four hours; lift up to 15
pounds for two hours; and do one hour each of squatting, kneeling, and climbing. He did not
restrict sitting.
Dr. Hebrard completed examination notes on January 8, February 25, April 1 and 5, and
May 22, 2013. He determined that appellant could stand for 20 to 25 minutes and walk longer
than 25 minutes and provided that he sit, stand, and walk no more than 30 minutes. Dr. Hebrard
opined that appellant needed time to stretch and reposition as her lower back interfered with her
ability to sit for extended periods. He suggested 10-minute breaks every hour. Dr. Hebrard
indicated that appellant should work no more than six hours a day exerting up to 20 pounds
occasionally and 10 pounds frequently.
In a May 29, 2013 letter, OWCP proposed to reduce appellant’s wage-loss compensation
as she had the capacity to earn wages as a cashier at the rate of $460.00 per week. It noted the
restrictions set forth by Dr. Fong. OWCP afforded appellant 30 days to respond.
Appellant responded to the proposed reduction of compensation on June 28, 2013, noting
her disagreement. She asserted that she was not physically able to stand for more than two or
three hours a day and that she had not met with the vocational rehabilitation counselor.
On June 20, 2013 Dr. Hebrard reviewed Dr. Fong’s report and FCE. He noted, “We will
honor this assessment for the patient….” On July 3, 2013 Dr. Hebrard reported that appellant’s
back pain had decreased, but was exacerbated by sitting and standing. He noted that she could
sit for 25 minutes, stand for 25 minutes and walk for 25 minutes. Dr. Hebrard noted that
appellant could perform light-duty lifting up to 20 pounds occasionally and 10 pounds
frequently. He found that she should work no more than 6 hours a day with 10-minute breaks
every hour.
In a July 24, 2013 decision, OWCP finalized the reduction of compensation, finding that
appellant had the capacity to earn wages as a cashier.
On October 16, 2013 appellant accepted a light-duty position from the employing
establishment working eight hours a day as part of the sales retention team.11 She was required
to sit intermittently for eight hours a day with occasional standing. Appellant returned to work
on October 23, 2013.

11

In a letter dated October 1, 2014, OWCP noted that on October 2, 2013 the employing establishment offered
appellant a job offer as a sales retention team agent which she accepted on October 23, 2013. However, it
determined that it had prematurely terminated her compensation benefits and authorized additional benefits.

5

In a letter dated November 4, 2013, OWCP notified appellant that it was reducing her
monetary compensation effective October 23, 2013 based upon her actual earnings as a sales
retention team agent with weekly wages of $1,019.12.
Following the reduction of her earnings appellant continued to submit reports from
Dr. Hebrard in which he supported total disability and causal relationship between the diagnosed
conditions and her work injuries.
On November 7, 2013 appellant filed a claim for compensation (Form CA-7) for the
period November 4 to 6, 2013. In a letter dated November 18, 2013, OWCP requested that
appellant provide additional medical evidence in support of her claim for a period of disability
from November 4 to 6, 2013.
Dr. Hebrard provided notes dated November 5, 12 and 13, 2013 in which he indicated
that appellant remained totally disabled and noted that she had a consequential emotional
condition due to chronic pain from her work injuries.
On November 19, 2013 Dr. Hebrard noted that appellant reported ongoing low back pain
radiating down her left buttocks and calf pain. He noted that she could perform modified duty
work, but found her totally disabled from November 19 to 27, 2013. In a December 6, 2013
report, Dr. Hebrard noted that, beginning November 5, 2013, appellant had displayed emotional
symptoms of crying and feelings of hopelessness, due to her back pain. He opined that her
disability was causally related to her work injury. On December 10, 2013 Dr. Hebrard noted
findings and determined that appellant was clinically depressed and totally disabled from work
until she was stabilized on medication.
In a December 24, 2013 decision, OWCP denied appellant’s claim for compensation for
total disability from November 4, 2013 to November 6, 2013.
Dr. David Cohn, a Board-certified psychiatrist, examined appellant on December 3, 2013.
He diagnosed major depressive disorder and noted that appellant had work injuries in 1998 for
plantar fasciitis and 2008 for disc bulges. Dr. Cohn noted that appellant was disabled from work.
On January 2, 2014 he repeated his diagnosis and, on January 14, 2014, he advised, “This
depression was not present prior to her workers’ compensation neuro-ortho injury, and is
definitely related to it in a direct manner.”
Appellant completed a series of claims for compensation (Form CA-7) requesting wageloss compensation for leave without pay from December 10, 2013 through February 4, 2014. In
a January 21, 2014 letter, OWCP noted appellant’s several claims for compensation. It noted
that a formal wage-earning capacity determination was in place based on the constructed position
of cashier and that appellant had returned to work on October 23, 2013 in the full-time temporary
position as a sales retention team agent. OWCP informed appellant that the evidence submitted
was insufficient to meet her burden of proof to modify the existing wage-earning capacity
determination. It afforded appellant 30 days to respond.
On January 28, 2014 Dr. Cohn diagnosed major depressive disorder, recurrent episode.
He noted that appellant developed emotional symptoms after her work-related physical injuries
had stopped her from working. Dr. Cohn opined that there was causal relationship between her
6

physical injuries and her emotional condition, noting that appellant was not suffering from major
depression prior to her physical injuries.
In notes dated February 4 and 17, 2014, Dr. Hebrard, noted appellant’s back pain and
advised that she was diaphoretic and visibly trembling. More specifically, he found several
small circumferential tears in the fibers of the disc which ultimately is aggravated with prolonged
sitting, bending forward and twisting and walking activities. Dr. Hebrard explained that the
pressure placed on the disc while sitting was causing increased axial loading, causing the disc to
bulge out posteriorly, which puts pressure on the nerve and then causes radicular symptoms. He
noted that sitting caused pressure on the disc and subsequent inflammation and pain.
Dr. Hebrard opined that, due to her back condition, appellant developed major depressive mood
disorder. He also diagnosed chronic pain syndrome and found her temporarily totally disabled,
but could sit, stand, and walk for 20 minutes each. Dr. Hebrard noted that appellant fell
approximately a week earlier, injuring her back and knees, and attributed this fall to appellant’s
medication for anxiety due to her chronic pain syndrome.
Dr. Cohn examined appellant on February 11 and 18, 2014. He diagnosed adjustment
disorder with mixed anxiety and depressed mood. Appellant reported problems with balance that
she attributed to medication. On March 4, 2014 Dr. Cohn noted that appellant had stopped work
in November 2013. Diagnoses included pain disorder, unspecified major depression, and
unspecified psychogenic pain.
On March 4, 2014 OWCP referred appellant for a second opinion examination with
Dr. Mohinder S. Nijjar, a Board-certified orthopedic surgeon, and included a statement of
accepted facts (SOAF) noting her back and foot conditions accepted for bilateral plantar fasciitis
and left calcaneal spur.
On March 18, 2014 Dr. Hebrard noted that appellant was totally disabled from work
through April 29, 2014. In a separate note of the same date, he noted that she appeared to be in
moderate distress as she was sweating, and trembling. On March 31, 2014 Dr. Hebrard noted
symptoms including muscle spasm in the back which he attributed to an aggravation of
appellant’s left foot condition. He explained that appellant’s altered gait mechanics put more
stress on the intervertebral discs in her lumbar spine. Dr. Hebrard noted, “Her tottering back and
forth has led to increased stress along her pelvic musculature and subsequent muscle spasms in
her lumbar paraspinal muscles and aggravation of her underlying lumbar spine disc disease.
On April 1, 2014 Dr. Cohn examined appellant. He reiterated his diagnoses and noted
that she had significant depression related to her medical complications of foot surgery and back
injury.
In an April 18, 2014 magnetic resonance imaging (MRI) scan appellant was noted to
have small annular disc bulges and mild facet hypertrophy at L4-5 and L5-S1. An April 22,
2014 MRI scan showed L4-5 facet arthropathy with gapping and cartilage wear, minor
discogenic change with annular bulging and subtle fissuring L4-5 and L5-S1 and neural
foraminal narrowing.

7

Dr. Nijjar, in an April 30, 2014 report, reviewed the SOAF, listed appellant’s accepted
conditions, and reviewed the medical record. Examination revealed slight straightening of the
curvature of the cervical spine with tenderness from C4 through C7. Dr. Nijjar also found
paraspinal muscle spasm, more on the right, as well as loss of range of motion of the cervical and
lumber spine. He found straightening of the lumbar curvature with tenderness from L5-S1 to L3
and slight paraspinal muscle spasm more on the left. Appellant walked with a minimal limp.
Leg reflexes were positive and equal. Appellant had decreased sensation over the outer aspect of
the left thigh and no loss of motor strength. Dr. Nijjar diagnosed strain/sprain of the cervical,
thoracic, and lumbar spine, degenerative disc disease with disc protrusion in the cervical and
thoracic spine, as well as contusion of the right hand and bilateral plantar fasciitis, status post left
foot surgery. He opined that appellant continued to have residuals of her work injuries in her
neck, thoracic and lumbar spines.
Dr. Hebrard continued to find appellant totally disabled from work. On May 6, 2014 he
noted, “Sitting and bending forward causes the disc fibers to bulge out posteriorly, putting
pressure on the nerve endings. These nerves are not visible on the MRI scan, which is performed
when the patient is unweighed. During the sitting process, the pelvis rotates backwards and the
lumbar spine flattens. This leads to ongoing paresthesias and pain that she continues to have
along with weakness in the lower extremities.” Dr. Hebrard noted that appellant’s depression
was due to chronic pain from her work injuries. On May 9, 2014 he found that she had a
combination of a sciatic neuropathy superimposed with a tarsal tunnel syndrome and nerve root
entrapment of the feet leading to numbness and paresthesias. Dr. Hebrard opined that appellant
had a biomechanical chain breakdown leading to aggravation of her preexisting cervical spine
condition. He also opined that she had a consequential emotional condition.
In a June 9, 2014 decision, OWCP denied modification of its December 24, 2013
decision that denied compensation from November 4 through 6, 2013. It noted that appellant
filed additional compensation claims for the period November 12 to December 11, 2013. OWCP
found that the medical evidence of record did not address the specific periods of disability
claimed.
In a July 21, 2014 report, Dr. Hebrard examined appellant’s back and found chronic
progressive impairment in her cervical and lumbar spine with persistent paresthesias and
weakness in the upper and lower extremities. He opined that she had a recurrence of total
disability from November 4 through 6, November 25 through 27, and December 9 through 11,
2013 due to a chronic deterioration of her condition and he recommended medical disability
retirement. On July 24, 2014 Dr. Hebrard noted that appellant developed a consequential injury
involving gastrocsoleus muscle strain and Achilles tendinitis in the right leg as a result of her
altered gait mechanics due to her left foot surgery. In reports dated August 20 and
September 22, 2014, he continued to note examination finding and diagnoses, as well as
supporting a causal relationship between her 2008 employment injury and her current conditions
and disability.
In an October 24, 2014 report, Dr. Hebrard reviewed Dr. Nijjar’s report and agreed with
his conclusion that appellant had residuals of her work injuries. He also noted his prior opinion
that appellant developed an emotional condition as a result of her chronic pain secondary to her
spine and foot conditions including chronic pain syndrome and clinical depression.

8

Counsel requested reconsideration on November 12, 2014 and referred to Dr. Hebrard’s
October 24, 2014 report. Also submitted were November 11 and 14, 2014 notes from
Dr. Hebrard reiterating that appellant’s ongoing condition was due to her work-related injury.
By decision dated December 9, 2014, OWCP denied modification of its prior decision,
finding that appellant had not established total disability beginning November 4, 2013.
Appellant subsequently submitted reports from Dr. Hebrard dated January 6 and 27, 2015, which
supported total disability and causal relationship between her current conditions and her work
injuries.
On January 6, 2015 appellant appealed the December 9, 2014 decision to the Board.
On February 4, 2015 appellant requested that OWCP accept her claim to include a
psychiatric condition. OWCP subsequently requested that she provide medical evidence in
support of her claim for a consequential emotional condition. It afforded appellant 30 days to
respond.
By decision dated February 11, 2015, OWCP denied appellant’s claim for total disability
for the period December 10, 2013 through February 14, 2014. On February 18, 2015 counsel
requested an oral hearing, which was held on September 30 and November 4, 2015.
Appellant continued to treat with Dr. Hebrard and submitted additional reports supporting
her claim for total disability, including reports of May 5 and 18, 2015. Dr. Hebrard opined that
appellant had compensable sciatica, as well as an emotional condition of chronic pain syndrome
and mood adjustment disorder and indicated that appellant could not perform her prior work
duties.
By order dated May 13, 2015, the Board set aside the December 9, 2014 decision. The
case was remanded to OWCP to combine all three of appellant’s claims (File Nos. xxxxxx670,
xxxxxx781, and xxxxxx649) and issue a de novo decision.12
On June 15, 2015 Dr. Lavigna diagnosed chronic plantar fasciitis, posterior tibial
tendinitis, and heel pain. He also reported that appellant had low back and neck injuries.
Dr. Lavigna noted that appellant had a hyperpronated gait.
In a report dated June 22, 2015, Dr. Robert Rover, a Board-certified orthopedic surgeon,
described appellant’s employment injuries to her back and feet. He noted that appellant stopped
work in November 2013 as a result of spine and bilateral foot conditions. Dr. Rover reviewed
appellant’s diagnostic studies and diagnosed L4-5 spondylolisthesis, stenosis, and instability as
well as L4-5 and L5-S1 spondylosis.
By decision dated October 14, 2015, OWCP denied appellant’s claim for compensation
for total disability beginning November 4, 2013. It found that she had not established a material
change in the nature and extent of her injury-related conditions in File Nos. xxxxxx649 or
xxxxxx670. OWCP expressly advised that it was not addressing a claim for modification of her
12

Docket No. 15-0495 (issued May 13, 2015).

9

wage-earning capacity determination, but was only denying appellant’s claim for total disability
compensation.13
By decision dated December 7, 2015, an OWCP hearing representative set aside OWCP’s
February 11, 2015 decision and directed OWCP to consider all three of appellant’s claims in
addressing modification of her wage-earning capacity determination.
On January 13, 2016 appellant requested, again, that OWCP expand her orthopedic claim
to include psychiatrist complications. In a letter dated February 1, 2016, OWCP requested
additional medical evidence in support of her claim for a consequential emotional condition.
Appellant continued to submit reports from Dr. Hebrard. In reports dated January 18 and
March 1 and 17, 2016, Dr. Hebrard noted that appellant had a material change in her lumbar
condition and had developed a consequential emotional condition. He reported that she has a
material change in her condition which ultimately led to problems with sleep disturbances,
decreased functional endurance, low energy levels, and problems with focusing and
concentration. Dr. Hebrard found that appellant had reached MMI.
Dr. George D. Karalis, a psychiatrist, examined appellant on March 25, 2016 and found
that appellant’s chronic pain caused major depression, which rendered her totally disabled from
work. He noted that appellant last worked on November 8, 2013. Dr. Karalis explained that she
had severe anxiety and depression. He noted that appellant developed chronic pain syndrome
which caused heightened anxiety and depression, which enhanced her pain perception.
Dr. Karalis noted, “Thus, a vicious cycle is set in motion:
pain caused enhanced
anxiety/depression, which in turn enhances pain perception, which in turn enhances
anxiety/depression.” He opined that appellant’s orthopedic condition was and would continue to
aggravate her mental condition. Dr. Karalis advised that appellant’s mental illness developed a
life of its own and could persist and remain totally disabling even after her orthopedic problem
was controlled or eliminated. He attributed appellant’s major depression to her employment
injuries and found that she was totally disabled from work.
Dr. Lavigna examined appellant on April 28 and May 12, 2016 and diagnosed chronic
plantar fasciitis and heel spur syndrome.
Additional reports of Dr. Hebrard dated April 28, June 16 and 27, and August 25, 2016
were submitted. He noted the diagnosed conditions and opined, “The cascade of biomechanical
functional deficits has been a persistent function condition which has ultimately led to this
chronic disability condition and subsequent to that the patient has yet to recover from the effects
of her occupational injury involving her lumbar spine from May 22, 2008.” Dr. Hebrard found
that appellant was totally disabled from work.
Appellant testified during the oral hearing held on July 5, 2016. She noted that she had
not worked since November 2013. Appellant continued to receive treatment for her feet, spine,
and a psychiatric condition. She stopped work because of the walking required by her job.
Appellant asserted the her job location was far from the elevators, that it was not on the same
13

Counsel timely requested an oral hearing regarding the October 14, 2015 decision.

10

floor as the cafeteria, and that she was not allowed to eat lunch in the break room. She testified
that she had to walk and sit which was hard for her to do. Appellant noted that her feet began to
swell and her back began to hurt, which caused her to become depressed.
By decision dated September 22, 2016, a hearing representative affirmed the February 11
and October 14, 2015 OWCP decisions. He found that appellant had not established a
recurrence of disability commencing November 4, 2013. The hearing representative also found
that appellant had not met her burden of proof to modify the July 24, 2013 wage-earning
capacity determination.
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.14 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.15 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.16
Modification of a standing wage-earning capacity 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
erroneous.17 OWCP’s procedures provide that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.18 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination is warranted.19
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.20 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
14
5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
15

K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

16

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

17

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

18

20 C.F.R. § 10.511; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of WageEarning Capacity Decisions, Chapter 2.1501. (June 2013).
19

N.B., Docket No. 15-1749 (issued January 15, 2016); Selden H. Swartz, 55 ECAB 272, 278 (2004).

20

T.F., 58 ECAB 128 (2006).

11

certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.21
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination.22 This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination.23
ANALYSIS
The issue on appeal is whether appellant’s request for resumption of total disability
compensation has been established, warranting modification of the July 24, 2013 wage-earning
capacity determination. The Board finds that this case is not in posture for a decision.
Appellant alleged total disability beginning in November 2013. She has not returned to
work. Therefore, the Board finds that this is not a temporary worsening of a medical condition,
such that an analysis for a limited period of disability would be appropriate.24 Instead this case
must be analyzed as a request for modification of the July 24, 2013 wage-earning capacity
decision, as amended for her work as a sales retention team manager.25
There is no evidence supporting that appellant has been vocationally rehabilitated such
that OWCP should modify the wage-earning capacity determination. Furthermore, appellant has
not argued that the original July 24, 2013 wage-earning capacity determination was erroneous.
OWCP accepted that she had bilateral plantar fasciitis and lumbar sprains due to her work
injuries. The medical evidence of record established that appellant could no longer perform her
date-of-injury job due to her accepted conditions, and OWCP referred her for vocational
rehabilitation. Based on this, OWCP determined that position of cashier was appropriate
considering work restrictions from Dr. Fong, Dr. Lavigna, and Dr. Hebrard, appellant’s
vocational preparation, her qualifications, and the reasonable availability of the position within
her commuting area. The Board, therefore, finds that OWCP properly determined appellant’s
wage-earning capacity on July 24, 2013 and that it was properly modified for her work as a sales
retention team manager by letter dated November 4, 2013.
In support of her request for total disability, appellant has submitted extensive medical
reports from Dr. Hebrard addressing the progressive change in her accepted low back condition
on and after November 4, 2013. She returned to work at the employing establishment in
sedentary position in October 2013 sitting for eight hours a day. Dr. Hebrard found that
21

A.D., 58 ECAB 149 (2006).

22

N.B., supra note 19. See Katherine T. Kreger, 55 ECAB 633, 636 (2004).

23

Id.

24

S.J., Docket No. 16-1195 (issued January 4, 2017).

25

Id.

12

appellant was totally disabled beginning November 4, 2013 due to her back pain and emotional
condition. He has offered two explanations for appellant’s worsening back condition and her
total disability. Dr. Hebrard indicated that appellant’s preexisting spinal degenerative disc
disease continued to worsen.
He noted, specifically, that there were several small
circumferential tears in the fibers of the disc which ultimately aggravated with prolonged sitting,
bending forward, twisting and walking. Dr. Hebrard explained that the pressure that is placed on
the disc while sitting was causing increased axial loading resulting in the disc bulge posteriorly
putting pressure on the nerve which then causes radicular symptoms. He opined that appellant’s
lower extremity condition and her return to work for this condition resulted in a consequential
low back injury through prolonged periods of sitting and bending at the waist. On May 6, 2014
Dr. Hebrard noted that, “Sitting and bending forward causes the disc fibers to bulge out
posteriorly, putting pressure on the nerve endings. These nerves are not visible on the MRI scan,
which is performed when the patient is unweighed. During the sitting process, the pelvis rotates
backward and the lumbar spine flattens. This leads to ongoing paresthesias and pain that she
continues to have along with weakness in the lower extremities.”
Dr. Hebrard further explained that appellant’s altered gait mechanics due to her accepted
bilateral plantar fasciitis and resulting surgery put more stress on the intravertebral discs in her
lumbar spine. He noted, “Her tottering back and forth has led to increased stress along her pelvic
musculature and subsequent muscle spasms in her lumbar paraspinal muscles and aggravation of
her underlying lumbar spine disc disease.” Dr. Hebrard explained that increased stress on the
discs from her gait caused posterior disc bulging and impingement on adjacent nerve roots. On
January 6, 2015 he opined, “This contraction of the piriformis muscle to externally rotate the hip
compresses the sciatic nerve leading to paresthesias and weakness throughout the lower
extremities, more so on the left than the right.” On May 5, 2015 Dr. Hebrard opined that the gait
change led to chronic posture changes aggravating her underlying lumbar condition resulting in
muscle spasms and stress along the spinal column. He opined that appellant had compensable
sciatica. On March 17, 2016 Dr. Hebrard described appellant’s gait propulsion noting that in the
plantar phase of her gait her foot hyperprontated leading to stretching and tearing of the plantar
aponeurosis. This also led to compensatory mechanical gait disturbances leading to external
rotation of the hip area and sciatic nerve compression. Dr. Hebrard opined that appellant had “a
permanent aggravation of a sciatic nerve condition. A permanent aggravation of her plantar
fibromatosis of her feet and with the surgery on the left, which she has never recovered from and
there has been a material change in terms of decreased standing and walking tolerance as well as
sleep disturbances.”
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.26
Dr. Hebrard had a complete history of appellant’s accepted conditions and provided medical
reasoning explaining how her accepted back condition changed due to her work injuries and
activities. While these reports are insufficient to meet her burden of proof, they do raise
uncontroverted evidence of a material change in appellant’s accepted conditions and her total

26

J.K., Docket No. 11-1385 (issued February 7, 2012); N.H., Docket No. 08-1503 (issued April 14, 2009).

13

disability from work and are sufficient to require OWCP to undertake further development of
appellant’s claim.27
Furthermore, counsel asserts on appeal that OWCP failed to properly consider the
medical report dated March 25, 2016. Counsel’s argument is considered as a request for an
expansion of the claim for a consequential emotional condition, which he claims also resulted in
appellant’s total disability, warranting modification of the wage-earning capacity determination.
In the referenced note, Dr. Karalis, a psychiatrist, opined that appellant was totally disabled from
work as a result of severe anxiety and depression caused by the chronic pain from her physical
work injuries. He attributed the diagnosed severe anxiety and depression to her employment
injuries, noting that “a vicious cycle is set in motion: pain caused enhanced anxiety/depression,
which in turn enhances pain perception, which in turn enhances anxiety/depression.”
In addition to the report of Dr. Karalis, a consequential emotional condition has been
indicated by Dr. Hebrard. Dr. Hebrard reasoned that the progression of her physical injuries
caused “a material change in her condition which has ultimately led to problems with sleep
disturbances, decreased functional endurance, energy levels has been low, problems with
focusing and concentration.” He noted these symptoms caused disturbance with her ability to
sleep.
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.28
Causal relationship is a medical issue and the medical evidence generally required to establish
causal relationship is rationalized medical opinion evidence.29 The opinion of the physician must
be based on a complete factual and medical background of the employee, 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 employment-related factor or
incident.30
The Board finds that both Dr. Karalis and Dr. Hebrard were presented with a complete
factual and medical background of appellant’s claims before OWCP and provided medical
rationale in support of their opinions that appellant developed a consequential mental injury of
severe anxiety and depression which is of sufficient probative value to warrant further
development.31

27

John J. Carlone, 41 ECAB 354, 358-60 (1989).

28
J.D., Docket No. 17-0767 (issued November 28, 2017); Albert F. Ranieri, 55 ECAB 598, 602; A. Larson, The
Law of Workers’ Compensation § 10.01 (2000).
29

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

30

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

31

Supra note 28.

14

On remand, OWCP should further develop the medical evidence as appropriate to obtain
rationalized medical opinion evidence regarding whether the July 24, 2013 wage-earning
capacity determination should be modified based on the progression of appellant’s physical
conditions or on the development of an emotional condition causally related to her accepted
employment injuries. Following such further development of the case as OWCP deems
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion of the Board.
Issued: January 23, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and

U.S. POSTAL SERVICE, POST OFFICE,
Ponte Vedra, FL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1664
Issued: December 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 26, 2017 appellant timely appealed from a July 6, 2017 merit decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
1
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of appellant’s case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,888.45 for the period September 1 through December 13, 2015; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, then a 63-year-old city carrier, injured his right shoulder in the performance of
duty on February 24, 2015. OWCP accepted appellant’s claim for disorder of bursae and tendons
in shoulder region, unspecified, right; other affections of shoulder region, not elsewhere classified,
right; sprain of shoulder and upper arm, other specified sites, right; and villonodular synovitis,
shoulder region, right.
OWCP paid wage-loss compensation for temporary total disability and beginning
August 4, 2015 placed appellant on the periodic compensation rolls.
Appellant was born in January 1952. When he reached age 62 in 2014, he was eligible to
receive age-related social security retirement benefits. Appellant began receiving benefits
effective September 1, 2015. The record indicates that he was subject to Federal Insurance
Contributions Act (FICA) and Federal Employees’ Group Life Insurance (FEGLI) coverage
withholding while a federal employee.
Between March 5, 2016 and January 24, 2017, appellant regularly submitted annual
statements (Form CA-1032) regarding his employment status, volunteer work, dependents, and
other federal benefits received. He consistently denied receiving benefits from the Office of
Personnel Management (OPM). In his March 5, 2016 statement, appellant indicated that he
received $1,761.00 per month beginning September 2015 through February 2016 from the Social
Security Administration (SSA) based on his federal service. In his March 15, 2016 statement, he
confirmed that he had received $1,761.00 per month. In his January 24, 2017 statement, appellant
did not disclose receipt of SSA benefits.
On March 10, 2017 OWCP contacted SSA regarding the benefits of appellant.
On March 28, 2017 SSA advised OWCP that appellant was entitled to retirement benefits,
payment of which began paying in September 2015.2 It provided a breakdown of appellant’s
monthly SSA benefits that included contributions from his federal service (w/FERS), as well as a
monthly benefit that excluded his federal service contributions (w/o FERS). Beginning
September 2015, appellant’s total monthly SSA benefit was $1,761.00. The corresponding
monthly amount excluding appellant’s federal service contributions was $794.20. SSA provided
additional calculations for subsequent periods beginning December 2015 ($1,761.00/$794.20),
January 2016 ($2,043.00/$919.60), and December 2016 ($2,049.00/$922.30). SSA also noted that
appellant was entitled to disability benefits effective January 2016.
Appellant returned to modified full-time work with the employing establishment on
April 12, 2017.
On April 27, 2017 OWCP issued a preliminary overpayment determination in the amount
of $3,888.45 for the period September 1 through December 31, 2015 because he received full
compensation, when that compensation should have been offset due to receipt of social security
2
SSA noted that the FERS period began in 1981, and the computation date commenced from August 27, 2015 to
the present.

2

retirement benefits that were partially based upon his civilian federal service. Additionally, it
found that appellant was without fault in creating the overpayment. OWCP advised appellant that,
if he disagreed with fact or the amount of the overpayment, he had a right to submit new evidence
in support of his belief. It also provided him an overpayment recovery questionnaire (OWCP-20)
and informed appellant of his appeal rights.
Appellant timely requested a prerecoupment hearing, which OWCP’s Branch of Hearings
and Review scheduled for June 29, 2017. At the hearing he indicated that the overpayment
occurred through no fault of his own. Appellant explained that he received regular social security
benefits for four of the five months of the mandatory minimum wait before his social security
disability could be approved. He explained that it was reduced by approximately $75.00 per
month, because he received regular social security benefits during the mandatory wait and that his
regular old-age social security lifetime benefits would also be reduced by the $75.00 per month,
which was approximately $560.00 based of his life expectancy of 79 years. On May 31, 2017
OWCP received appellant’s completed overpayment recovery questionnaire (OWCP-20). On
June 22, 2017 appellant provided supporting documentation.
Appellant indicated on his submissions that he had monthly income of $9,262.00, which
included SSA, Army retirement benefits, and rental income. He indicated monthly expenses of
$6,023.00. Appellant noted the following: rent or mortgage, $3,013.00 per month; food, $500.00
per month; clothing, $100.00 per month; utilities $300.00 per month; and miscellaneous expenses
$250.00 per month. Additionally, he listed several loans for his car and residential loans tallying
$1,383.00. Appellant listed assets of $23,290.00. As to the question of fault he explained that,
when he applied for SSA benefits, he informed them that he was on “workmens’ comp.” Appellant
indicated that they provided his payment. Furthermore, he underwent three shoulder surgeries and
was approved for SSA disability effective January 1, 2016. However, the effective date of
appellant’s disability was August 2015, but he had to wait five months. He explained that because
he received regular benefits for four months, his social security benefits were reduced which was
approximately, $7,560.00. Appellant explained that it seemed like a “double jeopardy.” He
provided supporting documentation which accompanied the questionnaire.
At the June 29, 2017 prerecoupment hearing, the hearing representative found that monthly
income after expenses was determined to be $2,981.54. Appellant was also found to have net
assets of $27,114.00.
By decision dated July 6, 2017, the hearing representative finalized OWCP’s preliminary
determination regarding the fact and amount of the overpayment, as well as its finding that
appellant was not at fault. Regarding appellant’s request for waiver of recovery, she noted that
appellant had not provided justification for consideration of waiver. The hearing representative
explained that the financial information received did not establish a basis for granting waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the

3

performance of her federal employment.3 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”4
A FECA beneficiary may not receive wage-loss compensation concurrently with a Federal
retirement or survivor annuity.5 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of SSA benefits attributable to the
employee’s federal service.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP
will then deduct the hypothetical benefit from the actual benefit to determine the amount of
benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of the overpayment.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision as to this issue.
The record establishes that appellant received age-related social security retirement
benefits at least partially attributable to his federal service beginning September 2015, in addition
to FECA wage-loss compensation. Appellant is not entitled to simultaneously receive FECA
wage-loss compensation and retirement benefits based on his federal service.9 On March 21, 2017
SSA represented that a portion of appellant’s monthly retirement benefit was attributable to his
federal service. Consequently, OWCP was obliged to offset appellant’s FECA wage-loss

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter
2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); see R.C., Docket No. 09-2131 (issued April 2,
2010) (OWCP does not require an election between FECA benefits and SSA benefits except when they are attributable
to the employee’s federal service).
8

See V.T., Docket No. 18-0628 (issued October 25, 2018); L.B., Docket No. 11-2076 (issued August 29, 2012).

9

See supra note 3.

4

compensation by the amount of SSA age-related retirement benefits attributable to his federal
service.10
Although the Board finds that the fact of overpayment has been established, the case is not
in posture for decision with respect to the amount of the overpayment. An OWCP decision “shall
contain findings of fact and a statement of reasons.”11 As noted, the record establishes that
appellant received age-related SSA retirement benefits, some of which were attributable to his
federal service. However, it is not clear how the amount of the overpayment was derived.
For example, beginning September 2015, appellant’s total monthly SSA benefit with FERS
was $1,761.00, and the corresponding monthly amount excluding appellant’s federal service
contributions was $794.20. SSA provided additional calculations for subsequent periods
beginning December 2015 ($1,761.00/$794.20), January 2016 ($2,043.00/$919.60), and
December 2016 ($2,049.00/$922.30). The SSA rate with FERS included payments of $1,761.00,
$1,761.00, $2,043.00, and $2,049.00. This would equate to $7,614.00. The payments without
FERS were noted as $794.20, $794.20, $919.60, and $922.30. By subtracting the SSA rate with
FERS from the full SSA rate would equate to an overpayment in the amount of $2,336.10.
($7,614.00 minus $2,336.10 = $5,277.90). The Board notes that it is unclear how the overpayment
amount of $3,888.45 was determined with respect to the apportionment of federal service SSA
benefits for the period September 2015 to December 2016.
Therefore, the Board is unable to make an informed determination as to whether OWCP’s
finding regarding the amount of overpayment is accurate. Accordingly, the case shall be remanded
to OWCP for further development regarding the appropriate SSA/FECA offset.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose of
FECA or would be against equity and good conscience.12 Recovery of an overpayment will defeat
the purpose of FECA if such recovery would cause hardship to a current or former beneficiary
because the beneficiary from whom OWCP seeks recovery needs substantially all of his current
income, including compensation benefits, to meet current ordinary and necessary living expenses,
and the beneficiary’s assets do not exceed a specified amount as determined by OWCP.13
Additionally, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
10

5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

11

20 C.F.R. § 10.126.

12

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

13

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6a(1)(b)
(June 2009).

5

such payments would be made, relinquished a valuable right or changed his position for the
worse.14
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.15 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.16 The information is
also used to determine an appropriate repayment schedule, if necessary.17 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The hearing representative affirmed OWCP’s preliminary determination that appellant was
not at fault in creating the overpayment. On May 31, 2017 OWCP received appellant’s completed
overpayment recovery questionnaire (Form OWCP-20). On June 22, 2017 appellant provided
supporting documentation. He indicated that he had monthly income of $9,262.00, which included
SSA, Army retirement benefits, and rental income. Appellant indicated expenses, of $6,023.00.
He listed his assets as totaling $23,290.00. At the June 29, 2017 prerecoupment hearing, the
hearing representative found that monthly income after expenses was determined to be $2,981.54.
Appellant was also found to have net assets of $27,114.00. The Board finds that based on
appellant’s representations at the prerecoupment hearing, the hearing representative properly
determined that the circumstances of his case did not warrant a waiver of the recovery of the
overpayment.
On appeal appellant asserts that he disagreed with the overpayment. He argues that the
administrative actions have caused him to have a loss of almost $9,120.00 in social security
benefits because he collected it for four months. Appellant also indicates that he generally
understood the offset, which seemed “fair,” but the five-month waiting period should be excluded
from the offset rule. He also noted that he was on OWCP compensation for almost 21 months and
his payments prevented him from “financial ruins.” The Board notes that these arguments do not
impact the fact that he received both FECA wage-loss compensation and SSA age-related
retirement benefits based on his prior federal service. However, the amount of the overpayment
is unclear and the case will be remanded to determine the amount.

14

Id. at § 10.437(a), (b).

15

Id. at § 10.438(a).

16

Id.

17

Id.

18

20 C.F.R. § 10.438(b).

6

CONCLUSION
The Board finds that, although OWCP properly determined fact of overpayment, this case
is not in posture as to the amount of overpayment. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further action consistent with this decision.
Issued: December 17, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HEALTH, EDUCATION &
WELFARE, HEALTH CARE FINANCE
ADMINISTRATION, Baltimore, MD, Employer
__________________________________________

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Appearances:
Bill Shelton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1654
Issued: June 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 11 and May 23, 2006 merit decisions concerning her
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after June 24, 1999 due to her September 16, 1998
employment injury.

1

On August 28, 2007 the Board issued an order dismissing the present appeal for failure to provide attorney
authorization. On January 3, 2008 the Board issued an order which vacated the August 28, 2007 order and
reinstated the present appeal.

FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on July 22, 2005
setting aside several prior Office decisions and remanding the case to the Office for further
development regarding whether appellant met her burden of proof to establish that she sustained
a recurrence of total disability on or after June 24, 1999 due to her September 16, 1998
employment injury.2 The Board found that there was an unresolved conflict in the medical
evidence regarding whether appellant sustained an employment-related recurrence of total
disability on or after June 24, 1999. The Board explained that when the Office initially denied
appellant’s claim on December 2, 1999 it determined that the weight of the medical evidence
regarding the nature of appellant’s disability rested with the opinion of Dr. Edward J. Resnick, a
Board-certified orthopedic surgeon. In September 1999, the Office determined that there was a
conflict in the medical evidence between Dr. Steven J. Valentino, a Board-certified orthopedic
surgeon and an Office referral physician, and Dr. Ira S. Cantor, an attending Board-certified
internist, regarding appellant’s ability to work on or after June 24, 1999.
However,
Dr. Valentino’s March 18, 1999 report, which the Office indicated had formed his side of the
conflict, related to appellant’s medical condition prior to her claimed recurrence of total
disability beginning June 24, 1999.3 Therefore, at the time of the referral to Dr. Resnick, there
was no conflict in the medical evidence regarding the main issue of the present case, i.e., whether
appellant sustained a recurrence of total disability on or after June 24, 1999 due to her
September 16, 1998 employment injury. Consequently, Dr. Resnick served as an Office referral
physician rather than an impartial medical specialist and a conflict was created between
Dr. Resnick and Dr. Cantor regarding the nature of appellant’s condition and disability on and
after June 24, 1999.4 The Board concluded that, given the unresolved conflict in the medical
evidence, the case would be remanded to the Office for referral of appellant to an appropriate
impartial medical specialist to determine whether she sustained an employment-related
recurrence of total disability on or after June 24, 1999. The Board directed that, after such
development as the Office deemed necessary, the Office should issue an appropriate decision on

2

Docket No. 05-22 (issued July 22, 2005). The Office accepted that on September 16, 1998 appellant, then a 47year-old nurse consultant, sustained neck and lumbosacral sprains when her vehicle was struck from behind by
another vehicle. She indicated on her claim form that she sustained “soft tissue damage to neck and back.”
Appellant returned to her regular work for the employing establishment on May 5, 1999 and stopped work on
June 24, 1999, alleging that she sustained a recurrence of total disability on that date due to her September 16, 1998
employment injury.
3

In his March 18, 1999 report, Dr. Valentino concluded that appellant had no limitations related to her
September 16, 1998 employment injury. He indicated that appellant had degenerative changes in her cervical spine
which were not related to her employment injury.
4

In a July 26, 1999 report, Dr. Cantor concluded that appellant was “severely disabled” secondary to the effects
of the September 16, 1998 vehicular accident. He indicated that according to the history appellant had not been pain
free since September 16, 1998. In contrast, Dr. Resnick indicated in a September 28, 1999 report that appellant did
not have any disabling residuals of her September 16, 1998 employment injury. He made note of appellant’s many
subjective complaints with voluntary restriction of motion and disproportionate pain complaints.

2

this matter.5 The facts and the circumstances of the case up to that point are set forth in the
Board’s prior decision and are incorporated herein by reference.
On remand the Office referred appellant and the case record to Dr. Joseph S. Lubeck, a
Board-certified neurologist and osteopath. On November 28, 2005 Dr. Lubeck provided a
description of the September 16, 1998 employment injury and appellant’s medical treatment since
that time. He noted that appellant reported numerous physical complaints and cognitive difficulties
that she alleged impacted her activities. Dr. Lubeck indicated that motor examination showed 5/5
strength in all muscle groups but that appellant was unable to elevate her arms complaining of
pain. Sensory examination showed that all of appellant’s modalities were intact, but she exhibited
extreme hypersensitivity. Appellant complained of tenderness to finger pressure in the cervical
and lumbar regions which was insufficient to produce a skin dimple. Dr. Lubeck stated that one
could sustain a brain injury causing permanent cognitive difficulties without undergoing loss of
consciousness during an accident, but that someone who had suffered such an injury would present
with symptoms such as confusion, headaches, dizziness or double vision. He indicated that the
medical records from September 16, 1998 and the following months did not indicate that appellant
reported such symptoms consistent with a brain injury and that, in fact, appellant did not report
such symptoms until 2002. Dr. Lubeck concluded that appellant did not sustain a brain injury on
September 16, 1998 and stated:
“Regarding [appellant’s] complaints of ongoing pain, all of the abnormalities on
examination are subjective: that is, they are dependent on the patient’s perceived
response to various stimuli and maneuvers. I would agree with Dr. Resnick’s
assertion that some of these abnormalities may be interpreted as objective by
other examiners. Nevertheless, they are prone to subject manipulation and
embellishment unlike other aspects of the examination such as reflex or muscle
bulk. It should be noted that [appellant] has no objective abnormalities on her
neurologic examination and indeed her subjective complaints or subjective
responses to examination maneuvers are far out of proportion to any noted
objective abnormalities. In addition, her extreme response to maneuvers or tactile
stimuli insufficient to produce a skin dimple on her limbs is inconsistent with any
expected consequence of spinal or whiplash injury she may have suffered in
September 1998.
Consequently, I would agree with the conclusions of
Drs. Valentino and Resnick that [appellant] had limited or absent abnormalities at
the time of their examinations and had no neurologic abnormalities at the time of
my examination of October 31, 2005.
“In summary, [appellant] has no significant neurologic impairment as a result of
the injury she sustained on September 16, 1998 and had no significant residual
neurological injury at the time of her reported second injury in May 1999.6 In
5

The Board noted that Dr. Cantor had suggested that appellant sustained fibromyalgia syndrome or a brain injury
due to the September 16, 1998 employment injury, but that neither of these conditions had been accepted as
employment related.
6

In mentioning a May 1999 injury, Dr. Lubeck appears to be referencing appellant’s claim that she noticed
increased employment-related symptoms when she engaged in some limited gardening at home in May 1999.

3

addition, although loss of consciousness is not a necessary precursor to mild
traumatic brain injury, there is no evidence in her medical records that she
sustained a head injury sufficient enough to produce a traumatic brain injury.”
In a January 11, 2006 decision, the Office denied appellant’s claim on the grounds that she
had not shown that she sustained a recurrence of total disability on or after June 24, 1999 due to
her September 16, 1998 employment injury. The Office found that the weight of the medical
evidence on this matter rested with the well-reasoned opinion of the impartial medical specialist,
Dr. Lubeck.
Appellant requested a review of the written record by an Office hearing representative.
She argued that she sustained a brain injury on September 16, 1998 which continued to cause
disability. Appellant’s attorney contended that Dr. Lubeck was not qualified to address
appellant’s depression and fibromyalgia. In a May 23, 2006 decision, the Office hearing
representative affirmed the Office’s January 11, 2006 decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.7 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.8 Where no such rationale is present, medical evidence is of diminished
probative value.9
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“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.”10 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.11

7

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

8

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

ANALYSIS
The Office accepted that on September 16, 1998 appellant sustained neck and
lumbosacral sprains when her vehicle was stuck from behind by another vehicle. She stopped
work on June 24, 1999 alleging that she sustained a recurrence of total disability on that date due
to her September 16, 1998 employment injury.
In its July 22, 2005 decision, the Board previously determined that there was a conflict in
the medical opinion between Dr. Cantor, appellant’s attending Board-certified internist, and
Dr. Resnick, a Board-certified orthopedic surgeon and Office referral physician, on the issue of
whether appellant sustained a recurrence of total disability on or after June 24, 1999 due to her
September 16, 1998 employment injury. In order to resolve the conflict, the Office properly
referred appellant, pursuant to section 8123(a) of the Act, to Dr. Lubeck, a Board-certified
neurologist and osteopath, for an impartial medical examination and an opinion on the matter.12
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Lubeck, the impartial medical specialist selected to resolve the
conflict in the medical opinion.13 The report of Dr. Lubeck establishes that appellant did not
sustain an employment-related recurrence of total disability on or after June 24, 1999.
On November 28, 2005 Dr. Lubeck provided a description of the September 16, 1998
employment injury and appellant’s medical treatment since that time. He reported the findings of
his examination noting essentially normal findings except for some subjective responses to
testing.14 Dr. Lubeck concluded that appellant did not exhibit any disabling residuals of her neck
and lumbosacral sprains from mid-1999 onwards. He discussed the subjective nature of
appellant’s complaints and examination results and stated, “It should be noted that [appellant]
has no objective abnormalities on her neurologic examination and indeed her subjective
complaints or subjective responses to examination maneuvers are far out of proportion to any
noted objective abnormalities. In addition, her extreme response to maneuvers or tactile stimuli
insufficient to produce a skin dimple on her limbs is inconsistent with any expected consequence
of spinal or whiplash injury she may have suffered in September 1998.”
Dr. Lubeck also extensively considered whether appellant sustained a brain injury on
September 16, 1998. The Board notes that it has not been accepted that appellant sustained a
brain injury due to the September 16, 1998 employment injury. Dr. Lubeck concluded that
appellant sustained no such injury on September 16, 1998. He stated that one could sustain a
brain injury causing permanent cognitive difficulties without undergoing loss of consciousness
during an accident, but that someone who had suffered such an injury would present with
symptoms such as confusion, headaches, dizziness or double vision. Dr. Lubeck indicated,
however, that the medical records from September 16, 1998 and the following months did not
12

See supra note 10 and accompanying text.

13

See supra note 11 and accompanying text.

14

For example, appellant complained of tenderness to finger pressure in the cervical and lumbar regions which was
insufficient to produce a skin dimple.

5

indicate that appellant reported such symptoms consistent with a brain injury and that, in fact,
appellant did not report such symptoms until 2002.
The Board has carefully reviewed the opinion of Dr. Lubeck and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Lubeck’s opinion is based on a proper factual and medical
history in that he had the benefit of an accurate and up-to-date statement of accepted facts,
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence.15 He provided medical rationale for his opinion by explaining that there were no
objective findings to show that appellant sustained an employment-related recurrence of total
disability in mid-1999 as alleged. Dr. Lubeck made note of appellant’s many subjective
symptoms and explained that the medical evidence from the period following the September 16,
1998 accident did not show that she sustained a brain injury.16
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after June 24, 1999 due to her September 16, 1998
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 23 and January 11, 2006 decisions are affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

16

Appellant’s attorney contended that Dr. Lubeck was not qualified to address appellant’s depression and
fibromyalgia, but these conditions have not been accepted as employment related and are not the subject of the
present appeal.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1353
Issued: May 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 27, 2018 appellant, through her representative, filed a timely appeal from a
March 21, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

The Board notes that, following the March 21, 2018 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.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish modification of the
October 8, 2013 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On September 29, 2009 appellant, then a 53-year-old city mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she had sustained pain in her low back and
knees causally related to factors of her federal employment. OWCP accepted the claim for
unspecified bilateral derangement of the medial meniscus and displacement of a lumbar
intervertebral disc without myelopathy.5 On June 18, 2012 appellant underwent an OWCPauthorized left knee arthroscopy with partial medial and lateral meniscectomies.
By decision dated October 8, 2013, OWCP determined that appellant’s actual earnings as
a customer care agent, effective June 3, 2013, fairly and reasonably represented her wage-earning
capacity. It reduced her wage-loss compensation to zero as her actual earnings as a customer care
agent met or exceeded her earnings in her date-of-injury position.
On September 9, 2016 appellant filed a claim for wage-loss compensation (Form CA-7)
for disability from work during the period August 29 through September 2, 2016.
In support thereof, appellant submitted a report dated August 24, 2016, from Dr. Basimah
Khulusi, a Board-certified physiatrist. On examination of appellant for complaints of increased
pain in her right knee, Dr. Khulusi noted that appellant had a significant limp and was currently
using an ambulation aid. Dr. Khulusi found a “hot and swollen” right knee with marked tenderness
of the medial aspect of the joint. She diagnosed left knee degenerative joint disease, status post
left knee arthroscopy, other unspecified derangement of the bilateral medial meniscus, and
displacement of the lumbar intervertebral disc without myelopathy. Dr. Khulusi noted that
appellant had applied for disability retirement and opined that she was temporarily totally disabled
from work.

3

5 U.S.C. § 8101 et seq.

4

Appellant timely requested oral argument before the Board. By order dated March 5, 2019, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 18-1353 (issued March 5, 2019).
5

Appellant also has accepted claims for: lumbosacral and left ankle sprains due to a dog bite on March 14, 2000
under OWCP File No. xxxxxx556; a left ankle sprain due to twisting to avoid a dog on July 21, 2004 under OWCP
File No. xxxxxx562; and right shoulder tendinitis, right shoulder bursitis, and right carpal tunnel syndrome under
OWCP File No. xxxxxx251. OWCP File No. xxxxxx403 was administratively accepted for medical benefits related
to a left arm condition sustained on August 17, 2000. Appellant’s claims have not been administratively combined.

2

In a compensation claim development letter dated September 26, 2016, OWCP requested
that appellant submit evidence establishing that she had sustained an increase in disability causally
related to her accepted employment injury. It afforded her 30 days to submit additional evidence.
OWCP subsequently received a September 27, 2016 report wherein Dr. Charles Herring, a
Board-certified orthopedic surgeon, noted that appellant ambulated using a walker. He diagnosed
bilateral medial meniscal tears, bilateral degenerative joint disease, a right knee lateral meniscal
tear, and status post left knee arthroscopy. Dr. Herring found that appellant was temporarily totally
disabled from work.
In a report dated October 12, 2016, Dr. Khulusi noted that appellant was unable to sleep at
night due to pain, which impacted her ability to drive or concentrate when she was at work. She
found that her pain and inability to sleep prevented her from being able to work.
On October 20, 2016 Dr. Khulusi advised that she was treating appellant for the accepted
conditions of bilateral medial meniscus derangement and displacement of the lumbar intervertebral
disc without myelopathy. She indicated that appellant’s condition had progressively worsened
such that she had to take days off work in order to continue working. Dr. Khulusi noted that a
magnetic resonance imaging (MRI) scan of appellant’s knees dated June 2015 objectively
demonstrated that her knees had worsened when compared to prior scans. She further noted that
appellant’s difficulty walking had increased the strain on her lumbar disc condition. Dr. Khulusi
opined that, in spite of work restrictions, appellant’s knee condition had progressed to the point
that appellant had lesions on her bones and major ligaments, which resulted in her not being able
to perform the duties of her position.
In a report dated November 22, 2016, Dr. Khulusi diagnosed unspecified bilateral
derangement of the medial meniscus, displacement of the lumbar intervertebral disc without
myelopathy, left knee degenerative joint disease, and status post left knee arthroscopy. In a duty
status report (Form CA-17) of this same date, she found that appellant was temporarily totally
disabled from work. Dr. Khulusi submitted a similar report and a Form CA-17 report on
January 24, 2017.
On February 16, 2017 OWCP referred appellant to Dr. Joseph Klemek, a Board-certified
orthopedic surgeon, for a second opinion examination regarding appellant’s diagnosed conditions,
treatment plan, and work restrictions.
In a report dated March 21, 2017, Dr. Klemek reviewed a statement of accepted facts
(SOAF) and the medical evidence of record, noting that appellant’s chief complaints were bilateral
knee pain and low back pain. He provided findings on examination, including swelling of the
knees bilaterally with effusion. Dr. Klemek indicated that appellant had sustained bilateral
osteoarthritis of the knees as a consequential injury, as her knee derangement “had compromised
[appellant’s] natural protective cartilage and has advanced her wear and tear osteoarthritis.” He
opined that she was a candidate for a bilateral knee replacement given x-ray findings showing an
almost complete loss of the medial compartment of both knees. Dr. Klemek noted that he was
unable to identify a material change in appellant’s orthopedic condition, because although her
subjective complaints had increased, the objective findings were of a long-standing nature. He
indicated that she had been diagnosed with vertigo that prevented driving. Dr. Klemek opined that

3

appellant’s present disability was not related to her orthopedic condition, given that she was
performing sedentary work. He found that she could perform the duties of a customer care agent.
In a progress report dated April 25, 2017, Dr. Khulusi noted that appellant’s pain had
continued to worsen. She found that appellant should remain off work.
By decision dated June 22, 2017, OWCP denied modification of the October 8, 2013
LWEC determination.
On July 11, 2017 appellant requested an oral hearing before an OWCP hearing
representative. In a statement accompanying her request, she argued that there had been a material
change in her medical condition.
Additional evidence from Dr. Khulusi was subsequently received. In a progress report
dated July 24, 2017, she again noted that appellant’s pain had continued to worsen and found that
appellant should remain off work.
On October 5, 2017 Dr. Khulusi noted that Dr. Klemek had diagnosed a consequential
injury. She explained that his finding of a consequential injury demonstrated that appellant’s
condition had materially changed. Dr. Khulusi maintained that a conflict in medical opinion
existed between herself and Dr. Klemek with regard to appellant’s ability to work in a sedentary
position.
Following a preliminary review, by decision dated November 14, 2017, OWCP’s hearing
representative vacated the June 22, 2017 decision. She found that the case was not in posture for
decision as a conflict existed between Dr. Khulusi and Dr. Klemek on the issue of appellant’s work
capacity. The hearing representative remanded the case for OWCP to refer appellant for an
impartial medical examination. She further found that OWCP should confirm that the customer
care agent position upon which it had based its LWEC determination was a permanent position.
OWCP subsequently expanded acceptance of the claim to include bilateral knee
osteoarthritis.
On December 1, 2017 appellant returned to part-time employment as a customer care
agent.
In a December 7, 2017 medical conflict statement, OWCP advised that a conflict existed
between Dr. Klemek, who found that appellant could continue to work as a customer care despite
her knee degeneration and Dr. Khulusi, who found that appellant was disabled from work
beginning August 2016 due to the degenerative changes in her knees.
On December 7, 2017 the employing establishment confirmed that the customer care agent
position was permanent and classified.
In a report dated December 14, 2017, Dr. Curtis W. Spencer, III, a Board-certified
orthopedic surgeon, diagnosed bilateral degenerative knee arthritis and recommended a right total
knee arthroplasty.

4

On December 18, 2017 OWCP referred appellant, along with an updated SOAF, the
medical record, and a list of questions to Dr. James Fait, a Board-certified orthopedic surgeon, for
an impartial medical examination.
On January 2, 2018 OWCP authorized a right total knee arthroplasty.
In a report dated February 16, 2018, Dr. Fait discussed appellant’s history of employment
injuries and reviewed the medical evidence of record. On examination he found tenderness to
palpation of the lower lumbar spine, subjectively diminished sensation, and full muscle strength.
Dr. Fait further found effusion, crepitus, and reduced motion of the knees bilaterally without
warmth or erythema. He diagnosed multiple conditions, including bilateral knee osteoarthritis and
multilevel degenerative disc disease of the lumbar spine. Dr. Fait noted that appellant also had
accepted claims for her right shoulder, right wrist, left ankle, and both feet. He found mild
degenerative changes of the feet and ankles, degenerative disc disease of the lumbar spine and
osteoarthritis of the knees, but no evidence of carpal tunnel syndrome or lumbar radiculopathy.
Dr. Fait opined that appellant had not experienced a progression of her right shoulder, right wrist,
low back, or knee conditions as a result of her work as a customer care agent. He found, however,
that her bilateral knee arthritis had worsened due to the natural progression of the condition
unrelated to the duties of her employment. Dr. Fait advised that appellant “could have continued
to work as a customer care agent in August 2016 despite the degenerative changes in the knees or
back.” He concurred with Dr. Klemek that she remained capable of working as a customer care
agent, noting that the position was sedentary and had not required standing, lifting, pushing,
pulling, or bending. Dr. Fait further agreed with Dr. Klemek that appellant was a candidate for
bilateral total knee arthroplasties. In a February 22, 2018 work capacity evaluation (Form OWCP5c), he found that she could work full time when walking, standing, reaching above the shoulder,
and twisting for two hours per day, bending and stooping for one hour per day, and pushing,
pulling, and lifting up to five pounds.
By decision dated March 21, 2018, OWCP denied modification of the October 8, 2013
LWEC determination. It found that Dr. Fait’s opinion constituted the special weight of the
evidence and demonstrated that appellant had not established a material change in her injuryrelated condition. OWCP further noted that there was no evidence that its original LWEC was in
error or that she had been vocationally rehabilitated.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.6 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7 If a formal LWEC determination has been issued,
the rating should be left in place unless the claimant requests resumption of compensation for total
6

5 U.S.C. § 8115(a); see C.C., Docket No. 18-1127 (issued January 29, 2019); Mary Jo Colvert, 45 ECAB 575
(1994); Keith Hanselman, 42 ECAB 680 (1991).
7
O.H., Docket No. 17-0255 (issued January 23, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C.
Clement, 55 ECAB 552 (2004).

5

wage loss. In this instance, OWCP will need to evaluate the request according to the customary
criteria for modifying a formal LWEC determination.8
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.9 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.10
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.11 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical examiner (IME) 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.12
When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the
medical evidence and the IME’s opinion requires clarification or elaboration, OWCP must secure
a supplemental report from the examiner for the purpose of correcting the defect in the original
opinion.13 If the referral physician fails to respond or does not provide an adequate response,
OWCP should refer appellant for a new IME examination.14
ANALYSIS
The Board finds that the case is not in posture for decision.
In seeking modification of the LWEC determination, appellant has not argued that the
original determination was in error or that she has been retrained or otherwise vocationally
rehabilitated. Rather, she argued that there has been a material change in the nature and extent of

8
Katherine T. Kreger, id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of WageEarning Capacity, Chapter 2.1501.4 (June 2013).
9

Id. at Chapter 2.1501.3(a).

10

J.H., Docket No. 18-0535 (issued December 31, 2018).

11
5 U.S.C. § 8123(a); J.B., Docket No. 18-1021 (issued December 4, 2018); Darlene R. Kennedy, 57 ECAB
414 (2006).
12

See D.W., Docket No. 18-0123 (issued October 4, 2018); see also Gloria J. Godfrey, 52 ECAB 486 (2001).

13

K.C., Docket No. 19-1251 (issued January 24, 2020); P.E., Docket No. 18-0745 (issued February 6, 2019).

14
Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.810.11(e) (September 2010); see also R.W., Docket
No. 18-1457 (issued February 1, 2019).

6

her injury-related condition. As noted above, a modification may be established by a material
change in the nature and extent of the employment-related condition.15
OWCP properly determined that a conflict arose between appellant’s treating physician,
Dr. Khulusi, who found that appellant was totally disabled from employment, and Dr. Klemek, an
OWCP referral physician who found that appellant could perform the sedentary position of
customer care agent. It referred appellant to Dr. Fait, a Board-certified orthopedic surgeon, for
resolution of the conflict.
As discussed, when OWCP has referred the case to an IME to resolve a conflict in medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.16 The Board finds, however, that Dr. Fait’s
opinion is insufficiently rationalized to be entitled to the special weight accorded an IME.
In a report dated February 16, 2018, Dr. Fait found that appellant had degenerative changes
in the knees and back, and opined that her bilateral knee osteoarthrosis had progressed, noting that
she had a significant loss of range of motion in both knees. He found that the progression of her
osteoarthrosis was unrelated to her federal employment. Dr. Fait opined that appellant could have
continued to work as a customer care agent at the time she stopped work in August 2016.
However, he failed to provide any rationale for his opinion other than to note the position was
sedentary. The Board has found that, when an IME fails to provide medical reasoning to support
his or her conclusions about a claimant’s condition, the opinion is insufficient to resolve a conflict
in medical evidence.17 Thus, the Board finds that Dr. Fait’s opinion is of insufficient probative
value to carry the special weight of the evidence.18
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.19 When it obtains an opinion
from an IME for the purpose of resolving a conflict in the medical evidence and the IME’s opinion
requires clarification or elaboration, it must secure a supplemental report from the specialist to
correct the defect in his original report.20 As OWCP referred appellant to Dr. Fait for an impartial
medical examination, it has a duty to obtain a report sufficient to resolve the issues raised and the
questions posed to the specialist.21
On remand OWCP shall administratively combine appellant’s accepted claims and
thereafter obtain a supplemental report from Dr. Fait sufficient to resolve the conflict regarding
15

Supra note 13.

16

D.O., Docket No. 17-0911 (issued February 2, 2018).

17

B.J., Docket No. 18-1186 (issued July 9, 2019); A.R., Docket No. 12-0443 (issued October 2, 2012).

18

T.S., Docket No. 18-1702 (issued October 4, 2019).

19

See K.S., Docket No. 18-0845 (issued October 26, 2018).

20

R.W., supra note 14.

21

B.J., supra note 17.

7

whether appellant is able to work as a customer care agent and providing rationale for his
conclusions. If Dr. Fait is unable to clarify or elaborate on his original report, or if his
supplemental report is vague, speculative, or lacking in rationale, OWCP shall refer appellant to a
new IME.22 Following this and such further development as deemed necessary, OWCP shall issue
a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 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: May 22, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

22

See C.T., Docket No. 19-0508 (issued September 5, 2019); R.H., Docket No. 17-1903 (issued July 5, 2018).

8