United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wentsville, MO, Employer
__________________________________________

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

Docket No. 14-1042
Issued: August 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 27, 2014 appellant, through her attorney, filed a timely appeal from the
February 24, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
reducing her compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits to zero
effective June 21, 2013 based on her refusal to undergo vocational rehabilitation as directed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant a 45-year-old rural carrier, sustained bilateral shoulder
strains and bilateral rotator cuff tears as a result of lifting and moving case shelves on
November 1, 2011. It authorized a left shoulder arthroscopy performed on March 26, 2012.2
In work capacity evaluations dated February 14 and March 5, 2013, Dr. Richard C.
Lehman, a Board-certified orthopedic surgeon, advised that appellant could not perform her
usual job. Appellant could work eight hours a day with physical restrictions.
By letters dated March 7, 2013, OWCP inquired whether the employing establishment
could offer appellant a light-duty position within Dr. Lehman’s restrictions.
On March 7, 2013 OWCP was informed that appellant had returned to limited-duty work,
two hours a day on February 26, 2013. The employing establishment looked for additional
activities within her restrictions.
On March 11, 2013 OWCP referred appellant for vocational rehabilitation services.
Appellant was advised that she was expected to cooperate fully with the rehabilitation and
reemployment effort. She was sent a copy of the March 11, 2013 letter OWCP provided to
Timothy D. Kaver, a job placement and training director at England and Company, which stated
that appellant’s cooperation and participation in vocational rehabilitation was compulsory under
5 U.S.C. § 8113(b).
On April 16, 2013 Mr. Kaver informed OWCP that he had made several unsuccessful
attempts to reach appellant to schedule an appointment by letters dated March 24, April 1, 8
and 16, 2013, which was on England and Company letterhead and by telephone.
On May 14, 2013 OWCP left appellant a voicemail message asking whether she had
contacted her vocational rehabilitation specialist and provided his telephone number for contact.
By letter dated May 14, 2013, it also informed her that it had been advised by her rehabilitation
counselor that she had failed to contact him to undergo vocational rehabilitation training.
Appellant was advised of the sanctions for failure to undergo vocational rehabilitation. She was
advised to contact OWCP and the rehabilitation counselor within 30 days.
On May 15, 2013 Mr. Kaver informed OWCP that he had contacted appellant. By letter
dated May 16, 2013, he advised appellant that a vocational rehabilitation interview was
scheduled for May 29, 2013.
On June 3, 2013 Mr. Kaver informed OWCP that appellant called him on May 29, 2013
to cancel the scheduled interview due to fatigue and pain. Appellant requested that the interview
be rescheduled. On May 29 and June 3, 2013 Mr. Kaver left telephone messages for appellant,
but she did not reply. Appellant also did not reply to his June 3, 2013 letter.

2

In a decision dated January 29, 2014, OWCP granted appellant a schedule award for five percent impairment of
the left shoulder.

2

On June 17, 2013 vocational rehabilitation services were closed due to appellant’s refusal
to cooperate with the rehabilitation counselor. The closing report prepared by Leslie Nelson, a
rehabilitation specialist, noted that services were closed because appellant failed to meet with a
rehabilitation counselor after numerous attempts to schedule an initial meeting to conduct a
transferable skills analysis and identify skills which may be helpful in identifying full-time work
at the employing establishment.
In a June 20, 2013 decision, OWCP reduced appellant’s compensation under the
provisions of 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 to zero effective June 21, 2013. It
found that she failed to participate in the essential preparatory effort of vocational rehabilitation,
which would permit OWCP to determine her wage-earning capacity. OWCP found that
vocational rehabilitation efforts would have returned her to work at the same or higher wages
than the position appellant held when injured. Appellant was advised that this reduction would
continue until she underwent the vocational testing or showed good cause for not complying.
In a July 18, 2013 report, Mr. Kaver advised that appellant’s appointment was
rescheduled for July 1, 2013, however, on June 28, 2013 OWCP advised him to close her file.
On June 28, 2013 he informed her about OWCP’s request to close her file.
By letter dated December 18, 2013, appellant, through her attorney, requested a review of
the written record by an OWCP hearing representative regarding the June 20, 2013 decision.3 In
a September 6, 2013 letter, she stated that she had no idea that Mr. Kaver was trying to reach her.
Appellant claimed that she was informed by the employing establishment’s Office of the
Inspector General that her training would take place inside the employing establishment. She
stated that a trucking company and the vocational rehabilitation company had the same name,
England Company and she thought the trucking company was trying to contact her since she had
a commercial driver’s license. Appellant believed that the letters from the company were junk
mail until she received a call from OWCP. She claimed that she cancelled her May 29, 2013
vocational rehabilitation interview because she was experiencing pain when she got off work.
Appellant claimed that she missed Mr. Kaver’s telephone call to reschedule her interview. She
stated that when she called him back, his voicemail stated that he was on vacation. Thereafter,
appellant called three times and left messages. She received a message from OWCP on June 19,
2013, stating that her case was being closed. Appellant called and left a message for Mr. Kaver,
who returned her telephone call and rescheduled her appointment for July 1, 2013. On June 29,
2013 she received a call from him stating that he had received an OWCP e-mail canceling her
July 1, 2013 appointment and closing her case. Appellant also contended that Mr. Kaver was
twice given the wrong telephone numbers.
In a February 24, 2014 decision, an OWCP hearing representative affirmed the June 20,
2013 decision, finding that appellant did not cooperate with vocational rehabilitation or provide
adequate reasons for her failure to cooperate. The vocational rehabilitation counselor’s records
demonstrated that appellant’s actions or inaction, were obstructive and uncooperative. The
hearing representative found that appellant failed to provide good cause for not responding to the
rehabilitation counselor’s telephone calls or letters.
3

Appellant initially requested a telephone hearing before an OWCP hearing representative, but subsequently
changed her request to a review of the written record.

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LEGAL PRECEDENT
Section 8104(a) of FECA provides that OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation.4 Section 8113(b) provides that, if an individual
without good cause fails to apply for and undergo vocational rehabilitation when so directed
under 8104, the Secretary, on review under section 8128 and after finding that in the absence of
the failure the wage-earning capacity of the individual would probably have substantially
increased, may reduce prospectively the monetary compensation of the individual in accordance
with what would probably have been his or her wage-earning capacity in the absence of the
failure, until the individual in good faith complies with the direction of the Secretary.5
Section 10.519 of OWCP regulations state that OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation. Where a suitable job has been identified, OWCP
will reduce the employee’s future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she undergone vocational
rehabilitation. This reduction will remain in effect until such time as the employee acts in good
faith to comply with the direction of OWCP.6
ANALYSIS
The Board finds that OWCP properly reduced appellant’s monetary compensation to zero
effective June 21, 2013. Appellant failed, without good cause, to participate in the early stages
of vocational rehabilitation efforts. Upon receiving medical evidence that she was not totally
disabled for all work, but was capable of working eight hours a day with restrictions, OWCP
properly referred her to vocational rehabilitation services. Appellant refused to cooperate with
this rehabilitation effort as documented in the record by her rehabilitation counselor. Mr. Kaver
stated that on May 29, 2013 she informed him that she would not attend the vocational
rehabilitation interview scheduled on that date due to fatigue and pain. Appellant requested that
the interview be rescheduled, but failed to respond to his subsequent telephone messages or
letters to reschedule the interview prior to the suspension of her benefits. The Board has
recognized that medical inability to participate in vocational rehabilitation, if properly
substantiated, may constitute good cause for failure to participate in vocational rehabilitation.7
However, appellant did not submit any probative medical evidence to establish her inability to
attend the scheduled May 29, 2013 vocational rehabilitation interview.8 Thus, she did not
establish good cause for her failure to report to the scheduled appointment.

4

5 U.S.C. § 8104(a); see J.E., 59 ECAB 606 (2008).

5

Id. at § 8113(b); see Freta Branham, 57 ECAB 333 (2006).

6

20 C.F.R. § 10.519.

7

Carolyn M. Leek, 47 ECAB 3745 (1996); Linda M. McCormick, 44 ECAB 958 (1993).

8

J.W., 58 ECAB 419 (2007).

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The Board further finds that, in her September 6, 2013 letter, appellant did not
demonstrate good cause for her failure to cooperate. Appellant did not respond to Mr. Kaver’s
letters and calls because she did not know that he was trying to contact her to undergo vocational
rehabilitation. She thought his company, England and Company, was a trucking company with
the same name that was trying to contact her because she had a commercial license. Appellant
also thought that correspondence from the company was junk mail until she received a call from
OWCP. She claimed that she cancelled her scheduled vocational rehabilitation interview
because she was in a lot of pain when she got off work. Appellant also claimed that she missed
Mr. Kaver’s telephone call to reschedule her interview. She contended that when she called him
back his voicemail stated that he was on vacation. Appellant also contended that she called
Mr. Kaver three times and left messages. She claimed that he was given the wrong telephone
numbers twice. Mr. Kaver subsequently returned appellant’s call and rescheduled her
appointment for July 1, 2013, but later advised her that it was canceled and her case was closed.
The Board finds that appellant’s contentions for failing to report to the scheduled
vocational rehabilitation interview do not constitute good cause. OWCP notified her by letter
dated March 11, 2013 that she was being referred to vocational rehabilitation services and that
she was expected to fully cooperate with such services. Appellant was also notified that this
letter was being sent to Mr. Kaver at England and Company. In addition, OWCP sent her a copy
of its March 11, 2013 letter provided to Mr. Kaver regarding her referral for vocational
rehabilitation services and advising him about her compulsory cooperation and participation in
vocational rehabilitation under section 8113(b). Appellant was made well aware that England
and Company was a vocational rehabilitation services company and not a trucking company as
alleged. It was her responsibility to respond to the letters and telephone calls from Mr. Kaver
regarding her vocational rehabilitation interview, but she failed to do so. Further, appellant did
not submit any probative medical evidence to establish that she was incapable of attending the
scheduled vocational rehabilitation interview. In addition, she did not submit any evidence to
establish her attempts to reach Mr. Kaver to reschedule her appointment.
The Board finds that appellant refused to participate in vocational rehabilitation with the
vocational counselor without good cause. OWCP properly found that vocational training would
probably have substantially increased her wage-earning capacity and properly reduced her
compensation in accordance with what would have probably been her wage-earning capacity had
she completed the program.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation benefits to zero
effective June 21, 2013 based on her refusal to undergo vocational rehabilitation as directed.

5

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
P.L., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
DIPLOMATIC SECURITY, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 14-723
Issued: December 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On February 11, 2014 appellant filed a timely appeal from an October 8, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on November 7, 2011.
FACTUAL HISTORY
On December 16, 2011 appellant, then a 56-year-old federal senior officer/correctional
officer, filed a traumatic injury claim alleging that on November 7, 2011, he was unlocking the
1

5 U.S.C. § 8101 et seq.

front door on DCH-3 Unit 5RD floor and felt a very sharp pain in his left wrist and fingers. He
did not initially stop work.2
By letter dated November 1, 2012, OWCP informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days.
In a November 16, 2012 report, Dr. Claude D. Jarrett, an orthopedic surgeon, noted that
appellant presented with a one-year history of persistent left hand numbness and tingling. He
advised that appellant complained that his wrist had been bothering him for approximately one
year and the symptoms began to bother him at work when closing numerous “stores.” Dr. Jarrett
examined appellant’s left hand and noted that he had no wounds or lacerations, a positive Tinel’s
sign, positive Phalen’s test, and a positive Durkan direct compression test. He noted that
appellant was able to flex and extend all of his digits and he had brisk “cap refills” digitally.
Dr. Jarrett diagnosed left carpal tunnel syndrome.
In a December 7, 2012 decision, OWCP denied appellant’s claim finding that he did not
show that a specific event, incident, or exposure occurred in the manner alleged.
On January 28, 2013 appellant requested reconsideration. In a statement also dated
January 28, 2013, he explained that prison doors weighed approximately 200 to 300 pounds and
due to the age and weight of the doors, the screws no longer supported the weight of the doors.
Appellant noted that this caused the doors to hang off the hinges. He explained that the key ring
weighed about two pounds and once the keys were inserted into the doors, he had to lift up on
the doors, turning the keys at the same time. Appellant indicated that this created daily stress
and strain on his hand and wrist. He explained that, during this time, he could only use his left
hand, as he had recently undergone right shoulder surgery. Appellant noted that no one was
present at the time of his injury, other than inmates.
OWCP received a February 12, 2008 nerve conduction study of the upper arms read by
Dr. Jacqueline M. Washington, a Board-certified neurologist, which was abnormal, and
consistent with bilateral median neuropathies at the wrist, severe on the left, moderately severe
on the right. OWCP also received a January 15, 2013 nerve conduction study, read by Dr. Diana
Sodiq, a Board-certified physiatrist, which was abnormal and consistent with severe left median
neuropathy at the wrist, consistent with carpal tunnel syndrome and no evidence of a
radiculopathy or plexopathy.
In a January 15, 2013 report, Dr. Jarrett noted that he was seeing appellant for follow up
of his left carpal tunnel syndrome symptoms. He indicated that appellant injured his left hand
while at work opening the unit D3 front door. Dr. Jarrett related that, after opening and closing
the prison doors for that unit at work, appellant experienced quite a bit of wrist pain, as well as
ongoing numbness and tingling symptoms since then. He advised that appellant attributed the
onset of his symptoms to one specific event when he was closing one of the unit doors over a
2

The record indicates that the employing establishment had notice of the claimed injury on November 7, 2011
and that appellant submitted the claim to the employing establishment in December 2011. However, the claim was
not forwarded to OWCP until October 2012.

2

year ago and that his symptoms had not changed. Dr. Jarrett indicated that the symptoms were
comprised of primarily numbness and tingling along the radial three digits of the left hand as
well as with wrist pain and soreness. He examined the left hand and determined that appellant
had a positive Tinel’s test, positive Phalen’s test and a wide two-point along the medial
distribution. Appellant was distally neurovascularly intact. Dr. Jarrett diagnosed left carpal
tunnel syndrome. He continued to treat appellant and submit reports.
By decision dated May 16, 2013, OWCP modified the December 7, 2012 decision to
reflect that the claimed incident occurred as alleged. However, it found that the medical
evidence did not support that a medical condition was caused by the work incident.
On September 3, 2013 appellant requested reconsideration. He submitted evidence
previously of record as well as a July 16, 2013 report from Dr. Jarrett which again noted that
appellant attributed his symptoms to a work injury. Dr. Jarrett noted appellant’s symptoms,
examined appellant and diagnosed left carpal tunnel syndrome. OWCP also received a
November 7, 2011 Inmate Injury Assessment and Follow-up form signed by a physician’s
assistant.
By decision dated October 8, 2013, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.7

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
7

John J. Carlone, 41 ECAB 354 (1989).

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Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
Appellant alleged that on November 7, 2011 he was unlocking the front door at a
worksite location and felt a very sharp pain in his left wrist and fingers in the performance of
duty. OWCP found that the first component of fact of injury, the claimed incident, occurred as
alleged. However, the medical evidence was insufficient to establish the second component of
fact of injury, that the employment incident caused an injury. The Board finds that the medical
reports of record do not establish that the unlocking of the door as explained by appellant caused
a personal injury on November 7, 2011.
Appellant provided reports from Dr. Jarrett. The November 16, 2012 report, found that
appellant experienced symptoms for approximately one year and advised that the symptoms
started to bother him at work when closing numerous doors.10 He examined appellant’s left
hand, provided findings and diagnosed left carpal tunnel syndrome but he did not offer any
opinion on the cause of the condition. Medical evidence that does not offer any opinion on
causal relationship is of limited probative value.11 Likewise, in his January 15, 2013 report,
Dr. Jarrett noted that he was seeing appellant for follow up of his left carpal tunnel syndrome
symptoms. He related that appellant indicated that he injured his left hand while opening and
closing the prison doors at work, and noted that appellant attributed the onset of his symptoms to
one specific event when he was closing one of the unit doors over a year ago and that his
symptoms had not changed. Again, Dr. Jarrett did not offer his medical opinion as to the cause
of the symptoms and diagnosis of left carpal tunnel syndrome. Rather, he merely documented
appellant’s claims. Without a rationalized opinion on causal relationship, his reports are of
limited probative value.12
Appellant also submitted other medical reports, including reports of diagnostic testing,
which are of limited probative value as they do not address the cause of the conditions at issue.

8

See id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

Although Dr. Jarrett indicated stores, it appears, he meant to indicate doors, as appellant claims the closing of
the prison doors weighing up to 300 pounds contributed to his condition.
11

S.E., Docket No. 08-2214 (issued May 6, 2009).

12

Id.

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For these reasons, appellant has not established that the November 7, 2011 employment incident
caused or aggravated a specific injury.
On appeal, appellant asserted that his claim was timely filed and that the delay by the
employing establishment penalized him. The Board notes that there is no dispute that the claim
was timely filed and this was not the basis of the denial of his claim. Appellant also asserted that
the prison doors were heavy and weighed upwards of 200 to 300 pounds. The Board also notes
that there is no dispute with regard to the claimed incident, which has been accepted. Rather, the
medical evidence before the Board does not contain a rationalized opinion explaining how the
accepted incident caused a personal injury on November 7, 2011.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on November 7, 2011.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Las Angeles, CA,
Employer
__________________________________________

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

Docket No. 12-156
Issued: August 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 31, 2011 appellant, through his attorney, filed a timely appeal from a
September 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
as amended on September 30, 2011, denying his recurrence claim. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on and after February 3, 2010 causally related to his accepted August 17, 1997 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 1997 appellant, then a 45-year-old building equipment mechanic, filed a
traumatic injury claim alleging injury to his throat and left leg when he slipped and fell after
smelling fumes while changing a battery. OWCP accepted the claim for left leg and knee sprains
and left medial meniscus tear.2 Appellant returned to full duty on March 17, 2006.
On February 3 and 17, 2010 Dr. Ronnie D. Shade, a treating Board-certified orthopedic
surgeon, diagnosed suspected meniscal tear, severe left degenerative joint disease and severe
right hip arthritis. Appellant complained of pain, weakness, popping sensation, swelling,
stiffness and his leg going out. A physical examination revealed a negative McMurray’s test no
swelling, locking or effusion, normal muscle mass, no patellar apprehension and medial joint line
tenderness. Dr. Shade noted that appellant had been off work since an automobile accident of
December 8, 2008.
In reports dated March 22 to April 14, 2010, Dr. Shade noted that appellant had difficulty
walking and rated his pain level as 10. Diagnoses included suspected meniscal tear, severe left
degenerative joint disease and severe right hip arthritis. On March 22, 2010 Dr. Shade stated
that appellant had permanent work restrictions of no lifting more than 10 pounds and working
more than four hours per day. On April 5, 2010 he stated that appellant was off work from
April 5 to May 10, 2010 due to medical disability retirement.
In an April 5, 2010 letter, Dr. Shade requested OWCP to accept appellant’s claim for the
conditions of suspected meniscal tear, severe left degenerative joint disease and severe right hip
arthritis as due to the August 17, 1997 employment injury. He stated that the conditions were
directly caused by the employment injury.
On April 7, 2010 appellant filed a claim for a recurrence of disability beginning
February 3, 2010. He noted the date he stopped work after the recurrence as December 17, 2009
with a return to work on March 29, 2010.
The employing establishment controverted the claim as appellant had not been at work
from December 17, 2009 through March 28, 2010 and was involved in a nonemployment-related
automobile accident on December 16, 2009. The automobile accident occurred when appellant
drove his truck through a neighbor’s house.
By letter dated May 4, 2010, OWCP informed appellant that the evidence was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required to support his claim.
OWCP received additional medical and factual evidence. On May 3, 2010 Dr. Shade
diagnosed suspected meniscal tear, severe left knee degenerative joint disease and severe right
hip arthritis. He indicated that appellant had restrictions of no lifting more than 10 pounds or

2

On May 24, 2004 OWCP granted appellant a schedule award for a four percent impairment of the left lower
extremity.

2

working more than four hours per day. Dr. Shade stated that appellant was off work for the
period May 3 to June 3, 2010 due to medical disability retirement.
On June 21, 2010 OWCP received a copy of a Texas police report for the December 16,
2009 motor vehicle accident. Appellant blacked out and crashed his truck into a residence.
OWCP also received reports dated April 14, July 12, September 7 and October 6, 2010
from Dr. Shade, who noted the accepted conditions of left leg and knee sprains and left knee
dislocation. Diagnoses included suspected meniscal tear, severe left degenerative joint disease
and severe right hip arthritis. Dr. Shade indicated that appellant had restrictions of no lifting
more than 10 pounds or working more than four hours per day. He stated that appellant was off
work for the period April 5 to November 7, 2010 due to medical disability retirement. Dr. Shade
opined that appellant had progressive pain, which had been aggravated by his prior work duties.
He further opined that appellant was incapable of returning to work and recommended medical
disability retirement.
In a September 23, 2010 report, Dr. Shade provided physical findings and noted that
appellant has been off work since February 2010. He advised that appellant injured his left knee
and chest on August 17, 1997 when he was pinned between a wall and a battery. Dr. Shade
diagnosed suspected meniscal tear, severe left knee degenerative joint disease and severe right
hip arthritis.
In an October 4, 2010 attending physician’s report (Form CA-20), Dr. Shade found that
appellant was totally disabled beginning April 2, 1010 and continuing. Diagnoses included
severe medial degenerative left knee joint disease, suspected meniscal tear and severe right hip
arthritis. Dr. Shade checked “yes” to the question of whether the diagnosed conditions had been
caused or aggravated by an employment activity.
In a November 2, 2010 CA-20 form, Dr. Shade diagnosed severe medial degenerative left
knee joint disease, suspected meniscal tear and severe right hip arthritis and indicated that
appellant was capable of returning to sedentary work effective October 13, 2010.
In reports dated November 3 and December 1, 2010, Dr. Shade diagnosed suspected
meniscal tear, severe left degenerative joint disease and severe right hip arthritis. He noted that
appellant had permanent restrictions of no lifting more than 10 pounds or working more than
four hours per day. Appellant was currently off work due to his severe right hip arthritis and
suspected meniscal tear.
By decision dated December 17, 2010, OWCP denied appellant’s recurrence claim.
Following the decision, OWCP received additional medical evidence including a
December 15, 2010 CA-20 form. In reports dated December 1, 2010 through June 24, 2011,
Dr. Shade reiterated the prior diagnoses and findings and requested OWCP to expand the
accepted conditions.
On April 23 and 28, 2011 appellant requested reconsideration. He contended that the
medical evidence established that he was taken off work by his physician due to leg pain and not
the December 16, 2009 automobile accident.
3

On August 1, 2011 Dr. Shade opined that appellant’s accepted conditions should be
expanded to include a suspected meniscal tear, left knee severe degenerative joint disease and
consequential injuries to his right knee and depression. In support of his opinion that OWCP
should expand the accepted conditions, he related that appellant’s right knee condition was a
consequential result of his bearing more weight on his right leg to decrease the pain in his left leg
and his chronic pain from the August 17, 1997 employment injury caused his depression. In
concluding, the conditions that Dr. Shade wanted OWCP to accept were severe left knee
degenerative joint disease, depression and right hip osteonecrosis and severe secondary
osteoarthritis.
By decision dated September 22, 2011, OWCP denied modification. On September 30,
2011 it amended the September 22, 2011 decision because it contained a typographical error and
again denied modification.3
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.4 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.5
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.6
ANALYSIS
OWCP accepted appellant’s claim for left leg and knee sprains and left meniscus tear.
Appellant claimed that he sustained a recurrence of disability beginning February 3, 2010 as a
result of his accepted August 17, 1997 employment injury. The issue on appeal is whether he
has submitted sufficient medical evidence to support a recurrence of disability beginning
February 3, 2010 causally related to his accepted August 17, 1997 employment injury. The
Board finds that appellant failed to meet his burden of proof.
3

The Board notes that, following the issuance of the September 30, 2011 decision, OWCP received additional
evidence. However, the Board may only review evidence that was in the record at the time OWCP issued its final
decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293
(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB
373 (2003).
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
5

Id. at Chapter 2.1500.3 (May 1997); Donald T. Pippin, 54 ECAB 631 (2003).

6

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).

4

In order to establish his claim for recurrence, appellant is required to submit evidence
from a qualified physician containing medical opinion establishing that his current disability is
causally related to the accepted employment injury.7 He was informed of this requirement by
OWCP in a May 4, 2010 letter.
In support of his claim for a recurrence of disability beginning February 3, 2010,
appellant submitted the reports from Dr. Shade. The Board finds that none of the reports are
sufficient to support a recurrence claim. In Dr. Shade’s initial February 3 and 17, 2010 reports,
he related that appellant had been off work due to an automobile accident and not to his accepted
left leg and knee sprains or left meniscus tear. In subsequent reports, he concluded that appellant
was totally disabled due to the August 17, 1997 employment injury. Dr. Shade’s reports do not
contain an adequate discussion of why appellant’s disability was attributable to the August 17,
1997 employment injury or the reason he changed his opinion from the disability being due to
the nonemployment-related automobile accident. His reports are devoid of sufficient rationale or
explanation and are of limited probative value. The Board has held that opinions unsupported by
rationale are entitled to diminished probative value.8 In addition, Dr. Shade diagnosed suspected
meniscal tear, left knee severe degenerative joint disease, consequential injuries to appellant’s
right knee and depression, which he attributed to the accepted left leg and knee sprains and left
meniscus tear. OWCP has not accepted meniscal tear, left knee severe degenerative joint
disease, a consequential right knee injury or depression. For conditions not accepted by OWCP
as employment related, appellant has the burden of proof to establish causal relationship.9 He
has failed to do so. The issue here is a recurrence of accepted medical conditions not whether
appellant’s claim should be expanded to include additional conditions. Therefore, he failed to
meet his burden of proof to establish his claim for a recurrence of disability beginning
February 3, 1997.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
disability on and after February 3, 2010 causally related to his accepted August 17, 1997
employment injury.

7

See B.B., Docket No. 09-1858 (issued April 16, 2010); S.S., 59 ECAB 315 (January 14, 2008); Mary A. Ceglia,
55 ECAB 626 (2004).
8

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See Jaja K. Asaramo, supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2011 is affirmed.
Issued: August 7, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. MARINE CORPS, LOGISTICS BASE,
Albany, GA, Employer
__________________________________________

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

Docket No. 14-2063
Issued: January 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from a March 31, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a right arm injury in the performance of
duty on July 10, 2013.

1

A claimant has 180 days to file an appeal of a final OWCP decision. In this case the 180th day from March 31,
2014 was Saturday, September 27, 2014. Pursuant to 20 C.F.R. § 501.3(f)(2), appellant had until September 29,
2014 to timely file an appeal.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 8, 2013 appellant, then a 58-year-old information technology specialist, filed
a traumatic injury claim alleging an injury on July 10, 2013. He alleged that, while performing
pull-ups in an exercise program at the employing establishment he ruptured his right bicep
muscle. An employing establishment human resources administrator submitted a September 9,
2013 letter controverting the claim for compensation. The administrator acknowledged that
appellant was participating in an employing establishment health and wellness exercise program,
and that video evidence indicated that he was performing pull-ups on July 10, 2013. According
to the administrator, the video showed appellant performed three sets of pull-ups and then did
further exercise without showing signs of pain.
By decision dated September 20, 2013, OWCP denied the claim for compensation. It
found the evidence did not establish an incident as alleged, and also noted that no medical
evidence had been submitted.
Appellant requested a review of the written record and submitted medical evidence from
Dr. Lyle Norwood, a Board-certified orthopedic surgeon. In a report dated July 12, 2013,
Dr. Norwood provided a history that appellant was doing pull-ups when he had “a pop and pain
in his right shoulder.” He provided results on examination, noting a large bulge of the biceps
distally, and also noted x-rays showed significant spurring, and arthritis of the acromioclavicular
(AC) joint. Dr. Norwood diagnosed acute tear of the biceps tendon, AC joint arthritis, and
questionable rotator cuff tear.
In a report dated July 22, 2013, Dr. Norwood indicated that appellant did not have a right
rotator cuff tear. He stated that appellant needed surgery on the right shoulder, including
subacromial decompression, acromioplasty, and tenodesis of the biceps. Dr. Norwood also noted
that appellant had left shoulder multiple tendon rotator cuff tear and AC joint arthritis.
Appellant submitted an “operative report” dated August 9, 2013 from Dr. Norwood. The
report contains headings of “What,” “How,” and “When” containing redactions, and hand
written notes with illegible initials. The handwriting appears to state “R (left)” shoulder,
“Pull-ups” and July 10, 2013 under these headings. As to the typed portion of the report, the
surgery is described as diagnostic arthroscopy, operative arthroscopy, subacromial
decompression, acromioplasty, rotator cuff repair, and open tenodesis of biceps.
In a report dated August 21, 2013, Dr. Norwood stated that appellant was “a short week
status post surgery.” By report dated September 18, 2013, he stated that appellant was five
weeks postsurgery. Dr. Norwood stated that appellant should not lift more than five pounds with
no overhead lifting.
The employing establishment submitted a letter dated February 24, 2014, again
controverting the claim. Its administrator stated the last set of pull-ups was after 4:00 p.m.,
which was the end of appellant’s work shift.
By decision dated March 31, 2014, an OWCP’s hearing representative modified the
September 20, 2013 decision to reflect that an incident had occurred in the performance of duty.

2

The hearing representative found the evidence established appellant was performing pull-ups
while in an employing establishment sponsored exercise program at the worksite, and received
administrative time while exercising. The claim was denied on the grounds that the medical
evidence did not establish a diagnosed injury casually related to the employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that he or she
sustained an injury while in the performance of duty.3 In order to determine whether an
employee actually sustained an injury in the performance of duty, OWCP begins with an analysis
of whether “fact of injury” has been established. Generally “fact of injury” consists of two
components which must be considered in conjunction with one another. The first component to
be established is that the employee actually experienced the employment incident which is
alleged to have occurred. The second component is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
OWCP procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.5 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient, and no rationalized opinion on causal relationship is needed. In all other traumatic
injury claims, a rationalized medical opinion supporting causal relationship is required.6
Rationalized medical opinion evidence is medical evidence based on a complete factual,
and medical background, of reasonable medical certainty, and supported by sound medical
rationale explaining the nature of the relationship between the diagnosed condition, and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In the present case, the hearing representative accepted as factual that appellant was in
the performance of duty on July 10, 2013 when he performed pull-ups during an exercise session
at the employing establishment. This is consistent with Board precedent regarding participation

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

6

Id.

7

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

3

in employing establishment sponsored exercise programs on premises.8 The evidence showed
that appellant performed pull-ups during the exercise period on July 10, 2013.
The issue is whether the medical evidence is sufficient to establish a diagnosed condition
casually related to the employment incident. Dr. Norwood has provided reports indicating that
he treated appellant commencing July 12, 2013 with diagnoses of acute tear of the biceps tendon,
AC joint arthritis, and questionable rotator cuff tear. It appears that appellant underwent surgery
on August 9, 2013, but the report of record is of little probative value to the compensation claim.
As the hearing representative noted, it is not clear from the record who initialed the notes. Even
if it were established that Dr. Norwood performed right shoulder surgery and provided the
handwritten notes, the reference to “pull ups” does not constitute sound medical reasoning. In
addition, Dr. Norwood must explain, with sound medical reasoning, how a specific diagnosis
was causally related to the employment incident.
The medical evidence of record does not include a rationale medical opinion on the issue.
It is appellant’s burden of proof, and for the reasons noted, he did not meet his burden in this
case.
On appeal, appellant stated that he was submitting an addendum to the August 9, 2013
report clearing up the issue of handwritten changes. The Board cannot review new evidence on
appeal.9 Appellant also argues that, while OWCP stated that he performed three sets of 10
pull-ups, he stopped before he finished the third set. The basis for the denial of the claim was
not factual evidence regarding the specific number of pull-ups. Appellant asserted that the video
evidence would establish causal relationship. The issue is a medical issue, and can be
established only with probative medical evidence. The medical evidence of record is not
sufficient in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
right arm injury on the date claimed.

8

See Lucia Martinez, Docket No. 02-676 (issued September 13, 2002) (claimant was in the performance of duty
when injured on premises, during work hours at employing establishment sponsored recreational activity); see also
Michael A. Vestuto, 47 ECAB 632 (1996).
9

20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 31, 2014 is affirmed.
Issued: January 21, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 13-2146
Issued: March 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 25, 2013 appellant filed a timely appeal from an August 28, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
disability compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she is entitled to compensation for total
disability for the period September 22 to October 7, 2012.
FACTUAL HISTORY
On June 10, 2012 appellant, then a 37-year-old automation clerk, sustained a back injury
from picking up a tray of mail. She notified her supervisor on June 20, 2012. By decision dated

1

5 U.S.C. § 8101 et seq.

September 26, 2012, OWCP accepted the claim for a lumbar sprain and brachial neuritis or
radiculitis.
Appellant filed a claim for compensation (Form CA-7) for leave without pay beginning
July 14, 2012.
She received wage-loss compensation for the period July 14 to
September 21, 2012. On October 15, 2012 appellant filed a Form CA-7 for leave without pay for
the period September 22 to October 7, 2012.
In an October 5, 2012 medical report, Dr. Mark A. Cohen, a Board-certified orthopedic
surgeon, reported that symptoms in appellant’s back and neck had resolved. Appellant was back
to her normal routine without any problems and could return to full duty.
By letter dated November 1, 2012, OWCP informed appellant that the medical evidence
of record was insufficient to support her disability for work from September 22 through
October 7, 2012. Appellant was advised to submit additional medical evidence for the period
claimed.
In an October 5, 2012 Duty Status Report (Form CA-17), Dr. Cohen advised that
appellant could return to full duty and resume work beginning August 31, 2012.
By decision dated August 28, 2013, OWCP denied appellant’s claim for wage-loss
compensation from September 22 to October 7, 2012.
LEGAL PRECEDENT
Under FECA,2 the term disability is defined as the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury.3 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.4
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.5 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.6 The Board
2

5 U.S.C. §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

6

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

2

will not require OWCP to pay compensation for disability without any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.7
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain and brachial neuritis or radiculitis.
Appellant has the burden of proving by the weight of the substantial, reliable and probative
evidence a causal relationship between her claimed disability from September 22 to October 7,
2012 and the accepted back conditions.8 The reports of her physician do not provide a
rationalized medical opinion finding her disabled for work for the claimed period due to her
accepted conditions. Therefore, the medical evidence submitted is insufficient to meet
appellant’s burden of proof.9
In an October 5, 2012 medical report and Form CA-17, Dr. Cohen advised that
appellant’s back and neck condition had resolved. He noted that she could return to work full
duty. The Form CA-17 stated that appellant could resume work beginning August 31, 2012,
prior to the period of claimed disability. The medical reports submitted by appellant do not
establish that she was disabled during the period September 22 to October 7, 2012. Rather, they
indicate that she was no longer disabled as of August 31, 2012 and could resume work at full
duty. Dr. Cohen does not support a finding that she was disabled from her back injury beginning
September 22, 2012 as the reports indicated that her condition had resolved.10
Appellant has not submitted any further reasoned medical opinion to establish her
disability for the period September 22 to October 7, 2012 as a result of her accepted lumbar
sprain and brachial neuritis or radiculitis. The Board finds that OWCP properly denied her claim
for disability compensation.
On appeal appellant also alleges that she has dependents and that the wage-loss benefits
she received were incorrectly paid at the basic statutory rate of two-thirds, rather than the threefourths augmented rate paid for employee’s with dependents.11 The record indicates that
appellant was paid at the two-thirds rate, because her initial CA-7 forms did not list any
dependents. On October 15, 2012 however appellant completed a CA-7 form in which she listed
her four dependents. As the Board does not presently have jurisdiction of this issue, she may
address this matter to OWCP.

7

Id.

8

See Amelia S. Jefferson, 57 ECAB 183 (2005).

9

Alfredo Rodriguez, 47 ECAB 437 (1996).

10

See Brenda L. DuBuque, 55 ECAB 212 (2004); see also David L. Scott, 55 ECAB 330 (2004); Willa M.
Frazier, 55 ECAB 379 (2004).
11

See 5 U.S.C. § 8110.

3

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she was disabled due to her
June 10, 2012 injury for the period September 22 to October 7, 2012.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, MID HUDSON
GENERAL MAIL FACILITY, Newburgh, NY,
Employer
__________________________________________

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

Docket No. 13-84
Issued: July 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 16, 2012 appellant filed a timely appeal from the August 1, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of its loss of wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether modification of OWCP’s February 16, 1999 loss of wage-earning
capacity determination is warranted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In 1993 appellant, a 34-year-old full-time markup clerk (automated), filed an
occupational disease claim alleging that she developed a bilateral wrist condition as a result of
her federal employment, which required fine manipulation, grasping and keying. OWCP
accepted her claim for bilateral wrist tendinitis and bilateral carpal tunnel syndrome.2
On February 16, 1999 OWCP noted that appellant was reemployed as a modified postal
clerk for 20 hours a week with wages of $328.91. The employment was effective on
July 15, 1996. OWCP found that the duties of appellant’s new position reflected the work
tolerance limitations established by the weight of the medical evidence. Further, it also
considered her training, education and work experience in determining the suitability of the job.
Citing 5 U.S.C. § 8115, OWCP notified appellant that it was adjusting her compensation for
wage loss to reflect her capacity to earn wages in her new position.
On March 12, 2010 appellant filed a claim for compensation for wage loss. She
explained that her doctor felt she could work only four hours a day for three days a week
effective March 3, 2010.
In a decision dated June 21, 2010, OWCP denied modification of its 1999 determination
of wage-earning capacity. It noted that medical evidence from September 2009 through
May 2010 did not provide objective clinical findings to support a material worsening of
appellant’s condition to substantiate the reduction in her work hours.
In a September 21, 2010 decision, OWCP’s hearing representative found that, while
OWCP’s June 21, 2010 decision was correct at the time it was issued, new evidence warranted
further development. The hearing representative directed OWCP to obtain a second opinion on
whether appellant’s condition had materially worsened as of March 2010 to the point that she
could no longer perform the modified duty that she had been performing since 1996.
Dr. Joseph P. Laico, a Board-certified orthopedic surgeon, examined appellant on
May 12, 2011 and found that she was able to perform the modified duty she had been performing
for four hours a day, five days a week. He found no material worsening of her condition as of
March 2010.
In a decision dated July 12, 2011, OWCP denied modification of its 1999 determination
of wage-earning capacity. It found that appellant did not meet at least one of the three standards
for obtaining modification.
On September 30, 2011, however, OWCP’s hearing representative remanded the case for
a supplemental report from Dr. Laico, as appellant had accepted a new limited-duty job in
October 2009 after her prior limited-duty position was eliminated.
In a decision dated February 7, 2012, OWCP denied modification of its 1999
determination of wage-earning capacity. Dr. Laico reported no material worsening of appellant’s
2

In 2012 OWCP expanded its acceptance to include left wrist dorsal syndrome.

2

condition as of March 2010. OWCP found that she failed to establish that her medical condition
had changed, that she had been vocationally rehabilitated or that the original loss of wageearning capacity determination was in error.
By decision dated August 1, 2012, OWCP’s hearing representative affirmed its denial of
modification. The hearing representative reviewed the medical evidence contemporaneous to the
March 2010 reduction in work hours and found no objective evidence of a worsening in
appellant’s condition. The hearing representative also noted that Dr. Laico’s review of the
medical records failed to reveal that appellant underwent a material change in the nature and
extent of her employment-related condition on or about March 1, 2010.
On appeal, appellant argues that her left dorsal wrist syndrome, accepted in
February 2012, warrants modification of the loss of wage-earning capacity determination.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.3 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.4
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions.5 The wage-earning capacity of an employee
is determined by the employee’s actual earnings if the employee’s actual earnings fairly and
reasonably represent her wage-earning capacity.6
Once the loss of wage-earning capacity 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. The burden of proof is on the party
attempting to show modification of the award.7
ANALYSIS
In the case of O.V.,8 the Board found that OWCP abused its discretion when it
determined that the claimant’s actual earnings in part-time reemployment fairly and reasonably
represented his capacity to earn wages in the open labor market. The Board explained that
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

6

5 U.S.C. § 8115(a).

7

Daniel J. Boesen, 38 ECAB 556 (1987).

8

Docket No. 11-98 (issued September 30, 2011).

3

OWCP procedures prohibited a loss of wage-earning capacity determination based on part-time
reemployment unless the claimant was a part-time worker at the time of injury.
Procedures that were in effect when OWCP issued its February 16, 1999 loss of wageearning capacity determination also prohibited a loss of wage-earning determination based on
part-time reemployment where the claimant was a full-time worker at the time of injury.9 The
Board’s holding in O.V., thus applies to the instant case.
As appellant was a full-time worker at the time of injury, the Board finds that OWCP’s
February 16, 1999 loss of wage-earning capacity determination, based on her part-time
reemployment as a modified postal clerk, was, in fact, erroneous. Modification is therefore
warranted. Accordingly, the Board will reverse OWCP’s August 1, 2012 decision and remand
the case for a proper adjudication of appellant’s claim for wage-loss compensation beginning on
or about March 3, 2010.
CONCLUSION
The Board finds that modification of OWCP’s February 16, 1999 loss of wage-earning
capacity determination is warranted.

9

See FECA Circular No. 95-7 (February 12, 1995): “The FECA Procedure Manual notes in Chapter 2.814.7a
that a job actually held may be considered to fairly and reasonably represent the claimant’s loss of wage-earning
capacity, with certain exceptions. One of these exceptions is where the employee who formerly held a full-time
position obtains part-time work.” See also Robert F. Goodheart, Docket No. 99-1872 (issued January 16, 2001)
(reversing OWCP’s 1999 determination that the claimant’s actual earnings in part-time reemployment fairly and
reasonably represented his wage-earning capacity).

4

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2012 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further action.
Issued: July 24, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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

Docket No. 07-562
Issued: February 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 14, 2006 merit decision concerning his entitlement to Office
compensation for periods between September 1992 and June 2000. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant received proper Office compensation for periods between
September 1992 and June 2000.
FACTUAL HISTORY
This is the sixth appeal in the present case. In the first appeal,1 the Board issued a
decision on July 23, 1998 which reversed an August 11, 1995 Office decision on the grounds that
1

Docket No. 96-778 (issued July 23, 1998).

it improperly terminated appellant’s compensation because he refused an offer of suitable work.2
The Board determined that the Office failed to establish that the modified special agent position
offered to appellant by the employing establishment was suitable. In the second appeal,3 the
Board issued a decision on May 6, 2002 reversing the Office’s June 2, 2000 decision on the
grounds that it improperly reduced his compensation effective June 5, 2000 based on his capacity
to earn wages as a retail store manager. In the third appeal,4 the Board issued a decision on
November 25, 2003 which set aside the Office’s September 24, 2002 decision and remanded the
case for further development of the evidence. The Board found that the Office did not provide
adequate findings and reasoning for its determination regarding the amount of compensation to
which appellant was entitled for periods between September 1992 and June 2000.
In the fourth appeal,5 the Board issued a decision on February 3, 2005 which set aside the
March 9, 2004 decision of the Office.6 The Board again found that the Office did not provide
adequate findings and reasoning for its determination regarding the amount of compensation to
which appellant was entitled for periods between September 1992 and June 2000. It noted that a
proper calculation of appellant’s compensation initially required the compilation of accurate
figures for his base salary, locality pay, New York City retention pay, administrative
uncontrollable overtime (AUO) pay, Sunday pay, holiday pay and night differential pay, but that
the Office did not provide any description of those amounts it had determined to be accurate and
suitable for inclusion in its calculations.7
In the fifth appeal,8 the Board issued a decision on August 10, 2006 which set aside the
December 16, 2005 decision of the Office. The Board again found that the Office did not
provide adequate findings and reasoning for its determination regarding the amount of
2

On December 29, 1987 appellant, then a 30-year-old special agent, sustained employment-related subluxations
at C3-4, T10-11 and L4-5, and cervical, thoracic and lumbar strains. On May 21, 1991 he sustained employmentrelated sciatica, myalgia, myositis, and thoracic and lumbar sprains. Appellant stopped work for various periods and
received disability compensation from the Office. He sustained recurrences of disability on December 20, 1991 and
August 18, 1992, which were accepted as related to the May 21, 1991 employment injury. Beginning July 12, 1997,
appellant began working as a manager in an Athlete’s Foot Shoe Store which he operated. He indicated that he did
not earn any income in this position after December 31, 1998.
3

Docket No. 00-2334 (issued May 6, 2002).

4

Docket No. 03-135 (issued November 25, 2003).

5

Docket No. 04-1042 (issued February 3, 2005).

6

By decision dated March 9, 2004, the Office determined the amount of compensation to which appellant was
entitled between September 1992 and June 2000. It found that it properly calculated adjustments in pay for the
period September 7, 1992 to July 11, 1997, but errors were made in the calculations for the periods July 12, 1997 to
December 31, 1998 and January 1, 1999 to June 4, 2000 and that further adjustments in pay were due to appellant.
Therefore, it issued checks to appellant in the amounts of $4,817.14 and $2,802.68 to account for these errors.
7

The Board also noted that calculation of a claimant’s pay rate required assessing his pay at the time of injury,
the time disability begins, or the time compensable disability recurs, depending on the circumstances of the case, but
the Office did not provide any description of its reasoning with regard to this aspect of calculating the compensation
due to appellant.
8

Docket No. 06-556 (issued August 10, 2006).

2

compensation to which appellant was entitled.9 The Board stated that the Office did not explain
why it felt that the figures it chose for elements of appellant’s pay were accurate and it did not
produce additional documentation, such as employing establishment records specifically
memorializing the various categories of pay, to establish that they were in fact accurate. It
remanded the case to the Office for further consideration and the issuance of an appropriate
decision which adequately evaluated the pay to which appellant is entitled. The facts and the
circumstances of the case up to that point are set forth in the Board’s prior decisions and are
incorporated herein by reference.
On December 11, 2006 several biweekly pay stubs, covering the period between mid
August and mid December 1991, were added to the record. The pay stubs reveal that appellant
received a total of $93.36 in Sunday pay and a total of $204.19 in night differential pay during
this period.10 They also show that every two weeks during this period he received either $459.20
or $474.40 in AUO pay as well as either $288.80 or $298.40 in New York City retention pay.
The pay stubs further indicate that AUO pay was calculated by taking 25 percent of the sum of
basic pay and locality pay.11
In a December 14, 2006 decision, the Office concluded that the proper figure for
appellant’s pay on August 19, 1992 was $1,481.85 and asserted that it had paid appellant correct
amounts of compensation for periods between September 1992 and June 2000.12 The Office
indicated that it had been paying appellant based on his August 19, 1992 pay rate because he
sustained a second recurrence of disability on that date. It discussed the figures contained in two
documents, an August 31, 2001 memorandum of Robert Paine, an Office claims examiner, and a
December 10, 2001 memorandum of Dennis Franko, an employing establishment official.13 The
Office stated that the figures contained in Mr. Paine’s August 31, 2001 memorandum were
accurate because Mr. Paine indicated that they were verified by appellant’s pay stubs. The
Office found that Mr. Paine’s memorandum showed that on August 19, 1992 appellant had a
yearly base salary of $47,750.00 ($918.27 per week), yearly locality pay of $7,640.00 ($146.92
per week),14 yearly AUO pay of $13,847.50 ($266.30 per week), yearly retention pay of
9

The Office indicated that it had calculated appellant’s adjusted weekly pay rate for determining pay rates by
using figures derived from his pay on August 18, 1992, the date of his second recurrence of disability. The Office
stated that appellant’s pay was higher on August 18, 1992 than on December 20, 1991, the date of his first
recurrence of disability.
10

Appellant has acknowledged that he only received a total of $297.55 ($93.36 plus $204.19) in Sunday pay and
night differential pay for the period August 20, 1991 to August 19, 1992.
11

The pay stubs did not indicate that appellant received holiday pay.

12

The Office indicated that it actually had based its calculations on the figure of $1,481.84 but that this one cent
difference was statistically insignificant.
13

Mr. Franko initially produced a memorandum on November 16, 2001 concerning appellant’s pay and then
revised that memorandum on December 10, 2001. The record contains copies of Mr. Paine’s and Mr. Franko’s
memoranda. Neither of the documents indicated that appellant received holiday pay between September 1992 and
June 2000.
14

The Office also indicated that a November 29, 1992 document supported the figures for base pay and locality
pay. The record contains January 12 and November 29, 1992 Forms 50-B which show that appellant had a yearly
base salary of $47,750.00 and yearly locality pay of $7,640.00 effective on both of those dates.

3

$7,520.63 ($144.63 per week).15 It also found that appellant sporadically received Sunday pay
which totaled $93.36 in the year prior to August 19, 1991 and night differential pay which
totaled $204.19 during the same period. The Office concluded that the August 31, 2001
memorandum of Mr. Paine presented “an accurate representation of your weekly pay as of the
date of recurrence, August 19, 1992.”16
LEGAL PRECEDENT
Section 8105(a) of the Federal Employees’ Compensation Act provides: “If the disability
is total, the United States shall pay the employee during the disability monthly monetary
compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”17 Section 8101(4) of the Act defines monthly pay for
purposes of computing compensation benefits as follows: “[T]he monthly pay at the time of
injury, or the monthly pay at the time disability begins, or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is
greater....”18
Office procedure provides that, when an employee receives Sunday, night differential or
premium pay on a fluctuating basis, the amount of such pay should be derived from the total
amount of such pay received during the year prior to the date on which the employee’s pay rate
is to be fixed.19
The Shadrick formula (derived from Albert Shadrick, 5 ECAB 376 (1953)) is used to
calculate a claimant’s wage-earning capacity. The calculation involves obtaining figures for
adjusted weekly pay rate (per 5 U.S.C. § 8101(4)); current rate of pay for the job held when
injured, and current actual earnings. The wage-earning capacity percentage is obtained by
dividing current actual earnings by the current rate of pay for the job held when injured. The
wage-earning capacity amount is calculated by multiplying the current rate of pay for the job
held when injured times the wage-earning capacity percentage. The loss of wage-earning
capacity figure is then obtained by subtracting the wage-earning capacity amount from the
current rate of pay for the job held when injured. Finally, the compensation rate is obtained by

15

The record contains documents indicating that the New York City retention pay appellant was entitled to as of
August 19, 1992 was his base salary times 15.75 percent.
16

The Office inadvertently stated that the August 31, 2001 memorandum was produced by Mr. Franko rather than
Mr. Paine.
17

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
18

5 U.S.C. § 8101(4). The Board has held that if an employee has one recurrence of disability which meets the
requirements of section 8101(4), any subsequent recurrence would also meet such requirements and would entitle
the employee to a new recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation, Chapter 2.900.5b(2),
2.900.9a(2)(h) (September 1990).

4

multiplying the loss of wage-earning capacity figure times either 2/3 (no dependents) or 3/4 (one
or more dependents) per 5 U.S.C. §§ 8105, 8110.
In determining a claimant’s entitlement to compensation, the Office is required by statute
and regulation to make findings of fact.20 Office procedure further specifies that a final decision
of the Office must include findings of fact and provide clear reasoning which allows the claimant
to understand the precise defect of the claim and the kind of evidence which would tend to
overcome it.21 These requirements are supported by Board precedent.22
ANALYSIS
Appellant alleged that he did not receive proper Office compensation for periods between
September 1992 and June 2000.23 The Board finds that the Office properly determined that
appellant’s pay rate calculations should be based on the pay he received effective August 18,
1992, the date of his second recurrence of disability. As noted above, pay rate calculations are
based on an employee’s pay at the time of injury, the time disability begins, or the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.24
Appellant’s pay was greater on August 18, 1992 than it was at the time of injury, the time
disability began, or the time of his first recurrence of disability on December 20, 1991.25
The Board further finds that the Office properly determined that appellant’s pay effective
August 19, 1992 for pay rate calculation purposes was $1,481.85. The Office correctly found
that effective August 19, 1992 appellant had a yearly base salary of $47,750.00 ($918.27 per
week) and yearly locality pay of $7,640.00 ($146.92 per week). This conclusion is supported by
January 12 and November 29, 1992 Forms 50-B which show that appellant had a yearly base
salary of $47,750.00 and yearly locality pay of $7,640.00 effective on both of those dates.
The Office properly found that effective August 19, 1992 appellant was entitled to yearly
AUO pay of $13,847.50 ($266.30 per week). The record contains pay stubs which support that
appellant’s AUO pay was equal to 25 percent of the sum of his base salary and locality pay.26
20

5 U.S.C. § 8124(a) provides: The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office shall contain findings of fact and a statement of reasons.
21

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

22

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

23

Appellant sustained employment injuries on December 29, 1987 and May 21, 1991 and the Office accepted that
he sustained recurrences of disability on December 20, 1991 and August 18, 1992.
24

See supra note 18 and accompanying text.

25

Appellant’s first recurrence of disability met the requirements of 5 U.S.C. § 8101(4) as it occurred more than
six months after he resumed regular full-time employment with the employing establishment. Therefore, his
subsequent recurrence of disability on August 19, 1992 entitled him to a new recurrence pay rate. See supra
note 18.
26

The product of 25 percent times the sum of $47,750.00 and $7,640.00 is $13,847.50.

5

The Office correctly determined that effective August 19, 1992 appellant was entitled to yearly
New York City retention pay of $7,520.63 ($144.63 per week). The record contains pay stubs
and other employing establishment documents which support that appellant’s retention pay was
equal to 15.75 percent of his base salary.27
The Office also properly found that appellant sporadically received Sunday pay which
totaled $93.36 in the year prior to August 19, 1991 and night differential pay which totaled
$204.19 during the same period. Because these payments were sporadic, it was appropriate for
the Office to base its calculation on the total amount of Sunday pay and night differential pay
that appellant received in the year prior to August 19, 1992.28 These amounts are supported by
the pay stubs covering the period between mid August and mid December 1991. Although the
record does not contain pay stubs covering the period mid December 1991 to mid August 1992,
appellant has acknowledged that he only received a total of $297.55 ($93.36 plus $204.19) in
Sunday pay and night differential pay for the period August 20, 1991 to August 19, 1992. The
Office then divided the $93.36 figure by 52 to determine that appellant had weekly Sunday pay
of $1.80 and divided the $204.19 figure by 52 to determine that he had weekly night differential
pay of $3.93. Adding the above-described calculations of weekly base salary, locality pay, AUO
pay, retention pay, Sunday pay and night differential pay reveals that, for pay rate calculation
purposes, appellant received $1,481.85 of weekly pay effective August 19, 1992.
The Board further finds, however, that the Office’s evaluation of the correctness of the
compensation appellant received between September 1992 and June 2000 is incomplete. This
analysis requires evaluation of the correctness of the application of the Shadrick formula, but the
Office did not perform this evaluation in its December 14, 2006 decision. Application of the
Shadrick formula involves obtaining figures for adjusted weekly pay rate (determined to be
$1,481.85 in the present case as discussed above), current rate of pay for the job held when
injured and current actual earnings. These figures are then used to calculate the wage-earning
capacity percentage, the loss of wage-earning capacity percentage, and the amount of Office
compensation due for a given period.29 The Board has noted in its prior decisions that there was
uncertainty about the actual amounts appellant earned between September 1992 and June 2000
and the Office has not clarified the uncertainty concerning these amounts.30 The Office should
describe in detail how the Shadrick formula should be applied. As the elements of the Shadrick
formula’s necessary changed between September 1992 and June 2000 the Office should describe
each successive application of the Shadrick formula necessitated by these changes.
For these reasons, the case shall be remanded to the Office for further development
regarding the amount of compensation appellant was entitled to receive between September 1992
The Office should provide make findings, supported by adequate
and June 2000.31
27

The product of 15.75 percent times $47,750.00 is $7,520.63.

28

See supra note 19 and accompanying text.

29

See Albert Shadrick, 5 ECAB 376 (1953). It should be noted that if an employee’s current rate of pay for the
job held when injured or his current actual earnings changes over time then a new Shadrick calculation would have
to be made to reflect a change in the amount of compensation due to the employee.
30

It appears that appellant had earnings in private employment for portions of the relevant period.

31

See supra notes 20 through 22 and accompanying text.

6

documentation, regarding the various elements of the Shadrick formula, and describe the
application of the formula.32 After such development it deems necessary, the Office should issue
an appropriate decision regarding appellant’s entitlement to compensation between
September 1992 and June 2000.
CONCLUSION
The Board finds that the case not in posture for decision regarding whether appellant
received proper Office compensation for periods between September 1992 and June 2000. After
development of the evidence, the Office shall issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 14, 2006 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: February 4, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

32

On appeal appellant has asserted that he did not actually receive the amounts of compensation that the Office
indicated it paid him between September 1992 and June 2000. As part of its development, the Office should present
documents showing how much compensation appellant actually received during this period.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
No appearance, for the Director

Docket No. 13-1909
Issued: July 29, 2014

Oral Argument May 7, 2014

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2013 appellant, through counsel, filed a timely appeal from a May 24,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established entitlement to wage-loss compensation
from May 13 to June 5, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 By decision dated August 16, 2012,
the Board remanded the case to OWCP.3 The Board remanded the case to OWCP for further
analysis and discussion of the relevant evidence. The history of the case as provided in the
Board’s prior decision is incorporated herein by reference.
By decision dated September 12, 2012, OWCP after reviewing the evidence, denied the
claim for wage-loss compensation commencing May 13, 2010. It found the evidence of record
insufficient to establish the claim for compensation.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 11, 2013. She testified that, at the time she stopped working in May 2010, the
employing establishment had made some accommodations for her injury, such as a wireless
headset for the telephone or not having to use her hands to open a window.
Appellant submitted a report dated October 5, 2012 from Dr. Jennifer Patterson, a Boardcertified orthopedic surgeon, providing results on examination and diagnosed carpal tunnel
syndrome. Dr. Patterson indicated that appellant was interested in proceeding with a right carpal
tunnel release. In a report dated November 14, 2012, Dr. Ricky Thomas, a Board-certified
family practitioner, diagnosed carpal tunnel syndrome and indicated nonsurgical treatment would
be pursued. In a note dated January 30, 2013, Dr. Thomas stated that appellant was released to
work with no keyboarding duties.
By decision dated May 24, 2013, the hearing representative affirmed the September 11,
2012 decision. The hearing representative found the medical evidence insufficient to establish
the claim for wage-loss compensation.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.6
2

Appellant, a patient services assistant, filed an occupational disease claim on January 3, 2006 alleging a bilateral
wrist condition as a result of her employment duties. Her claim was accepted for bilateral carpal tunnel syndrome
and later expanded to include keloid scar.
3

Docket No. 12-687 (issued August 16, 2012).

4

5 U.S.C. §§ 8101-8193.

5

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

2

Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.8 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.9
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.10 The opinion of the physician must
be one of reasonable medical certainty, and must be supported by medical rationale explaining
the nature of the relationship.11
ANALYSIS
In the present case, OWCP had accepted bilateral carpal tunnel syndrome and a keloid
scar as a result of job duties as a patient services assistant and appellant had returned to work.
The record contains a January 4, 2010 CA-110 (memorandum of telephone call) stating that
appellant had returned to her date-of-injury position. At the February 11, 2013 hearing,
appellant indicated that there were some accommodations made for her injury, such as a wireless
headset for the telephone, or not having to open a window. It is appellant’s burden of proof to
submit the necessary medical evidence to establish that any disability commencing May 13, 2010
was causally related to her employment injury.
Appellant did not meet her burden of proof in this case. Dr. Dudley stated in a brief
May 6, 2010 report that appellant should be off until July 5, 2010 “because of her secondary
medical problems.” He did not provide further explanation. In his May 13, 2010 report,
Dr. Eichinger stated that appellant reported a return of pain and tingling and was “taking 2
months off from work.” He does not provide a report with a complete background, or offer an
opinion, supported by sound medical rationale, establishing an employment-related disability
commencing May 13, 2010.

7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

9

Id.

10

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

Leslie C. Moore, 52 ECAB 132 (2000).

3

In a report dated July 12, 2010, Dr. Dudley stated that appellant was treated for major
depressive disorder and adjustment disorder with depression and anxiety “due to change in
physical health.” He stated that she had carpal tunnel syndrome and chronic pain when she
performed work duties and pain was the cause of her depression. In a handwritten note dated
July 12, 2010, Dr. Dudley indicated that appellant could return to work in three months. He does
not provide a rationalized medical opinion on disability causally related to the accepted
condition. In a brief report dated October 20, 2010, Dr. Dudley stated that appellant was unable
to “work without event,” and that it appeared that her diagnosis of major depressive disorder was
the direct result of her carpal tunnel syndrome. He did not provide further detail. OWCP has not
accepted a consequential emotional condition in this case. The reports from Dr. Dudley do not
establish an employment-related disability commencing May 13, 2010. Dr. Patterson and
Dr. Thomas do not discuss the relevant issues.
On appeal, appellant argues that OWCP “erred in assuming that the job was suitable
without making a formal determination.” The Board finds that there was no error in this respect.
5 U.S.C. § 8106(c)(2) provides that an employee who refuses an offer of suitable work is not
entitled to compensation. In cases where a claimant is not working, receiving compensation, and
the employing establishment makes a job offer, OWCP cannot apply 5 U.S.C. § 8106(c)(2)
without first making a determination that the offered position is medically and vocationally
suitable. OWCP has the burden of proof to establish that the position is suitable,12 but the
current case is not a case where it has terminated compensation pursuant to 5 U.S.C.
§ 8106(c)(2). Appellant was working and then claimed compensation for wage loss as of
May 13, 2010. As noted above, it is her burden to submit evidence necessary to establish the
claim. There is no requirement that OWCP make any kind of “suitable work” determination in
this case, nor does appellant cite any case law in support of such a finding.13
For the reasons noted above, appellant did not meet her burden of proof to establish
wage-loss compensation as of May 13, 2010. The record does not contain probative medical
evidence establishing an employment-related disability commencing May 13, 2010. Appellant
may submit new evidence or argument with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
from May 13 to June 5, 2010.

12

See Y.A., 59 ECAB 701 (2008).

13

Appellant cited an OWCP regulation, 20 C.F.R. § 10.507. This regulation provides requirements as to an offer
of suitable work by the employing establishment, and would be relevant to a determination under 5 U.S.C.
§ 8106(c)(2) that a proper offer of suitable work had been made.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2013 is affirmed.
Issued: July 29, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5