United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Docket No. 16-0043
Issued: April 11, 2017

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

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2015 appellant filed a timely appeal from a September 8, 2015 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 the case.
ISSUE
The issue is whether appellant has more than seven percent permanent impairment of the
right upper extremity for which he previously received a schedule award.
FACTUAL HISTORY
On January 8, 2014 appellant, then a 51-year-old mail processing transfer clerk filed a
traumatic injury claim (Form CA-1) alleging that on January 7, 2014 he fell on an icy workroom
floor and injured his right shoulder. OWCP accepted his claim for sprain of the right upper arm;
1

5 U.S.C. § 8101 et seq.

sprain of the right shoulder, rotator cuff; and complete rotator cuff rupture. It authorized
arthroscopic surgery on the right shoulder which was performed on February 25, 2014.
Appellant returned to a light-duty position.
A January 16, 2014 magnetic resonance imaging (MRI) scan of the right shoulder
showed full-thickness supraspinatus and infraspinatus tendon tears, partial tear extension into the
infraspinatus muscle, rotator cuff tendinosis, partial tear of the biceps long head tendon, surface
fraying of the glenoid labrum most pronounced superiorly, glenohumeral joint effusion,
contusion/strain of the deltoid muscle, acromioclavicular joint arthropathy, and subacromial
spurring.
Appellant was seen by Dr. Homer Linard, an osteopath, on January 27, 2014, for a right
shoulder injury. Dr. Linard related the history of appellant’s work injury and noted marked
tenderness to palpation over the anterior and lateral aspects of the right shoulder, and marked
weakness of the rotator cuff when tested against resistance. He noted that an MRI scan revealed
a large rotator cuff tear with retraction. Dr. Linard diagnosed torn rotator cuff and adhesive
capsulitis of the right shoulder. On February 25, 2014 he performed a right shoulder
arthroscopic subacromial decompression and repair of rotator cuff with manipulation under
anesthesia. In reports dated June 13 to August 18, 2014, Dr. Linard diagnosed complete rupture
of rotator cuff and adhesive capsulitis of the shoulder. He noted that appellant was progressing
slowly with physical therapy and was totally disabled from work.
On August 23, 2014 appellant requested a schedule award (Form CA-7).
In a September 3, 2014 letter, OWCP requested that appellant obtain a medical report
from his treating physician evaluating the extent of his permanent impairment under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (hereinafter A.M.A., Guides).2
Appellant submitted additional reports from Dr. Linard dated September 15 and
October 13, 2014. Dr. Linard found that the old right shoulder arthroscopy portals were wellhealed, no swelling or tenderness of the right shoulder, some weakness of the rotator cuff,
neurovascular status was intact, and negative impingement testing. He again diagnosed complete
rupture of rotator cuff, adhesive capsulitis of shoulder. Dr. Linard noted that appellant was
working unrestricted and had reached maximum medical improvement (MMI).
On
December 19, 2014 he noted that appellant was at MMI and was discharged from his care, but
explained that he did not perform impairment ratings.
On June 10, 2015 OWCP referred appellant for a second opinion to Dr. Emanuel
Obianwu, a Board-certified orthopedist, for an impairment rating for appellant’s right shoulder in
accordance with the A.M.A., Guides. In a June 26, 2015 report, Dr. Obianwu noted a history of
appellant’s work injury and surgery. Upon examination he found tenderness over the anterior
and posterior aspect of the right shoulder, but no instability. Dr. Obianwu noted range of motion
(ROM), measured three times, for forward flexion was 30 degrees, 30 degrees, and 40 degrees,
abduction was 40 degrees, 40 degrees, and 40 degrees, external rotation 20 degrees, 20 degrees,
2

A.M.A., Guides (6th ed. 2009).

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and 20 degrees, internal rotation was 15 degrees, 14 degrees, and 20 degrees, extension was 30
degrees, 30 degrees, and 40 degrees, adduction was 20 degrees, 30 degrees, and 20 degrees. He
advised that he did not average these measurements as they were unreliable based on overt
symptom magnification.
Dr. Obianwu noted throughout the examination appellant was grimacing, moaning, and
bending to avoid right shoulder motion. He noted that such severe impairment in shoulder
mobility did not make anatomic sense especially since the treating physician, at the end of 2014,
documented passive motion of 140 degrees with active motion of 110 degrees. There was no
atrophy of the shoulder muscle groups and severe restriction in right shoulder mobility was
inconsistent with the prior findings by the treating physician. X-rays of the right shoulder
showed the head of the humerus was well located within the glenoid. Dr. Obianwu diagnosed
large right rotator cuff tear and adhesive capsulitis. He opined that MMI had occurred on the one
year after the surgery. Dr. Obianwu noted that he would not rate impairment using ROM as
there was no obvious pathoanatomic correlation and the measurements were flawed due to
symptom magnification. Using the diagnosis-based impairment (DBI) method Dr. Obianwu
diagnosed a rotator cuff tear and a superior labrum anterior and posterior tear. He noted,
pursuant to Table 15-9, A.M.A., Guides, the grade modifier for functional history, physical
examination, and clinical studies would each be 2. Dr. Obianwu calculated a net adjustment of
+3 for a grade E and an impairment rating of seven percent of the right upper extremity.
In an August 16, 2015 report, an OWCP medical adviser reviewed the medical record and
Dr. Obianwu’s June 26, 2015 findings. He indicated that the most impairing right shoulder
diagnosis was full thickness rotator cuff tear with residual dysfunction. The medical adviser
noted that the DBI method was the preferred rating method. Using this method, appellant placed
in class 1 for the most impairing diagnosis in the shoulder region of full thickness rotator cuff
tear with residual dysfunction. The medical adviser determined appellant’s grade modifier for
functional history was 1. He noted appellant’s shoulder was still symptomatic, but appellant was
able to perform self-care activities independently. The medical adviser noted that pursuant to
Table 15-7, page 406, A.M.A., Guides the evidence was insufficient to support a grade modifier
2 chosen by Dr. Obianwu. Additionally, Dr. Obianwu determined a grade modifier 2 for
physical examination; however, appellant had clear evidence of symptom magnification on
examination and therefore the grade modifier for physical examination was not applicable,
pursuant to Table 15-8, page 408, A.M.A., Guides. The medical adviser noted that prior to
surgery appellant had a right shoulder MRI scan which demonstrated a complete tear of the
rotator cuff and the operative report noted biceps pathology was found. He noted that, based on
these findings, the grade modifier for clinical studies was 4 not 2 as noted by Dr. Obianwu,
pursuant to Table 15-9, page 410, A.M.A., Guides. The medical adviser found a net adjustment
of 2 for a final grade E for seven percent permanent impairment of the right upper extremity.
In a decision dated September 8, 2015, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right upper extremity. The period of the award was
from June 26 to November 25, 2015.

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LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.3 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.4 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has more than seven percent permanent
impairment of the right upper extremity for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM

3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

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methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the September 8, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the September 8, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 10-1562
Issued: April 4, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from an April 19, 2010 merit decision of
the Office of Workers’ Compensation Programs denying his request for an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has more than nine percent permanent impairment of the
right upper extremity.
FACTUAL HISTORY
This case has previously been before the Board. In a June 2, 2003 order, the Board
granted the Director’s motion to set aside an October 29, 2001 decision and remand the case for
additional development of the medical evidence on the issue of the extent of appellant’s

permanent impairment of the right upper extremity.1 On August 1, 2003 the Board reversed a
January 17, 2002 wage-earning capacity determination.2 On appeal for the third time, by
decision dated November 22, 2005, the Board set aside February 4 and November 5, 2004
decisions granting appellant a schedule award for a nine percent right upper extremity
impairment.3 In a decision dated October 19, 2006, the Board affirmed in part and set aside in
part a February 1, 2006 decision finding that he had a 13 percent permanent impairment of the
right upper extremity.4 The Board noted that the medical evidence addressed appellant’s left
rather than right upper extremity impairment. The Board found that he had a 13 percent left
upper extremity impairment but remanded the case for further development to determine the
extent of any permanent impairment of the right upper extremity. On appeal for the fifth time,
by order dated December 31, 2007, the Board affirmed in part and set aside in part January 12
and May 23, 2007 decisions granting appellant a schedule award for a 13 percent left upper
extremity and offsetting compensation from the schedule award to recover an amount paid to
him in error for his right upper extremity.5 In a decision dated December 12, 2008, the Board set
aside June 25, 2007 and March 14, 2008 decisions finding that he had no more than a nine
percent right upper extremity impairment and that he received an overpayment of compensation
because it erroneously paid him a schedule award for more than a nine percent permanent
impairment of the right upper extremity.6 The Board determined that the Office failed to
properly adjudicate the extent of appellant’s permanent impairment of the right upper extremity
and remanded the case for further development of the medical evidence. The facts and
circumstances surrounding the prior appeal are hereby incorporated by reference.
On July 1, 2009 the Office referred appellant to Dr. Kenneth H. Yuska, a Board-certified
orthopedic surgeon, for a second opinion examination. On July 28, 2009 Dr. Yuska discussed
appellant’s complaints of right arm weakness, right shoulder posterior pain extending into the
shoulder blade and neck pain in the posterior aspect extended into the right trapezius muscle. On
examination he found that appellant’s neurological examination was abnormal with decreased
sensation in all extremities, weakness of the small muscles of the right and “also weakness of the
long finger flexors consistent with C6-7 and C7 weakness.” Dr. Yuska measured normal range
of motion of the shoulders, elbows, wrists and hands. He applied the Table 17-2 on page 645 of
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009), relevant to determining impairments of the cervical
1

Order Granting Remand and Cancelling Oral Argument, Docket No. 02-1225 (issued June 2, 2003). On
March 19, 1999 appellant, then a 48-year-old mail handler, filed an occupational disease claim alleging that he
sustained a back condition due to factors of his federal employment. The Office accepted the claim for an
acceleration of cervical spine disease. Appellant underwent bilateral posterior foraminotomies at C3-4 and C4-5 on
January 27, 1999 and an anterior discectomy and fusion at C6-7 on July 2, 1999. He further underwent bilateral
foraminotomies and fusions at C4-5, C5-6 and C6-7 on December 10, 2004.
2

Docket No. 02-1072 (issued January 17, 2002).

3

Docket No. 05-1726 (issued November 22, 2005).

4

Docket No. 06-122 (issued October 19, 2006).

5

Docket No. 07-1753 (issued December 31, 2007).

6

Docket No. 08-1247 (issued December 12, 2008).

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spine. Dr. Yuska concluded that appellant had a 25 percent permanent whole person impairment
due to radiculopathy in upper extremities.
By decision dated August 28, 2009, the Office denied appellant’s claim for an increased
schedule award. It further denied waiver of the overpayment that existed because it had paid him
a schedule award in excess of the nine percent permanent impairment of the right upper
extremity. The Office determined that Dr. Yuska found no impairment of the upper extremities
under the sixth edition as appellant had normal range of motion.7
On September 25, 2009 appellant requested a review of the written record. By decision
dated January 14, 2010, the hearing representative set aside the August 29, 2009 decision. She
found that Dr. Yuska provided an impairment rating of the whole person rather than the right
upper extremity. The hearing representative instructed the Office to obtain an opinion from
Dr. Yuska regarding the extent of appellant’s right upper extremity impairment.
On February 1, 2010 the Office requested that Dr. Yuska clarify whether appellant had a
permanent impairment of the right upper extremity in accordance with the sixth edition of the
A.M.A., Guides. On February 24, 2010 Dr. Yuska related that appellant had weakness in the
right hand but good strength of the shoulders and arm with normal range of motion and low to
normal grip strength measurements. He opined that the sensory findings on examination did
“not follow an anatomical distribution.” Dr. Yuska found that Chapter 15 of the sixth edition of
the A.M.A., Guides did not provide a rating for radicular pain of the upper extremities. He
consequently concluded that “no permanent impairment rating is appropriate for the upper
extremity complaints of [appellant].”
On March 31, 2010 an Office medical adviser found that, based on Dr. Yuska’s
examination, appellant had no more than the previously awarded nine percent permanent
impairment of the right upper extremity.
By decision dated April 19, 2010, the Office denied modification of its August 28, 2009
decision after finding that appellant was not entitled to an increased schedule award of the right
upper extremity.
On appeal, appellant argues that earlier medical reports find that he has a 25 or 30 percent
permanent impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing federal regulations,9 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
7

The Office inaccurately referred to Dr. Yuska as an impartial medical adviser rather than a second opinion
physician.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

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functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.10 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.11
ANALYSIS
The Office accepted that appellant sustained an acceleration of cervical spine disease due
to factors of his federal employment. Appellant underwent bilateral posterior foraminotomies at
C3-4 and C4-5 on January 17, 1999, an anterior discectomy and fusion at C6-7 on July 2, 1999
and bilateral foraminotomies and fusions at C4-5, C5-6 and C6-7 on December 10, 2004. The
Office granted him a schedule award for a nine percent permanent impairment of the right upper
extremity. It subsequently determined that appellant had a 13 percent permanent impairment of
the right upper extremity. The Board, however, set aside the Office’s finding, noting that the
medical evidence established a 13 percent impairment left rather than right upper extremity
impairment. In its most recent decision, the Board remanded the case for the Office to further
development the medical evidence to determine the extent of appellant’s right upper extremity
impairment.
The Office referred appellant to Dr. Yuska for an impairment evaluation. On July 28,
2009 Dr. Yuska found that he had a 25 percent whole person impairment due to radiculopathy in
the upper extremities. He utilized Table 17-2, the cervical spine regional grid, in reaching his
impairment determination. The Act, however, does not provide for impairment of the whole
person or for the back.12 Further, the back is specifically excluded from the definition of organ
under the Act.13 Consequently, Dr. Yuska’s July 28, 2009 report is insufficient to establish the
extent of appellant’s right upper extremity impairment.
In a supplemental report dated February 24, 2010, Dr. Yuska found that appellant had
normal range of motion of the shoulders and arms, low normal grip strength and weakness in the
right hand. He opined that Chapter 15 of the sixth edition of the A.M.A., Guides, relevant to
determining impairments of the upper extremities, did not provide a method for rating an
impairment due to radicular pain. Dr. Yuska thus concluded that an impairment rating for
radicular pain in the right upper extremity was inappropriate. An Office medical adviser
concurred with his determination. The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities. However,
recognizing that certain jurisdictions, such as under the Act, mandate ratings for extremities and
preclude ratings for the spine, the A.M.A., Guides has offered an approach to rating spinal nerve
10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

D.N., 59 ECAB 576 (2008); Tania R. Keka, 55 ECAB 354 (2004).

13

5 U.S.C. § 8101(20); see also J.Q., 59 ECAB 366 (2008); Jesse Mendoza, 54 ECAB 802 (2003).

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impairments consistent with sixth edition methodology.14 The Office has adopted this approach
for rating impairments to the upper and lower extremities caused by a spinal injury.15
Consequently, the Board finds that the opinion of Dr. Yuska requires further clarification to
determine the extent of appellant’s permanent impairment of the right upper extremity. The case
is remanded to the Office for this purpose. After such further development as it deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 4, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

14

Rating Spinal Nerve Extremity Impairment using the sixth edition, the A.M.A., Guides Newsletter (A.M.A.,
Guides, Chicago, IL), July/August 2009.
15

Federal (FECA) Procedure Manual, supra note 11, Chapter 3.700, Exhibit 4 (January 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dayton, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1659
Issued: July 14, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On August 16, 2016 appellant, through counsel, timely filed an application for review of
a June 30, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Board docketed the appeal as No. 16-1659.
Appellant, an 84-year-old former letter carrier, has an accepted traumatic injury claim for
aggravation of degenerative disc disease postlaminectomy at C5-6 and strain on preexisting
neurological condition, which arose on June 26, 1979.2 He stopped work for various periods and
received compensation on the periodic rolls beginning June 16, 2002. Appellant participated in a

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e) (2014). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id.
An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292 (2006). Demands for
payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for
investigation.
2

Appellant previously injured his neck/upper back on August 25, 1976, which OWCP accepted for upper back
strain (xxxxxx528).

vocational rehabilitation program and, in August 2014, his rehabilitation counselor determined
that he was capable of earning $360.80 per week as a receptionist.3
On May 18, 2015 OWCP issued a formal loss of wage-earning capacity (LWEC)
determination based upon appellant’s ability to earn wages in the selected position of
receptionist. Consequently, it adjusted appellant’s compensation effective May 16, 2015.
Counsel requested a telephonic hearing with an OWCP hearing representative, which was held
on January 15, 2016.
By decision dated February 25, 2016, the hearing representative affirmed OWCP’s
May 18, 2015 LWEC determination.
In a March 22, 2016 letter, which OWCP received on March 24, 2016, appellant
indicated that he was requesting reconsideration of OWCP’s February 25, 2016 decision. In
connection with his claim, he submitted evidence that he believed showed he could no longer
work as a receptionist.
In a March 16, 2016 report, Dr. Jason Higey, an attending Board-certified cardiologist,
reported that appellant’s cardiac condition, including coronary artery disease and valvular heart
disease, had worsened in severity.
In a March 21, 2016 report, Dr. Antony T. Jacob, an attending physical medicine and
rehabilitation physician, indicated that appellant’s physical condition prevented him from sitting
for more than 15 minutes at time, looking at a computer screen or holding a telephone for any
length of time, or lifting above his waist level. He further noted that appellant was currently
unable to engage in any kind of gainful employment.
In an April 4, 2016 letter that OWCP received on April 7, 2016, counsel indicated that he
was requesting reconsideration of OWCP’s February 25, 2016 decision on behalf of appellant.
He also resubmitted copies of the March 16, 2016 report of Dr. Higey and the March 21, 2016
report of Dr. Jacob.
In a June 30, 2016 decision, OWCP denied modification of the hearing representative’s
February 25, 2016 decision which affirmed the original May 18, 2015 LWEC determination.
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on LWEC.4 A wage-earning capacity
determination is a finding that a specific amount of earnings, either actual earnings or earnings
from a selected/constructed position, represents a claimant’s ability to earn wages.5 Generally,
3

The physical requirements of the receptionist position were deemed to be within the work restrictions
recommended on June 17, 2014 by Dr. Edward G. Fisher, a Board-certified orthopedic surgeon serving as an OWCP
referral physician.
4

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

5

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

2

an employee’s actual earnings best reflect his or her wage-earning capacity.6 Absent evidence
that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.7
Compensation payments are based on the wage-earning capacity determination, and
OWCP’s finding remains undisturbed until properly modified.8 Modification of an LWEC
determination is unwarranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was erroneous.9 The burden of proof is on the party seeking
modification of the wage-earning capacity determination.10
OWCP’s procedure manual provides, “If a formal LWEC decision has been issued, and
the claim is for recurrent disability, it should be processed in accordance with procedures for
modifying a formal LWEC.”11
In this case, OWCP essentially determined that appellant had filed a request for
reconsideration of its February 25, 2016 decision. Although both appellant and counsel did use
the phrase “requesting reconsideration” in their letters, under the circumstances of this case, the
Board finds that the issue presented was whether the May 18, 2015 wage-earning capacity
determination should be modified. Appellant submitted evidence which indicated that he was
totally disabled due to a worsening of his medical condition after OWCP issued its May 18, 2015
LWEC determination. It is clear that the claim in this case was that appellant could not work as
a receptionist, the position that OWCP determined had represented his LWEC, for the
foreseeable future. The Board has held that, when a wage-earning capacity determination has
been issued and appellant submits evidence with respect to disability for work, OWCP must
evaluate the evidence to determine if modification of wage-earning capacity is warranted.12
If there is a claim for increased disability that would prevent a claimant from performing
the position that was the basis for a LWEC decision, then clearly there is an issue of whether
modification is appropriate.13 In this case, appellant submitted evidence of an increased
6

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

7

Id.

8

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

9

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part
2 -- Claims, Modification of Loss of Wage Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
10

20 C.F.R. § 10.511.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013).

12

See Katherine T. Kreger, 55 ECAB 633 (2004). The Board notes that consideration of the modification issue
does not preclude OWCP from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. See id.
13

Id.

3

disability that prevented him from working as a receptionist. The Board finds that appellant’s
claim for compensation raised the issue of whether a modification of the May 18, 2015 wageearning capacity decision was warranted and the case must be remanded for an appropriate
decision on this issue.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 30, 2016 is set aside, and the case remanded for further
action consistent with this order.
Issued: July 14, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Hibbing, MN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1250
Issued: June 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 6, 2018 appellant filed a timely appeal from a March 13, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 13, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective March 14, 2018, as he no longer had residuals or disability causally
related to his accepted March 4, 2015 employment injuries.
FACTUAL HISTORY
On March 10, 2015 appellant, then a 60-year-old mine safety and health inspector
(metal/nonmetal), filed a traumatic injury claim (Form CA-1) alleging that on March 4, 2015 he
“struck [his] head on [a] pipe overhead while walking along the narrow side of a heater” in the
performance of duty. He alleged that this injury caused minor neck pain and muscle tightening in
his lower back.
By decision dated April 22, 2015, OWCP indicated that when appellant’s claim was first
received it appeared to be a minor injury that resulted in minimal or no lost time from work and,
payment of a limited amount of medical expenses was administratively approved. It subsequently
reopened the claim and accepted it for a concussion, lumbar sprain, and herniated disc at L4-5.
In a January 11, 2016 report, Dr. Amy Hilde Philips, a Board-certified family practitioner,
diagnosed bulging lumbar disc, opined that appellant had reached maximum medical improvement
(MMI), and released him to return to work without restrictions.
On May 10, 2017 Dr. Timothy A. Garvey, a Board-certified orthopedic surgeon, indicated
that appellant was seen in follow-up for back and leg pain for first evaluation since June 2015. He
was complaining of bilateral lower extremity pain. Dr. Garvey reviewed a magnetic resonance
imaging (MRI) scan dated January 19, 2017 which showed disc desiccation at multiple levels and
found a suggestion of a spondylolisthesis of L3 on L4. He had a tethered cord with his conus
ending at the cephalad body of L2. Appellant also had at L4-5 a right-sided disc herniation with
moderate stenosis and mild left lateral recess narrowing, as well. Dr. Garvey opined that appellant
had symptoms compatible with a discogenic etiology. He had a disc herniation to the right at L45 that narrowed the lateral recess that would affect the L5 root more so than S1. On the left side,
appellant had far lateral foraminal disc protrusion that appeared to contact the undersurface of the
exiting L5 root. Additionally, he had a low-lying conus consistent with a tethered cord that ended
at the body of L2. Dr. Garvey recommended surgical decompression with neurologic monitoring.
He discussed with appellant that, if he did not improve with surgical decompression at L4-5 and
L5-S1, it was possible that a detehering cord procedure would be advisable. Dr. Garvey noted that
appellant had a prior surgical decompression 25 years ago, which raised the potential risk.
On May 22, 2017 OWCP received a request for authorization for surgical decompression
at L4-5 and L5-S1 from Dr. Garvey.
On May 31, 2017 Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon, serving as
an OWCP district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and
appellant’s medical history and records. He opined that the proposed decompression at L4-5 and
L5-S1 with discectomy dated preservice was not causally related to the accepted medical
conditions because the mechanism of injury described as “hitting his head” did not correlate with

2

the development of back pain in this case. Dr. Ugokwe explained that the proposed surgery was
not medically necessary because the MRI scan did not show any stenosis at L4-5. He noted that
there was some foraminal stenosis on the left at L5-S1, but fixing this was unlikely to cause
improvement in appellant’s back pain. Dr. Ugokwe disagreed with Dr. Garvey’s opinion that
appellant’s current condition was causally related to the original work injury “because the
mechanism of injury was described as hitting his head which biomechanically does not lead to
back pain.” He further opined that the neuropathy should not be an accepted consequential
condition due to the March 4, 2015 injury because the injury did not cause the neuropathy.
Dr. Ugokwe concluded that the foraminal stenosis at L5-S1 was preexistent to the injury as
appellant had previously had a lumbar laminectomy and the mechanism of injury was not
consistent with direct cause or aggravation of a preexisting lumbar spine condition.
On August 10, 2017 Dr. Philips opined that nothing had changed in appellant’s case other
than the fact that his case had been reviewed by an independent medical examiner who, in her
opinion, was “not the medical equivalent peer to Dr. Garvey, who is a back specialist.” She
advised that he had no improvement in his symptoms and he could not safely perform in the
workplace. Dr. Philips took appellant off work until he had surgery approved.
OWCP referred appellant to Dr. Masood R. Ghazali, a Board-certified clinical
neurophysiologist and neurologist, for a second opinion evaluation to determine the nature and
extent of his accepted employment-related conditions. In his August 14, 2017 report, Dr. Ghazali
reviewed a SOAF, history of the injury, and the medical evidence of record. He conducted a
physical examination and found that appellant’s head and ear, nose, and throat (ENT) examination
demonstrated a forward flexed posture with slight slouched position. Trigger points were noted in
the craniocervical junction without palpatory hypertonicity. Cervical spine range of movement
was full and normal. No bruit was heard over the carotid and supraclavicular areas. Adson’s
testing was negative and there was no tenderness upon palpation of the temporomandibular joint
(TMJ). Examination of the thoracic spine demonstrated mild kyphosis without muscle spasm in
the upper thoracic paraspinal musculature. Straight leg raising testing was negative bilaterally.
Appellant was able to bend forward with mild restriction of forward flexion. Lumbar extension
movements were mildly restricted as well. There was no tenderness upon palpation of the
thoracolumbar fascia extending up into the thoracic fascia. Gait and station were normal. No
unusual pain behaviors were noted upon the neurological examination. Examination of the cranial
nerves revealed normal fundus examination and pupils were round and reactive to light. Facial
movements were symmetric and hearing tested by tuning fork was symmetric. Palatal movements
and tongue movements were normal. Swallowing and shoulder joint range of movement were
normal bilaterally. Appellant preferred to stand and walk, citing increasing pain when he was
sitting in the chair for more than 10 minutes. He was able to walk on his toes and heels without
any difficulty. Appellant was able to walk in tandem both forward and backward. Romberg testing
was negative. Dr. Ghazali diagnosed cervical degenerative disc disease, physical deconditioning,
lumbar herniated disc without signs of radiculopathy, plexopathy, or myelopathy, chronic
musculoskeletal etiology for lumbago (remote history of lumbar discectomy at L5-S1 in 1999),
subjective lower extremity cramps without objective signs of nerve dysfunction, mild degree of
peripheral neuropathy, cervical sprain detected on the work-related injury of January 19, 2012
(symptoms had resolved by a repeat visit dated February 6, 2012), and history of lumbar strain,
resolved. He also noted left lower extremity pain and paresthesia without objective signs of
neurological dysfunction, lumbosacral radiculopathy or plexopathy.
3

Dr. Ghazali opined that the proposed surgical procedure as recommended by Dr. Garvey
was not medically necessary or causally related to the date of injury and the mechanism of injury.
He concurred with Dr. Ugokwe that the proposed decompression at L4-5 and L5-S1 with
discectomy was not causally related to the mechanism of injury. Dr. Ghazali explained that there
were no objective signs of any dysfunction at the lower lumbar levels and fixing this issue
surgically was not likely to cause improvement in the continued clinical symptomatology of back
pain and lower extremity pain and radiation of subjective nature without objective dysfunction in
the neurological realm. He opined that the diagnosis of idiopathic peripheral neuropathy was
clearly related to loss of ankle reflexes and distal symmetric polyneuropathy noted upon
electromyography (EMG) examination. Dr. Ghazali found that these findings were not directly
related or as a consequence of appellant’s work-related injury of 2012 or 2015. Moreover, he
found that there was no evidence of lumbar spinal stenosis or lumbar spondylolisthesis as detailed
in Dr. Garvey’s report and also upon his own review of an MRI scan of the lumbar spine dated
March 27, 2015 and objective negative EMG examination for acute or chronic radiculopathy.
By development letter dated September 18, 2017, OWCP found a conflict in the medical
opinion evidence between appellant’s treating physicians and the second opinion examiner
regarding whether additional diagnoses of stenosis and idiopathic peripheral neuropathy should be
accepted as related to the work injury and if the requested decompression surgery is medically
warranted.
OWCP referred appellant to Dr. Gary Wyard, an impartial medical examiner (IME) and
Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence. In an
October 10, 2017 report, Dr. Wyard conducted a physical examination and reviewed appellant’s
medical history and a SOAF. He found that appellant had a scar on the midline of his back,
consistent with an L5-S1 laminectomy and walked without a limp. Appellant had no start-up pain.
He could walk on his toes and his heels. Appellant was able to jump and squat. He was able to
forward bend and come within a foot of touching the floor with his fingertips, bending at the waist
with his knees stiff. Appellant sat comfortably and got on and off the examining table without
hesitation, restriction, or delay. He had no list, tilt, or splinting of his lumbar spine. Appellant had
significant ischemic disease in his lower extremities and had skin plaques consistent with psoriasis.
He had depressed knee and ankle reflexes and a strong extensor halluces longus, strong
dorsiflexion, and plantar flexion of the ankles and knees. Strength was 5/5. Appellant had 2+
pitting edema in the forelegs and a normal gait pattern. Dr. Wyard concluded that the medical
evidence did not support the surgical procedure planned by Dr. Garvey. He opined that it was not
medically necessary and/or causally related to appellant’s accepted conditions of sprain of the
neck, herniated disc at L4-5, and concussion. Dr. Wyard noted that appellant had been found to
be neurologically intact by all examiners, showing no particular focal neurological findings. He
opined that the findings on MRI scan and lack of objective clinical findings did not indicate the
need for a decompression at L4-5 and L5-S1. Dr. Wyard concurred with the assessments of
Drs. Ghazali and Ugokwe. He explained that although appellant had an adequate trial of
conservative treatment that was not enough to support the conclusion that he was a surgical
candidate. Dr. Wyard concluded that appellant was a poor surgical candidate for the recommended
surgery because his MRI scan findings did not show a cause and explanation for his ongoing pain,
he had no focal neurological findings, and he had other confounding factors, including his history
of prior back surgery, being overweight and deconditioned, and fluid retention in the lower
extremities. He agreed that appellant had some stenosis, but opined that it did not rise to the
4

indication for surgical intervention. Dr. Wyard also noted that appellant had been diagnosed with
idiopathic peripheral neuropathy and agreed with that assessment based upon the EMG, but
nonetheless found that appellant had minimal clinical findings of an objective nature to support
that diagnosis. Appellant had no persistent objective clinical findings documented in the medical
record and Dr. Wyard agreed with Dr. Ghazali that any findings were not related or as a
consequence of a 2012 or a 2015 work injury. He opined that appellant had sprain/strain-type
injuries which were temporary in nature, for which there were no new objective findings.
Dr. Wyard explained that these were superimposed upon a preexisting low back condition, i.e.
prior surgery in 1995, and appellant would have had a similar diagnosis regardless of any alleged
injuries of 2012 or 2015 and his subjective complaints were not supported by new objective
findings or a consequential injury.
In an addendum report dated December 6, 2017, Dr. Wyard clarified his opinion that
appellant did not require any additional formal treatment and lumbar/sacral injections were not
medically necessary. He advised that appellant required no restrictions as a result of any workrelated condition. Dr. Wyard further advised that appellant was capable of working full duty.
On January 29, 2018 OWCP issued a notice of proposed termination of wage-loss
compensation and medical benefits on the basis that appellant’s accepted conditions had ceased
without residuals. It indicated that the weight of the medical evidence, as demonstrated by
Dr. Wyard’s October 10 and December 6, 2017 reports, established that appellant’s employment
injuries had resolved. OWCP afforded him 30 days to submit additional evidence or argument in
disagreement with the proposed action.
In response, appellant submitted reports dated December 13, 2017 and February 7, 2018
from Dr. Philips who continued to diagnose bulging lumbar disc and reiterated her opinion that
appellant would benefit from the proposed surgery. Dr. Philips reported that appellant’s “MRI
[scan] does not show the degree of abnormalities that would quantify his pain which can happen,”
but anticipated that during surgery “the surgeon would identify the problem not seen on MRI
[scan].”
By decision dated March 13, 2018, OWCP terminated appellant’s wage-loss compensation
medical benefits, effective March 14, 2018. It found that the special weight of the medical
evidence was represented by Dr. Wyard.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.8 In situations where
there exist opposing reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background must be
given special weight.9
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 14, 2018, as he no longer had residuals or
disability causally related to his accepted employment injuries.
OWCP accepted appellant’s claim for concussion, lumbar sprain, and herniated disc at
L4-5.
OWCP properly determined that a conflict in medical opinion existed between appellant’s
attending physicians, Drs. Garvey and Phillips, and Dr. Ghazali, a second opinion examiner,
regarding whether the requested lumbar decompression surgery should be authorized and the
extent of appellant’s disability due to his employment injuries. It referred appellant to Dr. Wyard
for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).
In a report dated October 10, 2017, Dr. Wyard opined that the surgical procedure planned
by Dr. Garvey was not medically necessary and/or causally related to appellant’s accepted
conditions of sprain of the neck, herniated disc at L4-5, and concussion. He noted that appellant
had been found to be neurologically intact by all examiners, showing no particular focal
neurological findings, and the MRI scan findings and objective clinical findings did not indicate
the need for a decompression at L4-5 and L5-S1. Dr. Wyard also explained that the MRI scan
4

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

See James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

20 C.F.R. § 10.321; see V.G., 59 ECAB 635 (2008).

6

findings did not show a cause and explanation for appellant’s complaints of ongoing pain.
Dr. Wyard agreed with Dr. Ghazali that any findings were not related or as a consequence of a
2012 or a 2015 work injury. He opined that appellant had sprain/strain-type injuries which were
temporary in nature, for which there were no new objective findings. Dr. Wyard explained that
these were superimposed upon a preexisting low back condition, i.e. prior surgery in 1995, and
appellant would have had a similar diagnosis regardless of any alleged injuries of 2012 or 2015
and his subjective complaints were not supported by new objective findings or a consequential
injury. In an addendum report dated December 6, 2017, Dr. Wyard clarified his opinion that
appellant was capable of working full duty as he required no restrictions as a result of any workrelated condition.
The Board finds that Dr. Wyard’s opinion represents the special weight of the medical
evidence and that OWCP properly relied on his opinion in terminating appellant’s wage-loss
compensation and medical benefits. Dr. Wyard had full knowledge of the relevant facts and
evaluated the course of appellant’s condition. Dr. Wyard is a specialist in the appropriate field.
His opinion is based on proper factual and medical history and his report contained a detailed
summary of this history. Dr. Wyard addressed the medical records to make his own examination
findings to reach a reasoned conclusion regarding appellant’s employment-related injuries.10
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the special weight afforded to
Dr. Wyard as the IME. Appellant submitted a report dated December 13, 2017 from Dr. Philips
repeating her diagnosis of bulging lumbar disc and reiterated her opinion that appellant would
benefit from the proposed surgery. However, as Dr. Philips was on one side of the conflict
resolved by Dr. Wyard, her reports are insufficient to create a new conflict in medical opinion or
to overcome the special weight properly accorded to Dr. Wyard.11
Thus, the Board finds that OWCP properly terminated appellant’s wage-loss compensation
and medical benefits, effective March 14, 2018.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
medical benefits, effective March 14, 2018, as he no longer had residuals or disability causally
related to his accepted March 4, 2015 employment injuries.

10
See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be given
to each individual report).
11

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
SOCIAL SECURITY ADMINISTRATION,
)
Baltimore, MD, Employer
)
___________________________________________ )
P.W., Appellant

Appearances:
Donald Hecht, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1900
Issued: April 10, 2007

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 August 14, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 10, 2006 which found that the evidence was
insufficient to warrant modification of a prior decision pertaining to a claimed recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue on appeal is whether appellant met her burden of proof to establish that she
sustained a recurrence of disability commencing in July 2003 causally related to an accepted
January 13, 2003 employment injury.
FACTUAL HISTORY
On January 14, 2003 appellant, then a 42-year-old contact representative, filed a
traumatic injury claim alleging that on January 13, 2003 she fell to the floor at work after her
chair collapsed. She stopped work on January 13, 2003.

In a January 13, 2003 report, Dr. Samuel C. Santoriello, a physician of unknown
specialty, noted that appellant was involved in a work accident in which her chair collapsed and
in which she fell and landed on the floor. He examined her and diagnosed cervical sprain/strain,
lumbar sprain/strain and chest sprain/strain.
In a March 6, 2003 magnetic resonance imaging (MRI) scan of the lumbar spine,
Dr. James Port, a Board-certified diagnostic radiologist, found a synovial cyst or osteophyte
projecting from the facet joint at the T10-11 level, at L3-4 marked annular bulging with right
paracentral disc protrusion, with lateral extension and disc desiccation at L5-S1 and annular
bulging with small broad-based right paracentral disc protrusion impending on the descending
and exiting S1 and L5 nerve roots respectively and no spinal stenosis.
On April 3, 2003 the Office accepted the claim for a muscular sprain of the cervical and
lumbar spine and authorized physical therapy from January 28 to May 1, 2003. Appellant
received appropriate compensation benefits and returned to light duty on March 15, 2003.1
In an April 4, 2003 MRI scan of the thoracic spine, Dr. Loralie Ma, a Board-certified
diagnostic radiologist, found no evidence of disc herniation, canal stenosis or neural foraminal
narrowing. In a June 27, 2003 MRI scan of the thoracic spine, Dr. Robert Van Besien, a Boardcertified diagnostic radiologist, determined that appellant had a slight deformity at the posterior
aspect of the thecal sac at T10-11, minimal disc bulging at T2-3 and T3-4 and endplate spurring
at T5-6 through T8-9. He also noted that appellant had a “subtle abnormal increased signal seen
within the central aspect of the cord extending from approximately T4-5 through T9-10.”
In a report dated July 3, 2003, Dr. Daniel Levy, a Board-certified pediatrician, requested
that the employing establishment schedule appellant for work for three days a week on a shortterm basis due to recent medical problems. The record indicates that appellant’s hours were
reduced to three days per week and she continued to work part time.
In a report dated July 31, 2003, Dr. Christopher Galuardi, a Board-certified
anesthesiologist and treating physician, indicated that he had originally treated appellant with
injections of steroids and medication for chest, neck and thoracic spine pain. He noted that, at
the same time, she fell off a chair and was having back pain. Dr. Galuardi recommended
additional epidural steroid injections and advised that appellant continue to work 3 days a week,
for 8 hours a day, with a weight lifting restriction of 10 pounds. He completed a disability
certificate of the same date advising the above-noted restrictions.
In an October 29, 2003 report, Dr. Levy opined that he believed that appellant’s problems
of musculoskeletal pain were due in part to the work-related injury.
On February 3, 2004 appellant filed a notice of recurrence alleging a recurrence of
disability in July 2003. She stated that she returned to limited-duty work and alleged that she
had pulling in her lower back area, pain in both legs, with burning in both legs, behind the knees,
hip pain and pain in the middle of the buttocks area. When asked to describe how the recurrence
1

Appellant has a prior injury that occurred on July 13, 1999 when she worked for a college. The injury, to her
neck and left shoulder, required an anterior cervical discectomy and fusion on May 30, 2001.

2

occurred, she alleged that it occurred in July 2003 and that the “pain had never went away” from
January 13, 2003 and that she still had the same condition. The employing establishment
indicated that appellant’s work schedule was reduced from five to three days a week in
July 2003.
She also completed numerous CA-7’s for the period July 2, 2003 to
December 31, 2004.
The Office continued to develop the claim and on March 26, 2004 referred appellant for a
second opinion, along with a statement of accepted facts, a set of questions and the medical
record to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon.
In an April 12, 2004 report, Dr. Hanley noted appellant’s history of injury and treatment
and that she presented with complaints of neck and back pain. He also noted that in July 2003
appellant was placed on part-time duty comprised of working only eight hours per day for three
days a week and that she continued to work at that level. Dr. Hanley examined the cervical spine
and determined that appellant had a well-healed scar with moderate limitation of motion due to
pain. Examination of the back revealed moderate limitation of motion of the lumbar spine due to
complaints of discomfort. Straight leg raising was negative, reflexes were intact and there was
no evidence of neurologic compromise in either the upper or lower extremity. Dr. Hanley
opined that appellant’s cervical and lumbar sprain/strains had resolved and that she no longer had
residuals of the accepted injury. He also noted that she continued to have residuals of her
cervical disc disease for which appellant underwent a cervical fusion in 2001 as well as her
degenerative disease in the lumbar spine. Dr. Hanley noted that these conditions were not
caused by the January 13, 2003 employment injury.
On April 29, 2004 the Office referred appellant, along with a statement of accepted facts,
and the medical record to Dr. Gary Pushkin, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion between appellant’s physicians,
Dr. Galuardi and Dr. Levy who advised that appellant could only work three days a week and
continued to suffer from residuals of her accepted injury and Dr. Hanley who opined that
appellant’s accepted condition had resolved.
In a May 13, 2004 report, Dr. Pushkin noted appellant’s history of injury and treatment
which included the 1999 injury. He examined the cervical spine and found that appellant had
soft tissue tenderness, 75 degrees of right and left lateral rotation and 25 degrees of forward
flexion and extension and no pain with motion. Dr. Pushkin also found no neurocirculatory
deficit. Regarding the lumbosacral spine, he indicated that appellant had some tenderness at
L5-S1, but no sciatic notch tenderness and full range of motion with pain at the extremes of
motion with diminished reflexes at the knees and ankles bilaterally and negative straight leg
raising bilaterally. Dr. Pushkin opined that on January 13, 2003 she sustained soft tissue injuries,
which included a sprain/strain to her cervical spine and a sprain/strain to the lumbosacral spine.
He further noted appellant’s course of treatment and reviewed the x-rays and diagnostic reports
and advised that there was “no damage to the hardware in appellant’s neck and no evidence of
any changes in her cervical spine.” Dr. Pushkin opined that he did not believe that appellant had
any permanent effect on her anterior cervical fusion and that her soft tissue injuries to her
cervical and lumbosacral spines had resolved. He further indicated that appellant’s ongoing
complaints were related to her previous injury and that her obesity and lack of conditioning were
also contributing factors. Dr. Pushkin opined that appellant was capable working a 40-hour

3

week without restrictions as her position was sedentary job and there were no objective findings.
He opined that she had reached maximum medical improvement, that appellant had recovered
from her injuries of January 13, 2003 and no further treatment was warranted.
By letter dated May 27, 2004, the Office requested clarification from Dr. Pushkin
regarding whether appellant’s disability commencing July 2003 was related to the work-related
injury.
In a June 1, 2004 addendum, Dr. Pushkin opined that he did not believe that appellant’s
disability beginning in July 2003 of only working 24 hours a week was related to her January 13,
2003 work injury.
By decision dated September 1, 2004, the Office denied appellant’s claim for a
recurrence of disability beginning in July 2003. Appellant was advised that the weight of the
medical evidence rested with Dr. Pushkin, the impartial medical specialist, who opined that her
accepted injuries had resolved and that she could work a 40-hour week without restrictions. The
Office informed her that, as she no longer had residuals of her accepted condition, medical
treatment was no longer authorized.
On September 16, 2004 appellant’s representative requested a hearing which was held on
June 27, 2005. The Office received additional CA-7’s for the period February 15 to
October 5, 2005. The Office received several reports, dated November 4, 18 and December 2,
2003, from Dr. Galuardi noting epidural steroid injections for lumbar radiculopathy.
Additionally, on September 17 and December 10, 2004, Dr. Galuardi diagnosed lumbar
spondylosis with back pain and hip bursitis with hip pain and performed bilateral lumbar facet
rhizotomies at L2, L3, L4 and S1 and bilateral hip bursal injections.
Dr. Galuardi continued to treat appellant. In some of his reports, he offered an opinion
that appellant’s condition was work related and that she could only work restricted hours and
continued to have residuals from her accepted injury. In an undated attending physician’s report
received by the Office on December 10, 2004, Dr. Galuardi checked the box “yes” that he
believed appellant’s condition was related to her employment and filled in “no prior history of
back pain prior to January 13, [2003].” He opined that appellant was totally disabled from
March 31 to May 8, 2003 and partially disabled from July 31, 2003 to October 24, 2004. In a
June 24, 2004 report, Dr. Galuardi noted that appellant had back pain due to lumbar spondylosis
and recommended that she only work eight hours a day four days a week. In a December 17,
2004 disability certificate, Dr. Galuardi advised that appellant underwent a surgical procedure on
December 10, 2004 and needed to stay off work for December 16 and 17, 2004, due to
complications. In a February 24, 2005 report, he diagnosed cervical and lumbar spondylosis
with mild spinal stenosis in the lumbar spine and recommended further medical evaluations.
By letter dated August 9, 2005, appellant’s representative enclosed an additional report
from Dr. Galuardi dated July 28, 2005. Dr. Galuardi opined that appellant’s disc problems at
L4-5 and L5-S1 were causally related to the employment injury. He added that he never
diagnosed a muscle sprain. Dr. Galuardi also noted that appellant had lumbar spondylosis,
which was a “form of traumatic joint arthritis” and opined that it was not a preexisting condition.

4

Dr. Galuardi also indicated that he had not had the opportunity to review the reports of
Dr. Hanley and Dr. Pushkin.
By decision dated September 27, 2005, the Office hearing representative affirmed the
Office’s September 1, 2004 decision. He found that the medical evidence did not support the
claimed disability. In particular, the Office hearing representative noted that Dr. Galuardi
advised that he did not diagnose a muscular strain and that he was of the opinion that appellant’s
lumbar disc condition was related to her work injury. However, he noted that a strain was
diagnosed in the initial hospital treatment record and that Dr. Galuardi did not provide
supporting rationale. The Office found that the report of Dr. Pushkin was entitled to be accorded
the weight of the medical evidence and established that appellant had not sustained a recurrence
of total disability in July 2003 causally related to her accepted January 13, 2003 employment
injury.
In an April 21, 2005 report, Dr. Galuardi diagnosed spinal stenosis at C4-5 resulting in
bilateral C5 radiculopathy and opined that appellant’s symptoms were due to the pathology at
C4-5 because she had little relief of her back pain from interventional treatments. The Office
also received several attending physician’s reports from Dr. Galuardi. In his reports,
Dr. Galuardi checked the box “yes” that he believed appellant’s condition was related to her
employment. In some of these reports, he filled in “no prior history of back pain prior to
January 13[, 2003].” Dr. Galuardi opined that appellant was totally disabled from March 31 to
May 8, 2003 and partially disabled from July 31, 2003 to September 8, 2005.
In a December 13, 2005 letter, appellant’s representative requested reconsideration and
alleged that her claim was not a recurrence, but rather alleged that appellant’s accepted condition
continued and never resolved. Counsel also included a new report from Dr. Galuardi.
In a report dated October 24, 2005, Dr. Galuardi noted appellant’s history of injury and
treatment, including the reports of Dr. Pushkin and Dr. Hanley. He explained that appellant did
not “come to me complaining to me of back pain from a lumbar strain or sprain.” Dr. Galuardi
indicated that “[g]enerally, after six weeks other causes for back pain must be found and my
subsequent research revealed that she had lumbar degenerative disc disease with lumbar disc
hernias and lumbar radiculopathy.” He noted that he based his findings and conclusion that
appellant’s ongoing back and leg pain stemmed from the January 13, 2003 employment incident
on the fact that, prior to the incident, she was able to work full time and was not complaining of
back pain. Dr. Galuardi also advised that the MRI findings were significant to show that she
became symptomatic.
By decision dated May 10, 2006, the Office denied modification of the September 27,
2005 decision as the evidence was insufficient to warrant modification.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total

5

disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.2
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.3 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.4 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
The Office accepted that on January 13, 2003 appellant sustained a muscular sprain of the
cervical and lumbar spine, authorized physical therapy and paid wage-loss compensation until
she returned to limited duty on March 15, 2003. The evidence indicates that this limited-duty
position remained available. After appellant’s physician restricted her to working three days a
week in July 2003, she filed her recurrence of disability claim.
The Office developed the medical evidence and determined that a conflict in medical
opinion was created between Dr. Hanley, an Office referral physician, who found that appellant’s
accepted condition had resolved and Dr. Galuardi and Dr. Levi, for appellant, who opined that
appellant could only work three days a week and that she had residuals of her accepted injury.
Section 8123(a) of the Federal Employees’ Compensation Act6 provides that, “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.”7 In situations where there are opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.8
Dr. Pushkin examined appellant, discussed the history of injury and reviewed the
evidence of record. He reviewed diagnostic reports and noted her anterior fusion from 1991 and
2

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986). See 20 C.F.R.
§ 10.5(x), (y) (defines the terms “recurrence of disability” and “recurrence of medical condition”).
3

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

4

Duane B. Harris, 49 ECAB 170, 173 (1997).

5

Gary L. Fowler, 45 ECAB 365, 371 (1994).

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8123(a).

8

Barbara J. Warren, 51 ECAB 413 (2000).

6

opined that the injury on January 13, 2003 had no permanent effect on her fusion. Dr. Pushkin
conducted an examination of the cervical spine and determined that there was no evidence of a
neurocirculatory deficit. He concluded that appellant’s soft tissue injuries to her cervical and
lumbosacral spines had resolved. Dr. Pushkin explained that appellant’s ongoing complaints
were related to her previous injury, her obesity and lack of conditioning and that she was capable
of working a 40-hour work week with no restrictions as her position was sedentary and she had
no objective findings related to the January 13, 2003 work injury. He opined that she had
completely recovered from the January 13, 2003 injury and no further treatment was warranted.
In a June 1, 2004 addendum, Dr. Pushkin opined that appellant’s disability commencing in
July 2003 was not related to the January 13, 2003 work injury.
The Board finds that Dr. Pushkin provided a detailed and well-rationalized report based
on a proper factual background and thus, his opinion is entitled to the special weight accorded an
impartial medical examiner. His report, therefore, constitutes the weight of the medical opinion
evidence and establishes that appellant did not have a recurrence of disability beginning in
July 2003 due to the January 13, 2003 work-related injury.
Although appellant continued submitting medical reports after the Office received
Dr. Pushkin’s reports, the Board finds that she did not submit sufficient reasoned medical
evidence that she had disability beginning July 2003 causally related to her January 13, 2003
employment injury. This medical evidence includes numerous reports from appellant’s
physician, Dr. Galuardi, who continued to treat appellant and recommend restrictions, which he
opined were related to the employment injury. In most of these reports, Dr. Galuardi either did
not specifically address causal relationship between partial disability beginning in July 2003 and
the accepted injury or he merely reiterated previously-stated findings and conclusions regarding
appellant’s condition. For example, in his June 24, 2004 report, Dr. Galuardi merely noted that
appellant had back pain due to lumbar spondylosis and recommended that she only work eight
hours a day four days a week. He did not offer any opinion that appellant had a recurrence of
disability in July 2003 causally related to her January 13, 2003 employment injury such that she
could no longer perform her light-duty requirements. Furthermore, as Dr. Galuardi had been on
one side of the conflict in the medical opinion that the impartial specialist resolved, the treating
physician’s reports were insufficient, in the absence of new reasoning or findings, to overcome
the special weight accorded the impartial specialist or to create a new medical conflict.9 He also
completed several attending physician’s reports in which he checked a box “yes” that he believed
appellant’s condition was related to her employment and filled in “no prior history of back pain
prior to January 13[, 2003].” Other form reports offered no reasoning for the opinion on causal
relationship. The Board has held that an opinion that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury but symptomatic
after it is insufficient, without supporting rationale, to establish causal relationship.10 The Board
has also held that, when a physician’s opinion on causal relationship consists only of checking

9

Barbara J. Warren, 51 ECAB 413 (2000); Alice J. Tysinger, 51 ECAB 638 (2000).

10

John F. Glynn, 53 ECAB 562 (2002).

7

yes to a form question, without explanation or rationale that opinion is of diminished probative
value and is insufficient to establish a claim.11
In his July 28, 2005 report, Dr. Galuardi opined that appellant’s disc problems at L4-5
and L5-S1 were causally related to the employment injury and that he never diagnosed a muscle
sprain. However, the Board notes that initial records on the date of the injury contain diagnoses
of cervical sprain/strain, lumbar sprain/strain and chest sprain/strain. It is well established that
medical reports must be based on a complete and accurate factual and medical background and
medical opinions based on an incomplete or inaccurate history are of diminished probative
value.12 Dr. Galuardi did not provide any rationale to explain how he arrived at this conclusion,
nor did he offer an opinion as to why appellant’s obesity, preexisting conditions or lack of
conditioning did not affect her condition. In his report dated October 24, 2005, Dr. Galuardi
noted that he had reviewed the reports of Dr. Pushkin and Dr. Hanley and explained that
appellant did not “come to me complaining to me of back pain from a lumbar strain or sprain.”
He indicated that “[g]enerally, after six weeks other causes for back pain must be found and my
subsequent research revealed that she had lumbar degenerative disc disease with lumbar disc
hernias and lumbar radiculopathy.” Dr. Galuardi opined that appellant’s ongoing back and leg
pain stemmed from the January 13, 2003 employment incident because prior to the incident, she
was able to work full time and was not complaining of back pain. To the extent that appellant
may be claiming that a condition not accepted or approved by the Office was due to her
employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.13 As noted above, an opinion that a condition is causally
related to an employment injury because the employee was asymptomatic before the injury but
symptomatic after it is insufficient, without supporting rationale, to establish causal relationship.
The record also contains other medical reports including diagnostic reports. However,
these reports do not establish appellant’s claim as they did not contain an opinion regarding the
cause of claimed disability beginning July 2003. The record also contains reports from
physician’s assistants. However, section 8101(2) of the Act14 provides that the term “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by the applicable state law.
Consequently, these reports cannot be considered medical evidence.
Accordingly, appellant has not met her burden of proof to establish that, due to her
accepted injury, she could no longer work in her light-duty position, full time, beginning
July 2003.

11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

James R. Taylor, 56 ECAB ___ (Docket No. 05-135, issued May 13, 2005).

13

Jaja K. Asaramo, 55 ECAB 200 (2004).

14

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).

8

CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing July 2003 due to the January 13, 2003 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2006 and September 27, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 10, 2007
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
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)
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Docket No. 18-0370
Issued: March 5, 2019

Case Submitted on the Record

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

On December 4, 2017 appellant filed a timely appeal from a June 8, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 18-0370.1
Appellant has two accepted claims which have been consolidated. In a case adjudicated
by OWCP under File No. xxxxxx935, it accepted a March 26, 2001 occupational disease claim
(Form CA-2) for neck and right shoulder sprains, brachial plexus lesions, right carpal tunnel
syndrome, and other congenital anomalies of muscle, tendon, fascia, and connective tissue on the
right. OWCP also accepted a 2006 occupational disease claim, adjudicated under OWCP File No.
xxxxxx300, for brachial neuritis or radiculitis and left carpal tunnel syndrome. These claims have
been administratively combined with OWCP File No. xxxxxx935 serving as the master file.

1

The Board notes that appellant submitted evidence with her appeal to the Board. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP
at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on
appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first
time on appeal. Id.

By decisions dated March 21, 2006 and July 1, 2009, OWCP determined that appellant’s
actual earnings as a modified mail processing clerk fairly and reasonably represented her wageearning capacity. It found that appellant had a zero loss of wage-earning capacity.2
Under OWCP File No. xxxxxx935, beginning in September 2016, appellant filed claims
for compensation (Form CA-7) for wage loss beginning March 12, 2016 and continuing. In merit
decisions dated November 9, 2016 and June 8, 2017, OWCP denied appellant’s claims for
disability compensation.3
The Board has duly reviewed the matter and finds that the case is not in posture for
decision.
Appellant’s submission of claims for compensation for disability beginning March 12,
2016 and continuing indicates that she believed the accepted conditions had materially worsened
such that she could no longer work. The claim should therefore be regarded as a request for
modification of the July 1, 2009 loss of wage-earning capacity (LWEC) determination. The Board
has held that, when an LWEC determination has been issued and appellant submits evidence with
respect to disability for work, OWCP must evaluate the evidence to determine if modification of
the LWEC determination is warranted.4 OWCP procedures specifically provide that if a formal
LWEC decision has been issued and the claimant subsequently alleges a worsening of the accepted
condition or conditions, such claim should be processed in accordance with procedures for
modifying a formal LWEC decision.5 In this case, in its June 8, 2017 decision, OWCP adjudicated
appellant’s claims for disability without any reference to the LWEC determination.
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
The Board finds that OWCP should have determined whether appellant had established
that the March 21, 2006 LWEC determination should be modified based on a worsening of the
2

In a decision dated June 22, 2011, OWCP found that appellant had established that the loss of wage-earning
capacity (LWEC) determination should be modified during the time period April 14 through June 3, 2011.
3

Appellant also filed a recurrence claim (Form CA-2a) alleging a recurrence of disability on March 12, 2016 under
File No. xxxxxx300. By decision dated December 20, 2016, OWCP denied this recurrence claim. On February 15,
2017 OWCP denied appellant’s request for a hearing from the December 20, 2016 decision. Appellant did not file an
appeal with the Board from either decision.
4

E.H., Docket No. 17-0963 (issued August 24, 2018).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions,
Criteria for Modification, Chapter 2.1501.3.a.2 (June 2013).
6

B.C., Docket No. 18-0407 (issued September 17, 2018).

7

Id.

2

accepted conditions.8 The Board will therefore remand the case to OWCP for proper adjudication,
to be followed by issuance of a de novo decision to preserve appellant’s appeal rights.9
IT IS HEREBY ORDERED THAT the June 8, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 5, 2019
Washington, DC

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

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

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

8

See H.J., Docket No. 16-1573 (issued September 5, 2017).

9

Id.

3