United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BUCKLEY AIR FORCE BASE,
Buckley, CO, Employer
__________________________________________

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

Docket No. 07-1350
Issued: October 18, 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 April 8, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated January 25, 2007 denying her claim for compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the merits and nonmerits of
this claim.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on October 27, 2006, as alleged.
FACTUAL HISTORY
On November 8, 2006 appellant, then a 39-year-old housing flight chief, filed a traumatic
injury claim alleging that on October 27, 2006 she sustained an injury to her back when, during
the course of her federal employment, her car hit black ice and slid into a frozen snow

embankment. She indicated that when she got out of her car she slipped on ice and fell on her
left hip and elbow.
By letter dated December 19, 2006, the Office requested that appellant submit further
information including medical evidence in support of her claim. In a note received by the Office
on January 10, 2007, appellant indicated that she did not see a doctor until January 3, 2007
because she did not have medical insurance and she thought that the Office had to approve her
case before she could be seen.
In further support of her claim, appellant submitted reports by Dr. Christian O. Updike, a
family practitioner, who indicated that he saw appellant on January 3, 2007, diagnosed her with
cervical strain, prescribed Naprosyn and an aggressive course of physical therapy and released
her to regular duty as of that date. In a form dated January 19, 2007, Dr. Updike checked a box
to indicate that appellant’s history of slipping on ice when getting out of the car was consistent
with the mechanism of appellant’s injury. Appellant also submitted notes from her physical
therapist.
By decision dated January 25, 2007, the Office denied appellant’s claim as the medical
evidence did not demonstrate that the claimed medical condition was related to the established
work event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first 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 she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4

1

5 U.S.C. § 8122(a).

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

2

The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to a specific condition of employment.5 Neither the fact that a
condition became apparent during a period of employment nor appellant’s belief that the
employment caused or aggravated his condition is sufficient to establish causal relationship.
ANALYSIS
Appellant alleged that she sustained an injury on October 27, 2006 when, during the
course of her federal employment, she slipped on ice while getting out of a car. The Office
found that the incident on October 27, 2006 occurred at the time, place and in the manner
alleged. The issue is whether she sustained an injury caused by the employment incident.
In support of her claim, appellant submitted reports by Dr. Updike who did not provide a
rationalized medial opinion addressing appellant’s condition or relating it to the incident of
October 27, 2006. Dr. Updike indicated that appellant sustained a cervical strain. He checked a
box indicating that the history given by appellant of slipping on ice while getting out of the car
was consistent with sustaining a cervical strain, however, he provided no comments or
explanation as to why this incident resulted in the diagnosed condition of cervical strain. The
Board has held that, when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, that opinion has little probative value and is insufficient to establish a
casual relationship.6
Appellant also submitted physical therapy notes in support of her claim. However,
reports of a physical therapist do not constitute competent medical evidence as a physical
therapist is not a physician as defined by section 8101(2) of the Act.7
There is insufficient medical evidence to establish that appellant sustained an injury
during the course of her federal employment on October 27, 2006. The Board finds that she has
failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on October 27, 2006, as alleged.

5

Katherine J. Friday, 47 ECAB 591 (1996).

6

Gary J. Watling, 52 ECAB 278 (2001); Lee R. Haywood, 48 ECAB 145, 147 (1996).

7

5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357 (2000).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2007 is affirmed.8
Issued: October 18, 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

8

Subsequent to the December 13, 2006 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

4


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

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

Docket No. 09-577
Issued: October 14, 2009

Case Submitted on the Record

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

JURISDICTION
On December 29, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ schedule award decision dated December 3, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had a
ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On July 31, 2008 appellant, then a 63-year-old mine and safety health training specialist,
filed an occupational disease claim alleging that he sustained hearing loss in both ears due to
high noise levels in the performance of duty. He first became aware of his hearing loss and
related it to his employment on July 14, 2008. Appellant did not stop work.

On August 6, 2008 the Office requested additional evidence. Appellant submitted a
statement dated August 12, 2008 in which he described his position at the employing
establishment which began on July 14, 2003 and the noise exposure associated with that position.
He also listed the various non-Federal Government positions he held between 1966 and 2003 and
noted the various sources of noise exposure during that period. Appellant noted that his hearing
problems consisted of difficulty hearing people talk and listening to the television. Additionally,
he submitted several audiograms and corresponding reports dated between June 23, 2003 and
August 3, 2008.
The submitted audiometric and medical evidence included a July 2, 2008 report from
Dr. John McNamara, Board-certified in occupational medicine, who noted abnormal test results
with severe hearing loss in both ears. He noted the baseline audiogram was from June 23, 2003
and advised that the baseline be reset to June 30, 2008. Dr. McNamara attached a June 24, 2008
audiogram performed on his behalf which showed the following decibel losses at frequencies of
500, 1,000, 2,000 and 3,000 hertz (Hz): 0, 5, 5 and 40 for the right ear and 0, 10, 30 and 55 for
the left ear. In an August 3, 2008 report, he compared the audiograms from June 23, 2003 and
June 24, 2008. Dr. McNamara indicated that both audiograms showed no impairment in either
ear. He further found that, although there was a threshold shift likely due to noise exposure to
the right ear in 2008, there was no hearing impairment in either ear pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001).
Dr. McNamara also calculated impairment under other standards for evaluating hearing loss.
On October 17, 2008 the Office referred appellant, together with a statement of accepted
facts, to Dr. Craig Anderson, a Board-certified otolaryngologist, for a second opinion evaluation.
In an October 31, 2008 report, Dr. Anderson noted that appellant had worked for five
years in mine safety and already had some years of prior mine work and noise exposure. He
further noted that appellant’s hearing had deteriorated further within the last five years.
Dr. Anderson indicated that, at the beginning of appellant’s employment, his hearing was
significantly down in the 3,000 to 6,000 Hz range. He compared the present audiometric
findings to those at the beginning of appellant’s exposure and found that his hearing had come
down further at 2,000, 3,000 and 6,000 Hz over five years and such hearing loss was different
than what was expected purely from presbycusis. Dr. Anderson opined that appellant’s exposure
was sufficient in intensity and duration to cause hearing loss, although no decibel levels were
provided. He noted that other relevant factors consisted of smoking, mild cholesterol elevation,
and significant shooting and hunting. Upon examination, Dr. Anderson found appellant’s canals
and drums were without noticeable loss. He also noted that he could not rule out acoustic
neuroma explaining that appellant’s hearing on the left was worse on pure tones and
discrimination as a result of shooting and workstation orientation. Dr. Anderson diagnosed
bilateral high frequency sensorineural hearing loss due to noise exposure at the employing
establishment given the pattern of hearing loss and the history of many years of noise exposure
in underground mine situations. He recommended hearing aids “if or when” appellant struggled
with communication. Dr. Anderson also advised continuous careful noise protection and
prevention. An October 31, 2008 audiogram performed on Dr. Anderson’s behalf showed the
following decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 5, 10, 10 and 45 for
the right ear and 10, 10, 25 and 55 for the left ear.

2

On November 14, 2008 an Office medical adviser reviewed Dr. Anderson’s October 31,
2008 report and the audiometric data obtained by him. He noted that the date of Dr. Anderson’s
report was the date of maximum improvement. The Office medical adviser applied
Dr. Anderson’s audiometric data to the Office’s standard for evaluation of hearing loss and
determined that appellant had a zero percent monaural hearing loss in the right ear and a zero
percent monaural hearing loss in the left ear. He concluded that appellant had a zero percent
binaural hearing loss. Regarding hearing aids, the Office medical adviser indicated that there
was no medical need for amplification noting that appellant had excellent hearing in normal
speech thresholds.
On December 3, 2008 the Office accepted appellant’s claim for binaural hearing loss and
indicated that hearing aids were not authorized. In a decision of the same date, it denied
appellant’s schedule award claim and hearing aids, finding that his hearing loss was not severe
enough to be considered ratable and that he would not benefit from hearing aids.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions. The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss. The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.3

1

5 U.S.C. §§ 8101-8193.

2

R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald Stockstad, 53 ECAB 301 (2002),
petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

ANALYSIS
Appellant submitted a schedule award claim for hearing loss and the Office developed
the claim by referring him to Dr. Anderson. On October 31, 2008 Dr. Anderson examined
appellant and audiometric testing was performed on the doctor’s behalf. He opined that noise
exposure at appellant’s workplace was sufficient to cause bilateral high frequency sensorineural
hearing loss. Dr. Anderson did not indicate that appellant currently needed hearing aids.
An Office medical adviser applied the Office’s standard procedures to the October 31,
2008 audiogram. It tested decibel losses at 500, 1,000, 2,000 and 3,000 Hz and recorded decibel
losses of 5, 10, 10 and 45 respectively in the right ear. The total decibel loss in the right ear is 70
decibels. When divided by 4, the result is an average hearing loss of 17.5 decibels. The average
loss of 17.5 is reduced by the fence of 25 decibels to equal 0, which when multiplied by the
established factor of 1.5, resulted in 0 percent impairment of the right ear. The audiogram tested
decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 Hz and recorded decibel losses of
10, 10, 25 and 55 respectively for a total decibel loss of 100 decibels. When divided by 4, the
result is an average hearing loss of 25 decibels. The average loss of 25 decibels is reduced by the
fence of 25 decibels to equal 0, which when multiplied by the established factor of 1.5, resulted
in 0 percent impairment of the left ear. The medical adviser also found that there was no medical
need for hearing aids, noting that appellant had excellent hearing in normal speech thresholds.
The Board finds that the Office medical adviser properly applied the standards to the findings of
the October 31, 2008 audiogram and concluded that appellant did not have a ratable hearing loss
for schedule award purposes.
The Board notes that appellant submitted audiograms and reports from Dr. McNamara
dated between June 23, 2003 and August 3, 2008. As noted, Dr. McNamara indicated in his
August 3, 2008 report that the audiograms he reviewed were not ratable under the A.M.A.,
Guides.4 While he noted impairment under other standards for evaluating hearing impairment,
the Office uses the A.M.A., Guides, as its standard in evaluating hearing loss for schedule award
purposes.5 Consequently, the Board finds that the weight of the medical evidence establishes
that appellant has no ratable loss of hearing pursuant to the A.M.A., Guides.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes.

4

See Joshua A. Holmes, 42 ECAB 231 (1990) (when several audiograms are in the case and are made within
approximately two years of each other and are submitted by more than one specialist, the Office should have all of
such audiograms evaluated to determine the percentage loss of hearing shown by each). Although the Office
medical adviser did not specifically address the June 24, 2008 audiogram reviewed by Dr. McNamara, any error is
harmless since the June 24, 2008 audiogram does not show a ratable hearing loss pursuant to the Office’s standards
for rating hearing loss.
5

Supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 3, 2008 is affirmed.
Issued: October 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 13-384
Issued: June 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 6, 2012 appellant filed a timely appeal of a September 6, 2012 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 established that she sustained a recurrence of disability
causally related to her accepted June 19, 1992 employment injury.
FACTUAL HISTORY
On June 19, 1992 appellant, then a 31-year-old city manual distribution clerk, filed a
traumatic injury claim alleging that on that day she sustained a cut to her left hand and first
finger in the performance of duty. OWCP accepted the claim for left finger laceration and
1

5 U.S.C. § 8101 et seq.

tendon repair and paid appropriate compensation. Appellant stopped work on June 19, 1992,
returned to light-duty work on November 17, 1993 and full-duty work on February 16, 1994.2
The most recent medical evidence contained in the record is a July 23, 1997 progress note
from Dr. A. Salyapongse, a treating physician, who noted that appellant had not been seen by
him since April 1996. Dr. Salyapongse wrote that appellant had been given permanent light duty
at the employing establishment and had been diagnosed with right carpal tunnel syndrome.
In a letter dated September 7, 2011, appellant requested that OWCP reopen her claims as
she was severely and permanently disabled due to her accepted employment injuries. She
alleged that as a result of her employment injury she suffered from stress and depression.
By correspondence dated November 16, 2011, OWCP advised as to the medical and
factual evidence required to support her recurrence claim. It gave appellant 30 days to provide
the requested information.
In response to OWCP’s request, appellant submitted a letter and recurrence claim form
dated November 29, 2011. In her letter, she requested payment for her injuries. Appellant
alleged that she had been in excruciating pain since the date of her injury, that she was not
working and was currently receiving disability benefits from social security. She attributed her
depression, sleep apnea, emotional anxiety, stress and acid reflux condition to her June 19, 1992
employment injury. Appellant alleged that due to her employment injuries she was
unemployable and totally disabled.
By decision dated January 3, 2012, OWCP denied appellant’s claim for a recurrence of
disability. It found that no medical evidence had been submitted since July 1997.
Following the January 3, 2012 decision, appellant submitted factual and medical
evidence including a January 3, 2012 claim for compensation (Form CA-7) for the period
December 17 to 30, 2011. She submitted physical therapy notes from 1993.3
On January 26, 2012 appellant requested an oral hearing before an OWCP hearing
representative and a telephonic hearing was held on June 7, 2012. She testified that her last day
of work for the employing establishment was July 30, 1999. Appellant also testified that she was
not seeing a doctor for her hand and had not seen a doctor since being in receipt of benefits from
the Social Security Administration. The hearing representative noted that OWCP had not
received any medical evidence regarding her hand for several years and that the record would be
held open for 30 days for the receipt of medical evidence.
Appellant subsequently submitted claims for compensation for the period December 31,
2011 to August 24, 2012.
2

By decision dated March 8, 1995, OWCP denied appellant’s claim for a recurrence of disability for the period
April 16 to July 27, 1994 causally related to the accepted June 19, 1992 employment injury. An OWCP hearing
representative affirmed the March 8, 1995 decision on May 21, 1996.
3

The employing establishment noted that appellant had retired in February 2004 and had been receiving benefits
from the Social Security Administration since 2004.

2

By decision dated September 6, 2012, OWCP’s hearing representative affirmed the
January 3, 2012 denial of appellant’s recurrence claim.
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
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence of disability is causally
related to his or her original injury.6 As part of this burden of proof, the employee must show
either a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.7 In order to establish that his or her claimed
recurrence of the condition was caused by the accepted injury, medical evidence of bridging
symptoms between his or her present condition and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
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.10

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

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997), Donald T.
Pippin, 54 ECAB 631 (2003).
6

20 C.F.R. § 10.104(b); S.S., 59 ECAB 315 (2008); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50
ECAB 279, 382 (1999); Robert H. St. Onge, 43 ECAB 1169 (1992).
7

Terry R. Hedman, 38 ECAB 222 (1986).

8

C.W., Docket No. 07-1816 (issued January 16, 2009); Mary A. Ceglia, 55 ECAB 626 (2004); Ricky S. Storms,
52 ECAB 349 (2001).
9

Michael S. Mina, 57 ECAB 379 (2006); Ricky S. Storms, supra note 8.

10

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

3

ANALYSIS
OWCP accepted appellant’s claim for left finger laceration and tendon repair. Appellant
returned to work on November 17, 1993. The record reveals that appellant’s last day of work for
the employing establishment was July 30, 1999 and that she retired in February 2004.
Appellant filed a number of claims for a recurrence of disability. The issue on appeal is
whether she has established that her recurrence of disability was causally related to her accepted
June 19, 1992 employment injury.
The Board finds that appellant failed to submit any medical evidence establishing that she
sustained a recurrence of disability causally related to the June 19, 1992 employment injury. The
most recent medical evidence in the record is a July 23, 1997 progress note from
Dr. Salyapongse which related that appellant had not been seen since April 1996 when she had
been given permanent light duty at the employing establishment and been diagnosed with right
carpal tunnel syndrome. Appellant submitted no medical evidence with her recurrence claim.
OWCP advised her in a letter dated November 16, 2011 regarding the evidence required to
support her recurrence claim. OWCP’s hearing representative also informed her regarding the
evidence required at the telephonic hearing and the importance of submitting medical evidence.
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 failed to meet her burden in establishing that she sustained
a recurrence of disability causally related to her accepted June 19, 1992 employment injury,

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2012 is affirmed.
Issued: June 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Arthur, TX, Employer
__________________________________________

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

Docket No. 18-1425
Issued: March 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from March 26 and May 23, 2018 merit
decisions 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
ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 23, 2018 decision, OWCP received additional evidence. However,
section 501.2(c)(1) of 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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 23, 2017 appellant, then a 56-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a back injury as a result of her federal
employment duties. She heard a pop in the middle of her back when she reached for a handful of
mail. Appellant indicated that she first became aware of her condition on January 29, 2016 and
realized its relationship to her federal employment on February 20, 2016. She stopped work on
January 29, 2016. No additional evidence was submitted.
OWCP, by development letter dated January 31, 2017, advised appellant of the factual and
medical deficiencies of her claim. It provided a questionnaire for her completion regarding the
circumstances of the injury. Appellant was also asked to provide a narrative medical report from
her physician which contained a detailed description of findings and diagnoses, explaining how
the claimed work activities caused, contributed to, or aggravated her medical condition. In a
separate letter dated January 31, 2017, OWCP also requested that the employing establishment
provide additional information in response to her allegations. It afforded both parties 30 days to
submit the requested information.
In an undated letter, appellant related that she had worked at the employing establishment
for over 22 years. She again claimed that she sustained an injury on January 29, 2016. Appellant
indicated that within two to three weeks later she went from limping and dragging her leg to using
a cane and then to using a wheelchair. She described her current emotional condition and noted
that she had undergone surgeries.
In an undated narrative statement, appellant related that she had put small and heavy trays
of mail and parcels into the back of the jeep and while on her route she turned to the left to get
mail out of a tray and felt pain in both legs which started to stiffen. She reiterated that she heard
and felt a loud pop in her back.
Appellant submitted a progress note dated March 3, 2016 from Rhonda Reed, a nurse
practitioner. Ms. Reed related a history that appellant began to experience lower back pain in
December 2015 and that her pain progressively worsened. She provided an assessment of other
hereditary and idiopathic neuropathies, radiculopathy of the lumbar region, peripheral neuropathy
of (or chronic neurogenic changes of) the bilateral lower extremities, affecting the sensory and
motor components of the nerves predominantly affecting the axoris, subacute to chronic L2-S1
radiculopathy on the right and left and muscle spasms in the lumbar paraspinal muscles that may
be masking the acute radiculopathy changes.
An April 4, 2016 computerized tomography (CT) scan of the abdomen and pelvis read by
Dr. Stephen N. Cherewaty, a diagnostic radiology specialist. As to appellant’s spine he noted mild
degenerative changes in the lumbar spine.
On April 5, 2016 Dr. Gregory C. Diaz, Board-certified in diagnostic radiology, read
magnetic resonance imaging (MRI) scans of the cervical, thoracic, and lumbar spines. He reported
that the cervical spine MRI scan revealed multilevel central stenosis and spondylosis, compressive
disc herniations at C5-6 and C6-7, largest at C5-6, and no abnormal enhancement of the cord.
Dr. Diaz indicated that the thoracic spine MRI scan revealed marked central stenosis and cord

2

ﬂattening with abnormal cord enhancement at the T6-7 level and markedly compressive left
paracentral disc herniation, and multilevel spondylosis, disc bulging, and mild central stenosis. He
related that the lumbar spine MRI scan demonstrated stable spondylotic changes and central
stenosis from L3-4 through L5-S1, most severe at L4-5 with an “AP” canal diameter approximately
four millimeters.
In a tissue consultation report dated April 6, 2016, Dr. Jason Matherne, Board-certified in
anatomic and clinical pathology, noted a preoperative diagnosis of thoracic disc herniation, T5-10
with spinal cord compression, and lower extremity weakness. He provided a final diagnosis of
intervertebral discs, C6 and C7, discectomies, fragments of disrupted and degenerated
fibrocartilage, and negative for malignancy.
In an intraoperative neurophysiology report dated April 6, 2016, Dr. Sujin Yu, a Boardcertified neurologist, noted a diagnosis of thoracic stenosis and performed a thoracic laminectomy
at T5-10.
By letter dated February 13, 2017, the employing establishment controverted appellant’s
claim. It noted that the March 3, 2016 report revealed that she had experienced pain beginning in
December 2015 and contended that this was unrelated to the alleged date of injury of
January 29, 2016. The employing establishment further contended that appellant failed to explain
what caused her claimed injury. It indicated that she submitted a duplicate claim for a February 8,
2016 traumatic injury, which had been denied. The employing establishment requested that
OWCP deny appellant’s claim because she had not established causal relationship or fact of injury.
On February 21, 2017 appellant responded to OWCP’s development questionnaire. She
related that as a rural carrier she cased mail and took mail down from a case. Appellant also picked
up heavy packages and placed them in her jeep and delivered them. She engaged in repetitive
twisting and turning to retrieve mail from her tray, 5 to 6 days a week, 15 to 17 years.
Appellant submitted a December 8, 2015 report in which Dr. Brent Jacobson, Boardcertified in diagnostic radiology, read an x-ray of her lumbar spine. Dr. Jacobson provided an
impression of no acute lumbar abnormality and moderate degenerative arthrosis.
Appellant also submitted progress notes dated January 15 and February 4, 2016 from
Ms. Reed. She reiterated her assessment of other hereditary and idiopathic neuropathies and
radiculopathy of the lumbar region. Ms. Reed also provided an assessment of other intervertebral
disc degeneration, lumbosacral region, spinal stenosis, and degenerative spondylolisthesis at L45, multilevel osteophytes, multilevel degenerative facet arthropathy, and mild disc space
narrowing at L4-5 and S1.
In a report dated January 28, 2016, Dr. Tawfeeq Sayyed, Board-certified in diagnostic
radiology and nuclear medicine, read a lumbar spine MRI scan. He provided an impression of
moderate-to-severe degenerative changes in the mid-lumbar spine resulting in severe canal
stenosis at L4-5, moderate canal stenosis at L3-4 and L5-S1, and mild canal stenosis at L2-3.
Dr. Yu, in a January 28, 2016 report, indicated that an electrodiagnostic study revealed
peripheral neuropathy of (or chronic neurogenic changes of) the bilateral lower extremities,
affecting the sensory and motor components of the nerves predominantly affecting the axons,
3

subacute to chronic L2-S1 radiculopathy on the right and left, and muscle spasms in the lumbar
paraspinal muscles that may be masking the acute radiculopathy changes. On February 2, 2016
she reported that she was performing an electromyogram of appellant’s bilateral lower extremities
due to back pain that radiated down to her left thigh with numbness. Dr. Yu noted appellant’s
chief complaints of left hip pain and numbness/tingling in the left thigh. She related a history that,
on Thanksgiving at appellant’s mother’s house, appellant was mopping the floor when she
experienced pain on the left side of her back. A couple of days later appellant’s pain worsened
while she was helping her daughter move. She reported to Dr. Yu that the numbness in her left
thigh began about three weeks prior and she had to drag her foot when she walked. On
December 8, 2015 appellant sought medical treatment at an emergency center where an x-ray of
her lumbar spine was performed and she received pain medication. Dr. Yu provided an assessment
of other hereditary and idiopathic neuropathies and radiculopathy, lumbar region.
A report dated February 10, 2016 from appellant’s physical therapist addressed appellant’s
back and lower extremity conditions and physical limitations.
In progress notes dated March 22, September 6 and 20, and October 10, 2016, Dr. David
Singleton, a pain medicine specialist, reported appellant’s chief complaint of a lumbar epidural
steroid injection at left L3-5 and bilateral L3-S1 facet. He noted her history of hypertension and
medications.
In progress notes dated July 19, 2016 through February 14, 2017, Dr. Erwin Lo, a Boardcertified neurosurgeon, reported appellant’s history and findings on physical examination. He
provided an assessment of spinal stenosis of the thoracic and lumbar regions, status post thoracic
laminectomy performed three months ago for disc herniation causion spinal cord compression,
slow improvement with physical therapy, transient improvement after bilateral facet blocks at right
L3-S1 radio frequency ablation, more neurogenic claudication, right leg weaker than left leg, and
bilateral severe sacroiliitis.
A report dated September 19, 2016 from Dr. Mustafa I. Musa, a Board-certified internist,
noted appellant’s diagnoses, medications, and referrals for medical care and laboratory work.
On December 29, 2016 Dr. Josefine Timm, Board-certified in diagnostic radiology and
neuroradiology, examined a lumbar spine MRI scan. She found intervertebral disc degeneration
and bulging and degenerative facet and ligamentum flavum hypertrophy from L3-4 to L5-S1, mild
degenerative subluxation at L3-4 and L4-5, marked relative compression of the thecal sac at
L4-5 and L3-4 and to a moderate degree at L2-3, complete effacement of cerebrospinal fluid (CSF)
in the bilateral subarticular lateral recesses, more extensive on the left at L4-5, compression of the
thecal sac in the subarticular lateral recess on the left at L5-S1, and more prominent right lateral
bulging was seen at L4-5 with mild posterior displacement of the L4 nerve root sleeve lateral to
the neural foramen on the right. Dr. Timm also read a thoracic MRI scan. She provided an
impression of intervertebral disc degeneration and bulging from T5-6 through T8-9 with moderate
to marked mass effect on the anterior thecal sac at these levels, posterior decompression had been
performed at T6-7. Dr. Timm further provided an impression of focal cystic encephalomalacia in
the spinal cord at T6-7, facet and ligamentum flavum hypertrophy causes mass effect on the thecal
sac posteriorly at T4-5 and T5-6 and primarily on the right at T9-10 and on the left at T10-11.
Minimal posterior element hypertrophy was seen at T7-8 and T8-9. However, prominent posterior

4

bulging and relatively prominent posterior epidural fat were seen with attenuation of CSF around
the spinal cord and complete effacement of CSF and posterior to the cord at T7-8. Slight cord
compression was suspected at this level. Dr. Timm related that higher resolution imaging with
high field strength magnet or myelogram CT scan would better define the margins of the spinal
cord at this level, if indicated.
By decision dated March 21, 2017, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that she had an injury
and/or medical condition causally related to accepted employment factors.
On May 23, 2017 appellant requested reconsideration.
February 14, 2017 progress note.

She resubmitted Dr. Lo’s

By decision dated August 21, 2017, OWCP denied modification of its March 21, 2017
decision finding that the medical evidence submitted was insufficient to establish causal
relationship between appellant’s diagnosed back condition and the accepted factors of her federal
employment.
OWCP subsequently received progress notes dated January 8 and 25, and February 8, 2018
by Dr. Jerry M. Keepers, an anesthesiologist. The progress notes related appellant’s work duties
and medical, social, and family history, and examination findings. Dr. Keepers diagnosed
displacement of thoracic and lumbar intervertebral discs, chronic pain syndrome, chronic
postsurgical pain, thoracic and lumbar radiculopathy, thoracic spine pain, thoracic or lumbosacral
neuritis or radiculitis, unspeciﬁed, and backache.
On March 21, 2018 appellant requested reconsideration of OWCP’s August 21, 2017
decision and submitted additional factual evidence. She provided a narrative statement dated
January 8, 2018 in which she again described her rural carrier duties.
By decision dated March 26, 2018, OWCP denied modification of its March 21, 2018
decision, finding that Dr. Keepers had failed to provide a rationalized opinion explaining how the
diagnosed conditions were caused or aggravated by the accepted factors of appellant’s federal
employment.
Appellant requested reconsideration on May 8, 2018. She submitted a January 8, 2018
letter from Dr. Keepers. Dr. Keepers again related appellant’s rural carrier duties. He noted that
an MRI scan revealed evidence of a compromise of the thoracic spinal canal at multiple levels.
There was also a severe compromise of the spinal canal in the lumbar region at L3-4, L4-5, and
L5-S1. Dr. Keepers indicated that appellant had thoracic surgery several months later and lumber
surgery over a year later, but she continued to have signiﬁcant thoracic and low back pain. He
maintained that, at this point, she had failed surgical syndrome of the thoracic and lumbar areas.
Appellant also developed chronic pain syndrome. Dr. Keepers noted that she reported her pain as
10 out of 10 on a visual analogue scale. He opined that appellant sustained an injury in the
performance of her duties as a rural mail carrier. Dr. Keepers maintained that her diagnosis of a
thoracic/lumbar injury was due to repetitive pushing/pulling of equipment, bending, stooping,
lifting, and reaching above her shoulders.

5

OWCP subsequently received progress/procedure notes dated March 19, April 16, and
May 16, 2018 from Dr. Keepers. Dr. Keepers again examined appellant and reiterated his prior
diagnoses. He also diagnosed neuritis and/or radiculitis due to displacement of lumbar
intervertebral disc. Dr. Keepers again noted his opinion that appellant’s diagnosed conditions were
work related.
By decision dated May 23, 2018, OWCP denied modification of its March 26, 2018
decision. It again found that Dr. Keepers had failed to provide a rationalized opinion on causal
relationship between appellant’s diagnosed conditions and accepted factors of her federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 FECA,3 that an injury was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;7 and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

6

medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
OWCP accepted as factual that appellant engaged in repetitive activities in her employment
duties as a rural carrier. The issue, therefore, is whether appellant submitted sufficient medical
evidence to establish that the accepted employment exposure caused or aggravated a back
condition.
Dr. Keepers’ January 8, 2018 report and March 19, April 16, and May 16, 2018
progress/procedure notes related a description of appellant’s accepted repetitive rural carrier duties
and discussed examination findings. He diagnosed displacement of thoracic and lumbar
intervertebral discs, chronic pain syndrome, chronic postsurgical pain, thoracic and lumbar
radiculopathy, thoracic spine pain, thoracic or lumbosacral neuritis or radiculitis, unspeciﬁed,
backache, and neuritis and/or radiculitis due to displacement of lumbar intervertebral disc.
Dr. Keepers opined that appellant’s diagnosed conditions were caused by her repetitive work
duties. Although he provided an opinion on causal relationship, the Board finds that he did not
provide medical rationale to support his opinion. The Board has found that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.10 Dr. Keepers did not explain how
the accepted employment factors caused or aggravated appellant’s diagnosed thoracic and lumbar
conditions. The Board finds that the lack of medical rationale diminishes the probative value of
Dr. Keepers’ opinion.11 Other reports by him did not offer a medical opinion addressing whether
the diagnosed thoracic and lumbar conditions were caused or aggravated by the established
employment factors. Medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.12
Likewise, Dr. Yu’s reports dated February 2 and April 6, 2016 and Dr. Lo’s progress notes
dated July 19, 2016 through February 14, 2017 also fail to contain an opinion on the cause of
appellant’s diagnosed lumbar and thoracic conditions. The Board finds, therefore, that these
reports and progress notes are insufficient to establish her claim.13

9

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

10

See S.M., Docket No. 16-1312 (issued December 7, 2016); S.E., Docket No. 08-2214 (issued May 6, 2009); T.M.,
Docket No. 08-0075 (issued February 6, 2009).
11

See S.M., id.; Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical
report providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
12

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

13

Id.

7

The reports dated December 8, 2015 through December 29, 2016 by Drs. Cherewaty, Diaz,
Matherne, Jacobson, Sayyed, Yu, and Timm interpreted diagnostic findings and the laboratory
report dated February 10, 2016 revealed blood test results. The Board has held that reports of
diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between appellant’s employment duties and a diagnosed condition.14
The various reports dated March 22 through October 10, 2016 by Dr. Singleton and
Dr. Musa addressed appellant’s medical history, including receiving a lumbar epidural steroid
injection, but failed to provide a firm diagnosis of a particular medical condition, history of injury,
or offer an opinion as to whether the accepted employment factors caused or aggravated her
conditions.15
The progress notes and report from Ms. Reed, a nurse practitioner, and appellant’s physical
therapist have no probative medical value. Neither nurse practitioners nor physical therapists are
considered physicians as defined under FECA and, therefore, these opinions are insufficient to
establish the claim.16
As appellant has not submitted rationalized medical evidence to support her claim that her
back condition was caused by factors of her federal employment, she has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.

14

See L.M., Docket No. 18-0473 (issued October 22, 2018); R.T., Docket No. 17-2019 (issued August 24, 2018).

15

See supra note 12.

16

See David P. Sawchuk, 57 ECAB 316, 320 n. 11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). S.S., Docket No. 18-0950 (issued
October 23, 2018) (physical therapists are not considered physicians under FECA); S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).

8

ORDER
IT IS HEREBY ORDERED THAT the May 23 and March 26, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pawnee, IL, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-502
Issued: June 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 12, 2008 appellant filed a timely appeal from a September 15, 2008
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Because more than one year has elapsed from the most recent merit decision
dated August 30, 2007 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On April 18, 2006 appellant, then a 43-year-old rural mail carrier, sustained a
sprain/strain of the right shoulder and arm when his vehicle hit an obstruction in the road and
went into a ditch. On May 2, 2006 he underwent surgical repair of a right distal biceps tendon
tear performed by Dr. Ronald R. Romanelli, an attending Board-certified orthopedic surgeon.

On February 24, 2007 appellant filed a claim for a schedule award. His physician,
Dr. Romanelli, did not provide an impairment rating based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). The Office
referred appellant to Dr. Richard F. Howard, an osteopathic physician Board-certified in
orthopedic surgery, for a physical examination and impairment rating of appellant’s right upper
extremity. In an August 2, 2007 report, Dr. Howard reviewed appellant’s medical history and
provided findings on physical examination. He determined that appellant had no impairment of
his right upper extremity causally related to his accepted right distal biceps tendon tear. In an
August 15, 2007 report, Dr. Robert W. Wysocki, an orthopedic surgeon and an Office medical
adviser, stated that the medical evidence established that appellant had no impairment of his right
upper extremity causally related to his accepted right distal biceps tendon tear.1
By decision dated August 30, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not establish that he had any impairment
causally related to his accepted right upper extremity condition.
On August 29, 2008 appellant requested reconsideration and submitted medical reports
from Dr. Romanelli previously submitted. He argued that the Office should accept additional
medical conditions as causally related to the April 18, 2006 employment injury. Appellant
expressed his reasons for disagreeing with Dr. Howard’s impairment rating.
By decision dated September 15, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was not sufficient to warrant further merit
review of his claim.2
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5

1

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
2

Subsequent to the September 15, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision.
See 20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8128(a).

5

Annette Louise, 54 ECAB 783, 789-90 (2003).

2

To require the Office to reopen a case for merit review under section 8128(a) of the Act,6
the Office’s regulations provide that the evidence or argument submitted by a claimant must
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.8 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
On August 29, 2008 appellant requested reconsideration of the August 30, 2007 merit
decision denying his claim for a schedule award. He submitted medical reports from
Dr. Romanelli previously of record. Because these reports were previously of record they do not
constitute new and relevant pertinent evidence not previously considered by the Office.
Appellant argued that the Office should accept additional medical conditions as causally related
to the April 18, 2006 employment injury. He expressed his reasons for disagreeing with
Dr. Howard’s impairment rating. However, the Board notes that lay individuals are not
competent to render a medical opinion.10 Therefore, Dr. Howard’s opinions regarding the
medical evidence does not constitute new and relevant pertinent evidence not previously
considered by the Office. Because appellant did not submit evidence or argument that showed
that the Office erroneously applied or interpreted a specific point of law, advanced a relevant
legal argument not previously considered or constituted relevant and pertinent new evidence not
previously considered by the Office. The Office properly denied his request for reconsideration.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

6

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

10

See Robert J. Krstyen, 44 ECAB 227 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 15, 2008 is affirmed.
Issued: June 4, 2009
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
U.S. POSTAL SERVICE, HENRY W.
WHEELER POST OFFICE, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 19-1530
Issued: June 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2019 appellant, through counsel, filed a timely appeal from a June 17, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 12
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On February 22, 2012 appellant, then a 54-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 21, 2012 he stubbed his right great toe and jammed
his right shoulder when closing a cargo door, while in the performance of duty. OWCP accepted
the claim for right shoulder strain, a right shoulder contusion, and a resolved right great toe
contusion. It subsequently expanded acceptance of the claim to include a right rotator cuff tear
and right biceps tenodesis.3 Appellant underwent OWCP-authorized right shoulder surgeries on
August 6, 2012, February 13, 2013, and January 14, 2016.
By letter dated August 26, 2016, Dr. Fallon Maylack, a Board-certified orthopedic surgeon,
advised that appellant had reached maximum medical improvement (MMI).
On September 26, 2016 appellant filed a claim for a schedule award (Form CA-7).
By letter dated September 30, 2016, OWCP informed appellant that it would not take action
on his schedule award claim as it did not appear that he had reached MMI, noting that he had
undergone a right rotator cuff repair on January 4, 2016 and was participating in physical therapy
as recently as August 9, 2016. It advised that if his physician believed he was currently at MMI,
he should submit a detailed medical report providing rationale for this opinion.
In an October 12, 2016 permanent impairment evaluation, Dr. Neil Allen, a Board-certified
neurologist and internist, diagnosed right shoulder sprain, a right shoulder contusion, right rotator
cuff sprain, and right bicipital tenosynovitis. He described appellant’s February 21, 2012
employment injury and noted that he had undergone three right shoulder surgical procedures,
including rotator cuff repairs. Dr. Allen determined that he had reached MMI.
On examination of the right shoulder, Dr. Allen observed guarding, tenderness to palpation,
moderate crepitus, and 4/5 strength in the deltoid. He obtained three range of motion (ROM)
measurements for the right shoulder with the highest as follows: 160 degrees of flexion, 50 degrees
of extension, 125 degrees of abduction, 40 degrees of adduction, 40 degrees of internal rotation,
and 80 degrees of external rotation. Dr. Allen noted that an x-ray taken on July 5, 2012 revealed
moderate degenerative changes of the acromioclavicular joint and mild narrowing of the
subacromial space, while a magnetic resonance imaging (MRI) scan taken on December 13, 2012
demonstrated large, full-thickness tears present in the supraspinatus, infraspinatus, and
subscapularis tendons, a complete tear of the biceps tendon, and degeneration of the superior
labrum.

3
OWCP accepted that appellant sustained low back strain in an August 29, 2016 motor vehicle accident, assigned
OWCP File No. xxxxxx703.

2

Referencing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Allen calculated the extent of
appellant’s permanent impairment of the right upper extremity using the diagnosis-based
impairment (DBI) methodology. Referring to the shoulder regional grid, Table 15-5,5 Dr. Allen
identified the diagnosis as a full-thickness rotator cuff tear with a class of diagnosis (CDX) of 1
and a default value of five percent. Referring to Table 15-7 and Table 15-8,6 he applied a grade
modifier for functional history (GMFH) of two, a grade modifier for physical examination
(GMPE) of two, and the grade modifier for clinical studies (GMCS) of four. Applying the net
adjustment formula changed appellant’s default grade C diagnosis of five percent permanent
impairment to a grade E diagnosis, resulting in a final right upper extremity permanent impairment
of seven percent.
In a September 12, 2017 report, Dr. David H. Garelick, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), reviewed the medical evidence of record and
determined that appellant had reached MMI on October 12, 2016, the date of Dr. Allen’s
impairment rating. He found that the maximum award for a rotator cuff tear with residual loss
using the DBI methodology under the A.M.A., Guides was seven percent of the right upper
extremity.7 Dr. Garelick concluded that the ROM methodology should be used because it provided
the higher impairment rating. He utilized Dr. Allen’s ROM measurements and found that,
according to Table 15-34 on page 475 of the A.M.A., Guides, 160 degrees flexion yielded three
percent permanent impairment, 40 degrees extension yielded one percent permanent impairment,
125 degrees abduction yielded three percent impairment, 40 degrees internal rotation constituted
four percent permanent impairment, and 80 degrees external rotation and 40 degrees adduction
yielded no impairment. Dr. Garelick added the impairments due to loss of ROM to find 11 percent
permanent impairment. He applied a GMFH of two, to find a total right upper extremity
impairment of 12 percent using Table 15-35 and Table 15-36 on page 477.
By decision dated August 30, 2018, OWCP granted appellant a schedule award for 12
percent permanent impairment of the right arm. The period of the award ran for 37.44 weeks from
October 12, 2016 through July 1, 2017.
On September 17, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. The telephonic hearing was held on
February 4, 2019.
By decision dated March 15, 2019, OWCP’s hearing representative affirmed the
August 30, 2018 decision. He found that the medical evidence of record established that appellant
had no more than 12 percent permanent impairment of the right upper extremity.

4

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

5

Id. at 403.

6

Id. at 406 and 408, respectively.

7

Supra note 5.

3

On March 28, 2019 appellant, through counsel, requested reconsideration.
On May 1, 2017 Dr. Maylack noted that he had treated appellant after an employmentrelated injury to his right shoulder and advised that he had undergone rotator cuff repair surgery
on January 14, 2016 without complication. He related that on April 3, 2017 he had measured
“good passive motion of the right shoulder with only loss of extremes of internal (90 degrees) and
external rotation (110 degrees).” Dr. Maylack further indicated that appellant had excellent active
ROM with biceps muscle weakness and weakness in resisted abduction and forward elevation. He
opined that, based on his review of the sixth edition A.M.A., Guides, appellant had 20 percent
permanent impairment of the right shoulder due to his injury and subsequent surgery.
In an April 17, 2019 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA, reviewed Dr. Maylack’s May 1, 2017 report along with the medical evidence
of record. He advised that Dr. Maylack’s findings were insufficient to support a rating using the
DBI methodology as he failed to reference any tables or otherwise explain how he calculated the
impairment using the A.M.A., Guides. Dr. Katz further noted that his finding of 20 percent
impairment exceeded any “plausible DBI key factor values of impairment under Table 15-5….”
He found that Dr. Maylack had failed to measure ROM three times or provide a complete arc of
motion, and that his opinion was thus insufficient to support a rating based on loss of ROM.
Dr. Katz agreed with Dr. Garelick’s prior finding that appellant had 12 percent permanent
impairment using the ROM methodology.
By decision dated June 17, 2019, OWCP denied modification of the March 15, 2019
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA8 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.9 However, FECA 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 to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be 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.10 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).11

8

Supra note 2.

9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10
20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).

4

In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).12 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.14 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.15 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.16
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.17 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the Guides
allow for the use of both the DBI and ROM methods to calculate an impairment
rating for the diagnosis in question, the method producing the higher rating should
be used.”18 (Emphasis in the original.)
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”19

12

A.M.A., Guides 383-492.

13

Id. at 411.

14

Id. at 461.

15

Id. at 473.

16

Id. at 474.

17

FECA Bulletin No. 17-06 (May 8, 2017).

18

Id.

19
Id.; see also V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued
July 26, 2018).

5

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.20
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 12
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
In an October 12, 2016 permanent impairment evaluation, Dr. Allen diagnosed a right
shoulder sprain, right shoulder contusion, right rotator cuff sprain, and right bicipital tenosynovitis.
He provided ROM findings of the right upper extremity based on three measurements as follows:
160 degrees of flexion, 50 degrees of extension, 125 degrees of abduction, 40 degrees of adduction,
40 degrees of internal rotation, and 80 degrees of external rotation. Using the DBI methodology,
Dr. Allen calculated a final right upper extremity impairment of seven percent due to appellant’s
full-thickness rotator cuff tear under Table 15-5 on page 403, the maximum allowed for that
diagnosis.
In a September 12, 2017 report, Dr. Garelick, serving as DMA, reviewed the medical
evidence of record and noted that under the DBI methodology for a rotator cuff tear with residual
loss, the most that appellant could be awarded was seven percent permanent impairment of the
right upper extremity. He found that his impairment should be calculated using the ROM method
as it provided the higher impairment rating. Dr. Garelick determined that, according to Table 1534 on page 475 of the A.M.A., Guides, 160 degrees flexion yielded three percent permanent
impairment, 40 degrees extension yielded one percent permanent impairment, 125 degrees
abduction yielded three percent impairment, 40 degrees internal rotation yielded four percent
permanent impairment, and 80 degrees external rotation and 40 degrees adduction yielded no
impairment. He added the impairment ratings to find 11 percent permanent impairment.
Dr. Garelick applied a GMFH of two to the 11 percent impairment, which yielded a total right
upper extremity impairment of 12 percent using Table 15-35 and Table 15-36 on page 477.
On May 1, 2017 Dr. Maylack found that appellant had good passive ROM of the right
shoulder and measured internal rotation of 90 degrees and external rotation of 110 degrees. He
further found excellent active ROM. Dr. Maylack advised that appellant had weakness in resisted
abduction, forward elevation, and of the biceps muscle. He opined that he had 20 percent
permanent impairment of the right shoulder. Dr. Maylack, however, failed to explain how he
arrived at his impairment rating in accordance with the relevant standards of the A.M.A., Guides.21
As he did not refer to tables or charts in the A.M.A., Guides in support of his determination, his

20

See supra note 11 at Chapter 2.808.6(f) (March 2017).

21

B.B., Docket No. 18-0782 (issued January 11, 2019); James R. Hill, Sr., 57 ECAB 583 (2006).

6

report lacks the probative value necessary to determine appellant’s permanent impairment for
schedule award purposes.22
In an April 17, 2019 report, Dr. Katz, serving as DMA, agreed with Dr. Garelick’s finding
that appellant had 12 percent permanent impairment using the ROM methodology. He noted that
Dr. Garelick correctly observed that Dr. Allen had provided probative ROM measurements, and
appropriately calculated an impairment rating using Table 15-34 of 12 percent right upper
extremity impairment. Dr. Katz asserted that Dr. Maylack’s May 1, 2017 letter could not be
accepted as probative evidence as he failed to explain his calculations, obtain three ROM
measurements, or provide complete ROM measurements. The Board finds that Drs. Garelick and
Katz, serving as DMAs, properly discussed how they arrived at their shared conclusion that
appellant sustained 12 percent right upper extremity permanent impairment under the A.M.A.,
Guides.23 As the record contains no other probative, rationalized medical opinion which supports
that he had greater impairment of the right upper extremity based upon the A.M.A., Guides, he has
not met his burden of proof to establish greater than 12 percent permanent impairment of the right
upper extremity for which he received schedule award compensation.24
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 12
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.

22

B.B., id.

23

See O.F., Docket No. 19-0986 (issued February 12, 2020); K.J., Docket No. 19-0901 (issued December 6, 2019).

24

See J.H., Docket No. 18-1207 (issued June 20, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 26, 2020
Washington, DC

Alec J. Koromilas, 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
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel E. Broussard, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1166
Issued: December 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2014 appellant, through her attorney, filed a timely appeal from a
January 28, 2014 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 met her burden of proof to modify her wage-earning
capacity determination.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, a 50-year-old nurse, filed a
traumatic injury claim on September 4, 2003 for an incident that occurred on August 21, 2003
when she was lifting a patient. OWCP accepted the claim for cervical sprain. Appellant stopped
1

5 U.S.C. § 8101 et seq.

working on August 21, 2003 and was placed on the periodic rolls. OWCP later accepted the
additional conditions of degeneration of cervical intervertebral disc, cervical spondylosis without
myelopathy, lumbar sprain, degeneration of lumbar or lumbosacral intervertebral disc and
lumbosacral neuritis or radiculitis.2
By letter dated September 29, 2009, appellant was notified by the employing
establishment that OWCP had found her medically capable of working in a modified, full-time
capacity. It offered her the position of program support assistant with an availability date of
November 8, 2009. On October 29, 2009 appellant accepted the position which was defined as
basically sedentary, but required a lot of walking. OWCP advised her that the position identified
by the employing establishment was suitable and met her physical restrictions. By decision
dated January 20, 2010, OWCP reduced appellant’s compensation benefits based upon her actual
earnings as a program support assistant. It found that the position fairly and reasonably
represented her wage-earning capacity. OWCP determined that, as appellant had demonstrated
the ability to perform the duties of this job for two months or more, the position was suitable to
her partially disabled condition.
On April 20, 2010 appellant filed a claim for recurrence of disability, alleging that she
was totally disabled as of April 9, 2010. She referred to her condition not as a recurrence but as
continued and increased pain from her original injury, with decreased function and motion.
In an April 5, 2010 performance review, appellant’s supervisor, Fay C. Thrasher, Ph.D,
stated that appellant had both physical and cognitive difficulties, which interfered with her ability
to successfully perform the functions of her position. Ms. Thrasher noted that appellant had a
hard time typing and focusing due to the numerous medications she was required to take for
pain.
Dr. DeVinder Verma, a specialist in internal medicine, provided in an April 9, 2010 note
that “[d]ue to [appellant’s] job-related injury and increase pain, I feel [appellant] needs to be off
work from 4-7-10 to further testing completed.”
Appellant also submitted an April 19, 2010 report from Dr. John M. Burdine, Boardcertified in pain medicine, who diagnosed cervical syndrome; cervico-brachial neuralgia; facet
arthropathy of the spine; lumbar spondylosis and lumbosacral radiculitis. Dr. Burdine
recommended that appellant undergo a functional capacity examination and outline temporary
work restrictions of no lifting, bending, prolonged activities, overhead activities; he also
recommended that she take frequent breaks. Dr. Burdine stated that without surgery appellant’s
prognosis was poor for recovery. There is no functional capacity evaluation from that time
period in the record.
OWCP requested additional information from appellant regarding her recurrence claim
on June 1, 2010. Appellant contacted OWCP on June 14, 2010 and requested that her claim be
expanded to include a shoulder condition. OWCP referred the case to its medical adviser to
2

In a decision dated June 29, 2005, OWCP terminated appellant’s wage-loss and schedule award benefits,
because she had refused an offer of suitable work. By decision dated May 21, 2007, an OWCP hearing
representative affirmed the June 29, 2005 decision. In an August 26, 2008 decision, the Board reversed the May 21,
2007 suitable work termination decision as OWCP had failed to consider all of the medical evidence of record.
OWCP reinstated appellant’s compensation benefits.

2

review the case to determine whether the left shoulder should be included as consequential to the
original injury.
In a July 6, 2010 report, the medical adviser reviewed the medical record and opined that
the left shoulder condition should be considered consequential to the original injury of
August 21, 2003. On July 9, 2010 OWCP accepted “other affections of the shoulder region” and
authorized treatment of the left shoulder as consequential to the original August 21, 2003 injury.
By decision dated July 19, 2010, OWCP denied modification of the January 20, 2010
wage-earning capacity decision. It adjudicated the recurrence claim as a request to modify the
loss of wage-earning capacity (LWEC) determination. OWCP found that the medical evidence
failed to establish a change in the nature and extent of appellant’s injury-related condition, that
she had been retrained or vocationally rehabilitated or that the original determination was
erroneous. It noted that the consequential shoulder condition had been accepted, reviewed the
additional evidence, but determined that it was not sufficient to modify the prior wage-earning
capacity determination.
By decision dated October 4, 2011,3 the Board set aside OWCP’s July 19, 2010 decision.
The Board noted that the medical adviser had found the left shoulder condition consequential to
the original August 21, 2003 work injury, but noted that OWCP had failed to seek consideration
as to whether appellant’s condition had worsened due to her shoulder or other conditions. The
Board found that without such information an informed decision could not be reached on the
wage-earning capacity.
By decision dated December 5, 2011, OWCP denied modification of its January 20, 2011
wage-earning capacity decision. It claimed that appellant had filed a recurrence due to her
lumbar condition. OWCP acknowledged that the medical evidence generally supported that her
lumbar condition may have worsened, but it found no evidence supporting that the lumbar
condition had worsened to the point that she could no longer work in the modified position.
Accordingly it denied appellant’s request to modify the January 20, 2010 wage-earning capacity
determination.
Appellant submitted additional medical reports from Dr. Burdine.
In his February 13, 2012 report, Dr. Burdine stated that there had been no change in
appellant’s level of pain since her last visit. He advised that she was scheduled for surgery with
Dr. Gerard L. Murtagh, a Board-certified orthopedic surgeon, but cancelled the surgery because
of her husband’s heart condition. Dr. Burdine prescribed continued home exercises and
medication as directed.
Dr. Burdine advised in his April 18, 2012 report that appellant’s overwhelming problem
was left shoulder pain. He reiterated that she had not been able to undergo surgery on the
shoulder and continued to recommend conservative treatment.
In his July 11, 2012 report, Dr. Burdine reiterated his previous findings and conclusions.
He noted that appellant had continued left shoulder pain and opined that her neck was not “a
3

Docket No. 11-681 (issued October 4, 2011).

3

fixable issue.” Appellant had bone spurs and herniations in her neck which were not necessarily
repairable.
In a July 13, 2012 report, Dr. Kyle F. Dickson, Board-certified in orthopedic surgery,
opined that appellant had a history of left shoulder pain since the August 21, 2003 work injury
and advised that she had constant pain, which was occasionally severe. He recommended that
she have an “adjustment” or she would become progressively worse as her body developed a
tolerance to pain medication.
Dr. Burdine reiterated his previous findings and conclusions in his October 3 and
December 20, 2012 reports.
On December 13, 2012 OWCP received a request for reconsideration from appellant,
through her counsel, requesting reconsideration of OWCP’s December 5, 2011 decision.
Counsel contended that the medical evidence showed that there had been a material change in
the nature and extent of appellant’s injury-related condition of her back, her neck, as well as her
shoulder and that the original determination was, in fact, erroneous. Counsel argued that, after
working for only two months in the restricted position, which was the basis for the wage-earning
capacity decision, appellant stopped working and only two months later her shoulder condition
was accepted as consequential to her original injury. He contends that the shoulder condition,
coupled with her other problems in her neck and back, interfered with her ability to perform in
the restricted position warranting a modification of her wage-earning capacity.4
In a report dated January 28, 2013, Dr. Murtagh, an orthopedic surgeon, advised that
appellant had ongoing issues with her left shoulder. He stated that she was seen and treated in
August 2011 for rotator cuff tendinitis, acromioclavicular (AC) joint arthritis impingement and
partial thickness rotator cuff tear left shoulder. Dr. Murtagh advised that appellant’s proposed
left shoulder surgery was delayed due to her need to care for her husband’s heart condition.
Appellant related that she continued to have pain, problems, difficulties, tightness, stiffness and
discomfort in her neck in addition to pain in her left shoulder, which radiated from her shoulder
into her upper arm. Dr. Murtagh advised that x-rays of her left shoulder showed sclerotic
changes about the AC joint; she had changes about the proximal humerus, which might indicate
a previous injury and late effects with greater tuberosity involvement. He also noted some slight
early degenerative intraarticular changes.
Dr. Murtagh stated that appellant had chronic symptoms of left shoulder pain with
attendant problems and difficulties which continued to worsen. He expressed concern over the
persistence and worsening of symptoms. Dr. Murtagh stated that appellant was scheduled to
have a magnetic resonance imaging (MRI) scan of the left shoulder to assess the severity of her
condition. He asserted that she was a candidate for arthroscopic evaluation, decompression,
4

By decision dated February 1, 2013, OWCP denied appellant’s request for reconsideration without a merit
review, finding that she had not timely requested reconsideration and had failed to submit factual or medical
evidence sufficient to establish clear evidence of error. It did not consider or evaluate the medical evidence she
submitted. In a January 10, 2014 decision, (Docket No. 13-1832 (issued January 10, 2014)), the Board set aside
OWCP’s nonmerit decision, finding that appellant requested modification of the January 20, 2010 wage-earning
capacity determination in her December 5, 2013 letter. The Board remanded to the district office for a merit review
on that issue and instructed OWCP to adjudicate her request for modification of the wage-earning capacity
determination and issue an appropriate decision in the case.

4

debridement, distal clavicle excision and would be considered for debridement versus rotator
cuff repair, depending on her findings.
In a March 11, 2013 report, Dr. Burdine advised that appellant’s proposed MRI scan had
been rescheduled because she had a previous bone stimulator present in the cervical spine. He
advised that she had undergone a very extensive but failed fusion in her neck. Dr. Burdine
opined that appellant’s neck was a very delicate issue and that he did not believe that she would
be returning to work due to her neck condition, in addition to all the other problems that she was
experiencing.
In a report dated June 10, 2013, Dr. Burdine stated that appellant had a new onset of left
sacroiliitis. Appellant also complained of significant back pain and neck pain.
By decision dated January 28, 2014, OWCP denied modification of the January 20, 2010
wage-earning capacity determination. It noted that the original claim was filed due to worsening
of appellant’s lumbar condition. OWCP found the evidence insufficient to modify the
December 5, 2011 decision because the work stoppage on April 9, 2010 was not due to the
consequential left shoulder injury and the evidence did not support a worsening of the lumbar
condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP procedure manual and Board precedent
provide that, if a formal loss of wage-earning capacity decision has been issued, the rating should
be left in place unless the claimant requests resumption of compensation for total wage loss.6
The procedure manual and Board precedent further provide that, under these circumstances, the
claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity decision.7
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.8 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.9

5

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.2(b). (June 2013). See Mary E. Marshall, 56 ECAB 420 (2005).
7

Id. See also Harley Sims, Jr., 56 ECAB 320 (2005).

8

Tamra McCauley, 51 ECAB 375 (2000).

9

Linda Thompson, 51 ECAB 694 (2000).

5

Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.10
ANALYSIS
The Board finds that the case is not in posture for decision.
On January 20, 2010 OWCP reduced appellant’s compensation benefits based upon a
finding that her actual earnings as a program support assistant represented her wage-earning
capacity. Appellant stopped work on April 9, 2010 and alleged total disability. Based upon an
OWCP medical adviser’s report dated July 6, 2010, OWCP accepted that her left shoulder
condition was consequential to the August 21, 2003 injury and authorized treatment. On July 19,
2010 OWCP initially denied modification of the January 20, 2010 determination, however, the
Board remanded the case for clarification as to whether appellant’s condition had materially
worsened due to the shoulder or other conditions, sufficient to render her unable to perform in
the restricted position.
Following further review of the medical evidence in the record, OWCP, by decision
dated January 28, 2014, decision denied appellant’s claim finding that the April 9, 2010 work
stoppage was not due to the consequential shoulder injury nor did the evidence establish that the
lumbar condition had worsened to the extent that she was no longer able to perform her limitedduty position.
The Board finds that OWCP has failed to adequately review the medical evidence in the
record to determine whether appellant had established a worsening of her accepted conditions
rendering her incapable of working in her limited-duty position. OWCP failed to adequately
consider all the accepted conditions. It noted only the shoulder and lumbar conditions. Further,
OWCP has not provided an adequate decision with findings of fact and statement of reasons as to
whether appellant has provided sufficient evidence to support her claim of modification of her
wage-earning capacity. It failed to discuss or analyze the numerous medical reports from 2010
through 2013 to adequately determine whether appellant’s accepted left shoulder, back and neck
conditions had materially worsened such that she would be unable to continue to perform in her
wage-earning capacity position.
Section 8124(a) of FECA provides: “[OWCP] shall determine and make a finding of fact
and make an award for or against payment of compensation….”11 Section 10.126 of Title 20 of
the Code of Federal Regulations provide: “The decision shall contain findings of fact and a
statement of reasons.” The Board has held that the reasoning behind OWCP’s evaluation should
be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.12

10

20 C.F.R. § 10.126. Supra note 6 at Disallowances, Chapter 2.1400.5 (February 2013) (all decisions should
contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).
11

Supra note 1 at 8124(a).

12

L.C., Docket No. 12-978 (issued October 26, 2012); L.M., Docket No. 13-2017 (issued February 21, 2014);
D.E., Docket No. 13-1327 (issued January 8, 2014); supra note 10.

6

The case must be returned to OWCP for a proper decision to include findings of fact and
a clear and precise statement including all the accepted conditions as to whether appellant has
met her burden of proof under the customary standards to establish modification of her wageearning capacity determination. Following this and such further development as OWCP deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded in accordance with this decision.
Issued: December 1, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7