United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlingame, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 14-2013
Issued: July 7, 2015

Case Submitted on the Record

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

JURISDICTION
On September 18, 2014 appellant, through her representative, filed a timely appeal from a
May 14, 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 established that her wage-earning capacity should be
modified.
FACTUAL HISTORY
On August 17, 2004 appellant, then a 33-year-old letter carrier, filed an occupational
disease claim for his right forearm conditions which he alleged were the result of repetitively
sorting and delivering mail. OWCP accepted the claim for right forearm strain, right lateral
epicondylitis, right radial styloid tenosynovitis, and lesion of the right ulnar nerve. It paid
1

5 U.S.C. § 8101 et seq.

appellant benefits, including the costs associated with a March 24, 2005 right elbow surgery.
Appellant returned to full-time modified duty on November 1, 2006.
In duty status reports dated January 22 and 30, 2007, Dr. R. Thomas Grotz, an orthopedic
surgeon, advised that appellant could work with restrictions of no more than four hours per day
of fine manipulation, simple grasping, reaching above the shoulders, operating machinery, and
driving vehicles, lifting/carrying, and pushing/pulling greater than 10 pounds. In a January 30,
2007 report, his medical assistant stated that appellant had not reached maximum medical
improvement and that they were waiting for authorization for right wrist surgical repair.
On March 12, 2007 appellant accepted a full-time modified city letter carrier position.
The position required her to deliver express mail 120 minutes, do redbook/carrier labels for 60
minutes, do collections/lobby director/passports for 120 minutes, and case mail/nixie mail for 4
hours per day. The physical requirements of the modified city letter carrier position included
ability to drive, write, read, and follow instructions, case mail on routes, and collect mail on
collections. The work hours were 7:30 a.m. to 4:00 p.m. with days off as Sunday/rotating and
the position had a salary of $45,963.00 per year.
On April 16, 2007 Dr. Grotz completed a duty status report. On this form appellant’s
supervisor confirmed the work requirements for a full-time, unmodified city carrier position. It
was specifically noted that the position required continuous lifting up to 35 pounds, and
intermittent lifting from 10 to 70 pounds. Dr. Grotz noted that appellant could not perform the
work requirements set forth by the supervisor on the form. He stated that she could only lift a
maximum of 10 pounds, and could do no continuous activity as she required a 10- to 15-minute
break every hour.
Dr. Grotz further found, in a July 9, 2007 report, that appellant had reached maximum
medical improvement with residual paresis and dysesthesias. He opined that she was unable to
perform her date-of-injury position, but fortunately she had entered the training program to
become a supervisor and would be able to manage those job tasks well. Dr. Grotz opined that
appellant was able to work 8 hours a day with no overhead reaching of the right arm and no more
than 30 minutes of casing or lifting objects weighing more than 15 pounds at a time.
By decision dated July 30, 2007, OWCP found the modified city carrier position which
appellant had performed since March 12, 2007 fairly and reasonably represented her wageearning capacity resulting in no loss in wage-earning capacity (LWEC).
In a report dated November 3, 2008, Dr. Joseph R. Meyers, a Board-certified orthopedic
surgeon, noted the history of injury and that appellant was able to return to work after her
surgical recovery and that she had been working in a modified-duty capacity as an acting
supervisor. Appellant advised Dr. Meyers that, when she returned to work, she was limited to
lifting 10 to 15 pounds and pushing and pulling 20 to 30 pounds and that her job entailed
instructing letter carriers, doing reports, talking to customers, and doing some computer work.2
Dr. Meyers indicated in his July 16, 2012 report and duty status report that appellant had
been working in a modified-duty capacity for eight hours a day, five days per week with no
2

After Dr. Grotz retired, OWCP authorized appellant to be treated by Dr. Meyers.

2

significant problems performing her work duties, taking care of the right elbow when lifting,
pushing, and pulling. He noted examination findings and stated that she was able to continue
working in a safe and effective manner.
In an October 1, 2012 report, Dr. Meyers advised that appellant could work full duty five
days per week with the following restrictions: she could not deliver regular mail which required
her to travel door to door while carrying heavy loads of mail as this would exacerbate her upper
extremity injuries; she could deliver express mail which required driving to specific homes as
this does not represent any excessive repetitive or strenuous activity; she could take mail to
carriers; she could case mail for only one hour per day; she could answer telephones; and she
could act as a lobby director.
In an October 3, 2012 report, Dr. Meyers noted examination findings of the right elbow,
which showed no tenderness along the course of the incision to palpation, no significant scarring
at the skin/subcutaneous level, no AP instability at the right elbow, no varus or valgus instability
at the right elbow, smooth range of motion of right elbow, with flexion to 135 degrees and
extension to zero, good upper extremity strength, and good motor and sensory reflexes. He
stated that appellant could continue working in a modified-duty level. In an October 3, 2012
CA-17 form, Dr. Meyers provided increased limits on appellant’s work activities.
Appellant filed Form CA-7, claims for compensation, for wage loss commencing
February 18, 2013. She also filed several CA-7 and CA-7a forms indicating wage loss from
October 16, 2012. The forms indicated that appellant had taken leave beginning October 16,
2012 as no work was available under her medical restrictions. The employing establishment
indicated that at that time she remained detailed as 204B (acting supervisor), that her medical
limitations had changed, and that work within her restrictions was no longer available as part of
the National Reassessment Process (NRP).
In a March 25, 2013 letter, OWCP advised Dr. Meyers that clarification on the change in
appellant’s restrictions was needed as his reports did not cite any objective evidence to support a
change in restrictions. It noted that medical evidence must clearly establish a change in objective
findings in order to support a change in restrictions and the medical evidence must also indicate,
with findings and medical rationale, how the accepted condition worsened. Dr. Meyers was
provided 30 days to submit the requested information.
Progress reports from Dr. Meyers dated April 22 and June 5, 2013 indicate that appellant
was able to work in a slightly modified-duty capacity and that there were no changes in her right
elbow symptoms and examination findings of the right upper extremity were unchanged from
prior examinations. Duty status reports dated April 22 and June 5, 2013, however, indicated an
increase in appellant’s restrictions. A May 10, 2013 offer of modified assignment was also
provided.
In a June 25, 2013 letter, OWCP advised appellant that her claim for wage-loss
compensation beginning October 16, 2012 was being treated as a request for modification of her
July 30, 2007 LWEC decision and informed her of the criteria necessary for modifying such
decision. Appellant was provided 30 days to submit evidence to support modification of the
LWEC determination.

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In a July 2, 2013 letter, appellant indicated that her work had been given to other limited
light-duty employees and, therefore, there was no work available within her restrictions.
Dr. Meyers noted, in a July 2, 2013 letter, that he had reviewed OWCP’s June 25, 2013
letter and noted that he had not received any communication from OWCP pertaining to
appellant’s work restrictions. Copies of his October 1 and 3, 2012 letters and Forms CA-17 were
provided.
In a July 22, 2013 letter, appellant’s representative argued that the July 30, 2007 LWEC
should be modified as it was based on makeshift or odd-lot work.
By decision dated August 27, 2013, OWCP found that appellant had not met her burden
of proof to modify the July 30, 2007 wage-earning capacity determination. It determined that the
March 12, 2007 modified job offer, upon which the LWEC was based, was not composed of
makeshift or odd-lot work as the job offer contained specific duties, physical requirements, a
work schedule, and was considered permanent with a specified salary. Appellant thus had not
established that the original wage-earning capacity determination was in error, there was no
evidence that she had been retrained or vocationally rehabilitated, and there was no probative
medical evidence showing the residuals of her accepted work injury had materially changed.
OWCP also determined that the evidence of record was consistent with the procedures outlined
in FECA Bulletin No. 09-05.
Appellant requested an oral hearing before an OWCP hearing representative, which was
held on February 27, 2014. She testified that, at the time she returned to full-time work, she was
performing the type of limited-duty job activities described in the rated job. Appellant advised
that she continued to work until about November 2012 when the employing establishment
advised they could not accommodate her limitations. No new evidence was submitted.
In a March 25, 2014 letter, the employing establishment disputed that appellant’s work
was given to other injured employees. It stated that she had been a 204B (supervisor in training)
for the last five years and when they got a regular supervisor, they did not need a 204B. Also,
the collections went back to the carriers on the route, not to injured carriers.
In a March 28, 2014 letter, appellant’s representative indicated that, although the
March 12, 2007 job offer represented appellant’s duties at work, Dr. Grotz was unaware that
appellant had been provided the March 12, 2007 job offer and Dr. Grotz and later Dr. Meyers, in
addition to the vocational rehabilitation counselor, understood that appellant was in training as a
240B (acting supervisor). He argued that the provisions of FECA Bulletin No. 09-05 should be
more specifically addressed.
By decision dated May 14, 2014, an OWCP hearing representative affirmed OWCP’s
August 27, 2013 decision.
On appeal appellant’s representative contends that OWCP failed to obtain any written
documentation from the employing establishment to confirm that the offered position upon
which the LWEC was based was an actual bona fide position at the time of rating and, therefore,
failed to fully follow the guidelines in FECA Bulletin No. 09-05.

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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. OWCP procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents her wage-earning capacity include the kind of
appointment, that is, whether the position is temporary, seasonal, or permanent and the tour of
duty, that is, whether it is part time or full time.3 Further, a makeshift or odd-lot position
designed for a claimant‘s particular needs will not be considered suitable.4
Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP procedures at Chapter 2.1501 contain
provisions regarding the modification of a formal loss of wage-earning capacity.6 The relevant
part provides that a formal loss of wage-earning capacity will be modified when: (1) the original
rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the
claimant has been vocationally rehabilitated.7
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.8
ANALYSIS
The Board finds that the May 14, 2014 decision is not in posture for decision as OWCP
failed to comply with the development requirements set forth in FECA Bulletin No. 09-05.
OWCP accepted that appellant sustained right forearm strain, right lateral epicondylitis,
right radial styloid tenosynovitis, and lesion of the right ulnar nerve. Appellant underwent a
March 24, 2005 right elbow surgery. On March 12, 2007 the employing establishment offered,
and appellant accepted, a full-time modified city letter carrier position. On July 30, 2007 OWCP
issued a formal wage-earning capacity decision, finding that appellant’s modified city letter
carrier position fairly and reasonably represented her wage-earning capacity.
The Board has previously noted that whether a position fairly and reasonably represents
one’s wage-earning capacity is based on a number of factors.9 While OWCP procedures outline
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Case/Disability Management, Chapter 2.815.5.c(1)
(June 2013).
4

Id. at Chapter 2.815.5.c(2)(a).

5

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

6

Supra note 3 at Modification of Loss of Wage-Earning Capacity, Chapter 2.1501 (June 2013).

7

Id. at Chapter 2.1501.3(a).

8

FECA Bulletin No. 09-05 (issued August 18, 2009)

9

M.N., Docket No. 11-1462 (issued February 1, 2012).

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various factors that focus on the type of appointment and whether it is part-time, temporary, or
seasonal work, any limited-duty assignment must be consistent with the injured employee’s thencurrent medical restrictions.10
The March 12, 2007 job offer required that appellant deliver express mail 120 minutes,
do redbook/carrier labels for 60 minutes, do collections/lobby director/passports for 120 minutes,
and case mail/nixie mail for 4 hours per day. Appellant was required to drive, write, read, follow
instructions, case mail on routes, and collect mail on collections. The duty status report that was
signed by Dr. Grotz on April 16, 2007, however, noted the full-time specific physical
requirements of the position. The supervisor noted that the position required continuous lifting
up to 35 pounds and intermittent lifting up to 70 pounds. Driving was also required up to eight
hours a day. Dr. Grotz completed this form noting that appellant could not perform the position
described as she could lift only a maximum of 10 pounds and required a 10- to 15-minute break
every hour. On July 9, 2007 he indicated that appellant had improved, but he also indicated that
appellant could not perform any overhead reaching with her right arm, no more than 30 minutes
of casing and no more than 15 pounds of lifting. Again, Dr. Grotz’s restrictions were
inconsistent with those set forth in the position description.
Furthermore, the record indicates that prior to the July 30, 2007 wage-earning capacity
determination appellant began training as a supervisor. It is not clear whether the modified
assignment was the position appellant worked as part of the training program to become a
supervisor. An LWEC determination is erroneous if it is based upon a position the employee no
longer holds.11
FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether
a modification of the LWEC decision is appropriate. FECA Bulletin No. 09-05 asks OWCP to
confirm that the file contains documentary evidence supporting that the position was an actual
bona fide position.12 It requires OWCP to review whether a current medical report supports
work-related disability and to further develop the evidence from both the claimant and the
employing establishment if the case lacks current medical evidence.13 FECA Bulletin No. 09-05
further states that OWCP, in an effort to proactively manage these types of cases, may undertake
further nonmedical development, such as requiring the employing establishment to address, in
writing, whether the position on which the LWEC determination was based was a bona fide
position at the time of the rating and to direct a review of its files for contemporaneous evidence
concerning the position.14
OWCP was required to inquire of the employing establishment, in writing, whether
appellant was employed in the modified city letter carrier position or whether she was in fact
10

Id.; see also E.C., 59 ECAB 401 (2008).

11

See C.H., Docket No. 11-1711 (issued February 15, 2012).

12

A position that is makeshift in nature is not appropriate for a loss of wage-earning capacity determination. See
Selden H. Swartz, 55 ECAB 272 (2004).
13

FECA Bulletin No. 09-05 §§ I.A.1-2.

14

Id. at § I.A.3; see also P.B., Docket No. 12-0799 (issued December 11, 2012).

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working in a makeshift supervisor in training position consistent with her medical restrictions.
Submissions by the employing establishment largely document that appellant worked in a
supervisor-in-training position for over five years. The record, therefore, is unclear as to whether
appellant was working in the position upon which her LWEC was determined. The Board
therefore remands the case for OWCP to follow the procedures set forth by FECA Bulletin
No. 09-05.15
CONCLUSION
The Board finds that this case is not in posture for decision.16
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of
Workers’ Compensation Programs is remanded for action consistent with this decision.
Issued: July 7, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

Supra note 6.

16

Due to the disposition of this case, the remainder of appellant’s arguments before OWCP and on appeal will not
be addressed.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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

Docket No. 07-819
Issued: March 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 5, 2007 appellant timely appealed the January 23, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied modification of a prior wage-earning
capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a basis for modification of the Office’s
September 15, 1997 wage-earning capacity determination.
FACTUAL HISTORY
Appellant, a 50-year-old former marine enforcement officer, sustained employmentrelated back injuries on December 4, 1994, June 11, 1995 and April 26, 1996. He initially
injured his back while traveling aboard a high-speed boat through rough seas in route to the
Bahamas. The June 11, 1995 injury was also attributed to rough sea conditions, which appellant

described as a “confused ‘chop’” due to heavy boating traffic. Appellant’s April 1996 injury
occurred when he slipped and fell on a boat ramp, landing on his buttock. His accepted
conditions include back contusion, lumbar sprain, aggravation of intervertebral disc disorder and
aggravation of displaced intervertebral lumbar disc.
Following his latest injury in 1996, appellant received permanent work restrictions that
effectively precluded him from resuming his regular duties as a marine enforcement officer.1 On
April 28, 1997 the employing establishment offered appellant a permanent position as an
evidence operations specialist (seizure and evidence custodian). Appellant’s physician approved
the job offer, which the Office found to be suitable. He returned to work June 30, 1997.2
On September 15, 1997 the Office issued a loss of wage-earning capacity determination.
The Office found that the actual earnings appellant received as an evidence technician beginning
June 30, 1997 fairly and reasonably represented his wage-earning capacity.
Appellant underwent Office-approved lumbar surgery on January 25, 2000. He received
appropriate wage-loss compensation for temporary total disability and ultimately returned to his
previous duties on June 26, 2000. Appellant later resigned his position with the employing
establishment to accept alternative employment as a federal air marshal effective April 7, 2002.
He worked as an air marshal for approximately eight months. From January 2003 through
March 2004 there was no reported history of employment. Beginning in April 2004, appellant
worked as a deputy sheriff with the Charlotte County Florida Sheriff’s Office. In
November 2004, appellant accepted employment as a police officer with Florida Atlantic
University. During his probationary period appellant was asked to resign, which he did effective
August 1, 2005.
On February 24, 2006 appellant filed a recurrence of disability (Form CA-2a). He
alleged that he sustained a recurrence of disability beginning August 1, 2005, causally related to
his April 26, 1996 employment injury. Appellant contended that he had been unable to return to
work since August 1, 2005 due to excessive pain in the upper and lower regions of his spine.
During May 2005, he began experiencing excessive pain while working. The low back pain he
currently experienced was the same type of pain he experienced after his original April 26, 1996
injury. Appellant also reported pain in the neck region, radiating into his right arm. He
attributed the neck and right arm pain to a severe cervical injury that reportedly occurred the
same time he injured his lower back in April 1996. According to appellant, the severe cervical
pain did not develop until 2005. He said he was unable to sit in a vehicle or chair for more than
two hours at a time due to excessive cervical and lumbar pain.
The medical evidence relevant to the claim included recent x-rays and magnetic
resonance imaging (MRI) scans of the cervical, thoracic and lumbar spines. Appellant also

1

Appellant was precluded from standing on boats in choppy waters, twisting with heavy objects, and subduing
perpetrators. He was also limited to lifting 50 pounds, which was later modified to 20 pounds.
2

Appellant earned less as an evidence operations specialist than he previously earned as a marine enforcement
officer. The Office, therefore, adjusted his wage-loss compensation to reflect his loss of wage-earning capacity.

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submitted various reports from his surgeon, Dr. Kenneth L. Jarolem.3 Beginning in May 2005
appellant was also treated by Dr. Anna Sottile, a Board-certified anesthesiologist specializing in
pain management.
On May 4, 2005 Dr. Jarolem saw appellant for complaints of radiating right-sided arm
pain down to the hand, as well as into the right intrascapular region. He noted that an April 19,
2005 thoracic MRI scan showed herniations at T8-9, T9-10 and T10-11. X-rays taken that day
showed mild spondylitic changes in the thoracic spine and degenerative changes at C5-6 and
C6-7. The lumbar spine x-ray showed a substantial fusion at L5-S1. Dr. Jarolem diagnosed
cervical radicular pain, thoracic disc herniations and a solid lumbar fusion. He recommended
that appellant obtain a cervical MRI scan.
A May 18, 2005 MRI scan revealed multilevel disc dessication and degenerative
spondylosis. Disc bulges were evident at C3-4 through C6-7 and there was a broad-based disc
herniation at C5-6, with central spinal canal stenosis and neural foraminal encroachment
bilaterally. Based on the recent cervical MRI scan, Dr. Jarolem diagnosed right-sided radicular
pain. He referred appellant to Dr. Sottile for epidural injections.
Dr. Sottile first examined appellant on May 26, 2005. She noted that he had “worked in
law enforcement his entire career” and “[s]ometime in the mid-1990’s he had a traumatic injury
while working as a marine enforcement officer....” Dr. Sottile diagnosed right cervical
radiculopathy, with differential diagnoses of cervical cyst syndrome and spondylosis. She also
diagnosed myofascial pain and peripheral neuropathy. Dr. Sottile stated that appellant’s cervical
injury was not a recent injury and “appear[ed] to have occurred approximately [10] years ago or
at the time of the traumatic injury in the 1990’s.” She explained that, because of the severity of
appellant’s lumbar condition, he did not seek medical treatment for the cervical injury when it
occurred. Over time, however, the cervical pain worsened to the point where appellant required
medical attention. Dr. Sottile recommended a series of cervical epidural steroid injections,
which she administered over the next several months.
In a September 14, 2005 letter, Dr. Jarolem explained that he had been treating appellant
for cervical, thoracic and lumbar pain, attributable to a work-related injury that occurred on the
“rough seas” in approximately 1996.4 He further indicated that appellant’s current complaints
“relate[d] back to the events ... while in rough seas.” Dr. Jarolem’s treatment notes for
September 14, 2005 indicated that appellant had completed the series of cervical epidural steroid
injections, with some noted improvement. Appellant presently complained mostly of severe low
back pain radiating into his buttocks, with limited sitting tolerance. Dr. Jarolem recommended
obtaining another lumbar MRI scan.

3

Dr. Jarolem is a Board-certified orthopedic surgeon.

4

Dr. Jarolem initially examined appellant on November 17, 1999 for complaints of low back pain and left-sided
radiating leg pain. He reported a history of injury on April 26, 1996 when appellant “was caught on a 40 [foot]
vessel in greater than 10-foot seas.” Appellant reportedly “took a pounding coming back to shore and experienced
the onset of low back pain and radiating leg pain.” At the time, Dr. Jarolem did not report a history of injury
involving either the cervical or thoracic spine.

3

Appellant returned to Dr. Sottile on December 7, 2005. However, this time he sought
treatment for his low back condition. Dr. Sottile reported complaints of low back and left leg
pain, which started in 1996 when appellant was at work as a vessel operator in route to the
Bahamas. He was reportedly caught in a storm. The “waves were really high” and there was
pounding on the boat, which was “so severe that [appellant] had low back pain going down the
left leg.” Dr. Sottile also noted that appellant had previously experienced numbness in the left
foot. She also noted that appellant had undergone a lumbar fusion at L4-5, and subsequently his
pain was reduced almost completely. But recently appellant experienced a flare-up of the leftsided lower back pain and tingling sensation, which interfered with his regular level of activity.
Dr. Sottile diagnosed multilevel disc dessication, degenerative spondylosis and minimal
retrolisthesis at L2-3. She also noted disc bulges at L1-2 and L4-5, postsurgical changes at L5S1 and disc herniations at L2 and L3. On December 15, 2005 Dr. Sottile administered a left
sacroiliac joint steroid injection. The relief from the initial injection was short term and
appellant received additional lumbar injections over the next few months.
On March 3, 2006 appellant was seen by Dr. Jeff M. Steinberg, a Board-certified
neurologist, who noted that appellant complained of headaches, which began during the past year
and were presently occurring on a daily basis. Dr. Steinberg noted a prior medical history of
post-traumatic herniated cervical and lumbar discs. He suspected that appellant was developing
migraine headaches. In a May 12, 2006 report, Dr. Steinberg indicated that appellant’s April 26,
1996 work-related injury was the cause of his herniated cervical disc, cervical radiculopathy and
migraine headaches.
In a May 26, 2006 report, Dr. Sottile indicated that appellant’s current lumbar condition
was related to his April 1996 injury. She further noted that appellant’s cervical condition
initially went undiagnosed, but was also attributable to the April 1996 injury. Dr. Sottile stated
that appellant had been incapable of working a full day since August 1, 2005, and his present
functional limitations and restrictions were of such severity that he could not perform work
activities at even the sedentary level described for an evidence technician.5 In an August 7, 2006
report, Dr. Sottile reiterated her May 26, 2006 findings. She further noted that appellant suffered
from severe cervicogenic headaches on a daily basis and was scheduled to undergo additional
surgery.
Appellant underwent an anterior cervical corpectomy on August 7, 2006. Dr. Jeffrey B.
Cantor, a Board-certified orthopedic surgeon, reported on August 11, 2006 that he had been
treating appellant for upper extremity numbness, severe neck pain and spasms, and migraine
headaches. He further noted that an MRI scan showed significant cervical stenosis at C3-4, C4-5
and C5-6. Dr. Cantor reported advanced left-sided degenerative spondylitic thickening from
cervical trauma. He explained that appellant’s spondylitic thickening was well advanced of the
average 49-year-old male. Dr. Cantor noted that appellant advised him of a boating injury he
sustained while employed by the Federal Government in 1996. He attributed appellant’s current
cervical impairment to the original traumatic injury in 1996. Dr. Cantor further noted that
5

Dr. Sottile restricted appellant to a four-hour workday, with a 10-pound limitation on pushing, pulling and
lifting. She also precluded all squatting, kneeling, climbing, twisting, bending and stooping. Dr. Sottile noted that
appellant was able to sit for four hours and operate a motor vehicle for four hours. Additionally, appellant was
limited to one hour of standing, one hour of walking, one hour of reaching and one hour of reaching above shoulder.

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appellant denied being involved in an automotive accident resulting in a severe whiplash-type
injury. He also noted that appellant exhibited some signs of relief of his symptoms following his
recent surgery. Appellant was precluded from performing any strenuous activity during the
recovery process.
By decision dated January 23, 2007, the Office denied modification of the September 15,
1997 wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 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 erroneous.7
The burden of proof is on the party seeking modification of the wage-earning capacity
determination.8
ANALYSIS
Appellant did not allege that he was retrained or otherwise vocationally rehabilitated or
that the original September 15, 1997 wage-earning capacity determination was erroneous.9 He
states that, beginning August 1, 2005, he was unable to continue working. For appellant to
prevail, he must demonstrate a material change in the nature and extent of the accepted injuryrelated condition. The Office has only accepted injuries to the lumbar spine as being
employment related. However, appellant claims that he also sustained injuries to his cervical and
thoracic spine on April 26, 1996.
Where appellant claims that a condition not accepted or approved by the Office was due
to his employment injury, he bears the burden of proof to establish that the condition is causally

6

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

7

Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

9

On his February 24, 2006 Form CA-2a, appellant indicated that he had not received any educational or
vocational training since leaving the Federal Government. He did, however, obtain certification to work as a police
officer in Florida.

5

related to the employment injury.10 Apart from the previously accepted lumbar conditions, there
is evidence of multilevel degenerative disc disease and disc herniations in both the cervical and
thoracic spine.
Dr. Jarolem attributed appellant’s cervical and thoracic conditions to a 1996 injury on the
“rough seas.” When addressing appellant’s cervical condition in May 2005, Dr. Sottile stated
that this was not a recent injury and “appear[ed] to have occurred approximately [10] years ago
or at the time of the traumatic injury in the 1990’s.” In subsequent reports, she described a 1996
injury at sea while in route to the Bahamas. In a May 26, 2006 report, Dr. Sottile specifically
attributed the severe cervical pain appellant first reported in 2005 to the “original work injury” in
April 1996. Dr. Cantor similarly attributed appellant’s cervical condition to a 1996 boating
injury. Dr. Steinberg related appellant’s cervical condition and migraine headaches to an
April 26, 1996 employment injury.
Dr. Steinberg’s opinion on causal relationship is not probative as his reports do not
describe a particular mechanism of injury. On March 3, 2006 he noted a prior medical history of
“[p]ost-traumatic herniated cervical and lumbar dis[c]s.” However, Dr. Steinberg did not
elaborate. His May 12, 2006 report offers no additional insight other than identifying the
particular date of injury. While Dr. Steinberg attributed appellant’s cervical condition and
migraine headaches to the “work-related injury on April 26, 1996,” he neglected to describe what
occurred on April 26, 1996. None of his reports mention appellant’s April 26, 1996 slip and fall
on the boat ramp. These reports also neglect to mention either of the two boating incidents in
December 1994 and June 1995. Dr. Steinberg did not address any of the medical evidence
contemporaneous to the accepted injuries. Without a proper history of injury, his opinion on
causal relationship cannot be considered well rationalized.11
Similar deficiencies are noted with respect to the opinions of Drs. Jarolem, Sottile and
Cantor. Each physician attributed appellant’s cervical condition to an April 1996 boating injury.
However, appellant was not on a boat in route to the Bahamas on April 26, 1996. He was at a
public boat ramp in Fort Lauderdale, FL when he slipped on a slick surface and landed on his
buttocks. Drs. Jarolem, Sottile and Cantor confused the December 4, 1994 rough seas boating
incident with the April 26, 1996 dockside slip and fall incident. The physicians’ respective
opinions are of limited probative value because the reported history of injury is not only
inaccurate, but also incomplete. Accordingly, appellant has not established that his cervical and
thoracic conditions and his migraine headaches are employment related.
As to the issue of whether there was a material change in appellant’s accepted lumbar
condition, Dr. Sottile was the only physician to address appellant’s ability to perform the limited10

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
11

See Victor J. Woodhams, supra note 10.

6

duty position he held until resigning in April 2002. In her May 26 and August 7, 2006 reports,
she stated that appellant had been incapable of working a full day since August 1, 2005, and his
present functional limitations and restrictions were of such severity that he could not perform
work activities at even the sedentary level described for an evidence technician. However,
Dr. Sottile did not exhibit any specific knowledge of appellant’s prior duties as an evidence
operations specialist. The only characteristic she noted was that it was “sedentary” work.
Dr. Sottile did not fully explain how appellant’s current low back condition was causally related
to his employment injuries in 1994, 1995 or 1996. She merely offered an opinion without
providing an explanation for her finding that appellant could no longer work full time as an
evidence technician. Because of the above-noted deficiencies, the Board finds that Dr. Sottile’s
reports are insufficient to establish a material change in the nature and extent of appellant’s
injury-related lumbar condition. As such, the Office properly denied modification of the
September 15, 1997 wage-earning capacity determination.
CONCLUSION
The Board finds that appellant has not established a basis for modifying the Office’s
September 15, 1997 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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Appearances:
Zedie E. Ramage Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1227
Issued: January 12, 2012

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant, through his representative, filed a timely appeal from an
October 26, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on January 25, 2010.
FACTUAL HISTORY
On January 25, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim alleging that he was separating parcels at the small parcel and bundle sorter that evening
1

5 U.S.C. § 8101 et seq.

when a mail hamper hit his back. He specified that Paul Juarez, a coworker, pushed a platform
truck into a row of three hampers, propelling the third hamper that ultimately struck him.
Appellant added that Mr. Juarez thereafter “start[ed] laughing.”
A January 26, 2010 evaluation form signed by a physician’s assistant noted that
appellant’s back was hit by a mail hamper on January 25, 2010.
In a January 26, 2010 statement, Mr. Juarez recounted that he transported a truck carrying
priority mail to the small parcel and bundle sorter, but did not push it into a hamper.
Appellant’s supervisor controverted the claim in a February 2, 2010 e-mail. On
January 27, 2010 she and a second supervisor lined up three hampers, the last of which was
approximately four feet from where appellant appeared to have stood at the small parcel and
bundle sorter on January 25, 2010.2 After pushing a cart into the row twice, they noticed that the
third hamper only moved up to four inches and concluded that appellant did not sustain a back
injury in the manner alleged.
OWCP informed appellant in a February 18, 2010 letter that additional information was
needed to establish his claim. It gave him 30 days to address the employing establishment’s
controversion of the January 25, 2010 employment incident and submit a medical report from a
physician explaining how this work event contributed to a back injury.
Appellant provided additional medical evidence. January 26, 2010 thoracic x-rays
obtained by Drs. Terril A. Efird and Roberta Yang, Board-certified diagnostic radiologists,
showed mild degenerative disc disease. An additional January 26, 2010 lumbar x-ray obtained
by Dr. Yang exhibited L4-5 and L5-S1 disc bulges. None of the scans revealed a fracture.
In a February 1, 2010 report, Dr. Harwinder Singh, a Board-certified physiatrist, related
that appellant was handling mail on January 25, 2010 when another employee pushed a truck
into several hampers and caused one of them to hit his back. On examination, he observed loss
of lumbar lordosis, L3-4 and L4-5 spinous process tenderness, restricted lumbosacral and hip
range of motion (ROM) and moderate bilateral hamstring tightness. Dr. Singh diagnosed lower
back pain due to employment activity.
Dr. Singh stated in a February 19, 2010 report that appellant also had a right shoulder
injury and left lower extremity symptoms as a result of the January 25, 2010 employment
incident. On examination, he observed limited cervicoscapular ROM, bilateral levator scapulae
muscle and sacroiliac joint tenderness, right shoulder impingement, lumbar paraspinal muscle
spasms and moderate-to-severe bilateral hamstring tightness. Dr. Singh diagnosed right shoulder
and lumbar sprain and strain with possible degenerative disc disease and left lumbar radiculitis.
In a March 18, 2010 report, he diagnosed right shoulder tendinitis and opined, “There is clear

2

Appellant’s supervisor indicated that this arrangement was proper in light of her investigatory findings and the
written statements from appellant and Mr. Juarez.

2

evidence that [appellant]’s work-related injury of January 25, 2010 … resulted from mail
hampers hitting him in the back when pushed by a truck.”3
By decision dated March 23, 2010, OWCP denied appellant’s claim, finding the evidence
insufficient to demonstrate that the January 25, 2010 employment incident occurred as alleged.
Appellant asserted in a March 8, 2010 statement that the employing establishment was
“totally lying about the space between the hampers and where I was standing.” He detailed that
the hamper “was actually touching my back” before Mr. Juarez pushed a truck into the row of
hampers. Appellant submitted January 26, 2010 emergency department nursing records and
physician’s report signed by Dr. Brian E. Horan, an osteopath Board-certified in emergency
medicine, reiterating that a mail hamper struck his back on January 25, 2010.
On March 24, 2010 appellant filed a notice of recurrence. In an April 1, 2010 letter from
OWCP, he was advised that a recurrence claim was premature because it had not yet accepted
that he sustained an employment-related injury.
Appellant requested a telephonic oral hearing, which was held on August 11, 2010. He
testified that he was working very close to the hampers on January 25, 2010 because of limited
floor space. Appellant clarified that the platform truck weighed between 500 and 800 pounds
and that his right shoulder condition arose a few weeks after the incident.
In reports for the period March 25 to May 20, 2010, Dr. Singh noted that appellant
experienced right shoulder and lower back pain, the latter of which radiated to the left lower
extremity, following the January 25, 2010 work event. On examination, he observed mild right
shoulder impingement, lumbar paraspinal muscle spasms, left sacroiliac joint tenderness, a
positive straight leg test and hyporeflexia. Dr. Singh diagnosed right shoulder impingement and
aggravated degenerative disc disease with intermittent left lumbar radiculitis.4
On October 26, 2010 OWCP affirmed the March 23, 2010 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,5
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.6 The employee must also establish that he sustained an
3

The case record contains Dr. Singh’s work status notes for the period February 1 to March 10, 2010 advising
that appellant be placed off duty. In addition, his March 18, 2010 report, as well as a March 10, 2010 report,
incorporated the history of injury and clinical findings found in the earlier February 1 and 19, 2010 reports.
4

A subsequent June 22, 2010 report from Dr. Singh indicated that appellant sustained left shoulder impingement.
In view of his other reports, this appears to be a typographical error. Otherwise, the June 22, 2010 report essentially
duplicated the history of injury, clinical findings and diagnoses of the reports from March 25 to May 20, 2010.
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

R.C., 59 ECAB 427 (2008).

3

injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.10
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
The Board finds that appellant established that a mail hamper hit his back on January 25,
2010 while he was separating parcels. The employee’s statement alleging that an incident
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence. Appellant promptly filed a traumatic injury claim and
received medical treatment on the date of injury. His statements and the medical histories
obtained by Drs. Singh and Horan consistently indicated that a mail hamper struck his back at
7

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

T.H., 59 ECAB 388 (2008).

9

Gregory J. Reser, 57 ECAB 277 (2005); R.T., Docket No. 08-408 (issued December 16, 2008).

10

Betty J. Smith, 54 ECAB 174 (2002).

11

I.J., 59 ECAB 408 (2008).

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work on January 25, 2010.12 Although appellant’s supervisor contended that a reenactment of
the event on January 27, 2010 demonstrated otherwise, this activity was demonstrated at most
that the alleges incident was unlikely not impossible. Appellant disputed the employing
establishment conclusions.13 In view of the totality of the evidence, the Board finds that he
established that the January 25, 2010 employment incident occurred as alleged.
The Board finds that appellant did not provide sufficient medical evidence to show that
his right shoulder, back and left lower extremity condition was due to the accepted employment
incident.14 In reports from February 1 to June 22, 2010, Dr. Singh diagnosed right shoulder
tendinitis, impingement, lumbar sprain and strain, degenerative disc disease and left lumbar
radiculitis, inter alia. He also attributed appellant’s injuries to the January 25, 2010 work event.
In particular, Dr. Singh remarked in a March 18, 2010 report that “[t]here is clear evidence that
[appellant]’s work-related injury of January 25, 2010 … resulted from mail hampers hitting him
in the back when pushed by a truck.” However, he did not further elaborate on this “clear
evidence” or explain how the January 25, 2010 employment incident pathophysiologically
caused or contributed to appellant’s condition.15
Dr. Horan similarly concluded in a January 26, 2010 physician’s report that a mail
hamper struck appellant’s back on January 25, 2010. Nevertheless, his opinion offered limited
probative value on the issue of causal relationship because he did not provide fortifying medical
rationale.16 January 26, 2010 radiological records from Drs. Efird and Yang were of limited
weight because they did not address whether appellant’s federal employment either caused or
aggravated his injuries or was unrelated.17 Finally, the medical documents signed by a physician
assistant and nurse cannot constitute competent medical evidence because neither was a
“physician” as defined under FECA.18 In the absence of rationalized medical opinion evidence,
appellant failed to meet his burden.
The Board notes that appellant submitted new evidence after issuance of the October 26,
2010 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.19
12

See Caroline Thomas, 51 ECAB 451 (1999) (a consistent history of the injury as reported on medical reports,
to the claimant’s supervisor and on the notice of injury can be evidence of the occurrence of the incident).
13

Compare with Delphyne L. Glover, 51 ECAB 146 (1999) (appellant did not rebut the employment
establishment’s statement that she unsuccessfully reenacted the alleged employment incident and admitted afterward
that the event could not have occurred).
14

The Board notes that appellant initially filed for a back condition only. However, the case record indicates that
he amplified and expanded his claim to include allegations of right shoulder and left leg injuries related to the
January 25, 2010 work event. See Wilfred M. Hamilton, 41 ECAB 524 (1990).
15

See Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

16

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

17

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

18

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005). See also Charley V.B. Harley, 2 ECAB 208,
211 (1949) (medical opinion, in general, can only be given by a qualified physician).
19

20 C.F.R. § 501.2(c).

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However, appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on January 25, 2010.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 14-1347
Issued: December 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JURISDICTION
On May 28, 2014 appellant filed a timely appeal from a November 29, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration of
previous merit decisions reducing appellant’s compensation. The final merit decision of record
is dated August 31, 2012. There is no merit decision within 180 days of May 28, 2014, the date
appellant filed her appeal with the Board. Therefore, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to show clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before July 27, 1989 appellant, then a 25-year-old manual
distribution clerk, sustained an aggravation of bilateral carpal tunnel syndrome due to repetitive
upper extremity motion while casing mail. Beginning in 1996, she was followed by Dr. Mathias
Masem, a Board-certified orthopedic surgeon, who performed a right median nerve
decompression on September 27, 1996 and a left median nerve decompression on
February 3, 1997. Appellant remained off work following surgery. On July 28, 1997
Dr. Masem provided permanent work restrictions against sorting, repetitive work, prohibited
lifting more than five pounds, and limited grasping and fine manipulation.
Following a vocational rehabilitation effort, appellant returned to work in a part-time,
modified position in July 1998. OWCP accepted that she sustained right elbow and ankle strains
in a July 18, 1998 fall at work.
On April 23, 1999 appellant began work as a nixie/rewrap clerk, within Dr. Masem’s
restrictions. Her earnings were at a retained pay rate.2 The position involved rewrapping
damaged mail weighing no more than five pounds. The job description stated that the position
did not require repetitive grasping or fine manipulation.
By decision dated August 20, 2001, OWCP reduced appellant’s compensation based on
the loss of wage-earning capacity (LWEC) demonstrated by her actual earnings in the position of
nixie/rewrap clerk. On July 26, 2007 appellant accepted a full-time position as a modified mail
processing clerk, which required lifting and carrying up to 10 pounds. The job encompassed her
previous duties. The employing establishment renewed the position on June 9, 2008. On
August 13, 2009 Dr. Alisha Wren, an attending physician Board-certified in emergency
medicine, found appellant permanently disabled for work due to carpal tunnel syndrome.
Effective November 21, 2009, appellant’s modified position was excessed by the
National Reassessment Process (NRP).
In a February 4, 2010 letter, appellant requested modification of the August 20, 2001
wage-earning capacity determination. She asserted that the nixie/rewrap clerk job was not a
bona fide position, but nonbid, makeshift, and sheltered work for injured employees.
By decision dated February 17, 2010, OWCP affirmed its August 20, 2001 LWEC
determination, rejecting appellant’s argument that the original determination was in error as a
nixie/rewrap clerk was a makeshift assignment. It found that there was no evidence that the
initial determination was in error, that she was vocationally rehabilitated or that the accepted
condition had worsened such that she could no longer perform the job.
In an April 23, 2010 letter, appellant again requested modification of the August 20, 2011
wage-earning capacity determination. She provided employing establishment job classification
listings that did not include “[n]ixie/[r]ewrap [c]lerk” among the positions available for open
2

By decision dated June 25, 1999, OWCP issued appellant a schedule award for a 20 percent permanent
impairment of each upper extremity.

2

bidding. Appellant submitted reports from her physician finding her permanently disabled for
work.
By decision dated July 7, 2010, OWCP denied modification of the August 20, 2001
wage-earning capacity decision, finding that the additional evidence submitted did not establish
that the nixie/rewrap clerk position was makeshift or sheltered work. It further found that
appellant did not establish a worsening of the accepted conditions or that she had been
vocationally rehabilitated. OWCP noted that she would still be working had her job not been
eliminated under NRP. It therefore found that the medical evidence asserting disability was not
relevant to the claim.
In an August 21, 2010 letter, appellant requested modification of the August 20, 2001
wage-earning capacity determination. She asserted that the original determination was in error
and OWCP did not adhere to its procedures in verifying that the nixie/rewrap clerk position was
a bona fide job.3 By decision dated November 29, 2010, OWCP denied modification on the
grounds that appellant had not established that the original determination was in error, that the
accepted condition had materially worsened or that she had been vocationally rehabilitated.
In a March 3, 2011 letter, appellant again requested modification of the August 20, 2011
wage-earning capacity decision. She asserted that her job was eliminated on November 21, 2009
as NRP determined that it was not operationally necessary. Appellant provided a January 20,
2011 letter from an employing establishment supervisor, stating that appellant’s job duties
beginning in 1998 “were odd[-]lot duties that belong(ed) to other job classifications and other bid
assignments, but were specifically provided to [appellant] for her personal needs based on her
medical restrictions. These odd[-]lot duties do not constitute a job that is available in the Postal
Service or ‘regular employment.’ But rather comprised a makeshift job.” The supervisor
recommended that the nixie/rewrap clerk job not be used to determine appellant’s wage-earning
capacity as it was “noncompetitive, odd[-]lot duties and deemed no longer necessary by the
[employing establishment].” In an April 19, 2011 letter, a second employing establishment
supervisor noted that, from 2000 to 2009, appellant’s primary duty was counting mail, work
“given to light or limited[-]duty employees if those employees have nothing to do.” The
supervisor explained that “[t]his work was given to [appellant] because of her work injury and
allow her to remain working for the [employing establishment.]”
In a June 2, 2011 decision, OWCP denied modification of the August 20, 2001
wage-earning capacity determination, finding that the supervisory statements were insufficient to
establish that nixie/rewrap clerk was not a legitimate job. It further found that appellant had not
established that the accepted condition had materially worsened or that she had been vocationally
rehabilitated.
In a June 1, 2012 letter, appellant requested modification of the August 20, 2001 wageearning capacity determination. She enclosed a May 25, 2012 letter from her supervisor in 1999
to 2000. The supervisor stated that appellant was “assigned to nixie clerk operation” due to her
3

By decision dated November 3, 2010, OWCP denied appellant’s claim for an increased schedule award on the
grounds that clinical findings and electrodiagnostic tests did not demonstrate a worsening of the accepted bilateral
carpal tunnel syndrome.

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“physical limitation.” He emphasized that the “assignment was given to [appellant] to meet her
physical limitation. The assignment was not a bid assignment nor of operation necessity and was
provide[d] only to accommodate her work restrictions.”
By decision dated August 31, 2012, OWCP denied modification of the August 20, 2001
wage-earning capacity determination, finding that the additional supervisory statement was
insufficient to establish that the initial determination was in error. It found that appellant had not
established that the nixie/rewrap clerk position was not a bona fide position.
In an August 27, 2013 letter received by OWCP on September 13, 2013, appellant again
requested modification of the August 20, 2001 wage-earning capacity determination. She
asserted that Dr. David Wren, Jr., an attending orthopedic surgeon, opined that her accepted
bilateral carpal tunnel syndrome had worsened. Appellant submitted reports from Dr. Wren
dated from December 20, 2012 to October 23, 2013, noting increasing stiffness and pain in the
cervical spine and both hands. Dr. Wren requested authorization for additional imaging studies.
By decision dated November 29, 2013, OWCP denied appellant’s September 13, 2013
request for LWEC modification as an untimely request for reconsideration that did not present
clear evidence of error.
LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal LWEC
determination. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.4 The burden of
proof is on the party attempting to show modification.5 There is no time limit for appellant to
submit a request for modification of a wage-earning capacity determination.6
ANALYSIS
OWCP issued a formal decision on appellant’s wage-earning capacity on
August 20, 2001. Board precedent and OWCP procedures direct the claims examiner to consider
the criteria for modification of an LWEC determination when a claimant requests resumption of
compensation for total wage loss.7
4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).
5

Darletha Coleman, 55 ECAB 143 (2003).

6

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

7

Katherine T. Kreger, supra note 4; Sharon C. Clement, supra note 4; Federal (FECA) Procedure Manual,
Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.5(a) (June 2013) (if a
claim for wage loss is received, OWCP should review the file to determine whether a formal LWEC is in place, and,
if so, the claim should be developed, if necessary, as a request for modification of the LWEC).

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OWCP considered appellant’s August 27, 2013 letter as a request for reconsideration of
the prior wage-earning capacity determination under 5 U.S.C. § 8128(a). It found that the
request was untimely and did not present clear evidence of error.
While appellant used the term “reconsideration” in her August 27, 2013 request, she
argued that the August 20, 2001 LWEC determination was in error. She submitted additional
medical evidence, which she asserted showed a material worsening of the accepted condition. A
material change in the nature and extent of the accepted condition is one of the grounds on which
a claimant may seek modification of a wage-earning capacity determination.8 This request for
modification is not a request for a review of OWCP’s August 31, 2012 decision under 5 U.S.C.
§ 8128(a). The Board finds that OWCP should have adjudicated the issue of modification of the
LWEC determination.9 OWCP improperly adjudicated her August 27, 2013 letter as a request
for reconsideration.10
As appellant has requested modification of the August 20, 2001 wage-earning capacity
determination, the time limitations for filing a request for reconsideration under 20 C.F.R.
§ 10.607(a) do not apply. The case will be remanded to OWCP to adjudicate her request for
modification of the wage-earning capacity determination, to be followed by a de novo decision to
preserve appellant’s appeal rights. This decision shall be based on the three customary criteria
for modifying a wage-earning capacity determination: a material change in the accepted
condition; whether appellant has been vocationally rehabilitated; and, whether the initial wageearning capacity was in error.
On appeal, appellant asserts that the nixie/rewrap clerk position on which OWCP based
the August 20, 2001 wage-earning capacity determination was makeshift and formulated to fit
her restrictions. She contends that the job would not exist but for her injury. As stated above,
the case will be remanded to OWCP for further development.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s requested modification of the
August 20, 2001 wage-earning capacity determination.

8

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.
Stanley B. Plotkin, 51 ECAB 700 (2000); see also Federal (FECA) Procedure Manual, id. at Chapter 2.1501.2(b)
(June 2013).
9

G.E., Docket No. 13-649 (issued October 21, 2013); F.B., Docket No. 10-99 (issued July 21, 2010).

10

F.B., id. See M.J., Docket No. 08-2280 (issued July 7, 2009). See also Gary L. Moreland, supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision and order of the Board.
Issued: December 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Johnstown, PA, Employer
__________________________________________

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

Docket No. 10-106
Issued: July 8, 2010

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 October 15, 2009 appellant filed a timely appeal from the October 7, 2009 decision of
the Office of Workers’ Compensation Programs calculating his weekly pay rate. 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 the Office properly determined appellant’s rate of pay for purposes
of calculating his monetary compensation.

FACTUAL HISTORY
This is the fourth appeal in this case.1 By decision dated June 23, 2009, the Board set
aside decisions of the Office dated November 20, 2007 and April 24 and August 14, 2008 and
remanded the case for further development on the issue of appellant’s pay rate. By decision
dated July 2, 2007, the Board set aside November 20 and July 19, 2006 decisions of the Office
denying appellant’s claim for a schedule award. By order dated February 2, 2006, the Board
dismissed his appeal at his request. The facts of the previous Board decisions are incorporated
herein by reference.
On June 29, 2009 the Office issued a schedule award decision based on a weekly pay rate
of $572.60 for the period January 16 to August 5, 2006. A pay rate calculation was attached to
the decision. The calculation reflected that appellant’s weekly pay amount was $572.60,
including $492.90 for 30 hours of work a week, $29.31 night differential pay and $50.39 Sunday
premium pay, multiplied by his $16.43 hourly pay rate in effect on his January 16, 2004 date of
injury. The Office found that appellant was entitled to additional compensation of $2,771.37
($13,233.60 for the period January 16 to August 5, 2006 less the $10,462.23 previously paid).
By letter dated June 30, 2009, the Office notified appellant that he should have been
compensated for the period March 6 to May 6, 2004 at the weekly rate of $572.60 rather than
$455.83. It paid him an additional $760.26 for that period ($3,713.17 less $2,922.91 previously
paid for March 6 to May 6, 2004).
On July 3, 2009 appellant requested reconsideration and contended that his weekly pay
was $657.20 at the 75 percent augmented compensation pay rate, or $492.90. He did not explain
how he calculated the $657.20 pay rate.
An August 5, 2009 Office file memorandum explained the $572.60 weekly pay rate
calculation as follows: Appellant averaged 30 hours a week in his part-time position during the
year prior to his January 16, 2004 employment injury based on a March 9, 2004 CA-7 claim
form. His hourly pay rate was $16.43 which equaled a weekly pay rate of $492.90. Added to
this weekly amount was $29.31 a week in night differential pay and $50.39 in weekly Sunday
premium pay for a weekly pay total of $572.60.
On August 12, 2009 the employing establishment advised the Office that appellant’s
hourly pay rate on January 16, 2004 was $16.43. It provided a breakdown of his earnings during
the one-year period prior to January 16, 2004. During that period, appellant worked 451 hours
over the course of 15 weeks. He earned $6,687.49 in base pay, $263.68 in night differential pay
and $352.70 in Sunday premium pay.
By decision dated October 7, 2009, the Office modified the June 29, 2009 schedule
award decision based on a weekly pay rate of $535.09 as documented by the August 12, 2009
1

See Docket No. 08-2315 (issued June 23, 2009); Docket No. 07-428 (issued July 2, 2007); Docket No. 05-1993
(order dismissing appeal issued February 2, 2006). On January 16, 2004 appellant, then a 40-year-old part-time
flexible mail handler, sustained a sprain and strain of the right knee and leg and right plica syndrome of the right
knee.

2

information from the employing establishment. It explained that it calculated his pay rate using
section 2.900.10 of the procedure manual as instructed by the Board’s June 23, 2009 decision.
The Office calculated appellant’s pay using the hourly basis method in section 2.900.10.c for
postal employees working less than a full schedule. It multiplied appellant’s $16.43 hourly pay
rate by the 451 hours he worked in his part-time position during the one-year period prior to
January 16, 2004 and divided by the 15 weeks he worked which equaled $494.00 a week
($493.99 rounded to $494.00). Appellant earned $263.68 in night differential pay ($263.68
divided by 15 weeks equals $17.58). He earned $352.70 in Sunday premium pay ($352.70
divided by 15 weeks equals $23.51). Appellant’s total weekly pay was $535.09 ($494.00 base
pay added to $17.58 night differential and $23.51 Sunday premium).
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that compensation
for a schedule award shall be based on the employee’s “monthly pay.”2 For all claims under the
Act, compensation is to be based on the pay rate as determined under section 8101(4) which
defines “monthly pay” as:
“The monthly pay at the time of injury or the monthly pay at the time disability
begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes
regular full-time employment with the United States, whichever is greater”3
Sections 8114(d)(1) and (2) of the Act4 provides methodology for computation of pay
rate for compensation purposes by determination of average annual earnings at the time of
injury. Sections 8114(d)(1) and (2) specify methods of computation for employees who worked
in the employment for substantially the whole year prior to the date of injury and for employees
who did not work the majority of the preceding year, but for whom the position would have
afforded employment for substantially the whole year if the employee had not been injured.5
The Office’s procedure manual provides methodology for computing weekly pay on an
annual, daily and hourly basis.6 Section 2.900.10.c provides that, for postal employees, the
employee’s hourly pay rate is multiplied by 2,080 (hours), prorated by the percentage of hours
worked and then divided by 52 (weeks) to determine the weekly pay rate.

2

See 5 U.S.C. § 8107(a).

3

See 5 U.S.C. § 8101(4).

4

5 U.S.C. § 8114(d)(1)-(2).

5

The Office defines “substantially the whole year” as “at least 11 months.” Federal (FECA) Procedure Manual,
Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4.a (October 2005).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.10 (October 2005).

3

ANALYSIS
Section 8107 of the Act provides that compensation for a schedule award shall be based
on the higher of the employee’s “monthly pay” at the time of injury or the time disability begins
or the time of a compensable recurrence of disability. In this case, the applicable pay rate is the
pay rate at the time of the January 16, 2004 employment injury.
As noted, sections 8114(d)(1) and (2) of the Act specify methods of computation for
employees who worked in the employment for substantially the whole year prior to the date of
injury and for employees who did not work the majority of the preceding year, but for whom the
position would have afforded employment for substantially the whole year if the employee had
not been injured. In this case, sections 8114(d)(1) and (2) do not apply because, although
appellant’s position would have afforded employment for substantially the whole year prior to
the January 16, 2004 employment injury, he did not, in fact, work substantially the whole year in
2003 because he did not work during pay periods 17 to 20 and 25.
The applicable method for determining appellant’s weekly pay rate is found in section
2.900.10.c of the Office’s procedure manual which provides that, for postal employees working
less than a full schedule, the full schedule figure of 2,080 hours should be prorated and then
multiplied by the amount shown. The record shows that appellant’s hourly pay rate was $16.43.
Multiplying $16.43 by the 451 hours he worked and dividing by the 15 weeks he worked equals
a $494.00 base weekly pay rate. Dividing the $263.68 night differential pay he earned by the 15
weeks he worked equals a prorated weekly night differential amount of $17.58. Dividing the
$352.70 Sunday premium pay he earned by the 15 weeks he worked equals a prorated weekly
Sunday premium amount of $23.51. Combining his prorated weekly base pay, night differential
pay and Sunday premium pay equals $539.09, the amount calculated by the Office in its
October 7, 2009 decision. The Board finds that the Office properly calculated appellant’s pay
rate.
On appeal appellant contends that his weekly pay rate should be $657.20 because he
worked 40 hours a week, a full schedule, prior to removal from his job in 2002. The record
establishes, however that he worked only part time during the one-year period prior to his
January 16, 2004 employment injury. Therefore the Office correctly based its pay rate
calculation on its procedures for determining the pay rate of postal employees working less than
a full schedule. Appellant’s contention that his pay rate should be based on a 40-hour week is
without merit.
CONCLUSION
The Board finds that the Office correctly determined appellant’s pay rate in its October 7,
2009 decision.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2009 is affirmed.
Issued: July 8, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
FAIRCHILD AIR FORCE BASE,
Airway Heights, WA, Employer
__________________________________________

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

Docket No. 16-1201
Issued: December 7, 2016

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 April 22, 2016 appellant filed a timely appeal of a March 1, 2016 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that his left carpal
tunnel syndrome was causally related to his accepted January 8, 2015 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 1, 2016 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On February 2, 2015 appellant, then a 57-year-old detective, filed a traumatic injury
claim (Form CA-1) alleging that on January 8, 2015 he injured his neck, left elbow, and
shoulder, and sustained a right hand cut, when he slipped and fell on an icy surface while placing
items into a dumpster. He did not stop working. OWCP accepted appellant’s claim for resolved
left upper arm contusion and resolved left shoulder joint sprain.
Appellant submitted treatment reports dated February 5, 24, and May 1, 2015 from
Dr. Jeffrey R. O’Connor, Board-certified in family practice and geriatric medicine.
Dr. O’Connor provided physical examination findings and diagnosed left ulnar contusion and
trapezius strain. He opined that these conditions had resolved as of his May 1, 2015 report and
recommended closure of the claim.
On May 29, 2015 Dr. O’Connor related that appellant’s left arm had begun to hurt again.
He noted that the symptoms had resolved by the time appellant was evaluated two weeks prior,
but he had become symptomatic again. Dr. O’Connor indicated that the pain probably had been
precipitated by appellant’s work on his deck and yard.
A July 7, 2015 electromyogram test and nerve conduction velocity study (EMG/NCV)
showed evidence of moderate-to-severe left carpal tunnel syndrome and left ulnar nerve
entrapment at the elbow.
In an August 17, 2015 report, Dr. O’Connor diagnosed a severe left carpal tunnel
syndrome and ulnar nerve injury, which he opined was more probably due to the employment
injury and not to deck building or yard work. In support of this conclusion, he related that the
objective findings and time frame were inconsistent with yard work and building a deck causing
this injury, but were consistent with the employment injury. Dr. O’Connor opined that appellant
would not have these conditions but for the accepted employment injury.
In a September 9, 2015 report, Dr. Randall Espinosa, a Board-certified orthopedic
surgeon, diagnosed left carpal tunnel syndrome and left cubital tunnel, and noted that appellant
sustained a work-related injury on January 8, 2015. Examination of the left upper extremity
included positive elbow Tinel’s sign, positive Phalen’s test, normal range of motion, mild elbow
swelling, and diminished hand sensation in the median and ulnar distributions. Dr. Espinosa
recommended left carpal tunnel decompression surgery.
In a November 19, 2015 report, Dr. O’Connor provided a history of the employment
injury and medical treatment. At the time of the injury, he noted that he diagnosed a left elbow
olecranon contusion and hematoma. Dr. O’Connor reported that appellant complained of left
elbow numbness along the ulnar nerve distribution to the forearm. While appellant’s neck pain
improved, he noted that appellant continued to have left forearm weakness and persistence of the
ulnar nerve injury. According to Dr. O’Connor it appeared that as of May 1, 2015 appellant’s
ulnar contusion and trapezius strain had resolved, but then his symptoms recurred. He opined
that the recurrence of the symptoms may have been precipitated by yard work, but that the
January 2015 employment injury was the direct cause of the symptoms. Dr. O’Connor reported
that appellant had been diagnosed with left carpal tunnel syndrome which was attributed to a

2

forearm injury. In support of his opinion attributing the ulnar nerve injury and left carpal tunnel
syndrome to the accepted work injury, Dr. O’Connor observed that the ulnar nerve injury had
been caused by the olecranon contusion which was adjacent to the ulnar nerve.
In a December 1, 2015 report, OWCP’s medical adviser opined that the evidence of
record was sufficient to warrant an upgrade of appellant’s claim to include a left ulnar lesion, but
insufficient to establish that the diagnosed left carpal tunnel syndrome was causally related to the
January 8, 2015 employment injury.3
In a December 1, 2015 report, Dr. O’Connor provided examination findings and
diagnosed left ulnar contusion and left carpal tunnel syndrome. He opined that both conditions
were work related and unchanged since the January 8, 2015 work injury.
By decision dated December 18, 2015, OWCP expanded the acceptance of appellant’s
claim to include left upper limb ulnar nerve lesion.
On January 7, 2016 OWCP referred appellant to Dr. St. Elmo Newton, III, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. O’Connor and the medical adviser on the issue of whether appellant’s left carpal tunnel
syndrome was causally related to the January 8, 2015 employment injury.
On January 25, 2016 OWCP received a January 12, 2016 report by Dr. Espinosa
diagnosing left carpal tunnel syndrome, left ulnar nerve lesion, left forearm tenosynovitis and
synovitis, and left wrist primary osteoarthritis. Dr. Espinosa provided examination findings and
diagnostic test results. He noted that OWCP denied coverage for appellant’s left carpal tunnel
syndrome, but authorized cubital tunnel release. Dr. Espinosa opined that both conditions were
causally related to the accepted January 8, 2015 employment injury.
In a February 11, 2016 report, Dr. Newton provided a history of the employment injury
and summarized the medical evidence, which included medical reports from Drs. O’Connor and
Espinosa. Physical examination findings included hypersensitivity over the ulnar nerve;
tenderness over the elbow, medial condyle, and ulnar nerve; tenderness to touch of the
olecranon; negative Finkelstein’s test; negative ulnar loading test; and negative Tinel’s sign.
Dr. Newton diagnosed left elbow contusion and sprain and left elbow ulnar nerve contusion due
to the January 8, 2015 work injury. He also diagnosed left wrist carpal tunnel syndrome, which
he concluded was unrelated to the January 8, 2015 work injury, and left wrist discomfort of an
unknown etiology. Dr. Newton reported that, as there was no significant left wrist trauma, it was
unlikely that appellant would have developed severe left carpal tunnel syndrome within five
months following the left elbow sprain/contusion. He further noted that appellant’s left carpal
tunnel syndrome was asymptomatic from a clinical viewpoint.
By decision dated March 1, 2016, OWCP found that appellant had not established that his
left carpal tunnel syndrome was causally related to the January 8, 2015 employment injury. It
found that Dr. Newton, the impartial medical specialist chosen to resolve a conflict in medical
opinion, provided a report containing a complete and accurate medical history, reported the
3

On January 4, 2016 OWCP authorized left revision of the elbow ulnar nerve.

3

results of a physical examination, and used the results of the physical examination for a wellrationalized medical opinion. OWCP therefore afforded Dr. Newton the special weight of the
evidence to deny the left carpal tunnel syndrome condition.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,4 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for which he or she
claims compensation is causally related to that employment injury.5
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between the claimed medical condition and the employment injury. The
medical opinion must be based on a complete factual and medical background with an accurate
history of the claimant’s employment injury, and must explain from a medical perspective how
the current condition is related to the injury.6
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence
to show that the requested procedure is for a condition causally related to the employment injury
and that it is medically warranted. Both of these criteria must be met in order for OWCP to
authorize payment.7
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.8
Section 8123(a) of FECA9 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When there exist opposing
medical reports of virtually equal weight and rationale, and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

J.B., Docket No. 14-0163 (issued April 7, 2014).

6

Id.

7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
9

5 U.S.C. § 8123(a).

10

Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57
ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003).

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sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11
ANALYSIS
OWCP accepted appellant’s claim for resolved left upper arm contusion and resolved left
shoulder joint sprain, and subsequently expanded acceptance of the claim to include left upper
limb ulnar nerve lesion. Appellant alleged that his left carpal tunnel syndrome had also been
caused by the January 8, 2015 employment injury, but this condition has not been accepted by
OWCP as due to the accepted work injury.
On August 17 and November 19, 2015 Dr. O’Connor diagnosed severe left carpal tunnel
syndrome, which he attributed to the January 8, 2015 employment injury. In a September 9,
2015 report, Dr. Espinosa diagnosed left cubital and left carpal tunnel syndrome, noted appellant
had sustained an employment injury on January 8, 2015, and recommended left carpal tunnel
decompression surgery.
OWCP referred the record to OWCP’s medical adviser for an opinion as to whether
appellant’s claim should be expanded to include additional conditions. In his December 1, 2015
report, the medical adviser recommended expansion of the claim to include a left ulnar lesion,
but found the medical evidence insufficient to establish that the diagnosed left carpal tunnel was
causally related to the January 8, 2015 employment injury.
The Board finds that OWCP properly determined that there was a conflict of medical
opinion evidence between appellant’s treating physicians and OWCP’s medical adviser
regarding whether the left carpal tunnel syndrome and recommended left carpal decompression
surgery were employment related.12
Due to the conflict in the medical opinion evidence regarding whether the left carpal
tunnel syndrome and recommended decompression surgery were employment related, OWCP
referred appellant to Dr. Newton for an impartial medical examination. Dr. Newton, based upon
a physical examination and review of the statement of accepted facts and medical evidence,
including reports from Drs. Espinosa and O’Connor, concluded that the left wrist carpal tunnel
syndrome was unrelated to the January 8, 2015 work injury as appellant had not sustained
significant left wrist trauma and he was clinically asymptomatic.
The Board finds that Dr. Newton’s February 11, 2016 report is sufficiently detailed and
well rationalized to constitute the special weight of the medical opinion accorded an impartial
medical examiner. Dr. Newton conducted an orthopedic examination and reviewed objective
tests and found there was no relationship between appellant’s left carpal tunnel syndrome and the
January 8, 2015 employment injury. Thus, the Board finds that Dr. Newton’s opinion as set

11

S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, id.; Gloria J. Godfrey, 52 ECAB
486, 489 (2001).
12

Supra note 10.

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forth in his February 11, 2015 report is probative and reliable evidence.13 Accordingly,
Dr. Newton’s opinion constitutes the special weight of the evidence that appellant’s left carpal
tunnel was not causally related to the accepted injury.14
The Board further finds that the medical evidence submitted by appellant prior to
Dr. Newton’s impartial medical examination is insufficient to overcome the weight of this report
or to create another conflict in medical evidence. Appellant submitted a January 12, 2016 report,
of Dr. Espinosa, wherein he opined that the left carpal tunnel syndrome was causally related to
the January 8, 2015 employment injury and the requested surgery was necessary. The Board has
held that medical evidence consisting solely of conclusory statements without supporting
rationale is of little probative value.15 A mere conclusory opinion provided by a physician
without the necessary rationale explaining how and why the incident or work factors were
sufficient to result in the diagnosed medical condition is insufficient to meet a claimant’s burden
of proof to establish a claim.16 Thus, the Board finds this this report is of limited probative value
as he offered a conclusion unsupported by medical rationale and is insufficient to create a
conflict with Dr. Newton’s opinion. The Board finds that Dr. Newton’s opinion constitutes the
special weight of the medical evidence and supports OWCP’s decision that appellant’s left carpal
tunnel syndrome was not caused or aggravated by the accepted January 8, 2016 employment
injury.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
carpal tunnel syndrome was causally related to the accepted employment incident.

13

L.D., Docket No. 15-0220 (issued August 5, 2015).

14

Id.

15

See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
William C. Thomas, 45 ECAB 591 (1994) (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).
16

J.D., Docket No. 14-2061 (issued February 27, 2015).

17

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 1, 2016 is affirmed.
Issued: December 7, 2016
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

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