United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
H.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
HOSPITAL, Pensacola, FL, Employer
_________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1650
Issued: January 2, 2013

Case Submitted on the Record

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

JURISDICTION
On July 29, 2012 appellant, through her attorney, filed a timely appeal from a February 1,
2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
Pursuant to the Federal Employees’
request for reconsideration as untimely filed.1
2
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.

1

The last merit decision in this case was the September 13, 2010 decision granting appellant a schedule award for
three percent permanent impairment of the left lower extremity. For final adverse OWCP decisions of OWCP
issued on or after November 19, 2008, a claimant must file an appeal within 180 days of the decision. 20 C.F.R.
§ 501.3(e). Because more than 180 days has elapsed between the most recent merit decision dated September 13,
2010 to the filing of this appeal on July 29, 2012, the Board lacks jurisdiction to review the merits of this case.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request for reconsideration was not timely filed and
did not establish clear evidence of error.
FACTUAL HISTORY
On March 21, 2008 appellant, then a 63-year-old budget technician, injured her left knee
in the performance of duty when she was ascending the stairs to the fourth floor. OWCP
accepted her claim for lateral meniscus tear of the left knee. Appellant stopped work and
returned on April 2, 2008. On July 21, 2008 she underwent a left knee arthroscopy and partial
lateral meniscectomy.
In a July 23, 2009 progress note, Dr. Dale T. Zorn, a Board-certified orthopedic surgeon,
related that appellant sustained a work-related injury on March 21, 2008 and complained of pain
in the medial compartment of the knee. He reviewed her history and noted that postoperative
x-rays revealed that she only had about one millimeter of articular cartilage in the medial
compartment of her left knee. Dr. Zorn reported that he had previously given appellant a
maximum medical improvement date of October 7, 2008. Examination of the lower extremity
revealed an effusion in the left knee and crepitance with range of motion. Dr. Zorn diagnosed
progressive symptoms of osteoarthritis of the left knee. He opined that according to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment appellant’s overall impairment of the left lower extremity was approximately 20 to
30 percent based on the findings of rather severe loss of articular cartilage and chondromalacia
with one millimeter of remaining articular cartilage. Dr. Zorn reported that the 20 to 30 percent
extremity impairment would convert to 8 to 12 percent whole person impairment.
In a May 20, 2010 letter, Dr. Zorn stated that appellant was placed at maximum medical
improvement on October 7, 2008. He reported that she had 20 to 30 percent permanent
impairment of the extremity or 8 to 12 percent permanent impairment of her whole body.
On June 1 and 22, 2010 appellant filed a claim for a schedule award.
In a June 8, 2010 report, the medical adviser noted appellant’s accepted condition of left
knee lateral meniscus tear. He stated that appellant’s treating physician provided a detailed
explanation of her left knee joint osteoarthritis and opined that she had a permanent impairment
of 20 to 30 percent of the left lower extremity and 8 to 12 percent impairment of her whole body.
The medical adviser noted, however, that appellant’s case was only accepted for tear of the
lateral meniscus and not for arthritis of the knee. According to the sixth edition of the A.M.A.,
Guides3 at Chapter 16, Table 16-3 on page 509, he opined that appellant had three percent
permanent impairment of the left lower extremity. The medical adviser determined that
appellant had class 1 impairment with a default value of two percent.4 He found that she had
3

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

4

Id. at 509.

2

grade modifiers of 2 for Functional History (GMFH) and Physical Examination (GMPE), which
resulted in a net adjustment of +2.5 Thus, the medical adviser concluded that appellant had three
percent permanent impairment of the left lower extremity.
On September 13, 2010 OWCP granted a schedule award for three percent permanent
impairment of the left leg. The award ran from October 7 to December 6, 2008 for 8.64 weeks.
In a September 14, 2010 report, Dr. Zorn reviewed the district medical adviser’s June 8,
2012 report and disagreed with his rating. He explained that the district medical adviser only
addressed appellant’s lateral meniscus injury and did not consider her July 21, 2008 left knee
arthroscopy, which resulted from persistent pain following her March 21, 2008 work-related
injury. Dr. Zorn opined that appellant’s March 21, 2008 injury directly contributed to and led to
progressive arthritic changes that necessitated a total knee arthroplasty and reported that her
permanent impairment should be based on her ultimate surgical requirement. He restated that
appellant had 20 to 30 percent impairment of the left lower extremity due to her total knee
arthroplasty and 8 to 12 percent impairment of the whole body.
In reports dated October 19, 2010 to December 13, 2011, Dr. Zorn related that appellant
sustained a March 21, 2008 work-related injury and continued to experience pain in her left knee
associated with effusion. X-rays revealed progressive varus changes in the left knee and
significant degenerative arthritis and varus changes. Examination revealed an effusion in the left
knee, crepitus with range of motion, early genu varum and trade edema. Dr. Zorn recommended
that she undergo a total knee arthroplasty.
On November 10, 2011 OWCP expanded appellant’s claim to include left knee synovitis,
left knee chondromalacia patellae, and contusion of medial femoral condyle and tibial acetabular.
In a letter dated January 2, 2011 and received on January 6, 2012, appellant, through
counsel, requested reconsideration of the September 13, 2010 schedule award decision. He
stated that the rating was based on the accepted condition of left lateral meniscus tear but that the
claim had been expanded to accept Dr. Zorn’s previous diagnoses.
OWCP referred appellant’s case to the district medical adviser to determine whether the
record supported greater impairment. In a January 30, 2011 report, the district medical adviser
noted that on July 21, 2008 a left knee arthroscopic surgery was performed, which included a
partial lateral meniscectomy. Upon examination, there was chronic pain and limited activity due
to varus knee and total loss of articular cartilage of the medial compartment. The medical
adviser recommended accepting her claim for primary osteoarthritis of the left knee. He did not
know whether appellant had reached maximum medical improvement.
By decision dated February 1, 2012, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to present clear evidence of error.

5

The sixth edition requires identifying the impairment class for the diagnosed condition (CDX), which is then
adjusted by grade modifiers based on GMFH, GMPE and Clinical Studies (GMCS). The net adjustment formula is
(GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX). A.M.A., Guides 494-531.

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LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.6 The
Board has found that the imposition of the one-year time limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.7 The one-year
period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.8
OWCP may still reopen a claimant’s case for merit review, even if the claimant’s
applications was not filed within the one-year time limitation, if claimant’s application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. To
establish clear evidence of error, a claimant must submit evidence relevant to the issue decided
by OWCP.9 The evidence must be positive, precise, and explicit, and it must manifest on its face
that OWCP committed an error.10 Evidence that does not raise a substantial question concerning
the correctness of OWCP’s decision is insufficient to establish clear evidence of error.11 It is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion.12 The evidence submitted must not only be of sufficient probative value to create a
conflicting medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.13 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear evidence of
error on the part of OWCP.14 In this regard, OWCP will limit its focus to a review of how the
newly submitted evidence bears on the prior evidence of record.15 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it improperly denied merit review in the face of such evidence.16
6

20 C.F.R. § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997).

9

F.R., Docket No. 09-575 (issued January 4, 2010); Dean D. Beets, 43 ECAB 1153 (1992).

10

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

Id.

13

Annie L. Billingsley, 50 ECAB 210 (1998).

14

Id.

15

Nelson T. Thompson, 43 ECAB 919 (1992).

16

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

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ANALYSIS
The Board finds that OWCP applied an erroneous standard to appellant’s schedule award
claim.
OWCP accepted appellant’s claim for left knee lateral meniscus tear. By decision dated
September 13, 2010, it granted her a schedule award for three percent impairment of the left
lower extremity. On January 6, 2012 OWCP received appellant’s request for reconsideration. In
a decision dated February 1, 2012, it denied her request for reconsideration as untimely filed and
failing to establish clear evidence of error.
The Board notes that in schedule award cases, a distinction is made between an
application for an additional schedule award and a request for reconsideration of the existing
schedule award. When a claimant is asserting that the original award was erroneous based on his
or her medical condition at that time, this is a request for reconsideration. A claim for an
additional schedule award may be based on new exposure to employment factors or on the
progression of an employment-related condition, without new exposure, resulting in greater
permanent impairment.17 Following the original schedule award, OWCP accepted left knee
synovitis, left knee chondromalacia patellae, and contusion of the medial femoral condyle and
tibial acetabular. In her request for reconsideration, appellant’s counsel requested an additional
schedule award based on the accepted conditions and submitted medical evidence to support her
request. The Board has held that a claimant may request a schedule award or increased schedule
award based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment, at
any time.18 Appellant submitted new evidence for an additional schedule award based on a
progression of her employment-related condition rather than on the basis that the original
schedule award was in error. OWCP erroneously issued a denial of appellant’s request for
reconsideration under the clear evidence of error standard. On remand, it should review and
develop the medical evidence and issue an appropriate decision regarding her request for an
increased schedule award.
CONCLUSION
The Board finds that OWCP erroneously refused to reopen appellant’s case for further
merit review.

17

R.L., Docket No. 09-1948 (issued June 29, 2010); B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB
622 (2005).
18

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: January 2, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WESTOVER AIR FORCE BASE, MA, Employer
__________________________________________

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

Docket No. 10-2337
Issued: August 1, 2011

Case Submitted on the Record

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

JURISDICTION
On September 20, 2010 appellant filed an appeal from a June 22, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) in which a hearing representative affirmed
the termination of his wage-loss compensation on the grounds that he refused an offer of suitable
work. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective February 8, 2010 pursuant to 5 U.S.C. § 8106(c).
On appeal, appellant’s attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 16, 2009 appellant, then a 39-year-old construction inspector, sustained an
employment-related compression fracture at L1 while moving furniture at work.2 In reports
dated October 20 to November 18, 2009, Dr. Ronald Paasch, an attending Board-certified
physiatrist, advised that appellant should not work, pending treatment. By report dated
November 4, 2009, Dr. Franco M. DeSantis, a Board-certified internist, reported the history of
injury and described appellant’s care. He advised that appellant was last seen on October 20,
2009 and recommended that he remain off work until evaluated and cleared to return to work.
On November 20, 2009 Dr. Paasch and Dr. Scott R. Cooper, an associate also a Boardcertified physiatrist, advised that appellant could return to work on November 21, 2009 with
restrictions of no lifting over 10 pounds repetitively and 20 pounds occasionally with limited
stooping and bending. Appellant was to change positions as needed.
On November 23, 2009 the employing establishment offered appellant a modified
position as a construction inspector, with retained grade and pay. The physical restrictions were
those prescribed by Drs. Paasch and Cooper. Most of the duties would be performed in an office
environment with occasional spot inspections that would require no lifting and limited stooping
and bending. Appellant was to be responsible for finishing the paperwork for the previous fiscal
year’s custodial contract, work on the custodial contract for the present year and aid in
assembling the solicitation package for the next major custodial contract. On November 23,
2009 he reported to a medical management nurse that he had fallen in the shower and was having
increased pain.
By report dated November 30, 2009, Dr. DeSantis advised, “This is to certify that
[appellant] is currently under my medical supervision and continues to be unable to work. Date
of his return is unclear at this point.” On December 1, 2009 Dr. Cooper performed bilateral L1-2
transforaminal epidural injections.
By letter dated December 9, 2009, OWCP advised appellant that the position offered was
suitable. Appellant was notified that, if he failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, his right to compensation for
wage loss or a schedule award would be terminated. He was given 30 days to respond.
Appellant was scheduled for a medical appointment on December 17, 2009 and did not
appear. In a letter received on December 18, 2009, he informed OWCP that he had moved to
Visalia, California, for a family emergency. On December 21, 2009 OWCP forwarded a copy of
the December 9, 2009 letter to appellant’s California address. Appellant was given an additional
30 days to respond. OWCP authorized a medical consultation in California. Medical evidence
previously of record was submitted.

2

A September 24, 2009 magnetic resonance imaging (MRI) scan study of the lumbar spine demonstrated an acute
or subacute mild compression fracture of the superior end plate of the L1 vertebral body with no evidence of
retropulsion and mild disc bulging of the L2-3 through L5-S1 discs without definite nerve root compression.

2

On January 21, 2010 OWCP advised appellant that his reasons for refusing the offered
position were not valid and he was given an additional 15 days to accept. On February 8, 2010 it
noted that there were no Air Force bases within commuting distance of Visalia, California and
that the offered position remained available.
By decision dated February 8, 2010, OWCP terminated appellant’s compensation
benefits on the grounds that he refused to accept an offer of suitable work.3 By report dated
February 4, 2010, received by OWCP on February 17, 2010, Henry Read, a nurse practitioner,
described the history of injury and noted appellant’s complaint of chronic low back pain. He
provided examination findings and diagnosed chronic low back pain following L2 vertebral body
compression fracture.
On February 26, 2010 appellant requested a review of the written record. He submitted a
March 5, 2010 MRI scan study of the lumbar spine that demonstrated an anterior wedge
compression fracture of the L1 vertebral body with low level internal bone marrow edema
adjacent to the superior end plate and mild bulging discs at L3-3 through L5-S1 resulting in
bilateral neural foraminal narrowing with no evidence of disc herniations or significant central
canal stenosis. By report dated March 11, 2010, Dr. Timothy C. Watson, a Board-certified
orthopedic surgeon, noted the MRI scan findings and recommended a posterior spinal fusion
from T12 to L2. He advised that appellant could not work due to surgery and postoperative
period. On April 29, 2010 OWCP’s medical adviser opined that the surgery seemed reasonable
and on May 18, 2010 the surgery was authorized.
By decision dated June 22, 2010, OWCP’s hearing representative affirmed the
February 8, 2010 decision, finding that appellant refused an offer of suitable employment.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.5 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.6

3

OWCP noted that no work was available in the Visalia, California, commuting area and that, because appellant
remained on the employing establishment’s employment rolls, relocation expenses need not be addressed.
4

5 U.S.C. § 8106(c).

5

Joyce M. Doll, 53 ECAB 790 (2002).

6

20 C.F.R. § 10.517(a).

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To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his refusal to accept such employment.7 In
determining what constitutes “suitable work” for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.8 The issue of whether an employee has the physical ability to perform a
modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence.9 OWCP’s procedures state that acceptable reasons for
refusing an offered position include withdrawal of the offer or medical evidence of inability to
do the work or travel to the job.10
OWCP regulations provide that the employer, if possible, should offer suitable
reemployment in the location where the employee currently resides. If this is not practical, the
employer may offer suitable reemployment at the employee’s former duty station or other
location.11 A preference for the area in which a claimant resides is not an acceptable reason for
refusing an offered position.12
ANALYSIS
OWCP accepted that appellant sustained a compression fracture to L1 on
September 16, 2009. On February 8, 2010 it terminated his monetary compensation on the
grounds that he refused a November 23, 2009 offer of suitable employment by the employing
establishment. The initial question is whether OWCP properly determined that the offered
position was suitable, a medical question that must be resolved by the medical evidence.13 The
Board finds that medical evidence of record establishes that the November 23, 2009 position
offered by the employing establishment was suitable.
In November 20, 2009 reports, Drs. Paasch and Cooper, attending Board-certified
physiatrists, advised that appellant could return to work on November 21, 2009 with restrictions
of no lifting over 10 pounds repetitively and 20 pounds occasionally. Appellant was to change
positions as needed and stooping and bending were to be limited. On November 23, 2009 the
employing establishment offered him a modified position as a construction inspector. The
physical restrictions were in the limitations as prescribed by Drs. Paasch and Cooper.
7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
8

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

9

Gayle Harris, 52 ECAB 319 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB 175 (2004).

12

E.H., Docket No. 08-1862 (issued July 8, 2009).

13

Gayle Harris, supra note 9.

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Appellant submitted a November 30, 2009 report from Dr. DeSantis who stated that he
was unable to work. Dr. DeSantis had previously advised on November 4, 2009 that appellant
could not return to work until cleared by physiatry. As noted, on November 20, 2009,
Drs. Paasch and Cooper found that appellant could return to modified work. Furthermore, in his
brief November 30, 2009 report, Dr. DeSantis did not state that he had recently examined
appellant or reviewed the offered position. His November 30, 2009 report is of diminished
probative value.
At the time the job offer was made on November 23, 2009, appellant had not relocated to
California. An employee’s move away from the area in which the employing establishment is
located is an unacceptable reason for refusing to accept an offered position if the employee is
still on the agency rolls. Personal reasons for an unwillingness to relocate, will not justify the
refusal of an offer of suitable work.14
The Board finds that OWCP properly determined that the offered position was suitable as
the weight of the medical evidence on February 8, 2010 established that appellant was no longer
totally disabled from work and had the physical capacity to perform the modified duties
described in the November 23, 2009 job offer.
In order to properly terminate appellant’s compensation under section 8106 of FECA,
OWCP must provide his notice of its finding that an offered position is suitable and give him an
opportunity to accept or provide reasons for declining the position.15 The record in this case
indicates that OWCP properly followed the procedural requirements. By letters dated
December 9 and 21, 2009, OWCP advised appellant that the offered position was suitable.
Appellant was notified that, if he failed to report to work or failed to demonstrate that the failure
was justified, his right to monetary compensation would be terminated and he was allotted
30 days to either accept or provide reasons for refusing the position. On January 21, 2010 he
was given an additional 15 days in which to respond. There is therefore no evidence of a
procedural defect in this case as OWCP provided appellant with proper notice. Appellant was
offered a suitable position by the employing establishment and the offer was refused. Thus,
under section 8106(c) of FECA, his monetary compensation was properly terminated effective
October 25, 2009 on the grounds that he refused an offer of suitable employment.16
After OWCP established that the offered position was suitable, the burden shifted to
appellant to show that his refusal was reasonable or justified.17 The February 4, 2010 report
from Mr. Read is not considered competent medical evidence as nurse practitioners are not
“physicians” as defined under FECA and their opinions are of no probative value.18 The
14

Bruce Sanborn, 49 ECAB 176 (1997).

15

See Maggie L. Moore, supra note 7.

16

Joyce M. Doll, supra note 5.

17

M.S., 58 ECAB 328 (2007).

18

S.E., Docket No. 08-2214 (issued May 6, 2009). Section 8101(2) of FECA provides that “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law. 5 U.S.C. § 8101(2); see Roy L. Humphrey, 57 ECAB 238 (2005).

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March 5, 2010 lumbar MRI scan study, does not contain any opinion regarding appellant’s
ability to work. In his March 11, 2010 report, Dr. Watson provided examination findings and
recommended surgery. However, he did not provide an opinion on the suitability of the offered
position or whether appellant could have performed the position’s duties beginning in
November 2009.
An employee who refuses or neglects to work after suitable work has been offered has
the burden of showing that such refusal to work was justified.19 The Board finds that OWCP
properly terminated appellant’s monetary compensation due to his refusal of suitable work and
that he did not, thereafter, establish that his refusal of suitable work was justified.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a).

19

5 U.S.C. § 8106(c)(2).

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ORDER
IT IS HEREBY ORDERED THAT the June 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Warwick, RI, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0252
Issued: October 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 23, 2015 appellant, through his representative, filed a timely appeal from
an October 6, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly found two percent permanent impairment of
the right hand, for which he received a schedule award; and (2) whether OWCP applied the
appropriate cost-of-living increase in calculating the January 8, 2015 schedule award.
FACTUAL HISTORY
OWCP accepted that on March 31, 2011 appellant, then a 42-year-old special agent,
sustained metacarpal neck fractures of the right small and ring fingers while delivering hand
strikes to a boxing bag during physical training in the performance of duty. He stopped work on
April 4, 2011. Appellant did not receive wage-loss compensation related to the accepted right
small and ring finger fractures.3
Dr. Hervey L. Kimball, a Board-certified orthopedic surgeon, obtained April 7, 2011
x-rays demonstrating “a fracture at the junction of the fifth metacarpal distal diaphysis and fifth
metacarpal head with apex dorsal angulation.” On April 18, 2011 he performed an open
reduction and internal fixation of the right small finger metacarpal neck fracture. Dr. Kimball
removed the pins on May 16, 2011 and released appellant to light duty.4 August 30, 2011 x-rays
confirmed a stable union. Appellant returned to full duty on September 1, 2011.
On August 25, 2012 appellant claimed a schedule award.5 In support of his claim, he
submitted a November 26, 2012 impairment rating from Dr. Kimball, noting that appellant had
reached maximum medical improvement. On examination, appellant found mild residual
stiffness, with a 15-degree proximal interphalangeal joint extensor lag in the fourth finger, and a
5-degree lag in the fifth finger. Referring generally to the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Kimball
found four percent permanent impairment of the right hand.
In a June 24, 2014 letter, OWCP advised appellant of the evidence needed to establish his
claim, including his physician’s impairment rating of the accepted injury, utilizing the sixth
edition of the A.M.A., Guides.
In response, appellant provided a July 18, 2014 impairment rating from Dr. Andrew J.
Rogers, an attending Board-certified orthopedic surgeon. Dr. Rogers noted that appellant
underwent right shoulder surgery in 2012 with repair of a superior labral tear from anterior to
posterior lesion, debridement, and resection of calcium in the rotator cuff. Appellant also
3

Appellant had filed prior claims which were accepted in OWCP File No. xxxxxx822, for a left shoulder
hematoma and partial left rotator cuff tear sustained on November 1, 1995, OWCP File No. xxxxxx841, for an
April 30, 2001 injury accepted for cervical sprain, cervical radiculopathy, and permanent aggravation of
degenerative cervical spondylosis, OWCP File No. xxxxxx376, for a right rotator cuff sprain and right shoulder
tendinitis sustained on March 7, 2006, and OWCP File No. xxxxxx700 for a left shoulder condition sustained on
June 27, 1997.
4

Appellant participated in physical therapy from July to September 2011.

5

On April 14, 2014 appellant telephoned OWCP and requested that OWCP reimburse his providers for right
shoulder surgery. He requested that OWCP combine the present claim with three of his other claims in considering
his schedule award.

2

underwent left shoulder surgery in 1996. On examination, Dr. Rogers found a slight proximal
interphalangeal extensor lag in the right fourth and fifth fingers, slightly decreased sensation in
the radial nerve, slight discomfort with range of motion, a loss of 15 to 20 degrees forward
flexion of the right shoulder, loss of 10 degrees abduction, 10-degree loss of external rotation,
and loss of 25 degrees of internal rotation, and a positive impingement sign. He also noted
limited motion of the left shoulder. Dr. Rogers opined that appellant reached maximum medical
improvement regarding the right hand and found that, according to Table 15-11 of the A.M.A.,
Guides,6 appellant had three percent whole person impairment.
On September 19, 2014 an OWCP medical adviser reviewed the medical record and a
statement of accepted facts. He concurred that appellant had attained maximum medical
improvement as of July 18, 2014 regarding the accepted metacarpal neck fractures of the right
small and ring fingers. The medical adviser noted that as Dr. Rogers had not provided specific
calculations, his impairment rating could not be utilized. He opined that appellant had two
percent impairment of the right hand using the diagnosis-based method under Table 15-2.7
Regarding the fourth finger, the medical adviser found, based on the metacarpal neck fracture a
Class of Diagnosis (CDX) 1, (diagnosis-based impairment), a grade 1 modifier for Functional
History (GMFH) as appellant did not require functional modifications in daily living, and a grade
1 modifier for findings on Physical Examination (GMPE) due to slight discomfort with range of
motion. The medical adviser noted that there was no applicable grade modifier for Clinical
Studies (GMCS) as imaging studies were used to determine the diagnostic class. Applying the
net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1),
he found a net adjustment of zero, leaving the CDX at the default grade C, equaling eight percent
impairment of the right fourth digit. The medical adviser applied the identical tables and grading
schemes to the small finger metacarpal neck fracture, also calculating eight percent impairment of
the right fifth finger. He utilized Table 15-128 to convert the eight percent fourth finger
impairment to one percent impairment of the right hand, and the eight percent fifth finger
impairment to one percent impairment of the right hand. The medical adviser therefore found a
two percent permanent impairment of the right hand.
On November 12, 2014 Dr. Rogers reviewed OWCP medical adviser’s September 19,
2014 report and concurred with his calculation of two percent permanent impairment of the right
hand.
By decision dated January 8, 2015, OWCP issued a schedule award for two percent
permanent impairment of the right hand caused by the accepted metacarpal neck fractures of the
right small and ring fingers. The period of the award ran from July 18 to August 21, 2014, a
period of 4.88 weeks. As appellant had a spouse he was entitled to the augmented 75 percent
compensation rate for claimants with eligible dependents. OWCP calculated that 75 percent of
his weekly pay rate of $2,508.58 as of April 4, 2011, the date disability began, was $1,881.44. It
6

Table 15-11, page 420 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated
from Upper Extremity Impairment.”
7

Table 15-2, page 393 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit
Impairments, Fractures.”
8

Table 15-12, page 421 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated
from Digit Impairment.”

3

noted that it added the applicable March 1, 2012 cost-of-living adjustment of 3.2 percent,
increasing appellant’s schedule award payments to $1,886.69 a week. OWCP did not provide
the mathematical calculations used to determine the amount of the increase attributable to the
CPI.
Appellant disagreed and requested a hearing, held August 11, 2015. At the hearing,
appellant’s representative noted that OWCP applied the March 1, 2012 cost-of-living increase to
schedule award compensation issued at the April 4, 2011 pay rate, increasing his monthly
payments from $1,881.44 to $1,886.69, a difference of $5.25. He contended, however, that
appellant was entitled additionally to all cost-of-living adjustments issued from April 4, 2011
through the end of the schedule award on August 21, 2014, as follows: 3.2 percent from
March 1, 2012 through February 2013; 1.7 percent from March 1, 2013 through February 2014;
1.5 percent from March 1 through August 21, 2014. The representative asserted that each of
these adjustments should have been added to appellant’s schedule award payments.
Following the hearing, appellant provided a July 28, 2015 impairment rating from
Dr. Samy Bishai, an orthopedic surgeon. Dr. Bishai reviewed medical records and opined that
appellant had attained maximum medical improvement regarding the accepted metacarpal neck
fractures of the right small and ring fingers. On right hand examination, he found a deformity of
the fourth and fifth fingers visible when appellant closed his fist, revealing “depression of the
metacarpal heads of both the right fourth and fifth fingers.” Dr. Bishai noted weakness of the
right hand compared to the left, and related appellant’s complaints of pain with use of the hand.
He found no indication on examination that appellant’s cervical spine or right shoulder injuries
affected the right hand. Referring to Table 15-2 of the A.M.A., Guides, Dr. Bishai found, for a
diagnosis of metacarpal neck fractures of the right ring and little fingers, a CDX of 1, and grade
modifiers of 2 for physical findings and functional history. Applying the net adjustment formula,
he calculated a net modifier of 2, raising the default CDX from C to E. This equaled 10 percent
impairment for each digit. Dr. Bishai found that this equaled two percent right hand
impairment.9
By decision dated and finalized October 6, 2015, an OWCP hearing representative
affirmed the January 8, 2015 schedule award, finding two percent permanent impairment of the
right hand. The hearing representative noted that Dr. Rogers and Dr. Bishai both found that
appellant had two percent impairment of the right hand. While Dr. Kimball found a greater
percentage of impairment, he did not refer to the specific tables and grading schemes on which
he based the rating. The hearing representative further found that appellant had received the
appropriate CPI adjustment and was not entitled to additional CPI increases. The schedule
award was based on a weekly pay rate of $1881.44 a week, equaling 75 percent of $2,508.88, his
weekly pay rate of April 4, 2011, the date disability began for the right hand injury. OWCP then
applied the current CPI adjustment, increasing the $1,881.44 amount to $1,886.69. The hearing
representative found that appellant’s representative failed to provide any evidence establishing
that appellant would be eligible for additional applicable CPI adjustments.10
9

Although he provided an impairment rating for the left and right shoulder and cervical radiculopathy the only
rating before the Board is the right hand impairment rating.
10

The hearing representative advised that if appellant was claiming a schedule award for the shoulder or cervical
issue it would have to be filed under those respective claim numbers.

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA11 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.12 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 In addressing upper extremity impairments under the sixth edition, the
evaluator identifies the impairment class for the diagnosed condition, which is then adjusted by
grade modifiers based on functional history, physical examination and clinical studies.15 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 The sixth edition
of the A.M.A., Guides also provides that, under certain circumstances, range of motion may be
selected as an alternative approach in rating impairment. An impairment rating that is calculated
using range of motion may not be combined with a diagnosis-based impairment and stands alone
as a rating.17
Section 8107(c)(17) of FECA18 and OWCP’s procedures19 provide that in general, loss of
less than one digit should be computed in terms of impairment to the digit itself, while loss of
two or more digits should be computed in terms of impairment to the whole hand.

11

5 U.S.C. § 8107.

12

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
14

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
15

Id. at (6th ed. 2008), pp. 494-531.

16

A.M.A., Guides 411.

17

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
18

5 U.S.C. § 8107(c)(17).

19

Supra note 11 at Chapter 2.808.5(e) (February 2013). See Charles B. Carey, 49 ECAB 528 (1998) (where the
Board remanded the case for OWCP to consider whether an accepted finger impairment also impaired the right
hand).

5

It is well established that, when the examining physician does not provide an estimate of
impairment conforming to the A.M.A., Guides, OWCP may rely on the impairment rating
provided by a medical adviser.20
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained metacarpal neck fractures of the right small and
ring fingers. On August 25, 2012 appellant claimed a schedule award. In support of his claim,
he provided a November 26, 2012 report from Dr. Kimball, an attending Board-certified
orthopedic surgeon, who opined that appellant had four percent impairment of the right hand due
to the accepted metacarpal neck fractures of the right small and ring fingers according to
unspecified elements of the A.M.A., Guides. As Dr. Kimball did not explain the basis for his
rating, OWCP could not utilize his report.21
Appellant also submitted July 18 and November 12, 2014 impairment ratings from
Dr. Rogers, an attending Board-certified orthopedic surgeon, who found that appellant had
reached maximum medical improvement. Dr. Rogers found that, according to the diagnosisbased rating method under Table 15-11, the accepted right small and ring finger fractures
equaled a two percent permanent impairment of the right hand. An OWCP medical adviser
reviewed Dr. Rogers’ clinical findings and the medical record, and agreed that appellant had two
percent permanent impairment of the right hand using the diagnosis-based rating method.
Regarding the fractures of fourth and fifth fingers, he found a class 1 CDX, a grade 1 GMFH as
appellant could perform all activities of daily living, and a grade 1 GMPE due to slight
discomfort with range of motion. The medical adviser explained that a GMCS was not
appropriate as imaging studies were used to determine the CDX. Applying the net adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1), he found a net
adjustment of zero, leaving the CDX at the default grade C, equaling an eight percent impairment
of the right fourth and fifth digits. The medical adviser used Table 15-1222 to convert the eight
percent impairment of the fourth finger to one percent right hand impairment, and the eight
percent impairment of the fifth finger impairment to one percent right hand impairment. OWCP
therefore issued the January 8, 2015 schedule award for two percent impairment of the right
hand.
Appellant disagreed, and pursuant to an August 11, 2015 hearing, provided an
impairment rating from Dr. Bishai, an attending orthopedic surgeon. Based on a thorough
examination and records review, Dr. Bishai also found two percent impairment of the right hand
due to the accepted right small and ring finger fractures. As appellant submitted no probative
evidence indicating that he sustained any additional impairment to the right hand, OWCP issued
its October 6, 2015 decision affirming the January 8, 2015 schedule award.
The Board finds that OWCP properly relied on Dr. Rogers’ clinical findings, as
interpreted by the medical adviser, in determining that the accepted fractures constituted two
20

J.Q., 59 ECAB 366 (2008).

21

D.N., 59 ECAB 576 (2008).

22

Supra note 8.

6

percent permanent impairment of the right hand. The medical adviser applied the appropriate
tables and grading schemes to Dr. Rogers’ findings on examination, and provided a clear
explanation of each element in the rating. His opinion is entitled to the weight of the medical
evidence in this case.23
On appeal, appellant’s representative contends that OWCP should have relied on the
impairment rating provided by Dr. Bishai. As set forth above, Dr. Bishai also opined that
appellant had two percent impairment of the right hand, concurring with the impairment figure
provided by Dr. Rogers and the medical adviser.
Appellant may request a schedule award or increased schedule award regarding the right
upper extremity, based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
When an injury that does not result in disability causes permanent impairment, the
beneficiary is eligible for cost-of-living adjustments under section 8146(a) of FECA, where the
award for such impairment began more than one year prior to the date the cost-of-living
adjustment took effect.24 When there is prior injury-related disability, OWCP’s procedures
provide that the cost-of-living adjustment increase start date for the schedule award is the
effective date of the applicable pay rate.25
ANALYSIS -- ISSUE 2
In calculating the January 8, 2015 schedule award, OWCP properly utilized April 4, 2011
as the start date, the date that disability began for the hand injury. As of April 4, 2011,
appellant’s pay rate was $2,508.58 a week. OWCP properly applied the 75 percent rate as
appellant had eligible dependents. It calculated that 75 percent of $2,508.58 was $1,881.44.
OWCP applied the March 1, 2012 CPI of 3.2 percent to appellant’s compensation as of April 4,
2011, increasing the weekly compensation date to $1,888.69.
The Board notes that April 4, 2011, the date that disability began is less than one year
prior to March 31, 2012, the date of the CPI OWCP apparently applied to the schedule award.
This does not meet the requirement under section 8146(a) of FECA26 that the impairment begin
more than one year prior to the effective date of the CPI. Also, OWCP did not provide the
mathematical calculations used to determine the amount of the increase attributable to the CPI.
The Board finds the issue requires clarification.
The case will be remanded to OWCP to clarify which CPI it applied to the January 8,
2015 schedule award. Also, it shall set forth the mathematical calculations used to determine the
23

Supra note 20.

24

5 U.S.C. § 8146(a); 20 C.F.R. § 10.420(b).

25

Supra note 13 at Part 2 -- Claims, Determining Pay Rates, Chapter 2.900, Exhibit 1 (January 2010).

26

5 U.S.C. § 8146(a).

7

amount of the increase in appellant’s monthly payments. Following this and any other
development deemed necessary, OWCP shall issue an appropriate decision in the case.
On appeal, appellant’s representative asserts that appellant was entitled to cost-of-living
increases from 2012 to 2014. As set forth above, the case will be remanded for clarification of
the CPI issue.
CONCLUSION
The Board finds that OWCP properly found that appellant sustained two percent
permanent impairment of the right hand, for which he received a schedule award. The Board
further finds that the case is not in posture for a decision regarding whether OWCP applied the
appropriate cost-of-living increase in calculating the January 8, 2015 schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2015 is affirmed in part regarding the percentage of
permanent impairment, and set aside and remanded in part regarding whether OWCP applied the
appropriate cost-of-living increase to appellant’s schedule award.
Issued: October 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, OSWEGO POST
OFFICE, Oswego, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1773
Issued: March 18, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On August 21, 2019 appellant, through counsel, filed a timely appeal from an April 19,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 19-1773.2
On October 13, 2018 appellant, then a 44-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained an injury to his left shoulder when he
lifted a tub of mail and felt a sharp pain radiating down his left arm while in the performance of
duty. On the reverse side of the claim form, appellant’s supervisor noted that appellant had not

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
The record provided to the Board includes evidence received after OWCP issued its April 19, 2019 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

informed her that the injured shoulder was the same one that was previously broken while on duty
in February 2018. Appellant stopped work on October 15, 2018.
The record reflects that appellant has a prior January 24, 2018 traumatic injury claim that
OWCP accepted for a displaced fracture of glenoid of left shoulder and nondisplaced fracture of
greater tuberosity of left humerus, left shoulder under OWCP File No. xxxxxx253.
By decision dated December 3, 2018, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed left shoulder conditions and the accepted October 13, 2018 employment
incident. It noted that he had a previously accepted a January 2018 traumatic injury claim, but did
not submit a Form CA-2a for a claim for a recurrence of injury.
On January 29, 2019 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated April 19, 2019, OWCP denied modification of the December 3, 2018
decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.4 Herein, appellant has an
accepted claim for displaced fracture of glenoid of left shoulder and nondisplaced fracture of
greater tuberosity of left humerus, left shoulder under OWCP File No. xxxxxx253. He
subsequently filed a traumatic injury claim for the same body part on October 13, 2018 assigned
OWCP File No. xxxxxx503, which is the claim presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx253 and determine whether appellant
has provided sufficient rationalized medical evidence to establish a left shoulder condition causally
related to the accepted October 13, 2018 employment incident. Following this and other such
further development as OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the April 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 18, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Everett, WA, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 07-2198
Issued: January 24, 2008

Oral Argument December 19, 2007

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 5, 2007 appellant, through her attorney, filed a timely appeal of a July 2,
2007 merit decision of the Office of Workers’ Compensation Programs, which denied
modification of its August 28, 2001 decision terminating her wage-loss compensation effective
that date. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this termination case.
ISSUE
The issue is whether appellant established that she had any continuing employmentrelated disability after August 28, 2001. On appeal, she contends that Dr. Thomas J. Degan, an
attending Board-certified orthopedic surgeon, made a mistake in finding that she could work
without restriction.

FACTUAL HISTORY
This case has previously been on appeal twice before the Board. In decisions dated
March 22, 20041 and March 14, 2006,2 the Board affirmed an Office hearing representative’s
July 8, 2002 decision which affirmed the Office’s August 28, 2001 termination of appellant’s
compensation benefits effective that date and the Office’s September 10, 2004 decision which
denied modification of its termination decision, respectively, on the grounds that she no longer
had any disability causally related to her January 15, 1999 employment injury. The Board found
that Dr. Degan’s June 13, 2001 medical opinion that appellant’s condition was fixed and stable
and that she could return to work without restriction was sufficient to establish that she no longer
had any employment-related disability. It also found that appellant failed to submit rationalized
medical evidence establishing that she had any continuing employment-related disability after
August 28, 2001. In the March 14, 2006 decision, the Board also affirmed the Office’s
March 29, 2005 decision, denying appellant’s request for a merit review of her claim pursuant to
5 U.S.C. § 8128(a). The facts and the circumstances of the case as set forth in the Board’s prior
decisions are incorporated herein by reference.3 The facts and the history relevant to the present
issue are set forth.
Following the Board’s March 14, 2006 decision, appellant requested reconsideration
before the Office on August 2, 2006. She submitted Dr. Degan’s May 24 and July 11, 2006
letters which stated that she was being followed for right upper extremity pain including, the
shoulder and elbow. Dr. Degan related that, since appellant’s April 6, 2000 right elbow surgery,
she had a 20-pound lifting work restriction. He indicated that her current 20-pound lifting
restriction was due to her shoulder and elbow conditions. Dr. Degan noted that appellant had not
returned to her previous job which required her to lift 70 pounds. In the July 11, 2006 letter,
Dr. Degan also stated that he was clearing up any confusion regarding his June 13, 2001
treatment note which stated that appellant could go to work “without restriction.” He stated that
he was authorizing a full-time light-duty job offer with a 20-pound lifting restriction already built
into the job offer.
By decision dated November 1, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error.4
In a decision dated July 2, 2007, the Office set aside the November 1, 2006 decision. It
found that appellant’s August 2, 2006 request for reconsideration was timely filed and addressed
1

Docket No. 03-568 (issued March 22, 2004).

2

Docket No. 05-1140 (issued March 14, 2006).

3

On January 15, 1999 appellant, then a 47-year-old letter carrier, filed a traumatic injury claim alleging that she
experienced pain in her right elbow on that date after she struck it on a metal container. The Office accepted the
claim for right lateral epicondylitis and paid appropriate compensation.
4

Appellant appealed the Office’s November 1, 2006 decision to the Board. Based on a request by appellant to
dismiss her appeal of the Office’s decision, the Board issued an order on September 14, 2007 dismissing the appeal.
Docket No. 07-343.

2

the merits of her claim. The Office denied modification of its August 28, 2001 termination
decision. It found that the contents of Dr. Degan’s May 24, 2006 letter were identical to the
contents of his July 11, 2006 letter and only addressed the July 11, 2006 letter. The Office found
that Dr. Degan rephrased information that was contained in his prior May 18, 2004 letter and
November 15, 2004 progress note.5
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating benefits shifts to appellant.6 In order to prevail,
she must establish by the weight of the reliable, probative and substantial evidence that she had
an employment-related disability, which continued after termination of compensation benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
diagnosed condition and the implicated employment factors.7 The opinion of the physician must
be based on a complete factual and medical background of appellant, 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
appellant.8
ANALYSIS
In the March 22, 2004 and March 14, 2006 decisions, the Board found that the Office met
its burden of proof to terminate appellant’s compensation benefits effective August 28, 2001.
Therefore, the burden of proof shifted to appellant to establish that she still has residuals of her
accepted employment injury.9 Dr. Degan’s May 24 and July 11, 2006 letters contain identical
information, stating that appellant had a 20-pound lifting work restriction since her April 6, 2000
5

In the May 18, 2004 letter, Dr. Degan stated that appellant’s ability to return to work was probably best
characterized by a physical capacity evaluation (PCE) which indicated that she had a 20-pound lifting capacity. He
further stated that his June 2001 opinion that appellant was able to return to full-duty work as a letter carrier was an
error because he did not believe that the PCE results supported her ability to do so. Dr. Degan also stated that his
best recollection indicated that appellant could return to a full-work schedule performing light-duty work as she had
an intervening back strain which decreased her ability to work even more in the interim between the PCE and the
shoulder becoming stable and a letter he sent to the Office. Dr. Degan concluded that the March 2001 restrictions
should remain in effect. In the November 15, 2004 treatment note, Dr. Degan opined that appellant could return to
work with a 20-pound lifting restriction. He noted that the restriction had been in effect since the surgery related to
her shoulder and elbow conditions. Dr. Degan concluded that appellant could not lift 70 pounds as required by her
job.
6

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
7

Jennifer Atherson, 55 ECAB 317 (2004).

8

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

9

See cases cited supra note 7.

3

right elbow surgery and that she was unable to return to her job which had a 70-pound lifting
requirement. In the July 11, 2006 letter, Dr. Degan stated that he was authorizing a full-time
light-duty job offer with a 20-pound lifting restriction already built into the job offer. This report
is similar to that in his 2004 report. However, Dr. Degan did not adequately explain the basis for
changing his medical opinion three years after releasing appellant to return to work. He failed to
provide sufficient explanation for the change in his prior June 13, 2001 opinion that appellant
could work without restriction. The Board finds that his May 24 and July 11, 2006 letters are
insufficient to establish that appellant has any continuing disability causally related to her
January 15, 1999 employment injury.
CONCLUSION
The Board finds that appellant has failed to establish that she had any continuing
employment-related disability after August 28, 2001.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS PACIFIC ISLANDS
HEALTH CARE SYSTEM, Honolulu, HI,
Employer
__________________________________________

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

Docket No. 21-0876
Issued: October 22, 2021

Case Submitted on the Record

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

JURISDICTION
On May 17, 2021 appellant filed a timely appeal from a May 10, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 10, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 17, 2021 appellant, then a 48-year-old support services administrator, filed a
traumatic injury claim (Form CA-1) alleging that she sustained an injury on March 2, 2020 to her
hands, neck, and shoulders while in the performance of duty. She asserted that she felt a burning
sensation and pop in both hands when moving computers at work in March 2020, and that she
developed cramping, pain, and numbness in her hands, as well as pain and burning sensation in
her neck and shoulders. Appellant also implicated typing duties on March 16, 2021 as causing
injury and described the claimed “nature of injury” as bilateral carpal tunnel syndrome, and strains
of the hands, neck, and shoulders. She stopped work on or about the time she filed her claim.
Appellant submitted a July 31, 2020 form completed by Dr. Troy Tada, an osteopath
Board-certified in anesthesiology, as part of her request for work accommodation. Dr. Tada
detailed appellant’s complaints, which included pain of the neck and shoulders, and severe upper
extremities intermittent numbness, burning, and tingling from the neck to the fingers. He opined
that appellant’s severe pain limited her functioning and required her to rest for 10 minutes at times.
In a March 25, 2021 report, Susan G. Suer, a physician assistant, diagnosed bilateral carpal
tunnel syndrome and adjustment disorder with mixed anxiety and depressed mood.
In a March 29, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her as to the type of additional factual and medical evidence required and
provided a questionnaire for her completion. OWCP noted that appellant had described a condition
that she claimed had developed over a period of more than a year and it later indicated that it was
developing her claim as one for an occupational disease. 3 OWCP afforded appellant 30 days to
respond.
In response, appellant asserted that the pain in her neck and hands had worsened over a
period of time and made it hard to fully perform her work. She reported that s he experienced
increased pain and burning sensation in her neck and hands after typing at work for 8 to 10 hours.
Appellant submitted an April 1, 2021 note from Renae Gibbs, a certified nursing assistant,
who indicated that appellant could work four or five hours per day for four weeks commencing
April 5, 2021. Ms. Gibbs also indicated that appellant should have 4 breaks of 15 minutes each
per workday.

3

The Board notes that a traumatic injury refers to injury caused by a specific event or incident or series of incidents
occurring within a single workday or work shift whereas an occupational disease refers to an in jury produced by
employment over a period longer than a single workday or shift. 20 C.F.R. §§ 10.5(q), (ee); R.V., Docket No. 18-1037
(issued March 26, 2019); Brady L. Fowler, 44 ECAB 343, 351 (1992).

2

In an April 8, 2021 work restriction profile form report, Dr. Clayton Everline, a Boardcertified internist, advised that appellant could perform full-time modified-duty work with
restrictions, including intermittently lifting/carrying no more than 21 pounds. He diagnosed neck
muscle and thoracic myofascial strains, muscle spasm, hyperalgesia, and somatic dysfunction of
the thoracic, cervical, and lumbar regions.
In an April 21, 2021 report, Dr. Frederick O’Brien, a Board-certified orthopedic surgeon,
advised that appellant could return to work for four hours per day with a 15 -minute break for every
hour that she worked. He noted that she was given splints to help with her “condition.” In a duty
status report (Form CA-17) of even date, Dr. O’Brien listed a “date of injury” of March 15, 2021
and noted that appellant reported sustaining neck and back injuries due to moving computers for
work purposes on March 2, 2020. He provided a diagnosis “due to injury” of carpal tunnel
syndrome and indicated that she could work for four hours per day with restrictions.
Appellant submitted reports from Rafael Salazar, a physical therapist, who described
therapy sessions held on April 6, 9, 15, 20, and 28, 2021. She also submitted an April 15, 2021
report from Brittney Harrell, a physical therapist.
By decision dated May 10, 2021, OWCP accepted appellant’s claimed employment
factors, including moving computers and typing. However, it denied her occupational disease
claim as it found that the medical evidence was insufficient to establish that the medical conditions
diagnosed were causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed with the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

4

Supra note 1.

5

E.S., Docket No. 18-1580 (issued January 23, 2020); M.E., Docket No. 18-1135 (issued January 4, 2019); C.S.,
Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).
6

E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB
1143 (1989).

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 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 factor(s). 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.
Appellant submitted a July 31, 2020 form report from Dr. Tada who opined that she
reported severe pain limited her functioning and required her to rest for 10 minutes at times. The
Board finds that this report is of no probative value regarding her occupational disease claim
because he did not provide an opinion regarding causal relationship between her diagnosed
conditions and the accepted employment factors. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.11 Therefore, this report is insufficient to
establish appellant’s occupational disease claim.
In an April 8, 2021 form report, Dr. Everline indicated that appellant could perform fulltime modified-duty work with restrictions, including intermittently lifting/carrying no more than
21 pounds. He diagnosed neck muscle and thoracic myofascial strains, muscle spasm,
hyperalgesia, and somatic dysfunction of the thoracic, cervical, and lumbar regions. In an
April 21, 2021 report, Dr. O’Brien advised that appellant could return to work for 4 hours per day
with a 15-minute break for every hour that she worked. He noted that she was given splints to
help with her “condition.” However, these reports are of no probative value regarding appellant’s
occupational disease claim because neither Dr. Everline nor Dr. O’Brien provided an opinion on
the cause of a diagnosed medical condition. As stated above, the Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability

7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

T.H., Docket No. 18-0704 (issued September 6, 2018). See also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Charles H. Tomaszewski, 39 ECAB 461 (1988).

4

is of no probative value on the issue of causal relationship.12 Therefore, these reports are
insufficient to establish appellant’s occupational disease claim.
In an April 21, 2021 Form CA-17, Dr. O’Brien listed a “date of injury” of March 15, 2021,
noting that appellant reported sustaining neck and back injuries due to moving computers for work
purposes on March 2, 2020 and diagnosed “due to injury” of carpal tunnel syndrome with
restrictions that she could work for four hours per day. Although he referenced her work duties,
he failed to provide a rationalized medical opinion relating the diagnosed upper extremity
condition to the noted employment factors. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how an
employment activity could have caused or aggravated a medical condition.13 Therefore, this report
is insufficient to establish appellant’s claim.
Appellant submitted a March 25, 2021 report from Ms. Suer, a physician assistant, and an
April 1, 2021 note from Ms. Gibbs, a certified nursing assistant. She also submitted reports from
Mr. Salazar, an occupational therapist, dated April 6, 9, 15, 20, and 28, 2021, and an April 15, 2021
report from Ms. Harrell, a physical therapist. However, certain healthcare providers such
as physician assistants, nurses, nurse practitioners, physical/occupational therapists, nursing
assistants, and social workers are not considered “physician[s]” as defined under FECA. 14
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence establishing that her diagnosed
medical conditions were causally related to the accepted factors of her federal employment, the
Board finds that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.

12

Id.

13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such
as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA);
see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered
physicians under FECA).
14

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ORDER
IT IS HEREBY ORDERED THAT the May 10, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0945
Issued: March 16, 2022

Case Submitted on the Record

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

On June 3, 2021 appellant filed a timely appeal from the December 8, 2020 OWCP
decision, to which the Clerk of the Appellate Boards assigned Docket No. 21-0945.
By decision dated March 13, 2020, the Board set aside the December 3, 2018 OWCP
decision and remanded the case for OWCP to apply the more stringent clear evidence of error
standard for an untimely request for reconsideration.
In accordance with the Board’s March 13, 2020 decision, OWCP issued a December 8,
2020 decision and denied appellant’s November 20, 2018 request for reconsideration of the merits
of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 7, 2022 the Board issued an order under Docket No. 19-1354, finding that the
March 13, 2020 Board decision was void ab initio and of no effect. The Board reissued the
decision on March 13, 2022, finding that appellant’s November 20, 2018 request for
reconsideration was timely filed from the most recent merit decision dated March 13, 2018.
The Board, having duly considered the matter, notes that because the Board voided the
prior decision under Docket No. 19-1354, OWCP had no jurisdiction to issue the December 8,
2020 decision. Consequently, the December 8, 2020 decision is null and void.

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to review of final adverse decisions of OWCP issued under the Federal
Employees’ Compensation Act (FECA). 1 As the December 8, 2020 decision is null and void, the
appeal assigned Docket No. 21-0945 does not contain a final adverse decision over which the
Board may properly take jurisdiction.2 Therefore, the Board finds that the appeal docketed as No.
21-0945 is dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0945 is dismissed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

See Order Dismissing Appeal, L.R., Docket No. 20-1447 (issued April 7, 2021).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Euclid, OH, Employer
__________________________________________

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

Docket No. 09-415
Issued: September 30, 2009

Case Submitted on the Record

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

JURISDICTION
On November 28, 2008 appellant filed a timely appeal from March 17 and September 29,
2008 decisions regarding a wage-earning capacity determination. Pursuant to 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 the Office properly determined that appellant’s request for
temporary total disability constituted only a request to modify a wage-earning capacity
determination. On appeal, appellant’s attorney asserts that the Office’s September 29, 2008
decision was “contrary to fact and law.”
FACTUAL HISTORY
The Office accepted that on October 13, 1994 appellant, then a 42-year-old letter carrier,
sustained a herniated L4-5 disc and aggravation of a preexisting L4-5 spondylolisthesis when he
stepped down from a step while carrying a heavy satchel of mail. On June 3, 1996 he underwent
an L4-5 anterior discectomy and on December 16, 1996 required an L4-5 interbody fusion. The

Office later accepted post-traumatic ejaculatory dysfunction as a consequence of the lumbar
surgeries.1
In February 1997, appellant accepted a permanent rehabilitation position as a modified
distribution clerk at retained pay. The assigned tasks required lifting up to 10 pounds,
intermittent sitting and standing, simple grasping and fine manipulation.
By decision dated March 17, 1999, the Office found that appellant’s actual earnings in
the modified distribution clerk position fairly and reasonably represented his wage-earning
capacity. It reduced his compensation to zero as his actual earnings equaled those of the grade
and step of his date-of-injury position.2 Appellant continued to work as a modified clerk
through 2007. He remained under medical treatment.
On December 10, 2007 appellant filed a claim for compensation (Form CA-7) for 5.76
hours on November 23, 2007. He submitted November 23 and December 11, 2007 timekeeping
forms showing that managers sent him home on November 23, 2007 as there was no work
available within his medical restrictions.
In a January 2, 2008 letter, the Office advised appellant that his claim for wage loss on
November 23, 2007 constituted a request to modify the March 17, 1999 wage-earning capacity
determination. It explained that in order to receive wage-loss compensation, he must first
establish that the wage-earning capacity determination required modification. The Office
afforded appellant 30 days to submit evidence showing the original rating was in error, his
medical condition had changed or he had been vocationally rehabilitated.
In a January 9, 2008 letter, the employing establishment stated that appellant was sent
home by management on November 23, 2007 as there was no work available within his
restrictions. The employing establishment explained that, due to automation and reduced mail
volume, there was less work available for employees with physical limitations.3
By decision dated March 17, 2008, the Office denied modification of the March 17, 1999
wage-earning capacity determination. It found that appellant had not established that the original
wage-earning capacity determination was in error, that his medical condition had changed or that
he had been vocationally rehabilitated. The Office therefore found that appellant was not
entitled to compensation “for intermittent disability on November 23 2007.”

1

The Office issued schedule awards on September 19, 2000, February 4, 2003 and April 7, 2006 for a total 21
percent impairment of the right lower extremity and 68 percent impairment of the penis.
2

On July 18, 2001 appellant, through his attorney, filed an appeal with the Board regarding a June 19, 2001
decision denying modification of a September 19, 2000 schedule award decision for impairment of the penis. This
appeal was docketed as File No. 01-2021. By order issued June 26, 2002, the Board dismissed the appeal at the
request of appellant’s attorney.
3

In a January 23, 2008 telephone memorandum, appellant noted that some of the tasks he performed since
February 1997 varied slightly from the original job description. He stated that he was able to perform these duties.

2

In a March 20, 2008 letter, appellant requested an oral hearing, held July 14, 2008. At
the hearing, appellant’s attorney asserted that the withdrawal of appellant’s light-duty job on
November 23, 2007 constituted a recurrence of disability independent of the wage-earning
capacity determination.4 The attorney emphasized that appellant was not asserting a change
either in his medical condition or in his light-duty job requirements.
By decision dated and finalized September 29, 2008, an Office hearing representative
affirmed the March 17, 2008 decision. The hearing representative found that appellant did not
submit evidence warranting modification of the March 17, 1999 wage-earning capacity
determination. Appellant did not assert or establish that the original determination was in error,
that his condition had changed or that he had been vocationally rehabilitated. The hearing
representative found that the standing wage-earning capacity decision quashed appellant’s claim
for wage-loss compensation on November 23, 2007.
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, which
remains undisturbed until properly modified.5 Modification of a standing wage-earning capacity
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was erroneous.6 The burden of proof is on the party attempting to
show a modification of the wage-earning capacity determination.7
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.8 The Office may accept a limited period of employment-related disability
without modifying the wage-earning capacity determination.9

4

Appellant also asserted that management sent him home on January 17, 2008 as no light-duty work was
available within his restrictions. However, he did not submit evidence regarding a January 17, 2008 work absence.
The Board notes that there is no formal claim of record for wage loss on January 17, 2008. As the Office did not
issue a decision directly addressing wage-loss compensation for January 17, 2008, this issue is not before the Board
on the present appeal.
5

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

6

Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Selden H. Swartz, 55 ECAB 272, 278 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
9

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

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ANALYSIS
Beginning in February 1997, appellant worked as a permanent modified distribution clerk
within the restrictions necessitated by his accepted lumbar injuries. On March 17, 1999 the
Office issued a wage-earning capacity determination based on appellant’s actual earnings as a
modified clerk. He remained in the job through 2007. On November 23, 2007 the employing
establishment sent appellant home as there was no light-duty work available that day within his
medical restrictions. Appellant filed a claim for wage loss for November 23, 2007. By decisions
dated March 17 and September 29, 2008, the Office found that he was not entitled to wage-loss
compensation because he had not established that the March 17, 1999 wage-earning capacity
required modification.
The Board finds that appellant did not establish that the March 17, 1999 wage-earning
capacity determination should be modified. As his attorney stated at the July 14, 2008 hearing,
appellant did not allege or establish a change in the accepted medical condition, his job
requirements or that he had been vocationally retrained. Therefore, appellant did not meet his
burden of proof to modify the wage-earning capacity determination.10 There remains, however,
the issue of whether appellant is entitled to wage-loss compensation on November 23, 2007 due
to a recurrence of disability.11
The Office may accept a limited period of employment-related disability without
modifying the wage-earning capacity determination.12
Appellant claimed a limited period of disability due to the temporary withdrawal of his
light-duty position on November 23, 2007. The Act’s regulations provide that withdrawal of a
light-duty assignment made specifically to accommodate an employee’s work-related physical
limitations constitutes a recurrence of disability.13 The Office, however, did not develop the
recurrence of disability issue. Therefore, the case will be remanded to the Office to determine if
appellant has established a recurrence of disability on November 23, 2007 due to the temporary
withdrawal of his light-duty position. Following this and other development deemed necessary,
the Office will issue an appropriate decision in the case.
On appeal, appellant contends that the Office’s March 17 and September 29, 2008
decisions were contrary to fact and law. As set forth above, the Office did not properly address
10

Sue A. Sedgwick, 45 ECAB 211 (1993).

11

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
12

See Katherine T. Kreger, supra note 9.

13

Title 20 C.F.R. § 10.5(x) provides: that a recurrence “also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.” See also K.C., 60 ECAB ___ (Docket No.
08-2222, issued July 23, 2009).

4

appellant’s entitlement to wage-loss compensation for November 23, 2007. The case will be
remanded to the Office for further development.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 29 and March 17, 2008 are set aside and the case
remanded for further development consistent with this decision.
Issued: September 30, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5