United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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

Docket No. 09-1075
Issued: February 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 16, 2009 appellant filed a timely appeal of the April 7, 2008 merit decision of
the Office of Workers’ Compensation Programs, which reduced his compensation benefits based
upon his ability to earn wages in the constructed position of manager of credit and collections.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether the constructed position of manager credit and collection represents
appellant’s wage-earning capacity.

1

The Board notes that in a May 6, 2008 decision, the Office granted appellant a schedule award for a 46 percent
permanent impairment of his right lower extremity for the period April 13, 2008 through October 27, 2010.
Appellant did not seek review of the schedule award decision and the Board will not address it on this appeal.

FACTUAL HISTORY
Appellant, a 57-year-old claims authorizer, sustained injuries to his low back and lower
extremities when he tripped on the stairs at work on January 15, 2003. The Office accepted his
claim for right ankle strain; low back strain; displacement of the lumbar disc; and right foot
drop.2 Appellant returned to limited duty on March 10, 2004. He retired as of May 20, 2004.3
Appellant came under the treatment of Dr. Michael Hebrard, a Board-certified physiatrist.
In a November 5, 2003 report, he provided a review of the accepted injury and medical
treatment. Dr. Hebrard noted that appellant underwent surgery for a lumbar discectomy on
June 6, 2003 and had complaints of low back pain radiating down the right lower extremity to his
foot. On examination, he noted palpable back spasms along the lumbar paraspinal muscles with
a slight decrease to light touch over the medial and lateral aspects of the right calf and foot.
Straight leg raising was positive in both the seated and supine positions. Dr. Hebrard noted that
appellant was postoperative with residual right foot drop. He noted that appellant has residual
radicular symptoms involving the low back and right leg. Dr. Hebrard recommended an
electromyogram/nerve conduction study.
Appellant was referred for examination to Dr. John Randolph Chu, a Board-certified
orthopedic surgeon. In a June 23, 2004 report, he reviewed the history of injury and lumbar
discectomy at L4-5. Appellant noted that he had retired but still had low back discomfort, for
which he recently had an epidural injection. On examination, Dr. Chu noted appellant’s gait was
consistent with a right foot drop. No spasm of the lumbar spine was found. Straight leg raising
was negative in the seated position and positive in the supine position at 70 degrees. Dr. Chu
diagnosed residual right L5 radiculopathy with degenerative disc disease of the lumbar spine.
He found that appellant was capable of returning to sedentary work full time at eight hours a day
subject to physical restriction. Dr. Chu completed an OWCP-5 work limitation form limiting
walking, standing, pushing, pulling and lifting to two hours a day with lifting limited to
20 pounds. Appellant was restricted from twisting, squatting, kneeling, climbing or operating a
motor vehicle.
The Office forwarded the report of Dr. Chu to Dr. Hebrard for review. In a July 28, 2004
report, Dr. Hebrard noted that appellant would not be able to return to his regular employment.
Due to residuals of his low back condition, he recommended that appellant return to work four
hours a day. Dr. Hebrard found decreased active range of motion of the dorsolumbar spine,
which limited appellant’s ability to bend, sit or stand for prolonged periods of time.

2

The record reveals that appellant had a prior history of surgery at C5-6 in 1999. A February 6, 2003 x-ray of the
lumbar spine revealed mild degenerative spondylosis with disc narrowing at L1-2, L2-3 and L5-S1. The vertebral
body heights were maintained. A March 31, 2003 magnetic resonance imaging (MRI) scan revealed neural
foraminal narrowing at L5-S1, a two millimeter retrolisthesis of L5 on S1, moderate disc space narrowing and
desiccation.
3

While the Office of Personal Management (OPM) authorized appellant’s retirement, he remained on benefits
under the Federal Employees’ Compensation Act. The record reflects that he elected benefits under OPM while in
receipt of compensation under the most recent schedule award.

2

The Office found a conflict in medical opinion between Dr. Hebrard and Dr. Chu as to
appellant’s work limitations due to residuals of his accepted injury. It referred him to
Dr. J.C. Pickett, a Board-certified internist, for an impartial medical examination. In a May 31,
2005 report, Dr. Pickett found that appellant had reduced range of motion of the spine, reduced
straight leg raising bilaterally, inability to dorsiflex the left foot and ankle, sensory disturbances
on the right side, atrophy on the right side, pain requiring narcotics, muscle relaxants and an antineurogenic medication to allow him to continue. He opined that appellant could start work at
four hours a day, probably for a month or two and then increase work by an hour a month until
he reached a full eight-hour day. Dr. Pickett noted, however, that his medications, which
included narcotics and a muscle relaxant, might affect his mental state. He stated that appellant
would require frequent breaks from sitting at a computer, perhaps as often as every 30 minutes
for 5 minutes.
The Office referred appellant back to Dr. Pickett, the impartial specialist, for clarification
of his medical opinion as to appellant’s work capabilities. It noted that it was unclear whether
appellant could currently work eight hours a day, five days per week. In a June 20, 2006 report,
Dr. Pickett provided detailed examination findings, noting that appellant moved about the room
with a slapping gait with the right foot, which he had to pick up to put down. In the standing
position, he flexed forward 80 degrees; he extended in the range of 20 degrees; lateral bending
was 30 degrees to the right and 30 degrees to the left with minimal pain. Appellant’s rotation
was to 80 degrees to the right and to the left. A deep knee bend was done down to the last 20
degrees, but with fair ease, watching for his balance. In the seated position, cervical range of
motion showed flexion to chin-on-chest, extension of 60 degrees, rotation of 80 degrees
bilaterally, lateral bending of 45 degrees bilaterally. The shoulders showed good range of
motion, although abduction was at 120 degrees on the right and 140 degrees on the left, while
forward flexion was at 140 degrees on the right and 155 degrees on the left. External rotation
was matching at 70 degrees and internal rotation was matching at 65 degrees bilaterally. In the
supine position, straight leg raising was tight and could not be brought beyond 60 degrees, with
mild to moderate pain. Range of motion of the hips, knees and ankles was stable. The feet
showed good passive motion. There was a lack of full dorsiflexion on the right, compared to the
left and no active motion of the forefoot or toes involving any of the extensor muscles. Flexion
on the left was good. Eversion and inversion done passively was equal bilaterally. Reflexes at
the patellar level were 2+. At the Achilles’ level, it was a trace on the right and 1+ on the left.
Dr. Pickett opined that appellant could work four hours a day on a five-day per week schedule.
He would require frequent breaks, as well as the ability to sit or stand as needed and could lift no
more than 25 pounds. Appellant was not able to work overhead, would not be able to do any
significant walking and could not climb. Dr. Pickett noted that, after having worked for several
months, appellant could increase his hours depending on the type and amount of work he was
offered.
Based on the report of the impartial specialist, appellant was referred for vocational
rehabilitation services. The employing establishment advised that no modified work was
available within his physical restrictions.4
4

The record reflects that appellant’s wife died on February 24, 2007 and rehabilitation job efforts were
interrupted.

3

Appellant continued under treatment by Dr. Hebrard, who noted his capacity to work four
hours per day with restrictions. On September 7, 2006 he diagnosed lumbosacral radiculopathy
and recurrent flare-ups, with left lower extremity radicular symptoms. On September 21, 2006
Dr. Hebrard noted that appellant was followed up for a flare-up of back pain. On examination,
he noted that appellant was in slight distress with palpable spasms at the waist. Dr. Hebrard
recommended an MRI scan and that appellant obtain a back brace. He continued appellant’s
current work status.
On March 30, 2007 Dr. Hebrard released appellant to return to work on April 2, 2007 at
eight hours a day. He listed temporary alternative work restrictions of no prolonged standing or
walking, sitting up to 30 minutes, allowance to stretch every 30 minutes for 5 minutes and no
lifting over 25 pounds.
Based upon medical restrictions provided by Dr. Hebrard, the rehabilitation specialist
identified the constructed position of “manager, credit and collections” as vocationally and
medically suitable.5 She noted that it was a sedentary position within appellant’s medical
restrictions and required occasional lifting up to 10 pounds. It was performed in an office setting
with no climbing, stooping, kneeling, crouching, crawling or balancing. Appellant’s extensive
experience as a collections manager and supervisor met the two- to four-year vocational
preparation qualification. Pursuant to a June 25, 2007 labor market survey, the position was full
time and available in sufficient numbers in appellant’s commuting area so as to be reasonably
available.
By letter dated July 6, 2007, the Office advised appellant that the constructed position of
a manager of credit and collections was found to be within his work limitations and that he was
expected to cooperate fully in efforts to secure such a position. Appellant was further advised
that the Office would provide 90 days of placement services so that he might reach this goal and
that, if he had not obtained employment within the 90-day period, his compensation could be
reduced based on his ability to earn the wages of the identified position ($52,560.00 per annum).
In a December 31, 2007 report, the rehabilitation counselor noted that she had provided
job leads to appellant on a weekly basis and that he had received services to assist him in
securing employment for more than 90 days. However, appellant was unable to obtain
employment, despite extended placement services.
On February 15, 2008 the Office issued a notice of proposed reduction of compensation,
on the grounds that appellant was partially disabled as a result of his accepted work-related
injury and could perform the position of a manager of credit/collections. It found that appellant
was physically capable of performing the duties of the position. The Office further found that he
was vocationally qualified for the position based upon his job experience and education. The
position was performed in sufficient numbers in appellant’s commuting area so as to be
considered reasonably available. Appellant was provided 30 days to submit additional evidence
or argument in support of any objection to the proposed reduction.

5

Dictionary of Occupational Titles (DOT), No. 169.167-086. The position includes directing and coordinating
activities of workers engaged in conducting credit investigations and collecting delinquent accounts of customers.

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By letter dated January 8, 2008, appellant addressed his difficulty in obtaining
employment, noting that employer’s were favoring a younger workforce.
In an April 7, 2008 decision, the Office reduced appellant’s wage-loss compensation
based on his ability to earn $930.37 per week as manager of credit/collections. The reduction in
compensation was effective April 13, 2008.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.6 Under the
Act, wage-earning capacity is determined by the actual wages received by an employee if the
earnings fairly and reasonably represent his or her wage-earning capacity.7 If the actual earnings
do not fairly and reasonably represent the employee’s wage-earning capacity or if the employee
has no actual wages, the wage-earning capacity is determined with due regard to the nature of the
injury, the degree of physical impairment, the employee’s usual employment, age, qualifications
for other employment, the availability of suitable employment and other factors and
circumstances which may affect wage-earning capacity in his or her disabled condition.8
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
medical evidence on which the Office relies must provide a detailed description of his
condition.9 Additionally, a wage-earning capacity determination must be based on a reasonably
current medical evaluation.10
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open labor market, that fits
the employee’s capabilities with regard to his or her physical limitations, education, age and
prior experience. Once this selection is made, a determination of wage rate and availability in
the open labor market should be made through contact with the state employment service or

6

20 C.F.R. §§ 10.402, 10.403 (2008); see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

7

5 U.S.C. § 8115(a) (2006).

8

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

9

Samuel J. Russo, 28 ECAB 43 (1976).

10

Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

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other applicable service.11 Finally, application of the principles set forth in the Shadrick decision
will result in the percentage of the employee’s loss of wage-earning capacity.12
ANALYSIS
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.13 The Board finds the Office met its burden in this case.
The evidence of record establishes that appellant is capable of performing the duties of the
constructed position of a manager, credit and collections.
Appellant’s claim was accepted for a right ankle strain, low back strain, herniated disc
and right foot drop following his injury on January 15, 2003. He underwent a lumbar
discectomy on June 6, 2003. Appellant was treated by Dr. Hebrard, a specialist in physical
medicine and rehabilitation and he returned to limited-duty work until his retirement.
The medical evidence reflects that appellant is not totally disabled. A conflict in medical
opinion arose between Dr. Hebrard and Dr. Chu as to the extent of appellant’s work limitations a
capacity for full-time employment. The case was referred in 2005 to Dr. Pickett, who provided
work limitations and advised that appellant could initially start work at four hours a day and
overtime, increase work by an hour a month until he reached an eight-hour day. On June 20,
2006 Dr. Pickett reiterated that appellant was not totally disabled and could start work four hours
a day on a five-day per week schedule. He provided work limitations and noted that, after
having worked for several months, appellant could increase his hours depending on the nature of
the work he was offered. Based on the finding of the impartial medical specialist, appellant was
referred for vocational rehabilitation services.
Appellant continued under the treatment of Dr. Hebrard through 2006, who noted that his
capacity for work was four hours a day. On March 30, 2007 Dr. Hebrard released appellant to
return to work as of April 2, 2007 for eight hours a day. He noted limitations on prolonged
standing, walking and sitting, allowance for appellant to move around and stretch for five
minutes every 30 minutes and limited lifting to a maximum of 25 pounds.14
Based on these work limitations, the vocational rehabilitation counselor contacted
appellant’s former employer to determine whether a job offer could be made. The employing
establishment, however, was not able to accommodate appellant’s physical restrictions.
Therefore, the vocational rehabilitation counselor determined that the constructed position of
11

The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee lives. David L. Scott, 55 ECAB 330,
335 n.9 (2004). Lack of current job openings does not equate to a finding that the position was not performed in
sufficient numbers to be considered reasonably available. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.8(c) (December 1995).
12

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

13

Curtis Hall, 45 ECAB 316 (1994).

14

The Board notes that these limitations are similar to those recommended in 2006 by Dr. Pickett who limited
significant walking, recommended frequent breaks and restricted lifting more than 25 pounds.

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“manager, credit and collection” DOT number 169.167-086 was in keeping with appellant’s
educational and work experience and conformed to the medical restrictions recommended by
Dr. Hebrard, the attending physician. The position selected was sedentary in nature and required
occasional lifting up to 10 pounds. There was no climbing, balancing, stooping, kneeling,
crouching or crawling required or exposure to extreme weather conditions as the work was
performed in an office setting. Appellant would have the capacity to take breaks as
recommended. The vocational counselor noted that appellant satisfied the two to four-year
specific vocational preparation requirement as he had extensive prior experience in his former
employment as a claims authorizer. She determined that the position was performed in sufficient
numbers as to be reasonably available in appellant’s commuting area.
Appellant noted that he was unsuccessful in securing employment during the 90-day
period he was provided job leads and employment services, stating that employer’s were
favoring a younger workforce. The Board has held that the fact that a claimant is unable to
secure employment does not establish that the constructed position on which the wage-earning
capacity determination is based in not vocationally suitable.15 Appellant did not challenge the
selected position on the basis that it was not medically suitable and the evidence of record
establishes his physical ability to perform the sedentary duties of manager, credit and collection.
The Office properly computed appellant’s wage-earning capacity under the Shadrick
formula. It compared the current pay rate for the job held when injured of $1,349.85 with the
weekly wage rate of the constructed position of $930.37 to find that appellant had a 69 percent
wage-earning capacity. Appellant has not contended that the Office’s calculations under
Shadrick were in error. The Board finds that the Office properly considered the availability of
suitable employment, appellant’s physical limitations, his usual employment and qualifications,
age and nature of injury in determining that the manager of credit and collection position
represented his wage-earning capacity.
CONCLUSION
The Board finds that the constructed manager of credit and collection position represents
appellant’s wage-earning capacity.

15

See Lawrence E. Price, 54 ECAB 590 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
U.S. POSTAL SERVICE, GREEN TREE POST
OFFICE, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-75
Issued: September 15, 2010

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 October 13, 2009 appellant, through his representative, filed a timely appeal of the
August 20, 2009 merit decision of the Office of Workers’ Compensation Programs finding that
he did not sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained neck and right shoulder injuries on October 2,
2007 in the performance of duty, as alleged.
On appeal, appellant’s representative argues that the medical evidence established that
appellant sustained an employment-related neck injury.
FACTUAL HISTORY
On October 3, 2007 appellant, then a 38-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 2, 2007 a nerve or tendon popped in his neck when
he lifted a hod out of a hamper. He felt sharp pain in his neck which ran down his right shoulder.

Appellant also experienced numbness and tingling in his right arm. On the reverse of the claim
form, June Brandt, a supervisor, stated that, based on the information relayed by appellant, he
injured himself while in the performance of duty.
In an October 4, 2007 form report, Dr. George R. Zimmerman, an attending Boardcertified internist, obtained a history that appellant was lifting a box from a hamper when he felt
a pop in his neck which was followed by severe right shoulder pain. He advised that appellant
sustained cervical radiculopathy and indicated with an affirmative mark that this condition was
caused by an employment activity.
In another form report dated October 4, 2007,
Dr. Zimmerman reiterated the history obtained from appellant regarding the October 2, 2007
incident. He advised that appellant suffered from right shoulder pain and arm paresthesia.
Dr. Zimmerman listed appellant’s physical restrictions and advised that he could not perform his
regular work duties. In prescriptions dated November 12 and 16, 2007, he advised that appellant
sustained herniated nucleus pulposus at C5-6 and neck pain. Dr. Zimmerman reiterated that
appellant was unable to perform his letter carrier work duties.
Treatment notes from appellant’s physical therapists addressed the treatment of
appellant’s neck and right upper extremity pain from November 27 to December 8, 2007.
By letter dated December 20, 2007, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It requested additional factual and medical
evidence, including a rationalized medical report from an attending physician which described
the history of his claimed injury, provided a firm diagnosis and an opinion on whether the
October 2, 2007 incident caused or aggravated his claimed condition.
Treatment notes from appellant’s physical therapist addressed the treatment of his neck
and right upper extremity pain from December 10 to 31, 2007.
In a November 23, 2007 report, Dr. Monte B. Weinberger, an attending neurosurgeon,
obtained a history that on October 2, 2007 appellant was lifting a hod which weighed 20 pounds
out of a hamper when he heard and felt a pop in his neck. Appellant experienced discomfort that
radiated to his right shoulder and blade area. He also experienced constant pain which was
exacerbated when he lifted his head or turned it to the left. Dr. Weinberger listed his findings on
physical examination and reviewed an October 10, 2007 magnetic resonance imaging (MRI)
scan, which were consistent with cervical myofascial pain.1 In reports dated December 14 and
28, 2007, he noted appellant’s complaints of pain in his right shoulder and forearm.
Dr. Weinberger listed his findings on physical examination which indicated that appellant
remained symptomatic of cervical myofascial pain. Imaging studies revealed only minor
spondylosis at C5-6 which did not require surgical intervention. In a December 28, 2007
disability certificate, Dr. Weinberger reiterated that appellant suffered from cervical myofascial
pain. He released him to return to full-duty work with restrictions on January 2, 2008.

1

In an October 10, 2007 MRI scan report of appellant’s cervical spine, Dr. Gautam P. Patel, a Board-certified
radiologist, found a moderate posterior disc bulge at C5-6. The rest of the cervical discs and spinal cord appeared to
be normal.

2

In a January 8, 2008 statement, Zack Loper, an employee, advised that he witnessed
appellant sustain a neck injury on October 2, 2007 as a result of lifting a hod of “ADVO” which
weighed 30 to 35 pounds out of a hamper.
In an October 4, 2007 progress note, Dr. Zimmerman reiterated his prior history of the
October 2, 2007 incident. He listed his findings on physical examination and diagnosed right
posterior shoulder pain and right arm dysesthesias. Dr. Zimmerman planned to review an MRI
scan of appellant’s cervical spine to determine whether he had underlying C6 radiculopathy. In
progress notes dated October 22 and November 16, 2007, he listed his findings on physical
examination which demonstrated neck and shoulder pain. Dr. Zimmerman reiterated that
appellant sustained a herniated disc at C5-6.
In a January 21, 2008 letter, appellant described the October 2, 2007 incident. While
preparing to load his vehicle, he attempted to lift a hod which was filled with “ADVO” and
weighed approximately 35 to 45 pounds out of a hamper. Appellant felt something pop in his
neck. He was in extreme pain but finished loading his vehicle. Appellant informed Dave
Trainer, a supervisor, about his injury. He was able to deliver his route and returned to work on
October 3, 2007. On that date, something again popped in appellant’s neck as he attempted to
lift a large parcel out of a hamper. He completed a Form CA-1 and was treated by
Dr. Zimmerman on October 3, 2007. Appellant continued to experience pain for which he
received treatment. He returned to limited-duty work on January 2, 2008.
By decision dated January 28, 2008, the Office denied appellant’s claim. It found the
evidence sufficient to establish that the October 2, 2007 incident occurred as alleged. However,
the medical evidence was insufficient to establish an injury causally related to the accepted
employment incident.
In a January 11, 2008 report, Dr. Weinberger noted appellant’s persistent cervical and
right shoulder pain. He listed his findings on physical examination which indicated that
appellant remained symptomatic of focal myofascial pain and muscle spasm. In a January 30,
2008 form report, Dr. Weinberger indicated with an affirmative mark that appellant’s cervical
myofascial and neck pain were caused by an October 3, 2007 work incident. In a February 22,
2008 report, he stated that appellant’s myofascial pain was improving.
On April 7, 2008 appellant requested reconsideration of the Office’s January 28, 2008
decision. In reports dated March 18 and 28, 2008, Dr. Weinberger reiterated a history of the
October 2, 2007 employment incident. He reviewed a history of appellant’s medical treatment.
Dr. Weinberger opined that he sustained a muscular neck injury involving the right trapezius
muscle at the time of the October 2, 2007 employment incident. Imaging studies revealed focal
degenerative changes at C5-6 which were not a direct sequelae of appellant’s claimed workrelated injury.
These changes were reflective of long-standing degenerative arthritis.
Dr. Weinberger advised that appellant remained symptomatic of focal right medial trapezius pain
and spasm with discomfort radiating to the shoulder area. Following pain treatment in
February 2008, he released him to his preinjury work duties while continuing to undergo
treatment. Dr. Weinberger also released appellant from his care. He did not have anything more
to offer from a neurosurgical point of view as there were no issues related to the spinal cord or
nerve roots.

3

In a March 26, 2008 report, Dr. Zimmerman reiterated his prior history of the October 2,
2007 employment incident and appellant’s medical treatment. He reviewed Dr. Weinberger’s
opinion that appellant sustained a right trapezius muscle injury on October 2, 2007.
By decision dated June 11, 2008, the Office denied modification of the January 28, 2008
decision. The medical evidence was found insufficient to establish that appellant sustained an
injury causally related to the October 2, 2007.
By letter dated May 31, 2009, appellant requested reconsideration. In a September 18,
2008 report, Dr. Zimmerman noted that appellant was involved in a motor vehicle accident
approximately one month ago, which exacerbated his right posterior shoulder and neck pain for
which he was being treated. He agreed with Dr. Weinberger’s opinion that appellant sustained a
right trapezius muscle injury on October 2, 2007.
In an August 20, 2009 decision, the Office denied modification of the June 11, 2008
decision finding that the medical evidence submitted by appellant was insufficient to establish
that he sustained an injury causally related to the October 2, 2007 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that, the individual
is an “employee of the United States within the meaning of the Act, that the claim was filed
within the applicable time limitation period of the Act, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty the Office must first
determine whether fact of injury is established. First, an employee has the burden of
demonstrating the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish a causal
relationship between the employment incident and the alleged disability and/or condition for
which compensation is claimed.5 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 claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Id.

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor his belief that the condition was
caused by his employment is sufficient to establish a causal relationship.7
ANALYSIS
The Board notes that appellant lifted a hod of “ADVO” from a hamper on October 2,
2007 while in the performance of duty as a letter carrier at the employing establishment. The
Board finds, however, that the medical evidence submitted is insufficient to establish that his
diagnosed cervical conditions were caused or aggravated by the October 2, 2007 employment
incident.
Dr. Zimmerman’s October 4, 2007 report indicated with an affirmative mark that
appellant’s cervical radiculopathy was caused by the October 2, 2007 employment incident.
Reports which only address causal relationship with a checkmark without more by way of
medical rationale explaining how the incident caused the injury are insufficient to establish
causal relationship and are of diminished probative value.8 Dr. Zimmerman did not explain how
the diagnosed condition was caused or contributed to by the accepted employment incident. The
Board finds that Dr. Zimmerman’s report is of diminished probative value as the physician did
not adequately address the issue of causal relation.
In another October 4, 2007 report, November 12 and 16, 2007 prescriptions and
October 4 to November 16, 2007 progress notes, Dr. Zimmerman found that appellant had right
shoulder and neck pain, right arm paresthesia and dysesthesias and herniated nucleus pulposus at
C5-6. He advised that appellant was unable to perform his letter carrier work duties. Pain is a
symptom, not a compensable medical diagnosis. Moreover, Dr. Zimmerman did not provide an
opinion on the causal relationship between appellant’s right shoulder and neck pain and
diagnosed right arm and cervical conditions and the October 2, 2007 employment incident.9 The
Board finds that this evidence lacks probative value.
While Dr. Zimmerman’s March 26 and September 18, 2008 reports reviewed a history of
the October 2, 2007 employment incident and found that appellant sustained a muscular neck
injury involving his right trapezius muscle due to the accepted employment incident, he did not
explain how the diagnosed condition was caused by the employment incident. The Board finds
that Dr. Zimmerman’s reports are of diminished probative value as the physician did not
adequately address the issue of causal relation.
Dr. Weinberger’s November 23 to February 22, 2008 reports and December 28, 2007
disability certificate reviewed a history of the October 2, 2007 employment incident and found
6

Solomon Polen, 51 ECAB 341 (2000).

7

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

9

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

5

that appellant sustained cervical myofascial pain and muscle spasm. He stated that imaging
studies revealed only minor spondylosis at C5-6 which did not require surgical intervention.
Dr. Weinberger did not address how he sustained a cervical condition that was caused or
contributed to by the accepted employment incident. The Board finds that his reports are of
diminished probative value.
Dr. Weinberger’s January 30, 2008 report indicated with an affirmative mark that
appellant’s cervical myofascial and neck pain were caused by an October 3, 2007 work incident.
His report is insufficient to establish appellant’s claim as he did not explain how the diagnosed
conditions were caused or contributed to by the accepted October 2, 2007 employment
incident.10
While Dr. Weinberger’s March 18 and 28, 2008 reports found that appellant sustained a
work-related muscular neck injury involving his right trapezius muscle due to the October 2,
2007 employment incident, he failed to explain how the diagnosed condition was caused by the
accepted employment incident. The Board finds that this evidence is of diminished probative
value.
The treatment notes from appellant’s physical therapists have no probative value in
establishing appellant’s claim. A physical therapist is not a “physician” as defined under the
Act.11
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained neck and right shoulder injuries causally related to the accepted
October 2, 2007 employment incident. Appellant did not meet his burden of proof.
The Board further finds that appellant’s argument on appeal that the medical evidence
established that he sustained neck and right shoulder injuries causally related to the accepted
October 2, 2007 employment incident has not been established for the reasons previously stated.
CONCLUSION
The Board finds that appellant failed to establish that he sustained neck and right
shoulder injuries on October 2, 2007, as alleged.

10

Id.

11

David P. Sawchuk, 57 ECAB 316 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2010
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.E., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL BASE, SEWELLS POINT
MAINTENANCE DIVISION, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 10-1757
Issued: April 6, 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 June 22, 2010 appellant filed a timely appeal from a May 21, 2010 decision of the
Office of Workers’ Compensation Programs denying authorization for surgery. Pursuant to the
Federal Employees’ Compensation Act1 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 the Office abused its discretion by denying authorization for a left
knee arthroplasty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on September 13, 2005 appellant, then a 57-year-old pipe fitter,
sustained a left knee contusion when a metal toolbox containing a power saw fell on his left
knee. At the time of the injury, appellant was on light duty due to osteoarthritis in his right knee
with partial chondroplasty in 2003. He stopped work on September 13, 2005 and returned to
light duty on November 28, 2005.
Dr. Arthur J. Wardell, an attending Board-certified orthopedic surgeon, followed
appellant beginning in 2003 for osteoarthritis of both knees with partial arthroplasty of the right
knee. He treated appellant for the accepted left knee injury beginning September 13, 2005. In
reports dated through 2007, Dr. Wardell diagnosed worsening post-traumatic osteoarthritis of the
left knee with a popliteal cyst, swelling, effusion, crepitus and flexion contracture.
On February 1, 2008 Dr. Wardell requested that the Office authorize a total left knee
replacement and three-day hospitalization. The Office requested that Dr. Wardell submit
additional information. In letters of February 29 and December 29, 2008, Dr. Wardell explained
that the September 13, 2005 injury caused appellant to develop post-traumatic arthritis in the left
knee, requiring total arthroplasty.
On January 6, 2009 the Office deferred approval of surgery pending additional medical
development.2 On April 22, 2009 it obtained a second opinion report from Dr. Steven C.
Blasdell, a Board-certified orthopedic surgeon, who diagnosed severe tricompartmental
osteoarthritis of the left knee, unrelated to the September 13, 2005 contusion. Dr. Blasdell stated
that the proposed arthroplasty was unrelated to the accepted injury.
By decision dated June 4, 2009, the Office denied authorization for left knee arthroplasty,
based on Dr. Blasdell’s opinion that the requested surgery was unrelated to the accepted injury.
In a June 30, 2009 letter, appellant requested a telephonic hearing, held on
October 1, 2009. At the hearing, he asserted that he had no left knee symptoms prior to the
September 13, 2005 injury. In a June 12, 2009 letter, Dr. Wardell stated that, while appellant
may have had underlying degenerative changes in the left knee, “had it not been for his injury of
September 13, 2005, he would not require a total knee replacement for symptom relief.” On
October 7, 2009 Dr. Wardell explained that the September 13, 2005 injury damaged the articular
cartilage in the left knee, permanently aggravating previously asymptomatic arthritis. He opined
that appellant’s left knee symptoms were “caused completely by his accident of September 13
2005. … Had it not been for the September 13, 2005 he would not be symptomatic in regard to
his left knee.”
By decision dated November 19, 2009, an Office hearing representative set aside the
Office’s June 4, 2009 decision. The hearing representative found a conflict of medical opinion
between Dr. Blasdell, for the government and Dr. Wardell, for appellant, regarding whether the
proposed left knee arthroplasty was required to treat the accepted September 13, 2005 left knee

2

Dr. Wardell submitted reports through March 2009 reiterating the need for left knee arthroplasty.

2

contusion. The hearing representative remanded the case to the Office for appointment of an
impartial medical examiner to resolve the conflict.
On February 16, 2010 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Jeffrey Moore, a Board-certified orthopedic surgeon, for an impartial
medical examination. Dr. Moore submitted a March 2, 2010 report noting swelling and flexion
contractures in both knees, laxity in the left knee and that appellant walked with a cane. He
obtained x-rays showing complete loss of articular cartilage in the medial compartment of the
left knee and advanced osteoarthritis bilaterally. Dr. Moore diagnosed severe tricompartmental
degenerative disease of both knees. He opined that appellant required a left knee arthroplasty
due to the natural progression of preexisting degenerative arthritis that would have become
symptomatic with or without the September 13, 2005 injury. Dr. Moore also opined that, while
it was unlikely that the September 13, 2005 contusion directly caused “all of the problems” in
appellant’s left knee, it was “certainly possible that the contusion injury aggravated or
precipitated his degenerative symptoms to some degree.” He concluded that he was in “more of
an agreement” with Dr. Blasdell than Dr. Wardell but did not state directly whether or not the
Office should approve the requested left knee arthroplasty.
By decision dated May 21, 2010, the Office denied authorization of the requested left
knee arthroplasty, based on Dr. Moore’s opinion that the requested surgery was unrelated to the
September 13, 2005 injury. It found that Dr. Moore’s report was sufficiently rationalized to
represent the weight of the medical evidence.
LEGAL PRECEDENT
Section 8103 of the Act3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The only limitation on the Office’s
authority is that of reasonableness.5 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.6
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury.7
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

Mira R. Adams, 48 ECAB 504 (1997).

6

Daniel J. Perea, 42 ECAB 214 (1990).

7

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

3

This burden of proof includes providing supporting rationalized medical evidence. Thus, in
order for surgery to be authorized, appellant must submit evidence to show that these are for a
condition causally related to the employment injury and that these were medically warranted.
Both of these criteria must be met in order for the Office to authorize payment.8
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.9 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.10 However, in a situation where the Office secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and
the opinion from such examiner requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left knee contusion on September 13, 2005
when a metal toolbox containing a power saw fell on his knee. On February 1, 2008
Dr. Wardell, an attending Board-certified orthopedic surgeon, requested authorization for a total
left knee arthroplasty due to degenerative osteoarthritis caused by the accepted injury. The
Office denied authorization on June 4, 2009 based on a second opinion from Dr. Blasdell, a
Board-certified orthopedic surgeon, who opined that appellant’s degenerative arthritis, and
therefore the proposed surgery, were unrelated to the accepted injury. The Office found a
conflict of opinion and appointed Dr. Moore, a Board-certified orthopedic surgeon, to resolve it.
Dr. Moore opined that appellant’s degenerative arthritis was likely aggravated but not entirely
due to the accepted injury. Based on his opinion, the Office issued a May 21, 2010 decision
denying authorization for left knee arthroplasty. The Board finds, however, that Dr. Moore’s
opinion requires clarification regarding the causal relationship between the accepted contusion
and the diagnosed degenerative arthritis of the left knee.
Dr. Moore found that appellant required a left knee arthroplasty due to degenerative
arthritis, a condition not accepted by the Office. However, he explained that it was “certainly
possible” that the accepted September 13, 2005 contusion “aggravated or precipitated” this
degeneration. The Board has held that where a preexisting condition becomes disabling because
of aggravation causally related to the employment, the resulting disability is compensable.12
8

Id.

9

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

11

Margaret M. Gilmore, 47 ECAB 718 (1996).

12

Henry Klaus, 9 ECAB 222 (1957).

4

Therefore, Dr. Moore’s opinion tends to support a causal relationship between the accepted
injury and the requested surgery.
Dr. Moore went on to state that he agreed more with Dr. Blasdell than Dr. Wardell
regarding the causal relationship between the need for left knee arthroplasty and work factors,
because it was unlikely that the September 13, 2005 contusion caused “all” of appellant’s
problems. However, this is an incorrect standard. A claimant need not show that a condition
was entirely or predominately due to work factors.13 There is no apportionment under the Act.
Any degree of contribution from work factors renders the condition and resulting disability
compensable.14 As Dr. Moore relied on an improper standard of causation his opinion requires
clarification.
The Board finds that, since the Office undertook to obtain an impartial medical
specialist’s opinion, it is obligated to obtain a sufficiently reasoned report as to whether the
requested left knee arthroplasty was necessitated by the accepted September 13, 2005
contusion.15 The Board will remand the case the Office to request a supplemental report from
Dr. Moore on this issue. Dr. Moore should explain whether or not the accepted injury in any
way aggravated or precipitated the degenerative arthritis in appellant’s left knee. Following this
and such other development deemed necessary, the Office shall issue an appropriate decision in
the case.
CONCLUSION
The Board finds that the case is not in posture for decision as to appellant’s request for a
left knee replacement.

13

Arnold Gustafson, 41 ECAB 131 (1989).

14

Beth P. Chaput, 37 ECAB 158 (1985).

15

See, e.g., Elmer K. Kroggel, 47 ECAB 557 (1996) (the Board remanded the case for the Office to obtain a
supplemental report from the impartial medical specialist).

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
development consistent with this decision.
Issued: April 6, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. BORDER PATROL, El Paso, TX, Employer
__________________________________________

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

Docket No. 06-2167
Issued: February 7, 2007

Case Submitted on the Record

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

JURISDICTION
On September 26, 2006 appellant filed a timely appeal of a June 20, 2006 merit decision
of the Office of Workers’ Compensation Programs with respect to a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly issued a schedule award for a three percent
permanent impairment to his left thumb commencing May 23, 2005.
FACTUAL HISTORY
On January 5, 2005 appellant, then a 31-year-old senior patrol agent, filed an traumatic
injury claim, Form CA-1, alleging that he sustained a dislocation of the left thumb when he
slipped and fell in the performance of duty on January 4, 2005. The Office accepted the claim
for left thumb dislocation.

In a report dated May 31, 2005, Dr. Johan Penninck, an orthopedic surgeon, reported that
appellant had 40 degrees of thumb flexion, with full extension. He stated that appellant had
suffered a dislocation of the interphalangeal joint of the left thumb. Dr. Penninck opined that,
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), 40 degrees of flexion was a three percent hand impairment, three percent
upper extremity impairment or a two percent whole body impairment. The date of maximum
medical improvement was reported as May 23, 2005.
The case was referred to an Office medical adviser for review. In a report dated
March 10, 2006, the Office medical adviser opined that 40 degrees of thumb flexion was
three percent thumb impairment under the A.M.A., Guides, citing Figure 16-12. The Office
medical adviser noted that this was equivalent to one percent upper extremity impairment. He
reported the date of maximum medical improvement as May 23, 2005.
By decision dated June 20, 2006, the Office issued a schedule award for a three percent
left thumb impairment. The period of the award was 2.25 weeks from May 23, 2005. The
decision stated that the period of the award was May 23 to June 13, 2005. The payment issued
was for the period May 23 to June 7, 2005.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act1 and section 10.404 of
the implementing federal regulations,2 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the Office and the Board has concurred in such adoption, as
an appropriate standard for evaluating schedule losses.3
ANALYSIS
The report from attending physician, Dr. Penninck, indicated that appellant had
40 degrees of left thumb flexion and based on this finding he opined that appellant had three
percent impairment to the hand and arm. As discussed by the Office medical adviser, however, a
proper application of the A.M.A., Guides is based on Figure 16-12. This figure provides
impairments to the thumb based on abnormal motion of the IP joint. Forty degrees of flexion in
the IP joint is three percent thumb impairment.4

1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.404.

3

James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287 (1989); Francis John Kilcoyne,
38 ECAB 168 (1986).
4

A.M.A., Guides 456, Figure 16-12.

2

Based on the medical evidence of record, appellant had a three percent permanent
impairment to the left thumb. A schedule award is paid based on the number of weeks set forth
in the Act and its regulations for the scheduled member. Under 5 U.S.C. § 8107(c)(6), the
maximum number of weeks of compensation for the loss of use of the thumb is 75 weeks,
therefore, appellant was entitled to three percent or 2.25 weeks.
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from residuals of the employment injury.5 The medical
adviser and the attending physician, Dr. Penninck, indicated that this was May 23, 2005.
Appellant was, therefore, entitled to 2.25 weeks from May 23, 2005.
The June 20, 2006 decision improperly reported the period of the award as May 23 to
June 13, 2005. On appeal, appellant’s primary concern was clarifying the number of weeks of
compensation. Although not included in the case record submitted to the Board, appellant
submitted a copy of a schedule award dated May 18, 2006 that purported to be for 3.12 weeks of
compensation, from May 23 to June 13, 2005, for a one percent impairment of the left arm.
According to appellant, he did not receive a payment pursuant to this decision as there was a
problem with the direct deposit process. The Board notes that appellant would not be entitled to
a left arm impairment based on the evidence of record. The impairment as described by
Dr. Penninck was limited to the thumb and used an impairment method that was limited to the
thumb.6
The period of the award found in the June 20, 2006 decision was apparently an
inadvertent error that repeated the period for 3.12 weeks of compensation. Appellant was
entitled to 2.25 weeks from May 23 to June 7, 2005 and the record indicated that appellant
received an appropriate payment for this period.
CONCLUSION
The Office properly issued a schedule award for a three percent permanent impairment to
his left thumb commencing May 23, 2005.

5

Albert Valverde, 36 ECAB 233, 237 (1984).

6

See Asline Johnson, 42 ECAB 619 (1991) (in this case the impairment included both a thumb impairment and a
hand impairment and the Board found that the schedule award should be paid based on loss of use of the hand).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2006 is affirmed.
Issued: February 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 17-0522
Issued: April 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 9, 2017 appellant filed a timely appeal from an October 19, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury on
August 1, 2016 in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its October 19, 2016 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board
lacks jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 17, 2016 appellant, then a 27-year-old postal support employee sales services
and distribution clerk, filed a traumatic injury claim (Form CA-1) alleging that on August 1, 2016
she injured her back while in the performance of duty. She alleged that she was “lifting advos and
felt a sharp pain in back.” Appellant stopped work at 2:30 p.m. and returned to work the same day
at 10:00 p.m. The employing establishment controverted the claim.
Reports from Clare Weinrach, PA-C, certified physician assistant, were received. In her
August 1, 2016 attending physician’s report (Form CA-20), Ms. Weinrach noted that appellant
reported that she was lifting bundles of advertisements at work and felt a sharp pain in her back.
An assessment of thoracic myofascial strain was provided. Appellant was instructed to remain off
work the remainder of her shift. In an August 1, 2016 duty status report (Form CA-17),
Ms. Weinrach diagnosed muscle and tendon strain of unspecified wall of thorax. She indicated
that appellant was to return to modified work on August 2, 2016 with restrictions. In an August 5,
2016 status report, Ms. Weinrach noted that appellant stated that her lower back pain started
bothering her last night while working. A diagnosis of strain of muscle and tendon of unspecified
wall thorax was provided. Appellant was released to work with restrictions.
Physical therapy notes dated August 5 and 8, 2016 indicated that appellant was evaluated
for a thoracic myofascial strain. Appellant reported that she was lifting at work when she
experienced pain in the middle of her back.
In a September 12, 2016 development letter, OWCP advised appellant of the evidence
needed to establish her claim. Appellant was asked to provide a detailed description as to how her
injury occurred, including details such as how heavy the item was, how far she needed to lift it,
etc. She was also asked to provide medical evidence from a qualified physician which related a
diagnosis and explained with medical rationale how the alleged employment incident caused an
injury. Appellant was informed that physician assistants were not considered physicians under
FECA unless the medical report was countersigned by a physician. OWCP afforded appellant 30
days to submit the necessary evidence.
In response, OWCP received reports dated September 7 and 21, 2016 from Ms. Weinrach
and an August 8, 2016 physical therapy report. Ms. Weinrach released appellant from care on
September 21, 2016.
By decision dated October 19, 2016, OWCP denied the claim as fact of injury was not
established. It found that the factual evidence was insufficient to establish that the incident
occurred as alleged. OWCP also noted that there was no medical evidence which established a
diagnosed condition causally related to the alleged work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any

2

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single workday
or shift.5 To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6 An employee may establish
that an injury occurred in the performance of duty as alleged, but fail to establish that the disability
or specific condition for which compensation is being claimed is causally related to the injury.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and her subsequent course of
action. An employee has not met his or her burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.9
ANALYSIS
The Board finds that appellant has failed to establish an injury in the performance of duty
on August 1, 2016, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident occurred
as alleged.10 On her Form CA-1, she alleged that she sustained a back injury on August 1, 2016
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

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

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

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

9

L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

due to “lifting advos.” Appellant’s description of the traumatic incident is vague and fails to
provide any specific detail to determine the manner in which she sustained her alleged injury. She
told Ms. Weinrach that she was lifting bundles of advertisements and had informed the physical
therapist that she was lifting at work when she experienced back pain. Appellant’s description did
not relate with specificity the circumstances of the injury.11 She did not explain in any detail what
“advos” were, how many she lifted, how far she lifted the items, or their weight. Other than lifting,
appellant also did not describe the mechanism of injury.12
Appellant was provided an opportunity to establish how her alleged injury occurred on
August 1, 2016. By letter dated September 12, 2016, OWCP requested that she describe the
factual circumstances of her injury and provided her with a factual development questionnaire for
completion. Appellant did not respond to the questionnaire and she failed to provide a narrative
statement detailing the traumatic incident prior to the issuance of OWCP’s denial of her claim on
October 19, 2016. By failing to describe the employment incident and circumstances surrounding
her alleged injury, appellant has not established that the traumatic injury occurred at work, as
alleged.13 Thus, the Board finds that she has not met her burden of proof.14
As such, it is unnecessary to address the medical evidence regarding causal relationship.15
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 an injury in the
performance of duty on August 1, 2016, as alleged.

11

See T.N., Docket No. 16-1099 (issued December 16, 2016).

12

See M.L., Docket No. 16-1723 (issued March 1, 2017).

13

G.L., Docket No. 17-1635 (issued December 5, 2017).

14

Supra note 11.

15

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT AGENCY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 18-0631
Issued: October 17, 2018

Case Submitted on the Record

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

JURISDICTION
On January 30, 2018 appellant filed a timely appeal from a January 2, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a low back condition
causally related to the accepted February 13, 2017 employment incident.
FACTUAL HISTORY
On February 15, 2017 appellant, then a 55-year-old evidence custodian, filed a traumatic
injury claim (Form CA-1) alleging that, on February 13, 2017, she developed left low back pain
1

5 U.S.C. § 8101 et seq.

while moving boxes of copier paper while in the performance of duty. She stopped work on
February 13, 2017.
In support of her claim, appellant submitted disability notes dated February 21, 23, 25, and
March 6 and 15, 2017 signed by Dr. Mary Chau, a treating Board-certified family medicine
physician, requesting that appellant be excused from work.
By development letter dated March 16, 2017, OWCP advised appellant that when her claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work
and, since the employing establishment did not controvert continuation of pay or challenge the
case, a limited amount of medical expenses were administratively approved and paid. It noted that
it had reopened her claim because the medical bills had exceeded $1,500.00. OWCP informed
appellant of the type of factual and medical evidence necessary to establish her claim and afforded
her 30 days to submit the necessary evidence.
OWCP thereafter received a May 20, 2016 magnetic resonance imaging (MRI) scan. This
scan was interpreted by Dr. Bradley Griffeth, a diagnostic radiologist, as revealing abnormal
T1/T2 bone marrow signal, mild multilevel degenerative disc disease with multilevel facet
osteophyte arthritis, and moderate canal narrowing at L4/L5.
Dr. Chau, in the February 21, 2017 report, related that appellant was seen for right hand
and back pain. Appellant related that “she twisted her back when lifting some boxes last Monday.”
Dr. Chau reviewed appellant’s MRI scan, and provided examination findings. Diagnoses included
back ache, bronchitis, right hand bursal cyst, and anxiety.
In a supplemental statement dated March 28, 2017, appellant explained that she had a prior
work-related back injury in May 2016, for which she received treatment from Dr. Chau.2
By decision dated April 20, 2017, OWCP denied appellant’s claim finding that the record
did not establish a diagnosed medical condition due to the accepted February 13, 2017 employment
incident.
On May 1, 2017 OWCP received appellant’s request for a telephonic hearing before an
OWCP hearing representative, which was held on October 16, 2017.
OWCP received notes from Stephen Sexton, a physical therapist dated March 14, 2017.
Mr. Sexton noted that on February 13, 2017 appellant was lifting heavy boxes at work when she
experienced pain in her lumbosacral spine. He diagnosed unspecified dorsalgia.
On November 10, 2017 OWCP also received an unsigned report noting that appellant was
seen on February 15, 2017 for low back pain. Appellant attributed the pain to lifting too many
boxes at work on February 13, 2017. The report noted that appellant had a preexisting back
condition which made her prone to back pain, which the February 15, 2017 lifting aggravated.

2

Appellant identified the prior claim as OWCP File No. xxxxxx400.

2

By decision dated January 2, 2018, OWCP’s hearing representative affirmed the April 20,
2017 denial of appellant’s traumatic injury claim. She found that the record was devoid of any
medical evidence diagnosing a medical condition causally related to the accepted February 13,
2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 within 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment incident identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a low back
condition causally related to the accepted February 13, 2017 employment incident.

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

M.L., Docket No. 17-1026 (issued April 20, 2018).

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In a report dated February 21, 2017, Dr. Chau noted that appellant was seen for back and
right hand pain and that appellant related twisting her back the prior Monday while lifting boxes
at work. She diagnosed back ache. However, pain and/or discomfort is only considered a
symptom, not a medical diagnosis.10 Dr. Chau also diagnosed bronchitis, right hand bursal cyst
and anxiety. Appellant, however, has not alleged that her right hand condition, bronchitis, or
anxiety were employment related and Dr. Chau offered no opinion as to the cause of the diagnosed
conditions.11 As such, her report lacks probative value as she did not address causal relationship.12
Physical therapy notes were also submitted. The Board has held that physical therapists
are not considered physicians as defined under FECA.13 Therefore, these notes are insufficient to
establish appellant’s claim.14
OWCP also received an unsigned report relating that appellant aggravated her low back
condition by lifting boxes at work on February 13, 2017. The Board has held that unsigned reports,
or ones that bear illegible signatures, cannot be considered as probative medical evidence because
they lack proper identification.15
The remaining medical evidence of record, including diagnostic test reports and disability
notes from Dr. Chau, are of limited probative value and insufficient to establish the claim as this
evidence does not provide an opinion regarding causal relationship.16
The record before the Board is without rationalized medical evidence establishing that
appellant sustained a diagnosed low back condition causally related to the accepted February 13,
2017 work incident. OWCP advised appellant that it was her responsibility to provide a
comprehensive medical report, which described her symptoms, test results, diagnosis, history of
treatment, and the physician’s opinion, with medical reasons, on the cause of her conditions.
Appellant failed to submit appropriate medical documentation in response to OWCP’s request.
10

See E.R., Docket No. 18-0391 (issued August 24, 2018).

11

See M.J., Docket No. 17-0725 (issued May 17, 2018); Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

See F.H., Docket No. 16-0204 (issued April 8, 2016); G.M., Docket No. 14-2057 (issued May 12, 2015).

13
A.C., Docket No. 08-1453 (issued November 18, 2008). Section 8101(2) of FECA provides as follows:
(2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law. The term physician includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulations by the
secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988). 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004)
(nurse practitioners are not physicians under FECA); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists are
not physicians under FECA).
14

Allen C. Hundley, 53 ECAB 551 (2002).

15

See L.A., Docket No. 17-1762 (issued August 9, 2018).

16

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).

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An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.17 Thus, the Board finds that appellant has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a low back
condition causally related to the accepted February 13, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated January 2, 2018 is affirmed.
Issued: October 17, 2018
Washington, DC

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

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

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

17
See B.A., Docket No. 17-1130 (issued November 24, 2017); S.S., 59 ECAB 315 (2008); J.M., 58 ECAB
303 (2007); Donald W. Long, 41 ECAB 142 (1989).

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

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

Docket No. 10-462
Issued: September 16, 2010

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 December 8, 2009 appellant filed a timely appeal from the July 14, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of its
earlier determination of wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.1
ISSUE
The issue is whether appellant has shown that a material change in the nature and extent
of the injury-related condition warrants modification of the Office’s May 8, 1998 wage-earning
capacity determination.

1

The Board’s review of a case is limited to the evidence in the case record that was before the Office at the time of
its final decision. Evidence not before the Office will not be considered by the Board for the first time on appeal. 20
C.F.R. § 501.2(c)(1). The Board therefore has no jurisdiction to review new evidence appellant submitted on appeal.

FACTUAL HISTORY
On August 10, 1995 appellant, then a 32-year-old clerk, sustained an injury in the
performance of duty, while she was bent over an all-purpose container, someone threw a parcel
that hit the top of her head. The Office accepted her claim for cervical strain and cervical
herniated nucleus pulposus (HNP).2
Appellant returned to part-time limited duty as a modified flat sorter. On May 8, 1998
the Office determined that her actual wages in this position fairly and reasonably represented her
wage-earning capacity. It paid compensation for her remaining loss of wage-earning capacity.
A July 27, 2001 MRI scan showed a large posterior osteophyte at the inferior margin of
C5 projecting into the canal and producing mild-to-moderate spinal stenosis, obliterating the
cerebrospinal fluid signal anterior to the cord and displacing the cord posteriorly. The cord did
not appear to be significantly compressed in the anterior-posterior plane and the osteophyte did
not extend laterally into the intervertebral foramina. There was a small disc bulge associated
with the osteophyte with no evidence of disc herniation or protrusion.
A September 14, 2004 MRI scan showed partial degeneration of the fifth intervertebral
disc with a three-to-four millimeter protrusion into the neural canal slightly lateralized to the
right and appearing to slightly compress the anterior surface of the spinal cord. It appeared to
encroach upon the right C5-6 intervertebral foramen and suggested involvement of the right C56 nerve root.
Dr. Ronnie D. Shade, the attending Board-certified orthopedic surgeon, reported on
September 14, 2007 that the level of cervical spine pain was about the same as the last office
visit. He indicated that appellant was capable of limited duty.
Appellant stopped work on December 20, 2007 and did not return.
On January 16, 2008 Dr. Shade reported that appellant’s cervical spine pain was about
the same as the last office visit. He again indicated that she was capable of limited duty.
Dr. Shade did not mention her work stoppage on December 20, 2007.
On January 24, 2008 Dr. Shade noted that appellant had been off work since
December 20, 2007: “Incapacitated and unable to work due to neck and low back pain.” He
stated that her cervical spine pain level was about the same as the last office visit. Dr. Shade
noted that appellant was requesting workers’ compensation disability. He then reported her work
status as “off work.”
On December 3, 2008 appellant filed a claim alleging that she sustained a recurrence of
total disability on December 20, 2007 as a result of her 1995 work injury. She stated that she
was now always in pain and had shooting pains in her back, neck and arms. “The pain has
gotten worse and I just feel tired all the time.”
2

An October 27, 1995 magnetic resonance imaging (MRI) scan showed an osteophyte and a C5-6 disc
protrusion.

2

Appellant submitted an October 6, 2008 report from Dr. Candace M. Martin, a
psychiatrist, who diagnosed major depressive disorder, recurrent and severe and anxiety disorder,
not otherwise specified. Dr. Martin offered her clinical opinion that these conditions were a
result of the chronic pain causally related to the 1995 work injury.
The Office denied appellant’s recurrence claim on January 13, 2009. It found that the
medical evidence did not provide a rationalized explanation of why her limited duty was no
longer suitable. The Office found no evidence that appellant’s work duties had increased and no
evidence of any change in her cervical spine that would cause an increase in disability. It noted
that Dr. Martin’s report was probative in establishing an emotional condition brought about from
the effects of the work injury. The Office indicated that it was accepting appellant’s claim for
anxiety state, unspecified.
At a May 7, 2009 oral hearing before an Office hearing representative, appellant advised
that she was not claiming vocational rehabilitation or that the prior wage-earning capacity
determination was in error. Appellant explained that she was seeking modification of the prior
determination because she had an actual worsening of her injury-related condition.
A June 11, 2009 MRI scan showed a three-to-four millimeter posterior marginal
osteophytic ridge at the C5-6 level mildly indenting the spinal cord resulting in a mild degree of
central canal stenosis. Mildly reduced innerspace widths were associated.
On June 12, 2009 a specialist in physical medicine diagnosed cervical
radiculopathy/myelopathy with no nerve conduction velocity evidence of generalized peripheral
neuropathy or other entrapments. He noted increased insertional activity and active acute
denervation mostly in the C5-6 distribution with a clinical suggestion of cervical cord
myelopathy, which he correlated with possible stenosis around C5-6.
In a decision dated July 14, 2009, the Office hearing representative found that appellant
did not meet her burden to show that the May 8, 1998 wage-earning capacity determination
should be modified. She found that the medical evidence was insufficient to establish a material
change in the nature and extent of appellant’s accepted work injuries.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act provides that in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings, if actual earnings fairly and reasonably represent her wageearning capacity. If the actual earnings of the employee do not fairly and reasonably represent
her wage-earning capacity or if the employee has no actual earnings, her wage-earning capacity
as appears reasonable under the circumstances is determined with due regard to the nature of her
injury, the degree of physical impairment, her usual employment, her age, her qualifications for
other employment, the availability of suitable employment and other factors or circumstances
which may affect her wage-earning capacity in her disabled condition.3

3

5 U.S.C. § 8115(a).

3

Once the Office issues a formal decision on wage-earning capacity, the rating should be
left in place until the claimant requests resumption of compensation for total wage loss for more
than a limited period of disability, in which instance the Office will need to evaluate the request
according to the customary criteria for modifying a formal wage-earning capacity
determination.4
Modification of a 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, in fact,
erroneous. The burden of proof is on the party attempting to show modification of the award.5
ANALYSIS
As appellant explained at her May 7, 2009 oral hearing before the Office hearing
representative, she is seeking modification of the Office’s May 8, 1998 wage-earning capacity
determination based on a material change in the nature and extent of the injury-related condition.
The Office had determined that her actual wages in a modified limited-duty assignment fairly
and reasonably represented her wage-earning capacity. Appellant stopped work completely on
December 20, 2007 and did not return. She, therefore, bears the burden to establish that a
material change in the nature and extent of the injury-related condition rendered her totally
incapable of performing her part-time limited-duty assignment.
There is no convincing medical evidence of a material change in the nature and extent of
the injury-related condition leading up to or contemporaneous with appellant’s work stoppage on
December 20, 2007. Dr. Shade, the attending orthopedic surgeon, did not report a material
change at the C5-6 level. He consistently reported that appellant’s pain level was about the same
as the last office and that her work status was limited duty. Indeed, Dr. Shade reported this on
January 16, 2008, after appellant had been off work about a month.
It was only on January 24, 2008, after appellant mentioned that she had been off work
since December 20, 2007 and was requesting workers’ compensation for disability, that
Dr. Shade noted she was incapacitated and unable to work due to neck and low back pain. Even
then, it was unclear whether Dr. Shade was giving his orthopedic assessment or merely repeating
appellant’s complaint that she could not work due to pain. He continued to report that her
cervical spine pain level was about the same as the last office visit.
The record contains diagnostic test reports through the years, but no medical report
explaining how they demonstrated a material change in appellant’s injury-related C5-6 disc
condition. The June 11, 2009 MRI scan showed a three-to-four millimeter posterior marginal
osteophytic ridge at the C5-6 level mildly indenting the spinal cord resulting in a mild degree of
central canal stenosis. The July 27, 2001 MRI scan also showed a large posterior osteophyte at
the inferior margin of C5 projecting into the canal and producing mild-to-moderate spinal
stenosis, obliterating the cerebrospinal fluid signal anterior to the cord and displacing the cord
4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

5

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

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posteriorly. Without some comparative analysis of these studies by a qualified physician, it is
difficult to find that there has been a material change in the C5-6 disc sufficient to totally
incapacitate appellant from her part-time limited-duty assignment. Dr. Shade’s treatment notes
do not make this clear.
The Board finds that appellant has not met her burden of proof to show that a
modification of the Office’s prior wage-earning capacity determination is warranted. The Board
will, therefore, affirm the Office’s July 14, 2009 decision. Appellant will continue to receive
compensation for her previously determined loss of wage-earning capacity.
CONCLUSION
The Board finds that appellant has not met her burden to show that a material change in
the nature and extent of the injury-related condition warrants modification of the Office’s May 8,
1998 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kahului, HI, Employer
__________________________________________

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

Docket No. 13-1342
Issued: May 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2013 appellant, through her attorney, filed a timely appeal from the
April 3, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether modification of OWCP’s October 27, 2006 loss of wage-earning
capacity (LWEC) determination is warranted.
FACTUAL HISTORY
On the prior appeal,2 the Board set aside OWCP’s October 25, 2011 decision denying
modification of its October 27, 2006 LWEC determination. OWCP had analyzed appellant’s
claim for wage-loss compensation under the customary criteria for modifying a LWEC
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-0316 (issued July 24, 2012).

determination without acknowledging FECA Bulletin No. 09-05 or following the procedures
outlined therein for claims, such as this, in which a limited-duty position is withdrawn pursuant
to the national reassessment process (NRP). The Board remanded the case to OWCP with
instructions to comply with the bulletin.3
On August 22, 2012 OWCP asked the employing establishment to notify in writing
whether the position on which the LWEC determination was based was an actual bona fide
position at the time of the rating. It added: “Please review your files for contemporaneous
evidence concerning the position.”
On November 14, 2012 OWCP received the following reply:
“Nov[ember] 16, 2012
“[Claims examiner]
“[Appellant’s] position was an actual bona fide position at the time of the rating.
“Thanks,”
In a decision dated December 11, 2012, OWCP denied modification of its
October 27, 2006 LWEC determination. It noted that the employing establishment had verified
in writing that the rated position was an actual bona fide position at the time of the rating and
that this was supported by the job offer in the record. Further, appellant’s current restrictions
remained the same since she was rated and were listed as permanent, indicating no material
worsening of her condition. “As such, the medical evidence indicates there has been no material
change in the nature and extent of the injury-related condition and that the reason for the loss of
work hours is the U.S. Postal Service’s NRP.” OWCP noted that the unavailability of full-time
work due to the NRP was not one of the criteria for modifying a formal LWEC determination.
On April 3, 2013 an OWCP hearing representative affirmed. He found that the July 2006
job offer contained a specific occupational title and a written description of duties. Appellant
testified that she performed the duties described, which were normal functions of a postal clerk,
and the evidence established a bona fide position. Further, the medical evidence showed no
material change in the accepted condition or prescribed work limitations. Consequently, there
was no basis for modification of the October 27, 2006 LWEC determination.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
3

On February 1, 2005 appellant, a 33-year-old mail carrier, filed an occupational disease claim alleging that her
carpal tunnel syndrome, right rotator cuff syndrome and neck and low back pain were the result of performing the
duties of her position. OWCP accepted her claim for right supraspinatus tendinitis, right carpal tunnel syndrome and
cervical, thoracic and lumbosacral subluxations.
4

5 U.S.C. § 8102(a).

2

the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity (WEC).5
Once a LWEC is determined, a modification of such determination is not warranted
unless there is a material change in the nature and extent of the injury-related condition, the
employee has been retrained or otherwise vocationally rehabilitated or the original determination
was, in fact, erroneous. These are the customary criteria for modification, and the burden of
proof is on the party attempting to show that modification of the determination is warranted.6
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal WEC decision has
been issued, OWCP must develop the evidence to determine whether a modification of that
decision is appropriate.7
ANALYSIS
As the Board noted on the prior appeal, FECA Bulletin No. 09-05 requires OWCP to
develop the evidence to determine whether a modification of a WEC determination is
appropriate. It shifts the burden onto OWCP to determine, among other things, whether the
LWEC determination was based on a bona fide position. The Board finds that OWCP did not
adequately develop the evidence under FECA Bulletin No. 09-05.
The response OWCP received to its August 22, 2012 request for information was
inadequate. The response consisted of a single sentence from someone identified as Lori, who
stated that the position offered in 2006 was a bona fide position. OWCP did not discharge its
responsibility under FECA Bulletin No. 09-05 with such a perfunctory response.
OWCP’s hearing representative attempted to rehabilitate its decision by pointing to such
things as a specific occupational title and a written description of duties, which were found the
normal functions of a postal clerk. There is evidence that the position was both sheltered and
odd-lot. The July 7, 2006 job offer stated that the position was “for incumbent only.” The labor
distribution code8 indicated that the position was one of miscellaneous customer service and
administrative duties. The offer listed 21 such duties, from assisting at the will-call window
when needed, to assisting customers standing in line to ensure the article is properly prepared for
mailing, to rubberstamping nixie mail, to answering telephones and handling routine inquiries, to
filling vending machines with stamps. The offer noted that while all of these duties fell within
appellant’s restrictions, it did not mean that she would perform them all on a daily basis.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
6

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

7

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

8

A labor distribution code is a two-digit number that describes the major work assignments within a postal
facility. The first digit represents the functional area (e.g., mail processing) and the second digit identifies the type
of activity (e.g., supervision). Glossary of Postal Terms, Publication 32 (USPS, Washington, DC), July 2013 at
p. 112.

3

As FECA Bulletin No. 09-05 points out, wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment conditions.
It remains unclear how appellant’s ability to perform the miscellaneous and sundry duties of the
July 7, 2006 job offer demonstrated that she has the capacity, with her physical limitations, to
earn the same wages ($46,331.00 annually) performing the same or similar duties in the open
labor market. It is necessary, therefore, that OWCP establish that it based the LWEC
determination on an actual bona fide position, one that demonstrates the employee’s capacity to
earn wages in the open labor market.
The Board finds that OWCP did not discharge its responsibility under FECA Bulletin
No. 09-05 and has not complied with the Board’s July 24, 2012 order. Accordingly, the Board
will set aside OWCP’s April 3, 2013 decision and remand the case for further development of
the evidence and a de novo decision on whether the October 27, 2006 LWEC determination
should be modified.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: May 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4