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

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Appearances:
Sylvia R. Johnson, for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-346 & 09-2038
Issued: March 11, 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 November 17, 2008 appellant, through her representative, filed a timely appeal from
the December 13, 2007 decision of the Office of Workers’ Compensation Programs denying her
claim of disability after September 20, 2005.1 On August 4, 2009 she filed a timely appeal from
a February 10, 2009 decision of the Office that denied modification of an August 8, 2002 wageearning capacity determination.2 The Board has jurisdiction over the merits of the claims.
ISSUES
The issues are: (1) whether appellant established that the August 8, 2002 wage-earning
capacity determination should be modified; and (2) whether appellant established that she had
disability after September 20, 2005 due to surgery performed on May 20, 2005.
1

The appeal was docketed as No. 09-346. The appeal was timely as it was filed within one year pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d).
2

The appeal was docketed as No. 09-2038. The appeal was timely as it was filed within 180 days of February 10,
2009 pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e).

On appeal, appellant contends that the employing establishment withdrew the modified
position on which she was rated resulting in a recurrence of disability. She also contends that the
report of the impartial medical specialist is not well rationalized.3
FACTUAL HISTORY
This case was previously before the Board.4 In a December 28, 2006 decision, the Board
found a conflict in medical opinion between Dr. Richard A. Nolan, an attending orthopedic
surgeon, and Dr. Philip Wirganowicz, a Board-certified orthopedic surgeon and Office referral
physician, as to whether appellant had disability commencing May 30, 2003.5 Appellant
contended that she was no longer able to perform the duties of her modified video technician
position upon which the Office based an August 8, 2002 wage-earning capacity determination.6
The case was remanded for referral to an impartial medical specialist to determine whether there
was a material change in the nature or extent of her accepted conditions such that modification of
the wage-earning capacity determination was warranted.
At the time of the Board’s prior decision, a separate issue was also under development by
the Office based on appellant’s claim of disability commencing May 20, 2005, when Dr. Nolan
performed surgery for an authorized right carpal tunnel revision. In an October 25, 2005
decision, an Office hearing representative found that the reports of Dr. Nolan supported
disability to June 1, 2005. In a June 15, 2006 decision, the Office accepted that the medical
evidence from Dr. Arthur M. Auerbach, an Office referral orthopedic surgeon, supported
appellant’s disability for four months following surgery. It paid wage-loss compensation
through September 20, 2005. On October 30, 2006 an Office hearing representative set aside the
June 15, 2006 decision, noting deficiencies in the reports of both Dr. Nolan and Dr. Auerbach.
She instructed the Office to obtain a supplemental opinion from Dr. Auerbach addressing
appellant’s period of disability following surgery to be followed by the opportunity for comment
from Dr. Nolan.
The Office requested that Dr. Auerbach clarify his medical opinion as to the extent and
duration of appellant’s disability following surgery on May 20, 2005. In a December 12, 2006
report, Dr. Auerbach reiterated that appellant had returned to her presurgery status by
September 20, 2005 and was not totally disabled after that date. He noted that appellant had
been working at modified duty full time as a video coding technician since her return to work on
3

At appellant’s request, the appeals were consolidated for purposes of this decision.

4

Docket No. 06-1809 (issued December 28, 2006).

5

Appellant’s occupational disease claim was accepted for bilateral carpal tunnel syndrome and de Quervain’s
disease. She was treated by Dr. Andrew J. Stein, an orthopedic surgeon, and underwent surgery on July 23, 2001 for
left carpal tunnel release and de Quervain’s tenolysis with cyst excision. Appellant underwent surgery on her right
side on October 19, 2001. She was released by Dr. Stein to return to modified duty as a video coding technician as
of January 7, 2002. Dr. Stein reviewed the position description and approved the job as suitable based on physical
limitations.
6

On August 8, 2002 the Office found that appellant’s actual earnings as a video coding technician fairly and
reasonably represented her wage-earning capacity.

2

January 7, 2002. Appellant stopped work on May 30, 2003. Thereafter, a repeat right carpal
tunnel surgery was performed on May 20, 2005. Dr. Auerbach characterized the nature of the
work appellant performed at modified duty as consisting of reading addresses into a headset
microphone, seeing, speaking, sitting or standing with occasional use of her hands. Based on his
examination, he found that she was capable of performing these activities following her surgery
as of September 20, 2005. Appellant was still precluded from reaching above shoulder level and
repetitive movements of the wrists and elbows, pushing, pulling or lifting secondary to her
accepted conditions and other diagnosed conditions. Dr. Auerbach noted that appellant’s
diabetes had accelerated and aggravated her carpal tunnel syndrome and bilateral shoulder
adhesive capsulitis, due to an overlap of diabetic polyneuropathy involving the upper extremities.
However, this did not disable appellant from returning to modified-duty work.
In an April 2, 2007 decision, the Office denied appellant’s claim of disability after
September 20, 2005 following the May 20, 2005 surgery. It found that the opinion of
Dr. Auerbach constituted the weight of medical evidence. The claims examiner noted that
Dr. Nolan had based his opinion on disability after September 20, 2005 on conditions not
accepted as employment related and that he had not responded to a March 17, 2007 letter
requesting that he comment on the opinion of Dr. Auerbach. On April 16, 2007 appellant
requested a hearing before an Office representative which took place on August 22, 2007. She
contended that she was effectively removed from the video technician position on February 4,
2005 and not offered another position. Therefore, no job was made available for appellant’s
return such that she sustained a recurrence of disability. Appellant’s representative contended
that the Office should develop the issue of whether all the conditions noted by Dr. Auerbach
were related to appellant’s work activities.7 She noted that Dr. Nolan did not provide comment
on Dr. Auerbach’s opinion.
On remand from the Board concerning modification of appellant’s wage-earning
capacity, the Office referred appellant, together with the statement of accepted facts, to
Dr. Kuleep Sidhu, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a September 27, 2007 report, Dr. Sidhu briefly listed appellant’s history of medical treatment.
He noted that she complained of pain and numbness in both ring and little fingers. On
examination, Dr. Sidhu reported appellant’s height and weight, noted her neck movements were
normal, listed range of motion of her shoulders and advised that her elbows had no swelling,
Tinel’s sign was negative over the carpal tunnels and both hands had scars from prior surgery.
There was no tenderness around the radial styloid. Dr. Sidhu noted that every time he touched
the carpal tunnel area, appellant complained of too much pain so that Tinel’s sign and Phalen’s
tests could not be obtained. He diagnosed bilateral carpal tunnel syndrome, status post surgical
release; possible bilateral ulnar neuropathy; bilateral de Quervain’s disease, status post release;
and shoulder tendinitis. Dr. Sidhu stated that appellant’s accepted conditions of carpal tunnel
and de Quervain’s disease were related to her employment; however, there were no objective
signs of disability due to the conditions. He noted that appellant had subjective complaints of
pain in both hands and her shoulders. Dr. Sidhu listed that appellant had nonemployment-related
preexisting diabetes with neuropathy and that her current disability was due to this problem. He
7

Appellant was separated from the employing establishment on October 28, 2006 and subsequently received a
disability retirement.

3

noted that there were no current nerve conduction studies suggestive of recurrent carpal tunnel or
ulnar neuropathy and that no additional surgical treatment was indicated. Dr. Sidhu advised that
appellant’s surgery of May 20, 2005 should have resulted in disability of no more than two
months following the procedure. He found that appellant was capable of working as a video
recording technician and provided work restriction limitations.
In an October 18, 2007 decision, the Office denied modification of the 2002 wageearning capacity determination. It found that the medical evidence from Dr. Sidhu did not
support a material change in the nature of her accepted conditions commencing May 30, 2003.
Appellant requested a review of the written record.
In a December 13, 2007 decision, an Office hearing representative found that appellant
was not entitled to compensation after September 20, 2005. She noted that the addendum report
of Dr. Auerbach established that appellant was capable of returning to work as a full-time video
voice technician within her work limitations. Moreover, Dr. Nolan had not responded to the
Office’s request that he provide comment if he disagreed. The hearing representative also noted
that Dr. Sidhu found that appellant had the capacity to return to work as a video technician at
modified duty after two months of disability.8
In a January 10, 2008 decision, an Office hearing representative set aside the October 18,
2007 decision denying modification of the 2002 wage-earning capacity determination. He found
that the report of Dr. Sidhu was not sufficient to resolve the conflict in medical opinion.
Dr. Sidhu did not review testimony provided by Dr. Nolan at a May 12, 2005 hearing or
adequately address the issue of whether there was a material change in her condition beginning
May 20, 2003 which disabled her from continuing modified duty.
On April 10, 2008 the Office requested that Dr. Sidhu provide a supplemental report
addressing whether Dr. Nolan’s 2005 testimony altered his opinion. In an April 21, 2008
response, Dr. Sidhu noted that Dr. Nolan related that appellant’s prior surgery was not successful
because it was done through a smaller incision and tenosynovectomy of the flexor tendons and
neurolysis of the nerve could not be performed. Dr. Sidhu stated that not every patient required
tenosynovectomy and it was rarely needed in patients who did not have rheumatoid arthritis.
Dr. Sidhu was not convinced by Dr. Nolan’s description of appellant as being short in stature
with chubby hands as an individual most likely to develop swelling of the hands. He stated that
working at a sedentary job, especially video recording, would not have that problem. Dr. Sidhu
stated that the additional record materials did not establish a change in the nature or extent of
appellant’s work-related disability. At the time of his evaluation, he found that she was able to
work as a video recording technician and that her job did not change or aggravate her condition.
In a May 12, 2008 decision, the Office denied modification of the 2002 wage-earning
capacity determination. The claims examiner found that the additional progress notes from
Dr. Nolan reiterated the physician’s opinion that appellant was permanently and totally disabled.

8

The hearing representative’s decision referred to Dr. Sidhu as an impartial medical specialist. The Board notes,
however, that Dr. Sidhu was not selected as an impartial medical specialist on the issue of appellant’s disability
following the May 20, 2005 surgery.

4

The reports of Dr. Sidhu, the impartial medical specialist, were found to constitute the weight of
medical opinion.
On May 29, 2008 appellant requested a hearing before an Office hearing representative
which was held on October 29, 2008. At the hearing, Dr. Nolan appeared and expressed
disagreement with the reports of Dr. Sidhu. He noted that the medical reports from Dr. Sidhu
were not thorough in presenting findings on examination of appellant. Moreover, the medical
restrictions recommended by Dr. Sidhu were not clear, as he did not fill out that portion of the
work restriction evaluation stating that appellant could work eight hours a day. The form
otherwise listed four-hour work restrictions on reaching above the shoulder, repetitive
movements of the wrists or elbows, and pushing, pulling and lifting up to 10 pounds. Dr. Nolan
stated that appellant had experienced some relief of her right carpal tunnel condition following
surgery on May 20, 2005; however, the condition had come back and that she remained
unemployable. He stated that the manner in which she sat to perform her duties as a video voice
technician had aggravated her shoulder condition.
In a February 10, 2009 decision, the Office hearing representative affirmed the denial of
modification of the 2002 wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was erroneous. The burden of proof is on the party
attempting to show that modification of the wage-earning capacity determination is warranted.9
Compensation that is based on a wage-earning capacity determination remains undisturbed until
properly modified.10 The Office’s procedure manual provides that if a formal loss of wageearning capacity decision has been issued, the rating should be left in place unless the claimant
requests resumption of compensation for total wage loss.11
Section 8123(a) 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.12 It is well established that, when
a case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background must be given special weight.13 When an impartial specialist is unable to
9

See Harley Sims, Jr., 56 ECAB 320 (2005); David L. Scott, 55 ECAB 330 (2004).

10

D.S., 58 ECAB 392 (2007).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
12

5 U.S.C. § 8123(a); see E.H., 60 ECAB ___ (Docket No. 08-1862, issued July 8, 2009).

13

L.S., 60 ECAB ___ (Docket No. 08-1270, issued July 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

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clarify or elaborate on his original report or if the supplemental report is also lacking in rationale,
the Office must submit the case to a second impartial medical specialist for the purpose of
obtaining a rationalized medical opinion on the issue giving rise to the conflict.14
ANALYSIS -- ISSUE 1
In the prior appeal, the Board found a conflict in medical opinion between Dr. Nolan for
appellant and Dr. Wirganowicz, an Office referral physician, as to whether there was a material
change in appellant’s accepted conditions as of May 30, 2003 that warranted modification of the
2002 wage-earning capacity determination. The case was remanded for referral to an impartial
medical specialist. The Office referred appellant to Dr. Sidhu, a Board-certified orthopedic
surgeon. The Board finds, however, that the reports of Dr. Sidhu are not sufficient to resolve the
conflict in medical opinion.
The September 27, 2007 report of Dr. Sidhu provided only a cursory review of
appellant’s past medical history and findings from examination. With regard to the issue he was
asked to address, Dr. Sidhu did not clearly speak to appellant’s condition as of May 30, 2003,
when she stopped work and submitted a claim for wage-loss compensation. Dr. Sidhu failed to
address the medical evidence contemporaneous to this period, stating: “Period of total disability
ended a long time ago. I feel that her last surgery on May 20, 2005 and disability should have
ended no more than two months following the procedure.” The question of appellant’s disability
due to surgery in 2005 was not the issue on which the Board remanded this case for referral to an
impartial specialist. Dr. Sidhu provided only brief responses to other questions asked by the
Office. On January 10, 2008 the Office hearing representative found other deficiencies in the
report of Dr. Sidhu as the impartial specialist omitted any discussion of the opinions of Dr. Nolan
or Dr. Wirganowicz on which the conflict in medical opinion was found. He noted the failure of
Dr. Sidhu to address whether the medical evidence established a material change in appellant’s
condition in 2003.
In the April 21, 2008 supplemental report, Dr. Sidhu provided two paragraphs, briefly
critiquing the opinion of Dr. Nolan and as reiteration of his opinion: “I do NOT feel that there is
any change in the nature and extent of her work-related disability.” Again, he provided only a
minimal response to the question certified to him and failed to address the medical evidence
contemporaneous to appellant’s claim in 2003.15 The Board finds that Dr. Sidhu’s reports are
not sufficient to resolve the conflict in medical opinion on the issue of whether appellant
established that her accepted conditions had materially changed in 2003 such that modification
of the 2002 wage-earning capacity was warranted. Dr. Sidhu’s use of all capitals in a one

14

See Nancy Keenan, 56 ECAB 687 (2005).

15

Although the file contains document captioned questions to the referee physician, the record does not contain a
list of the specific questions asked of Dr. Sidhu. The referral materials from the Office also state: “We also have a
conflict on the issue of the extend [sic] and duration of your disability status from the May 20, 2005 right carpal
tunnel syndrome procedure….”

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sentence response negating the question on which the conflict was found is not persuasive.16 The
Office properly sought clarification from the impartial specialist; however, his supplemental
report does not cure the deficiencies contained in the original report. The opinion of Dr. Sidhu is
not entitled to the special weight of the medical evidence. The case will be remanded to the
Office for referral to another impartial medical specialist.
LEGAL PRECEDENT -- ISSUE 2
Whether a particular injury causes disability for work and the duration of such disability
are medical questions that must be resolved by the preponderance of the probative and reliable
medical evidence of record. The Board will not require the Office to pay compensation for
disability in the absence of medical opinion directly addressing the specific periods for which
compensation is claimed.17 The Office may accept a limited period of employment-related
disability without modifying an existing wage-earning capacity determination.18
ANALYSIS -- ISSUE 2
Appellant underwent surgery on May 20, 2005 and claimed that she was disabled after
that date from returning to modified duty. The Office paid wage-loss compensation through
September 20, 2005 based on the opinion of Dr. Auerbach, a second opinion referral physician,
who found that appellant’s disability related to the revision right carpal tunnel surgery would
extend no more than four months. It sought clarification of the physician’s opinion and, in a
December 12, 2006 report, he reiterated that appellant had returned to her pre-surgical status by
September 20, 2005 and was not totally disabled after that date. Dr. Auerbach noted that
appellant worked at modified duty full-time as a video coding technician upon her return to work
on January 7, 2002 and had stopped work by May 30, 2003. Thereafter, the repeat right carpal
tunnel surgery was performed on May 20, 2005. The work appellant had performed at modified
duty consisted of reading addresses into a headset microphone, seeing, speaking, sitting or
standing with occasional use of her hands. Based on his examination, Dr. Sidhu found that she
was capable or returning to such employment activities as of September 20, 2005. He noted that
she was precluded from reaching above shoulder level and from repetitive movements of the
wrists and elbows, pushing, pulling or lifting secondary to her accepted conditions and other
diagnosed medical conditions. Dr. Sidhu found that appellant’s diabetes had accelerated and
aggravated her carpal tunnel syndrome and bilateral shoulder adhesive capsulitis, due to an
overlap of diabetic polyneuropathy involving the upper extremities.
Dr. Nolan, appellant’s attending physician, found that she was disabled from returning to
modified duty due to residuals of her accepted conditions. He advised that she continued to be
disabled, in part, due to residuals of her left carpal tunnel syndrome for which further surgery
16

The opportunity for and thoroughness of examination, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested and medical rationale expressed in
support of the physician’s opinion are all factors that determine the weight to be given. See John D. Jackson, 55
ECAB 465 (2004).
17

See Amelia S. Jefferson, 57 ECAB 183 (2005).

18

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

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was necessary. Dr. Nolan disagreed that her shoulder conditions were due to her diabetes,
stating that the posture of the work she performed at modified duty had contributed to her
disability for work. He recorded a 16-year history of repetitive heavy lifting and other work
activities prior to the video voice technician position work in 2001 that he also found had
aggravated her shoulder condition and cervical complaints.19 Dr. Nolan’s testimony at two
hearings before the Office provided an explanation for his opinion that appellant would be
unable to return to work as a video voice technician as it was incompatible with her physical
condition.
The Board finds that there is a conflict in medical opinion between Dr. Nolan and
Dr. Auerbach as to the extent of appellant’s disability following the 2005 revision surgery.
Dr. Auerbach stated that the period of disability was four months, following which time
appellant had the capacity to return to video voice modified duty she had been performing. He
noted that residuals of her accepted conditions did not preclude her return to work. Dr. Nolan
advised that appellant remained disabled. He disagreed to the extent that her diabetes condition
had caused or contributed to her shoulder tendinitis and impingement and opined that her work
history and modified-duty position had further aggravated her accepted carpal tunnel syndrome
resulting in her permanent disability for work. The case will be remanded to the Office to obtain
an impartial medical opinion on this aspect of the case.
The Board notes that appellant’s representative has contended that the Office must take
all of appellant’s physical conditions into consideration to establish that her modified duty was
“suitable.” This is not the standard, however, in consideration of wage-earning capacity. Those
physical ailments that preexisted the accepted condition are to be taken into consideration.
Physical conditions subsequent to and unrelated to the accepted conditions are excluded from
consideration.20 It is only when the Office attempts to terminate compensation under section
8106(c) that it must consider preexisting and subsequently acquired conditions in the evaluation
of the suitability of an offered position.21 In this case, appellant is seeking modification of the
2002 wage-earning capacity determination. Only her conditions accepted by the Office or
preexisting the 2002 determination are relevant. It is up to the medical examiners to determine
the relevance of appellant’s preexisting diabetic condition to her accepted conditions or whether
it contributed to a material change such that she became totally disabled as of May 30, 2003.
It is also contended that the employing establishment withdrew appellant’s modified duty
in February 2005 such that she sustained total disability prior to her surgery of May 20, 2005.
The evidence of record reflects that, following her surgeries in 2001, appellant was found by
Dr. Stein as capable of performing the video voice technician position full time within prescribed
work restrictions. The record reflects that she returned to work on January 7, 2002. Dr. Stein
19

The Board notes that the employing establishment disputed the history of employment activities described by
Dr. Nolan. On August 11, 2003 the employing establishment noted that appellant was attempting to have her
shoulder conditions accepted as part of her original claim. Records were submitted noting that appellant had not
carried or delivered mail since November 1991 and was removed from delivery based on a high motor vehicle
accident rate in 1992.
20

See Lee A. Dent, 54 ECAB 704 (2003).

21

See Richard P. Cortes, 56 ECAB 200 (2004).

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and Dr. Schmitz reported that, while appellant had complaints related to her diabetes and
hereditary osteochondromas, she was capable of continuing in her modified employment.
Dr. Nolan initially noted that her work as a video voice coding technician should consist of two
hours on and two hours off. Appellant subsequently submitted her claim for wage-loss
commencing May 30, 2003.
The record reflects that modified duty remained available for appellant after that date,
when the issue of whether the 2002 wage-earning capacity determination should be modified
first arose. As discussed, the conflict in medical opinion on this issue is unresolved. On
November 10, 2004 the employing establishment advised appellant that in light of the extended
period of time off work, her original pay location in Fremont would be responsible for
processing all paperwork regarding her claim. On January 26, 2005 the employing establishment
advised that the video coding room would be closed effective February 4, 2005 and that all
limited-duty employees currently working in the room would be given new job offers based on
current medical documentation. Other career employees would become unassigned clerks.
Appellant’s representative contends that this action gave rise to a compensable recurrence of
disability as of that date. The Board does not agree.
As noted, once a wage-earning capacity has been determined, it remains in effect unless
the party seeking modification establishes one of the three criteria for modifying the
determination. In this case, appellant has contended that there was a material change in the
nature and extent of her employment-related condition. Appellant’s representative relies on the
standard pertaining to establishing a recurrence of disability in situations in which there has been
no wage-earning capacity determination.22 Under the Office’s procedure manual, however, the
withdrawal of light duty after a wage-earning capacity is in place does not constitute a recurrence
of disability.23
The evidence of record reflects that, upon the closing of the video coding room on
February 4, 2005, the employing establishment advised that all limited-duty employees would be
assigned modified work within their existing physical restrictions. An Office hearing
representative previously noted that appellant never contacted the employing establishment to
ascertain what her job offer or new work assignment would be. Indeed, she has contended that
she remains totally disabled after surgery on May 20, 2005. Whether the employing
establishment identified another specific position is not the question. The issue is appellant’s
ability to earn the wages determined under the 2002 wage-earning capacity decision. As noted in
Robert A. Flint,24 the word “disability” is used in several sections of the Act. With the exception
of certain sections where the statutory context or the legislative history clearly shows that a
different meaning was intended, the word as used in the Act means “[i]ncapacity because of
injury in employment to earn wages which the employee was receiving,”25 In this case at the
22

See Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.12 (May 1997). See 20 C.F.R. § 10.509(a).
24

57 ECAB 369 (2006).

25

Id. at 374.

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time of her claimed disability. The withdrawal of the modified video coding work on
February 4, 2005 did not give rise to a recurrence of disability.26
CONCLUSION
The Board finds that the issue of whether the 2002 wage-earning capacity should be
modified is not in posture due to an unresolved conflict of medical opinion. Similarly, the
medical evidence regarding the extent of disability related to appellant’s surgery on May 20,
2005 is in conflict.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2009 and December 13, 2007
decisions of the Office of Workers’ Compensation Programs be set aside. The case is remanded
to the Office for further action in conformance with this decision.
Issued: March 11, 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

26

See K.R., 60 ECAB ___ (Docket No. 09-28, issued September 16, 2009). See also Hubert Jones, Jr., 57 ECAB
467 (2006).

10


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

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

Docket No. 19-0692
Issued: November 18, 2019

Case Submitted on the Record

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

JURISDICTION
On February 11, 2019 appellant, through counsel, filed a timely appeal from a January 9,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met his burden of proof to modify a November 18, 2015
loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On December 21, 2012 appellant, then a 51-year-old sales service associate/distribution
clerk, filed a traumatic injury claim (Form CA-1) alleging that on December 4, 2012 he injured his
lower back while lifting a bucket of flats while in the performance of duty. He stopped work on
December 15, 2012. OWCP accepted the claim for intervertebral disc disorder with myelopathy
lumbar region, L5-S1, left. On June 19, 2013 appellant underwent OWCP-approved surgical
intervention for left L5-S1 disc herniation causing L5-S1 nerve root compression. OWCP paid
appellant compensation on the supplemental rolls commencing February 9, 2013 and on the
periodic rolls commencing May 5, 2013.4
On April 1, 2015 appellant returned to work at the employing establishment in a full-time,
limited-duty capacity as a sales solution team member with wages of $56,971.00 per year. The
job involved contacting customers by telephone (intermittent six to eight hours), light data input
(intermittent four hours), answering telephones (intermittent six to eight hours), and back office
administrative assistance defined duties (intermittent eight hours). The job was sedentary in nature
and involved sitting in an office chair with supportive back, occasional standing, simple grasping
and pushing/pulling computer mouse, fine manipulation of keyboard, with lifting no more than
five pounds, and speaking on the telephone.
By decision dated November 18, 2015, OWCP found that appellant’s position on the sales
solution team fairly and reasonably represented his wage-earning capacity. It noted that he had
performed the position for more than 60 days. OWCP also found that, as his actual earnings met
or exceeded the current wages of the job he held on the date of injury, appellant had no loss in
earning capacity. Thus, it terminated appellant’s wage-loss compensation benefits. Appellant’s
entitlement to medical benefits continued.
In a March 16, 2017 duty status report (Form CA-17), Dr. Zouheir A. Shama, a general
surgeon, diagnosed left lumbar disc disorder with myopathy. He opined that appellant could work
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the January 9, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4
The record reflects that OWCP had accepted a prior July 28, 2005 claim under OWCP File No. xxxxxx915 for
herniated nucleus pulposus at L5-S1.

2

eight hours a day and five days a week with a 25-pound lifting restriction. Dr. Shama noted that
appellant should have consecutive days off and would need a break every hour from standing and
sitting.5
Appellant stopped work again on March 31, 2018. On April 13, 2018 he filed a claim for
compensation (Form CA-7), for disability from work commencing March 31, 2018 and
continuing. A March 30, 2018 PS Form 3971 (Request for or Notification of Absence) noted “IOD
-- No Accommodations.”
In an April 24, 2018 development letter, OWCP informed appellant that it appeared he was
requesting modification of its November 18, 2015 LWEC determination. It advised him of the
criteria for modifying a formal LWEC determination, including showing that there was a material
change in the nature and extent of his injury-related condition, that he had been retrained or
otherwise vocationally rehabilitated, or that the original determination was, in fact, erroneous.
OWCP afforded appellant 30 days to submit additional evidence in support of his claim.
In a February 20, 2018 reevaluation note, Dr. Shama diagnosed lumbar degenerative disc
changes, left leg sciatica symptoms and extending to left foot, continuous pain status post June 18,
2013 left hemilaminectomy, and left lumbar disc myelopathy.
In a March 29, 2018 duty status report (Form CA-17), Dr. Shama related a diagnosis of left
lumbar disc disorder with myelopathy, noted that appellant could not return to his date-of-injury
position, but indicated that appellant could sit for up to eight hours, and stand intermittently for
eight hours a day. He also indicated that appellant should have two consecutive days off and would
need a break from standing/sitting. No weight restrictions were provided.
Progress notes dated April 18 and May 16, 2018 signed by Stephanie Stagner, a nurse
practitioner, were also submitted.
OWCP received a copy of an April 21, 2018 job offer for a full-time modified sales and
service distribution associate, with consecutive days off on Sunday and Monday. The duties of
the position involved performing sales and customer duties service at retail window, distribute/sort
scheme mail to carrier routes, and distribute/sort P.O. Box mail to customers for three to four hours
a day and “process RFS mail” one to two hours a day. The position required continuous sitting,
intermittent standing, and intermittent pushing/pulling up to eight hours a day. Appellant rejected

5
On March 16, 2017 the employing establishment offered appellant a full-time modified position as a sales and
service distribution associate, effective March 18, 2017. Appellant rejected the position on March 22, 2017, claiming
it violated his doctor’s recommendations for consecutive days off. He stopped work on March 23, 2017 and filed
Form CA-7 claims for compensation for the period March 18, 2017 and continuing. By decision dated June 13, 2017,
OWCP denied appellant’s claim for compensation for the period March 23, 2017 and continuing for a recurrence of
disability. On June 23, 2017 appellant requested reconsideration of OWCP’s June 13, 2017 decision. In a July 17,
2017 development letter, OWCP advised appellant of the criteria for modifying a formal LWEC determination and
afforded him 30 days to submit additional evidence. By decision dated September 27, 2017, it affirmed, the June 13,
2017 decision as modified, finding that appellant failed to meet his burden of proof to modify the November 18, 2015
LWEC determination.

3

the position indicating that his medical restrictions mandated that the physical work requirements
be sedentary in nature.
By decision dated June 26, 2018, OWCP denied appellant’s claims for compensation,
finding that he had not met his burden of proof to modify the November 18, 2015 LWEC
determination. It noted that Dr. Shama had increased appellant’s weight limit to 25 pounds on his
July 6, 2017 Form CA-17 and Dr. Shama’s March 29, 2018 Form CA-17 was unclear as to
whether appellant was at a sedentary or medium work capacity. OWCP indicated that the April 21,
2018 job offer was based on the March 29, 2018 Form CA-17, which fell within sedentary
capacity.
Appellant continued to submit CA-7 claims for compensation claiming no accommodation
for the period April 16, 2018 and continuing.
On July 10, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 5, 2018. He argued that the issue
was a recurrence of disability as appellant experienced a change in his employment duties on
March 30, 2018, when his job was no longer sedentary in nature and appellant would be required
to stand while working.
OWCP received job offers dated July 9 and 12, 2018.6
Dr. Shama continued to submit Form CA-17 duty status reports, noting appellant’s
restrictions. On May 10, 2018 he related that appellant could lift from 5 to 10 pounds eight hours
a day, sit for eight hours a day, and stand intermittently for eight hours a day. On August 28 and
September 25, 2018 Dr. Shama related that appellant needed to take intermittent breaks between
sitting and standing, and should have two consecutive days off.
OWCP also received progress notes dated from June 24 through September 6, 2018 from
Dr. Chad Achilles, Board-certified in anesthesiology and pain medicine, and Dr. Rodrigo Duralde,
Board-certified in anesthesiology. These reports related appellant’s pain complaints and related
that appellant was seen for routine evaluation and medication refill.
OWCP also received reports from Dr. Kamal C. Kabakibou, a Board-certified
anesthesiologist, regarding appellant’s work restrictions. In a report dated July 31, 2018,
Dr. Kabakibou noted appellant’s medical history. He related appellant’s physical examination
findings and diagnosed postlaminectomy syndrome and left side sciatica. Dr. Kabakibou
concluded that appellant could perform light-duty work for eight hours a day, while sitting. OWCP
also received progress notes from Dr. Kabakibou from August 28, 2018 through January 11, 2019
wherein he reiterated appellant’s diagnoses and noted appellant’s pain complaints.
Appellant continued to submit Form CA-7 claims for compensation for the period
commencing September 1, 2018.

6

Appellant accepted the July 12, 2018 job offer on July 17, 2018.

4

By decision dated January 9, 2019, an OWCP hearing representative affirmed the June 26,
2018 OWCP decision denying appellant’s claims for compensation for disability from work
commencing March 31, 2018. He found that appellant had not established any of the criteria for
modifying its formal November 18, 2015 LWEC determination.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), 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. Generally, wages actually earned are the best measure of wage-earning capacity and, in
the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.7 A determination regarding
whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be
made only after an employee has worked in a given position for at least 60 days.8 Wage-earning
capacity may not be based on an odd-lot or make-shift position designed for an employee’s
particular needs, a temporary position when the position held at the time of injury was permanent,
or a position that is seasonal in an area where year-round employment is available.9
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.10 OWCP’s procedures provide
that, “[i]f a formal [LWEC] decision has been issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss. In this instance, the CE [claims
examiner] will need to evaluate the request according to the customary criteria for modifying a
formal [LWEC].”11 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.12
When a formal LWEC determination is in place and light duty is withdrawn, the proper
standard of review is not whether appellant sustained a recurrence of disability, but whether OWCP

7

E.W., Docket No. 14-0584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
9

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, id. at Chapter
2.815.5c (June 2013).
10

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Modification of Loss of Wage-Earning
Capacity Decisions, Chapter 2.814.9(a) (June 2013). See M.F., Docket No. 18-0323 (issued June 25, 2019); Harley
Sims, Jr., 56 ECAB 320 (2005).
12

See J.A., Docket No. 18-1586 (issued April 9, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

5

should modify its decision according to the established criteria for modifying a formal LWEC
determination.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify the November 18,
2015 LWEC determination.
The evidence of record reflects that appellant began performing the duties of a sales
solution team member on or about March 30, 2015 and continued to perform such duties for almost
two years until the position was abolished on March 20, 2017. There is no evidence of record to
support that the LWEC determination was in anyway erroneous in nature. There is also no
evidence that appellant has been retrained or otherwise vocationally rehabilitated.14
Additionally, there is no medical evidence of record to support that appellant sustained a
material change in the nature or extent of his injury-related condition on and after March 31, 2018,
when he stopped work, such that he could not perform the duties of the sedentary sales solution
team member position, which was the basis of his LWEC.15
In a March 29, 2018 Form CA-17, Dr. Shama diagnosed left lumbar disc disorder with
myelopathy. He noted that, while appellant was unable to perform his date-of-injury position, he
was capable of performing sedentary work, with intermittent standing eight hours a day. OWCP
thereafter continued to receive CA-17 forms from Dr. Shama. In a form dated May 10, 2018,
Dr. Shama related that appellant could lift from 5 to 10 pounds for eight hours a day, sit for eight
hours a day, and stand intermittently for eight hours a day. On August 28 and September 25, 2018
he related that appellant needed to take intermittent breaks between sitting and standing.
Dr. Shama’s reports do not establish, with medical rationale, that appellant had experienced a
worsening of the accepted medical conditions with no intervening injury resulting in new or
increased work-related disability.16 He did not explain that appellant’s medical condition after
March 31, 2018 had worsened such that he could not perform the duties of the sedentary sales
solution team member position, which allowed for occasional standing. These reports are thus
insufficient to warrant modification of the LWEC determination.
Reports dated from June 24 through September 6, 2018 indicate that appellant was seen
for pain medication refills by Drs. Achilles and Duralde. These reports do not provide any
rationalized medical opinion that appellant’s medical condition had materially worsened to cause

13

C.P., Docket No. 11-1459 (issued February 7, 2012); Tamra McCauley, 51 ECAB 375, 377 (2000); T.M., id.

14

Supra note 10.

15

See D.T., Docket No. 18-0174 (issued August 23, 2019).

16

Id.

6

further disability; therefore, they are insufficient to establish that appellant’s LWEC determination
should be modified.17
OWCP also received a series of progress reports from Dr. Kabakibou, which related
appellant’s physical examination findings, and diagnosed postlaminectomy syndrome and left side
sciatica. In his July 31, 2018 report, Dr. Kabakibou related that appellant could perform light duty,
eight hours a day, while sitting. In his subsequent reports dated from August 28, 2018 through
January 11, 2019, he noted appellant’s pain complaints and reiterated his diagnoses. Insofar as
Dr. Kabakibou related that appellant could perform light work, his reports indicate that appellant’s
condition had improved, rather than worsened. Again, as his reports did not establish that appellant
sustained a material worsening of his accepted employment-related conditions, such that he was
precluded from performing his LWEC position, they are insufficient to establish that the LWEC
determination should be modified.18
Appellant also submitted reports signed solely by a nurse practitioner. These reports do
not constitute competent medical evidence because nurse practitioners are not considered
“physician[s]” as defined under FECA.19 Consequently, the medical findings and/or opinions of
a nurse practitioner will not suffice for purposes of establishing entitlement to compensation
benefits.20
The Board finds that, for these reasons, appellant has not met his burden of proof to modify
OWCP’s November 18, 2015 LWEC determination based upon a material worsening of his
accepted conditions.
On appeal counsel argues that the issue in this case concerns a recurrence of disability, not
modification of an LWEC because appellant’s LWEC position was withdrawn. OWCP’s hearing
representative found and the factual evidence of record supports that appellant was offered a new
modified position, which effectively withdrew his sedentary position, effective March 31, 2018.
OWCP procedures provide that, when the employing establishment has withdrawn a light-duty
assignment, which accommodated the claimant’s work restrictions and a formal wage-earning
capacity decision has been issued, the decision will remain in place, unless one of the three
accepted reasons for modification applies.21 The Board has also previously explained that absent
a showing that the wage-earning capacity should be modified, appellant has no disability under
FECA and is not entitled to compensation for wage loss based on the withdrawal of his limited17

Id.

18

B.S., Docket No. 19-0515 (issued July 25, 2019).

19

See R.C., Docket No. 19-0376 (issued July 15, 2019); S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a
nurse practitioner is not a physician under FECA). A report from a nurse practitioner will be considered medical
evidence only if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013). Under FECA the term “physician” includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by the applicable state law.
20

See id.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2(c) (June 2013).

7

duty position.22 Accordingly, the Board finds that appellant has not met his burden of proof to
modify the November 18, 2015 LWEC determination.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify the November 18,
2015 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

22

S.L., Docket No. 10-1478 (issued February 10, 2011); K.R., Docket No. 09-415 (issued February 24, 2010).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, KNOXVILLE
PROCESSING & DISTRIBUTION CENTER,
Knoxville, TN, Employer
__________________________________________

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

Docket No. 10-1967
Issued: June 22, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant filed a timely appeal from a June 11, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration. The
record also contains a March 25, 2010 merit decision denying appellant’s claim for
transportation services. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over both the merits of the case.
ISSUES
The issues are: (1) whether appellant is entitled to payment of transportation expenses
for the period November 30 through December 18, 2009; and (2) whether the Office properly
denied appellant’s request for reconsideration under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2009 appellant, then a 57-year-old mail processing clerk, filed a traumatic
injury claim alleging that on August 22, 2009 she injured her right shoulder while picking up and
moving tubs.2 The Office accepted the conditions of right shoulder sprain, right shoulder rotator
cuff tear, right shoulder infraspinatus tear, right shoulder supraspinatus tear and right shoulder
suprascapular tear. It authorized right shoulder arthroscopy, which appellant underwent on
November 11, 2009. The Office paid compensation benefits. Appellant returned to full-time
limited duty on November 30, 2009 with the employing establishment providing transportation
to and from work.3 She returned to full duty in her regular job on July 8, 2010.
On December 21, 2009 the Office received a request for payment of transportation
services provided to appellant by ACCESS ONTIME transportation.4 In a December 29, 2009
letter, it informed her that it received a request for authorization of transportation services
provided to her by ACCESS ONTIME and advised her of the evidence required to support her
claim. The Office noted that, if the transportation was used for getting her to work, the fees were
not reimbursable.
In a November 24, 2009 treatment note, Dr. W. David Hovis, a Board-certified
orthopedic surgeon, provided his postsurgical impressions. He advised appellant not to drive
while taking narcotics and with her arm in a sling. In a December 22, 2009 treatment note,
Dr. Hovis released her to work full duty with a limitation of no use of her right arm.
Physical therapy daily progress notes pertaining to appellant’s postoperative right
shoulder condition dated December 1, 4, 8, 14 and 21, 2009 were also received.
In January 6, 2010 telephone calls, the employing establishment informed the Office that
it had approved appellant’s transportation to and from work and to and from physical therapy
appointments for a two-week period.5 The employing establishment noted that appellant’s use of
ACCESS ONTIME transportation service was approved. The Office informed the employer that
it was not able to provide transportation to and from work. On January 7, 2010 it contacted
appellant and informed her that it could not authorize payment for transportation for an employee
to get to work.

2

The record indicates that appellant’s job involved fixed hours and place of work.

3

In a December 1, 2009 telephone memorandum, an Office field nurse advised the Office that, while appellant’s
physician restricted appellant from driving, the employing establishment was willing to provide a way for her to get
to work. On December 6, 2009 the field nurse noted that the employer was willing to accommodate appellant and
drive her to and from work on November 30, 2009.
4

The transportation services were rendered on December 21, 2009, which is outside the claimed period of
November 30 through December 18, 2009.
5

The two-week period was from November 30 through December 18, 2009.

2

In a February 2, 2010 letter, the Office informally denied appellant’s claim for payment
of transportation services provided to her by ACCESS ONTIME. It noted that it made no
provision for transportation to and from a place of employment. On February 15, 2010 appellant
requested a formal decision be issued.
By decision dated March 25, 2010, the Office formally denied appellant’s claim for
payment of transportation charges on the basis that the medical evidence failed to support that
she was unable to drive to work or to obtain other transportation during the claimed period.
In a May 28, 2010 letter, appellant requested reconsideration. She advised that her
physician restricted her from driving for six weeks after surgery. Appellant stated that she lived
70 miles round trip from work, that there was no bus service from where she lives to work and
that, since she lives alone, there was no one to take her to work.
By decision dated June 11, 2010, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Medical expenses, along with transportation and other expenses incidental to securing
medical care, are covered by section 8103 of the Act.6 This section 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
Secretary of Labor considers likely to cure, give relief, reduce the degree of the period of any
disability or aid in lessening the amount of any monthly compensation. The employee may
initially select a physician to provide medical services, appliances and supplies, in accordance
with such regulations and instructions as the Secretary considers necessary and may be furnished
necessary and reasonable transportation and expenses incident to the securing of such services,
appliances and supplies. In interpreting this section, 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.7
Office regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, the Office will
consider the availability of services, the employee’s condition and the means of transportation.
Generally, 25 miles from the place of injury, the work site or the employee’s home, is considered
a reasonable distance to travel.8

6

5 U.S.C. § 8103(a).

7

D.C., 58 ECAB 620 (2007). Lecil E. Stevens, 49 ECAB 673, 675 (1998); see Marjorie S. Geer, 39 ECAB 1099
(1988) (the Office has broad discretionary authority in the administration of the Act and must exercise that discretion to
achieve the objectives of section 8103).
8

20 C.F.R. § 10.315.

3

ANALYSIS -- ISSUE 1
Appellant underwent a November 11, 2009 right shoulder arthroscopy.
On
November 30, 2009 she returned to full-time limited-duty work with the employing
establishment providing transportation to and from work. The employing establishment
indicated that it had agreed to pay appellant’s transportation expenses to and from work as well
as to and from physical therapy appointments for a two-week period, November 30 through
December 18, 2009. Appellant also attended physical therapy sessions in December 2009. The
Office subsequently adjudicated the issue of whether she was entitled to reimbursement for
transportation charges during the period from November 30 through December 18, 2009.
The only medical evidence of record discussing appellant’s ability to drive was Dr. Hovis
treatment note of November 24, 2009. In that report, Dr. Hovis advised appellant not to drive
while taking narcotics and with her arm in a sling. This statement does not affirmatively
establish that she was restricted from driving. It merely discouraged appellant from driving
while taking narcotics and while her arm was in a sling. Furthermore, Dr. Hovis did not address
whether she was unable to drive to medical appointments for her work injury during the claimed
period.
Under the factual circumstances of this claim, the basis for payment of transportation
expenses for appellant’s daily commute to and from work is not readily apparent under the Act.
As an employee with fixed hours and place of work, it cannot be stated that her transportation
expenses were being incurred as a requirement of her employment with the Federal
Government.9 Neither can it be stated that appellant’s transportation expenses were incurred as
an expense under an approved vocational rehabilitation program.10 Rather, her transportation
expenses appear to stem from an agreement between appellant and the employing establishment,
a matter not within the Office’s purview.11 As noted, Office regulations only provide for
transportation expenses with regard to obtaining authorized medical services.
To the extent that transportation costs incurred were made in connection with injuryrelated medical treatment for travel to or from a treatment facility or physician’s office, this may
be a reasonable expense.12 However, the medical evidence of record fails to contain a clear no

9

See e.g., Kathryn A. Tuel-Gillem, 52 ECAB 451 (2001) (a rural letter carrier required to furnish her car for use
during the workday).
10

5 U.S.C. § 8104. See generally Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Vocational Rehabilitation Services, Chapter 2.813.8 (September 1995).
11

Appellant should contact the employing establishment with regard to any expenses incurred as a result of their
agreement.
12

5 U.S.C. § 8103. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies,
Chapter 3.400.10 (April 1992).

4

driving restriction as a result of the work injury along with an indication of medical treatment
dates for the work injury during the claimed period.13
The Board has generally recognized that the Office has broad discretion in approving
medical services or vocational rehabilitation as provided under sections 8103 and 8104 of the
Act, with the only limitation on the Office’s authority being that of reasonableness.14 However,
the terms of the Act are specific as to the methods and payment of compensation. Unless a
claimant’s contentions are in keeping with the scope or intent of the Act, i.e., unless the statute
authorizes payment of the kind demanded, the Office’s denial must be affirmed.15 Neither the
Office nor the Board has the authority to enlarge the terms of the Act.16
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.17 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.18 The
Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.19
ANALYSIS -- ISSUE 2
On May 28, 2010 appellant disagreed with the Office’s March 25, 2010 decision which
denied payment of transportation charges to and from work and from work to medical
appointments during the period from November 30 through December 18, 2009. Her request for
reconsideration neither alleged nor demonstrated that the Office erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument not

13

In any event, the Office has not adjudicated the issue of whether appellant should be reimbursed for
transportation services to attend medical appointments or physical therapy during the claimed period. Therefore,
this matter is not presently before the Board. See 20 C.F.R. § 501.2(c).
14

See James R. Bell, 52 ECAB 414 (2001); Daniel J. Perea, 42 ECAB 214 (1990).

15

See Edward Schoening, 48 ECAB 326 (1997).

16

See James R. Bell, supra note 14; Raymond H. Chandler, 49 ECAB 480 (1998); Alonzo R. Witherspoon,
43 ECAB 1120 (1992).
17

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141 (2007).

18

Id. at § 10.608(b); K.H., 59 ECAB 495 (2008).

19

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

5

previously considered by the Office. She is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. While she stated that she was restricted from driving for six weeks
after surgery, the medical evidence of record does not support her statement. Appellant also
offered an explanation as to why she required a transportation service and why this was the
Office’s responsibility and not the employing establishment’s. Thus, her statements are
insufficient to reopen her claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law; advance a relevant legal argument not previously considered
or constitute relevant and pertinent new evidence not previously considered by the Office. As
appellant did not meet any of the necessary regulatory requirements, the Board finds that she is
not entitled to further merit review.20
On appeal, appellant argues the Office’s decision is contrary to fact and law. However,
as noted within this decision, the evidence does not establish her claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for transportation fees
for travel to and from work for the period November 30 through December 18, 2009. The Board
further finds that the Office properly denied her request for further review of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

20

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the June 11 and March 25, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 22, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bustleton, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1383
Issued: May 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 5, 2009 appellant, through his attorney, filed a timely appeal from an April 27,
2009 schedule award decision of the Office of Workers’ Compensation Programs. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained any permanent impairment to his left leg
causally related to his February 23, 2006 employment injury.
On appeal, appellant contends that the Office should have issued a schedule award based
on the opinion of his attending physician.
FACTUAL HISTORY
On February 23, 2006 appellant injured his left ankle when he tripped over a curb and fell
while in the performance of duty. On June 16, 2006 the Office accepted his claim for closed
fracture of the lateral malleolus and sprain of the left ankle. Appellant filed a claim for a
schedule award.

In a December 20, 2007 report, Dr. Daisy A. Rodriguez, a Board-certified internist,
reviewed a history of appellant’s injury and medical treatment. She rated impairment to his left
leg at 30 percent. Dr. Rodriguez advised that she used the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). She noted
that appellant had a three millimeter (mm) cartilage interval in the ankle joint, which represented
five percent impairment under Table 17-31 for arthritis.1 Under Table 17-8, Dr. Rodriguez rated
12 percent impairment based on Grade 4 dorsiflexion of the ankle for muscle weakness. She
stated that she rated sensory impairment with reference to peripheral nerve impairment under
Table 17-37, which provides a maximum sensory impairment of five percent for the superficial
peroneal nerve. Dr. Rodriguez graded the extent of sensory deficit as Grade 4 or 25 percent to
find a total of 1 percent sensory loss. In rating loss of range of motion to the left ankle, she noted
“Motion E, Range degrees, Deficit percentage 15.”2 Dr. Rodriguez advised that the combined
impairment to the lower extremity was 30 percent.3
In a January 10, 2008 x-ray report, Dr. Howard C. Hutt, a Board-certified radiologist,
noted an unremarkable study of the left ankle with no fractures.
On March 29, 2008 an Office medical adviser noted his disagreement with the
impairment rating by Dr. Rodriguez, as her findings were not consistent with the other
physicians of record. He found that Dr. Hutt did not make any reference to significant arthritis in
the left ankle. The Office medical adviser recommended a second opinion.
On July 2, 2008 the Office referred appellant to Dr. Bong S. Lee, a Board-certified
orthopedic surgeon, for a second opinion examination. In a July 17, 2008 report, Dr. Lee
reviewed appellant’s history of injury and medical treatment. He noted that appellant underwent
new x-rays of the left ankle, which were reviewed and found to be completely normal. Dr. Lee
advised that appellant complained primarily of pain outside the left ankle. He set forth findings
on physical examination, noting a normal sensory examination and muscle motor tests. On range
of motion, Dr. Lee found 20 degrees extension and 30 degrees flexion which were within the
normal range. He stated that the October 25, 2006 magnetic resonance imaging scan showed
that the accepted fracture had healed. Dr. Lee found that appellant had a normal orthopedic
examination with no permanent impairment to the left ankle or leg and that any residuals of the
accepted condition had resolved without disability.
On September 10, 2008 the Office medical adviser reviewed the records and noted that
Dr. Lee found a normal left ankle without impairment, which was consistent with other medical
providers. In addition, he noted that no diagnostic studies had been provided which established
impairment due to significant joint space narrowing of the left ankle. The Office medical adviser
found that there was no ratable impairment to appellant’s left leg.
1

Dr. Rodriguez did not cite to the A.M.A., Guides for this calculation but is referring to page 544, Table 17-31 of
the A.M.A., Guides.
2

To the extent that Dr. Rodriguez was referring to five degrees of extension under Table 17-11, it appears this
would correspond with impairment up to 7 percent for mild loss of motion rather than 15 percent moderate loss.
3

Dr. Rodriguez made no reference to the Combined Values Chart at 17-2. It precludes combining loss of muscle
strength with either arthritis or peripheral nerve injury (sensory loss).

2

The Office found a conflict in medical opinion arose between Dr. Rodriguez and Dr. Lee
as to the nature and extent of any impairment to appellant’s left ankle due to the accepted injury.
On January 23, 2009 it referred him to Dr. George P. Glenn, Jr., a Board-certified orthopedic
surgeon, for an impartial medical examination. In a February 5, 2009 report, Dr. Glenn reviewed
appellant’s history of injury and medical treatment. On examination, he described the left and
right ankles as symmetrical without any evidence of swelling and normal range of motion in
dorsiflexion and plantar flexion. Motor tone and strength was excellent and symmetrical in both
lower extremities as were reflexes. There was no evidence of muscle atrophy or fasciculation.
Sensory pattern was described as preserved throughout both lower extremities without
tenderness about either ankle joint. Dr. Glenn advised that all physical findings were normal as
to range of motion, sensory pattern, reflexes and strength. X-rays were obtained in the AP
projection with and without weight bearing which he reviewed and interpreted as normal without
evidence of any arthritic changes. Dr. Glenn advised that he measured the ankle cartilage
interval on the left as 3.5 mm which, under Table 17-31, did not rise to the level of ratable
impairment. He described the change as an anatomical variant and not as a consequence of any
direct trauma to the ankle. Dr. Glenn stated that appellant was not under any active medical
treatment and had long reached maximum medical improvement without ratable permanent
impairment. He noted that the A.M.A., Guides provide on page 544 that if there is any doubt or
controversy about the suitability of the radiographic method in a specific individual, range of
motion techniques may be used instead. As the range of motion in the left ankle was normal,
appellant did not have any impairment from the February 23, 2006 injury.
In an April 23, 2009 report, the medical adviser reviewed the medical evidence of record
and noted that Dr. Glenn reported a normal examination of appellant’s left ankle.
In an April 27, 2009 decision, the Office denied appellant’s schedule award claim,
finding that the weight of medical opinion failed to establish any permanent impairment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 set forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.6 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
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
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8107.

6

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

7

20 C.F.R. § 10.404.

3

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.8
ANALYSIS
The Office found a conflict in medical opinion between Dr. Rodriguez, who rated
impairment to appellant’s left leg of 30 percent, and Dr. Lee, who found that appellant had no
ratable permanent impairment of his left ankle or lower extremity. It properly referred appellant
to Dr. Glenn, selected as the impartial medical specialist to address the nature and extent of any
permanent impairment related to his accepted injury.
On examination, Dr. Glenn reported normal findings with regard to sensory evaluation,
strength and range of motion of the left ankle. He advised that there was no evidence of muscle
atrophy and that x-rays were obtained and reviewed which showed a 3.5 mm cartilage interval of
the left ankle joint. Referring to Table 17-31, Dr. Glenn noted that permanent impairment was
rated at 3mm or less, such that appellant did not have ratable impairment due to arthritis of the
left ankle.9 He described this finding as an anatomical variant not due to any trauma related to
the accepted left ankle injury. Dr. Glenn did not support the arthritis impairment rating found by
Dr. Rodriguez. Rather, he supported the finding by Dr. Lee that appellant did not have any
permanent impairment involving the left ankle or lower extremity.
On appeal, it is contended that the Board should modify the determination of the Office
and find impairment based on the report of Dr. Rodriguez. It is well established, however, that
when a case is referred to an impartial medical specialist to resolve a conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, will be
given special weight.10 The Board finds that, the report of the impartial medical examiner,
Dr. Glenn, is based on an accurate factual history of the claim, a review of the medical evidence
of record and findings on examination of appellant. He provided a reasoned opinion explaining
the basis for his opinion that appellant did not sustain any impairment to his left ankle based on
the February 23, 2006 employment injury. Dr. Glenn obtained additional diagnostic testing of
the left ankle and found that x-rays did not support impairment due to arthritis, as was mentioned
by Dr. Rodriguez. His opinion constitutes the special weight of medical evidence and establishes
that appellant does not have any permanent impairment of his left ankle.
CONCLUSION
The Board finds that appellant has not established that he sustained permanent
impairment related to his February 23, 2006 injury.

8

Darlene Kennedy, 57 ECAB 414 (2006).

9

See A.M.A., Guides, 544, Table 17-31.

10

See Daniel F. O’Donnell, 54 ECAB 456 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 27, 2009 is affirmed.
Issued: May 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, MIDDLESEX ESSEX
PROCESSING & DISTRIBUTION CENTER,
North Reading, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 20-0657
Issued: December 15, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 3, 2020 appellant filed a timely appeal from a January 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0657.1
On November 27, 2019 appellant, then a 59-year-old supervisor, filed a traumatic injury
claim (Form CA-1) alleging that on November 26, 2019 she sustained swelling to the face and
lip(s) when she slipped and hit her face on the floor while in the performance of duty. Appellant’s
supervisor acknowledged on the claim form that the injury occurred in the performance of duty.
In a December 9, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and requested that she complete and return a factual development questionnaire

1

The Board notes that OWCP received additional evidence following the January 13, 2020 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

in order to provide a detailed description of the alleged employment incident that she believed
caused her injury. OWCP afforded appellant 30 days to respond.
Appellant completed the factual development questionnaire on January 8, 2020. She
explained that she had been counting boxes and became caught in a strip that tied bundles of
magazines, falling to the floor head-first. Appellant claimed that she broke her lips open in the
fall. She called for help from a coworker and was taken to the hospital via ambulance. The
immediate effects of appellant’s claimed injury included mouth, neck, and head pain, as well as
bleeding from the mouth. She also submitted a witness statement from a coworker, L.Y., who
observed appellant on the floor of the mail storage area with her hand raised and signaling for help.
L.Y. saw blood on her mouth and on the floor. Stamped markings on the completed questionnaire,
narrative account, and witness statement indicated a date of receipt by OWCP on January 13, 2020
at 10:24 a.m.2
By decision dated January 13, 2020, OWCP denied appellant’s traumatic injury claim
finding that she had not submitted the necessary factual evidence to establish that the
November 26, 2019 incident occurred at work as described. It found that appellant had not
provided a description of how the injury occurred and had not provided any factual evidence of an
injury occurring at work. OWCP also found that appellant had not submitted any medical evidence
of a diagnosed condition causally related to the alleged incident. Therefore it concluded that she
had not established fact of injury. There is no indication that appellant’s January 8, 2020 response
to OWCP’s questionnaire was reviewed.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,3 the Board held that when adjudicating a claim OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In OWCP’s January 13, 2020 decision, it stated that appellant had not provided a
description of how the injury occurred and had not provided factual evidence of an injury occurring
at work. Appellant’s January 8, 2020 response to OWCP’s questionnaire was not reviewed.
However, the record reflects that OWCP received appellant’s January 8, 2020 response to its
factual development questionnaire on January 13, 2020 as demonstrated by the stamps on the
received documents indicating the date and time of receipt by OWCP.4
It is crucial that OWCP address all evidence received prior to the issuance of its final
decision, as the Board’s decisions are final with regard to the subject matter appealed.5 Whether
OWCP receives relevant evidence on the date of the decision or several days prior, such evidence
2
This evidence was scanned into OWCP’s Integrated Federal Employees’ Compensation System (iFECS) case
record on January 16, 2020.
3

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

4

See I.L., Docket No. 19-0077 (issued July 26, 2019); Linda Johnson, 45 ECAB 439 (1994) (evidence received the
same day as the issuance of OWCP’s decision, but not previously considered, requires remand for de novo review).
5
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, 41 ECAB 548, 553 (1990).

2

must be considered.6 The Board finds that this case is not in posture for decision, as OWCP did
not review the above-noted evidence in its January 13, 2020 decision.7 It makes no difference that
the claims examiner was not directly in possession of the evidence on January 13, 2020, as Board
precedent envisions evidence received by OWCP, but not yet associated with the case record when
the final decision is issued.8 As the January 8, 2020 response to OWCP’s factual development
questionnaire was in OWCP’s possession at the time it issued its January 13, 2020 decision, it
must be considered by OWCP in weighing the evidence.9 On remand OWCP shall review all
evidence of record, and following any further development as it deems necessary, it shall issue an
appropriate de novo decision.10
IT IS HEREBY ORDERED THAT the January 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: December 15, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board
6

S.M., Docket No. 16-0852 (issued November 1, 2017); Willard McKennon, 51 ECAB 145 (1999).

7

See M.T., Docket No. 20-0757 (issued September 30, 2020).

See Yvette N. Davis supra note 5. In Yvette N. Davis the Board explained as follows: “Although the claims
examiner did not realize that the evidence was in [OWCP’s] possession … Board precedent requires [OWCP] to
review all evidence submitted by a claimant and received by [OWCP] prior to the issuance of its final decision,
including evidence received on the date of the decision. It makes no difference that the claims examiner was not
directly in possession of the evidence. Indeed, Board precedent envisions evidence received by [OWCP] but not yet
associated with the case record when the final decision is issued.”
8

9

See Cheryl P. Beard, Docket No. 02-0786 (issued August 13, 2002).

10

M.T., supra note 7.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
C.W., Appellant

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

Docket No. 10-2290
Issued: July 11, 2011

Case Submitted on the Record

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

JURISDICTION
On September 13, 2010 appellant filed a timely appeal of an August 19, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP), which suspended his compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for
failure to submit an EN1032 form when requested.
FACTUAL HISTORY
On April 14, 2003 appellant, then a 46-year-old transportation security screener, filed a
traumatic injury claim alleging that he injured his back lifting while loading bags in the
1

5 U.S.C. § 8101 et seq.

performance of duty. OWCP accepted the claim for lumbosacral strain, tear of the right medial
meniscus, affections of the shoulder region on the right and a sprain/strain of the
acromioclavicular on the right.
Appellant was reemployed as a modified transportation security officer on
January 22, 2008. In a decision of March 27, 2008, OWCP determined appellant’s loss of wageearning capacity. On May 19, 2008 appellant received a schedule award granting him a 10
percent permanent impairment of the right arm and 25 percent permanent impairment of the right
leg. On June 5, 2008 OWCP amended the loss of wage-earning capacity decision to reflect his
actual earnings as a modified transportation security officer.
On March 5, 2010 OWCP informed appellant that he was required to provide information
requested in connection with his receipt of benefits under FECA and it enclosed a Form EN1032
for that purpose. Appellant was advised to completely answer all questions and return the form
within 30 days or his benefits would be suspended. The letter was sent to his address of record.
In a July 13, 2010 letter sent to appellant’s address of record, OWCP advised appellant
that it had not received his response to its request for information. It again notified him that, if
he did not complete and return the EN1032 form within 30 days, his compensation benefits
would be suspended in accordance with 20 C.F.R. § 10.528. Appellant did not respond.
By decision dated August 19, 2010, OWCP suspended appellant’s compensation benefits
as of August 29, 2010 based on his failure to report earnings and employment information as
required. It noted that, if appellant completed and returned an enclosed copy of the EN1032
form, his compensation benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.2
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.3 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.4

2

5 U.S.C. § 8106(b).

3

20 C.F.R. § 10.528.

4

Id.; see also 20 C.F.R. § 10.525; Robert A. Robbins, Docket No. 05-728 (issued July 15, 2005).

2

ANALYSIS
In March 5 and July 13, 2010 letters, OWCP requested that appellant complete and return
the enclosed EN1032 forms concerning the status of his employment and any dependents. It
properly notified him that, if he did not completely answer all questions and return the statement
within 30 days, his benefits would be suspended. The record reflects that OWCP’s letters were
properly sent to appellant’s address of record.5 Appellant did not respond. He did not return a
completed CA-1032 form to OWCP within the time period allowed. As appellant failed to
complete and return the information concerning his benefits as regulated by OWCP, it properly
suspended his compensation pursuant to 20 C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits based
on his failure to timely submit a completed EN1032 form when requested.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 19, 2010 is affirmed.
Issued: July 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

Under the mailbox rule it is presumed, absent evidence to the contrary, that a notice mailed to an individual in
the ordinary course of business was received by that individual. See Joseph R. Giallanza, 55 ECAB 186 (2003);
A.C. Clyburn, 47 ECAB 153 (1995).

3