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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0239
Issued: September 3, 2015

Case Submitted on the Record

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

JURISDICTION
On November 12, 2014 appellant, through counsel, filed a timely appeal from an
August 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate compensation for
wage-loss and medical benefits effective December 15, 2013; and (2) whether appellant has met
her burden of proof to establish continuing residuals or disability after the termination of his
compensation benefits.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant continued to submit medical evidence after OWCP’s August 5, 2014 decision.
However, the Board lacks jurisdiction to review new evidence for the first time on appeal.

FACTUAL HISTORY
On May 28, 2012 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim alleging that on May 27, 2012 he fractured his right knee when he tripped over a safety bar
and fell down. His claim was accepted for right knee fracture. Appellant stopped work and
received wage-loss compensation.
Initial emergency room records diagnosed a closed patella fracture and also noted that
appellant had a history of multiple sclerosis. Thereafter, appellant was treated by Dr. David
Bundens, a Board-certified orthopedic surgeon. On May 29, 2012 Dr. Bundens reported the
history of the work injury and advised that the right knee was swollen and tender over the
patella. X-rays showed an undisplaced patella fracture. Dr. Bundens recommended a knee
immobilizer for six weeks and indicated that appellant could not work. He continued to submit
reports noting appellant’s status and indicating that x-rays showed the fracture was healing in a
good position although he remained weak and unable to work. Appellant was also referred for
physical therapy. Subsequent reports indicate that he sustained an unrelated fall on October 2,
2012 which resulted in a nonwork-related fracture of his right foot. As of December 12, 2012,
Dr. Bundens advised that an x-ray of the right knee revealed that the patella fracture appeared to
be healing in good position and that there were some mild degenerative changes.
In a May 23, 2013 report, Dr. Bundens advised that he began treating appellant in
May 2012 for acute fracture of the patella after he tripped over a safety bar at work. He noted
that initially appellant’s knee had tenderness and swelling over the patella and that he could not
extend his knee secondary to pain. Dr. Bundens advised that appellant’s knee joint looked good
and that his patella fracture had healed nicely. He noted that appellant’s on-going disability for
work was caused by extreme weakness secondary to an underlying neurologic condition.
Dr. Bundens opined that appellant was not capable of any sustained standing, walking, or manual
labor.
On August 15, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a
second opinion regarding appellant’s work-related condition. In an October 3, 2013 report,
Dr. Askin advised that appellant fell on his right knee at work resulting in a fractured right
patella. He noted that appellant fell at least four times following the work-related injury and that
he currently complained of right knee pain and swelling. Dr. Askin reiterated that Dr. Bundens
advised that appellant’s fracture had healed “quite nicely” and yet he still had disability due to
extreme weakness secondary to an underlying neurologic condition. On physical examination,
he advised that appellant’s right patella was not deformed and that he did not have any passive
limitation of motion of the right knee as compared with the left. Dr. Askin also noted that he did
not detect any effusion for either knee or any ligamentous laxity. He advised that appellant had
profound weakness in both his lower and upper extremities. Dr. Askin opined that appellant’s
accepted condition healed and that he did not suffer from any residuals of that condition. He
further opined that there was no work-related disability and appellant’s accepted condition would
not prevent him from returning to work. However, appellant’s underlying neurologic condition
may preclude him from work. Dr. Askin noted that he was unable to diagnose appellant’s
neurologic condition, but advised that it caused profound neuromuscular weakness of all four
limbs. He opined that the neurologic condition was independent of the work injury. Dr. Askin

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noted that appellant’s tendency to fall and his incapacity for activity was related to his neurologic
condition as opposed to the accepted work injury. In an accompanying August 30, 2013 work
capacity evaluation, he advised that appellant had no work-related disability.
By letter dated October 8, 2013, OWCP advised appellant that it proposed a termination
of wage-loss compensation and medical benefits. It advised that the weight of the evidence was
represented by Dr. Askin who found that there were no residuals of appellant’s accepted
condition.
By letter dated October 30, 2013, counsel disputed the proposed termination. He argued
that Dr. Bundens did not find that appellant had recovered from his injury and that there was a
conflict in the medical record requiring referral to a referee physician.
By decision dated December 12, 2013, OWCP terminated appellant’s wage-loss and
medical benefits effective December 15, 2013. It found that the weight of medical opinion was
represented by Dr. Askin.
By letter dated December 17, 2013, appellant through counsel, requested an oral
telephone hearing. During the May 22, 2014 hearing, he advised that he worked for the
employing establishment since 1996. Appellant noted that he currently had a neurologic
condition that caused the nerves in his spine to deteriorate. He further noted that he did not
know the name of his condition, but advised that it began four years prior. Appellant advised
that his neurologic problems worsened following his work injury and noted that currently he
could only stand for 15 minutes and that he had difficulty getting in and out of chairs. During
the hearing, counsel argued that Dr. Askin should not have been the weight of the evidence. He
argued that on examination Dr. Askin only looked at the right knee’s passive range of motion as
compared to the left knee without noting its active range of motion or taking into account that
appellant also had a preexisting left knee injury. Counsel also argued that Dr. Askin contradicted
himself with regard to his opinion on appellant’s ability to return to work.
Following the hearing, appellant submitted multiple reports from Dr. Laura Ross, a
Board-certified osteopath specializing in orthopedic surgery. In a February 21, 2014 report,
Dr. Ross advised that he had a fall at work that resulted in a fractured right kneecap. She noted
that the fracture healed well, but appellant still complained of right knee pain. On physical
examination Dr. Ross found right knee tenderness and palpation along the joint line, no gross
instability of the knee, and pain with pressure of the patella. She also advised that appellant had
a history of Charcot Marie Tooth disease. In a March 7, 2014 report, Dr. Ross advised that he
had mild crepitus with range of motion of the right knee and tenderness along the joint line. She
assessed internal derangement of the right knee consisting of chondromalacia patella, tibial
plateau, and distal femur contusions. In an April 18, 2014 report, Dr. Ross evaluated appellant’s
left knee and advised that he also complained of right knee pain. In a May 30, 2014 report, she
assessed degenerative joint disease of the right knee and tenderness along the joint line. Physical
therapy reports were also received.
By decision dated August 5, 2014, an OWCP hearing representative affirmed the
December 12, 2013 decision terminating appellant’s medical and wage-loss benefits.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability. To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.4
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s traumatic injury claim for a fractured right patella.
Appellant received wage-loss compensation and medical benefits based on the accepted
conditions. In his May 23, 2013 report, Dr. Bundens advised that appellant’s right patella
fracture had healed and that his on-going disability was attributable to his underlying neurologic
condition. OWCP then referred appellant to Dr. Askin for a second opinion regarding the status
of appellant’s accepted condition.
In his October 3, 2013 report, Dr. Askin set forth the history of appellant’s accepted right
knee condition, reviewed the medical treatment records related to appellant’s conditions, and
reviewed the statement of accepted facts. He opined that appellant’s fractured right patella
healed and that he did not suffer from any residuals of that condition. Dr. Askin further opined
that, although appellant’s accepted condition would not prevent him from returning to work, his
preexisting neurologic condition may preclude work. He noted that he was unable to diagnose
appellant’s neurologic condition, but advised that it caused profound neuromuscular weakness of
all four limbs. Dr. Askin opined that the neurologic condition was independent of the work
injury. He opined that appellant’s tendency to fall and incapacity for activity was related to his
neurologic conditions as opposed to the accepted work injury.
The Board finds that Dr. Askin represents the weight of the evidence. Dr. Askin’s report
was based on a full and accurate history, a review of the medical records, and provided a
rationalized medical opinion addressing the basis for his conclusion that appellant’s on-going
disability was no longer related to the work-related accepted condition.
On appeal counsel argues that Dr. Askin, as an orthopedic surgeon, was unable to
adequately address whether the work incident aggravated appellant’s preexisting neurologic
condition. The Board notes that OWCP only accepted an orthopedic condition, a fractured
patella, and did not accept any neurological condition.5 As explained, Dr. Askin examined
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Furman G. Peake, 41 ECAB 361 (1990).

5

See Jaja K. Asaramo, supra note 3 (where an employee claims that, a condition not accepted or approved by
OWCP was due to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury).

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appellant and clearly explained that the work-related orthopedic fracture had resolved without
residuals. Based on the findings and reasoning stated above, the Board finds that counsel’s
arguments are not substantiated. Dr. Askin found no basis on which to attribute any continuing
condition or residuals to the accepted injury. The Board also finds that there was no conflict in
the record between Dr. Bundens and Dr. Askin. At the time of Dr. Askin’s report, Dr. Bundens
May 23, 2013 report opined that appellant’s accepted right patella fracture had healed and that
on-going disability was attributable to an underlying neurologic condition.
LEGAL PRECEDENT -- ISSUE 2
It is well established that after termination or modification of benefits, clearly warranted
on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
In order to prevail, appellant must establish by the weight of the reliable, probative, and
substantial evidence that she had an employment-related disability or residuals which continued
after termination of compensation benefits.6
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a fractured right patella. On December 12, 2013
it terminated his wage-loss and medical compensation benefits effective December 15, 2013
finding that the accepted fractured right patella ceased without residuals or work limitations.
The burden now shifts to appellant to demonstrate that he continued to have residuals or
disability for work on and after December 15, 2015 due to the accepted injury.7
After the termination of appellant’s compensation benefits, he submitted several reports
from Dr. Ross. In her February 21, 2014 report, Dr. Ross advised that he had a fall at work that
resulted in a fractured right kneecap. She advised that the fracture was healed, but appellant still
complained of right knee pain. In her March 7, April 18, and May 30, 2014 reports, Dr. Ross
advised him of the status of his condition. These reports are insufficient to create a conflict with
or to overcome the weight of Dr. Askin’s report because they do not specifically address whether
residuals of appellant’s accepted condition remain or whether he remained disabled from work
due to residuals of the May 27, 2012 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits and that he has failed to meet his burden of proof to establish any
continuing disability or medical residuals on or after December 15, 2013.

6

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

7

Virginia Davis-Banks, id.

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ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
__________________________________________

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

Docket No. 18-0787
Issued: September 26, 2019

Case Submitted on the Record

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

JURISDICTION
On March 1, 2018 appellant filed a timely appeal from a January 18, 2018 merit decision
and a February 12, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish partial
disability during the period March 13, 2016 through February 24, 2017 due to his December 12,
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 12, 2018 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.

2014 employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 31, 2014 appellant, then a 36-year-old customs and border protection (CBP)
officer, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2014 he
sustained lower back pain when a trainer brought him to the ground during a training exercise
while in the performance of duty.
In a February 5, 2015 progress report, Dr. Peter B. Slabaugh, a Board-certified orthopedic
surgeon, related appellant’s complaints of persistent back pain following a “December 14, 2014”
work-related injury. Upon physical examination of appellant’s lumbar spine, he observed good
range of motion with pain at flexion and extension. Dr. Slabaugh diagnosed lumbar sprain and
backache. He recommended that appellant work modified duty with restrictions of no wearing a
gun belt, no prolonged standing, sitting, stooping, or bending, and a 5-minute break every 30
minutes in order to stand, ambulate, and stretch.
OWCP accepted his claim for lumbar sprain. It paid wage-loss compensation for partial
disability for loss of Sunday premium and holiday pay for the period February 10, 2015 through
February 7, 2016.
On March 25, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
“other wage loss” and indicated that it was for loss of Sunday premium and holiday pay for the
period February 8 through March 12, 2016. On the reverse side of the form, the employing
establishment indicated that appellant worked full time Monday through Friday and confirmed that
appellant had lost wages for Sunday and holiday pay during the claimed period. Appellant
continued to file various claims for “other wage loss” compensation until February 24, 2017.
In a March 31, 2016 development letter, OWCP requested that the employing
establishment provide additional information regarding appellant’s work schedule and the salary
for a CBP officer, effective February 8, 2016.
According to a Form CA-110 memorandum, the employing establishment confirmed that
appellant had a work schedule that fluctuated weekly. It also submitted a fiscal pay rate printout
which covered the period December 12, 2013 to December 11, 2014 when he worked full duty as
a CBP officer, GS-11/Step 1. The earnings and leave statement indicated that his total annual pay
was $68,643.00 plus $4,068.57 in Sunday premium hours, $8,708.06 in night differential hours,
and $1,375.80 in holiday premium pay hours. Based on the annual earnings and leave statement,
OWCP calculated that appellant’s weekly gross pay was $1,320.06 plus $167.46 in night
differential, $78.24 in Sunday premium pay, and $26.46 in holiday premium pay.
In another Form CA-110 memorandum, the employing establishment indicated that in
2016 a GS-11/Step 1 in the same area with the same position earned $70,333.00 a year.
In a development letter dated April 20, 2016, OWCP noted receipt of appellant’s claim for
“other wage loss” compensation for the period February 8 through March 12, 2016. It requested

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that he provide documentation of his actual earnings, such as pay stubs or pay slips, during the
claimed period.
Appellant provided an earnings and leave statement for the pay period ending
February 20, 2016. It indicated that he was a GS-12, Step 1. The earnings and leave statement
demonstrated that appellant had a base salary of $84,302.00. Appellant provided additional
earnings and leave statements from 2015 and for pay periods ending from January 9, 2016 through
February 18, 2017. The earnings and leave statements indicate that appellant’s position was a GS12/Step-01, effective March 6, 2016. His position was a GS-12, Step 02 effective August 7, 2016.
OWCP also received a fiscal pay rate printout for the period February 8, 2015 to
February 7, 2016. It noted that appellant was a GS-12/ Step 1 with an annual salary of $84,302.00
plus $132.88 for Sunday premium pay, $23.23 for night differential pay, and $100.00 for Holiday
pay. The printout also noted that appellant’s weekly pay was $1,615.60.
On May 10, 2016 OWCP paid appellant for partial disability for loss of Sunday premium
and holiday pay for the period February 8 through March 12, 2016.
On February 1 and 28, 2017 appellant filed claims for four hours of wage-loss
compensation due to doctor visits on May 13, 2016 and February 21, 2017.
By decision dated May 12, 2017, OWCP denied appellant’s claim for wage-loss
compensation and loss of Sunday and holiday premium pay for the period March 13, 2016 to
February 24, 2017.3 It denied appellant’s wage-loss compensation claim in accordance with 20
C.F.R. § 10.501 because it found that appellant’s actual earnings were equal to or exceeded
appellant’s date-of-injury pay rate. OWCP first calculated appellant’s wage-loss capacity for the
period February 8, 2016 through January 7, 2017. It explained that the base weekly pay rate for
his date-of-injury position as a GS-11/Step 01 was $1,352.56 in 2016. Appellant’s base weekly
rate was then increased by the percentage of premium pay earned for a total weekly pay rate, plus
premium pay, of $1,631.42. OWCP then noted that appellant’s annual base pay for his current
position as a GS-12, Step 01 was $84,600.25. It divided appellant’s annual salary by 52 weeks,
which equaled weekly earnings of $1,626.93. Applying the Shadrick4 formula, OWCP determined
that appellant had no loss of wage-earning capacity for the period February 8, 2016 through
January 7, 2017.
OWCP then calculated appellant’s loss of wage-earning capacity for the period January 8
through February 18, 2017. It noted that the base weekly pay rate for his date-of-injury position
as a GS-11/Step 01 was $1,390.44. Appellant’s weekly earnings was then increased by the
percentage of premium pay earned for a total weekly pay rate, plus premium pay, of $1,677.11
OWCP then noted that according to appellant’s pay slips, his actual weekly earnings during the
3
OWCP noted that it had previously paid appellant for wage-loss compensation for partial disability for the period
February 8 through March 12, 2016.
4

Albert C. Shadrick, 5 ECAB 376 (1953). The formula developed in the Shadrick decision has been codified at 20
C.F.R. § 10.403(d), which provides that the employee’s wage-earning capacity in terms of percentage is obtained by
dividing the employee’s actual earnings or the pay rate of the position selected by OWCP, by the current pay rate for
the job held at the time of the injury.

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period January 8 to February 18, 2017 was $10,298.40. It divided this amount by six weeks, which
resulted in weekly earnings of $1,624.06. Applying the Shadrick5 formula, OWCP determined
that appellant had no-loss of wage-earning capacity during the claimed period. It further noted
that it had not received earnings information for the remaining period February 19 to 24, 2017.
Accordingly, OWCP found that appellant was not entitled to wage-loss for loss of Sunday
premium or holiday pay for the period February 8, 2016 to February 24, 2017 as the evidence of
record did not demonstrate a loss of earnings.
On June 2, 2017 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. He indicated that he was writing regarding the formal
denial of his claims for wage-loss compensation for March 13, 2016 and February 21, 2017.
Appellant alleged that he was entitled to four hours of compensation for routine medical
appointments. He provided a print-out of Federal (FECA) Procedure Manual, Part 2, Chapter
2.0901.19 regarding “Wages Lost for Medical Examination or Treatment.”
By decision dated September 21, 2017, an OWCP hearing representative determined that
the medical evidence of record was insufficient to establish that appellant was unable to work full
duty during the claimed period. The hearing representative noted that the medical evidence was
unclear to show if OWCP should issue a formal loss of wage-earning capacity determination.
OWCP’s hearing representative remanded the case to OWCP for referral to a second-opinion
examiner in order to determine whether appellant’s current back condition was causally related to
the accepted employment injury and whether work restrictions were applicable.6
On November 3, 2017 OWCP referred appellant’s claim, along with a statement of
accepted facts (SOAF) and a copy of the medical record, to Dr. Mohinder S. Nijjar, a Boardcertified orthopedic surgeon, for a second opinion examination in order to determine whether
appellant was disabled from his full-duty position due to his work-related injury and was entitled
to payment of disability compensation benefits during the period March 13, 2016 through
February 24, 2017 due to a loss of Sunday premium and holiday pay and whether appellant was
entitled to four hours of compensation for disability on May 13, 2016 and February 24, 2017.
In a November 21, 2017 report, Dr. Nijjar reviewed appellant’s history, including the
SOAF, and discussed appellant’s medical records. He noted appellant’s complaints of low back
pain radiating to the back of the calf when he walked or stood for more than 20 to 30 minutes, with
repetitive twisting of his back, and with lifting more than 20 pounds. Upon physical examination
of appellant’s lumbar spine, Dr. Nijjar observed slight straightening of the curvature, minimal
tenderness over the lumbosacral area, and mild muscle spasm in the paraspinal region more on the
left side than the right side. Straight leg raise testing was negative. Dr. Nijjar reported that
neurologic examination of appellant’s lower extremities revealed positive deep tendon reflexes in

5

Id.

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The hearing representative further noted that on February 14, 2017 and on March 29, 2017 OWCP received form
CA-7a claiming four hours of LWOP on May 13, 2016 and February 24, 2017. The hearing representative requested
that OWCP make a formal determination on appellant’s entitlement to compensation for his medical appointments.

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the knees and ankles. He diagnosed lumbar strain and opined that appellant’s lumbar injury was
related to the accepted December 12, 2014 employment injury.
Regarding appellant’s disability, Dr. Nijjar opined that there was “no period of workrelated total disability.” He explained that appellant worked full duty from December 12, 2014
through February 25, 2015 and modified duty beginning February 25, 2015. Dr. Nijjar completed
a work restriction evaluation (Form OWCP-5c) indicating that appellant could work full-time
modified duty with restrictions of sitting, standing, and walking for 8 hours, pushing, pulling, and
lifting no more than 30 pounds for 8 hours, bending and stooping for 4 hours, and a 5-minute break
every 30 minutes.
By decision dated January 18, 2018, OWCP denied appellant’s claim for wage-loss
compensation for the period March 13, 2016 through February 24, 2017 based on his wage-earning
capacity. It found that OWCP properly determined in its May 12, 2017 decision that appellant had
no loss of wage-earning capacity based on his actual earnings. OWCP further determined that
appellant’s position as a modified customs and border patrol officer that he held on March 13,
2016 was an appropriate limited-duty job and properly represented his wage-earning capacity. It
indicated that appellant’s pay grade and step had changed from GS-11/ Step 01 to GS-12/ Step 01.
OWCP explained, therefore, that under the Shadrick7 formula, appellant had no loss of wageearning capacity and was not entitled to wage-loss compensation for loss of Sunday premium or
holiday pay during the claimed period.
On February 6, 2018 appellant requested reconsideration. He asserted that he disagreed
with the January 18, 2018 OWCP decision. Appellant further indicated that he was writing about
a separate issue regarding denial of his Form CA-7s claiming compensation for four hours due to
routine medical appointments on May 13, 2016 and February 21, 2017. He alleged that pursuant
to the Federal (FECA) Procedure Manual Chapter 2.901.19, he was entitled to up to four hours of
compensation for medical appointments.
OWCP received earnings information from the employing establishment for the period
December 12, 2013 to December 11, 2014.
In a February 8, 2018 statement, appellant related that he wanted to reclassify his condition
as a herniated disc with sciatica on the left leg. He noted that this was the latest diagnosis following
a January 30, 2018 doctor’s visit.
OWCP received a January 30, 2018 report by Dr. Slabaugh. Dr. Slabaugh related that “a
couple of months ago” appellant began to develop left, much greater than right, sciatic symptoms
in the bilateral lower extremities. Upon physical examination of appellant’s lumbar spine, he
observed no deformity, localized tenderness, or muscle spasm with quite good range of motion
throughout. Straight leg raise testing was mildly positive about 70 degrees on the left and negative
on the right. Dr. Slabaugh indicated that examination of appellant’s bilateral lower extremities
revealed good pulses bilaterally with no atrophy, edema, and painless range of motion. He opined
that appellant had “a flare up of low back and now a left sciatic complaint related to the deep tissue
massage that he had for his back in the recent past and likely related to the mild abnormal finding
7

Supra note 3.

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noted on the previous [magnetic resonance imaging] scan.” Dr. Slabaugh recommended that
appellant continue with permanent modified work activity without any change in work restriction.
By decision dated February 12, 2018, OWCP denied reconsideration of the merits of
appellant’s claim. It found that appellant had not met the requirements of 5 U.S.C. § 8128(a)
sufficient to warrant merit review. OWCP found that the additional evidence submitted was not
relevant to the issue of appellant’s entitlement to wage-loss compensation during the period
March 31, 2016 through February 24, 2017.
LEGAL PRECEDENT -- ISSUE 1
Section 8115 of FECA provides that when an individual sustains an employment-related
injury that prevents return to the employment held at the time of injury, but that does not render
the employee totally disabled for all gainful employment, the employee is considered partially
disabled and is entitled to compensation for his loss of wage-earning capacity.8 If a claimant is
entitled to compensation for partial wage loss after return to work, OWCP offsets actual earnings
by comparing the wages of the position he or she was currently able to perform with the current
wages of the position he or she held when injured pursuant to the Shadrick9 formula.10
The formula for determining loss of wage-earning capacity has been codified at section
10.403(c)-(e) of OWCP’s regulations.11 Under the Shadrick formula, OWCP calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s actual
earnings (or constructed earnings) by the current or updated pay rate for the position held at the
time of injury.12 The employee’s wage-earning capacity in dollars is computed by first multiplying
the pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(a) as the pay rate at the time
of injury, the time disability begins or the time disability recurs, whichever is greater, by the
percentage of wage-earning capacity. The resulting dollar amount is then subtracted from the pay
rate for compensation purposes to obtain loss of wage-earning capacity.13 It has been
administratively determined that certain pay elements will be included in computing an

8

5 U.S.C. § 8115. See also 20 C.F.R. § 10.402.

9

Supra note 3.

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.815.2(e)
(June 2013).
11

20 C.F.R. § 10.403(c)-(e).

12

Id. at § 10.403(c)-(d).

13

Id. at § 10.403(e).

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employee’s pay rate, including night or shift differential, Saturday premium, Sunday premium,
and holiday and retention pay.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish partial disability
during the period March 13, 2016 through February 24, 2017 due to his December 12, 2014
employment injury.
Appellant does not dispute that the earnings in his modified position fairly and reasonably
represented his wage-earning capacity. Instead, he contends that he is entitled to wage-loss
compensation because he does not earn as many hours of Sunday or holiday premium pay than he
earned in his previous position.
The Board finds that OWCP properly applied the Shadrick formula to determine that
appellant had zero percent loss of wage-earning capacity.15 In its May 12, 2017 decision, OWCP
first determined appellant’s wage-loss capacity for the period March 13, 2016 through
January 7, 2017. It properly used appellant’s weekly pay rate of $1,592.22 for a GS-11/Step-1
from the date of injury in line (1) of the Shadrick formula. In line (2) of the Shadrick formula,
OWCP properly calculated the weekly pay rate for the current annual salary for the date-of-injury
position. The record reveals that the annual salary, effective January 2016, for appellant’s dateof-injury position was $70,333.00. Dividing the annual salary by 52 weeks, OWCP calculated
appellant’s weekly pay rate as $1,352.56 and then increased the updated base pay by the percentage
of premium pay earned, to determine that the total currently weekly pay rate for the date-of-injury
job plus premium pay would be $1,631.42. The Board notes that OWCP properly calculated the
current weekly pay rate for appellant’s date-of-injury position.
In line (3) of the Shadrick formula, OWCP used appellant’s actual weekly earnings of
$1,626.93. OWCP properly divided appellant’s current annual salary as a GS-12/Step 01 of
$84,600.25 by 52 weeks to show a weekly salary of $1,626.93. In line (4) of the Shadrick formula,
OWCP then divided his actual weekly earnings during March 13, 2016 to January 7, 2017
($1,626.93) by the current pay rate for the job he held when injured ($1,631.42) for a total wageearning capacity percentage of 100 percent.16 Because appellant’s actual wages for the period
March 13, 2016 through January 7, 2017 exceeded the current wages of the position he held on

14

See supra note 10 at Chapter 2.900.6(b) (March 2011). It has been determined administratively that the following
elements will be included in computing an employee’s pay rate: (1) Night differential is paid for regularly scheduled
work between the hours of 6:00 p.m. and 6:00 a.m. (4) Premium pay for work on Sundays and/or Saturdays under 5
U.S.C. § 5546(a), which provides for extra pay when an employee’s regular work schedule includes an 8-hour period,
any part of which falls on a Sunday or described as being within the period commencing at 12:00 a.m. Saturday and
ending at 12:00 a.m. Sunday. Saturday pay is usually payable to health professionals working for the Department of
Veterans Affairs. (5) Premium pay for work on holidays under 5 U.S.C. § 5546(b), which provides for extra pay when
an employee’s regular schedule includes work on a holiday. This increment may not be paid for work which exceeds
eight hours or which represents overtime.
15

See A.L., Docket No. 16-1092 (issued May 9, 2017).

16

The Board notes that the specific percentage amount was 99.97 percent, which OWCP rounded to 100 percent.

7

the date of injury, the Board finds that OWCP correctly found that he was not entitled to wageloss compensation for loss of Sunday or Holiday premium pay.
The Board also finds that OWCP properly applied the Shadrick formula to determine that
appellant had zero percent loss of wage-earning capacity for the remaining claimed period
January 8 to February 18, 2017. OWCP properly used appellant’s weekly pay rate of $1,592.22
for a GS-11/Step-1 from the date of injury in line (1) of the Shadrick formula. In line (2) of the
Shadrick formula, OWCP properly calculated the weekly pay rate for the current annual salary for
the date-of-injury position, effective January 8, 2017, was $1,390.44. It then increased the updated
base pay by the percentage of premium pay earned, to determine that the total current weekly pay
rate for the date-of-injury job plus premium pay would be $1,677.11. The Board finds that OWCP
properly calculated the current weekly pay rate for appellant’s date-of-injury position.
In line (3) of the Shadrick formula, OWCP used appellant’s actual weekly earnings of
$1,716.4017 during the period January 8 to February 18, 2017. In line (4) of the Shadrick formula,
OWCP then divided his actual weekly earnings during the period January 8 to February 18, 2017
($1,716.40) by the current pay rate for the job he held when injured ($1,677.11) for a total wageearning capacity percentage of 100 percent.18 Because appellant’s actual wages for the period
January 8 through February 18, 2017 exceeded the current wages of the position he held on the
date of injury, the Board finds that OWCP correctly found that he was not entitled to wage-loss
compensation for loss of Sunday or Holiday premium pay.
Although appellant claimed wage-loss compensation because he has received less Sunday
premium and holiday pay, the evidence of record reflects that appellant’s current weekly earnings
as a GS-12 employee during the period March 13, 2016 through February 24, 201719 exceeded his
actual average date-of-injury weekly pay rate as a GS-11/Step 01, including his Sunday premium
and Holiday pay. Therefore, the Board finds that appellant has failed to establish wage-loss
compensation for partial disability for the period March 13, 2016 to February 24, 2017.
On appeal appellant alleges that he remains entitled to up to four hours of wage-loss
compensation for a medical examination, regardless of loss of wage-earning capacity. Appellant
specifically contends that he was entitled to wage-loss compensation for medical appointments on
May 13, 2016 and February 24, 2017. However, there is no final adverse decision presently before
the Board as to the claim for wage-loss compensation for attendance at medical appointments and
therefore the Board lacks jurisdiction over this issue.

17

OWCP erroneously noted in its decision that $10,298.40 divided by six equaled $1,624.06. However, in its
compensation computation sheet, it correctly noted that appellant’s average weekly earnings during this period was
$1,716.40.
18

The Board notes that the specific percentage amount is 102 percent.

19
In its May 12, 2017 decision, OWCP properly noted that no earnings information was provided for the remaining
claimed period February 19 to 24, 2017.

8

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.
§§ 10.606 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.20
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.21
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.22 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.23 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law or advanced a new and relevant legal argument not previously considered. Thus, he
is not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
On February 6, 2018 appellant requested reconsideration of OWCP’s January 18, 2018
decision denying his wage-loss compensation claim for partial disability for the period March 13,
2016 to February 24, 2017. He provided two handwritten statements in which he alleged that
pursuant to the Federal (FECA) Procedure Manual, he was entitled to up to four hours of
compensation for medical appointments. In another statement, appellant asserted that he wanted
to reclassify his condition as a herniated disc with sciatica on the left leg. The Board notes that
OWCP denied appellant’s wage-loss compensation claim because the evidence of record showed
20

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

21
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
22

20 C.F.R. § 10.607(a).

23

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

24

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

that his actual earnings during the period March 13, 2016 to February 24, 2017 exceeded his dateof-injury pay rate, and thus, he was not entitled to wage-loss compensation for partial disability.
Appellant’s statements, therefore, are irrelevant to the issue of partial disability in this case. The
Board notes that the submission of evidence that does not address the particular issue involved
does not constitute a basis for reopening a case.25 Likewise, Dr. Slabaugh’s January 30, 2018
medical report is irrelevant to the issue of whether appellant was entitled to wage-loss
compensation due to loss of Sunday premium or holiday pay.
OWCP also received earnings information from the employing establishment for the period
December 12, 2013 to December 11, 2014, which was previously reviewed by OWCP. The
submission of evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.26 As such, appellant is not entitled to a review of the merits
based on the third requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.27
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish wage-loss
compensation for partial disability during the period March 13, 2016 to February 24, 2017 due to
his December 12, 2014 employment injury. The Board also finds that OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

25

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

26

E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

27

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694
(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits).

10

ORDER
IT IS HEREBY ORDERED THAT the February 12 and January 18, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 26, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11


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

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

Docket No. 13-22
Issued: September 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 3, 2012 appellant, through her attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ (OWCP) merit decision dated September 12, 2012.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a six percent permanent impairment of her
right upper extremity.
FACTUAL HISTORY
On April 8, 2008 appellant, a 46-year-old mail carrier, filed a claim for benefits alleging
that she developed a bilateral carpal tunnel condition causally related to employment factors.
OWCP accepted the claim for bilateral carpal tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

Appellant underwent right-sided carpal tunnel release surgery on October 27, 2008. The
procedure was performed by Dr. Suresh Velagapudi, Board-certified in orthopedic
surgery,whoalsoperformed a left-sided carpal tunnel release procedure on November 17, 2008.
In a report dated May 21, 2009, Dr. Velagapudi stated that appellant’s wrists and hands
were doing fine and that she was doing her regular work. While appellant experienced some
soreness from the right carpal tunnel incision, both hands were nice and supple with excellent
intrinsic strength. Dr. Velagapudi recommended activities as tolerated and considered her to be
at maximum medical improvement with no permanent residuals.
In an August 4, 2009 report, Dr. Velagapudi related that appellant had been experiencing
right thumb pain for several weeks; she stated that her thumb felt as if it was going out of place.
He stated that on examination she had tenderness along the A1 pulley with good motion of the
thumb. Based on her history Dr. Velagapudi opined that these symptoms were consistent with
trigger thumb; this was a condition which occasionally followed carpal tunnel release
procedures.
In a December 8, 2009 report, Dr. Velagapudi reiterated that appellant had complaints of
pain and triggering related to her right thumb, within the area of the A1 pulley. He stated that
she might need injections and advised her to continue with her regular work.
In a Form CA-7 dated January 4, 2010, appellant requested a schedule award based on a
partial loss of use of her right upper extremity.
On February 18, 2010 OWCP accepted expansion of the claim for right thumb trigger
finger and authorized surgery.
By report dated February 10, 2010, Dr. Velagapudi submitted an impairment evaluation
form and a report in which he indicated that appellant’s impairment was related to right trigger
thumb and could be addressed with a trigger thumb release. He indicated that she could continue
to do her regular work. On the form Dr. Velagapudi stated that appellant had loss of function
due to trigger thumb in the right thumb and right hand. He further indicated that she had pain
related to her right trigger thumb but found that she had no weakness, atrophy, loss of function or
loss of range of motion in the right upper extremity. Dr. Velagapudi found that appellant
reached maximum medical improvement on February 10, 2010.
In order to determine the degree of appellant’s right upper extremity impairment
stemming from her accepted right carpal tunnel and right thumb conditions, OWCP referred the
statement of accepted facts and her medical records to Dr. David H. Garelick, Board-certified in
orthopedic surgery and an OWCP medical adviser, for an impairment evaluation. In a
January 11, 2011 report, Dr. Garelick found that appellant had a six percent impairment of the
right thumb pursuant to the American Medical Association,Guides to the Evaluation of
Permanent Impairment(A.M.A., Guides) (sixth edition). He noted that a report from
Dr. Velagapudi dated June 21, 20092 indicated no permanent residuals from right carpal tunnel
2

This appears to be an error on the part of Dr. Garelick. Dr. Velagapudi did not submit a report dated
June 21, 2009. The facts referenced by Dr. Garelick are contained in Dr. Velagapudi’s report dated May 21, 2009.

2

syndrome, although she continued to have some locking in the right trigger thumb. Dr. Garelick
stated that under page 392 of the A.M.A., Guides, right trigger thumb yielded a six percent right
upper extremity impairment, with no change to this award with use of the net adjustment
formula. He advised that under Table 15-12 at page 421 of the A.M.A., Guides, a six percent
digit impairment correlated with a two percent upper extremity impairment.
In an October 14, 2010 report, Dr. Velagapudi stated that both of appellant’s hands were
in good condition and that her trigger thumb condition had resolved. He advised that on
examination she showed full motion of all of her fingers, hands and her right wrist, with no
evidence of any triggering of her thumbs. Dr. Velagapudi opined that appellant had resolved
symptoms from bilateral carpal tunnel syndrome and right trigger thumb and was at maximum
medical improvement with no particular residuals at that point.
By decision dated February 16, 2010, OWCP granted appellant a schedule award for a six
percent permanent impairment of the left upper extremity3 for the period June 21 to July 22,
2009, for a total of 4.5weeks of compensation.
On February 16, 2010 appellant requested reconsideration.
Appellant underwent a functional capacity test for her right hand and right wrist on
February 16, 2011.
In a June 27, 2011 report, Dr. Garelick reviewed the results of appellant’s February 16,
2011 functional capacity test. He indicated that such a test did not provide a basis for an
additional schedule award because it did not examine all of the components necessary to
determine permanent partial impairment for residual carpal tunnel syndrome and right thumb
trigger finger; he stated, for example, that while the test did discuss grip strength, one of the
criteria for rating carpal tunnel syndrome, she showed inconsistency with grip strength testing.
In addition, Dr. Garelick reviewed Dr. Velagapudi’s October 21, 2010 report and noted that the
physician had opined that appellant’s bilateral carpal tunnel syndrome and right trigger thumb
symptoms had resolved and that she was at maximum medical improvement with no particular
residuals. He concluded that there was no objective basis for an additional schedule award and
no grounds to change the date of maximum medical improvement.
By decision dated July 15, 2011, OWCP denied modification of the February 16, 2011
decision, finding that there was not sufficient medical evidence to support an additional schedule
award.
In a July 21, 2011 decision, OWCP again denied an additional schedule award. It,
however, corrected and modified the February 16, 2011 decision, noting that appellant had an
impairment of the right upper extremity from her accepted right thumb condition.
By letter dated July 26, 2011, appellant’s attorney requested an oral hearing, which was
held on November 10, 2011.
3

The Board notes that OWCP’s finding of an impairment to the left upper extremity in this schedule award
decision was erroneous. OWCP corrected this to the right upper extremity in a subsequent decision.

3

By decision dated January 26, 2012, an OWCP hearing representative affirmed the
February 16, July 15 and 21, 2011 OWCP decisions.
In a January 20, 2012 report, received by OWCP on February 17, 2012, Dr. William N.
Grant, Board-certified in internal medicine, stated that appellant had a 19 percent impairment of
the right upper extremity and a 9 percent left upper extremity impairment. He stated that on
examination she was experiencing constant pain, stiffness and weakness in both hands.
Dr. Grant advised that on a scale of 1 to 10 the least amount of discomfort appellant had was a
level four; he stated that this discomfort often became unbearable when she tried to hold on to
objects and use her hands to perform even the simplest tasks such as signing her name.
Dr. Grant found that, due to her constant painful paresthesias, she had difficulty performing
multiple activities of daily living, including buttoning buttons, opening doors, toileting, bathing
without assistance, hand-writing, using hand tools or performing any repetitive motion requiring
the use of her wrists. He stated that appellant’sQuickDash score on the left was 62.5 and on the
right was 72.5. Dr. Grantdiagnosed bilateral carpal tunnel syndrome, right trigger finger and
right hand contusion.
Dr. Grant calculated the impairment rating for the accepted diagnosis of bilateral carpal
tunnel syndrome by relying on Table 15-23, page 449 of the A.M.A., Guides, the table used for
calculating entrapment/compression neuropathy impairment.4 Using this table, he stated that
appellant had a grade 3 modifier for clinical diagnoses for the left and right wrists because of
significant constant symptoms (history) and a maximum QuickDash score of 72 (functional
scale). Dr. Grant found that this yielded a nine percent upper extremity impairment for the left
wrist and a nine percent upper extremity impairment for the right wrist under this table.
With regard to an impairment for the right trigger finger, Dr. Grant, applying the net
adjustment formula at section 15, pages 392, 406 and 408 of the A.M.A., Guides,5 he found that
appellant had a grade modifier of 1 for clinical diagnoses at Table 15-2, page 392, the table used
to rate digit regional grid impairments; a grade modifier 2 at Table 15-7, page 406 for functional
history, a moderate problem; and a grade modifier 3 at Table 15-8, page 408 for physical
examination adjustment, for a severe problem. Pursuant to the rating process set forth at page
448, he determined that the net adjusted, default impairment average value for these modifiers,
based on adding 3 plus 1 plus 2, divided by 3, equaled 2; this produced an eight percent
impairment under Table 15-11, page 420 of the A.M.A., Guides.6 Using the Combined Values
Chart, Dr. Grant calculated a total 19 percent right upper extremity impairment in addition to a
nine percent left upper extremity impairment.
By letter dated May 30, 2012, appellant’s attorney requested modification of the
January 26, 2012 OWCP decision.

4

A.M.A.,Guides 449.

5

Id.at 392, 406, 408.

6

Id.at 420, 448.

4

In a report dated July 9, 2012, Dr. Garelick found that appellant had no additional
impairment under the A.M.A., Guides.
He reviewed Dr. Grant’s January 20, 2012
report/impairment rating and found that it should be “disregarded” for numerous reasons,
including the fact that he recommended a grade 3 modifier for functional history under
Table 15-23. Dr. Garelick reiterated that appellant’s treating physician, Dr. Velagapudi,
indicated in his October 21, 2010 report that appellant’s bilateral carpal tunnel syndrome and
right trigger thumb symptoms had resolved and that she showed inconsistent effort in grip
strength testing in her February 16, 2011 functional capacity evaluation; based on these records,
he opined, there was no objective basis to award a grade 3 modifier for physical examination.
He advised that the opinion of appellant’s longtime treating physician was entitled to greater
weight than that of Dr. Grant, a physician Board-certified in internal medicine, who did not have
a background in the musculoskeletal system and was chosen by appellant’s attorney.
Dr. Garelick did suggest, however, that in the event of continued “confusion” in this case
appellant should be referred to an orthopedic hand surgeon to perform an impartial medical
evaluation and provide an objective impairment rating.
By decision dated September 12, 2012, an OWCP hearing representative affirmed the
January 26, 2012 decision.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.10
ANALYSIS
The Board finds that a conflict in medical opinion exists between Dr. Garelick and
Dr. Grant concerning the nature and the extent of permanent impairment caused by the accepted
right carpal tunnel and right thumb conditions. Dr. Grant rated a 19 percent impairment to the
right upper extremity pursuant to the sixth edition of the A.M.A., Guides based on a nine percent
impairment for right carpal tunnel syndrome and an eight percent digit impairment for the right
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

9

Id.

10

Veronica Williams, 56 ECAB 367, 370 (2005).

5

thumb.11 This contrasted with the opinion of Dr. Garelick, who found that Dr. Grant’s report
was not sufficient to warrant an additional schedule award because there was a lack of objective
findings supporting additional impairment and because appellant’s treating physician,
Dr. Velagapudi, had found in his October 21, 2010 report that her bilateral carpal tunnel
syndrome and right trigger thumb symptoms had resolved without residuals.12 A conflict exists
in the medical opinion evidence as to whether her accepted conditions caused additional
impairment of the right upper extremity.
Accordingly, the Board will set aside the September 12, 2012 OWCP decision and
remand for referral of appellant, the case record and a statement of accepted facts to an
appropriate independent medical specialist to determine the nature and the degree of her
permanent impairment due to her accepted right carpal tunnel and right thumb conditions.On
remand, OWCP should instruct the impartial medical specialist to resolve the conflict as to
whether she had any additional impairment of the right upper extremity based on her accepted
conditions and to clearly indicate the specific background and protocols of the A.M.A., Guides
upon which the opinion is based.After such further development of the record as it deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.The case is remanded for
further development of the medical evidence.

11

The Board notes that Dr. Grant also rated a nine percent impairment for left carpal syndrome. As OWCP has
not adjudicated an impairment rating for the left upper extremity, the Board will not address this finding.
12

As noted above, Dr. Garelick suggested in his July 9, 2012 report that referral to an impartial medical examiner
might be an appropriate course of action in this case.

6

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: September 6, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 09-751
Issued: December 15, 2009

Case Submitted on the Record

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

JURISDICTION
On January 26, 2009 appellant filed a timely appeal of June 5 and December 10, 2008
decisions of the Office of Workers’ Compensation Programs terminating her compensation
benefits. 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 met its burden of proof to terminate appellant’s
compensation benefits effective September 13, 2007 and whether appellant had any disability
after that date.

FACTUAL HISTORY
On August 1, 2006 appellant, then a 51-year-old transportation security screener, alleged
that she sustained low back pain from standing, bending and lifting at work.1 She stopped work
on July 31, 2006. The Office accepted her claim for lumbar radiculitis. Prior to filing the
present claim, appellant filed a traumatic injury claim alleging that on November 9, 2005 she
developed muscle spasms while wanding and lifting bags. This was developed as claim number
xxxxxx902. The Office accepted this claim for lumbar sprain and strain. Appellant stopped
work on the date of injury but returned to light duty on November 13, 2005 with some
intermittent absences until she stopped work on July 31, 2006.2 The claims were combined.
Appellant submitted treatment notes dated between February 9 and August 15, 2006 from
Dr. G. Michael Elkanich, a Board-certified orthopedic surgeon, who diagnosed low back pain
with left leg sciatica and L4-5 disc degeneration and loss of disc space and noted that appellant’s
condition was work related. Dr. Elkanich stated that appellant was totally disabled from July 31
to August 23, 2006 and could resume light duty on August 23, 2006. Appellant also submitted
reports from Dr. Daniel Kim, Board-certified in pain medicine and anesthesiology, who treated
her for lumbar radiculopathy and chronic pain syndrome.
On May 18, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, for a second opinion. In a June 25,
2007 report, Dr. Swartz reviewed appellant’s history of injury and her complaint of low back
pain at the lumbosacral level and in the left lower extremity. Dr. Swartz diagnosed lumbar disc
protrusion at L4-5 with degenerative changes at the L4-5 segment in addition to a disc protrusion
of four to five millimeters without nerve root displacement at the L4-5 level. He noted no
evidence of radiculopathy and found inconsistent neurologic testing results from the sensory
examination, which suggested symptom magnification. Dr. Swartz found normal lumbar spine
range of motion, normal motor and reflex examinations and no atrophy in the lower extremities.
He opined that appellant had recovered from the lumbar strain injury and had evidence of
preexisting degenerative disc disease in the lumbar spine at the L4-5 level. Dr. Swartz advised
that the degenerative disc disease was aggravated by appellant’s work activities. He noted that
the aggravation was temporary and had ceased at the time of his examination as he found a
normal physical examination. There were objective findings of disability and Dr. Swartz opined
that the subjective complaints were not industrially related. He advised that appellant required
no further treatment. Dr. Swartz noted a 25-pound lifting capacity on a nonindustrial basis. In
an attached work capacity evaluation form, he indicated that appellant could not perform her
usual job, but could work full time with permanent restrictions due to her underlying
degenerative disease.

1

Appellant actually filed a claim for a recurrence of disability beginning on July 31, 2006 due to a
November 9, 2005 original injury in claim number xxxxxx902. The Office treated this as a new occupational
disease claim as appellant indicated her condition was due to repetitive work.
2

Initial medical reports in claim number xxxxxx902 diagnosed and treated appellant for lumbar strain.
Subsequent treatment records indicated that she was being treated for radiculopathy into the right leg and a herniated
disc or disc degeneration at L4-5.

2

On August 8, 2007 the Office issued a proposed notice of termination of compensation,
finding that the weight of the medical evidence established that appellant no longer had any
residuals or disability due to her accepted conditions.
Appellant submitted May 23 and April 25, 2007 reports from Dr. Kim who noted treating
appellant for low back pain, lumbar radiculopathy and chronic pain syndrome.
In a September 13, 2007 decision, the Office terminated appellant’s compensation
benefits effective that day.
On October 3, 2007 appellant requested a review of the written record. She noted that
she worked at the employing establishment for three years before injuring her back. Appellant’s
job required lifting heavy bags by which she injured her back in 2005. She asserted that her back
condition did not improve and that her disc protrusion occurred at work on November 9, 2005.
In a September 10, 2007 report, Dr. Elkanich noted treating appellant since February 9,
2006 for left lower extremity radiculopathy, L4-5 disc protrusion and stenosis. Appellant was
injured at work on November 9, 2005 and that her back condition had improved. Currently, she
complained of significant left lower extremity radiculopathy from the posterior gluteal region.
Dr. Elkanich last saw appellant on August 8, 2007, after the second opinion evaluation with
which he disagreed. He advised that appellant had lumbar degenerative disc disease at L4-5 that
was work related and an aggravation of her preexisting degenerative condition. Dr. Elkanich
stated that appellant might need injections or microdiscectomy decompression.
In a November 13, 2007 decision, an Office hearing representative affirmed the
September 13, 2007 decision terminating benefits, but noted that Dr. Elkanich supported that the
work injury caused an ongoing aggravation of appellant’s degenerative disc disease while
Dr. Swartz opined that the work injury caused a temporary aggravation, which had ceased. The
hearing representative found a conflict in the medical evidence between Drs. Swartz and
Elkanich regarding whether appellant continued to have residuals of her accepted employment
injury. The hearing representative remanded the case for further development.
On February 19, 2008 the Office referred appellant with a statement of accepted facts to
Dr. Anthony Serfustini, a Board-certified orthopedic surgeon, for a referee evaluation. In a
March 27, 2008 report, Dr. Serfustini reviewed appellant’s history of injury and treatment.
Appellant was currently working light duty, could stand and walk for 1 hour at a time, and could
sit for 30 minutes at a time. On examination, Dr. Serfustini found no evidence of pain behavior,
symptom magnification or incongruency signs. He advised that appellant’s gait and stance were
normal. There was no evidence of any asymmetry of either leg and no muscle atrophy or
fasciculation. Range of motion in the legs was normal. Dr. Serfustini diagnosed acute
lumbosacral sprain and strain, soft tissue injury and aggravated degenerative disc disease at the
L4-5 level with continuing symptoms. He stated that nonaccident-related diagnoses included
degenerative disc disease at L4-5, broad-based posterior central and paracentral disc protrusion,
narrowing of central spinal canal at L4-5, and congenitally short pedicles of lumbar spine at
L4-5. Dr. Serfustini noted that appellant’s degenerative disc disease was an ongoing industrial
aggravation, related to her employment and aggravated by her work duties. He advised that
there was no objective evidence that there was any acceleration of appellant’s preexisting

3

degenerative disc disease as temporary and permanent aggravation can continue without causing
irreversible change to the underlying condition. Dr. Serfustini noted that continued degeneration
was time dependent and would progress not on the basis of any aggravation but on the basis of
the degenerative process itself. He described this process as natural aging where the normal load
of spine would shift from the lumbosacral disc to the facets. Dr. Serfustini advised that this
process had no direct relationship to the November 9, 2005 work injury. He opined that the
work activities were an aggravation of the ongoing November 9, 2005 work injury.
Dr. Serfustini opined that there were no nonindustrial or preexisting disability factors. He
advised that appellant was not able to return to full duty, rather she should continue light duty
with lifting restrictions. Dr. Serfustini indicated that there was no work-related disability as she
was employed full time with modification of her activities. Appellant’s restrictions were due to
the aggravation of her preexisting condition and she was unable to return to full duty.
Dr. Serfustini advised that appellant would not need further medical treatment for the
November 9, 2005 injury. In an attached work restriction form, he advised that appellant could
not work her usual job due to permanent aggravation of L4-5 disc disease but could work full
time with restrictions.
On April 30, 2008 the Office requested clarification from Dr. Serfustini on whether the
diagnosed conditions were causally related to the 2005 or 2006 injuries and whether appellant
had residuals of either injury. It also asked whether any work-related aggravation of L4-L5
degenerative disc disease was temporary or permanent. In a May 19, 2008 supplemental report,
Dr. Serfustini stated that the July 31, 2006 claim was a permanent aggravation of the
November 9, 2005 injury, which prevented her from returning to full duty despite repeated
attempts. Regarding appellant’s residuals, Dr. Serfustini indicated that flare-ups of her
lumbosacral spine discomfort occurred when she tried to increase her work activities. He
attributed this to both injuries.
On May 21, 2008 the Office requested further clarification from Dr. Serfustini. It
advised Dr. Serfustini that it accepted the November 9, 2005 injury for a lumbar sprain/strain and
the 2006 injuries for lumbar radiculitis. The Office asked him to address whether appellant
continued to have lumbar radiculitis or whether it had resolved, whether appellant sustained a
permanent aggravation of her preexisting degenerative disc disease at L4-L5 and whether the
lumbar sprain/strain of November 9, 2005 resolved. In a June 2, 2008 report, Dr. Serfustini
opined that appellant had radiculitis but no objective evidence, such as neurodiagnostic studies,
suggested lumbar radiculopathy. Radiculitis was a clinical diagnosis not a neurodiagnostic
diagnosis. Dr. Serfustini determined that the 2006 aggravation was not a new injury. He also
noted that he did not provide objective findings regarding appellant’s permanent aggravation to
her lumbar spine as his opinion derived from the clinical course of appellant’s lumbosacral spine.
Dr. Serfustini based his opinion on appellant’s repeated attempts to return to work to her usual
duties without success. He advised that appellant’s spinal stenosis and degenerative changes of
the lower two lumbar levels precluded her from performing the type of work she performed
when injured. Dr. Serfustini opined that her November 9, 2005 lumbar sprain had resolved as
well as her acute soft tissue sprain from July 31, 2006.
In a June 5, 2008 decision, the Office terminated appellant’s compensation benefits
effective September 13, 2007 finding that Dr. Serfustini’s reports failed to provide any objective
findings that appellant had permanent aggravation of preexisting lumbar degenerative conditions

4

due to her 2006 or 2005 injuries. It also found that Dr. Serfustini did not provide any objective
evidence supporting that the 2006 injury caused temporary or permanent aggravation of her
preexisting condition.
On June 13, 2008 appellant requested an oral hearing, which was held on
October 15, 2008.3
In a December 10, 2008 decision, a hearing representative affirmed the June 5, 2008
decision finding that the weight of the medical evidence rested with Dr. Serfustini who
determined that appellant no longer experienced any residuals of the accepted work injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.7
Section 8123(a) 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. The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.8

3

On October 29, 2008 appellant filed a schedule award claim. On November 18, 2008 the Office denied
appellant’s schedule award claim. Appellant has not appealed the November 18, 2008 decision.
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
5

Vivien L. Minor, 37 ECAB 541 (1986).

6

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

7

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

8

R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); see also 5 U.S.C. § 8123(a); 20 C.F.R.
§ 10.321.

5

ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits at the time of termination on September 13, 2007. The Office accepted
that appellant’s work duties caused lumbar radiculitis and a lumbar sprain and strain. It
subsequently referred appellant to Dr. Swartz for a second opinion evaluation.
In a June 25, 2007 report, Dr. Swartz explained there was no evidence of radiculopathy
and that inconsistent neurologic testing results suggested symptom magnification. He advised
that his neurologic examination was normal. Dr. Swartz further explained that he found normal
lumbar range of motion, normal motor and reflex examinations and no atrophy in the lower
extremities. He opined that, based on normal physical examination findings, appellant had
sustained temporary aggravated degenerative disc disease from the 2006 injuries but that this had
resolved no later than the time of his examination. Dr. Swartz opined that she had recovered
from the lumbar straining injury. He opined that, as there were no objective findings of
disability and normal findings on examination, no further treatment was necessary and there
were no residuals from the work injury. Dr. Swartz indicated that appellant’s continuing
subjective symptoms were not due to the accepted work injuries.
The Board finds that Dr. Swartz’s report represents the weight of the medical evidence
and that the Office properly relied on his report in terminating appellant’s compensation benefits
on September 13, 2007. Dr. Swartz’s opinion is based on proper factual and medical history as
he reviewed a statement of accepted facts and referenced appellant’s prior treatment. He also
related his comprehensive examination findings in support of his opinion that all work-related
conditions had resolved.
While the record contains reports from Dr. Elkanich dated between February 9 and
August 15, 2006 that provide some support for continuing causal relationship, these reports are
insufficient to create a conflict or overcome Dr. Swartz’s report. Dr. Elkanich’s August 15, 2006
report opined that appellant’s condition was work related, and he noted that appellant was totally
disabled between July 31 and August 23, 2006 and partially disabled beginning August 23, 2006
with the ability to resume light duty. However, he did not explain whether appellant’s disability
continued to be caused by a work-related injury or was due to a preexisting medical condition.9
Additionally, Dr. Kim’s reports noted treatment for low back pain, lumbar radiculopathy and
chronic pain syndrome, but did not address the cause of any of these conditions.10
There was no other medical evidence contemporaneous with the termination of
appellant’s benefits which supported that appellant had any continuing employment-related
condition. Consequently, at the time the Office terminated benefits, on September 13, 2007, the
weight of the medical evidence rested with Dr. Swartz and established that appellant had no
9

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (a medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship, which is
unsupported by medical rationale).
10

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (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).

6

residuals due to her accepted lumbar radiculitis condition or lumbar sprain and strain. Therefore,
the Office met its burden of proof to terminate appellant’s compensation benefits.
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to the claimant. To prevail,
the claimant must establish by the weight of the reliable, probative and substantial evidence that
he or she had an employment-related disability, which continued after termination of
compensation benefits.11
Subsequent to the Office’s termination of benefits, appellant requested a review of the
written record and submitted Dr. Elkanich’s September 10, 2007 report, which supported that her
employment-related conditions had not resolved and that she also had a work-related aggravation
of her degenerative disc disease at L4-5. Consequently, the hearing representative properly
found, on November 13, 2007, that, subsequent to the proper termination of benefits,
Dr. Elkanich’s September 10, 2007 report created a conflict in the medical evidence with the
report of Dr. Swartz who found no continuing work-related conditions. The Office properly
referred appellant to Dr. Serfustini for a referee evaluation to resolve the conflict in medical
opinion as to whether appellant had any employment-related residuals of her lumbar conditions.
However, the Board finds that Dr. Serfustini’s opinion is insufficient to resolve the conflict in
medical opinion over whether appellant continues to have residuals of her employment-related
conditions.
In a March 27, 2008 report, Dr. Serfustini indicated that accident-related diagnoses
consisted of lumbosacral sprain/strain, soft tissue injury and aggravated degenerative disc disease
at L4-5 with continued symptoms. However, he did not identify lumbar radiculitis as an
accepted condition. Although this report provided some support for continuing causal
relationship, it contained inconsistent statements that both supported and negated continuing
residuals of appellant’s work-related condition. For example, Dr. Swartz opined that appellant’s
degenerative disc disease was related to and aggravated by her employment activities. He
subsequently stated that this degenerative condition had no direct relationship to either the 2005
or 2006 injuries as it was based on a natural aging process. In addition, Dr. Swartz advised that
appellant could not return to full duty as it would increasingly aggravate her preexisting L4-5
condition but he also noted that appellant had no preexisting or work-related disability as she
was working full time with modifications.
In light of these unexplained inconsistencies, the Office properly requested clarification
from Dr. Serfustini on April 30, 2008 regarding whether the diagnosed conditions related to the
2005 or 2006 injuries and if there were residuals from either injury.12 It also inquired as to
whether the work-related degenerative disc disease aggravation was temporary or permanent.
However, Dr. Serfustini’s May 19, 2008 supplemental report did not clarify his previous report
or clearly address the Office’s inquiry. He generally referred to the injuries by the date of the
11

I.J., supra note 4.

12

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009) (when the Office secures an opinion from
an impartial medical specialist for the purpose of resolving a conflict in the medical evidence and the opinion from
the specialist requires clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report).

7

claim rather than refer to any specific diagnosed conditions. Dr. Serfustini also did not clearly
explain how any of the diagnosed conditions were employment related. He also did not explain
how lumbosacral spine flare-ups were residuals attributable to the 2006 injury. In the Office’s
May 21, 2008 request for further clarification, it inquired whether appellant’s lumbar radiculitis
or lumbar sprain/strain conditions had resolved. It also requested that Dr. Serfustini explain the
basis of his opinion indicating permanent aggravation of a preexisting degenerative disc disease
at L4-5. However, Dr. Serfustini’s June 2, 2008 report also lacked clear and direct answers as he
qualified his finding of radiculitis by indicating it was a clinical, rather than neurodiagnostic
diagnosis. He also opined that, although he previously reported permanent aggravation of
appellant’s lumbar spine, this finding was based on appellant’s unsuccessful attempts to return to
her usual work duties and not on objective findings. Additionally, Dr. Serfustini opined that
appellant’s soft tissue injury from 2006 had resolved, despite the fact that the soft tissue injury
was not an accepted condition.
Based on the unexplained inconsistencies in Dr. Serfustini’s reports, his opinion is
insufficient to resolve the conflict in medical opinion. When the impartial medical specialist’s
statement of clarification or elaboration is not forthcoming, or if the specialist is unable to clarify
or elaborate on the original report or if the specialist’s supplemental report is also vague,
speculative or lacks rationale, the Office must submit the case record together with a detailed
statement of accepted facts to a second impartial specialist for a rationalized medical opinion on
the issue in question. Unless this procedure is carried out by the Office, the intent of section
8123(a) will be circumvented when the impartial specialist’s medical report is insufficient to
resolve the conflict of medical evidence.13 Accordingly, the case must be remanded to the Office
for referral to another impartial medical specialist to resolve the issue of whether appellant has
any continuing employment-related residuals of her lumbar conditions. Following this and such
other development as is deemed necessary, the Office shall issue an appropriate merit decision
regarding appellant’s entitlement to compensation benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on September 13, 2007. The Board further finds that the case is not in
posture for decision regarding whether appellant has any employment-related residuals of her
low back conditions after September 13, 2007 and must be remanded to the Office for further
development.

13

I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008).

8

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated December 10 and June 5, 2008 are affirmed in part and set aside and remanded
in part for further actions consistent with this decision.
Issued: December 15, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9