United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF LABOR, OFFICE OF
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WORKERS’ COMPENSATION PROGRAMS,
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Washington, DC, Employer
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___________________________________________ )
H.L., Appellant

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

Docket No. 14-1891
Issued: February 12, 2015

Case submitted on the record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 8, 2014 appellant filed a timely appeal from a May 9, 2014 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 appellant’s claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more
than: two percent impairment of the right arm; two percent impairment of the left arm; or one
percent impairment of the left leg, for which she has received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board. In a decision dated August 15,
2012, the Board found that appellant did not meet her burden of proof to establish that she had an
impairment caused by her accepted employment injuries that would entitle her to receive a
schedule award.2 The facts of the case, as set forth in the prior decision, are incorporated by
reference. The relevant facts include that the claim was accepted for aggravation of lumbosacral
radiculitis, aggravation of displacement of lumbar intervertebral disc without myelopathy L5-S1,
aggravation of cervical radiculitis C6-7, aggravation of degeneration of cervical intervertebral
disc C6-7, and aggravation of cervical facet syndrome.
On November 29, 2013 appellant filed a claim for a schedule award. She submitted a
November 25, 2013 report from Dr. Robert W. Macht, a Board-certified surgeon, who noted
appellant’s history of injury and treatment. Examination findings included decreased sensation
to light touch about the right thumb and all of the fingers of the left hand; mild weakness of the
right hand grip and moderate weakness of the left hand grip; mild weakness at the right elbow;
and pain with squeezing. Sensation was intact to two-point discrimination. Dr. Macht diagnosed
occupational injury to the neck and back with cervalgia, lumbalgia, and radiculopathy. He noted
that April 2011 nerve studies of the lower extremities revealed evidence of moderate acute left
L5 radiculopathy. Furthermore, January 2010 nerve studies of the upper extremities revealed
evidence of moderate acute right C6 and C7 radiculopathy. Dr. Macht referred to the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008)
(A.M.A., Guides) and explained that The Guides Newsletter offered an approach to rating spinal
nerve impairments consistent with sixth edition methodology. He referred to page four of The
Guides Newsletter and determined that appellant had a mild class 1 sensory and mild motor
deficit of both C6 and C7 as determined by the nerve study in January 2010. Dr. Macht referred
to Table 15-73 and her QuickDASH questionnaire, and assigned grade modifier 2. He found two
percent impairment of the right upper extremity due to the mild sensory loss at C6 and one
percent impairment of the right upper extremity due to the mild sensory loss at C7. Dr. Macht
determined that appellant had nine percent impairment of the right upper extremity due to the
mild motor deficit at C6 and nine percent impairment of the right upper extremity due to the mild
motor deficit at C7. He combined them for a 21 percent permanent impairment of the right
upper extremity. Regarding her left L5 radiculopathy, Dr. Macht determined that appellant had a
class 1 impairment using page six of The Guides Newsletter. Pursuant to Table 16-6,4 he
assigned a grade modifier 2 for a functional history adjustment score for her left leg. Dr. Macht
indicated that appellant had a mild sensory deficit and mild motor deficit of her L5 nerve root
and qualified for two percent impairment for sensory deficit of the left leg and 13 percent
impairment of her left leg for motor deficit. He combined the values for a 15 percent permanent
impairment of her left lower extremity. Dr. Macht opined that appellant did not qualify for a
ratable impairment for her right leg or left as the nerve studies did not reveal evidence of

2

Docket No. 12-510 (issued August 15, 2012).

3

A.M.A., Guides 506.

4

Id. at 516.

2

radiculopathy in those areas. He indicated that she reached maximum medical improvement on
June 30, 2011.
By letter dated December 10, 2013, OWCP informed appellant that it had received
Dr. Macht’s November 25, 2013 report and advised her of the type of evidence needed to
establish a schedule award.
In a February 1, 2014 report, an OWCP medical adviser noted that he had reviewed
Dr. Macht’s report and explained that it did not include impairment ratings supported by
examination findings that were actually reported. As an example, he noted that Dr. Macht
indicated that appellant had mild sensory loss but that the examination portion of his report
provided no sensory testing of any kind although he offered extensive upper extremity ratings.
The medical adviser indicated that Dr. Macht did not report examination findings in the C6 or C7
nerve roots and that, while he noted weakness shown by dynamometer testing, he did not report
the numerical values of such testing. He recommended a second opinion examination.5
On March 6, 2014 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions and the medical record to Dr. Robert Allen Smith, a Boardcertified orthopedic surgeon.6
In a March 27, 2014 report, Dr. Smith described appellant’s history of injury and
treatment and examined her. Appellant was alert, oriented, in no acute distress, and her gait and
station were normal. Examination of the spine revealed no finding of any spasm, atrophy, trigger
points, or deformity. Spurling’s sign was negative and active spinal range of motion was
satisfactory without spasm or rigidity. Neurologic examination of the arms revealed complaints
of paresthetic sensations intermittently with distribution bilaterally at the L5 distribution on the
left side. There was no gross sensory loss, atrophy, reflex change or any weakness in either the
arms or legs. Dr. Smith diagnosed aggravation of preexisting cervical and lumbar disc disease
with low grade paresthetic sensations in the distributions. He indicated that appellant had
reached maximum medical improvement. Dr. Smith explained that functional modifier was one,
the physical examination modifier was one, and the clinical study modifier for the diagnostic
images was zero such that the net modifier for the conditions was zero. He explained that for the
right arm, C6 radiculopathy had a default rating of one percent impairment and, with a net
modifier of zero, the rating was therefore, one percent for the class 1, grade C condition, C6
radiculopathy. Similarly, for class one, C7 radiculopathy, with a net modifier of zero, the rating
was also one percent impairment of the arm. Dr. Smith concluded that the total rating for the
right upper extremity was two percent.
Dr. Smith provided a similar analysis for the left arm, noting changes at C6-7 based on an
electromyogram (EMG). He explained that the C6 radiculopathy had a default rating of one
percent, with a net modifier of zero, which resulted in one percent impairment to the left upper
extremity. Dr. Smith advised that the C7 radiculopathy had a default rating of one percent for
5

In a February 11, 2011 report, OWCP medical adviser noted the second opinion physician should utilize the
A.M.A., Guides and The Guides Newsletter.
6

An earlier examination was rescheduled.

3

class 1, grade C. He opined that the total impairment for the left upper extremity was two
percent. For the left L5 radiculopathy, Dr. Smith referred to Table 11 for lower extremity
impairments in The Guides Newsletter. He noted that appellant had a class 1 condition with a
default rating of one percent to the lower extremity. Dr. Smith determined that the functional
history modifier was one and clinical studies modifier was one, and resulted in a net modifier of
zero. He opined that the rating for the left leg was a class 1, grade C condition, resulting in one
percent impairment. Dr. Smith concluded that appellant had two percent right upper extremity
impairment, two percent left upper extremity impairment and one percent left lower extremity
impairment.
On April 21, 2014 an OWCP medical adviser concurred with Dr. Smith’s impairment
rating. He noted that maximum medical improvement was reached on March 27, 2014.
By decision dated May 9, 2014, OWCP granted appellant a schedule award for two
percent impairment of her right arm and two percent impairment to her left arm. It also granted
her a schedule award for one percent impairment to her left leg. Appellant was awarded
compensation for 15.36 weeks for the period March 27 to July 12, 2014.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. 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.7
Section 8107 of FECA sets 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.8 FECA,
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.9 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
7

Veronica Williams, 56 ECAB 367 (2005).

8

5 U.S.C. § 8107.

9

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

10

20 C.F.R. § 10.404.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
12

Pamela J. Darling, 49 ECAB 286 (1998).

4

1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.14 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.15
ANALYSIS
OWCP accepted appellant’s claim for aggravation of lumbosacral radiculitis, aggravation
of displacement of lumbar intervertebral disc without myelopathy L5-S1, aggravation of cervical
radiculitis C6-7, aggravation of degeneration of cervical intervertebral disc C6-7, and
aggravation of cervical facet syndrome.
Appellant claimed a schedule award on November 29, 2013. In support of her claim, she
submitted a report from Dr. Macht who determined that she had 21 percent permanent
impairment of the right arm and 15 percent permanent impairment of her left leg. Although
Dr. Macht indicated that he calculated appellant’s impairment using The Guides Newsletter for
spinal nerve root injuries involving the extremities, it is unclear how he arrived at the findings
without specific numeric measurements to support his conclusions.16 Board precedent is well
settled, however, that when an attending physician’s report gives an estimate of permanent
impairment and mentions the A.M.A., Guides, but does not base that estimate upon correct
application of specifically identifiable sections, grading schemes, tables or figures, OWCP is
correct to follow the advice of its medical adviser or consultant where he or she has properly
utilized the A.M.A., Guides.17

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

14

L.J., Docket No. 10-1263 (issued March 3, 2011).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
16

As noted by OWCP’s medical adviser, Dr. Macht indicated that appellant had mild sensory loss but that the
examination portion did not provide reports of specific testing consistent with this finding. The medical adviser also
observed that Dr. Macht did not report examination findings in the C6 or C7 nerve roots and that, while he noted
weakness shown by dynamometer testing, he did not report the numerical values of such testing.
17

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).

5

The Board notes that Dr. Smith examined appellant and provided findings. Dr. Smith
utilized The Guides Newsletter for spinal nerve impairments to the upper and lower extremities.
For the right upper extremity, he explained that a C6 radiculopathy grade C had a default rating
of one percent, with a net modifier of zero such that the rating was one percent arm impairment
for the class 1, grade C condition.18 Dr. Smith reported the same findings for the C7
radiculopathy. He determined that the net modifier was zero, and therefore, the rating was one
percent for both C6-7, class 1, grade C. Dr. Smith concluded that the total rating for the right
arm was two percent impairment.19 Likewise, he provided a similar analysis for the left arm.
Dr. Smith determined that the C6 radiculopathy had a default rating of one percent, with a net
modifier of zero, which yielded one percent impairment to the left arm. He determined that the
C7 radiculopathy had a default rating of one percent impairment for class 1, grade C, with a
modifier of zero. Dr. Smith opined that the total impairment for the left upper extremity was two
percent.20 Furthermore, with regard to the left L5 radiculopathy, he indicated that the rating was
obtained utilizing Table 11 for lower extremity impairments. Dr. Smith noted that appellant had
a class 1 condition with a default rating of one percent to the lower extremity.21 He determined
that the functional history modifier was one and clinical studies modifier was one, and resulted in
a net modifier of zero. Dr. Smith opined that the rating for the left leg, a class 1, grade C
condition, was one percent impairment. He concluded that appellant had two percent right arm
impairment, two percent left arm impairment and one percent left leg impairment. The Board
notes that OWCP medical adviser concurred with the impairment rating of Dr. Smith. The
Board finds that the report of Dr. Smith comports with the A.M.A., Guides. Appellant did not
submit any other medical evidence to support that she was entitled to a greater schedule award,
under the sixth edition of the A.M.A, Guides, or The Guides Newsletter. Accordingly, the Board
finds that appellant has not established entitlement to a schedule award.
On appeal, appellant argued that she was getting worse not better and did not believe that
all aspects of her injury were taken into consideration. However, as noted above, the medical
evidence is insufficient to establish entitlement to a greater award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
more than: two percent impairment of the right arm; two percent impairment of the left arm; or
one percent impairment of the left leg, for which she received a schedule award.

18

See The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009), Proposed Table 1.
19

Id.

20

Id.

21

See id. at Proposed Table 2.

6

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 12, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 22-0009
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On October 3, 2021 appellant filed a timely appeal from a September 24, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 6, 2020 appellant, then a 51-year-old program specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed trigger finger of her left middle finger due
to factors of her federal employment. She explained that she was working at her computer and
experienced left hand and left middle finger pain. Appellant noted that she first became aware of
1

5 U.S.C. § 8101 et seq.

her condition on April 21, 2020 and realized its relation to her federal employment on
May 5, 2020. She stopped work on May 6, 2020.
In a May 8, 2020 development letter, OWCP informed appellant that it had not received
any evidence in support of her claim. It advised her of the type of factual and medical evidence
necessary and provided a questionnaire for her completion. In a separate development letter of
even date, OWCP requested that the employing establishment provide additional information
regarding appellant’s alleged injury, including comments from a knowledgeable supervisor
regarding the accuracy of her allegations and an explanation of any areas of disagreeme nt. It
afforded both parties 30 days to submit the requested evidence.
OWCP thereafter received a May 5, 2020 after visit summary by Dr. Nwamaka Olutola
Oluwato, a Board-certified family physician, who noted a diagnosis of left trigger finger and
hypertension, and referred appellant for an orthopedic evaluation. In a separate note of even date,
Dr. Oluwato recommended that she remain out of work through May 8, 2020.
Dr. Audrey K. Tsao, a Board-certified orthopedic surgeon, in a note dated May 5, 2020,
also diagnosed left middle trigger finger.
In a May 13, 2020 response to OWCP’s questionnaire, appellant indicated that she believed
that typing on a computer and using a keyboard for eight to nine hours per day for the past 20 years
had caused her symptoms. She noted that on April 21, 2020 she was working at her keyboard and
started feeling pain in her left hand and left middle finger, which progressively worsened each day.
Appellant related that she then woke up on May 5, 2020 and her left middle finger was stuck in
the bent position, so she massaged it until straightened out.
In a May 15, 2020 response to OWCP’s development letter, the employing establishment
noted that appellant used a keyboard for up to eight hours per day, which depended upon whether
she had to attend conference calls.
OWCP also received a position description for a program specialist with the employing
establishment.
By decision dated August 4, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her federal employment.
OWCP continued to receive evidence, including a July 24, 2020 after visit summary by
Allison M. Parver, a physician assistant, who noted that appellant received an injection.
In a note dated September 4, 2020, Dr. Oluwato indicated that appellant had received
medical treatment for a diagnosis of left middle trigger finger. She opined that this diagnosis can
be caused by repetitive use, such as frequent typing or repeated finger and thumb use.
On September 12, 2020 appellant requested reconsideration of OWCP’s August 4, 2020
decision.
By decision dated December 11, 2020, OWCP denied modification of its August 4, 2020
decision.

2

On January 25, 2021 appellant requested reconsideration of OWCP’s December 11, 2020
decision. In support of her request, she submitted a January 13, 2021 note by Dr. Tsao, who
diagnosed left middle trigger finger and opined that typing and keyboard work had aggravated her
condition and irritated her trigger finger. The note further indicated that appellant had undergone
two injections and may require surgery.
By decision dated September 24, 2021, OWCP denied modification of its December 11,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

A.K., Docket No. 21-0278 (issued July 12, 2021); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

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

3

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In a January 13, 2021 medical note, Dr. Tsao diagnosed left middle trigger finger and
opined that typing and keyboard work had aggravated appellant’s condition and irritated her trigger
finger. Similarly, Dr. Oluwato, in her note dated September 4, 2020, opined that trigger finger can
be caused by repetitive use such as frequent typing or repeated finger and thumb use. While these
reports supported causal relationship, they did not a pathophysiological explanation of how the
accepted factors of federal employment were competent to cause the diagnosed condition . The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition was related to accepted
employment factors. 10 Consequently, the January 13, 2021 note by Dr. Tsao and September 4,
2020 note by Dr. Oluwato are insufficient to meet appellant’s burden of proof to establish her
claim.
In separate treatment notes dated May 5, 2020, Drs. Oluwato and Tsao diagnosed left
middle trigger finger, but did not provide an opinion on causation. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship. 11 Therefore, these notes are also insufficient
to establish appellant’s claim.
The remaining evidence of record consists of a July 24, 2020 after visit summary by
Ms. Parver, a physician assistant. Certain healthcare providers such as physician assistants,
physical therapists, nurse practitioners, and social workers are not considered “physician[s]” as
defined under FECA. 12 Consequently, their medical findings and/or opinions will not suffice for

9

Id.; Victor Woodhams, supra note 6.

10

J.W., Docket No. 18-0678 (issued March 3, 2020); G.R., Docket No. 19-0940 (issued December 20, 2019); D.L.,
Docket No. 19-0900 (issued October 28, 2019); see also V.T., Docket No. 18-0881 (issued November 19, 2018); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket
No. 08-2214 (issued May 6, 2009).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

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

4

purposes of establishing entitlement to FECA benefits. As such, this evidence is insufficient to
establish appellant’s claim.13
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s diagnosed medical conditions and the accepted factors of her federal employment, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

13

D.P., Docket No. 19-1295 (issued March 16, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); see
M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Battle Creek, MI, Employer
__________________________________________

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

Docket No. 14-485
Issued: February 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 24, 2013 appellant, through his attorney, filed a timely appeal from a
November 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits effective
April 22, 2013 based on his capacity to perform the duties of a laundry worker.
FACTUAL HISTORY
OWCP accepted that on December 18, 1998 appellant, then a 49-year-old housekeeping
aid, sustained a low back strain and herniated disc at L5-S1 as a result of pushing a floor
1

5 U.S.C. § 8101 et seq.

scrubber up a back ramp. He stopped work on December 21, 1998 and has not returned to work.
OWCP authorized a L5-S1 discectomy performed on January 1, 1999, a single fusion at L5-S1
on January 3, 2001, a posterior spinal fusion at L5-S1 with left iliac crest bone grafting on
October 10, 2002 and an extension of the fusion to L4 on December 21, 2006. Appellant was
placed on the periodic rolls.
In a September 26, 2008 work capacity evaluation, Dr. Gregory P. Graziano, an attending
Board-certified orthopedic surgeon and appellant’s treating physician, advised that appellant was
disabled for work.
By letter dated August 5, 2010, OWCP requested that Dr. Graziano provide a report
addressing whether appellant had any continuing residuals or disability related to his accepted
employment injuries.2
In an August 13, 2010 report, Dr. Graziano stated that he was unable to comment on
appellant’s current conditions since he had not seen him since December 14, 2007.
By letter dated September 8, 2011, OWCP referred appellant, together with a statement
of accepted facts and the medical record, to Dr. Emmanuel Obianwu, a Board-certified
orthopedic surgeon, for a second opinion. In an October 3, 2011 report, Dr. Obianwu diagnosed
chronic lumbar disc disease and a herniated lumbar disc at L5-S1. He advised that, while
appellant no longer had any residuals of his employment-related lower back strain he had
residuals of his employment-related herniated disc condition. Dr. Obianwu opined that appellant
could not perform his housekeeping aid job, but he could work with restrictions that included no
reaching above the shoulder, climbing, repetitive bending, twisting, and lifting more than 20
pounds.
On December 16, 2011 OWCP referred appellant for vocational rehabilitation services.
Appellant met with a vocational rehabilitation counselor on January 5, 2012. The vocational
rehabilitation counselor determined that appellant’s transferable skills included light assembly
from a bench, sorting, and folding. He indicated that the employing establishment was prepared
to offer appellant a job sorting laundry which was within his functional restrictions and
transferable skills. The vocational rehabilitation counselor stated that his determination was
based on appellant’s past experience as a bridge builder, brake assembler, and maintenance and
casual laborer.
On January 21, 2012 the employing establishment offered appellant a full-time laundry
worker position with retained grade and pay. The primary duties of the position included
sorting, folding, and stacking clean linens. Additional duties included sorting personal clothing
for residents by ward, color, and name, and sorting undergarments and socks, by name, ward,
2

Investigative surveillance performed from March 16, 2002 to March 17, 2004 revealed that appellant was
observed walking, driving in a normal unrestricted fashion, assisting three individuals with holding, lifting, and
moving large plastic tubing, carrying a carry-on size bag over his right shoulder, attempting to extend a slide on a
compartment on his camper with the help of another male, bending, kneeling, pushing, and pulling a metal bar with
both hands to jack up the camper, laying and rolling under the camper, reaching under the camper while propped up
on one elbow, turning a hand crank with his left and right hands while standing, and bending and turning a crank to
raise the stabilizers in the rear of the camper.

2

and size. The employee may be assigned to mark patient clothing, scrubs, uniforms, and
laboratory coats as needed. The administrative duties of the position included answering the
telephone, making copies, shredding paperwork marked for destruction, and assembling and
stapling paperwork. The physical requirements included good use and dexterity of hands for
tasks such as, sorting and stacking clothing items, and performing repetitive work. This work
could be accomplished either sitting or standing. There were intermittent periods of walking,
standing, and sitting while performing administrative tasks. The physical requirements also
included lifting items weighing less than one to two pounds.
On January 30, 2012 appellant refused the job offer, stating that his doctors found that he
could not work.
By letter dated January 31, 2012, OWCP informed appellant that it had been advised that
he had impeded the efforts of the vocational rehabilitation counselor. It informed him that
Dr. Obianwu’s October 3, 2011 report constituted the weight of the evidence unless appellant
were to submit evidence refuting Dr. Obianwu’s opinion within 30 days. Appellant was notified
of the penalty provisions of section 8113(b) of FECA3 and section 10.519 of OWCP regulations.4
He did not respond.
On March 5, 2012 OWCP requested that Dr. Obianwu submit an addendum report
clarifying his climbing and lifting restrictions. It further requested that he review the position
description for a laundry worker and indicate whether appellant could perform the duties of that
position.
In an April 6, 2012 report, Dr. Obianwu advised that appellant had the following
permanent restrictions: he should not engage in work that required reaching above the shoulder;
twisting; bending; or stooping more than four hours. Appellant could not lift above 20 pounds.
He could work as many hours as he wished. Appellant should not be expected to climb up
scaffolding, etc. Dr. Obianwu reviewed the laundry work position description and advised that
he was capable of performing the laundry worker position.
By letter dated April 13, 2012, OWCP advised appellant that Dr. Obianwu found that he
could perform the laundry worker position offered by the employing establishment.
Dr. Obianwu was afforded 30 days to provide an explanation justifying his refusal to participate
in the vocational rehabilitation effort.
On May 3, 2012 appellant advised OWCP that his doctors had submitted everything and
that he could not work.
By letter dated May 18, 2012, OWCP informed appellant that the offered position of
laundry worker dated July 26, 2013 was suitable work as it complied with the medical limitations
set forth by Dr. Obianwu. It further informed him that the position remained available to him.
OWCP allowed appellant 30 days to accept or provide a written explanation of his reasons for
3

5 U.S.C. § 8113(b).

4

20 C.F.R. § 10.519.

3

refusal and advised that an employee who refuses an offer of suitable work without reasonable
cause is not entitled to compensation under 5 U.S.C. § 8106(c).
Appellant retired from the employing establishment on disability and elected to receive
retirement benefits from the Office of Personnel Management effective May 9, 2012. On
May 29, 2012 OWCP was advised that he wished to change his retirement election back to
FECA compensation benefits. Appellant submitted a December 23, 2011 report from
Dr. Ireneo Y. Diaz, Jr., an infectious disease specialist. Dr. Diaz listed a history of the
December 18, 1998 employment injuries and appellant’s medical treatment. He provided
findings on physical examination and diagnostic test results. Dr. Diaz advised that appellant was
unable to perform any jobs due to low back pain.
On June 20, 2012 OWCP determined that there was a conflict in medical opinion
between Drs. Obianwu and Diaz on the issue of whether appellant was totally disabled for work.
By letter dated June 22, 2012, it referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Michael E. Holda, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a July 30, 2012 report, Dr. Holda reviewed the medical record and statement of
accepted facts. He discussed a history of the December 18, 1998 employment injuries as well as
appellant’s medical treatment and family, social, and work background. Dr. Holda noted
appellant’s current complaints of low back pain that radiated to his left leg and foot. He listed
findings on physical examination and diagnosed chronic low back pain, a history of disc
herniation at L5-S1, and degenerative disease of the lumbar spine. Dr. Holda also diagnosed
post L5-S1 discectomy, post anterior laparoscopic fusion at L5-S1, post L5-S1 posterior spinal
fusion with liberty instrumentation, and post L4-5 transforaminal interbody fusion with Capstone
cage. Based on his orthopedic examination and review of medical records, he opined that
appellant’s ongoing pain was related to his accepted work-related disc herniation at L5-S1 which
resulted in his four lumbar spine surgeries. Dr. Holda further opined that appellant was unable to
return to his previous employment, but could work eight hours a day with restrictions. He
recommended permanent restrictions of no repetitive bending and twisting at the waist, and no
lifting over 15 pounds.
On August 14, 2012 OWCP requested that Dr. Holda submit an addendum report.
Dr. Holda was asked to differentiate between the work and nonwork-related diagnoses. He was
also asked to review the laundry worker position description and indicate whether appellant
could perform the duties of the position.
In a February 28, 2013 report, Dr. Holda advised that his diagnosis of degenerative
disease of the lumbar spine was due to the aging process and not related to appellant’s work
injury. The diagnoses of chronic low back pain and history of disc herniation at L5-S1 and
subsequent surgery were related to his work injury. Dr. Holda reviewed the job description for a
laundry worker and opined that appellant was physically capable of performing the duties
delineated in the job description. He concluded that the job fell within his recommended
restrictions.

4

In a March 19, 2013 notice, OWCP informed appellant that it proposed to reduce his
compensation benefits as the medical and factual evidence of record established that he was no
longer totally disabled and had the capacity to earn the wages of a laundry worker. Appellant
was afforded 30 days to submit any additional evidence regarding his capacity to earn wages in
the position described.
Also, on March 19, 2013 the employing establishment advised OWCP that the offered
position was still available.
In an April 22, 2013 decision, OWCP finalized the March 19, 2013 proposed decision
based on appellant’s capacity to earn wages as a laundry worker. It determined that the position
was medically and vocationally suitable and readily available in his geographical location.
OWCP applied the principles identified in Albert C. Shadrick,5 finding that he had zero loss of
wage-earning capacity.
By letter dated April 25, 2013, appellant, through his attorney, requested a telephone
hearing with an OWCP hearing representative.
During the telephone hearing on September 4, 2013 appellant’s attorney argued that the
offered laundry worker position was not within appellant’s physical restrictions.
In a November 21, 2013 decision, the hearing representative affirmed the April 22, 2013
decision. She accorded special weight to Dr. Holda’s opinion as an impartial medical specialist
in finding that appellant was capable of performing the offered laundry worker position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6
Section 8115 of FECA7 provides that 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. If the actual earnings do not fairly and reasonably represent wageearning capacity or the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of his or her injury, the degree of physical impairment,
his or her usual employment, his or her age, his or her qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect his or
her wage-earning capacity in his or her disabled condition.
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the Department of Labor’s Dictionary of
5

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

6

P.M., Docket No. 12-1451 (issued February 19, 2013).

7

5 U.S.C. §§ 8101-8193, 8115.

5

Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age, and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service. Finally, application of the principles set forth in Shadrick8 will result in the percentage
of the employee’s loss of wage-earning capacity. The basic rate of compensation paid under
FECA is 66 2/3 percent of the injured employee’s monthly pay.9
ANALYSIS
The Board finds that OWCP did not properly determine appellant’s wage-earning
capacity.
As stated above, there are two methods for determining wage-earning capacity:
(1) determining that actual earnings fairly and reasonably represent wage-earning capacity; and
then calculating loss of wage-earning capacity by applying the Shadrick formula to the actual
earnings; and (2) if actual earnings do not fairly and reasonably represent wage-earning capacity,
then a constructed position may be used, based on the factors enumerated under section 8115 and
in accordance with established procedures, followed by application of the Shadrick formula.10
In the present case, OWCP found that the laundry worker position offered to appellant by
the employing establishment represented his wage-earning capacity as it was medically and
vocationally suitable. The Board notes that appellant never accepted the position. As appellant
had no actual earnings, the analysis must follow the principles utilized for determining wageearning capacity based on a constructed position.11 The Board finds that OWCP failed to follow
established procedures in this regard. At the time of OWCP’s November 21, 2013 decision,
procedures pertaining to the determination of wage-earning capacity based on a constructed
position required a labor market survey conducted by a rehabilitation counselor. While the
rehabilitation counselor determined that appellant had the transferable skills to perform the
offered job based on his previous experience as a bridge builder, brake assembler, and
maintenance and casual laborer, appellant did not conduct a labor market survey to determine
whether the offered position was actually performed in sufficient numbers within appellant’s
commuting area so as to be considered reasonably available.12 In addition, the vocational
rehabilitation counselor did not contact the state employment service or other applicable service
to determine whether the wages of the offered position fell within the pay range for such
8

Supra note 5; 20 C.F.R. § 10.403.

9

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

10

The Board notes that since OWCP had made a suitability determination on May 18, 2012 regarding the offered
laundry worker position, it alternatively could have reviewed appellant’s refusal of the job offer pursuant to 5 U.S.C.
§ 8106(c). Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, 2.816.3.f (June 2013).
11

5 U.S.C. § 8115.

12

Id. at 2.816.6.b (June 2013).

6

positions in the relevant geographical area.13 For the stated reasons, the Board finds that OWCP
failed to properly determine appellant’s wage-earning capacity. It is OWCP’s burden of proof to
justify a subsequent reduction of compensation benefits and it did not meet its burden.14
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation benefits
effective April 22, 2013 based on his capacity to earn wages in the constructed position of
laundry worker.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 19, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

See Richard Alexander, 48 ECAB 432 (1997); see Hattie Drummond, 39 ECAB 904 (1988).

14

P.M., Docket No. 12-1451 (issued February 19, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 09-1250
Issued: February 3, 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 April 16, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ November 6, 2008 and March 10, 2009 decisions finding that appellant
had no loss of wage-earning capacity.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly reduced appellant’s wage-loss compensation to
zero after she returned to work full time, on the grounds that her actual wages exceeded the
current wages of the position she held on the date of injury.
On appeal, appellant contends that she is entitled to shift differential pay, because she
was working the night shift on the date of injury.

1

The Board notes that appellant did not appeal the Office’s July 7, 2008 decision denying her claim for leave
buyback for June 20, 2007.

FACTUAL HISTORY
On July 5, 2005 appellant, then a 48-year-old nurse, filed a traumatic injury claim
alleging that she sustained a wrist injury in the performance of duty. The Office accepted her
claim for right wrist strain, right-sided de Quervain’s disease and tendinitis of the right wrist and
forearm. It paid compensation for loss of night differential pay for intermittent periods between
June 20, 2005 and August 2, 2008.
On August 1, 2006 appellant returned to full-time duty, working a day shift, as a
modified nurse. The employing establishment informed the Office that appellant’s position
became permanent on September 4, 2008; that her actual pay rate in effect on September 4, 2008
was $66,367.00; and that the current pay rate for the job and step at the time of injury was
$55,740.00.
By decision dated November 6, 2008, the Office reduced appellant’s wage-loss
compensation to zero, on the grounds that her actual wages exceeded the current wages of the
position she held on the date of injury. As she had demonstrated that she was able to perform the
duties of her modified position for two months or more, the Office found that appellant’s current
weekly wages of $1,276.29 fairly and reasonably represented her wage-earning capacity.
Accordingly, her entitlement to wage-loss compensation was reduced to zero.
The record contains a loss of wage-earning capacity worksheet, which reflects that the
Office calculated appellant’s weekly pay rate on the date of injury by adding her base pay rate
($976.98) to her weekly premium pay ($95.06), for a total weekly pay rate of $1,072.03.2 The
Office noted that the amount of premium pay received on the date of injury was 9.73 percent of
her base pay. In order to calculate the current pay rate for the position held on the date of injury,
it added the current weekly base pay rate for the job when injured ($55,740.00/52= $1,071.92) to
an amount equal to 9.73 percent of the current weekly base pay rate ($104.30, representing
premium pay), for a total of $1,176.22 per week. Noting that her actual weekly earnings of
$1,276.29 were greater than the current pay of the job held at the time of injury, the Office
determined that she had no loss of wage-earning capacity effective September 4, 2008.
On December 5, 2008 appellant requested a review of the written record. She contended
that she should continue to receive compensation for night differential. Appellant stated that, as
her modified position did not permit her to work the night shift, as she had before her injury, she
was not receiving all of the benefits to which she was entitled.
By decision dated March 10, 2009, the Office hearing representative affirmed the
November 6, 2008 decision, finding that appellant’s actual earnings exceeded the amount she
would have been earning at the same grade and step, had she never been injured.

2

The Board notes that the loss of wage-earning capacity worksheet contains a mathematical error. The Office’s
Form CA-816 correctly indicates that appellant’s pay rate when the disability began was $1,072.03. Its
mathematical error on the loss of wage-earning capacity worksheet, reflecting the pay rate to be $1,071.92, is
harmless, as it does not affect the outcome of the case.

2

LEGAL PRECEDENT
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity.3 Generally, wages actually earned are the best
measure of a wage-earning capacity and, in the absence of evidence showing that they do not
fairly and reasonably represent the injured wage-earning capacity, must be accepted as such
measure.4
In the case of Albert C. Shadrick,5 the Board set forth the principle that if current actual
earnings are used as one of the factors in computing an employee’s wage-earning capacity, then
the current increased wage for the employee’s original job should also be used to avoid any
distortions caused by changes in business conditions since the injury. Following this principle,
the Office established the Shadrick formula as the method of computing compensation when
determining an injured worker’s wage-earning capacity.6
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 the Office, by the current pay rate for the job held at the time of the injury.7
Section 8114(e) of the Act provides that, in addition to annual base pay, certain items will
be included in the computation of pay, such as the value of subsistence and quarters, premium
pay and any form of remuneration in kind for services.8
ANALYSIS
In the instant case, appellant does not contest that her earnings in her modified position
fairly and reasonably represents her wage-earning capacity. Rather, she contends that she should
continue to receive premium shift differential pay, due to her inability to work a night shift in her
current position. However, the record reflects that the Office took into account the night
differential in computing appellant’s pay rate and properly applied the Shadrick formula in
determining that she had no loss of wage-earning capacity.
The Office properly found that appellant’s earnings in her modified nursing position
fairly and reasonably represented her wage-earning capacity as she had demonstrated that she
was able to perform the duties of the job for two months or more. It properly compared
3

5 U.S.C. § 8115(a).

4

Don J. Mazurek, 46 ECAB 447 (1995).

5

5 ECAB 376 (1953).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.2 (December 1993). For the formula itself, see id., Computation of Compensation, Chapter
2.901.15.c (December 1995).
7

20 C.F.R. § 10.403(d).

8

5 U.S.C. § 8115(e).

3

appellant’s actual weekly earnings ($1,276.29) to the current pay rate for the job and step she
held when injured ($1,176.22). As her actual wages exceeded the current wages of the position
she held on the date of injury, the Office correctly reduced her compensation for wage loss to
zero.
Appellant contends that she is entitled to premium shift differential pay because she was
working the night shift when her injury occurred. The Board finds that the Office properly
included appellant’s receipt of premium pay in its calculation of her pay rate.9 Noting that the
amount of premium pay received on the date of injury was 9.73 percent of her base pay, the
Office added the current weekly base pay rate for the job when injured ($55,740.00/52=
$1,071.92) to an amount equal to 9.73 percent of the current weekly base pay rate ($104.30,
representing premium pay), in order to calculate the current weekly pay rate for the position held
on the date of injury ($1,176.22). The Board notes that, even though she does not presently
receive premium pay, appellant’s actual earnings exceed those she received at the time of injury
when she was working the night shift. Therefore, she is not entitled to wage-loss compensation
benefits under the Act.10
Appellant also contends that the Office’s decision denies her within-grade increases,
restoration of leave and other rights and benefits based on length of service. The Board has held
that the probability that an employee, if not for the injury-related condition, might have had
greater earnings, is not proof of a loss of wage-earning capacity and does not afford a basis for
payment of compensation under the Act.11 The test is whether appellant had the capacity to earn
the wages she was receiving at the time of injury, or under Shadrick, the current pay rate of her
date-of-injury position. Because appellant demonstrated capacity through actual earnings over a
period of time, the Office properly reduced her compensation for disability to zero.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation for wage loss
to zero on the grounds that her actual earnings demonstrated no loss of wage-earning capacity
due to her accepted employment injury.

9

Id.

10

See Domenick Pezzetti, 45 ECAB 787 (1994) (holding that the claimant had no loss of wage-earning capacity at
the time he was in retained pay because he had at least equivalent earnings to his date-of-injury position).
11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 10, 2009 and November 6, 2008 are affirmed.
Issued: February 3, 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
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shreveport, LA, Employer
__________________________________________

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

Docket No. 16-1717
Issued: March 2, 2017

Case Submitted on the Record

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

JURISDICTION
On August 24, 2016 appellant filed a timely appeal from an April 14, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability from
July 28, 2013 through May 22, 2015 due to his accepted employment injury.
On appeal appellant states his documentation establishes his claim for disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 12, 2013 appellant, then a 62-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that on approximately June 11, 2013 he was throwing sacks
and bags of mail when he sustained an injury to his left wrist and right shoulder.
In support of his claim, appellant submitted documentation from the Department of
Veterans Affairs, Overton Brooks Veterans Administration Medical Center (VAMC) in
Shreveport, Louisiana. A July 16, 2013 note, with an illegible signature, indicated that appellant
was seen for a medical problem, and that it was recommended that he rest for two weeks. In a
July 31, 2013 note, a physician assistant indicated that appellant would need to be off work until
August 30, 2013 at which time he would be reevaluated. In a September 4, 2013 note, a
physician assistant indicated that appellant was to remain off of work until September 30, 2013
at which time he would be reevaluated. In a September 30, 2013 note, Dr. Mark D. Wilson, an
orthopedic surgeon, indicated that appellant should not use his right arm for any lifting, pushing,
or pulling for six weeks.
By letter dated December 11, 2013, OWCP informed appellant that he must submit
certain evidence in support of his claim, and afforded him 30 days to submit this evidence. It did
not continue to develop this claim.
On May 23, 2015 appellant filed a traumatic injury claim (Form CA-1) alleging an injury
to his right shoulder that occurred on June 11, 2013 while he was unloading mailboxes, various
containers, and sacks in the bulk mail area. He noted that he was told to file a Form CA-1 by
OWCP.
In support of his claim, appellant submitted progress notes from the Houston VAMC
dated April 25 through June 3, 2014. These notes indicate that appellant was initially scheduled
to undergo surgery for his right rotator cuff tear on May 21, 2014 and was admitted to the
hospital on that date. However, another note indicates that, while appellant was found “to be
safe for the procedure,” due to surgeon unavailability on May 21, 2014, he was rescheduled for
June 2, 2014.
On June 2, 2014 Dr. Anastassios Karistinos, a Board-certified orthopedic surgeon,
performed an arthroscopic repair of supraspinatus, infraspinatus, and upper subscapularis tear
and open subpectoral biceps tenodesis. In a June 12, 2016 follow-up note, he noted that
appellant reinjured his shoulder a few days prior and that there was some bulging at his biceps.
Dr. Karistinos noted that appellant lived out of state and should follow up with his primary
provider for referral to therapy. He followed up with appellant on October 9, 2014, and noted
that he was progressing well overall, but had abnormal scapular posture and mild scapular
dyskinesia.
On July 2, 2015 OWCP accepted appellant’s June 11, 2013 occupational disease claim
for sprain of shoulder and upper arm and rotator cuff. Appellant was advised that, if he wished
to claim compensation for loss of work time, he should file a Form CA-7. On December 16,
2015 appellant filed a claim for compensation (Form CA-7) for the period July 28, 2013 through
May 22, 2015.

2

In a December 30, 2015 letter, OWCP informed appellant that further information was
necessary to support his claim or wage-loss compensation and afforded him 30 days to submit
this evidence.
By decision dated April 14, 2016, OWCP denied appellant’s claim for compensation
benefits for the period July 28, 2013 through May 22, 2015 as there was no medical evidence
explaining why appellant was unable to work during that period for the accepted conditions of
sprain of the right shoulder, upper arm, and rotator cuff.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 In general, the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.3 This meaning, for brevity, is expressed as disability to work.4
The medical evidence required to establish a causal relationship between a claimed
period of disability and employment injury is rationalized medical opinion evidence. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
OWCP accepted that appellant sustained a sprain of the right shoulder, upper arm, and
rotator cuff. Appellant filed a claim for compensation for the period July 28, 2013 through
May 22, 2015. He underwent surgery on June 2, 2015 for arthroscopic repair of the right
supraspinatus, infraspintus, and upper subscapularis tear.
The Board finds that appellant has not met his burden of proof to establish disability
between July 28, 2013 and May 22, 2015 due to his accepted employment injury because he
failed to submit sufficient medical evidence in support of his claim.
Appellant submitted multiple notes from the Shreveport VAMC dated July 16 through
September 30, 2013. Two of these notes are authorized by a physician assistant. These notes
2

J.F., Docket No. 09-1061 (issued November 17, 2009).

3

See 20 C.F.R. § 10.5(f).

4

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

5

See B.S., Docket No. 16-1121 (issued September 16, 2016).

3

lack probative value because the Board has long held that reports from nurses, physician
assistants, and occupational therapists are of no probative medical value as they are not
considered a physician under FECA.6
OWCP also received a note that contains an illegible signature. The Board has held that
a report that bears an illegible signature lacks proper identification and cannot be considered
probative medical evidence.7
In a September 30, 2013 note, Dr. Wilson indicated that appellant should not use his right
arm for six weeks. However, he provided no explanation as to why this was the case, did not
provide a medical diagnosis, nor did he explain how any injury was causally related to the
accepted employment injury.8
The notes from the Houston VAMC relate that appellant was seen on various dates from
April 25 through June 3, 2014. Although appellant’s initial surgery was rescheduled due to the
unavailability of a surgeon, on June 2, 2014 appellant underwent a right rotator cuff repair
peformed by Dr. Karistinos. The accepted conditions in this case, however, are sprain of the
right shoulder, upper arm, and rotator cuff. However, none of the medical evidence of record
establishes that appellant was disabled from work due to his accepted conditions. Dr. Karistinos
did not address the cause of appellant’s rotator cuff tear for which he underwent a repair. To
meet his burden of proof appellant was required to submit a medical opinion addressing whether
the diagnosed conditions, resultant surgery, and disability for work were caused or aggravated by
the established employment factors.9 Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value.10
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.11

6

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law). See also Paul Foster, 56 ECAB 208 (2004);
Joseph N. Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
7

See R.M., 59 ECAB 690, 693 (2008); Merton J. Sills, 39 ECABA 572, 575 (1988).

8

See T.D., Docket No. 15-18146 (issued September 23, 2016).

9

S.M., Docket No. 16-1312 (issued December 7, 2016).

10

See T.P., Docket No. 14-1946 (issued February 13, 2015).

11

N.G., Docket No. 16-1421 (issued December 12, 2016).

4

Appellant has therefore failed to establish that his accepted conditions caused any period
of disability. Because he has not provided a rationalized opinion supporting his disability for
work for the period in question, he has not met his burden of proof.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish disability
from July 28, 2013 through May 22, 2015 due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2016 is affirmed.
Issued: March 2, 2017
Washington, DC

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

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

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

12

T.D., Docket No. 15-1846 (issued September 23, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, New York, NY, Employer
)
__________________________________________ )
J.B., Appellant

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1021
Issued: December 4, 2018

Case Submitted on the Record

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

JURISDICTION
On April 19, 2018 appellant, through counsel, filed a timely appeal from a March 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish modification of the
March 3, 2004 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On April 26, 1983 appellant, then a 34-year-old U.S. Marshal, filed a traumatic injury claim
(Form CA-1) alleging that on October 7, 1982 he sustained a gunshot wound to the head when a
suspect fired on him with an automatic weapon. He stopped work on October 7, 1982 and did not
return. OWCP accepted the claim for an open wound of the scalp with complications,
postconcussion syndrome, post-traumatic stress disorder (PTSD), and an adjustment reaction. It
paid appellant wage-loss compensation for total disability subsequent to his injury.
By decision dated March 2, 2004, OWCP reduced appellant’s wage-loss compensation as
his actual earnings as a clinical data analyst 2, effective February 28, 2000, fairly and reasonably
represented his wage-earning capacity. It applied the formula set forth in Albert C. Shadrick3 to
determine his compensation rate every 28 days.
On March 22, 2004 appellant requested an oral hearing before an OWCP hearing
representative, which was held on July 29, 2004. By decision dated October 18, 2004, the hearing
representative affirmed the March 2, 2004 LWEC determination. He noted that appellant had
contested the calculation of his pay rate and found that OWCP properly determined his pay rate
for compensation purposes.
In a report dated March 3, 2015, Dr. Laura Rosenbaum-Bloom, a Board-certified
psychiatrist, discussed appellant’s history of PTSD and depression after being shot while working
as a U.S. Marshal. She advised that she began treating him in June 2014 when he relocated to the
area, noting that she had increased his medication due to a “recurrence of depression, loneliness,
and hopelessness.” Dr. Rosenbaum-Bloom indicated that appellant worked at home as a medical
coder for a local hospital which left him “more isolated and depressed. [Appellant] feels he cannot
handle the level of work they are demanding from him at the hospital.” She opined that his move
to Hilton Head Island, South Carolina had exacerbated his depression and PTSD, and further noted
that his uncle who lived nearby had died a few months earlier. Dr. Rosenbaum-Bloom found that
appellant was totally disabled due to PTSD arising from his 1982 employment injury.
In a March 12, 2015 record of conference form, appellant’s private employer discussed his
unacceptable work performance. During a meeting with that employer, he resigned as he did not
believe that he could sufficiently improve.
Appellant, on March 20, 2015, informed OWCP that he was unable to work due to his
employment injury and requested an increase in his wage-loss compensation. In response to
OWCP’s request for additional information, he related that his condition had worsened in
May 2014 such that he could not leave his home or otherwise function.

3

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

2

In a report dated May 20, 2015, Dr. Rosenbaum-Bloom advised that appellant had
experienced an acute stress reaction, PTSD, and chronic major depressive disorder since his
October 7, 1982 employment injury. She related that moving to South Carolina had “been
disastrous for [appellant]” and aggravated his symptoms of disability. Dr. Rosenbaum-Bloom
advised that appellant could no longer work as a medical coder. She noted that he had believed
that working from home would be beneficial, but instead found it isolating. Dr. RosenbaumBloom related:
“[Appellant’s] depression has worsened, he has thoughts of suicide and has no
desire to be with others. The above symptoms are all a result of his PTSD since
being shot in 1982. [Appellant] has been in treatment for PTSD and depression.
His symptoms have waxed and waned throughout since his injury. The symptoms
have worsened since [appellant] has moved here and gotten to the point where he
cannot handle the stress from his current job.”
On July 29, 2015 OWCP advised appellant of the provisions for establishing modification
of an LWEC determination. It requested that he submit reasoned medical evidence supporting that
he sustained increased disability due to his employment injury.
Dr. Rosenbaum-Bloom, in an August 27, 2015 report, opined that appellant was currently
unable to work due to his stress disorder. She advised that his increase in symptoms resulted from
his 1982 employment injury, rather than his move to South Carolina. Dr. Rosenbaum-Bloom
noted that after appellant moved to South Carolina his symptoms had increased such that he could
no longer perform his employment. She opined that his chronic, acute stress disorder was
“exacerbated by [appellant’s] current situation, and a direct result from the original injury which
changed his trajectory of his life and how he responded to his surroundings.” Dr. RosenbaumBloom advised, “In my professional opinion [appellant’s] original medical condition has
significantly worsened and therefore [he] would qualify for modification.”
On February 9, 2016 OWCP referred appellant to Dr. John Custer, a Board-certified
psychiatrist, for a second opinion examination. It asked Dr. Custer to evaluate appellant’s current
condition and disability and address whether appellant’s relocation adversely affected his
condition.
In a report dated February 18, 2016, Dr. Custer reviewed appellant’s history of a bullet
wound to the forehead on October 7, 1982 during an exchange of gunfire in which a fugitive was
killed. Appellant subsequently worked as a medical coder for approximately 13 years in Albany,
New York, and then as a coder in South Carolina, near the residence of an uncle. His uncle died
a few months after appellant moved to the area. Dr. Custer noted:
“[Appellant stated that] he was the only coder for the entire hospital. He was
working from home and the lack of contact with the outside world was driving him
‘crazy.’ [Appellant] was getting constant e[-]mails and in general it was much more
stressful and overwhelming than his job up in Albany, New York, in which he was
one of many coders for the hospital. He became stressed, and then became
depressed and did not want to get out of bed and do his work and quit the job.”

3

Dr. Custer noted that appellant felt better after he stopped work, but needed income. He
diagnosed PTSD, residual symptoms only, mild dysthymia, and possible paranoid personality
traits. Dr. Custer related that appellant’s PTSD symptoms had decreased since the shooting and
that he currently had some residuals symptoms of PTSD, but did not meet the full criteria for a
diagnosis. He found that his dysthymia or persistent depressive disorder “could potentially be
related to [appellant’s] original 1982 work injury” as he lost his career and identity. Dr. Custer
opined that appellant’s move caused an increase in symptoms, and noted that he was close to an
uncle who had recently died, which also affected his present condition. He found that he could
give and take supervision, but that deadlines might “provide some added stress to [appellant’s]
condition.” Dr. Custer opined that appellant could not work in large groups of people due to
PTSD-related anxiety. He disagreed with Dr. Rosenbaum-Bloom’s finding that his uncle’s death
and move to South Carolina failed to adversely affect his symptoms. In a work capacity evaluation
for psychiatric/psychological conditions (Form OWCP-5a), Dr. Custer opined that appellant could
work eight hours per day in an office setting or away from large groups of the public. He indicated
that he could not work in law enforcement.
In a March 3, 2016 attending physician’s report (Form CA-20), Dr. Rosenbaum-Bloom
diagnosed PTSD, major depressive disorder, and an acute stress disorder. She checked a box
marked “yes” indicating that the condition was caused or aggravated by employment.
Dr. Rosenbaum-Bloom found that appellant was totally disabled beginning March 2015 to the
present.
By decision dated March 23, 2016, OWCP denied modification of its March 2, 2004
LWEC determination. It found that Dr. Custer’s opinion constituted the weight of the evidence
and established that appellant had not sustained a material change in the nature and extent of his
accepted work injury. OWCP noted that he had voluntarily resigned from employment.
Appellant, on April 27, 2016, requested a review of the written record by an OWCP hearing
representative.
In support of his request appellant submitted an April 22, 2016 report by Dr. RosenbaumBloom in which she diagnosed ongoing PTSD, major depressive disorder in partial remission, and
dysthymia. She opined that the paranoid personality traits found by Dr. Custer resulted from
hypervigilance associated with PTSD.
Dr. Rosenbaum-Bloom advised that appellant’s
employment-related PTSD remained active and affected his decisions and world view. She noted
that his compensation was reduced in 2000 when he began working as a medical coder.
Dr. Rosenbaum-Bloom opined that appellant’s new position as a medical coder in South Carolina
exacerbated his symptoms of PTSD such that he could not perform the concentration necessary
for the position. She found that he was currently totally disabled due to PTSD.
By decision dated October 12, 2016, OWCP’s hearing representative affirmed the
March 23, 2016 decision. She found that appellant’s condition resulted from his move to South
Carolina and the stress due to his position in private employment, which she found were
intervening, nonemployment-related causes.
Dr. Rosenbaum-Bloom, in a report dated October 2, 2017, discussed appellant’s history of
a 1982 employment injury and his subsequent employment in various low-stress positions. She

4

advised that after he relocated to South Carolina the “chronicity of the PTSD caused him to
decompensate to the point where he cannot maintain any work at present.” Dr. Rosenbaum-Bloom
disagreed with Dr. Custer’s conclusions, noting that appellant had required continued treatment
for PTSD since his injury, was not close to his uncle, and did not have a support network prior to
his move. She related:
“Given the work incident, and the ongoing difficulties documented by [appellant’s]
physicians, the lack of resolution of his classic PTSD symptoms years after the
incident, in spite of ongoing therapy and pharmacological management his recent
regression is not medically unexpected. I think [appellant’s] lack of connection and
his inability or desire to make friends or go out of his comfort zone is more a
response to the PTSD than his move to Hilton Head[, SC] or the death of his uncle.”
Dr. Rosenbaum-Bloom noted that medical reports demonstrated that appellant had
received treatment for PTSD since the injury. She related: “I think that the retraining for
[appellant] as a medical coder was well intentioned, but did not consider that the position may
have been too demanding given his fragile mental and emotional state.” Dr. Rosembaum-Bloom
found that appellant was totally and permanently disabled from employment.
On October 10, 2017 appellant, through counsel, requested reconsideration. Counsel
asserted that Dr. Custer erred in finding that appellant had few PTSD symptoms prior to his move.
He maintained that Dr. Custer did not provide rationale for attributing appellant’s deteriorating
condition solely to his move, especially given his prior relocations. Counsel contended that OWCP
asked Dr. Custer a leading question when it asked if the unfamiliarity of appellant’s environment
after his move aggravated his symptoms. He argued that, at a minimum, a conflict in medical
opinion existed between Dr. Custer and Dr. Rosenbaum-Bloom. Counsel further asserted that the
original LWEC determination failed to properly consider appellant’s ongoing emotional condition.
By decision dated March 30, 2018, OWCP denied modification of its March 2, 2004
LWEC determination. It found that appellant’s relocation to South Carolina constituted an
independent, intervening cause of the worsening of his condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5
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

4

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5

See M.K., Docket No. 17-1852 (issued August 23, 2018).

5

the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.6
Once the work-related character of any injury has been established, the subsequent
progression of that condition remains compensable so long as it is clear that the real operative
factor is the progression of the compensable injury and so long as the worsening is not shown to
have been produced by an independent, nonindustrial cause.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.8 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 OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained an open scalp wound with complications,
postconcussion syndrome, PTSD, and an adjustment reaction due to an October 7, 1982
employment injury. Appellant stopped work on October 7, 1982.
Thereafter, appellant returned to the workforce. By decision dated March 2, 2004, OWCP
reduced his compensation as it found that his actual earnings beginning February 28, 2000 as a
clinical data analyst 2 fairly and reasonably represented his wage-earning capacity. It paid
appellant compensation for partial wage loss resulting from his accepted October 7, 1982
employment injury.
On March 20, 2015 appellant requested a resumption of wage-loss compensation for total
disability. He asserted that he was no longer able to work as a result of his October 7, 1982
employment injury. OWCP denied modification of its LWEC determination. It noted that
Dr. Custer, an OWCP referral physician, attributed the increase in appellant’s disability to stress
resulting from his relocation to South Carolina and new position in private employment as a
medical coder for a local hospital, which it found constituted an independent, intervening cause.

6

See J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

7

See A. Larson, The Law of Workers’ Compensation § 10.01 (June 2010); see also W.M., Docket No. 16-1658
(issued May 3, 2017).
8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

6

As noted, once the work-connected character of any injury has been established, the
subsequent progression of that condition remains compensable so long as it is clear that the real
operative factor is the progression of the compensable injury and so long as the worsening is not
shown to have been produced by an independent, nonindustrial cause.10 The Board finds that a
conflict in medical opinion exists regarding whether the worsening of appellant’s psychiatric
condition resulted from stress arising from his private employment and relocation, an independent,
nonindustrial cause, or constituted a natural progression of his underlying condition.
In a report dated March 3, 2015, Dr. Rosenbaum-Bloom advised that she began treating
appellant in June 2014 after he moved into the area. She increased his medication as he had a
recurrence of depression. Dr. Rosenbaum-Bloom noted that appellant experienced more
depression and isolation while working from home as a medical coder. She opined that his move
to Hilton Head, South Carolina had exacerbated his depression, noting that his uncle who lived in
the area had recently died. Dr. Rosenbaum-Bloom found that appellant was totally disabled from
work as a result of PTSD, which she attributed to the October 7, 1982 work injury.
On May 20, 2015 Dr. Rosenbaum-Bloom diagnosed an acute stress reaction, PTSD, and
an exacerbation of major depressive disorder. She noted that appellant’s relocation to Hilton Head,
South Carolina had increased his depression and exacerbated his disability, but attributed his
current symptoms to the 1982 work injury as it altered his response to his surroundings.
Dr. Rosenbaum-Bloom opined that his original condition had worsened such that LWEC
determination should be modified.
OWCP referred appellant to Dr. Custer for a second opinion examination. On February 18,
2016 Dr. Custer noted that appellant’s position in South Carolina as a medical coder was
significantly more stressful than his prior work in Albany, New York. He diagnosed residual
symptoms of PTSD, mild dysthymia, and possible paranoid personality traits. Dr. Custer found
that, while appellant had some residual PTSD, he did not meet the full criteria for the diagnosis.
He advised that the dysthymia could be related to his 1982 employment injury due to his loss of
career and identify. Dr. Custer opined that appellant’s move to South Carolina and the death of
his uncle exacerbated his symptoms. He determined that appellant could work full time in an
office environment as long as he was away from large groups of people and the position was not
in law enforcement.
Dr. Rosenbaum-Bloom, on April 22, 2016, diagnosed ongoing PTSD, major depression in
partial remission, and dysthymia. She opined that the paranoid personality symptoms found by
Dr. Custer resulted from hypervigilance attributable to appellant’s PTSD. Dr. Rosenbaum-Bloom
advised that appellant’s work as a medical coder in South Carolina aggravated his condition and
that he was now currently disabled. On October 2, 2017 she found that he decompensated in South
Carolina after his relocation due to his chronic PTSD. Dr. Rosenbaum-Bloom disagreed with
Dr. Custer’s opinion that appellant’s uncle’s death and appellant’s move to South Carolina resulted
in his symptoms, noting that he was not close to his uncle and had no friends in his prior locations.
She found that appellant was totally disabled from employment and advised that his recent
regression was not unexpected given the lack of resolution of his PTSD symptoms.
10

See supra note 7; see also C.H., Docket No. 13-2179 (issued April 23, 2014).

7

Dr. Rosenbaum-Bloom opined that working as a medical coder may have been too demanding in
view of his mental state.
The Board finds that the case is not in posture for decision as a conflict in medical evidence
between Dr. Custer, who found that appellant could work in an office setting and that any
exacerbation of his emotional condition resulted solely from his relocation to South Carolina and
change in private employment, and Dr. Rosenbaum-Bloom, who found that his condition had
materially changed such that he was unable to work any duties and that the increase in disability
resulted from his October 7, 1982 work injury. While Dr. Rosenbaum-Bloom determined that his
move and resulting new position as a medical coder exacerbated his symptoms, she attributed his
increased disability to chronic PTSD arising from his employment injury.
If there is disagreement between OWCP’s referral physician and appellant’s physician,
OWCP will appoint a third physician who shall make an examination.11 For a conflict to arise, the
opposing physician’s viewpoints must be of virtually equal weight and rationale.12 The Board
finds that the medical opinions of Dr. Custer and Dr. Rosenbaum-Bloom are of equal weight and
are in conflict as to whether appellant’s accepted conditions have worsened such that he is unable
to perform the duties of the constructed position.
As there exists an unresolved conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a),
the case will be remanded for OWCP to refer appellant, together with the medical record and a
statement of accepted facts, to an appropriate Board-certified physician to determine whether his
accepted conditions have worsened such that he is unable to perform the duties of a clinical data
analyst 2.13 The impartial medical examiner should address whether any increase from partial to
total disability resulted from factors he encountered in his private employment, an independent,
intervening cause, or constituted a natural progression of the compensable work injury.14 After
such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

5 U.S.C. § 8123(a); see V.G., Docket No. 17-1341 (issued July 16, 2018).

12

See M.R., Docket No. 17-0634 (issued July 24, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

13

See B.C., Docket No. 18-0407 (issued September 17, 2018).

14

See supra note 7.

8

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: December 4, 2018
Washington, DC

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

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

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

9