United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 21-0747
Issued: October 15, 2021

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 April 21, 2021 appellant filed a timely appeal from a January 6, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted October 31, 2020 employment incident.

1
The Board notes that, following the January 6, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 2, 2020 appellant, then a 40-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on October 31, 2020 he injured his right knee
when it popped after he dismounted a spotter in order to “chalk” a trailer while in the performance
of duty. He stopped work on October 31, 2020. On the reverse side of the claim form appellant’s
supervisor indicated that he was injured in the performance of duty.
OWCP received a duty status report (Form CA-17) dated October 31, 2020 from Dr. Luke
Galindo, a family medicine specialist. Dr. Galindo noted a diagnosis of right knee strain and
related that appellant could return to work with restrictions. Appellant submitted a report dated
November 9, 2020 from Dr. Galindo in which he noted the date of injury as October 31, 2020 and
related that as appellant was descending down from an elevated platform, he pivoted right to place
chocks under a trailer and he felt a pop in his right knee. Dr. Galindo diagnosed right knee strain
and stated that it was probably a work-related injury. In a work status form report dated
November 9, 2020, he noted appellant’s date of injury as October 31, 2020, a diagnosis of right
knee strain, and indicated that appellant could return to work that day with restrictions.
In a development letter dated November 25, 2020, OWCP advised appellant of the type of
factual and medical evidence needed, including a medical report containing a physician’s opinion,
supported by medical explanation, as to how the reported work incident caused a diagnosed
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In response, appellant submitted a medical report dated October 31, 2020 from Dr. John
Lehew, a Board-certified family practitioner. Dr. Lehew noted the date of injury of October 31,
2020 and diagnosed right knee strain.
By decision dated January 6, 2021, OWCP accepted that the June 20, 2020 employment
incident occurred as alleged, but denied appellant’s claim, finding that the medical evidence of
record was insufficient to establish causal relationship between a diagnosed medical condition and
the accepted employment incident. It concluded, therefore, that the requirements had not been met
to establish an injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 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

3

Id.

4

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).

2

to the employment injury. 5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component to be
established is that the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted October 31, 2020 employment incident.
Appellant submitted a medical report dated November 9, 2020 from Dr. Galindo who
diagnosed right knee strain and stated that it was probably a work-related injury. While
Dr. Galindo provided an opinion on the causal relationship, he did not offer any rationale to explain
how the accepted employment incident would have caused appellant’s diagnosed condition.10 The
Board has held that a medical opinion should offer a medically -sound explanation of how the
specific employment incident physiologically caused the diagnosed condition. Additionally,
Dr. Galindo’s opinion that appellant’s right knee strain was “probably” a work-related injury was
equivocal in nature. The Board has held that speculative and equivocal medical opinions regarding
5

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).
6

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).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
10

T.W., Docket No. 20-0767 (issued January 13, 2021); see H.A., Docket No. 18-1466 (issued August 23, 2019);
L.R., Docket No. 16-0736 (issued September 2, 2016).

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causal relationship have no probative value. 11 This report, therefore, is insufficient to establish
causal relationship.
Dr. Galindo also completed work status reports dated October 31 and November 9, 2020
wherein he noted the date of injury, a diagnosis of right knee strain, and appellant’s work
restrictions. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.12 As such, the Board finds that these reports are also insufficient to establish causal
relationship.
OWCP also received a medical report dated October 31, 2020 from Dr. Lehew, which
listed appellant’s diagnosis as a right knee strain. However, Dr. Lehew did not provide his own
medical opinion explaining the cause of appellant’s diagnosed conditions. 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. 13 As such, this report is
insufficient to establish appellant’s claim.
As there is no medical evidence of record establishing that appellant’s diagnosed right knee
condition was causally related to the accepted employment incident, the Board finds that appellant
has not met his 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 his burden of proof to establish a right knee
condition causally related to the accepted October 31, 2020 employment incident.

11

B.S., Docket No. 20-0927 (issued January 29, 2021); R.C., Docket No. 18-1695 (issued March 12, 2019); Ricky S.
Storms, 52 ECAB 349 (2001).
12

J.T., Docket No. 20-1486 (issued March 16, 2021); E.R., Docket No. 20-0880 (issued December 2, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the January 6, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2021
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, AIRPORT MAIL
FACILITY, San Francisco, CA, Employer
__________________________________________

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Appearances:
Bob Williamson, for the appellant
Office of Solicitor, for the Director

Docket No. 11-523
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant, through her representative, filed a timely appeal from a
July 13, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of its wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established modification of the May 9, 1991
wage-earning determination; and (2) whether OWCP paid her compensation for the loss of
wage-earning capacity at the proper rate.
FACTUAL HISTORY
On December 10, 1988 appellant, then a 30-year-old expediter, filed a claim alleging that
on that date she injured her hand and hip in the performance of duty. OWCP accepted the claim
1

5 U.S.C. § 8101 et seq.

for contusions of the sacrum and coccyx and strains of the left shoulder, left wrist and lumbar
spine.
Appellant returned to work for four hours a day on January 9, 1991. On June 5, 1991 the
employing establishment offered her a modified position as a data conversion clerk consistent
with the January 24, 1991 restrictions by her attending physician. The position was for four
hours per day and required no lifting over 10 pounds, bending or standing. The duties included
sorting and typing Express Mail labels. The job offer provided, “Variations from the above
duties may occur as directed by your supervisor and will be in accordance with your doctor’s
limitations.”
By decision dated May 9, 1991, OWCP reduced appellant’s compensation benefits based
on its finding that her actual earnings as a part-time clerk effective January 9, 1991 fairly and
reasonably represented her wage-earning capacity.
On September 24, 2009 the employing establishment informed appellant that it was
unable to provide her with work pursuant to the National Reassessment Process (NRP).
Appellant filed a claim for compensation (Form CA-7) beginning September 25, 2009.
By letter dated October 5, 2009, OWCP advised appellant of the criteria for modification
of an established wage-earning capacity determination. It requested that she submit evidence
supporting her request for modification.
In a letter dated October 9, 2009, appellant related that she had worked over 22 years as a
foreign section clerk.2 The employing establishment moved her to a modified position as a
foreign short paid clerk on September 28, 2008 working four hours per day. On September 24,
2009 it withdrew her job as there was no work available.3 In another letter dated September 16,
2009, appellant noted that her supervisor told her to claim wage loss with OWCP for eight hours
per day after her position was withdrawn.
By letter dated November 9, 2009, appellant’s representative asserted that the employing
establishment did not provide her with a permanent position after her work injury but instead
placed her in a makeshift assignment that it later withdrew. He maintained that the loss of wageearning capacity was thus issued in error. The representative further argued that appellant
returned to work at a lower level than her date-of-injury position but OWCP did not address the
change in pay rate.
By decision dated January 13, 2010, OWCP denied appellant’s claim for compensation
for total disability beginning September 25, 2009. It found that she had not established that the
wage-earning capacity determination should be modified.

2

In a duty status report dated October 8, 2009, Dr. Kenneth I. Light, a Board-certified orthopedic surgeon,
diagnosed a herniated disc and found that appellant could work four hours per day with restrictions of no lifting over
20 pounds, pushing and pulling up to 5 pounds, lifting, sitting and reaching above the shoulder up to 4 hours per day
and standing and walking 15 minutes per day. In a narrative report of the same date, Dr. Light found that her
condition was “stable and stationary” and that she could work part time with the listed limitations.
3

Appellant accepted a part-time limited-duty position as a mail process on September 26, 2008.

2

On January 19, 2010 appellant requested an oral hearing. At the hearing, held on
April 28, 2010, her representative argued that her limited-duty assignment was not a bid position
with duties available in the open market.4
In a letter received May 10, 2010, appellant noted that she originally returned to work full
time in 1988 after her injury but was unable to fully recover. When she was sent home due to
the NRP, the employing establishment told her to claim wage loss for total disability. Appellant
maintained that when she returned to work after her injury she was assigned to a lower level
makeshift position.
By decision dated July 10, 2010, OWCP’s hearing representative affirmed the
January 13, 2010 decision. She found that appellant had not established modification of the
wage-earning capacity determination. The hearing representative also found that there was no
evidence that OWCP paid her at an inaccurate pay rate as she returned to work as a Level 5
worker and was a Level 5 worker on the date of injury.
On appeal appellant, through her representative, argues that she worked at a higher rate of
pay at the time of her work injury than the rate of pay used in her wage-earning capacity
determination. He also asserts that she returned to a nonfunded position.
LEGAL PRECEDENT -- ISSUE 1
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.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
When a formal loss of wage-earning capacity determination is in place and light duty is
withdrawn, the proper standard of review is not whether appellant sustained a recurrence of
disability, but whether OWCP should modify its decision according to the established criteria for
modifying a formal loss of wage-earning capacity determination.9 OWCP procedures provide
4

In a December 30, 2009 report, Dr. Light found that she could return to part-time employment with reduced
restrictions. On March 31, 2010 he related that appellant could work with restrictions.
5

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

6

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

7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

9

Id.

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that when the employing establishment has withdrawn a light-duty assignment, which
accommodated the claimant’s work restrictions and a formal wage-earning capacity decision has
been issued, the decision will remain in place, unless one of the three accepted reasons for
modification applies.10
Section 8115(a) of FECA11 provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-earning capacity.12 Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such a measure.13 The formula for determining loss of wage-earning
capacity based on actual earnings, developed in the Albert C. Shadrick decision,14 has been
codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s wage-earning capacity in terms
of percentage by dividing the employee’s earnings by the current pay rate for the date-of-injury
job.15 OWCP procedures provide that a determination regarding whether actual earnings fairly
and reasonably represent wage-earning capacity should be made after an employee has been
working in a given position for more than 60 days.16
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represents his or her WEC [wage-earning capacity] the CE [claims
examiner] should consider whether the kind of appointment and tour of duty …
are at least equivalent to those held on date of injury. Unless they are, the CE
may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:
(1) The job is part-time (unless the claimant was a part-time
worker at the time of injury) or sporadic in nature;
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(5) (October 2005).

11

5 U.S.C. § 8101 et seq.

12

Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

13

Lottie M. Williams, 56 ECAB 302 (2005).

14

Albert C. Shadrick, 5 ECAB 376 (1953).

15

20 C.F.R. § 10.403(c).

16

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

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(2) The job is seasonal in an area where year-round employment is
available.
(3) The job is temporary where the claimant’s previously job was
permanent.”17
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained contusions of the sacrum and coccyx and strains
of the lumbar spine, left shoulder and left wrist due to a December 10, 1988 employment injury.
She returned to part-time work on January 9, 1991. The employing establishment offered
appellant a position for four hours per day that required no lifting over 10 pounds, standing or
bending. Based on this position, OWCP reduced her compensation effective January 9, 1991
after finding that her actual earnings as a part-time clerk fairly and reasonably represented her
wage-earning capacity. Appellant filed a claim for compensation beginning September 25, 2009
due to the withdrawal of her limited-duty assignment as part of the NRP.
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.18 Appellant did not contend
that she experienced a material change in the nature and extent of her injury-related condition.
Instead she argued that her actual earnings in the position upon which the original loss of wageearning capacity was based did not fairly and reasonably represent her wage-earning capacity as
the position was makeshift in nature.
On appeal appellant argues that the position offered by the employing establishment was
makeshift in nature. The Board finds, however, that OWCP improperly reduced her
compensation based on different grounds.
At the time of her injury appellant worked full-time as an expediter. OWCP, however,
based its wage-earning capacity determination on a part-time position of 20 hours per week. In
situations where an employee is working full time when injured and is reemployed in a part-time
position, a formal wage-earning capacity determination is generally not appropriate.19 The
Board has held that OWCP must address the issue and explain why a part-time position is
suitable for a wage-earning capacity determination based on the specific circumstances of the
case.20 OWCP did not address this issue in its wage-earning capacity decision. It determined
that the part-time position of modified clerk fairly and reasonably represented his wage-earning
capacity without clearly explaining why the actual earnings were based on a part-time position
when appellant was not a part-time employee at the time of injury. The Board thus finds that the
17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a (October 2009).
18

See supra note 6.

19

See supra note 16.

20

Connie L. Potratz-Watson, 56 ECAB 316 (2005).

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position does not fairly and reasonably represent his wage-earning capacity and, consequently,
that the original wage-earning capacity determination was erroneous. Accordingly, appellant has
established that the May 9, 1991 wage-earning capacity determination warrants modification.21
CONCLUSION
The Board finds that appellant has established that modification of OWCP’s wageearning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 23, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

In view of the Board’s finding regarding the wage-earning capacity determination, the issue of whether OWCP
utilized the proper pay rate in its wage-earning capacity decision is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board

J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Topeka, KS, Employer
__________________________________________

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

Docket No. 18-1508
Issued: February 5, 2019

Case Submitted on the Record

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

JURISDICTION
On August 1, 2018 appellant filed a timely appeal from an April 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
causally related to the accepted February 16, 2018 employment incident.
FACTUAL HISTORY
On March 7, 2018 appellant, then a 31-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained an injury as a result of inhaling smoke while
1

5 U.S.C. § 8101 et seq.

at work on February 16, 2018. A trash can fire produced smoke, which appellant alleged caused
dizziness, lightheadedness, shortness of breath, and headache. She stopped work on the date of
injury, was taken by ambulance to Stormont Vail Health, and was cleared to return to work by
their medical staff.
In a March 7, 2018 statement, appellant’s supervisor indicated that he had followed the
ambulance to the hospital and stayed with appellant for approximately three hours. Shortly after,
appellant was released, she sent him a text message which stated that her chest was still “tight”
and that she had a bad headache. The supervisor further noted that appellant was scheduled to
work the following day, February 17, 2018, but she sent him text messages complaining of
dizziness and not feeling well. Appellant indicated that she may check back into the hospital and
requested permission to rest. She was scheduled off work on February 18, 2018. The supervisor
noted that on February 19, 2018 appellant texted him complaining of body aches and indicating
that she was going to an emergency room since she did not feel well on her way to work. He noted
that later that afternoon he received another text message from appellant which indicated that she
now had the flu which caused weakness, aches, and fever. The supervisor noted that appellant
remained off work the entire week with the flu and that her absence was unrelated to any smoke
inhalation.
In a March 13, 2018 development letter, OWCP acknowledged receipt of appellant’s claim
and informed her that additional evidence was needed in support of her claim. It provided her a
factual questionnaire to complete setting forth the factual basis of her claim. OWCP also noted
that the medical portion of appellant’s claim was reviewed and was found to be insufficient. It
requested a narrative report from her attending physician, including an explanation of how her
alleged February 16, 2018 employment incident caused or aggravated a medical condition. OWCP
afforded appellant 30 days to submit the requested evidence.
In an emergency room report dated February 16, 2018, Dr. David Ricketts-Kingfisher, a
specialist in emergency medicine, reviewed appellant’s symptoms and examination findings. He
noted visual disturbance, shortness of breath, and lightheadedness. Dr. Ricketts-Kingfisher
concluded “No diagnosis found.” He explained that appellant’s symptoms had cleared during her
visit to the emergency room.
In an emergency room report dated February 19, 2018, Dr. Clayton Wood, an osteopath
who specializes in emergency medicine, noted that appellant complained of fever, body aches,
myalgias, nausea, vomiting, and a cough. He diagnosed her as positive for Influenza B.
In a clinic note dated February 21, 2018, Kelly S. Busby, a nurse practitioner, related
appellant’s continued flu symptoms and hearing loss in her left ear. After reviewing appellant’s
past medical history and examination findings, she diagnosed appellant with acute supportive otitis
media without spontaneous rupture of eardrum and influenza due to other identified influenza virus
with other respiratory manifestations.
On March 26, 2018 OWCP received appellant’s supplemental statement wherein she
described in detail the trash can fire and her exposure to smoke on February 16, 2018.

2

By decision dated April 18, 2018, OWCP denied appellant’s traumatic injury claim. It
accepted that the February 16, 2018 employment incident occurred as alleged, but denied her claim
because the evidence was insufficient to establish that she sustained an injury as defined by FECA.
OWCP stated that appellant’s claim for compensation was denied because she had not submitted
medical evidence containing a medical diagnosis in connection with the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.5 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.8 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
2

Id.

3

T.M., Docket No. 18-0972 (issued December 13, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
4

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

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

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

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras,
supra note 3.
8
D.H., Docket No. 17-1913 (issued December 13, 2018); see 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB
234 (1983).

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medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted February 16, 2018 employment incident. In support of her
claim, appellant submitted emergency room notes dated from February 16, 2018 in which
Dr. Ricketts-Kingfisher indicated that she had inhaled smoke. However, Dr. Ricketts-Kingfisher
also indicated that appellant’s symptoms quickly cleared and noted specifically “No diagnosis
found.” He neither provided evidence as to the diagnosis of an injury from the smoke inhalation,
nor did he explain how the smoke inhalation caused her symptoms. Lacking a firm diagnosis and
rationalized medical opinion regarding causal relationship, his medical report is of limited
probative value.10
Appellant also submitted February 19, 2018 emergency room notes from Dr. Wood
indicating that she received medical treatment for Influenza B. However, Dr. Wood did not opine
that appellant sustained a diagnosis in relation to the accepted employment incident. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.11
Appellant also submitted clinic notes from Ms. Busby. However, health care providers
such as nurses, acupuncturists, physician assistants, and physical therapists are not considered
physicians under FECA.12 Thus, their opinions do not constitute medical evidence and are of no
probative value on the issue of causal relationship.13
Section 10.303 of OWCP’s regulations provides that simple exposure to a workplace
hazard does not constitute a work-related injury entitling an employee to medical treatment under
FECA unless the employee has sustained an identifiable injury or medical condition as a result of
that exposure.14 Because the medical reports submitted by appellant do not adequately address
how the February 16, 2018 employment incident caused a diagnosed medical condition, these

9

D.H., id.; K.V., Docket No. 18-0723 (issued November 9, 2018); James Mack, 43 ECAB 321 (1991).

10

J.F., Docket No. 18-0904 (issued November 27, 2018); see D.S., Docket No. 18-0061 (issued May 29, 2018).

11

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

12

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).
13

S.J., Docket No. 17-0783, (issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
See also 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).
14

M.B., Docket No. 18-0717 (issued September 5, 2018); 20 C.F.R. § 10.303.

4

reports are insufficient to establish entitlement under FECA.15 Accordingly, appellant has failed
to meet her burden of proof to establish a traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a traumatic injury causally related to the
accepted February 16, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 5, 2019
Washington, DC

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

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

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

15

D.H., supra note 8; see Linda I. Sprague, 48 ECAB 386 (1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Raleigh, NC, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0920
Issued: September 25, 2019

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 March 25, 2019 appellant, through counsel, filed a timely appeal from a January 18,
2019 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 a cervical spine
condition causally related to the accepted February 7, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 14, 2014 appellant, then a 44-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that on February 7, 2014 he experienced pain in his
left shoulder after rotating a jack handle moving a large piece of equipment while in the
performance of duty. He stopped work on March 3, 2014 and returned to work on
March 17, 2014.4
A magnetic resonance imaging (MRI) scan, obtained on February 27, 2014, revealed a
large left posterolateral and foraminal disc herniation at C6-7 compressing the left C7 nerve root
and ventral cord.
On March 3, 2014 Dr. Leo Spector, a Board-certified orthopedic surgeon, noted that
appellant had experienced severe neck pain radiating into his left upper extremity after doing
routine exercises in January 2014. He indicated that a cervical spine MRI scan showed a large C67 left disc herniation compressing the left C7 nerve root. Dr. Spector diagnosed a left herniated
nucleus pulposus at C6-7 with left C7 radiculopathy and recommended surgery.
By decision dated February 4, 2015, OWCP denied appellant’s claim for a traumatic injury
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted February 7, 2014 employment incident.
In a February 24, 2015 report, Dr. Spector indicated that he had treated appellant beginning
March 3, 2014 for a herniated disc at C6-7 requiring surgery. He advised that his physician
assistant had obtained a history of a prior rotator cuff surgery in March 2013 after which he
resumed normal exercises. While rotating equipment at work, appellant experienced left scapular
pain. Dr. Spector opined that the employment incident contributed to his disc herniation and that
he had “an asymptomatic preexisting condition made symptomatic by a work-related injury.”
On March 11, 2015 appellant requested reconsideration.
By decision dated April 23, 2015, OWCP denied modification of its February 4, 2015
decision finding that Dr. Spector’s opinion was speculative and thus insufficient to show that
appellant sustained an employment-related condition on February 7, 2014.
3

Docket No. 17-0490 (issued June 27, 2017).

4

Appellant received treatment from a physician assistant following his injury.

2

In a report dated March 16, 2016, Dr. William A. Somers, a Board-certified orthopedic
surgeon, reviewed appellant’s history of a left rotator cuff condition in 2002 and a left rotator cuff
repair in 2013. Dr. Somers noted that he had returned to his usual employment following his
rotator cuff repair with no neck, upper back, or left arm symptoms until February 2014, when he
used a lever on a mechanical device and “felt a twinge in the posterolateral cervical spine region.”
He diagnosed a herniated nucleus pulposus at C6 with radiculopathy either caused or aggravated
by the February 2014 injury, degenerative cervical disc disease aggravated by the February 2014
injury, and residual fine motor dexterity loss due to the February 2014 injury.
On March 17, 2016 appellant requested reconsideration. He argued that the opinion of
Dr. Somers was sufficient to meet his burden of proof or require further development.
By decision dated December 15, 2016, OWCP denied modification of its April 23, 2015
decision finding that Dr. Somers’ opinion was insufficiently rationalized to establish that appellant
sustained an injury on February 7, 2014.
Appellant appealed to the Board. By decision dated June 27, 2017, the Board affirmed the
December 15, 2016 decision.5 The Board found that the medical evidence of record was
insufficient to establish that appellant had sustained a cervical condition caused or aggravated by
the accepted February 7, 2014 employment incident.
In a report dated March 19, 2018, Dr. Tuan Huynh, who specializes in family medicine,
evaluated appellant for continued complaints of neck pain radiating into his elbow and hand. He
noted that his symptoms began on February 7, 2014 when he “injured his neck as a result of turning
a lever to jack up a large piece of equipment.” Dr. Huynh opined that appellant had herniated a
cervical disc performing “an extremely physically stressful task” in the course of his employment.
He described the mechanism of intervertebral disc degeneration, noting that it usually occurred
with age and was asymptomatic. Dr. Huynh advised that a disc herniation primarily occurred with
trauma. He found that appellant’s disc herniation resulted from a “torsional injury due to his
strenuous lifting injury as he was trying to turn the level to jack up a heavy piece of equipment.”
Dr. Huynh opined that his disc would have remained asymptomatic absent jacking up the
equipment, and concluded that he “herniated his C6 disc in his cervical spine as a direct result of
straining to turn a lever to lift a large piece of equipment.” He diagnosed cervical disc disorder at
C6-7 with radiculopathy.
On May 2, 2018 appellant, through counsel, requested reconsideration based on the
March 19, 2018 report of Dr. Huynh.
By decision dated July 31, 2018, OWCP denied modification. It found that Dr. Huynh had
not adequately distinguished appellant’s preexisting condition and the diagnosed condition that he
related to the accepted employment incident.

5

Supra note 3.

3

On October 22, 2018 Dr. Huynh indicated that he had reviewed OWCP’s July 31, 2018
decision and the reports from Dr. Somers. He described intervertebral discs and the mechanisms
causing disc herniations. Dr. Huynh related:
“Again, considering the specific actions conveyed by [appellant] on February 7,
2014 that included rotating a jack handle for approximately five minutes while
jacking up a large piece of equipment, an understanding of the biomechanics of this
injury, the resulting diagnosed conditions, the confirmatory diagnostic studies, the
concurring opinion of Dr. William Somers specifically on this issue, his prior
asymptomatic condition and immediate symptoms identified thereafter all lead me
to the conclusion that this work activity caused his disc herniation. I made this
finding to a high degree of medical certainty, I have supported my medical rationale
with both diagnostic and clinical findings and have no doubt that the injury was
caused by the work activities.”
Dr. Huynh indicated that he had considered appellant’s prior rotator cuff injury. He
concluded that his “herniation was directly caused by a torsional injury due to his strenuous lifting
as he was trying to turn the lever to jack up a heavy piece of equipment.” He diagnosed cervical
disc disorder with radiculopathy of the cervicothoracic region and at C6-7.
On October 24, 2018 appellant, through counsel, requested reconsideration. He noted that
the March 19 and October 22, 2018 reports from Dr. Huynh were rationalized and thorough and
thus sufficient to establish causation.
By decision dated January 18, 2019, OWCP denied modification of its July 31, 2018
decision.
On appeal counsel contends that OWCP failed to discuss Dr. Huynh’s March 19, 2018
report and erred in finding that his opinion was not rationalized.
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,6 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.7 These are the essential elements of each and every compensation claim,

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).

4

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the performance of
duty, it first must be determined whether fact of injury has been established. Fact of injury consists
of two components that must be considered in conjunction with one another. The first component
is whether the employee actually experienced the employment incident that allegedly occurred.9
The second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 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.12
ANALYSIS
The Board finds that this case is not in posture for decision.
On prior appeal, the Board reviewed the evidence before OWCP at the time it issued its
December 15, 2016 decision and found that it was insufficient to establish that appellant sustained
an injury causally related to the accepted February 7, 2014 employment incident. The Board’s
review of the previously submitted medical evidence of record is res judicata absent further review
by OWCP under section 8128 of FECA and therefore the prior evidence need not be addressed
again in this decision.13
Following the Board’s June 27, 2017 decision, appellant, through counsel, requested
reconsideration and submitted additional medical evidence. On March 19, 2018 Dr. Huynh
diagnosed cervical disc disorder at C6-7 with radiculopathy. He attributed appellant’s herniated
disc at C6 to a torsional injury that occurred when he tried to jack up heavy equipment on
February 7, 2014. Dr. Huynh noted that he had a preexisting cervical degenerative condition
which he advised would have remained asymptomatic absent the accepted employment incident.
On October 22, 2018 Dr. Huynh related that he had reviewed the reports from Dr. Somers.
He discussed how trauma resulted in disc herniations. Dr. Huynh discussed appellant’s rotation
of a jack handle for around five minutes moving a piece of equipment. He opined that the history
of injury, the mechanics of his actions using the jack handle, the diagnostic studies, immediate
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

See G.H., Docket No. 18-989 (issued January 3, 2019).

10

Id.

11

L.D., Docket No. 17-1581 (issued January 23, 2018).

12

H.B., Docket No. 18-0781 (issued September 5, 2018).

13

W.C., Docket No. 18-1386 (issued January 22, 2019).

5

symptoms, and previously asymptomatic condition supported that the accepted employment
incident caused his disc herniation. Dr. Huynh explained that disc degeneration commonly
resulted from age as opposed to a disc herniation that usually resulted from trauma. He opined
that appellant’s cervical disc herniation directly resulted from a torsional injury caused by
strenuous exertion turning the lever on a jack. He diagnosed cervical disc disorder with
radiculopathy of the cervicothoracic region and at C6-7.
The Board finds that the medical opinion of Dr. Huynh is based upon a complete factual
history and medical background, is supported by reasonable medical certainty, and provides a
sufficient level of medical rationale explaining the nature of the relationship between the diagnosed
conditions and the accepted employment incident.14 While his reports are insufficiently
rationalized to meet appellant’s burden of proof to establish his claim, they raise an uncontroverted
inference between his cervical disc herniation and the identified employment factor and are
sufficient to require OWCP to further develop the medical evidence and the case record.15
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility to see that justice is done.16 The nonadversarial policy of proceedings under FECA
is reflected in OWCP’s regulations at section 10.121.17 On remand, OWCP should refer appellant
and the medical evidence of record to an appropriate specialist to obtain a rationalized opinion
regarding whether he sustained a cervical condition causally related to the accepted February 7,
2014 employment incident.18 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.

14

Id.

15

C.W., Docket No. 19-0231 (issued July 15, 2019).

16

X.V., Docket No. 18-1360 (issued April 12, 2019); Jimmy A. Hammons, 51 ECAB 219 (1999).

17

20 C.F.R. § 10.121.

18

M.K., Docket No. 17-1140 (issued October 18, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 25, 2019
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

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

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

Docket No. 18-1033
Issued: January 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 23, 2018 appellant filed a timely appeal from a March 13, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
since the last merit decision, dated June 13, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 20, 2013 appellant, then a 51-year-old retail and distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed tendinitis and a tear in her
right rotator cuff as a result of her repetitive employment duties. She noted that her duties entailed
repetitively sorting bundles and packages, casing letters and flats, lifting packages and bundles,
reaching constantly, pushing and pulling heavy equipment, and lifting tubs. Appellant noted that
she first became aware of her condition on December 1, 2011 and of its relationship to her
employment on February 7, 2013. She sought treatment with Dr. James A. Hill, a Board-certified
orthopedic surgeon, and Dr. James W. Atchison, Board-certified in physical medicine and
rehabilitation. On September 10, 2013 appellant underwent a right shoulder arthroscopy and
debridement of a glenoid labrum tear. By decision dated January 8, 2014, OWCP accepted the
claim for right shoulder sprain and right superior glenoid labrum lesion. It paid appellant wageloss compensation on the supplemental rolls as of September 11, 2013 and on the periodic rolls as
of March 9, 2014.
By decision dated September 18, 2015, OWCP expanded acceptance of the claim to
include right causalgia upper limb (right shoulder complex pain syndrome) and right shoulder
rotator cuff tear.
On January 28, 2016 OWCP referred appellant, the case file, a series of questions, and a
statement of accepted facts (SOAF) to Dr. James Elmes, a Board-certified orthopedic surgeon, for
a second opinion evaluation.
In his January 28, 2016 report, Dr. Elmes discussed appellant’s right shoulder history,
noting that she had four previous right shoulder surgeries from June 20, 2003 through February 5,
2005, as well as the most recent September 10, 2013 surgery following her occupational disease
claim. He reviewed the medical and diagnostic reports of record and provided findings on physical
examination. Dr. Elmes reported that appellant had no objective findings establishing residuals of
her accepted right shoulder rotator cuff tear and complex regional pain syndrome. He noted that,
while she complained of perceived right shoulder pain, the diagnostic studies and objective
examination findings failed to provide support for her continued work-related conditions.
Dr. Elmes reported that appellant could return to work without restrictions and recommended six
weeks of work conditioning.
By letter dated February 17, 2016, OWCP provided Dr. Atchison and Dr. Hill a copy of
Dr. Elmes’ second opinion evaluation for review and comment on residuals of appellant’s workrelated condition and disability.
In a March 14, 2016 report, Dr. Atchison disagreed with Dr. Elmes’ findings. He reported
that appellant’s physical examination findings pertaining to the right upper shoulder quadrant
revealed that she experienced pain which provided objective support that she continued to suffer
from residuals of her accepted right shoulder rotator cuff injury and complex regional pain
syndrome. Dr. Atchison noted that, despite her right shoulder surgery, her symptoms did not
change. Therefore, appellant’s ongoing pain was a problem in that region which had been
accepted, but was unresponsive to the appropriate treatment attempted. Dr. Atchison opined that
appellant was capable of future work-related activities, but that it would be more likely to occur if

2

she completed a functional restoration program. He further recommended a functional capacity
evaluation (FCE) to determine her true physical capabilities. Dr. Atchison concluded that a fourweek interdisciplinary pain program with emphasis on functional restoration would benefit
appellant in preparing her to return to work.
On October 26, 2016 OWCP found a conflict of opinion between the reports of Dr. Elmes
and Dr. Atchison. It referred appellant, the case file, a SOAF, and a series of questions to
Dr. Donald Kucharzyk, a Board-certified orthopedic surgeon, for an impartial examination to
determine the nature and extent of her employment-related conditions and disability.
In a November 30, 2016 report, Dr. Kucharzyk provided extensive review and summary of
appellant’s medical history. He discussed an extensive right shoulder history which began in 2004
following injury from a motor vehicle accident. Dr. Kucharzyk noted that appellant had four right
shoulder surgeries prior to the September 10, 2013 work-related right shoulder arthroscopy. He
reported that appellant’s examinations and follow up in the pain clinic in 2014 and 2015 revealed
that her work-up was negative, more specifically, the neurologic examination of the upper
extremities was negative for cervical pathology, and the only finding was decreased range to
motion of the cervical spine. Dr. Kucharzyk related that her magnetic resonance imaging (MRI)
scans from 2013 to 2015 were all negative and she was told she had chronic regional pain
syndrome, which was never fully confirmed or fully diagnosed as she did not meet all of the criteria
for the condition.
Dr. Kucharzyk opined that appellant’s work-related right shoulder injuries had resolved
and there was no evidence of shoulder pathology or reflex sympathetic dystrophy syndrome with
chronic pain to the shoulder region. He explained that he did not find evidence of rotator cuff
weakness or weakness to the supraspinatus, internal rotators or external rotators of the shoulder.
Dr. Kucharzyk noted that neurological examination revealed normal findings. He further reported
that radial, ulnar, median, and anterior interosseous nerve functions were intact and symmetrical,
and sensory and motor examination were intact to both upper extremities. Dr. Kucharzyk reported
that appellant required no further treatment to the right shoulder which would change her current
pain pattern and condition. He recommended that appellant undergo an FCE.
On January 13, 2017 OWCP referred appellant for an FCE which she underwent on
March 16, 2017. On April 5, 2017 it referred the FCE report to Dr. Kucharzyk for review and
comment.
In an April 28, 2017 addendum report, Dr. Kucharzyk reported that appellant’s
employment-related right shoulder injuries had resolved. He noted that she had no other associated
work-related diagnoses and the right shoulder was quiescent requiring no further treatment.
Dr. Kucharzyk noted that the FCE was inconclusive and invalid.
On May 10, 2017 OWCP notified appellant of a proposal to terminate her wage-loss
compensation and medical benefits because her work-related injuries and disability had resolved.
It found that the weight of the medical evidence rested with Dr. Kucharzyk, serving as the impartial
medical examiner, who had determined that appellant was not experiencing residuals or disability
connected to the February 7, 2013 occupational injury, as her conditions had ceased. Appellant
was afforded 30 days to submit additional information.

3

In medical reports dated August 18, 2016 through May 16, 2017, Dr. Hill diagnosed
bilateral rotator cuff tendinitis with complex regional pain syndrome. He reported that appellant
continued to experience pain and discomfort in her bilateral shoulders and limited range of motion
in the cervical spine with several tender trigger areas in the trapezius. Dr. Hill noted that
appellant’s work-related condition of complex regional pain syndrome had not resolved and was
ongoing. He reported that appellant was unable to return to work in any capacity as her
employment duties involved repetitive activities with the upper extremities.
By decision dated June 13, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that same date, finding that the medical evidence of record
established that she no longer had residuals related to the accepted work-related medical condition
or continued disability as a result of the February 7, 2013 work injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Kucharzyk serving as the referee physician.
On December 13, 2017 appellant requested reconsideration of OWCP’s decision. She
argued that she was not offered the opportunity to participate in a rehabilitation class to learn
another skill in order to perform her duties despite her limitations. Appellant argued that she did
not learn that her benefits had been terminated until after she met with a rehabilitation specialist
and was unable to return to her previous job because of the weight requirements and repetitive
motions.
In support of her claim, appellant submitted medical reports dated May 16 through
September 21, 2017 from Dr. Hill. In his reports, Dr. Hill noted a diagnosis of bilateral rotator
cuff tendinitis with complex regional pain syndrome which he treated via epidural steroid
injections. He reported that an August 20, 2017 MRI scan of the left shoulder revealed a high
grade partial tear of her supraspinatus, some mild glenohumeral arthritic changes, and a
longitudinal tear of the long head of the biceps. On September 11, 2017 appellant underwent a
left shoulder arthroscopy, loose body removal, and debridement of rotator cuff and glenoid labrum
tear.
By decision dated March 13, 2018, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review. It noted that the medical evidence submitted was
cumulative and substantially similar to documentation previously considered and already
contained in the case file.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review
an award for or against compensation. OWCP may review an award for or against payment of
compensation at any time based on its own motion or on application.4 To require it to reopen a
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); A.D., Docket No. 18-0497 (issued July 25, 2018).

4

case for merit review under FECA section 8128(a), its regulations provide that the evidence or
argument submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted
a specific point of law; (2) advance a relevant legal argument not previously considered by OWCP;
or (3) constitute relevant and pertinent new evidence not previously considered by OWCP.5
Section 10.608(b) of OWCP regulations provide that when an application for reconsideration does
not meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).7
In her timely request for reconsideration, appellant did not establish that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and relevant
legal argument. Appellant argues that she continued to experience residuals of her employmentrelated injuries and was unable to perform her regular employment duties. The underlying issue
in this case was whether she had continuing residuals or disability due to the accepted February 7,
2013 employment injury after June 13, 2017. That is a medical issue which must be addressed by
pertinent and relevant medical evidence.8 Appellant further argues that she was not provided an
opportunity to participate in a rehabilitation class to learn a different skill. The Board notes that
this argument has no reasonable color of validity as it has no bearing on the underlying issue.9
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
With her reconsideration request, appellant submitted medical reports form Dr. Hill dated
May 16 to September 21, 2017. The Board notes that these reports are substantially similar to
those previously of record which were evaluated in OWCP’s June 13, 2017 merit decision.10
Material which is duplicative of that already contained in the case record does not constitute a
basis for reopening a case.11 To the extent that Dr. Hill reported that appellant continued to suffer
from her work-related complex regional pain syndrome, this assessment was previously
considered by OWCP in its June 13, 2017 decision when determining that the weight of the
5

D.K., 59 ECAB 141 (2007).

6

K.H., 59 ECAB 495 (2008).

7

D.L., Docket No. 16-0342 (issued July 26, 2016).

8

See Bobbie F. Cowart, 55 ECAB 746 (2004).

9

Michael E. Smith, 50 ECAB 313 (1999).

10

This evidence is cumulative and substantially similar to evidence that was already contained in the case file and
previously considered. A.L., Docket No. 08-1730 (issued March 16, 2009).
11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

5

medical evidence remained with Dr. Kucharzyk.12 Furthermore, to the extent that his reports
submitted on reconsideration focused on evaluation and treatment of appellant’s left shoulder, this
condition was not alleged by appellant in this claim or accepted as work related. The Board has
held that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.13 A claimant may obtain a merit review of an OWCP
decision by submitting relevant and pertinent new evidence.14 In this case, appellant failed to
submit relevant and pertinent new medical evidence addressing the underlying issue of continued
disability.15
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

A.H., Docket No. 17-0652 (issued April 25, 2018).

13

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

14

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984).
15

M.H., Docket No. 13-2051 (issued February 21, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Butner, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1971
Issued: July 18, 2013

Case Submitted on the Record

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

JURISDICTION
On September 27, 2012 appellant, through his attorney, filed a timely appeal from an
August 6, 2012 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.
ISSUES
The issues on appeal are: (1) whether OWCP properly determined appellant’s wageearning capacity based on his actual earnings; and (2) whether appellant met his burden of proof
to establish that a modification of his December 6, 2011 loss of wage-earning capacity
determination was warranted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 16, 2002 appellant, then a 38-year-old employee development specialist,
filed a claim alleging that he worked in a hostile environment and was harassed and threatened
by a coworker. OWCP accepted his claim for acute stress reaction and later expanded his claim
to include post-traumatic stress disorder. Appellant stopped work on July 30, 2003 and did not
return to the employing establishment. On October 29, 2007 he began working full time in the
private sector. At the time of appellant’s injury he was a level GS-9 step 5 with an annual salary
of $43,664.00.
Appellant was treated by Dr. Carol Martin, a Board-certified psychiatrist, on April 18,
2007, who diagnosed acute stress reaction and post-traumatic stress disorder, prolonged.
Dr. Martin advised that appellant’s work-related conditions were still present and disabling from
working for the employing establishment. She advised that appellant was currently training for a
new career in lieu of a job with the employing establishment and did not need vocational
rehabilitation as he was educating himself.
In a letter dated December 4, 2007, appellant informed OWCP that he started a job at
American Airlines as a domestic and international reservationist. He indicated that his job was
contingent on completing the required training which began on October 29, 2007. On a
January 15, 2008 telephone log, appellant reported that he was now a permanent employee.
By decision dated May 8, 2008, OWCP indicated that appellant had been employed as a
full-time reservations representative for American Airlines effective October 29, 2007, which
was over 60 days, and that the pay in that position was $401.35 per week. It concluded that the
position of full-time reservations representative fairly and reasonably represented appellant’s
wage-earning capacity and was considered suitable to his partially disabled condition. OWCP
advised that it was reducing his monetary compensation effective October 29, 2007 based on his
actual earnings in this position.
In a letter dated February 8, 2009, appellant requested reconsideration of his wageearning capacity determination. He indicated that he was employed full time with American
Airlines beginning October 29, 2007 but that his category had changed to part-time employment
on August 7, 2008 because he had problems grasping and learning concepts working in the fastpaced call center. Appellant submitted an April 2, 2008 report from Dr. Martin who diagnosed
acute stress reaction and post-traumatic stress disorder. Dr. Martin noted that appellant’s workrelated condition was present and disabling. She noted that appellant was currently working a
part-time job and experienced persistent difficulty remembering information such as standard
codes.
In a letter dated March 2, 2009, OWCP advised that appellant had returned to a full-time
position with American Airlines effective October 29, 2007 and a formal wage-earning
determination was issued on May 8, 2008. On February 8, 2009 appellant advised that he
changed his position to part time on August 7, 2008. OWCP advised him of the standard for
modifying a wage-earning capacity determination and the criteria for a recurrence of disability if
he believed his medical condition changed.

2

On March 16, 2009 appellant filed a CA-2a, notice of recurrence of disability, alleging
that on April 1, 2008 he had difficulty performing his job due to concentration issues,
forgetfulness and anxiety when dealing with angry and rude customers. He submitted an April 3,
2009 report from Dr. Martin who diagnosed acute stress reaction and post-traumatic stress
disorder. Dr. Martin noted that appellant was currently working a part-time job and experienced
persistent difficulty remembering information, had extreme stress due to high volume, fast-paced
airline call center and strained to handle demanding, irate callers some of whom cursed at him
with racial slurs. She noted that appellant’s current part-time schedule allowed him to
accumulate less daily stress from which to recover.
On April 27, 2009 OWCP denied appellant’s claim for a recurrence of disability.
On May 25, 2009 appellant requested reconsideration of the April 27, 2009 decision.
Thereafter, he submitted reports from Dr. Martin dated March 24, 2010 and March 31, 2011 who
reiterated his diagnosis.
In a letter dated April 12, 2011, appellant’s attorney, Martin Kaplan, Esq., advised that he
was the authorized representative for appellant; however, he had not received the decision or
correspondence and appellant was prejudiced by OWCP’s error.
In a decision dated November 22, 2011, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.
By decision dated November 28, 2011, OWCP vacated the May 8, 2008 decision as
appellant’s representative had not been served with the decision. It reissued the decision, with
proper service, on November 29, 2011, but failed to include appeal rights.
By decision dated December 6, 2011, again OWCP reissued the May 8, 2008 decision
with proper appeal rights.
On December 12, 2011 appellant requested an oral hearing which was held on
April 12, 2012. He submitted an April 11, 2012 report from Dr. Martin who diagnosed acute
stress reaction and post-traumatic stress disorder, prolonged. Dr. Martin noted that appellant’s
work-related condition was present and disabling from his work at the employing establishment
and had not resolved. She noted that appellant was currently working a part-time job and noted
that appellant became sensitive to the usual stresses of the job triggering flashbacks from his
employment injury. Dr. Martin noted that appellant could only work part time four hours per
day.
In a decision dated August 6, 2012, the hearing representative affirmed the finding that
appellant’s actual earnings as a full-time reservations representative represented appellant’s
wage-earning capacity as of October 28, 2007 and found that appellant had not established that
modification of the wage-earning capacity determination was required.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of FECA2 provides that in determining compensation for partial
disability, “the wage-earning capacity of an employee is determined by his actual earnings if his
earnings fairly and reasonably represent his wage-earning capacity.”3 OWCP procedures
indicate that a determination regarding whether actual wages fairly and reasonably represent
wage-earning capacity should be made after a claimant has been working in a given position for
more than 60 days,4 and OWCP may determine wage-earning capacity retroactively after the
claimant has stopped work,5 actual earnings will be presumed to fairly and reasonably represent
wage-earning capacity only in the absence of contrary evidence.6
OWCP’s procedure manual states that, when an employee cannot return to the date-ofinjury job because of disability due to work-related injury or disease, but does return to
alternative employment, the claims examiner must determine whether the earnings in the
alternative employment fairly and reasonably represent the employee’s wage-earning capacity.7
ANALYSIS -- ISSUE 1
In the present case, appellant was a full-time employee development specialist at level
GS-9 step 5 when he stopped work with an annual salary of $43,664.00. OWCP accepted his
claim for acute stress reaction and post-traumatic stress disorder. Appellant stopped work on
July 30, 2003. Based on his medical release from Dr. Martin, appellant returned to work on
October 29, 2007, in a permanent full-time position as an American Airline reservation
representative. The pay in that position was $382.48 per week. The job description noted that
appellant would answer incoming calls, assist customers in reaching solutions to their needs,
apply sales techniques while providing schedules, fare and flight information to customers,
respond to callers inquiries in the nonairline-related ventures and operate a computer terminal
and standard keyboard. The job required a minimum age of 18, a high school diploma or GED,
an ability to work a variety of shifts, full-time work, 40 hours per week and the ability to read,
write, fluently speak and understand English. The position was in compliance with the medical
restrictions set forth by Dr. Martin. OWCP noted that this decision was initially issued on
May 8, 2008; however, appellant’s attorney was not sent a copy of the original decision.
Therefore, on November 28, 2011 the May 8, 2008 decision was vacated and reissued on
December 6, 2011.
2

Id.

3

Id. at § 8115(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997); see William D. Emory, 47 ECAB 365 (1996).
5

Id. at Chapter 2.814.7(e) (July 1997).

6

See Mary Jo Colvert, 45 ECAB 575 (1994).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).

4

OWCP properly determined that appellant has actual earnings resulting from his work as
an American Airlines reservation representative beginning October 29, 2007 and continuing
through August 7, 2008. Generally, wages actually earned are the best measure of a wageearning capacity and, in the absence of evidence showing they do not fairly and reasonably
represent the injured employee’s wage-earning capacity must be accepted as such measure.8
OWCP determined that appellant’s current position provided him with a wage-earning capacity.
It compared his actual weekly earnings in his new job, $382.48, to the current pay rate of his
date-of-injury job, $1,011.98. This showed that appellant had the capacity to earn 38 percent of
his previous wages, but still had a 62 percent loss of wage-earning capacity as a result of his
employment injury, for which he remained entitled to compensation. OWCP concluded that the
position of full-time reservations representative fairly and reasonably represented his wageearning capacity and was considered suitable to his partially disabled condition. It confirmed
that appellant had completed 60 days of successful work in the job. The Board finds that the
American Airlines reservation representative position that appellant began working on
October 29, 2007 is consistent with his work restrictions and abilities. Appellant worked in the
position for over 60 days. His performance of this position in excess of 60 days is persuasive
evidence that the position represents his wage-earning capacity.9 Moreover, there is no evidence
that the position was seasonal, temporary or make-shift work designed for appellant’s particular
needs.10 OWCP thus properly determined appellant’s wage-earning capacity.11
LEGAL PRECEDENT -- ISSUE 2
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.12 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.13 OWCP’s procedure manual provides that, if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.14 In this instance
the claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.15

8

Dennis E. Maddy, 47 ECAB 259 (1995).

9

See supra note 4.

10

Elbert Hicks, 49 ECAB 283 (1998).

11

Gregory A. Compton, 45 ECAB 154 (1993).

12

D.M., 59 ECAB 164 (2007).

13

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
15

Federal (FECA) Procedure Manual, supra note 4. See Harley Sims, Jr., 56 ECAB 320 (2005).

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
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.16 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.17
ANALYSIS -- ISSUE 2
OWCP accepted that appellant developed work-related acute stress reaction and posttraumatic stress disorder.
Appellant accepted the position of a full-time reservation
representative for American Airlines on October 29, 2007. On December 6, 2011 OWCP
reissued the May 8, 2008 decision and found that he could perform the duties of a reservation
representative with American Airlines and reduced his compensation to reflect his wage-earning
capacity in this job. The question is whether appellant established that the December 6, 2011
wage-earning capacity decision should be modified.
Once OWCP established the wage-earning capacity, it is appellant’s burden to establish a
change in his condition that would render him unable to perform those duties.18 Appellant has
contended that reports from Dr. Martin establish that he was no longer able to work full time
because he became overwhelmed with the stress of his reservation representative position and
had flashbacks of his work-related condition. The Board finds that the record does not contain
medical evidence establishing that appellant’s accepted work-related conditions, acute stress
reaction and post-traumatic stress disorder, had materially changed during the period in question.
Appellant submitted reports from Dr. Martin dated April 2, 2008 to March 31, 2011, who
diagnosed acute stress reaction and post-traumatic stress disorder. She noted that appellant’s
work-related condition was present and disabling. Dr. Martin noted that appellant was currently
working a part-time job and experienced persistent difficulty remembering codes, he became
overwhelmed with the extreme stress of the high volume, fast-paced airline call center, and
strained to handle demanding, irate callers some of whom cursed at him with racial slurs.
Appellant reported that his current part-time schedule allowed him to accumulate less daily stress
from which to recover. Similarly, in an April 11, 2012 report, Dr. Martin noted diagnoses and
indicated that appellant became sensitive to the usual stresses of his job triggering flashbacks
from his employment injury. Appellant reported performing his job functions for eight hours per
day for 11 months and becoming overwhelmed with the extreme stress that he converted his job
to half time. Dr. Martin noted that appellant still experienced extreme anxiety, poor
concentration but believed his current part-time schedule allowed him to accumulate less stress.
These reports are insufficient to establish a material change in appellant’s accepted
conditions warranting modification of the 2011 wage-earning capacity determination.
16

See D.M., supra note 3; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
17

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

18

Phillip S. Deering, 47 ECAB 692 (1996).

6

Dr. Martin did not describe a change of the accepted conditions or explain how the accepted
conditions had materially worsened such that appellant was unable to work as a reservation
representative full time.19 Rather, he appears to attribute a worsening of appellant’s emotional
condition to new job stressors, including remembering codes, dealing with the extreme stress of
the high volume, fast-paced airline call center, and handling demanding and irate callers, which
were factors associated with his employment as a reservation representative. The exposure to the
new job stressors is unrelated to appellant’s prior federal employment.
For these reasons, appellant has not established that the December 6, 2011 wage-earning
capacity determination should be modified.
On appeal appellant asserts that the wage-earning capacity should be based on his parttime employment that he held since 2008 and not on his full-time employment for eight months.
He contends that he could not handle the job on a full-time basis because it was more stressful
than anticipated and references the opinion of Dr. Martin, his psychiatrist. As noted above,
Dr. Martin did not describe a change of the accepted conditions or explain how the accepted
conditions had materially worsened such that appellant was unable to work as a reservation
representative full time.20 Rather, he appears to attribute a worsening of appellant’s condition to
new job stressors associated with his employment as a reservation representative which is
unrelated to his prior federal job.
Appellant also asserts that the December 6, 2011 decision was a retroactive wage-earning
capacity determination and that it did not conform to the guidelines as set forth in OWCP’s
procedure manual.21 The Board notes that the December 6, 2011 OWCP decision was not a
retroactive wage-earning capacity determination, rather OWCP reissued the May 8, 2008 wageearning capacity determination because appellant’s counsel was not sent a copy of the original
decision.
CONCLUSION
The Board therefore finds that OWCP properly determined the full-time reservation
representative with American Airlines which appellant performed fairly and accurately

19

Where residuals of an accepted employment-related condition prevent an employee from performing regular
duties, physical ailments that preexisted the accepted condition must be taken into consideration. Physical ailments
acquired subsequent to and unrelated to the accepted injury are excluded from any wage-earning capacity
determination. Lee A. Dent, 54 ECAB 704 (2003).
20

Id.

21

The Federal (FECA) Procedure Manual provides that OWCP may make a retroactive wage-earning capacity
determination if an employee has worked in the position for at least 60 days, the position fairly and reasonably
represented his or her wage-earning capacity and the work stoppage did not occur because of any change in the
injury-related condition affecting the ability to work. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7(e) (October 2009). A retroactive wageearning capacity would not have been improper in this case, given the finding that appellant’s reduction in work
hours was not due to his injury-related condition.

7

represented his wage-earning capacity. The Board further finds that OWCP properly denied
modification of the established December 6, 2011 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 6, 2012 is affirmed.
Issued: July 18, 2013
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

8