United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
E.P., Appellant
and
U. S. POSTAL SERVICE ,
POST OFFICE, North Metro, GA, Employer
_________________________________________

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

Docket No. 11-614
Issued: November 2, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from the December 27, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 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 schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than an 11 percent permanent impairment of his left upper extremity, for which he received a
schedule award.
FACTUAL HISTORY
On September 10, 2008 appellant, then a 38-year-old letter carrier, filed a traumatic
injury claim alleging that on September 2, 2008, he sustained an injury to his left shoulder and
arm when reaching for mail trays in the performance of duty. On January 28, 2009 OWCP
1

5 U.S.C. § 8101 et seq.

accepted his claim for left shoulder strain, left trapezius strain and cervical strain. Appellant
received appropriate compensation benefits.2
On March 23, 2010 appellant filed a (Form CA-7) claim for a schedule award. In an
April 14, 2010 letter, OWCP informed him of the type of medical evidence needed to establish
his claim for a schedule award.
In an April 26, 2010 report, Dr. Murray Robinson, a Board-certified neurological
surgeon, noted that appellant had a one-level anterior cervical fusion 10 months ago and
continued with neck and radiating left arm pain towards the middle finger. He indicated that
appellant was working six hours of regular work with a weight restriction and two hours of
restricted duty. Dr. Robinson examined appellant and noted that he had diffuse weakness in the
left upper extremity with reflexes intact, decreased sensation towards the middle finger and
cervical range of motion limited to 10 degrees towards the left secondary to pain. He indicated
that appellant’s postoperative magnetic resonance imaging (MRI) scan revealed adequate
decompression. Dr. Robinson noted that appellant was unable to rotate past 10 degrees towards
the left and had shoulder range of motion restricted with overhead work because of the cervical
disc disease and cervical radiculopathy. He advised that appellant had diffuse decreased
weakness in the left upper extremity groups, which included the deltoid, biceps, triceps, wrist
extensors and hand intrinsic with decreased sensation towards the middle finger. Dr. Robinson
determined that appellant had subjective complaints which included left hand pain and numbness
and neck pain. He determined that appellant had a 25 percent whole body impairment as a result
of his one fused cervical level and continued to have cervical radiculopathy “as per the cervical
spine chart.” Dr. Robinson advised that appellant had permanent restrictions and reached
maximum medical improvement.
In a May 12, 2010 report, OWCP’s medical adviser noted appellant’s history of injury
and treatment and referred to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, hereinafter (A.M.A., Guides) (6th ed. 2008). He explained that the
anterior cervical fusion at C6-7 was performed on June 2, 2009 with disappointing results and
that appellant was “back at work, mostly.” OWCP’s medical adviser explained that while
Dr. Robinson determined whole person impairment, OWCP did not recognize spinal or whole
person impairments. He stated that OWCP directed the use of the A.M.A., Guides
July/August 2009 newsletter for rating spinal nerve extremity impairment under the sixth edition
of the A.M.A., Guides. OWCP’s medical adviser indicated that the rating for a C7 moderate
sensory deficit would correspond to two percent extremity. Additionally, the rating for a C7
moderate motor loss would correspond to nine percent impairment. OWCP’s medical adviser
added the two values for 11 percent impairment to the left upper extremity.
By decision dated May 17, 2010, OWCP granted appellant a schedule award for 11
percent permanent impairment of the left upper extremity.
On May 21, 2010 appellant requested a hearing, which was held on October 12, 2010.
During the hearing, he referred to a September 13, 2010 report from his treating physician,
2

The record reflects that appellant underwent a cervical fusion on June 2, 2009.

2

Dr. Robinson, who noted that appellant had decreased sensation in his index finger as well as his
middle finger. OWCP also received a copy of appellant’s report.
In an October 25, 2010 report, Dr. Robinson noted that appellant was post one-level
anterior cervical discectomy and fusion. He determined that appellant continued to show “5-/5”
motor strength throughout the left upper extremity which included the wrist extensors and triceps
with obvious atrophy of the forearm musculature, left compared to right side, with decreased
sensation to light touch in the index and middle fingers. Dr. Robinson opined that appellant had
a permanent chronic cervical radiculopathy causing decreased sensation and muscle atrophy
secondary to a cervical disc herniation.
By decision dated December 27, 2010, OWCP’s hearing representative affirmed the
May 17, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. For decisions issued after May 1, 2009, the A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.5
ANALYSIS
The Board finds that this case is not in posture for decision. 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 in the development
of the evidence to see that justice is done.6
Appellant’s claim was accepted for left shoulder strain, left trapezius strain and cervical
strain. On March 23, 2010 he filed a Form CA-7 claim for a schedule award.
In support of his claim for a schedule award, appellant provided an April 26, 2010
impairment rating from Dr. Robinson, who noted appellant’s findings and determined that
appellant had 25 percent whole body impairment as a result of his one fused cervical level.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

FECA Bulletin No. 09-03 (issued March 15, 2009). A.M.A., Guides (6th ed. 2008).

6

Horace L. Fuller, 53 ECAB 775, 777 (2002).

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FECA, however, does not provide a schedule award based on whole person impairments.7 Thus,
this report would be of limited probative value.
Board precedent is well settled that when an attending physician’s report gives an
estimate of impairment but does not address how the estimate is based upon the A.M.A., Guides
OWCP may follow the advice of its medical adviser where he or she has properly applied the
A.M.A., Guides.8
OWCP’s medical adviser provided an opinion that appellant had 11 percent impairment
of the left upper extremity. He properly referenced the A.M.A., Guides newsletter9 used to
determine extremity ratings from spinal nerve impairment. OWCP’s medical adviser noted that
the rating for a C7 moderate sensory deficit would correspond to a two percent extremity and the
rating for a C7 moderate motor loss would correspond to a nine percent impairment and added
the values an 11 percent impairment to the left upper extremity. However, he did not refer to or
disclose any specific tables or charts of the A.M.A., Guides or the newsletter to support how he
arrived at his conclusion. OWCP’s medical adviser report is therefore of limited probative value.
Accordingly, OWCP did not properly discharge its responsibilities in developing the record.10
For this reason, the record should be remanded to it for further development.
On remand OWCP should further develop the medical evidence of record by requesting
that its medical adviser provide a reasoned opinion regarding appellant’s left arm impairment
explaining the basis of impairment under the A.M.A., Guides, based upon a review of pertinent
examination findings, such as range of motion and review of diagnostic test results. If OWCP’s
medical adviser is unable to render a reasoned opinion fully explaining the application of the
Guides, OWCP shall refer appellant to an appropriate Board-certified specialist for a second
opinion regarding the extent of his left arm impairment under the A.M.A., Guides and OWCP
procedures. Following this and any other further development as deemed necessary, OWCP
shall issue an appropriate merit decision on appellant’s schedule award claim.
On appeal, appellant contends that OWCP’s medical adviser did not consider all of his
accepted conditions and did not sufficiently explain the basis of his impairment rating. As noted,

7

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
8

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
9

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries
as extremity impairment. Recognizing that certain jurisdictions, such as under FECA, mandate ratings for
extremities and preclude ratings for the spine, the A.M.A., Guides has offered an approach to rating spinal nerve
impairments consistent with sixth edition methodology. Christopher R. Brigham, M.D., Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition, The Guides Newsletter (A.M.A., Chicago, Ill.), July/August 2009.
OWCP has adopted this approach for rating impairment to the upper or lower extremities caused by a spinal injury.
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibits 1,
4).
10

See supra note 6.

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the Board is remanding the case for further medical development regarding the extent of
appellant’s left arm impairment.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: November 2, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

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

Docket No. 14-0253
Issued: June 26, 2015

Case Submitted on the Record

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

JURISDICTION
On November 9, 2013 appellant filed a timely appeal from the May 16, 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.2

1

5 U.S.C. §§ 8101-8193. Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from
the date of issuance of an OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate
Boards. See 20 C.F.R. § 501.3(e)-(f). One hundred and eighty days from May 16, 2013, the date of OWCP’s last
decision, was November 12, 2013. Since using November 15, 2013, the date the appeal was received by the Clerk
of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is November 9, 2013, rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

Appellant submitted additional evidence after OWCP’s May 16, 2013 decision, but the Board cannot consider such
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

ISSUES
The issues are: (1) whether appellant met her burden of proof to modify her wageearning capacity; and (2) whether OWCP properly modified the pay rate at her wage-earning
capacity, determination.
FACTUAL HISTORY
OWCP initially accepted that on November 4, 2009 appellant, then a 42-year-old nurse,
sustained a neck sprain and peripheral autonomic neuropathy due to pushing a mail cart and
performing other repetitive work duties on that date. It later accepted the condition of
degeneration of cervical intervertebral disc. Appellant stopped work on November 4, 2009.
Appellant received continuation of pay for the period November 4 to December 19, 2009.
On June 1, 2010 she completed a claim for compensation (Form CA-7) alleging that she was
entitled to receive compensation for the period December 20, 2009 to July 3, 2010. On the
portion of the CA-7 form to be completed by the employing establishment, Ruby Williams, a
workers’ compensation program coordinator, noted that appellant had a base salary of $16.84 per
hour and combined Saturday and Sunday premium pay of $39.52 per week. The record contains
two additional versions of the employing establishment portion of the CA-7 form, which were
completed by James Rutherford, a payroll supervisor.
In one version, Mr. Rutherford stated that appellant had a base salary of $19.76 per hour
and received Saturday premium pay of $39.52 every two weeks, Sunday premium pay of $39.52
every two weeks, retention pay of $142.27 every two weeks, and holiday pay totaling $316.16
(for working December 25, 2009 and January 1, 2010).
In the other version, Mr. Rutherford noted that appellant had a base salary of $20.10 per
hour and received Saturday premium pay of $40.16 every two weeks, Sunday premium pay of
$40.16 every two weeks, retention pay of $142.27 every two weeks, and holiday pay totaling
$482.40 (for working January 18, February 15, and May 30, 2010).
In a June 15, 2010 letter, appellant asserted that the employing establishment provided
improper pay information on the CA-7 form she completed on June 1, 2010. She claimed that
the employing establishment provided incorrect figures for her base hourly pay and for Saturday
and Sunday premium pay. Appellant also alleged that her retention pay had been omitted. She
claimed that, on the date of her November 14, 2009 work injury, she had base pay of $19.76 per
hour, Saturday premium pay of $39.68 every two weeks, Sunday premium pay of $39.68 every
two weeks, and retention pay of $142.27 every two weeks. Appellant also indicated that she
received holiday premium pay of $316.16 (for pay period 26 of pay year 2008).
Appellant began receiving disability compensation on the daily rolls, effective
December 20, 2009. She later received compensation on the periodic rolls. The record reflects
that appellant’s wage-loss compensation was based on a weekly pay rate of $715.52 for the
period December 20, 2009 to July 3, 2010. The record further reflects that her wage-loss
compensation was based on pay rate of $832.74 for the period July 4 to August 28, 2010 and a
pay rate of $908.68 for the period August 29 to October 23, 2010.

2

In August 20 and September 24, 2010 letters, OWCP requested that the employing
establishment provide additional information about appellant’s pay including any pay for
premium pay categories.
By letter dated October 4, 2010, the employing establishment provided information
regarding “computation of pay” for appellant with respect to the period November 4, 2008 to
November 4, 2009. It attached pay sheets which detailed her pay in various pay categories for
each of the 26 two-week pay periods that ran from November 4, 2008 to November 4, 2009.
OWCP indicated that pay sheets of record showed that, on November 4, 2009, appellant’s base
salary was $793.06 per week.3 The records and worksheets indicated that, in the year prior to
November 4, 2009, she had, on the average, $4.56 in weekly night differential pay, $15.26 in
weekly Saturday premium pay, $15.17 in weekly Sunday premium pay, $12.10 in weekly
holiday pay, and $51.93 in weekly retention pay.
On October 20, 2010 OWCP calculated appellant’s weekly pay rate to be $892.08 based
on the following weekly figures: base pay of $793.06, Saturday premium pay of $15.26, Sunday
premium pay of $15.17, night differential of $4.56, holiday pay of $12.10, and retention pay of
$51.93. Based on this information, appellant received wage-loss compensation based on a pay
rate of $892.08 for the period October 24, 2010 and continuing.
On October 29, 2010 appellant received a check in the amount of $3,488.10, which was
to compensate her for wage-loss compensation she failed to receive due to its previous use of
improper pay rates for the period December 20, 2009 to October 23, 2010. The record contains
documents, including a Manual Adjustment Form, regarding the calculation of her compensation
for the period December 20, 2009 to October 23, 2010.
In January 2011, appellant began participating in an OWCP-sponsored vocational
rehabilitation program, but her participation in the program did not result in her being retrained
for a new position. On May 23, 2011 she underwent nonwork-related surgery for a thyroid
condition. In a June 10, 2011 note, Dr. Deon Faillace, an attending general surgeon, allowed
appellant to return to work in mid to late July 2011.
On June 15, 2011 appellant accepted a modified position with the employing
establishment as a medical technician and she began working in this position on
August 29, 2011.4 The medical technician job, which involved drawing blood for laboratory
testing, was sedentary in nature and required lifting of up to 10 pounds. In a September 2, 2011
letter, OWCP advised appellant that her compensation would be reduced to reflect her actual
earnings as a medical technician.
In a November 4, 2011 decision, OWCP reduced appellant’s wage-loss compensation
effective August 29, 2011 based on its finding that her actual wages as a medical technician
fairly and reasonably represented her wage-earning capacity. It noted that, because she had
3

The Board notes that the documents of record, including earnings and leave statements, actually showed that
appellant earned a slightly higher amount of $793.10 per week ($41,241.00 per year divided by 52 weeks).
4

Appellant received pay of $41,947.00 per year or $806.67 per week as a medical technician.

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shown the ability to perform the duties of the job for 60 days or more, the position was
considered suitable to her partially disabled condition. OWCP then applied the Shadrick formula
to calculate appellant’s loss of wage-earning capacity.5 This calculation showed that, effective
August 29, 2011, appellant had a loss of wage-earning capacity of 10 percent. The payment of
wage-loss compensation, though reduced due to a change in her loss of wage-earning capacity,
continued to be based on a pay rate of $892.08 per week.6
On November 23, 2011 appellant filed a claim alleging a recurrence of disability on
November 14, 2011. She asserted that she recently had a significant worsening of symptoms
related to her November 4, 2009 work injury.
In a November 17, December 2 and 5, 2011 reports, Dr. Carolyn Sampson, an attending
Board-certified family practitioner, reported that on November 14, 2011 appellant experienced
an increase in neck and right arm pain due to sustaining a new traumatic injury at work. On
November 30, 2011 Dr. Gabriel Pantol, an attending Board-certified neurosurgeon, examined
appellant who complained of pain and paresthesias in her right arm. Appellant attributed the
pain to a work-related injury.
By decision dated December 27, 2011, OWCP denied appellant’s recurrence of disability
claim as she had not submitted sufficient medical evidence.
In a March 21, 2012 decision, an OWCP hearing representative set aside the
December 27, 2011 decision finding that OWCP had not considered appellant’s request for
modification of its November 4, 2011 wage-earning capacity decision. As the claim should have
been construed as a request for modification of the wage-earning capacity decision, the case was
remanded to OWCP. On that same date OWCP issued a formal decision denying modification
of the wage-earning capacity decision.
In a March 8, 2012 report, received on March 23, 2012, Dr. Sampson indicated that
appellant was disabled from all work. She did not indicate what specific medical condition or
conditions caused appellant’s disability from work.7
By later dated March 28, 2012, appellant, through counsel, requested a telephone hearing
of the March 21, 2012 decision. This request was later withdrawn on July 9, 2012 by counsel.

5

5 ECAB 376 (1953). See infra notes 18 through 20.

6

On November 14, 2011 appellant stopped work and, under a separate OWCP claim, she filed a claim alleging
that she had a new right shoulder injury on November 14, 2011 due to moving patients and engaging in other work
duties that required bending, twisting, and lifting. Her claim was approved for rotator cuff syndrome and allied
disorders of her right shoulder and she began to receive compensation for total wage loss on the periodic rolls.
Appellant’s receipt of wage-loss compensation beginning November 14, 2011 under this separate OWCP file is not
the subject of the present appeal.
7

In a November 17, 2011 form report, Dr. Sampson indicated that appellant was totally disabled from
November 15 to December 5, 2011 and partially disabled thereafter. She generally indicated that appellant’s
symptoms were “triggered” by the repetitive use of her right arm after the August 2011 return to work.

4

In a September 13, 2012 letter, appellant claimed that OWCP had underpaid her
compensation for the period December 20, 2009 to August 28, 2011. She provided calculations
of claimed compensation underpayment for various sub-periods within this period which were
based on a pay rate for compensation purposes of $927.50 per week. Appellant filed a request
for reconsideration, dated September 13, 2012, of the November 4, 2011 wage-earning capacity
decision.
Several forms completed by Mr. Rutherford were added to the record. In a December 5,
2012 document, he provided a detailed chart showing appellant’s various premium pay
categories for the year (comprised of 26 pay periods) prior to her November 4, 2009 injury. The
document shows that, on the average for this period, appellant earned $4.56 in night differential
pay, $15.26 in Saturday premium pay, $15.17 in Sunday premium pay, $9.15 in holiday pay and
$51.98 in retention pay.8 Other documents showed that her base pay on the date of injury was
$41,241.00 per year or $793.10 per week. In a December 12, 2012 document, Mr. Rutherford
indicated that appellant did not work at all during the holiday of pay period 26 in 2008 and noted
that the previous calculation of $12.10 per week, which represented her holiday pay for the year
prior to November 4, 2009 divided by 52, was incorrect as the figure for holiday pay for the year
prior to November 4, 2009 improperly included $153.36 for pay period 26 in pay year 2008. The
correct figure for holiday pay was $9.15 per week.
OWCP then calculated appellant’s weekly pay rate using the corrected amounts provided
by the employing establishment to include base pay in effect at the time of injury ($793.10 per
week) and additional amounts based on the weekly average of each of the premium pay
categories earned for one year prior to the injury, including night differential pay of $4.56,
Saturday premium pay of $15.26, Sunday premium pay of $15.17, holiday pay of $9.15, and
retention pay of $51.98. These figures added together equaled pay of $889.22 per week.
In a December 12, 2012 decision, OWCP affirmed the November 4, 2011 wage-earning
capacity determination. It noted that, because appellant had demonstrated the ability to perform
the duties of the job for 60 days or more, the position of medical technician was considered
suitable to her partially disabled condition.9 However, it was determined that there was an error
in her pay rate for compensation purposes as the evidence of record showed that her actual pay
rate for compensation purposes was $889.22 rather than $892.08. OWCP noted that it calculated
an improper pay rate at the time of its November 4, 2011 wage-earning capacity determination
because it used an incorrect figure for holiday pay for the year prior to November 4, 2009. The
November 4, 2011 wage-earning capacity determination was modified to reflect the correct pay
rate for compensation purposes.
Appellant’s counsel on December 18, 2012 requested a telephone hearing.10
8

It should be noted that Mr. Rutherford reported retention pay of $51.98 per week, a figure which is slightly
higher than the previously reported retention pay of $51.93 per week. The $51.98 figure is supported by the new
documentation submitted by Mr. Rutherford.
9

OWCP also found that appellant had not submitted medical evidence showing a change in her condition, related
to the accepted work injuries, prevented her from working as a medical technician.
10

On January 11, 2013 counsel withdraw the earlier request for hearing.

5

In a January 3, 2013 decision, OWCP formerly modified the pay rate for compensation
purposes for the wage-earning capacity decision of $889.22 per week. It applied the Shadrick
formula to calculate appellant’s loss of wage-earning capacity,11 and beginning January 13,
2013, she received wage-loss compensation based on the new pay rate of $889.22.
Appellant requested on February 2, 2013 a review of the written record by an OWCP
hearing representative and continued to claim that she had been paid improper amounts of
compensation by OWCP. In a February 1, 2013 letter, she provided calculations of claimed
compensation underpayment for the period December 20, 2009 to August 28, 2011, which were
similar to those contained in her September 13, 2012 letter.
Appellant advised OWCP on March 12, 2013 that Alan Shapiro was no longer the
representative.
In a May 16, 2013 decision, the hearing representative affirmed OWCP’s January 3, 2013
decision noting that OWCP’s wage-earning capacity determination was properly modified to
reflect an error in the pay rate for compensation purposes.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.12 A determination as to
whether actual earnings fairly and reasonably represents one’s wage-earning capacity should be
made only after an employee has worked in a given position for more than 60 days.13
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.14 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.15
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings. A job that is part time (when the claimant was a full-time employee at
the time of injury), seasonal in an area where year-round employment is available, or temporary
(when the date-of-injury position was a permanent position) is generally not appropriate for a
11

See infra notes 18 through 20.

12

E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7c (December 1993).
14

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

15

See T.M., Docket No. 08-975 (issued February 6, 2009).

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wage-earning capacity determination.16 In addition, it is well established that a position that is
considered an odd-lot or makeshift position designed for a claimant’s particular needs is not
appropriate for a wage-earning capacity determination.17
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”18 Section
8101(4) of FECA defines “monthly pay” for purposes of computing compensation benefits as
follows: “[T]he monthly pay at the time of injury, or the monthly pay at the time disability
begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins
more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater....”19
The formula for determining loss of wage-earning capacity has been codified at section
10.403(c)-(e) of OWCP’s regulations.20 Under the Shadrick formula, OWCP calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s actual
earnings (or constructed earnings) by the current or updated pay rate for the position held at the
time of injury.21 The employee’s wage-earning capacity in dollars is computed by first
multiplying the pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(a) as the pay
rate at the time of injury, the time disability begins or the time disability recurs, whichever is
greater, by the percentage of wage-earning capacity. The resulting dollar amount is then
subtracted from the pay rate for compensation purposes to obtain loss of wage-earning
capacity.22 It has been administratively determined that certain pay elements will be included in
computing an employee’s pay rate, including night or shift differential, Saturday premium,
Sunday premium, holiday and retention pay.23

16

Federal (FECA) Procedure Manual, supra note 13 at, Chapter 2.814.7a (July 1997).

17

See A.J., Docket No. 10-619 (issued June 29, 2010).

18

5 U.S.C. § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
19

Id. at § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002). The Board has held that if an employee has one recurrence of disability which meets the requirements
of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the employee to a new
recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
20

20 C.F.R. § 10.403(c)-(e).

21

Id. at § 10.403(c)-(d).

22

Id. at § 10.403(e).

23

See Federal (FECA) Procedure Manual, supra note 13 at, Determining Pay Rates, Chapter 2.900.6b
(March 2011).

7

ANALYSIS
OWCP initially accepted that on November 4, 2009 appellant sustained a neck sprain and
peripheral autonomic neuropathy due to performing her work duties on that date. It later
accepted the condition of degeneration of cervical intervertebral disc. Appellant stopped work
but later returned to work for the employing establishment in the modified position of medical
technician. In a November 4, 2011 decision, OWCP made a formal wage-earning capacity
determination. It found that appellant’s actual earnings as a medical technician fairly and
reasonably represented her wage-earning capacity. OWCP noted that she had been performing
the job for more than 60 days as she began the job on August 29, 2011.
Appellant later requested modification of OWCP’s November 4, 2011 wage-earning
capacity determination. In December 12, 2012 and January 3, 2013 decisions, OWCP
considered her request for modification of its prior wage-earning capacity determination. The
Board finds that OWCP properly modified its November 4, 2011 wage-earning capacity
determination to correct a minor error in the pay rate for compensation purposes and that it
properly found that appellant had failed to establish that the November 4, 2011 wage-earning
capacity determination should be modified on any other basis.
OWCP conducted an evaluation of the November 4, 2011 wage-earning capacity
determination under the first basis for modifying a wage-earning capacity determination, i.e.,
whether the original wage-earning capacity determination was erroneous. It properly determined
that appellant’s actual wages in the position of medical technician fairly and reasonably
represented her wage-earning capacity. OWCP noted that, because she had demonstrated the
ability to perform the duties of the job for 60 days or more, the position was considered suitable
to her partially disabled condition. Appellant had been working in the position since August 29,
2011 when OWCP issued its November 4, 2011 wage-earning capacity decision.24 She failed to
establish that the medical technician position constituted part-time, sporadic, seasonal, or
temporary work or that the position was a makeshift position designed for her particular needs.25
OWCP, on its own properly determined that there was an error in appellant’s pay rate as
the evidence of record showed that her actual pay rate for compensation purposes was $889.22
rather than the $892.08 figure used at the time of the November 4, 2011 determination. In
December 2012, Mr. Rutherford, a payroll supervisor for the employing establishment,
submitted new documentation regarding her pay rate for compensation purposes at the time of
her November 4, 2009 work injury. This information included base pay in effect at the time of
November 4, 2009 injury and the additional amounts based on the total amount of extra premium
pay earned for one year prior to the injury. It was appropriate to base appellant’s pay rate on the
date-of-injury pay (November 4, 2009) because she did not qualify for a recurrent pay rate under
the strictures of FECA.26

24

See supra notes 12 and 13.

25

See supra notes 16 and 17.

26

See supra notes 18 and 19.

8

With respect to the various categories of premium pay, it was appropriate to calculate, as
dictated by OWCP procedure, the weekly averages of the amounts appellant received in the year
prior to November 4, 2009.27 Appellant’s pay rate included base pay per week of $793.10, night
differential of $4.56, Saturday premium pay of $15.26, Sunday premium pay of $15.17, holiday
pay of $9.15, and retention pay of $51.98. OWCP properly determined that these figures added
together equaled her pay of $889.22 per week. It noted that it had calculated an improper pay
rate at the time of its November 4, 2011 wage-earning capacity determination because it had
used an incorrect figure for holiday pay for the year prior to November 4, 2009. Mr. Rutherford
had indicated that appellant had holiday pay of $9.15 per week, rather than the previously
calculated $12.10 per week.
Before OWCP and on appeal, appellant argued that OWCP did not use a proper pay rate
for compensation purposes either in its November 4, 2011 wage-earning capacity determination
or after it modified that determination in its December 12, 2012 and January 3, 2013 decisions.
She suggested that the proper pay for compensation purposes should have been $927.50 per
week. However, appellant did not provide a clear explanation of what pay components (i.e.,
weekly base pay and premium pay categories) comprised this pay rate figure and the evidence of
record does not substantiate the use of this figure. The Board further notes that, after modifying
its November 4, 2011 wage-earning capacity determination, OWCP properly carried out a
calculation under the Shadrick formula to determine her loss of wage-earning capacity and
entitlement to compensation. Appellant has not provided any evidence or argument showing that
OWCP’s calculation under the Shadrick formula was improper and the evidence of record
supports the figures used by OWCP in this calculation.28
The Board also finds that appellant failed to establish that OWCP’s original wage-earning
capacity determination should be modified on any other basis. For example, appellant did not
show that there was a material change in the nature and extent of her injury-related condition
(i.e., the November 4, 2009 work injury) such that she could not work as a medical technician.29
In a March 8, 2012 report, Dr. Sampson, an attending Board-certified family practitioner, found
that appellant was disabled from all work, but she failed to state what specific medical condition
or conditions caused her disability from work. The record contains other reports in which
attending physicians noted that appellant reported an increase in neck and right arm symptoms in
November 2011, but none of these reports establish a worsening of the November 4, 2009 work
conditions which prevented her from working as a medical technician.30 In addition, there is no

27

See supra note 23.

28

See supra notes 20 through 22.

29

See supra notes 14 and 15.

30

Under a separate claim file, OWCP accepted that on November 14, 2011 appellant sustained a new traumatic
injury due to moving patients and engaging in other work duties that required bending, twisting, and lifting.
Appellant’s claim was approved for rotator cuff syndrome and allied disorders of her right shoulder and she began to
receive compensation for total wage loss on the periodic rolls. The effects of the November 14, 2011 injury are not
relevant to the issue of the present case, as OWCP’s wage-earning capacity determinations in the present case
evaluated appellant’s wage-earning capacity relative to her November 4, 2009 work injury.

9

evidence that further modification of the wage-earning capacity determination is warranted on
the basis that appellant had been retrained or otherwise vocationally rehabilitated.31
With respect to the denial of her request for modification of OWCP’s wage-earning
capacity determination, 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.
The Board notes that, in several communications, including in September 13, 2012 and
February 1, 2013 letters, appellant claimed that OWCP underpaid her compensation for the
period December 20, 2009 to August 28, 2011. Appellant provided detailed calculations of
claimed underpayment of compensation for various sub-periods within this period.
OWCP has not addressed appellant’s claim in this regard. The question of whether
appellant received the correct amount of compensation for the period December 20, 2009 to
August 28, 2011 is separate and distinct from issues presently before the Board. Upon return of
the case record, OWCP should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that OWCP made a proper determination regarding appellant’s wageearning capacity, including its determination regarding her request for modification of its wageearning capacity determination.

31

See supra notes 14 and 15.

10

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11


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

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

Docket No. 08-2417
Issued: July 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 3, 2008 appellant filed a timely appeal of the September 6, 2007 and
March 26, 2008 merit decisions of the Office of Workers’ Compensation Programs, which
terminated his wage-loss compensation benefits and the June 17, 2008 nonmerit decision
denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation effective September 14, 2007; and (2) whether the Office properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).1

1

On December 27, 2007 the Office found that appellant received an overpayment of compensation in the amount
of $3,678.25 because he received compensation for lost wages at an incorrect pay rate. Appellant did not seek
review of this overpayment decision. Therefore, the Board will not address the December 27, 2007 decision in this
appeal.

FACTUAL HISTORY
On June 23, 2006 appellant, then a 50-year-old mail carrier, filed an occupational disease
claim alleging that he sustained injuries to his back due to repetitive employment activities. He
stopped working on July 5, 2006. The Office accepted the claim for aggravation of degenerative
disc disease of the lumbar spine and appellant was placed on the periodic rolls.
Appellant was treated by Dr. Kelvin D. White, a family physician. On August 1, 2006
Dr. White released appellant to work with restrictions. He was prohibited from driving, which
involved repetitive twisting; lifting, bending, pushing, pulling or carrying more than 20 pounds,
and excessive bending, stooping, kneeling or excessive casing of flats. Dr. White recommended
that he sort mail for no more than one to two hours, after which he should take a 5- to 10-minute
seated break. On September 13, 2006 he opined that appellant was capable of light duty only,
due to his accepted condition and could lift no more than 15 pounds. Examination of the lumbar
spine revealed facet tenderness at L3-S1, sciatica notch tenderness on deep palpation, and
paraspinal muscle spasm in the L3-S1 area. On October 11, 2006 Dr. White stated that
appellant’s back pain, which was accompanied by numbness and tingling down both legs, was
caused or exacerbated by work activities.
Appellant was also treated by Dr. Antaures D. Jackson, a chiropractor. On September 25,
2006 Dr. Jackson diagnosed cervical torticollis, lumbar plexus disorder and myositis/myalgia.
He noted that appellant had been diagnosed with degenerative disc disease following a July 2006
work-related injury. Dr. Jackson recommended that appellant be restricted from repetitive
bending, twisting and lifting in order to prevent future injury.
The Office referred appellant to Dr. Harold Alexander, a Board-certified orthopedic
surgeon, for an examination and an opinion as to whether appellant had any residuals related to
his accepted condition and, if so, whether he was disabled as a result of those residuals. On
April 25, 2007 Dr. Alexander diagnosed degenerative disc disease. A physical examination of
the back revealed satisfactory range of motion, flexion, extension and side bending, moderate
lower back pain on compression in his lumbosacral spine; no sensory loss in the lower
extremities, but occasional momentary tingling. Dr. Alexander stated that appellant had no
objective residuals from his accepted injury, except for slight pain on compression in his
lumbosacral spine and opined that he was physically capable of returning to work as a letter
carrier.
Appellant submitted a June 2, 2007 work capacity evaluation from Dr. White, who
reiterated his previous restrictions and stated that appellant, was unable to work an eight-hour
day.
The Office found a conflict in the medical opinion evidence between Drs. White and
Alexander as to whether appellant had any continuing employment-related residuals or disability.
On June 6, 2007 it referred appellant, together with a statement of accepted facts, the case record
and a list of questions to be addressed, to Dr. Alexander Doman, a Board-certified orthopedic
surgeon, for an impartial medical examination.

2

In a July 17, 2007 report, based upon an examination of appellant and review of the entire
medical file and statement of accepted facts, Dr. Doman found no objective evidence of residuals
directly attributable to appellant’s accepted employment injury. Examination revealed a normal
gait. Dr. Doman found voluntary restriction of range of motion of the lumbar spine with forward
flexion to 50 degrees and extension of 10 degrees. Appellant described pain with mild lateral
rotation of 40 degrees at the level of the pelvis and had subjective complaints of back pain with
simple attempts to flex his knees while in the prone position to 70 degrees. He had cog wheeling
giving way weakness on a subjective basis when strength testing his dorsiflexors of his left foot
and complaints of back pain with mild tenderness over the subcutaneous tissue of the lumbar
spine. Dr. Doman noted radiological evidence of degenerative disc disease in conjunction with
lumbar spondylosis, which he stated was not work related, but rather “represented the natural
history of degenerative disc disease seen in patients with severe obesity.” He opined that
appellant’s occupational injury was a temporary aggravation of his underlying condition, which
would have resolved by October 1, 2006. Dr. Doman agreed with Dr. Alexander’s assessment
that appellant was capable of returning to work as a letter carrier.
By letter dated July 25, 2007, the Office proposed to terminate appellant’s compensation
and medical benefits based on Dr. Doman’s July 17, 2007 report. Appellant was provided 30
days to submit additional evidence or argument in response to the notice.
In a letter dated August 24, 2007, appellant’s representative contended that the Office
erroneously relied on Dr. Doman’s report in terminating appellant’s benefits. Counsel argued
that Dr. Doman exceeded the scope of his review by providing a diagnosis of temporary
aggravation of degenerative disc disease. He also contended that Dr. Doman was inconsistent in
stating on the one hand that x-rays showed evidence of degenerative disc disease, but on the
other hand indicating that his accepted condition had resolved.
By decision dated September 6, 2007, the Office finalized the termination of appellant’s
wage-loss compensation benefits effective September 14, 2007.2
Appellant submitted an August 27, 2007 report from Dr. White indicating that appellant
was experiencing severe back pain resulting from a June 9, 2008 injury, which occurred on the
job. Dr. White stated that appellant was being treated for lumbar degenerative disc disease,
which was aggravated by his employment activities, including weight-bearing activity, walking
and running. He opined that appellant should be restricted from prolonged standing, working on
the truck or lifting more than 10 pounds.
In a letter dated September 12, 2007, appellant, through his representative, requested an
oral hearing, which was held on January 9, 2008. Appellant testified that he continued to
experience residuals from his accepted condition. Counsel argued that it was incomprehensible
that appellant’s work duties did not contribute to his current degenerative spine condition.
A March 10, 2008 report of an employing establishment investigation concluded that
appellant was capable of performing his duties as a letter carrier. He was observed from
2

The Board notes that, although the notice of proposed termination related to compensation and medical benefits,
the final decision dated September 6, 2007 terminated only appellant’s compensation benefits.

3

January 15 to March 8, 2008 performing functions common to a letter carrier, such as bending,
testing, lifting boxes and driving. Appellant appeared to experience no apparent discomfort
while performing these functions.
In a March 26, 2008 decision, the Office hearing representative affirmed the Office’s
September 6, 2007 decision. He found that the well-rationalized opinion of Dr. Doman was
entitled to special weight and established that appellant no longer had residuals related to his
accepted condition. Dr. Doman found that appellant’s current condition was due to his
underlying degenerative disease, rather than to conditions of his employment.
On April 25, 2008 appellant requested reconsideration of the September 6, 2007 decision.
He also asked for a review of the Office’s determinations about his debt. Appellant stated that he
had attempted unsuccessfully to return to work and that he was unable to repay the debt. He
submitted unsigned treatment notes dated April 14 and 17, 2008, which reflected treatment for
neck and back pain.
By decision dated June 17, 2008, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
If there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.7 Where a case is referred to an impartial medical specialist for the

3

Appellant submitted additional evidence after the Office’s June 17, 2008 decision; however, the Board cannot
consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the evidence in
the case record which was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c) (2007).
4

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L.
Stewart, 54 ECAB 824 (2003).
5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Del K. Rykert, 40 ECAB 284 (1988).

7

5 U.S.C. § 8123(a); see also R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); Raymond A.
Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB 207 (1993).

4

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s wage-loss compensation
effective September 14, 2007.
The Office correctly determined that a conflict in the medical opinion evidence arose
between Dr. White, an attending physician and Dr. Alexander, an Office referral physician, as to
whether appellant had any continuing residuals or disability causally related to his accepted
condition. On the one hand, Dr. White opined that appellant had continuing employment-related
residuals and was only capable of working a light-duty position which required lifting no more
than 15 pounds and no repetitive activities. On the other hand, Dr. Alexander concluded that
appellant had no objective residuals from his accepted injury, except for slight pain on
compression in his lumbosacral spine and opined that he was physically capable of returning to
work as a letter carrier.
In order to resolve the conflict, the Office referred appellant, a statement of accepted facts
and the entire medical record to Dr. Doman for an impartial medical examination. Based on his
review of the case record and findings on examination, Dr. Doman found no objective evidence
of residuals or disability directly attributable to appellant’s accepted employment injury. He
noted radiological evidence of degenerative disc disease in conjunction with his lumbar
spondylosis. However, Dr. Doman indicated that the degenerative condition was not work
related, but rather “represented the natural history of degenerative disc disease seen in patients
with severe obesity.” He opined that appellant’s occupational injury was a temporary
aggravation of his underlying condition, which would have resolved by October 1, 2006.
Dr. Doman agreed with Dr. Alexander’s assessment that appellant was capable of returning to
work as a letter carrier. The Board finds that Dr. Doman’s July 17, 2007 opinion is wellrationalized and based on a proper factual and medical background.
Appellant’s counsel argued that Dr. Doman exceeded the scope of his review by
providing a diagnosis of temporary aggravation of degenerative disc disease. However, his
determination that appellant’s condition was temporary was essential to the finding that the
accepted condition had resolved. Therefore, counsel’s contention is without merit. Appellant’s
representative also contended that Dr. Doman’s opinion that the accepted condition had resolved,
was inconsistent with radiographic evidence of degenerative disc disease. The Board finds no
such inconsistency. Appellant’s claim was accepted only for aggravation of degenerative disc
disease, which Dr. Doman opined would have resolved by October 1, 2006. He did not opine
that the underlying degenerative disc disease had resolved.
Dr. Doman’s well-rationalized report constitutes the special weight of the medical
opinion evidence afforded an impartial medical specialist and establishes that appellant is no
longer disabled due to residuals of his accepted condition. The Board, therefore, finds that the
8

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008); Sharyn D. Bannick, 54 ECAB 537 (2003);
Gary R. Sieber, 46 ECAB 215 (1994).

5

Office met its burden of proof to terminate appellant’s compensation benefits effective
September 14, 2007.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.11 When a claimant fails to meet one of the above standards, the Office will deny the
application for reconsideration without reopening the case for review on the merits.12 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 Further, evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a claim for merit review.14
ANALYSIS -- ISSUE 2
Appellant’s April 25, 2008 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted unsigned treatment
notes dated April 14 and 17, 2008 reflecting treatment for neck and back pain. The Board finds
that these notes do not constitute new and relevant evidence not previously considered by the
Office. Rather, appellant’s report merely reiterates information contained in documents
previously received and reviewed by the Office, and contains no additional rationale to support
his claim that he remains disabled or continues to experience residuals of his accepted condition.

9

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

13

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

14

Denis M. Dupor, 51 ECAB 482 (2000).

6

The report is therefore cumulative and duplicative in nature15 and does not constitute relevant
new evidence.
As abuse of discretion can generally only be shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic, and
probable deductions from known facts.16 Appellant has made no such showing here. The Board
finds that the Office properly determined that he was not entitled to a review of the merits of his
claim pursuant to any of the three requirements under section 10.606(b)(2) and properly denied
his August 15, 2008 request for reconsideration .
CONCLUSION
The Board finds that the Office met its burden to terminate appellant’s compensation
benefits effective September 14, 2008. The Board further finds that the Office properly refused
to reopen appellant’s case for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

15

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, supra note 14.
16

Rebel L. Cantrell, 44 ECAB 660 (1993).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 17 and March 26, 2008 and September 6, 2007 are affirmed.
Issued: July 8, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Bronx, NY, Employer
__________________________________________

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

Docket No. 08-860
Issued: October 24, 2008

Case Submitted on the Record

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

JURISDICTION
On January 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 5, 2007 merit decision terminating her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation effective November 5, 2007 on the grounds that she had no residuals of her
October 27, 2003 employment injury after that date.
FACTUAL HISTORY
The Office accepted that on October 27, 2003 appellant, then a 38-year-old secretary,
sustained a lumbosacral strain and disc displacement at L5-S1 with radiculopathy due to a fall at

work. She stopped work on October 27, 2003 and returned to light-duty work for the employing
establishment in March 2004. It paid appellant compensation for periods of disability.
Appellant received treatment from Dr. Louis C. Rose, a Board-certified orthopedic
surgeon, who diagnosed lumbar radiculopathy secondary to multiple disc bulges. The findings
of March 12, 2004 magnetic resonance imaging (MRI) scan testing of her lumbar spine revealed
bulging discs at L2-3, L3-4 and L5-S1 with impingement on the thecal sac at L5-S1. In early
2005 appellant began to be treated by Dr. John Olewski, a Board-certified orthopedic surgeon.
On January 22, 2007 he indicated that range of motion of her lumbar spine reproduced axial-type
back pain and noted that paravertebral muscle spasms were observed. Dr. Olewski determined
that appellant was totally disabled from her previous job duties due her accepted employment
injury.
On June 7, 2007 Dr. Isaac Cohen, a Board-certified orthopedic surgeon who served as an
Office referral physician, stated that appellant complained of upper and lower back pain which
radiated down both legs with spasms. He indicated that examination of her thoracolumbar spine
revealed some limitation of back motion and hypersensitivity upon palpation but indicated that
strength was satisfactory and sensation was intact. There were no muscle spasms or trigger
points upon palpation. Dr. Cohen diagnosed chronic thoracolumbar spine syndrome, by history,
and stated, “There were no objective findings upon clinical evaluation today to establish a
causally related disability.” He indicated that he would assess appellant’s ability to work after he
obtained the results of a repeat MRI scan study of her lumbar spine.
On July 13, 2007 Dr. Cohen noted that the repeat MRI scan study of the lumbar spine he
obtained on July 5, 2007 showed multilevel disc degeneration but no evidence of pathologic
marrow replacement, compression fracture or listhesis. It showed a small left paracentral disc
protrusion at L5-S1 without evidence of significant central or lateral stenosis. He stated that the
MRI scan study revealed no evidence of neurological involvement and showed evidence of
multilevel degenerative disc disease which preexisted appellant’s October 27, 2003 injury.1
Dr. Cohen stated:
“Based on a review of the repeat MRI scan [study] and based on the physical
evaluation performed in my office on June 7, 2007, which did not reveal any
objective evidence of any causally related residual findings, there is no causally
related orthopedic disability. It is my opinion that the claimant is able to return to
full[-]duty work, without any causally related work restrictions.”
On July 26, 2007 Dr. Olewski stated that examination of appellant’s lumbar spine
revealed that back flexion and extension reproduced axial pain with paravertebral spasms and a
reversal of rhythm. He noted that three levels of concordant back pain were reproduced on
discography and indicated that she had 5/5 strength in all extremities.2 Dr. Olewski determined
that appellant was totally disabled from her previous job duties.

1

The record contains a copy of the July 5, 2007 MRI scan study.

2

The discography was performed on June 1, 2005 and showed pain reproduction at L2-3, L3-4 and L5-S1.

2

The Office determined that there was a conflict in the medical opinion between
Dr. Olewski and Dr. Cohen regarding whether appellant continued to have residuals of her
October 27, 2003 employment injury.3 In order to resolve the conflict, it referred appellant,
pursuant to, Dr. Arnold M. Illman, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.
On September 5, 2007 Dr. Illman described appellant’s October 27, 2003 work injury and
discussed the diagnostic testing of record. He noted that on examination of her lower back the
slightest touch of her skin caused her to complain of pain. This sensitivity of skin was noted to
be from the base of the neck all the way down to the sacrum. Dr. Illman indicated that he did not
palpate any muscle spasm and that appellant did not complain of sciatic notch tenderness on
palpation. Appellant demonstrated 30 degrees of lateral movement of her back and 0 degrees of
extension and stated that it hurt her too much to move forward more than a few degrees.
Dr. Illman noted that straight leg raising to 90 degrees with both ankles manually placed in
dorsiflexion elicited no pain. Appellant had normal light-touch sensation of both legs and the
strength of dorsiflexion and plantar flexion in both ankles was +5.
Dr. Illman determined that appellant was capable of returning to work as a secretary for
the employing establishment. He noted that the MRI scan studies did not show any herniated
discs and indicated that she did not have a radiculopathy as she had not been complaining of any
leg discomfort. Dr. Illman stated that he could not find an orthopedic cause for appellant’s
symptomatology. He indicated that she had a normal neurologic examination without
abnormalities which would cause her to walk in a shuffling type of gait. Dr. Illman was unable
to explain from an orthopedic point of view why there was hypersensitivity to the skin on
appellant’s lower back to the extent that she complained of pain when he barely touched her
skin. He indicated that he could not find an orthopedic disability to her lower back and
determined that she was not restricted from her normal work as a secretary for the employing
establishment.
In an October 2, 2007 notice, the Office advised appellant of its proposed termination of
her disability compensation and medical treatment because she no longer had residuals of her
October 27, 2003 employment injury. It stated that its termination was supported by the
September 5, 2007 report of Dr. Illman, the impartial medical specialist. It provided her with 30
days to submit additional evidence.
In a November 5, 2007 decision, the Office terminated appellant’s compensation
effective November 5, 2007 on the grounds that she had no residuals of her October 27, 2003
employment injury after that date. It indicated that the well-rationalized opinion of Dr. Illman
represented the weight of the medical evidence with regard to this matter.

3

See 5 U.S.C. § 8123(a).

3

LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,4 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.5 It may not
terminate compensation without establishing that the disability ceased or that it was no longer
related to the employment.6 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Section 8123(a) of the Act provides in pertinent part: “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 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS
The Office accepted that on October 27, 2003 appellant, then a 38-year-old secretary,
sustained a lumbosacral strain and disc displacement at L5-S1 with radiculopathy due to a fall at
work. It terminated her disability and medical benefits compensation effective November 5,
2007 on the grounds that she had no residuals of her October 27, 2003 employment injury after
that date. It indicated that the termination was justified by the opinion of Dr. Illman, a Boardcertified orthopedic surgeon who served as an impartial medical specialist.
The Office properly determined that there was a conflict in the medical opinion between
Dr. John Olewski, appellant’s attending Board-certified orthopedic surgeon, and Dr. Isaac
Cohen, a Board-certified orthopedic surgeon who served as an Office referral physician, on the
issue of whether she continued to have residuals of the October 27, 2003 employment injury.10
In order to resolve the conflict, the Office referred appellant, pursuant to section 8123(a) of the
Act, to Dr. Illman for an impartial medical examination and an opinion on the matter.11
4

5 U.S.C. §§ 8101-8193.

5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

5 U.S.C. § 8123(a).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

In reports dated between early and mid 2007 Dr. Olewski determined that appellant was disabled from her
previous secretary work due to her October 27, 2003 employment injury. In contrast Dr. Cohen indicated in a
July 13, 2007 report that appellant had no residuals of her October 27, 2003 employment injury.
11

See supra note 7 and accompanying text.

4

The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Illman, the impartial medical specialist selected to resolve the
conflict in the medical opinion.12 The September 5, 2007 report of Dr. Illman establishes that
appellant had residuals of her October 27, 2003 employment injury after November 5, 2007.
On September 5, 2007 Dr. Illman concluded that appellant did not have any objective
symptoms of her October 27, 2003 employment injury and indicated that she was capable of
returning to her regular work as a secretary for the employing establishment. He noted that on
examination the slightest touch of her skin from her neck to her sacrum caused her to complain
of pain. Dr. Illman indicated that he did not palpate any muscle spasm and that appellant did not
complain of sciatic notch tenderness on palpation. Appellant complained that certain back
motions were too painful but straight leg raising to 90 degrees with both ankles manually placed
in dorsiflexion elicited no pain. She had normal light-touch sensation of both legs and the
strength of dorsiflexion and plantar flexion in both ankles was +5.
The Board has carefully reviewed the opinion of Dr. Illman and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. His opinion is based on a proper factual and medical history in
that he had the benefit of an accurate and up-to-date statement of accepted facts, provided a
thorough factual and medical history and accurately summarized the relevant medical evidence.13
Dr. Illman provided medical rationale for his opinion by explaining that he could not find an
orthopedic cause for appellant’s symptomatology and indicated that she had a normal neurologic
examination without abnormalities. There were no objective findings to explain her shuffling
type of gait and her hypersensitivity to the skin on her lower back to the extent that she
complained of pain when he barely touched her skin. He further explained that the MRI scan
studies did not show any herniated discs and indicated that appellant did not have a
radiculopathy as she had not been complaining of any leg discomfort.14
For these reasons, the Office properly relied on the opinion of Dr. Illman to terminate
appellant’s compensation effective November 5, 2007.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective November 5, 2007 on the grounds that she had no residuals of her
October 27, 2003 employment injury after that date.

12

See supra note 8 and accompanying text.

13

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

14

The Board notes that appellant did not submit any additional medical evidence after being advised of the
proposed termination of her compensation.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 5, 2007 decision is affirmed.
Issued: October 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.L., Appellant
and
U.S. POSTAL SERVICE, KANSAS CITY
PROCESSING & DISTRIBUTION CENTER,
Kansas City, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0286
Issued: July 23, 2021

Case Submitted on the Record

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

On December 21, 2020 appellant filed a timely appeal from a November 9, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0286.
In a letter dated June 14, 2021 and received June 22, 2021, appellant requested that the
appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0286 is dismissed.
Issued: July 23, 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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.U., Appellant
and
U.S. POSTAL SERVICE, LA PUENTE POST
OFFICE, La Puente, CA, Employer
__________________________________________

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

Docket No. 20-1022
Issued: January 25, 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 April 13, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
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. 3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include an additional right shoulder condition as causally
related to the accepted employment injury.
FACTUAL HISTORY
On January 19, 1999 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 14, 1999 he sustained right arm repetitive stress
syndrome as a result of lifting a tray of flats on his route. 4 OWCP accepted the claim for right
elbow strain, right biceps tendinitis, and right lateral epicondylitis. On January 18, 2000 appellant
underwent OWCP-authorized exploration of the rotator cuff of the right shoulder, coracoacromial
release, and acromioplasty of the right shoulder. He returned to work in a full-time modified city
letter carrier positon on September 1, 2000. By decision dated January 16, 2002, OWCP granted
appellant a schedule award for 13 percent permanent impairment of his right arm. In a July 15,
2002 decision, it reduced his wage-earning capacity to zero as his actual earnings as a modified
city letter carrier, effective September 1, 2000, fairly and reasonably represented his wage-earning
capacity. By decision dated October 24, 2017, an OWCP hearing representative affirmed the
July 15, 2002 decision.
In medical reports dated September 29 and November 3, 2015 and April 12, 2016,
Dr. Charles Herring, Jr., an attending Board-certified orthopedic surgeon, diagnosed, among other
things, right shoulder acromioclavicular (AC) joint arthrosis, right shoulder impingement
syndrome with subacromial bursitis, and status post right shoulder rotator cuff repair in 1999. He
noted that appellant’s right shoulder rotator cuff repair was related to his accepted employment
injury. Dr. Herring also noted that appellant’s AC joint arthrosis was caused by his work duties,
which involved lifting and sorting mail from hampers to tubs for delivery. He requested that the
acceptance of appellant’s claim should be expanded to include right rotator cuff tear and sought
authorization for right shoulder arthroscopy.
On April 27, 2016 OWCP referred appellant, along with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of the
employment injury and disability.
In a June 1, 2016 report, Dr. Ma noted that he had reviewed the SOAF and appellant’s
medical record. He diagnosed right shoulder impingement syndrome, which had resolved by his
January 18, 2000 surgery. Dr. Ma opined that the diagnosed condition was causally related to

4

OWCP assigned the present claim OWCP File No. xxxxxx890. Appellant subsequently filed an occupational
disease claim (Form CA-2) on March 18, 2013 alleging that he sustained neck and left shoulder surgeries resulting
from his repetitive federal work duties. OWCP assigned that claim OWCP File No. xxxxxx924 and accepted it for
left rotator cuff tear, cervical strain, permanent aggravation of cervical degenerative disc disease, multilevel
intervertebral disc syndrome, and cervical radiculopathy. Appellant underwent OWCP-authorized left shoulder
arthroscopy on July 28, 2014 and cervical spine surgery on March 30, 2018. He stopped work at the employing
establishment on July 28, 2014. OWCP administratively combined OWCP File Nos. xxxxxx890 and xxxxxx924,
with the former serving as the master file.

2

appellant’s accepted employment injury. He further opined that there was no objective evidence
of a right rotator cuff tear and that further surgery was not medically necessary.
On August 16, 2017 OWCP referred appellant for an impartial medical examination with
Dr. Thomas Saucedo, a Board-certified orthopedic surgeon, selected as the impartial medical
examiner (IME) to resolve the conflict in medical opinion as to whether there was causal
relationship between appellant’s diagnosed right shoulder condition and the accepted work-related
injury.
In a September 27, 2017 report, Dr. Saucedo reviewed appellant’s history of injury,
medical records, and the SOAF. He provided a review of systems and noted a history of
hypertension. On physical examination of the right shoulder he found evidence of tenderness in
the coracoacromial ligament area. There was mild swelling, a positive impingement sign, and
weakness in all planes of motion 4/5. Abduction and forward flexion were from 0 to 110 degrees,
internal rotation was to 90 degrees, and external rotation was to 60 degrees. Appellant was
neurologically intact distally. Dr. Saucedo reported that x-rays of the right shoulder revealed
evidence of mild-to-moderate AC joint arthrosis. He diagnosed status post right shoulder rotator
cuff repair and chronic right shoulder impingement syndrome. Dr. Saucedo noted that appellant
underwent right shoulder surgery on January 18, 2000. He related that the surgery was a
diagnostic examination and exploration of the rotator cuff with evidence of a rotator cuff tear
which required a repair at that time. Dr. Saucedo indicated that appellant subsequently presented
with episodes and flare ups of pain and discomfort of the right shoulder and a magnetic resonance
imaging (MRI) scan arthrogram was repeated on March 25, 2011. The right shoulder MRI scan
arthrogram revealed evidence of surgical intervention and no evidence of a labral tear. In light of
these findings, appellant continued to complain of shoulder pain and discomfort with limitation of
function as a result of his injuries and job requirements and repetitive use of his extremity, and he
underwent a third MRI scan arthrogram with contrast of the right shoulder on August 19, 2015.
The right shoulder MRI scan revealed evidence of a partial undersurface tear versus postoperative
changes to the supraspinatus tendon, no retracted cuff, a superior labral tear was suggested with
evidence of osteoarthritis changes of the AC joint. Dr. Saucedo advised that given these findings
and his examination findings, there was no doubt that appellant had a significant loss of range of
motion (ROM) of the shoulder and loss of strength as a result of the chronic nature of the
impingement of his right shoulder; however, there was no radiographic evidence to substantiate
the need for a right shoulder rotator cuff repair. He noted that if his symptoms persisted, then he
would require further medical treatment. Dr. Saucedo agreed with Dr. Ma’s opinion that there was
no clinical evidence to substantiate a right rotator cuff tear and need for surgery related to
appellant’s original injury. He advised, however, that there were findings indicative of an
impingement of the right shoulder relating to the initial injury. Dr. Saucedo indicated that
appellant’s symptoms and condition had not resolved.
By decision dated September 5, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include right shoulder rotator cuff tear and authorization for the requested
rotator cuff repair. It found that the opinion of Dr. Saucedo, as the IME, constituted the special
weight of the evidence.
In a letter of even date, OWCP expanded the acceptance of appellant’s claim to include
right shoulder chronic impingement syndrome, right shoulder strain, right calcium deposit in the
tendon and eursa (biceps tenosynovitis/tendinitis), and right lateral epicondylitis.
3

On September 18, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP received medical reports, including additional reports dated August 27 and
November 19, 2019 by Dr. Herring who noted that appellant had a right shoulder partial-thickness
rotator cuff tear as demonstrated by a 2015 MRI scan.
In a March 6, 2020 decision, an OWCP hearing representative affirmed the September 5,
2019 decision.
LEGAL PRECEDENT
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.6 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 accepted employment injury. 7 The weight of 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.8
Section 8123(a) of FECA provides, in pertinent part, 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 (known as a referee physician or IME) who shall make
an examination. 9 When there are opposing reports of virtually equal weight and rationale, the case
must be referred to an IME, pursuant to section 8123(a) of FECA, to resolve the conflict in the
medical evidence.10

5

D.T., Docket No. 20-0234 (issued January 8, 2021); see T.E., Docket No. 18-1595 (issued March 13, 2019); T.F.,
Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).
6

D.T., id.; T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55
ECAB 465 (2004).
7

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
8

Id.

9

5 U.S.C. § 8123(a).

10

D.B., Docket No. 19-0663 (issued August 27, 2020).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that acceptance
of his claim should be expanded to include an additional right shoulder condition as causally
related to the accepted employment injury.
Dr. Herring, in his September 29 and November 3, 2015 and April 12, 2016 reports,
diagnosed a right shoulder rotator cuff tear, which he opined was due to the accepted employment
injury. OWCP referred appellant to Dr. Ma for a second opinion evaluation to determine the nature
and extent of the employment injury. It specifically requested that he provide all diagnosed
conditions, which were medically connected to appellant’s employment. In his June 1, 2016
report, Dr. Ma opined that appellant had work-related right shoulder impingement syndrome that
had resolved by appellant’s January 18, 2000 surgery. He further opined, however, that there was
no objective evidence of a right rotator cuff tear and that further surgery was not medically
warranted. Thus, OWCP properly determined that a conflict in medical opinion existed between
Dr. Herring and Dr. Ma as to whether appellant had a right shoulder rotator cuff tear causally
related to the accepted employment injury and referred appellant to Dr. Saucedo for an impartial
medical examination to resolve the conflict in medical evidence, pursuant to 5 U.S.C. § 8123(a).
In a September 27, 2017 report, Dr. Saucedo reviewed appellant’s history of injury,
medical records, and the SOAF. Additionally, he described findings on physical and x-ray
examinations. Dr. Saucedo agreed with Dr. Ma’s opinion that appellant did not have a right
shoulder rotator cuff tear that required a rotator cuff repair causally related to the accepted
employment injury. He explained that there was no clinical evidence to establish the claimed right
shoulder condition and need for surgery. Dr. Saucedo specifically noted that MRI scan
arthrograms performed on March 25, 2011 and August 19, 2015 revealed no evidence of a rotator
cuff tear or labral tear.
Dr. Saucedo provided an accurate history of the accepted employment injury and reviewed
appellant’s medical records, noting that the March 25, 2011 and August 19, 2015 right shoulder
MRI scan arthrograms did not reveal a rotator cuff tear. He also performed a thorough clinical
examination, indicated a review of systems, and noted a history of hypertension. Dr. Saucedo’s
physical examination revealed right shoulder symptoms and loss of ROM, and his x -ray
examination demonstrated evidence of mild-to-moderate AC joint arthrosis. Thus, based on lack
of objective findings, he found that appellant did not have an employment-related right shoulder
rotator cuff tear that required a rotator cuff repair. The Board finds that Dr. Saucedo provided a
well-rationalized opinion based on a complete factual background, a review of the medical record
and examination findings. 11 Dr. Saucedo’s opinion that appellant had no additional right shoulder
condition that required medical treatment causally related to the accepted employment injury is
entitled to special weight of the medical evidence.12
Following Dr. Saucedo’s evaluation, appellant submitted additional reports from
Dr. Herring in which he noted that appellant had a right shoulder partial-thickness rotator cuff tear
11

See R.M., Docket No. 20-0452 (issued March 4, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020); see
also D.T., Docket No. 10-2258 (issued August 1, 2011); Gloria J. Godfrey, 52 ECAB 486 (2001).
12

See R.M., id.; D.S., Docket No. 19-1698 (issued June 18, 2020).

5

as demonstrated by a 2015 MRI scan. However, Dr. Herring’s reports is insufficient to establish
the claim as he did not specifically address whether appellant’s employment activities had caused
or aggravated a diagnosed right shoulder condition. 13 Additionally, he was on one side of the
conflict resolved by Dr. Saucedo. The Board has held that reports from a physician who was on
one side of a medical conflict are generally insufficient to overcome the special weight accorded
to the IME, or to create a new conflict.14 Dr. Herring’s reports are thus insufficient to overcome
the special weight accorded to Dr. Saucedo’s opinion or to create a new conflict in medical
opinion.15
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his diagnosed right shoulder rotator cuff tear and the accepted employment
injury, he 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 that acceptance
of his claim should be expanded to include an additional right shoulder as causally related to the
accepted employment injury.

13

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

14

See W.C., Docket No. 19-1740 (issued June 4, 2020); S.S., Docket No. 17-1361 (issued January 8, 2018); Jaja K.
Asaramo, supra note 5; Michael Hughes, 52 ECAB 387 (2001).
15

See W.C., id.; S.S., id.; K.R., Docket No. 16-0542 (issued December 21, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 25, 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

7