United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, McALESTER
ARMY AMMUNITION PLANT, McAlester, OK,
Employer
__________________________________________

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

Docket No. 12-1026
Issued: October 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2012 appellant filed a timely appeal from a February 13, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that a November 2,
2006 wage-earning capacity decision should be modified.
On appeal, appellant generally asserts that the wage-earning capacity determination was
in error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 18, 1992 appellant, then a 47-year-old explosives worker, filed a traumatic
claim alleging injury to his back and right knee when he slipped and fell at work the previous
day. He stopped work. OWCP accepted a right knee contusion and cervical and lumbar strains.
Appellant returned to part-time modified duty on November 9, 1992. He received wage-loss
compensation for two hours a day and again stopped work on July 1, 1993. By decision dated
June 7, 1994, OWCP’s hearing representative set aside an August 27, 1993 OWCP decision
denying appellant’s claim for total disability. On July 21, 1994 appellant filed a second
traumatic injury claim, alleging that on June 28, 1993 he injured his right knee, neck and lower
back when he fell down steps. The claim was accepted for right knee sprain and cervical strain.
Appellant received wage-loss compensation under both claims.
Appellant returned to work as a tool room attendant on March 13, 1996. In a July 18,
1996 decision, OWCP determined that his actual earnings in that position fairly and reasonably
represented his wage-earning capacity with zero loss. In decisions dated February 5 and July 25,
1997, it denied modification of the July 18, 1996 decision. In a November 19, 1997 decision,
OWCP vacated the prior decisions, finding that the evidence established that appellant was
entitled to continuing compensation benefits as a result of the June 28, 1993 employment injury.2
In October 2005, OWCP determined that a conflict in medical opinion arose between
Dr. Guy Grooms, an attending Board-certified orthopedic surgeon, and Dr. Robert C. Thompson,
an orthopedic surgeon, who provided a second-opinion evaluation for OWCP, regarding
appellant’s work capabilities. It referred appellant to Dr. C.L. Soo, Board-certified in orthopedic
surgery, for a referee opinion. Dr. Soo furnished reports dated November 21, 2005 and
February 1, 2006.
On January 3, 2006 the employing establishment offered appellant a temporary,
light-duty position as an explosives worker, for six hours a day, four days a week. On
February 16 and 23, 2006 the temporary appointment offer was modified to eight hours a day,
four days a week. On March 6, 2006 a conference was held with appellant, a claims examiner,
and employing establishment personnel participating. The memorandum of conference noted
that the February 23, 2006 job offer was based on the opinion of Dr. Soo regarding appellant’s
work restrictions. Appellant advised that he would accept the offered position, to begin on
March 20, 2006. He later began working 10 hours a day, 4 days a week. Appellant’s temporary
appointment was terminated effective October 10, 2006, based on “workload.”
By decision dated November 2, 2006, OWCP found that appellant’s position as a
light-duty explosives worker, effective March 20, 2006, fairly and reasonably represented his
wage-earning capacity with zero loss. On October 22, 2007 appellant requested reconsideration,
and in a November 7, 2007 decision, OWCP denied his request for a review on the merits.

2

The March 17, 1992 injury was adjudicated by OWCP under File No. xxxxxx223 and the June 28, 1993 injury
under File No. xxxxxx537. The claims were doubled in November 1997, with the former becoming the master file.

2

On January 24, 2011 appellant filed a recurrence claim, stating that he sustained a
recurrence of disability on October 10, 2006.3 In an April 27, 2011 decision, OWCP denied his
claim that he sustained a recurrence of disability on October 10, 2006.
Appellant timely requested a review of the written record. In an August 23, 2011
decision, OWCP’s hearing representative affirmed the April 27, 2011 decision as modified to
reflect that appellant did not establish that the November 2, 2006 wage-earning capacity decision
should be modified.
On November 7, 2011 appellant requested reconsideration. In a merit decision dated
February 13, 2012, OWCP denied modification of the prior decisions.
LEGAL PRECEDENT
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.4 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.5 However, if actual
earnings are derived from a make-shift position designed for the employee’s particular needs6 or
when the job constitutes part-time, sporadic, seasonal or temporary work,7 actual earnings may
not represent wage-earning capacity.
The procedures further provide that, “[i]f a formal loss of wage-earning capacity decision
has been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance the [claims examiner] will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.”8 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.9 The burden of

3

On March 10, 2011 appellant was granted a schedule award for a three percent impairment of the right lower
extremity.
4

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

5

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

6

William D. Emory, 47 ECAB 365 (1996).

7

See Monique L. Love, 48 ECAB 378 (1997).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity
Chapter 2.814.9(a) (October 2009).
9

Stanley B. Plotkin, 51 ECAB 700 (2000).

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proof is on the party attempting to show a modification of the wage-earning capacity
determination.10
In addition, Chapter 2.814.11 of the procedure manual contains provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provides that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.11
ANALYSIS
In its August 23, 2011 and February 13, 2012 decisions, OWCP denied modification of a
November 2, 2006 wage-earning capacity determination that found that a temporary modified
explosives worker position fairly and reasonably represented appellant’s wage-earning capacity.
As noted above, 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.12 The Board
finds that the November 2, 2006 wage-earning capacity determination was erroneous when
issued.
Appellant had been employed in a regular position as an explosives worker at the time he
became totally disabled due to his accepted conditions on June 28, 1993. He assumed the
temporary modified explosives worker job, which was the basis of the November 2, 2006
wage-earning capacity determination, on March 20, 2006 and continued in that position until he
was terminated effective October 10, 2006. OWCP issued it wage-earning capacity decision on
November 2, 2006.
OWCP procedures provide that OWCP can make a retroactive wage-earning capacity
determination if the claimant worked in the position for at least 60 days, the position fairly and
reasonably represented his or her wage-earning capacity and the work stoppage did not occur
because of any change in his injury-related condition affecting the ability to work.13 Appellant
worked in the modified explosives worker position for at least 60 days when he was terminated
effective October 10, 2006. The record, however, supports that the modified position on which

10

Id.

11

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.814.11 (October 2009).

12

Stanley B. Plotkin, supra note 9.

13

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.814.7(a) (October 2009); Selden H. Swartz, 55
ECAB 272 (2004).

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the November 2, 2006 wage-earning capacity determination was based did not fairly and
reasonably represent his wage-earning capacity.
OWCP procedures provide that if actual earnings are derived from a temporary position,
actual earnings may not represent wage-earning capacity where the claimant’s previous job was
permanent.14 In this case there is no evidence to establish that the explosives worker position
appellant held at the time he was injured, initially in 1992 and again in 1993, was other than
permanent. The evidence of record also notes that the position on which the November 2, 2006
decision was based was temporary. In job offers dated January 3, February 16 and 23, 2006, the
offered position is identified as temporary. The e-mail correspondence of October 17, 2006
between OWCP and the employing establishment noted the position was temporary. On that
day, Dana Wofford of the employing establishment indicated that appellant had been terminated
due to workload. She stated, “the fact is that the claimant was on a temporary appointment and
the understanding is made clear at the beginning of this type of appointment that it can be ended
at anytime either by the employee or management without adverse effects.”
The Board finds that OWCP failed to follow its established procedures as it based the
November 2, 2006 wage-earning capacity determination on a temporary explosives position that
appellant accepted on March 20, 2006.15
CONCLUSION
The Board finds that appellant met his burden of proof to modify the November 2, 2006
wage-earning capacity decision as it was based on a temporary position. Accordingly, OWCP
improperly denied modification of the November 2, 2006 decision in its February 12, 2012
decision.

14

Id. at Chapter 2.814.7(a)(3); see Monique L. Love, supra note 7.

15

See D.P., Docket No. 12-55 (issued July 6, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 18, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE NAVY, CUSTOMER
SERVICE DESK, Monterey, CA, Employer
__________________________________________

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

Docket No. 16-0678
Issued: October 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 22, 2016 appellant filed a timely appeal of a September 21, 2015 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 to consider the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right hand
condition causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its September 21, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1). Appellant may submit this or any evidence to OWCP, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On August 4, 2015 appellant, then a 71-year-old transportation assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed a right hand condition
including sharp pain and tenderness in the thumb and joint while grasping and holding objects.
She indicated that her job required her to pull junk file jackets each month out of the file cabinets
and rearrange them back into the cabinets based on the monthly roster. Appellant indicated that
she first became aware of her condition and first attributed the condition to her employment on
January 1, 2013. On the reverse side of the claim form, appellant’s supervisor provided the
information that appellant had resigned, effective October 17, 2014.
In a letter dated August 13, 2015, OWCP requested that appellant provided additional
factual and medical evidence in support of her occupational disease claim. It noted that she
resigned from her position effective October 17, 2014. OWCP requested medical evidence of a
diagnosed condition and allowed appellant 30 days to submit the requested information.
Appellant submitted a series of notes Access Family Healthcare, signed by a physician
assistant whose signature is illegible. Dr. Warren D. Turner, a physician Board-certified in
emergency medicine, completed treatment notes beginning November 23, 2009 through
December 20, 2011 addressing appellant’s ongoing knee conditions. He described appellant’s
chronic back pain beginning on January 24, 2012. On May 20, 2013 Dr. Turner noted that
appellant underwent knee surgery in November 2010 but continued to experience bilateral knee
and back pain.
Dr. Stephen Saglio, a Board-certified family practitioner, first examined appellant on
November 26, 2012 due to essential hypertension. He listed her problems at that time to include
low back pain, thumb pain, and wrist pain. Appellant continued to seek treatment from
Dr. Saglio from December 27, 2012 through January 7, 2014 for conditions not related to her
occupational disease claim.
On February 14, 2014 Dr. Saglio examined appellant due to thumb and wrist pain. He
noted that appellant had pain with resisted thumb flexion and diagnosed thumb pain and thumb
flexor tendinitis. In a note dated August 22, 2014, Dr. Saglio described appellant’s complaints of
right hand pain near the base of the thumb. He noted that her pain was worse when she gripped
and had been bothering appellant for one year. Dr. Saglio examined appellant on September 17,
2014 and reported that appellant attended hand therapy and also noted findings of thumb pain.
He diagnosed thumb pain. On September 29, 2014 Dr. Saglio found right wrist pain located
laterally on the radial side. He noted that appellant had an orthotic crafted and requested x-rays.
Dr. Saglio diagnosed wrist pain.
Appellant underwent hand and wrist x-rays on
September 30, 2014. On October 8, 2014 Dr. Saglio noted appellant’s complaints of thumb and
wrist pain. A note dated June 10, 2015 includes a list of current problems including thumb pain.
Appellant submitted a referral from Duluth Family Medicine dated September 11, 2015
diagnosing right hand pain and carpal tunnel syndrome.3
On September 15, 2014 Susan Trinity, an occupational therapist, treated appellant for
right thumb flexor tendinitis.
3

The signature on this note is illegible.

2

By decision dated September 21, 2015, OWCP denied appellant’s claim for an
occupational disease as she failed to submit medical evidence of a diagnosed condition and also
failed to submit medical evidence attributing her condition to her employment.
LEGAL PRECEDENT
OWCP regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”4 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.5
ANALYSIS
The Board finds that appellant has not submitted sufficient medical evidence to establish
her occupational disease claim.
Dr. Saglio diagnosed, among other maladies, thumb flexor tendinitis on
February 14, 2014.6 Appellant has submitted medical evidence of a diagnosed condition. She
also provided factual evidence in support of her claim as she attributed her right hand and thumb
condition to pulling junk jackets out of filing cabinets and on a monthly basis since 2012.
Appellant resigned from the employing establishment effective October 17, 2014. The Board
finds, however, that the medical evidence submitted fails to establish a causal relationship
between appellant’s diagnosed condition and her accepted employment activities.
Dr. Turner did not provide a diagnosis of a right hand or thumb condition. His reports,
therefore, cannot meet appellant’s burden of proof to establish an occupational disease resulting
in a right hand condition. Dr. Saglio indicated on August 22, 2014 that appellant’s right thumb
pain due to her diagnosed condition of thumb flexor tendinitis was worse when she gripped and
had been bothering appellant for one year. While this note implicates appellant’s employment
activity, he did not offer any opinion regarding the relationship between appellant’s employment
and her condition.
4

20 C.F.R. § 10.5(q).

5

Lourdes Harris, 45 ECAB 545, 547 (1994).

6

The Board notes that the majority of the medical records address appellant’s hand and thumb pain. The Board
has held that the mere diagnosis of “pain” does not constitute the basis for payment of compensation. Robert
Broome, 55 ECAB 339 (2004).

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Appellant also provided treatment notes from an occupational therapist and a physician
assistant. Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered physicians as defined under FECA.7
Consequently, their medical findings will not suffice for purposes of establishing entitlement to
FECA benefits.8 There is no other medical evidence of record addressing appellant’s diagnosed
right hand or thumb condition and her employment, appellant has failed to meet her burden of
proof to establish her occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between her diagnosed right thumb flexor tendinitis and her
implicated employment duties. Due to this deficiency, appellant has failed to meet her burden of
proof in establishing her occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
7

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

8

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 13-34
Issued: June 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 4, 2012 appellant filed a timely appeal from an April 6, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which affirmed the termination of
his wage-loss compensation.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
benefits effective September 8, 2011.

1

Under the Board’s Rules of Procedure, the 180-day period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit decision was
issued on April 6, 2012, the 180-day computation begins to determine the timeliness of the appeal from that decision
on April 7, 2012, and 180 days from April 7, 2012 was October 4, 2012, the date appellant’s appeal was received by
the Board. Accordingly, appellant’s appeal was timely filed.

On appeal appellant contends that the medical evidence submitted by his treating
physician supports that he is unable to work because of his employment-related injury.
FACTUAL HISTORY
On October 20, 2008 appellant, then a 31-year-old temporary border patrol agent, filed a
traumatic injury claim alleging that he injured his back while doing dumb bell squats during
physical training period. He returned to light-duty work after the injury and missed periodic time
for appointments. On January 14, 2009 OWCP accepted appellant’s claim for a lumbar sprain.
It later accepted displacement of a lumbar intervertebral disc without myelopathy. Appellant
was initially treated with conservative care. On November 20, 2009 OWCP approved low back
disc surgery. On January 6, 2010 appellant underwent a lumbar laminotomy and discectomy at
L4, right. OWCP paid wage-loss compensation for total disability.
On April 14, 2010 the employing establishment terminated appellant’s employment,
noting that he was a temporary employee and had not been medically released to return to full
duty. It further noted that he failed to complete the Academy Training Program.
In a June 10, 2010 report, Dr. Gregory Misenhimer, an attending Board-certified
orthopedic surgeon, stated that appellant continued to experience pain and discomfort in his back
without significant pain and discomfort in his lower extremity. He opined that appellant would
benefit from a work hardening/work conditioning program.
In a June 15, 2010 report, Dr. Terry Klein, a Board-certified family practitioner, stated
that appellant had a disc herniation at L4-L5 and L5-S1 status post surgery. He asked appellant
to increase his exercise on his own. Dr. Klein noted that appellant’s work status was “no work
per Dr. Misenhimer.”
On June 28, 2010 OWCP referred appellant to Dr. Randy Pollet, a Board-certified
orthopedic surgeon, for a second opinion. In a July 12, 2010 report, Dr. Pollet diagnosed
appellant with resolving lumbar sprains and strain/herniated nucleus pulposus post surgery. He
opined that the surgery was successful, but that there continued to be symptoms of unresolved
disc disease in the low back secondary to the work-related injury of the lumbar sprain and the
displaced lumbar intervertebral disc without myelopathy. Dr. Pollet noted limitations of low
back motion, spasm, rigidity and weakness in both lower extremities along with a normal
neurological examination. He opined that appellant could return to full-time work beginning at a
sedentary or light-duty position and opined that appellant should attempt to return to gainful
employment on August 1, 2010. Dr. Pollet noted that appellant should initially be placed at a
sedentary or light-duty position.
In an August 2, 2010 report, Dr. Misenhimer noted that appellant had not been able to
undergo a work hardening program as no such program was available to him and that it would be
“absolutely counterproductive” for him to travel between Las Cruces and El Paso for such a
program. He believed a work hardening program in Las Cruces would definitely be beneficial
for appellant and would allow him to be able to return to work sooner than his current situation.
In a September 2, 2010 report, Dr. Misenhimer stated that he disagreed with Dr. Pollet’s opinion
that appellant could return to full and active duty over the course of 12 weeks after a return to

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work. He found that he had far too much lower back pain as a result of his injury, the delay in
appropriate treatment and the inflammatory reaction as a result of the surgical procedure.
Dr. Misenhimer noted that appellant still had fairly significant pain and discomfort in his back
indicating an ongoing inflammatory process in the intervertebral disc space at eight months
postop. He noted that, if he underwent appropriate work hardening/work conditioning, that some
of the pain and discomfort may be alleviated, but opined that he may eventually require another
surgical intervention to remove the intervertebral disc that has become extremely painful and
replace it with an artificial disc at the L4 level or a fusion of L4 to L5. Dr. Misenhimer noted
that, for a man of appellant’s age and activity level, the artificial disc replacement would be the
ideal form of treatment, and that he did not believe that a fusion would be in appellant’s best
interest. In a September 16, 2010 report, he stated that the effects of the work injury have not
ceased at this time, and that appellant’s prognosis was good to recover from his current situation
to be able to return to some form of gainful employment. Dr. Misenhimer noted that the effects
of appellant’s employment-related injury have not ceased, and that they do limit his activities by
preventing him from engaging in normal activities including bending, lifting, and twisting, which
causes an increased pain and discomfort in his back which prevents the employee from returning
to his previous job.
By letter dated October 1, 2010, OWCP referred appellant to Dr. Thomas Grace, a Boardcertified orthopedic surgeon, to resolve the conflict between Drs. Misenhimer and Pollet with
regard to appellant’s work capabilities. In an October 11, 2010 report, Dr. Grace listed his
impressions as lumbar radiculitis secondary to herniated disc L4-5; and status post surgery with
an improvement of symptoms. He noted that appellant has improved, but continued to have
problems. Dr. Grace noted that appellant will probably reach a point of maximum medical
improvement approximately January 6, 2011. He stated that he would lean toward the opinion of
Dr. Misenhimer to allow appellant more time and rehabilitation to transpire over the next three
months.
In an October 5, 2010 report, Dr. Klein found that appellant could do work duty with
lifting limits of 15 pounds, and that he would be able to return to a full-duty position in six
weeks. On February 15, 2011 he found appellant stable.
In a November 15, 2010 note, Dr. Misenhimer indicated that he believed appellant could
return to full and active duty with the employing establishment as of December 1, 2010. In a
February 14, 2011 report, he stated that, although appellant had been released to full and active
duty at work, there was no position available for him at the employing establishment.
Dr. Misenhimer stated that he would like appellant to continue with the current level of activity.
In a February 15, 2011 report, Dr. Klein stated that appellant was stable and that his
employment was full duty.
On May 16, 2011 Dr. Misenhimer evaluated appellant and noted that he continued to
have residuals of problems with his low back and exiting nerve roots around the disc herniation
that was removed and suggested further testing. He noted that appellant stated that he was
“essentially no better than he was prior to the surgical procedure.” In a July 6, 2011 report,
Dr. Misenhimer indicated that he would like to keep appellant off work for the next six weeks.

3

On July 28, 2011 OWCP proposed terminating appellant’s wage-loss compensation as
the injury-related disability had ended. It noted Dr. Misenhimer’s February 14, 2011 report in
support of the recommended termination.
In an August 17, 2011 report, Dr. Misenhimer noted that appellant continued to complain
of significant pain and discomfort in his back. He opined that appellant was not able to return to
work until he could establish the source of his pain. Dr. Misenhimer therefore concluded that
termination of appellant’s benefits was inappropriate and that appellant was unable to work at
any occupation for the time being. He further opined that, with appropriate identification and
treatment of his problem, appellant would be able to return to some form of gainful employment,
although not with the employing establishment.
In a decision dated September 8, 2011, OWCP terminated appellant’s wage-loss
compensation benefits effective the date of the decision. It did not terminate his medical
benefits.
In a September 28, 2011 report, Dr. Misenhimer indicated that appellant’s physical
condition had changed since his last functional capacity evaluation in October 2010. He opined
that, at this time, appellant was not able to return to any form of gainful employment secondary
to the continued pain and discomfort in his back. In response to the September 8, 2011 decision,
Dr. Misenhimer indicated that he never stated that appellant could return to full and active duty
with the employing establishment; rather the statements were made in the hopes that, with
certain treatments, appellant could return to full and active duty. However, he opined that
appellant was not able to return to full and active duty at this time. Dr. Misenhimer opined that
appellant was not able to lift 80 pounds and that he was unable to perform at a heavy physical
demand level due to pain and discomfort in his back, which is related to the L3, L4 and L5
intervertebral discs. He noted that his request for a discogram had been denied. In subsequent
reports dated November 9 and December 20, 2011, Dr. Misenheimer continued to request
approval for a discogram.
On October 4, 2011 appellant requested a telephonic hearing before an OWCP hearing
representative.
In a November 14, 2011 report, Dr. Klein stated that he believed that appellant should
seek employment in a position that does not require repetitive bending, stooping and squatting
with lifting limits of 10 pounds.
At the hearing held on February 8, 2012, appellant testified with regard to his medical
care. He noted that, after the accident, he was placed on light duty and missed work for physical
therapy and doctor’s appointments. Appellant noted that he last worked for the employing
establishment on April 19, 2010 and that he was then fired because he had not met benchmarks
for becoming an agent due to his injury. He noted that he had not worked since that time.
By decision dated April 6, 2012, OWCP’s hearing representative affirmed the
September 8, 2011 decision terminating appellant’s wage-loss compensation benefits.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
ANALYSIS
OWCP accepted appellant’s claim for sprain of the lumbar region of his back and
displacement of lumbar intervertebral disc without myelopathy.
It paid intermittent
compensation benefits for total disability subsequent to his surgery on January 6, 2010. OWCP
terminated appellant’s compensation benefits effective September 8, 2011. The Board finds that
OWCP did not meet its burden of proof when it terminated his compensation benefits.
The Board notes that a conflict initially arose between Dr. Misenhimer, appellant’s
treating surgeon, and the second opinion surgeon, Dr. Pollet, with regard to appellant’s ability to
return to work. In order to resolve the conflict, OWCP referred appellant to Dr. Grace for an
impartial medical examination. In an October 11, 2010 report, Dr. Grace stated that he would
lean toward the opinion of Dr. Misenhimer and allow appellant more time and rehabilitation.
Accordingly, OWCP continued to pay wage-loss compensation.
Appellant continued to receive treatment from Dr. Misenhimer and Dr. Klein.
Dr. Misenhimer, at various times, expressed optimism with regard to appellant’s ability to
eventually return to work. However, he continued to note disabling effects from the accepted
injury until his report of November 15, 2010, when he noted that appellant could return to full
and active-duty work. In a February 14, 2011 report, Dr. Misenhimer stated that, although
appellant had been released to full and active duty at work, there was no position available for
him at the employing establishment and he would like to see appellant continue with the current
level of activity. He started to change his conclusion in his May 16, 2011 report wherein he
noted that appellant continued to have residuals of problems with his low back and suggested
further tests. When OWCP, on July 28, 2011, proposed to terminate appellant’s compensation
benefits, it noted that on February 14, 2011 Dr. Misenhimer indicated that appellant was capable
of performing his usual job. However, he responded to the proposed termination in an
August 17, 2011 report wherein he indicated that appellant was not able to return to work until
the source of his pain could be determined. Dr. Misenhimer opined that termination of
appellant’s benefits was inappropriate and that he was unable to work at any occupation for the
time being.
Nevertheless, OWCP still terminated appellant’s compensation on
September 8, 2011. The Board finds that this was improper.
OWCP had the burden of proof to terminate compensation; it should not terminate
compensation without establishing either that the disability had ceased or was no longer related
2

Curtis Hall, 45 ECAB 316 (1994).

3

S.M., Docket No. 12-1414 (issued February 25, 2013).

5

to the employment.4 Dr. Misenhimer, at the time of termination of benefits, indicated that
appellant was unable to work. Subsequent to the termination of benefits but prior to the decision
by the hearing representative, he continued to opine that appellant could not return to work.
Dr. Misenhimer noted that he never indicated that appellant could return to full and active duty at
the employing establishment, rather he had indicated his belief that appellant could, after certain
treatments, return to some employment. He noted that appellant could not do heavy physical
labor. Accordingly, Dr. Misenhimer was of the strong belief that appellant’s employmentrelated disability had not ceased. OWCP’s hearing representative indicated that Dr. Misenhimer
did not provide adequate rationale for his belief that appellant was unable to return to work.
However, it is the burden of OWCP to prove that appellant’s disability had ceased in order to
terminate compensation benefits, not the burden of appellant to prove that he could not work.5
The Board notes that the hearing representative cited to the case of Charlene V. Mialeedstrom6
and contended that the physician in that case changed his mind about disability but that the
Board found that this change in opinion was not supported by rationalized evidence. However,
in Mialeedstrom, the Board relied in large part on the opinion of a different physician who
specifically indicated that appellant had no further residuals and was no longer disabled due to
her work injury. No physician in the present case made such a statement. Appellant’s other
treating physician, Dr. Klein, is a Board-certified family practitioner whereas Dr. Misenhimer
was appellant’s treating Board-certified orthopedic surgeon. Dr. Klein continually deferred to
Dr. Misenhimer’s opinions with regard to appellant’s work capabilities. Therefore, his opinion is
not sufficient to establish no continuing disability.
The evidence of record is not sufficient to establish that appellant’s disability had ceased
in this case. Accordingly, the Board finds that OWCP did not meet its burden of proof.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 8, 2011.

4

A.S., Docket No. 12-1509 (issued March 5, 2013).

5

Id.

6

Docket No. 02-1847 (issued June 13, 2003).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2012 is reversed.
Issued: June 26, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, U.S. NAVAL
ACADEMY, Annapolis, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-0310
Issued: February 15, 2017

Case Submitted on the Record

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

On November 23, 2016 appellant filed a timely appeal from an August 22, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as untimely filed and insufficient to demonstrate clear evidence of error. The
Board docketed the appeal as No. 17-0310.
The Board has duly considered this matter and finds that the case is not in posture for
decision. On January 7, 2003 appellant, then a 36-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging that on November 26, 2002 she sustained pinched nerves in both shoulders
and her neck due to repairing a ceiling for painting. OWCP accepted the claim for cervical strain
and aggravation of cervical degenerative intervertebral disc.
On August 25, 2011 appellant filed a claim for a schedule award. By decision dated
April 11, 2012, OWCP granted appellant a schedule award for one percent permanent
impairment of the right lower extremity and one percent permanent impairment of the left lower
extremity, which ran for 5.76 weeks. By decision dated August 9, 2012, an OWCP hearing
representative set aside the schedule award and remanded the case to OWCP to correctly identify
the parts of the body sustaining permanent impairment. By decision dated August 15, 2012,
OWCP granted appellant a schedule award for one percent permanent impairment of the right
upper extremity and one percent permanent impairment of the left upper extremity.

On May 25, 2016 OWCP received appellant’s request for reconsideration of the
August 15, 2012 impairment rating. Appellant contended that her condition had worsened over
the years. In support of her request, she submitted an October 27, 2011 report by Dr. William
Tham, a treating Board-certified physiatrist. Using Table 17-2 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed.), Dr. Tham determined
that appellant had 24 percent permanent impairment of the cervical spine.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on her medical condition at that
time, this is a request for reconsideration. A claim for an additional schedule award may be
based on new exposure to employment factors or on the progression of an employment-related
condition, without new exposure, resulting in greater permanent impairment.1
The Board finds that appellant alleged that her accepted cervical condition worsened and
submitted new medical evidence regarding her current condition. The Board has repeatedly held
that a claimant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing the possible progression of an
employment-related condition resulting in permanent impairment or increased impairment.2 The
Board finds, therefore, that OWCP erroneously issued a denial of appellant’s request for
reconsideration under the clear evidence of error standard. On remand, OWCP should review
the medical evidence and issue an appropriate decision regarding her request for an increased
schedule award.

1

See B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB 622 (2005).

2

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K., id. (where it
was evident that the claimant was seeking a schedule award based on new and current medical evidence, OWCP
should have issued a merit decision on the schedule award claim rather than adjudicate an application for
reconsideration).

2

IT IS HEREBY ORDERED THAT the August 22, 2016 of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this order of the Board.
Issued: February 15, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 09-1948
Issued: June 29, 2010

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

On July 27, 2009 appellant, through her representative, filed a timely appeal from a
June 29, 2009 decision of the Office of Workers’ Compensation Programs denying her request
for reconsideration on the grounds that it was untimely filed and failed to present clear evidence
of error.
The Office accepted that on September 14, 1999 appellant, then a 31-year-old mail
carrier, sustained a cervical and thoracic strain, as well as a right shoulder sprain while carrying
an unusually heavy mailbag. It subsequently expanded the claim to include a labral tear or slap
lesion of the right shoulder. The Office placed appellant on the periodic rolls on
September 10, 2000. By decision dated December 6, 2005, it terminated her wage-loss and
medical benefits on the grounds that she did not have any residuals or disability due to her
employment-related condition as found by an impartial medical examiner.1 This decision was
affirmed on June 14, 2006 by an Office hearing representative.2

1

The Office initially terminated appellant’s benefits effective August 8, 2004. However, this decision was set
aside by a June 10, 2005 Office hearing representative decision on the grounds that a conflict of medical opinion
existed requiring resolution by an impartial medical examiner.
2

The Office hearing representative also modified the decision to provide wage-loss compensation until
October 14, 2005, the day of the impartial medical examination.

On July 14, 2006 appellant, through her representative, filed a claim for a schedule award
and submitted medical evidence relevant to her claim. On July 31, 2006 she requested an oral
hearing, noting that there was a distinction between disability and impairment.
In an August 18, 2006 decision, the Branch of Hearings and Review found that the case
was not in posture for a hearing as no final decision had been issued. No further action was
taken until, at the request of appellant, the Office provided a September 26, 2007 letter
describing the posture of the case and advising that she could appeal the June 14, 2006 decision
terminating benefits.
On September 23, 2007 appellant’s representative requested that the Office correct any
confusion in the case and as no decision had been issued on the schedule award claim. On
October 17, 2007 appellant’s representative noted that a request for a schedule award was
distinct from the issue of termination of benefits and requested that a final decision be issued.
By letter dated October 26, 2007, the Office advised that the issue of a schedule award would not
be developed because benefits were previously terminated. It referred appellant to the July 21,
2006 letter.
On June 25, 2009 appellant requested reconsideration on the grounds that the Office’s
previous decisions were erroneous and submitted additional evidence.
By decision dated June 29, 2009, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely filed and did not establish clear evidence of
error.
The Board has duly considered the matter and finds that the case is not in posture for
decision. After the Office’s termination of benefits, appellant filed a claim for schedule award.
On July 21, 2006 the Office notified her that it would not develop the schedule award claim as
her benefits had been terminated. It inappropriately treated appellant’s claim for a schedule
award as an untimely request for reconsideration of the termination decision. The Board finds
that the Office failed to develop appellant’s schedule award claim.
As noted by counsel, there is a distinction between the concept of disability and that of
permanent impairment.
Schedule awards are included under the Federal Employees’
Compensation Act to indemnify for the loss of or loss of use of specific members or functions of
the body without regard to loss of wage-earning capacity.3 Awards under the schedule for
permanent impairment are mandatory forms of compensation and represent the maximum
payable under the Act for impairment; regardless of whether the claimant has a loss of wageearning capacity after payment of a schedule award.4 The Board has held that the Office must
not summarily deny a claim for a schedule award on the grounds that there was an earlier finding
that an employee had no residuals of an employment-related injury, sufficient to terminate wageloss compensation and medical benefits.5

3

Lorraine B. Ford, 10 ECAB 232 (1958).

4

Murrell Ritter, 11 ECAB 504 (1960).

5

B.S., 61 ECAB ___ (Docket No. 09-195, issued October 9, 2009).

2

The case will be remanded for adjudication of appellant’s claim for a schedule award.
Following further development, the Office shall issue a de novo decision including findings of
fact and a statement of reasons, accompanied by appeal rights.6
IT IS HEREBY ORDERED THAT the June 29, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order.
Issued: June 29, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6

See 20 C.F.R. § 10.126.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redmond, WA, Employer
__________________________________________

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

Docket No. 14-72
Issued: July 17, 2014

Oral Argument June 4, 2014

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

JURISDICTION
On October 7, 2013 appellant filed a timely appeal from May 17 and September 6, 2013
merit decisions of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation benefits. 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 claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective May 17, 2013.
Appellant argued on appeal, inter alia, that referral to the impartial medical examiner was
improper as there was no dispute between his physician and the second opinion physician; that
there is no medical evidence as to how and when the aggravation of his migraine headaches
resolved; that his underlying medical condition has not resolved; and that OWCP ignored their
own accepted diagnosis.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been previously before the Board. On July 24, 2008 appellant, then a
47-year-old mail processor, alleged that, on June 23, 2008, he experienced a severe and ongoing
sense of dizziness and loss of balance due to photosensitivity from exposure to bright lighting in
his workplace. He noted that he developed a migraine headache shortly thereafter in the
hospital. OWCP denied appellant’s claim and his request for reconsideration, but on August 19,
2010, the Board remanded the case for OWCP to review the case on the merits. The facts as set
forth in the Board’s prior decision are hereby incorporated by reference.2
Subsequent to the Board’s remand of the case, on December 13, 2010, OWCP accepted
appellant’s claim for temporary aggravation of migraine headache.
In a January 3, 2011 report, Dr. Janine R. Cooley, appellant’s treating Board-certified
family practitioner, noted that appellant had active problems with allergic rhinitis, anal fissure,
depression, diverticulitis of colon, hemochromatosis, irritable bowel syndrome, migraine
headache and vertigo.
By letter dated January 15, 2011, appellant asked that additional diagnoses codes be
added so that treatment of vertigo, dizziness, sensitivity to bright light and depression will be
reimbursed. In a January 21, 2011 CA-110 note, OWCP indicated that temporary vertigo “will
be added today as an accepted condition because it was diagnosed in the medical reports.”
On October 19, 2011 OWCP terminated appellant’s compensation and medical benefits
effective October 23, 2011. However, by decision dated March 30, 2012, an OWCP hearing
representative found that OWCP had not met its burden to terminate his benefits. The case was
returned to OWCP for a rationalized medical opinion showing whether the accepted temporary
aggravation of the preexisting migraine headaches had ceased, to be followed by a de novo
decision.
OWCP referred appellant to Dr. Lewis B. Almaraz, a Board-certified neurologist, for a
second opinion. In his May 22, 2012 opinion, Dr. Almaraz listed appellant’s condition as an
administratively accepted condition of migraine headache. He opined that the accepted
temporary aggravation of preexisting migraine headaches ceased when appellant discontinued
work in 2009. Dr. Almaraz noted that appellant’s primary underlying headache disorder has
continued, which represented the natural history of his preexisting condition. He noted that there
was no medical evidence of such material worsening that appellant could no longer work in an
environment of bright light. Dr. Almaraz explained that, although appellant’s head pain is worse
when exposed to fluorescent lighting or other bright lights, this does not represent a material
worsening; it was just part of his headache syndrome. He did recommend that appellant not be
exposed to fluorescent bright lighting.
In June 25, 2012 and May 7, 2013 progress notes, Dr. Nancy L. Linscott, appellant’s
treating Board-certified family practitioner, listed his active problems, including allergic rhinitis,
depression, migraine headache and vertigo.
She noted generalized headache pain,
2

Docket No. 10-270 (issued August 16, 2010).

2

chronic/recurring, worsening with exposure to fluorescent lighting and noted that the difficulty
functioning at work started in 2009. Dr. Linscott assessed migraine headache and vertigo and
listed work restrictions of no fluorescent lighting exposure.
OWCP noted in a July 25, 2012 “Statement of Conflict” that the second opinion
physician, Dr. Almaraz, stated that appellant’s temporary aggravation of preexisting migraine
headaches had ceased when he discontinued work in 2009, but that the attending physician,
Dr. Linscott, stated that appellant continued to have ongoing migraine headaches and vertigo and
that no florescent lighting exposure was allowed. As it found that a conflict existed between
appellant’s treating physician, Dr. Linscott, and the second opinion examiner, Dr. Almaraz,
regarding whether appellant’s current medical restrictions were related to the date of injury, on
August 15, 2012 OWCP referred appellant to Dr. Linda Wray, a Board-certified neurologist, for
an impartial medical examination.
In an October 3, 2012 report, Dr. Wray noted diagnoses of migraine with aura,
preexisting and unrelated to the industrial claim of June 23, 2008; and normal neurological
examination. She opined that the accepted temporary aggravation of preexisting migraine
disorders by lighting in the workplace clearly ceased when appellant discontinued work in 2009.
Dr. Wray stated that it was unclear why other accommodations such as wearing tinted eyewear
or moving into a different work setting were not explored instead of putting appellant on medical
disability. She noted no workplace restrictions based on this claim, noting that his migraine
disorder is a preexisting nonindustrially-related condition. Dr. Wray also stated that part of the
management of chronic migraines includes avoidance of consistent triggers, but that the triggers,
while they may provide individual attacks of migraines, do not in themselves change the long
term natural history or behavior of this nonindustrial disorder. She agreed that it would be better
for appellant to avoid bright fluorescent lighting on a long-term basis, but indicated that this
would be related to his preexisting or chronic migraine disorder and not to any specific industrial
incident or injury on June 23, 2008.
On April 15, 2013 OWCP issued a notice of proposed termination as the
employment-related temporary aggravation of the preexisting condition of migraine headaches
had ceased or is no longer related to the accepted employment injury. It noted that because
appellant was no longer exposed to work factors that caused the temporary aggravation, his
current condition is related to the natural progression of his preexisting condition.
By decision dated May 17, 2013, OWCP terminated appellant’s compensation benefits
effective that date.
In a letter to appellant dated June 12, 2013, OWCP indicated that the diagnosis of
temporary vertigo discussed in a January 21, 2011 note was not a formal acceptance and that, if
this condition was added, then it was in error. It noted that, as there was never a formal
acceptance of the condition, there is no need to rescind an acceptance.
By decision dated September 6, 2013, an OWCP hearing representative affirmed the
May 17, 2013 decision terminating benefits.

3

LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which requires further medical treatment.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 When 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 on a proper factual background, must be
given special weight.8
ANALYSIS
OWCP accepted appellant’s claim for temporary aggravation of migraine headache.
Appellant’s physicians, Dr. Cooley and Dr. Linscott noted continued issues with migraine
headaches and vertigo, among other medical conditions. Dr. Linscott noted that appellant’s
recurring headache pain worsened with exposure to fluorescent lighting and noted that he had
difficulty functioning at work starting in 2009. She listed work restrictions of no fluorescent
lighting exposure. The second opinion physician, Dr. Almaraz, stated that the temporary
aggravation of appellant’s preexisting migraine headaches ceased when he discontinued work in
2009. He noted that appellant’s primary underlying headache disorder had continued, which
represented the natural history of his preexisting condition. Dr. Almaraz recommended that
appellant not be exposed to fluorescent bright lighting, but explained that this does not represent
a material worsening, just a continuation of his preexisting headache syndrome.
The Board finds that OWCP properly found that there was a conflict between the opinion
of appellant’s treating physician, Dr. Linscott, and the second opinion physician, Dr. Almaraz
regarding whether appellant had any residuals from the accepted injury of temporary aggravation
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

See also M.C., Docket No. 14-283 (issued April 28, 2014); see Manuel Gill, 52 ECAB 282 (2001).

4

of migraine headache. As there was a conflict in the medical opinions between appellant’s
treating physician and the second opinion physician with regard to whether appellant had any
continuing residuals from the accepted employment condition, OWCP properly referred the case
to an impartial medical examiner to resolve the conflict,9 pursuant to 5 U.S.C. § 8123(a).
In the October 3, 2012 report, the impartial medical examiner, Dr. Wray, diagnosed
appellant with migraine with aura, preexisting and unrelated to the industrial claim of
June 23, 2008. She opined that the accepted temporary aggravation of his preexisting migraine
disorders by lighting in the workplace clearly ceased when appellant discontinued work in 2009.
Dr. Wray further opined that no workplace restrictions were based on this claim, noting that
appellant’s migraine disorder is a preexisting condition. Although she agreed that it would be
better for him to avoid bright fluorescent lighting on a long-term basis, she specifically indicated
that this restriction would be related to his preexisting or chronic migraine disorder and not to
any specific industrial incident or injury of June 23, 2008.
The Board finds that OWCP properly terminated appellant’s compensation and medical
benefits based on the well-rationalized opinion of Dr. Wray, the impartial medical examiner,
who noted that as he had no workplace exposure to fluorescent lighting since 2009, any current
migraine headaches would be related to his underlying condition. When an aggravation is
temporary and leaves no permanent residuals, compensation is not payable for periods after
aggravation has ceased, even if the employee is medically disqualified from continuing
employment due to the underlying condition.10 Appellant’s argument that because he has
permanent restrictions the aggravation was permanent is not supported by the medical evidence.
The fact that he still suffered from migraine headaches due to his underlying condition or the fact
that he had medical restrictions limiting his exposure to fluorescent lighting does not mean that
he had a continuation of the accepted condition. OWCP properly gave special weight to the
well-rationalized opinion of the impartial medical examiner, Dr. Wray and terminated
appellant’s medical and compensation benefits due to the fact that the employment-related
aggravation of his migraine headaches had ceased.11
Appellant argued in his appeal papers and at oral argument that OWCP ignored an
accepted diagnosis of vertigo. However, OWCP never accepted his claim for vertigo. The
January 21, 2011 note was an internal OWCP note indicating that temporary vertigo would be
accepted, but there never was a final decision indicating that OWCP accepted this condition.

9

S.S., Docket No. 13-1183 (issued February 4, 2014).

10

See also D.G., Docket No. 09-660 (issued November 24, 2009); see Raymond W. Behrens, 50 ECAB
221 (1999).
11

S.N., Docket No. 08-1869 (issued May 5, 2009).

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For these reasons, OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective May 17, 2013.12
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective May 17, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6 and May 17, 2013 are affirmed.
Issued: July 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

The hearing representative correctly noted that the fear of reinjury or possible recurrence of disability is not the
basis for payment of compensation. See S.N., Docket No. 13-2069 (issued February 21, 2014); see also Mary A.
Geary, 43 ECAB 300 (1991). However, the Board notes that in the instant case, the issue is not fear of future injury,
but rather whether appellant had any continuing work restrictions advising him to avoid fluorescent lighting at work
due to the accepted employment injury.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W. Appellant
and
DEPARTMENT OF THE ARMY, CRANE
ARMY AMMUNITION ARSENAL, Crane, IN,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0756
Issued: February 11, 2021

Case Submitted on the Record

ORDER REVERSING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 6, 2020 appellant filed a timely appeal from a September 13, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0756.1
The issues on appeal before the Board relate to OWCP’s finding of an overpayment of
wage-loss compensation benefits due to appellant’s alleged concurrent receipt of Federal
Employees’ Compensation Act2 (FECA) wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits without an appropriate offset for benefits
attributable to the Federal Employees Retirement System (FERS).

1
The Board notes that, following the September 13, 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.
2

5 U.S.C. § 8101 et seq.

The Board finds that OWCP failed to properly develop the underlying issue of what portion of
appellant’s SSA age-related retirement benefits were attributable to federal employment.3
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation.4 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service.5 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.6 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of age-related SSA retirement compensation, the Board has observed that
OWCP uses a FERS Offset Calculation Worksheet.7 This calculation worksheet is sent to SSA
and the completed form is returned to OWCP setting forth purported SSA calculations as to the
effective date and rate of SSA benefits without FERS and the effective date and rate of SSA
benefits with FERS.8 Following receipt of the purported SSA calculations, a preliminary
determination of overpayment is issued if a prohibited dual benefit was received.9
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service
Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal
retirement program. Therefore, OWCP’s procedures with regard to requesting offset information
are not applicable to all recipients of FECA compensation and SSA age-related retirement benefits.
Therefore, the information solicited on the FERS Offset Calculation Worksheet that OWCP sends
to SSA is not applicable to non-FERS claimants and does not establish either the fact or amount
of an overpayment.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. The
case record contains election of benefits documents indicating that appellant was covered under
the Civil Service Retirement System, not FERS. The Board therefore finds that the September 13,
2019 decision must be reversed.

3

J.L., Docket No. 19-1806 (issued July 29, 2020).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management -- Identifying and Calculating an Overpayment,
Chapter 6.200.1 (h), (September 2018).
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

FECA Bulletin No. 97-09 (issued February 3, 1997).

7

Id.

8

Id.

9

Supa note 2.

2

IT IS HEREBY ORDERED THAT the September 13, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 11, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1587
Issued: January 2, 2019

Case Submitted on the Record

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

JURISDICTION
On July 14, 2017 appellant, through counsel, timely appealed from a March 21, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her claim should
be expanded to include diastasis, cystic changes of the ankle, and/or intra-articular osseous body
conditions as causally related to the accepted April 12, 2016 employment injury.
FACTUAL HISTORY
On April 12, 2016 appellant, then a 37-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she sustained an injury to her right ankle
when she tripped over a cord in the grass and rolled her right ankle while in the performance of
duty. She stopped work on the date of injury.
An April 21, 2016 magnetic resonance imaging (MRI) scan read by Dr. Gustav Ibrani, Jr.,
a podiatrist, revealed a complete rupture of both the anterior talofibular ligament (ATFL) and
calcaneofibular ligament (CFL), sprain of the posterior talofibular ligament, and possible mild
sprain of the tibiotalar deltoid ligaments. In a separate report, Dr. Ibrani requested authorization
to repair the right ankle.
By development letter dated May 13, 2016, OWCP explained that when appellant’s claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work.
Therefore, a limited amount of medical expenses were administratively approved. OWCP
explained that appellant’s claim was now reopened because she had requested authorization for
surgery. It advised her that the evidence of record was insufficient to establish her claim and it
requested that she submit additional evidence, including a physician’s opinion as to how her injury
resulted in her diagnosed condition(s). OWCP afforded appellant 30 days to submit the necessary
information.
In a May 18, 2016 report, Dr. Jacob Reinkraut, a podiatric surgeon, advised that appellant
was injured while at work on April 16, 2016. Appellant had missed a step and sustained an
inversion ankle injury. Dr. Reinkraut noted that she was seen in the emergency room with
complaints of pain, swelling, ecchymosis, and an inability to bear weight on the injured limb. He
advised that appellant was given crutches, a stirrup-type ankle air brace, and naproxen.
Dr. Reinkraut indicated that she was then seen in the Podiatry Clinic on April 19, 2016 and
diagnosed with a severe ankle sprain and avulsion fracture of the distil fibula, which was based on
clinical testing and x-rays. He advised that appellant was placed in a Jones compression and
posterior splint. Dr. Reinkraut noted that the MRI scan revealed a complete rupture of the ATFL
and CFL, a partial tear of the “Tib-Fib” ligament (possible diastasis), avulsion fracture of the distal
fibula, cystic changes to the ankle, and an intra-articular osseous body. He diagnosed severe ankle
injury with avulsion fracture of the distal fibula; sprain with ruptured ligaments; possible diastasis;
and arthritis and ossicle in the ankle joint. Dr. Reinkraut opined that “[t]his is an injury that
occurred at work and if not treated properly [appellant] could have significant post[-]traumatic
arthritis and instability.”
On May 20, 2016 OWCP received a separate report from Dr. Reinkraut explaining that
diastasis was from the injury and it would be assessed further intraoperatively. Dr. Reinkraut
advised that it was seen on MRI scan and the ossicle “could have been old along with the cystic

2

changes in the ankle joint. It is very obvious that over 85 percent of the injury is acute and from
the fall at work. Possibly 100 percent. The [procedures] necessary would be the same even if
there was no previous cystic changes or ossicle in the joint.”
In a Form CA-20, Dr. Reinkraut noted that appellant twisted her right ankle while walking
at work. He examined her on April 19, 2016. Dr. Reinkraut provided findings which included
that appellant had swelling of the right lateral ankle and ATFL and pain in the intra-articular
ligament. He checked a box marked “yes” in response to whether he believed that the condition
was caused or aggravated by an employment injury. Dr. Reinkraut filled in “twisted ankle at
work.” He advised that the injury would require surgery and placed appellant on total disability
from April 19, 2016 and continuing until July 25, 2016.
In a May 27, 2016 report, Dr. Reinkraut reiterated the history of injury and subsequent
treatments. He explained that the MRI scan revealed a complete rupture of the ATFL and CFL
along with a partial tear of the Tib Fib Ligament with possible diastasis, avulsion fracture of the
distal fibula, cystic changes to the ankle, and an intra-articular osseous body. Dr. Reinkraut
explained that “the ossicle could have been old along with the cystic changes in the ankle joint. It
is very obvious that over 85 percent of the injury is acute and from the fall at work. Possibly 100
percent. The procedures necessary would be the same even if there were no previous cystic
changes or ossicle in the joint.” Dr. Reinkraut opined “[t]his is an injury that occurred at work and
if not treated properly [appellant] could have significant post[-]traumatic arthritis and instability.”
By decision dated June 1, 2016, OWCP accepted appellant’s claim for an avulsion fracture
of the right distal fibula, right ankle sprain of tibiofibular ligament, and right ankle sprain of the
calcaneofibular ligament. It noted that the medical evidence of record also provided diagnoses of
diastasis, cystic changes of the ankle, and intra-articular osseous body. However, OWCP
explained that these conditions were not currently accepted and were still under development. It
explained that a decision would be made on the additional conditions after further development of
the claim.
OWCP authorized right ankle arthroscopy which was performed on June 22, 2016. It
denied authorization for part removal of the ankle and heel on June 7, 2016. Appellant was placed
on the periodic rolls on June 20, 2016. OWCP also denied authorization for bone marrow
aspiration.
By decision dated July 18, 2016, OWCP denied expansion of appellant’s claim for the
additional conditions of diastasis, cystic changes of the ankle, and intra-articular osseous body. It
found that she had not established that these additional conditions were causally related to her
accepted April 12, 2016 employment injury. OWCP explained that the diagnosed conditions of
avulsion fracture of right distal fibula, sprain of right tibiofibular ligament, and sprain of right
calcaneofibular ligament had been accepted because the medical evidence from appellant’s
physician in connection with the nature of the incident supported these conditions as causally
related. It explained, however, that, after a thorough review of all of the medical evidence of file,
the additional conditions of diastasis, cystic changes of the ankle, and intra-articular osseous body
were denied because appellant’s physician did not provide a well-reasoned medical opinion
regarding causal relationship.

3

In a July 19, 2016 disability certificate, Dr. Reinkraut advised that appellant had been
disabled from work since her June 22, 2016 surgery.
In a July 20, 2016 attending physician’s report, Dr. Reinkraut placed appellant on desk
work and limited her walking from August 15 to September 15, 2016.
On August 2, 2016 counsel requested a hearing, which was held on October 13, 2016. He
indicated that he had requested further explanation from Dr. Reinkraut. Counsel also argued that
the evidence was sufficient to establish causal relationship between the denied conditions and the
accepted employment injury. The record was held open for an additional 30 days to allow
appellant to submit additional medical evidence.
On October 7, 2016 OWCP referred appellant for a second opinion examination with
Dr. Timothy Henderson, a Board-certified orthopedic foot and ankle surgeon, to determine the
nature and extent of her injury-related medical residuals and disability and to determine whether
any additional conditions were causally related to the accepted work incident.
In a letter dated October 21, 2016, counsel provided an October 13, 2016 report from
Dr. Reinkraut.
In the October 13, 2016 report, Dr. Reinkraut explained that he was asked to be more
specific concerning appellant’s right ankle injury. He opined that to “the best of my medical
knowledge the rupture, severe sprain/strain, joint effusion and small avulsion fracture are directly
related to the fall on [April 12, 2016].” Dr. Reinkraut indicated that there were cystic changes,
intra-articular ossicles, and mild osteoarthritis found on MRI scan. He explained that these
changes could not be directly attributed to the traumatic fall. However, Dr. Reinkraut opined that
these chronic changes were exacerbated by this trauma. He explained that the small cystic,
osseous, and cartilaginous defects seen in mild osteoarthritis became bigger, inflamed, and painful
as a result of her trauma and this led to more severe arthritic changes including joint space
narrowing, bone on bone rubbing, instability, and painful ambulation.
In a second opinion medical report dated November 8, 2016, Dr. Henderson noted that he
examined appellant based on injuries she sustained on April 12, 2016 when she tripped over a cord
on the grass and twisted her right ankle. On physical examination he noted that she had symptoms
with movement and at rest. Dr. Henderson noted that on June 22, 2016 appellant had a right ankle
arthroscopy, synovectomy, and assessment of syndesmotic ligament and burring down of exostosis
in the ankle, open repair of the anterior talofibular ligament and calcaneofibular ligament,
Brostrom Gould procedure, along with treatment of a fracture with excision of ossicles in the
lateral ankle gutter and disable fibula. He further noted that the conditions accepted by OWCP
had not resolved as she continued to have weakness and restricted range of motion, but he
anticipated maximum medical improvement would be attained in December 2016 or six months
postsurgery. Dr. Henderson opined that appellant’s claim should not be expanded to include
additional conditions and concluded that she does not have nonwork-related disability. He
proposed further physical therapy three times each week for two months followed by a work
capacity evaluation and work hardening. Dr. Henderson advised that appellant could work a
sedentary position as long as it did not require standing, walking, climbing, or driving.

4

By decision dated December 14, 2016, OWCP’s hearing representative affirmed the
July 18, 2016 decision. She accepted that appellant sustained right distal fibula avulsion fracture,
right tibiofibular ligament sprain, and right calcaneofibular ligament sprain causally related to the
April 12, 2016, work incident. The hearing representative noted that Dr. Henderson had provided
an unrationalized opinion that appellant had not suffered additional conditions causally related to
the employment injury, but further found that the record did not contain a rationalized physician
opinion explaining how the conditions of diastasis, cystic changes of the ankle, or intra-articular
osseous body were caused or contributed to by the accepted employment injury. She noted that
Dr. Reinkraut specifically indicated in his report that the ossicle and cystic changes could have
been preexisting.
On December 21, 2016 counsel requested reconsideration and submitted additional
medical evidence. He argued that Dr. Reinkraut’s October 13, 2016 report had not been
considered by OWCP’s hearing representative. Furthermore, counsel argued that Dr. Reinkraut’s
addendum provided abundant medical rationale with regard to causal connection. He argued that
the expanded conditions should be accepted or, that in the alternative, the medical evidence of
record constituted prima facie evidence of causal relationship requiring further development of the
claim.
By decision dated March 21, 2017, OWCP denied modification of its December 14, 2016
decision. It found that the evidence of record was insufficient to establish that additional
conditions should be accepted. The decision noted that appellant had not submitted a medical
report from a qualified treating physician that established causal relationship for the additional
conditions of diastasis, cystic changes of the ankle, intra-articular ossicles, and mild osteoarthritis.
OWCP explained that even though the treating physician opined that the traumatic injury of
April 12, 2016 exacerbated the “chronic conditions,” he failed to explain how the incident
exacerbated these diagnosed conditions. It further explained that the diagnosis of “osteoarthritis”
was preexisting and, therefore, it was imperative for appellant’s physician to differentiate between
the effects of this condition and the incident of April 12, 2016.
LEGAL PRECEDENT
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3 To establish causal relationship between the condition
claimed, as well as any attendant disability, and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such causal relationship.4
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.5 Rationalized medical evidence is evidence which
3

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

4

Jennifer Atkerson, 55 ECAB 317 (2004).

5

A.S., Docket No. 08-0131 (issued June 16, 2008).

5

includes a physician’s rationalized medical opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the employment injury. 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 which
explains the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
Neither the fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by the employment injury, is
sufficient to establish causal relationship.7
ANALYSIS
The Board finds that this case is not in posture for a decision.
On October 7, 2016 OWCP referred appellant for a second opinion examination to
determine the nature and extent of her injury-related residuals and disability as well was whether
additional conditions were causally related to the accepted work incident. Dr. Henderson, selected
to perform the second opinion examination, completed a physical examination and provided
responses to a series of questions posed to him by OWCP. OWCP specifically requested that
Dr. Henderson provide his medical opinion as to whether the case should be expanded to include
additional medical conditions, and if so, to provide a detailed medical opinion as to how the
accepted employment injury had caused or aggravated the additional conditions. It did not ask
him to respond with medical reasoning in response to the attending physician’s opinion that the
additional conditions should be accepted as employment related. As such, Dr. Henderson did not
explain why he concluded that the additional conditions should not be accepted.
When OWCP undertakes to develop the evidence by referring the case to a second opinion
physician, it has an obligation to seek clarification from its physician upon receiving a report that
did not adequately address the issues that OWCP sought to develop.8 As such, the claims examiner
should seek clarification from the referral physician and request a supplemental report to obtain a
rationalized opinion from Dr. Henderson with regard to the request for expansion of the claim.
The Board will remand the case to OWCP for further development of the claim pursuant
to its procedures to determine whether the claim should be expanded to include additional
conditions. Following this and any other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
6

Leslie C. Moore, 52 ECAB 132, 134 (2000).

7

Ernest St. Pierre, 51 ECAB 623, 626 (2000).

8

E.B., Docket No. 17-0795 (issued January 18, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: January 2, 2019
Washington, DC

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

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

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

7