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

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

Docket No. 17-0380
Issued: March 9, 2018

Case Submitted on the Record

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

JURISDICTION
On December 12, 2016 appellant, through counsel, filed a timely appeal from an
October 7, 2016 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that modification of
her August 15, 2011 loss of wage-earning capacity (LWEC) determination is warranted.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On April 30, 2001 appellant then a 44-year-old letter carrier, had neck, shoulder, and arm
pain at work. OWCP accepted her claim for aggravation of degenerative disc disease of the
cervical spine. Appellant stopped work on July 18, 2001. She returned to work on
September 26, 2002, and worked intermittently thereafter. OWCP paid appellant wage-loss
compensation benefits.
Dr. Steven J. Valentino, an osteopath, saw appellant on June 13, 2001 for cervical
degenerative disc disease with neck pain radiating into her right arm which became worse when
she carried mail. Appellant’s history was significant for carpal tunnel syndrome. Dr. Valentino
diagnosed exacerbation of cervical degenerative disc disease with facet strain, and right C6
radiculopathy. He continued to treat appellant and recommend limited-duty work.4
On September 15, 2009 appellant was referred for vocational rehabilitation.
Appellant continued to be treated by Dr. Valentino, who indicated that appellant could
work full time within restrictions. In an August 24, 2010 work capacity evaluation,
Dr. Valentino diagnosed degenerative cervical disc disease and noted that appellant could return
to work full-time, sedentary duty with no reaching above the shoulder; driving limited to two
hours; repetitive movements of the wrists and elbow limited to four hours; pushing, pulling and
lifting limited to 4 hours and 10 pounds with 5-minute breaks three times a day; and one 45minute break.
In a May 13, 2010 rehabilitation plan, the vocational rehabilitation counselor noted that
the employing establishment had no work available within appellant’s medical restrictions. A
rehabilitation plan was approved with the objective of obtaining a position of accounting clerk or
customer service clerk. Those jobs were found to be within appellant’s educational capabilities
based on vocational testing and were reasonably available in her commuting area. In a
September 26, 2010 closure report, the rehabilitation counselor noted that appellant was not
cooperative with placement efforts and felt that her former employer should reemploy her.
On June 1, 2011 OWCP again referred appellant to vocational rehabilitation. The
rehabilitation counselor provided the current wages and availability for the job of accounting
clerk in appellant’s commuting area. In a June 9, 2011 report, the rehabilitation counselor

3

Docket No. 08-1545 (issued March 10, 2009); Docket No. 12-1407 (issued January 24, 2013); Docket No. 141605 (issued November 21, 2014); Order Remanding Case, Docket No. 15-1302 (issued October 8, 2015).
4
On November 14, 2007 appellant filed a claim for a schedule award (Form CA-7). On April 14, 2008 OWCP
denied appellant’s schedule award claim. Appellant appealed to the Board and, in a March 10, 2009 decision, the
Board affirmed the April 14, 2008 decision. Docket No. 08-1545 (issued March 10, 2009). On April 29, 2009
OWCP granted appellant a schedule award for nine percent permanent impairment of the right arm.

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advised that the current wages for an accounting clerk (DOT #216.482.010) were $26,620.00 per
year and that such positions were reasonably available in her commuting area.
On June 28, 2011 OWCP proposed to reduce appellant’s compensation, finding she was
partially disabled and had the capacity to earn wages as an accounting clerk, DOT #216.482.010
at the rate of $511.92 per week. The position was found to be in compliance with
Dr. Valentino’s August 24, 2010 restrictions.
In an August 2, 2011 work capacity evaluation, Dr. Valentino opined that appellant was
unable to perform her usual job and could not work eight hours per day due to pain, but could
work four hours per day with a gradual increase in hours. He noted that appellant could work
four hours per day with no reaching or reaching above the shoulder; repetitive movements of the
wrist and elbow were limited to two hours and 10 pounds; and pushing, pulling, and lifting were
limited to two hours and 10 pounds.
By decision dated August 15, 2011, OWCP reduced appellant’s compensation to reflect
her wage-earning capacity as an accounting clerk, effective August 28, 2011.5
Appellant saw Dr. Scott M. Fried, an osteopath, on August 31, 2011, who diagnosed
cervical strain/sprain with radiculopathy on the right, disc bulges at C5-6 and C6-7, radial and
medial neuropathy on the right, brachial plexopathy/cervical radiculopathy on the right, thoracic
neuritis, scapular winging, right rotator cuff strain, and capsulitis of the shoulder. Dr. Fried
opined that appellant had a significant repetitive strain injury and cervical sprain which resulted
from her work as a carrier in addition to casing and repetitive hand, wrist, and arm activities with
reexacerbations and reaggravations over her work history. He found that appellant could
perform sedentary work within certain restrictions. Dr. Fried opined that placing appellant in an
accounting job would worsen and aggravate her problem.
On September 28, 2011 Dr. Valentino reported worsening neck, right shoulder, and arm
symptoms as appellant was working on the computer and practicing her typing in an attempt to
find a job. He offered diagnoses and advised that appellant was totally disabled. Dr. Valentino
continued submitting reports noting appellant’s status.
On March 15, 2012 appellant requested reconsideration of the August 15, 2011 LWEC
determination as she was not medically able to work as an accounting clerk. She also submitted
reports from Dr. Fried. On January 11, 2012 Dr. Fried noted findings from a December 2, 2011
functional capacity evaluation (FCE) revealed diminished ability to manipulate small objects and
increased symptoms with lifting and carrying.
Appellant submitted a March 10, 2012 report from Dr. Clancy McKenzie, a Boardcertified psychiatrist, who treated her since September 14, 2011 for severe chronic pain and
major depression. Dr. McKenzie diagnosed major depression, recurrent, severe with suicidal
ideation and chronic pain syndrome, and chronic severe degenerative disc disease. He opined
5
Appellant requested a telephonic hearing on August 24, 2011. On December 29, 2011 appellant was notified
that she had failed to appear for a hearing scheduled for December 8, 2011 and she had not explained her failure to
appear. Therefore, it was determined that she had abandoned her request for a telephonic hearing.

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that appellant was 100 percent disabled. Dr. McKenzie opined that appellant’s depression was
the direct result of her cervical spine injuries.
By decision dated June 13, 2012, OWCP denied modification of its August 15, 2011
LWEC decision. It found that the medical evidence of record did not establish that appellant’s
depression was due to her employment. Appellant appealed to the Board. By decision dated
January 24, 2013, the Board affirmed the June 13, 2012 decision, finding that OWCP properly
denied modification its August 15, 2011 loss of wage-earning capacity determination.6
Appellant requested reconsideration on September 25, 2013. Medical evidence submitted
included reports from Dr. Fried, from February 14 to October 29, 2013, who diagnosed cervical
strain/sprain with radiculopathy on the right, disc bulges at C5-6 and C6-7, radial and median
neuropathy on the right, brachial plexopathy/cervical radiculopathy on the right, thoracic
neuritis, scapular winging, right rotator cuff strain, and capsulitis of the shoulder. Dr. Fried
noted that appellant could not return to regular work. An April 12, 2013 FCE, ordered by
Dr. Fried, noted that appellant did not meet the full physical demands for sedentary work,
including the accounting clerk position, or medium work as a letter carrier. Appellant was
symptomatic throughout the evaluation and found totally disabled.
Reports from Dr. Valentino from March 19 to July 23, 2013 diagnosed facet-mediated
pain, cervical degenerative disc disease, cervical radiculitis, and spinal stenosis. In a March 21,
2013 report, he opined that the right shoulder injury and rotator cuff tear was work related.
OWCP referred the record to an OWCP medical adviser regarding whether the accepted
conditions should be expanded to include right shoulder rotator cuff tear. In a September 22,
2013 report, the medical adviser opined that there was no medical evidence supporting a causal
relationship of the right rotator cuff tear to the injury that occurred 11 years prior.
By decision dated December 20, 2013, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant a merit review.
On January 8, 2014 appellant requested reconsideration. She asserted that the wageearning capacity determination was erroneous as it was based on the accepted condition of
aggravation of cervical disc disease when she also had a right shoulder injury causally related to
the April 30, 2001 injury. Appellant contended that the LWEC decision was therefore not based
on an accurate medical history.
Appellant submitted a July 18, 2013 report from Dr. Fried who reviewed a June 10, 2013
FCE and advised that appellant could not perform sedentary work. Dr. Fried noted that appellant
was able to write for .75 minutes before exacerbating symptomology and keying was tolerated
for .2 minutes. He recommended vocational rehabilitation and noted that he did not foresee
appellant returning to her prior activity level.

6
Docket No. 12-1407 (issued January 24, 2013). Among other findings, the Board found that Dr. Fried’s opinion
did not specifically address the duties of the accounting clerk position or note changes in her accepted condition that
would prevent her from performing the duties of that job).

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By decision dated April 14, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant merit review.
Appellant appealed to the Board. By decision dated November 21, 2014, the Board set
aside the April 14, 2014 decision. The Board found that appellant requested modification of the
August 25, 2011 LWEC determination and was entitled to a merit review of the wage-earning
capacity issue and remanded the matter for further development.7
On September 9, 2014 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Boardcertified orthopedist, for a second opinion to determine whether appellant had residuals of her
work-related condition, whether she sustained a right shoulder injury attributable to the April 30,
2001 work injury, and whether she could work within restrictions. In a September 26, 2014
report, Dr. Draper noted findings that included limited cervical spine range of motion, intact
motor function in the arm, intact reflexes in the arms, positive impingement sign of the right
shoulder, no thenar or hypothenar atrophy in the right hand, and negative Tinel’s sign over the
median and ulnar nerve of the right elbow and wrist. He diagnosed aggravation of preexisting
degenerative cervical disc disease and right shoulder pain associated with cervical disc disease.
Dr. Draper opined that appellant continued to have residuals of the April 30, 2001 work injury.
Appellant’s right shoulder discomfort was related to the aggravated degenerative cervical disc
disease, likely C5-6 levels. Dr. Draper opined that there was no evidence of a separate
pathological right shoulder injury which could be related to the April 30, 2001 injury. He opined
that the right shoulder complaints were due to the aggravation of the cervical degenerative disc
disease and not due to a right shoulder injury. Dr. Draper opined that appellant could work fulltime, light duty with no lifting greater than 20 pounds occasionally and 10 pounds frequently,
standing and walking for six hours a day and sitting for six hours a day, and avoid excessive
overhead use of the right shoulder. In a work capacity evaluation, he noted that appellant could
work full time subject to restrictions of no lifting greater than 20 pounds occasionally and 10
pounds frequently.
Dr. Valentino saw appellant on September 23 and November 18, 2014. He noted
findings and diagnosed neck pain, facet-mediated pain, cervical degenerative joint disease,
cervical radiculitis, and cervical spinal stenosis.
In February 10 and 12, 2015 reports, Dr. Fried diagnosed cervical strain/sprain with
radiculopathy on the right, disc bulges at C5-6 and C6-7, radial and median neuropathy on the
right, brachial plexopathy/cervical radiculopathy on the right, thoracic neuritis, scapular winging,
right rotator cuff strain, capsulitis of the shoulder, and neuralgia of the right side. He noted that
appellant could not return to regular work.
A January 22, 2015 FCE, ordered by Dr. Fried, noted that appellant could work sedentary
duty, lifting and carrying restricted to 5 pounds, and walking and standing on occasion.
Appellant could write and key for .75 minutes. Dr. Fried recommended vocational rehabilitation
and advised that he could not foresee appellant returning to her previous activity level. He
recommended a headset for telephone use and voice activated computer software.

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Docket No. 14-1605 (issued November 21, 2014).

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By decision dated March 19, 2015, OWCP denied modification of its August 15, 2011
LWEC decision.
Appellant was treated by Dr. Fried on April 6 and 16, 2015 and he reiterated his
diagnoses and advised that appellant could not return to regular work. In an April 14, 2015
report, Dr. Valentino treated appellant for neck pain localized at C4-7 and right shoulder and
arm pain. He diagnosed neck pain, facet-mediated pain, and cervical degenerative joint
disease. On June 16, 2015 appellant presented with bilateral L3-S1 pain with radiation into
the legs with right knee pain. Dr. Valentino diagnosed sciatica, lumbago and chondromalacia
patellae of the left knee.
Appellant appealed to the Board. By October 8, 2015 order, the Board set aside the
March 19, 2015 decision, finding that OWCP failed to review all the medical evidence submitted
at the time of the March 19, 2015 decision. The Board remanded the case to OWCP for further
development.8
Appellant submitted a November 10, 2015 report from Dr. Valentino who treated her for
neck pain localized at C4-7 and right shoulder and arm pain related to her work injury.
Dr. Valentino diagnosed cervical disc degeneration, cervical pain, neck pain, and facet arthritis
of the cervical region. Dr. Fried treated appellant on October 27, 2015 and January 4, 2016 for a
flare-up of cervical/neck symptoms. He diagnosed cervical strain/sprain with radiculopathy on
the right, disc bulges at C5-6 and C6-7, median neuropathy on the right and left side, radial and
medial neuropathy on the right. Other problems included brachial plexopathy/cervical
radiculopathy on the right, thoracic neuritis, scapular winging, right rotator cuff strain, capsulitis
of the shoulder, and neuralgia of the right side. Appellant could not return to regular work.
In a decision dated February 2, 2016, OWCP again denied modification of its
August 15, 2011 wage-earning capacity decision.
Appellant subsequently submitted reports from Dr. Valentino, dated January 19 and
April 5, 2016, who treated her for neck pain localized at C4-7 and right shoulder symptoms
due to her work injury. She had significant limitations in all planes. Dr. Valentino diagnosed
cervical disc degeneration, cervical pain, neck pain, facet arthritis of the cervical region,
cervical strain, and neck pain. He provided cervical facet injections at C4-7.
In a February 17, 2016 report, Dr. McKenzie treated appellant for major depression
caused by pain from work-related physical injuries of the neck, right arm, and right shoulder.
Appellant remained depressed as she was unable to get treatment for her shoulder or
depression. Dr. McKenzie noted that since her benefits were reduced she has had a financial
hardship.
On March 1, 2016 appellant, through counsel, requested that OWCP expand the
accepted conditions to include major depression. In a report dated March 28, 2016, Dr. Fried
treated appellant for neck and shoulder pain. He noted the cervical spine injections helped her
symptoms locally, but she still experienced radiating pain. Dr. Fried diagnosed cervical
strain/sprain with radiculopathy on the right, disc bulges at C5-6 and C6-7, median neuropathy
8

Order Remanding Case, Docket No. 15-1302 (issued October 8, 2015).

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on the right and left side, radial and median neuropathy on the right. He noted other problems
including brachial plexopathy/cervical radiculopathy on the right, thoracic neuritis, scapular
winging, right rotator cuff strain, capsulitis of the shoulder, and neuralgia of the right side.
Dr. Fried noted that appellant could not return to regular work. On May 2, 2016 appellant
participated in a relaxation and healing enhancement program.
On July 12, 2016 appellant through counsel, requested reconsideration. Counsel asserted
that evidence from Dr. McKenzie and Dr. Valentino supported that that her claim should be
expanded and that she could not perform the duties of the accounting clerk job.
Appellant submitted a May 25, 2016 report from Dr. McKenzie who opined that, based
on the review of the medical record, appellant’s claim should be expanded to include a right
shoulder injury. He noted that each physician since 2001 acknowledged that the shoulder
condition was part of the original injury. Dr. McKenzie noted that appellant carried a mailbag on
her right shoulder, delivered mail with her right hand, cased and slotted mail with her right hand,
and arm and drove a postal vehicle with manual operation on the right side. He further noted
that OWCP reduced her compensation on August 15, 2011 based on a position of accounting
clerk without having an examination by an OWCP physician. Dr. McKenzie indicated that
appellant’s shoulder condition was dormant from May to September 2009 until she began
working with a vocational rehabilitation counselor and her shoulder injury was exacerbated by
drafting resumes and applying for jobs on the computer. Appellant reported not being able to
complete the vocational training due to unbearable pain. Dr. McKenzie noted that appellant has
not received right shoulder treatment which caused further depression due to constant pain and
mobility limitations. He also asserted that appellant’s claim should be expanded to also include
her psychological condition.
Appellant submitted reports from Dr. Fried dated June 6 to September 12, 2016 who
noted her neck and cervical spine pain radiating down the right arm limiting her activity.
Dr. Fried diagnosed cervical strain/sprain with radiculopathy on the right, disc bulges at C5-6
and C6-7, median neuropathy on the right and left side, radial and medial neuropathy on the
right. He noted other problems including brachial plexopathy/cervical radiculopathy on the
right, thoracic neuritis, scapular winging, right rotator cuff strain, capsulitis of the shoulder,
and neuralgia of the right side. Dr. Fried noted that appellant could not return to regular work.
He noted that appellant participated in the relaxation and healing enhancement program and
recommended massage therapy and acupuncture.
Appellant saw Dr. Valentino on June 7, 2016 for neck pain localized at C4-7 and right
shoulder symptoms related to her work injury. Dr. Valentino noted findings and diagnosed
cervical disc degeneration, cervical pain, facet arthritis of the cervical region, cervical strain.
He provided bilateral cervical facet injections at C4-7. In a separate June 7, 2016 statement,
Dr. Valentino noted reviewing Dr. McKenzie’s May 25, 2016 report and Dr. Fried’s August 3,
2011 report. He advised that Dr. Fried indicated that to send appellant back to an accounting
job would worsen and aggravate her problem. Dr. Valentino noted prolonged posturing,
repetitive neck, arm and shoulder posturing and repetitive activities of the right upper
extremity would progress her problem. He noted that Dr. Fried advised that sedentary
capacities with sitting and speaking in the headset of her telephone with minimal keying
activities would be reasonable part time, but that appellant was disabled from her carrier job.
Dr. Valentino noted agreeing with Dr. Fried. In a report dated September 13, 2016, he treated
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appellant for neck and shoulder pain. Dr. Valentino noted diagnoses and advised that he
provided bilateral cervical facet injections at C4-7.
By decision dated October 7, 2016, OWCP denied modification of its February 2,
2016 decision.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.9 Actual wages earned is generally the best measure of wage-earning capacity.10 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the
injured employee’s wage-earning capacity, such earnings must be accepted as representative of
the individual’s wage-earning capacity.11 Compensation payments are based on the wageearning capacity determination and it remains undisturbed until properly modified.12
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.13 OWCP
procedures at section 2.1501 contain provisions regarding the modification of a formal LWEC.14
The relevant part provides that a formal LWEC will be modified when: (1) the original rating
was in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has
been vocationally rehabilitated.15
The burden of proof is on the party attempting to show modification.16 There is no time
limit for appellant to submit a request for modification of a wage-earning capacity
determination.17

9

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

10

Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

The Board has held that, when a wage-earning capacity determination has been issued and appellant submits
evidence with respect to disability for work, OWCP must evaluate the evidence to determine if modification of
wage-earning capacity is warranted. Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB
552 (2004).
13

Sue A. Sedgwick, 45 ECAB 211 (1993).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Wage-Earning Capacity, Chapter
2.1501.3(a) (June 2013).
15

Id.

16

Darletha Coleman, 55 ECAB 143 (2003).

17

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

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ANALYSIS
Appellant filed a traumatic injury claim alleging that on April 30, 2001 she experienced
neck, shoulder and arm pain while performing her letter carrier duties. OWCP accepted the
claim for an aggravation of degenerative disc disease of the cervical spine. On August 15, 2011
it found that appellant could perform the duties of an accounting clerk and reduced her
compensation to reflect her wage-earning capacity in this job. In its January 24, 2013 decision,
the Board previously found that appellant had not established a basis to modify the LWEC
determination.18 Following a later request for review, OWCP again denied modification of the
LWEC determination. The issue is whether she established that the August 15, 2011 LWEC
decision should be modified.
After OWCP found that appellant could perform the duties of an accounting clerk, the
pertinent medical issue is whether there had been any change in her condition that would render
her unable to perform those duties.19 For a physician’s opinion to be relevant on this issue, the
physician must address the duties of the constructed position.20
Appellant did not allege that she had been retrained or otherwise vocationally
rehabilitated nor has she shown how the original rating was in error. She has contended that
reports from Drs. Valentino, Fried, and McKenzie establish that she was no longer able to work
because of her physical conditions including a right shoulder injury and a psychiatric condition
which she asserts were caused by the April 30, 2001 work injury. The Board finds that the
record does not contain medical evidence establishing that appellant’s accepted work-related
condition, aggravation of degenerative disc disease of the cervical spine, had materially changed
so as to render her unable to perform the accounting clerk duties.
Appellant submitted evidence from her psychiatrist, Dr. McKenzie. On May 25, 2016
Dr. McKenzie opined that, based on the review of the medical record, appellant’s claim should
be expanded to include a right shoulder injury and a psychological condition as causally related
to the original injury. He asserted that appellant’s work duties included much use of her right
arm and shoulder, and that her shoulder condition was dormant until September 2009 when it
was exacerbated by drafting resumes as part of vocational rehabilitation. Dr. McKenzie noted
that the lack of treatment for her right shoulder condition caused further depression. On
February 17, 2016 he advised that appellant’s major depression was caused by pain in the neck,
right arm and right shoulder from work injury. However, these reports are insufficient to
establish a material change in appellant’s accepted conditions as Dr. McKenzie attributes
appellant’s disability to a shoulder and emotional conditions not accepted by OWCP as being
employment related.21 Dr. McKenzie has not sufficiently addressed how appellant’s accepted
degenerative disc disease of the cervical spine prevented her from performing the duties of the
18

Supra note 5.

19

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

20

Id.

21
See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury).

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accounting clerk position. Furthermore his opinion is of diminished probative value with regard
to physical conditions as his area of expertise is psychiatry. The Board has held that opinions of
physicians who have special training and knowledge in a specialized medical field have greater
probative value in determining the causal relationship of a condition germane to that field that
the opinions of nonspecialists or others who have no training in the particular field.22
Appellant submitted evidence from Dr. Valentino. In January 19, April 5, June 7, and
September 13, 2016 reports, Dr. Valentino noted appellant’s treatment for neck pain localized at
C4-7 and right shoulder symptoms related to her work injury. However, he did not provide
sufficient medical rationale23 explaining how appellant’s injury-related conditions would disable
her from the accounting clerk position. On June 7, 2016 Dr. Valentino noted his concurrence
with Dr. Fried’s August 31, 2011 opinion that appellant performing an accounting job would
worsen her condition. He did not provide his own medical rationale to explain how appellant’s
accepted degenerative disc disease of the cervical spine would disable her from the accounting
clerk position.24 Dr. Valentino did not clearly explain the medical reasons why a material
change in the accepted condition caused increased disability and an inability to work greater than
part time. The Board notes that this is important as Dr. Valentino’s prior work restrictions,
contemporaneous with the LWEC determination, were consistent with the accounting clerk
position. Dr. Valentino did not specifically address the duties of the accounting clerk or note any
change in appellant’s injury-related condition that would render her unable to perform the
position of accounting clerk.25 His reports are insufficient to meet appellant’s burden of proof.
Appellant submitted reports from Dr. Fried through September 28, 2016, who treated her
for neck and shoulder pain. Dr. Fried offered diagnoses, including conditions not accepted as
employment related,26 and asserted that appellant could not return to regular work. However, the
issue before the Board does not involve whether appellant can perform the duties of her date of
injury letter carrier position; it involves whether appellant has established that the wage-earning
capacity decision, in which she was found able to perform the duties of an accounting clerk,
should be modified. Dr. Fried’s opinion does not address the job duties of the accounting clerk
position or provide a rationalized medical opinion explaining how residuals of the accepted
aggravation of degenerative disc disease of the cervical spine condition had materially changed
such that she no longer could perform the duties of an accounting clerk. Thus, this evidence is
insufficient to show a material change in the nature and extent of the injury-related condition.
The Board finds that there is no medical evidence of record which establishes a change in
appellant’s employment-related condition such that a modification of OWCP’s LWEC
22

See Effie Davenport (James O. Davenport), 8 ECAB 136 (1955).

23
See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
24

As noted, supra note 5, the Board previously found that this opinion from Dr. Fried was insufficient to show
that appellant could not perform the duties of an accounting clerk.
25

Dr. Valentino also attributed disability to several conditions not accepted by OWCP as being employment
related. For conditions not accepted by OWCP as being employment related, appellant has the burden of proof to
establish causal relationship. See Jaja K. Asaramo, 55 ECAB 200 (2004).
26

See supra note 20.

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determination would be warranted. The evidence from Drs. Valentino, Fried, and McKenzie do
not establish that the position of accounting clerk was improper. Appellant also did not
otherwise establish a basis for modification by submitting evidence establishing that she had
been retrained or otherwise vocationally rehabilitated.
On appeal appellant asserts that OWCP failed to consider her right shoulder and
depression in determining the suitability of the accounting clerk position.27 As explained above,
she has not submitted sufficient evidence to support modification of the August 15, 2011 LWEC
determination. Appellant failed to establish a material change in the nature and extent of the
injury-related condition, that she has been retrained or otherwise vocationally rehabilitated, or
that the original determination was erroneous. Her physicians did not provide sufficient rationale
to explain why appellant had a material change in the nature and extent of the injury related
conditions. Consequently, appellant has failed to meet her burden of proof.
CONCLUSION
The Board finds that has not established that modification of the August 15, 2011 loss of
wage-earning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.28
Issued: March 9, 2018
Washington, DC

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

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

27
OWCP has not issued a final decision on the issue of whether her claim should be expanded to include
additional conditions and therefore the Board does not have jurisdiction over that matter. See 20 C.F.R. § 501.2(c).
Furthermore, with respect to the shoulder condition, OWCP previously referred appellant to Dr. Draper who, in a
September 26, 2014 report, opined that there was no evidence of a separate pathological right shoulder injury
attributable to the April 30, 2001 injury.
28
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 11-2102
Issued: April 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from a May 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The record also contains a
September 8, 2011 decision denying a request for a hearing before an OWCP hearing
representative. 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.
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation for
failure to submit requested information; and (2) whether OWCP properly denied a request for a
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was before the Board on prior appeals. By decision dated December 17, 2002,
appellant was not entitled to a schedule award for her accepted psychiatric conditions.2 In a
decision dated October 2, 2006, the Board found that OWCP had not met its burden of proof to
terminate compensation as of February 12, 2004.3 The history of the case as noted in the
Board’s prior decisions is incorporated herein by reference. Appellant continued to receive
compensation for wage loss.
Appellant’s address of record was a Houston, Texas street address. The record indicates
that on December 14, 2010 OWCP received correspondence sent to appellant that had been
returned as undeliverable. The envelope indicated that appellant’s new address was a post office
box in Dallas, Texas.
In a letter dated March 2, 2011, OWCP advised appellant that she must complete the
enclosed Form EN1032 regarding employment, earnings and dependant information. It
indicated that appellant had 30 days to submit the requested information or her compensation
would be suspended. The letter was addressed to the Houston address.
By letter dated April 14, 2011, OWCP issued the same letter, with an EN1032 enclosed,
to the post office box address in Dallas, Texas. On April 26, 2011 it received a request for
copies of CA-7 forms (claim for compensation) appellant had submitted. Appellant reported her
address as the Dallas post office box address.
By decision dated May 17, 2011, OWCP suspended appellant’s compensation. It
explained that they had not received the EN1032 form and her compensation would be
retroactively restored upon submission of the requested information.
On August 9, 2011 OWCP received a July 28, 2011 letter addressed to OWCP’s Branch
of Hearings and Review. Appellant stated that she had been notified that her case status had
been changed effective July 31, 2011 and she inquired as to whether there would be a change in
the payment amount.
By decision dated September 8, 2011, OWCP held that appellant had requested a hearing
and the request was denied. It found the hearing request was untimely, and stated that it had
considered the matter and the issue could equally well be addressed through the reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.4
2

Docket No. 02-1971 (issued December 17, 2002).

3

Docket No. 05-1805 (issued October 2, 2006).

4

5 U.S.C. § 8106(b).

2

Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.5 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.6
ANALYSIS -- ISSUE 1
In the present case, there was some confusion as to appellant’s address of record. The
address of record was a Houston street address, although there was indication in the record that
as of December 2010 appellant was no longer living at the Houston address, but had a post office
box in Dallas. Appellant did not notify OWCP of the new address until April 26, 2011.
The record indicates that OWCP sent a March 2, 2011 letter to the Houston address and
an April 14, 2011 letter to the Dallas address. The letters included a blank EN1032 form. As
noted above, an employee receiving compensation must periodically complete an affidavit
regarding employment activity. If an employee does not submit the information within 30 days,
her compensation is suspended until OWCP receives the requested report. In this case, there is
no indication that appellant responded within 30 days of the April 14, 2011 request.
Accordingly, her compensation was properly suspended.
On appeal, appellant submitted copies of the May 17, 2011 decision and other
documents. The Board is precluded from reviewing evidence which was not before OWCP at
the time it issued its final decision.7 The suspension of compensation is retroactively reinstated
when a claimant submits the requested information to OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”8

5

20 C.F.R. § 10.528.

6

Id.; see also 20 C.F.R. § 525.

7

20 C.F.R. § 501.2(c)(1).

8

5 U.S.C. § 8124(b)(1).

3

As 5 U.S.C. § 8124(b)(1) is unequivocal in setting forth the time limitation for requesting
a hearing, a claimant is not entitled to a hearing as a matter of right unless the request is made
within the requisite 30 days.9
ANALYSIS -- ISSUE 2
Appellant submitted a letter dated July 28, 2011 to the Branch of Hearings and Review.
It is not clear whether he was requesting a hearing, but OWCP found that it was a request for a
hearing before an OWCP hearing representative. As a hearing request, it was not made within
30 days of the May 17, 2011 OWCP decision. Accordingly, appellant was not entitled to a
hearing as a matter of right.
The Board has held that OWCP, in its broad discretionary authority to administer FECA,
has power to hold hearings in circumstances where no legal provision is made for such hearings,
and OWCP must exercise its discretion in such circumstances.10 In this case, OWCP advised
appellant that he could submit additional relevant evidence on the issue through the
reconsideration process. This is considered a proper exercise of OWCP’s discretionary
authority.11 The Board accordingly finds that OWCP properly denied a request for a hearing in
this case.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation and properly
denied a request for a hearing before an OWCP hearing representative.

9

See William F. Osborne, 46 ECAB 198 (1994).

10

Mary B. Moss, 40 ECAB 640 (1989); Rudolph Bermann, 26 ECAB 354 (1975).

11

See Mary E. Hite, 42 ECAB 641, 647 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 8 and May 17, 2011 are affirmed.
Issued: April 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 09-734
Issued: November 16, 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 January 22, 2009 appellant, through her attorney, filed a timely appeal from a
February 12, 2008 hearing representative’s decision of the Office of Workers’ Compensation
Programs’ and May 15 and September 17, 2008 merit decisions, finding that she did not
establish a recurrence of disability. 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 appellant has established that she sustained a recurrence of disability
on September 3, 2006 causally related to her December 18, 2000 employment injury.
FACTUAL HISTORY
On December 18, 2000 appellant, then a 41-year-old mail processor, filed a claim for an
injury occurring on that date when she pulled a muscle between her shoulders. The Office

accepted the claim for cervical, thoracic and right shoulder strain. On September 3, 2001
appellant returned to limited-duty employment.
On September 16, 2003 appellant filed a recurrence of disability claim on August 29,
2003 casually related to her December 18, 2000 work injury. She underwent surgery on her
cervical spine in May 2004. The Office determined that a conflict in medical opinion existed
regarding whether appellant continued to have residuals of her December 18, 2000 work injury.1
It referred her to Dr. John T. Williams, Sr., a Board-certified orthopedic surgeon, for an impartial
medical examination. On August 23, 2004 Dr. Williams discussed appellant’s complaints and
medical history and listed findings on examination. He noted that she underwent surgery in
May 2004 surgery for a cervical disc herniation. Dr. Williams stated:
“I inquired once again if [appellant] had any problems with her neck or her right
upper extremity or shoulder girdles prior to this December 18, 2000, incident
because the history correlates with an aggravation of a preexisting pathology; that
is, degenerative joint disease and degenerative disc disease of the cervical spine,
which may have been aggravated by this process to the degree that it may have
precipitated herniation of the disc, necessitating surgical intervention, because the
mechanism of the injury by history in and of itself does not correlate to disc
herniation but may have occurred on preexisting pathology.”
Dr. Williams reviewed the diagnostic studies and noted that the studies confirmed that
appellant had preexisting pathology that may have been aggravated by the December 18, 2000
work injury. He next reviewed the medical evidence and noted that appellant had a history of a
motor vehicle accident 20 years before her work injury that he found accelerated her cervical
degeneration. Dr. Williams stated:
“After reviewing these records, it would be my opinion in summary that
[appellant], as I stated previously, had preexisting pathology. The accident of
December 18, 2000, aggravated the underlying preexisting pathology but my
opinion is that the aggravation would be of a temporary and transitory nature,
resolving and leaving the patient with her preexisting pathology. [Her] pathology
progressed to the point where it became necessary for this patient to have surgical
intervention.
“As I have previously stated, the mechanism of injury from the December 18,
2000, incident does not correlate and I have read her description in her
handwriting as to what happened, that she felt some pain in between her shoulder
blades. This is not cervical spine pathology. As the [physician] who treated her
stated that they felt she had a cervical sprain/strain, a thoracic sprain/strain and a
right shoulder sprain/strain. These are soft tissue injuries. This patient,
unfortunately at a young age, already had advanced degenerative joint and
1

The Office indicated that Dr. Anthony W. Salem, a Board-certified orthopedic surgeon and referral physician,
found that appellant’s accepted conditions of cervical, thoracic and right shoulder sprain had resolved while
Dr. Stephen Schmidt, an attending osteopath, determined that she was disabled from work due to her employment
injury beginning August 29, 2003.

2

degenerative disc changes on imaging studies. Advanced means that it took years
to develop.”
By decision dated October 1, 2004, the Office found that appellant did not establish a
recurrence of disability.
On December 29, 2006 appellant filed a recurrence of disability claim on September 3,
2006 casually related to her December 18, 2000 employment injury. She related that she had
been working with permanent limitations after her surgery. Management told appellant to leave
her limited-duty position because there was no work available.
On May 7, 2007 Dr. Ghassem Kalani, a Board-certified physiatrist, evaluated appellant
for complaints of pain in the neck and between the shoulder blades radiating into her right arm.
He discussed her history of a work injury on December 18, 2000 and surgery for a herniated disc
on May 3, 2004. Dr. Kalani listed findings on examination and diagnosed chronic injures of the
cervical spine due to her work injury, a disc herniation at C5-6, a right rotator cuff injury,
radiculopathy on the right at C5 through T1 and bilateral carpal tunnel. He noted that there was
also possible lumbar radiculopathy or a peripheral nerve injury. Dr. Kalani recommended
physical therapy and further objective testing.
By decision dated June 14, 2007, the Office found that appellant did not establish that she
sustained an employment-related recurrence of disability beginning September 3, 2006. It
determined that the August 23, 2004 opinion of Dr. Williams constituted the weight of the
evidence and established that she had no further residuals of her work injury. On June 28, 2007
appellant, through her attorney, requested an oral hearing.2
On October 1, 2007 Dr. Kalani noted that he had been treating appellant since 2001. He
related:
“[Appellant] stated that she was injured on her job as working as a clerk for the
[employing establishment] and handling mail.
“Going through the history and physical exam[ination], the impression was that
she was suffering with persistent cervical spine sprain and strain and
myoligamentous injuries secondary to her job accident and persistent dorsal and
lumbosacral spine sprain and strain with myoligamentous injuries secondary to
the accident. There was the impression of sprain and strain of the right shoulder
and milder left shoulder and traumatic myofasciitis of bilateral trapezius, right
supraspinatus muscle and also evidences suggesting ruling out cervical
radiculopathy and possible rotator cuff impairment.”
Dr. Kalani noted that appellant stopped work on September 3, 2006 because of “more
persistent pain and aggravation of her condition.” He asserted that based on the finding on
examination, history and the results of diagnostic studies she continued to “suffer from all stated
symptomatology directly as a result of the accident on December 18, 2000.”
2

The record contains progress reports from Dr. Kalani dated July 2007 through January 2008.

3

At the hearing, held on November 29, 2007, appellant’s attorney argued that appellant
established a recurrence of disability because the employing establishment withdrew her limitedduty employment. He further argues that the medical evidence showed that she continued to
have residuals of her work injury.
By decision dated February 12, 2008, the hearing representative affirmed the June 14,
2007 decision. She found that there was no evidence that the employing establishment
accommodated appellant’s condition due to her work injury and thus withdrawing the light duty
did not support a recurrence of disability.
On April 1, 2008 appellant, through her attorney, requested reconsideration. He
submitted a report dated December 14, 2006 from Dr. Kingsley Chin, a Board-certified
orthopedic surgeon, who described appellant’s history of a work injury on December 18, 2000
while lifting a tray of mail. Dr. Chin initially examined her on February 27, 2004 for neck pain
radiating into her thoracic spine and right shoulder with intermittent radiation down the left
shoulder and intermittent shooting pain into both arms. He reviewed a magnetic resonance
imaging scan study, which showed a midline disc protrusion at C5-6. Dr. Chin believed that
appellant also had a paracentral herniation at C5-6 and a right-sided herniation at C6-7 causing
cord compression. He described his treatment of appellant from 2004 through 2006 and
diagnosed a herniated disc and cervical spondylosis at C5-6 and C6-7. Dr. Chin asserted that
appellant’s “condition especially her symptoms were precipitated (hastened) by her injury on the
condition of her employment as described by her.” He based his conclusion on the “chronology
of her complaints and her injury as well as the physical exam[ination] and radiologic data.”
Dr. Chin opined that appellant was totally disabled by her symptoms both before and after her
cervical surgery.
In a decision dated May 15, 2008, the Office denied modification of its February 12,
2008 decision. On June 12, 2008 appellant, through her attorney, requested reconsideration. He
submitted progress reports dated November 19, 2007 and January 7, 2008 from Dr. Kalani, who
diagnosed right shoulder strain due to her work injury with evidence of a rotator cuff tear, a
herniated cervical disc at C4 to C6, right radiculopathy at C5 through C7, right carpal tunnel
syndrome and left L3-4, L5-S1 and right S1 radiculopathy. By decision dated September 17,
2008, the Office denied modification of the May 15, 2008 decision.
LEGAL PRECEDENT
When an appellant claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.3

3

Ricky S. Storms, 52 ECAB 349 (2001).

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Section 10.5(x) of the Office’s regulations provide in pertinent part:
“Recurrence of disability means an inability to work after an employee has
returned to work caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.6
When 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.7
ANALYSIS
The Office accepted that appellant sustained cervical, thoracic and right shoulder strain
due to a December 18, 2000 work injury. She worked limited duty following her injury until
August 29, 2003, when she stopped work. Appellant underwent surgery for a cervical herniated
disc in May 2004. The Office determined that a conflict in medical opinion existed on the issue
of whether she continued to have residuals of her December 18, 2000 employment injury and
referred her to Dr. Williams for resolution of the conflict.
When 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.8 The Board finds that the opinion of Dr. Williams, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Williams accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions

4

20 C.F.R. § 10.5(x).

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

8

Id.

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about appellant’s condition, which comported with his findings.9 In a report dated August 23,
2004, he reviewed the medical reports and diagnostic studies and found that appellant had a
preexisting degenerative disc disease. Dr. Williams found that her December 18, 2000 work
injury caused only soft tissue injuries. He concluded that appellant’s work injury aggravated her
preexisting condition but that the aggravation was temporary and resolved. Dr. Williams
provided as rationale that the mechanism of injury does not correlate with “cervical spine
pathology.” As his report is detailed, well rationalized and based on a proper factual
background, his opinion is entitled to the special weight accorded an impartial medical
examiner.10 Based on his report, the Office found that appellant had not established that she
sustained a recurrence of disability on August 29, 2003.
Appellant returned to modified employment. She worked until September 3, 2006, when
the employing establishment sent her home because it did not have work available within her
restrictions. She filed a recurrence of disability claim beginning September 3, 2006. The
evidence does not establish that appellant was working limited duty on September 3, 2006 due to
her accepted work injury. The weight of the medical evidence, as represented by the August 23,
2004 opinion of Dr. Williams, established that she had no residuals of her work injury.
Consequently, the employing establishment’s withdrawal of her modified employment does not
constitute a recurrence of disability as she was not at that time working limited duty as a result of
her work injury.11 Appellant must submit medical evidence sufficient to show that she was
disabled from work beginning September 3, 2006 due to her accepted condition.
On May 7, 2007 Dr. Kalani discussed appellant’s history of a December 18, 2000 work
injury and surgery for a herniated cervical disc on May 3, 2004.12 He diagnosed a disc
herniation at C5-6, a right rotator cuff injury, right radiculopathy and bilateral carpal tunnel
syndrome and possible lumbar radiculopathy or a peripheral nerve injury. Dr. Kalani provided
treatment recommendations. He did not, however, address the relevant issue of whether
appellant was disabled for work beginning September 3, 2006 and thus his opinion is of little
probative value.
On October 1, 2007 Dr. Kalani described his treatment of appellant since 2001. He noted
that she related that she sustained an injury while working for the employing establishment.
Dr. Kalani diagnosed cervical sprain, right shoulder strain and mild left shoulder strain, traumatic
shoulder myofasciitis, lumbosacral strain and myoligamentous injuries of the cervical and
lumbar injuries due to appellant’s work injury. He further found possible cervical radiculopathy.
Dr. Kalani opined that appellant stopped work on September 3, 2006 because of “more persistent
9

Manuel Gill, 52 ECAB 282 (2001).

10

See Darlene R. Kennedy, 57 ECAB 414 (2006).

11

A recurrence of disability includes the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related injury or illness is
withdrawn, except for when such withdrawal occurs for reasons of misconduct, nonperformance of the job duties or
a reduction-in-force. 20 C.F.R. § 10.5(x); Hubert Jones, Jr., 57 ECAB 467 (2006).
12

The record contains progress reports from Dr. Kalani throughout 2007 and the beginning of 2008. He did not
address disability in his progress reports.

6

pain and aggravation of her condition” and concluded based on his examination, her history and
objective testing that she continued to “suffer from all stated symptomatology directly as a result
of the accident on December 18, 2000.” He did not, however, explain how the December 18,
2000 work injury caused continued symptoms such that appellant was disabled from work
beginning September 3, 2006. A medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship that is unsupported by
medical rationale.13 The remaining progress reports from Dr. Kalani do not address disability
and thus are of diminished probative value.
On December 14, 2006 Dr. Chin noted that appellant sustained an employment injury on
December 18, 2000 when she lifted a tray of mail. He described in detail his treatment of her
beginning February 27, 2004. Dr. Chin diagnosed a herniated disc and cervical spondylosis at
C5-6 and C6-7. He found that appellant’s symptoms were precipitated by her work injury as
described and noted that his conclusion was based on the “chronology of her complaints and her
injury as well as the physical exam[ination] and radiologic data.” Dr. Chin asserted that she was
totally disabled by her symptoms and had been disabled both before and after her cervical
surgery. He related appellant’s condition to her work injury based in part on the “chronology of
her complaints.” A medical opinion, however, that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury but symptomatic
after it is insufficient, without supporting rationale, to establish causal relationship.14 Dr. Chin
did not explain how appellant’s work injury caused disability beginning September 3, 2006;
instead, he found that she was totally disabled both before and after May 2004, the date of her
cervical surgery. His opinion is thus insufficiently rationalized to show that appellant sustained
an employment-related recurrence of disability or overcome the weight afforded to Dr. Williams
on the issue of whether she had continuing residuals of her work injury.
On appeal, appellant’s attorney argues that the employing establishment withdrew
appellant’s limited-duty assignment. As discussed, however, appellant was not working limited
duty as a result of her work injury at the time of her alleged recurrence of disability. Counsel
also contends that the reports of Dr. Kalani establish that appellant continued to have residuals of
her employment injury. As found by the Board, however, Dr. Kalani did not provide a
rationalized opinion that she became disabled on September 3, 2006 due to her December 18,
2000 work injury.
Counsel also maintains that Dr. Chin’s December 4, 2006 report establishes that
appellant’s cervical herniated disc and surgery were causally related to her accepted work injury.
As noted, however, Dr. Chin did not provide a reasoned opinion that her herniated cervical discs
and need for cervical surgery were due to her December 18, 2000 employment injury.
Counsel also contends that Dr. Williams found that appellant’s work injury may have
aggravated her preexisting cervical condition such that she required surgery.
After
consideration, however, Dr. Williams concluded that she sustained a temporary aggravation of

13

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

14

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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her preexisting condition on December 18, 2000 that had resolved and that the natural
progression of her preexisting condition resulted in the need for surgery.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability in September 2006 causally related to her December 18, 2000 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 17, May 15 and February 12, 2008 are affirmed.
Issued: November 16, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & NATURALIZATION
SERVICE, New York, NY, Employer
__________________________________________

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

Docket No. 08-2143
Issued: June 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 8, 2007 and an October 30, 2007 decision
denying further merit review of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established a recurrence of a medical condition on
January 1, 2007; and (2) whether the Office properly determined his application for
reconsideration was insufficient to warrant merit review of the claim.
FACTUAL HISTORY
The Office accepted that appellant sustained a right ankle sprain and right knee medial
meniscus tear on November 9, 1997.1 Appellant filed a recurrence (Form CA-2a) for
1

Appellant reported he was struck by a cart on the side of his leg.

August 7, 1998. He stated that he went to pick up a box of cases, and after taking the cases to his
office, he felt back pain. Since appellant described a new work injury, the case was adjudicated
as a claim for a new injury. The Office accepted aggravation of right knee medial meniscus tear,
right ankle sprain and lumbago. Appellant stopped working as May 1999. He began working
full time in private employment on April 21, 2003. By decision dated June 28, 2005, the Office
issued a schedule award for a 12 percent right leg permanent impairment.
On January 30, 2007 appellant filed a Form CA-2a indicated he was seeking “medical
treatment only” for a recurrence on January 1, 2007. He stated that, while he was walking, his
right knee began to wobble and he fell on his left knee and then his right knee. In a report dated
January 4, 2007, Dr. Norman Sveilich, an osteopath, reported that on January 1, 2007 appellant
was walking home when his right knee gave way and he landed on his knees, with knee swelling
as a result. He noted that appellant had a 1998 injury “twisting right knee losing balance,” with
surgery in 1998 or 1999. Dr. Sveilich provided results on examination and diagnosed acute
medical meniscus tear of the left knee, and strains of the left buttock, thigh and leg.
A magnetic resonance imaging (MRI) scan of the right knee dated January 25, 2007
reported an oblique tear of the posterior medial meniscus. In a report dated February 1, 2007,
Dr. Sveilich provided results on examination. He stated, “If the history as given by [appellant] is
accurate, then the injury sustained at work is a direct contributing cause of the present problem.
The right knee giving way is related to causing the left knee problem.”
By decision dated May 2, 2007, the Office denied the claim on the grounds that the
medical evidence was insufficient to establish the claim. Appellant requested reconsideration
and submitted additional medical reports from Dr. Sveilich. On May 28, 2007 Dr. Sveilich noted
that in a June 10, 2003 report regarding permanent impairment he had found recurrent weakness
and “prognosis for recovery is poor.” He stated that, due to the poor prognosis in 2003 and if the
history given was correct, there was “a medical certainty that the injuries sustained on January 4,
2007 [are] causally related to the original accident which occurred on August 7, 1998.”
By decision dated August 8, 2007, the Office reviewed the case on its merits and denied
modification. Appellant again requested reconsideration of his claim on October 7, 2007. He
submitted reports dated August 6, September 4 and October 8, 2007 from Dr. Sveilich. The
reports contained the same history and opinion on causal relationship presented in the
February 1, 2007 report.
By decision dated October 30, 2007, the Office determined the application for
reconsideration was insufficient to warrant further merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition is defined in the Office’s procedure manual as “the
documented need for further treatment of the accepted condition when there is no work
stoppage.”2 When a claim for a recurrence of medical condition is made more than 90 days after
release from medical care, a claimant is responsible for submitting a medical report that contains
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(a) (January 1998).

2

a description of objective findings and supports causal relationship between the claimant’s
current condition and the previous work injury.3
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the employment injury. The opinion of the physician must be based on a complete
and accurate factual and medical history, supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the employment injury.4 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.5
ANALYSIS -- ISSUE 1
Although the Office has referred to a claim for a recurrence of disability as of January 4,
2007, the claim filed was a Form CA-2a for medical treatment as of January 1, 2007. Appellant
indicated that he was walking and his right knee gave way and he fell. To be entitled to medical
benefits, he must establish that his right knee condition on January 1, 2007 was employment
related.
The reports of record from Dr. Sveilich are not sufficient to establish a diagnosed right
knee condition causally related to federal employment as January 1, 2007. As noted, a
rationalized opinion must be based on a complete factual and medical background. Dr. Sveilich
referred only briefly to a twisting injury in 1998, without providing further detail regarding the
August 7, 1998 employment incident. The record indicates there was a right knee injury on
November 19, 1997, with surgery in February 1998 and October 1999. The accepted
employment injury from August 7, 1998 was an aggravation of a medical meniscus tear.
Dr. Sveilich did not provide a complete history with a clear description of the employment
injuries and the relevant medical treatment.
With respect to a right knee diagnosis as January 1, 2007, Dr. Sveilich did not provide a
rationalized medical opinion. To the extent that the diagnosis is an oblique tear of the posterior
medial meniscus, as demonstrated by a January 25, 2007 MRI scan, he did not adequately
address the causal relationship with appellant’s accepted injury employment. In May 28, 2007
report, Dr. Sveilich noted that, because he had reported a poor prognosis on June 10, 2003, he
believed the January 2007 injuries were causally related to an August 7, 1998 injury. The
June 10, 2003 report stated only briefly that prognosis for recovery was poor, without further
explanation. Dr. Sveilich did not explain what he believed happened to appellant’s right knee on
August 7, 1998 or why, in view of the relevant medical record, appellant’s diagnosed condition
on January 1, 2007 was causally related to the August 7, 1998 injury. It is appellant’s burden of

3

Id. at Chapter 2.1500.5(b) (September 2003).

4

Helen K. Hunt, 50 ECAB 279 (1999).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

proof to submit probative medical opinion. The Board finds he did not meet his burden in this
case.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.6 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”7
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.8
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meet at least one of these standards. If
reconsideration is granted, the case is reopened, and the case is reviewed on its merits. Where
the request is timely, but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.9
ANALYSIS -- ISSUE 2
With his application for reconsideration, appellant submitted additional reports from
Dr. Sveilich, which were similar to prior reports and provided no new and relevant evidence on
the issue of causal relationship between appellant’s condition on January 1, 2007 and the
employment injuries. The Board finds appellant did not submit relevant and pertinent evidence
not previously considered by the Office.
In his October 7, 2007 application for reconsideration, appellant noted that he had
received a schedule award for his right leg. But the issue in this case is a recurrence of an
employment-related condition as of January 1, 2007. Appellant did not show that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office.

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.605 (1999).

8

Id. at § 10.606(b)(2).

9

Id. at § 10.608.

4

Since appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2), he is
not entitled to a merit review of his claim. The Office properly refused to reopen the claim for a
merit review.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish a recurrence of an
employment-related medical condition as of January 1, 2007. Appellant did not meet the
requirements of 20 C.F.R. § 10.606(b)(2) with his October 7, 2007 application for
reconsideration and therefore the Office properly denied merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 30 and August 8, 2007 are affirmed.
Issued: June 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0365
Issued: March 17, 2016

Case Submitted on the Record

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

JURISDICTION
On December 21, 2015 appellant, through counsel, filed a timely appeal from a
September 10, 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 over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate compensation for
wage-loss and medical benefits effective December 19, 2014; and (2) whether appellant has
established continuing employment-related disability after December 19, 2014.
FACTUAL HISTORY
On June 28, 2013 appellant, then a 53-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on June 25, 2013 he sustained a knee injury while
1

5 U.S.C. § 8101 et seq.

kneeling in a tunnel to install central vacuum piping. On the claim form appellant indicated that
he felt pain while standing up. The record indicates that appellant stopped working.2
With respect to medical evidence, appellant submitted a July 11, 2013 magnetic
resonance imaging (MRI) scan from Dr. Rosemary Klecker, a radiologist, diagnosing right knee
medial meniscus tear. In a report dated September 20, 2013, Dr. Vincent McInerney, a Boardcertified orthopedic surgeon, reported that appellant was injured at work on June 25, 2013 when
installing a central vacuuming system. He diagnosed right knee medial meniscus tear and also
osteoarthritis of the right knee. Dr. McInerney indicated that there was no way to know how
much osteoarthritis was in the knee before the employment injury. He also indicated that
appellant would need surgery to repair the meniscus tear.
On September 16, 2013 OWCP accepted the claim for right knee medial meniscus tear.
As of November 17, 2013, appellant received wage-loss compensation on the periodic rolls. On
March 26, 2014 he underwent right knee partial medial meniscectomy surgery performed by
Dr. McInerney.
Appellant submitted a May 29, 2014 report from Dr. McInerney, who indicated that
appellant’s right knee was doing well following surgery. Dr. McInerney indicated that appellant
was now having problems with his left knee, which he reported was due in part to appellant
shifting weight bearing from the right to left knee. He reported that appellant’s symptoms were
consistent with a left knee medial meniscus tear, and opined this was causally related to the
original injury.
OWCP prepared a statement of accepted facts (SOAF) and referred appellant for a
second opinion examination by Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon. It
requested that Dr. Lakin provide an opinion as to whether appellant continued to have residual
disability from the accepted right knee condition.
In a report dated September 2, 2014, Dr. Lakin provided a history, results on
examination, and review of diagnostic tests. For the right knee he reported no effusion, no
mediolateral joint line tenderness, negative patellofemoral grind, negative patellofemoral
crepitus, negative McMurray’s test, and negative Laségue’s test. Dr. Lakin opined that appellant
had no current objective findings, with excellent motion and no instability in the right knee. He
opined that appellant had no disability related to the June 25, 2013 knee injury, and no need for
further treatment.
By letter dated October 3, 2014, OWCP issued a notice of proposed termination of wageloss compensation and medical benefits. It indicated that Dr. Lakin represented the weight of the
medical evidence. Appellant was advised that the case would be held open for 30 days for
submission of further medical evidence.
On November 4, 2014 appellant submitted an October 23, 2015 report from
Dr. McInerney. In this report Dr. McInerney reported that appellant had done fairly well
2

The claim form suggests that appellant had not stopped working, but a July 24, 2013 report from a Dr. Robert
Kayal indicated that appellant had been off work “about a month.”

2

following surgery but could not fully squat and had pain on kneeling. He wrote that it was
expected that appellant would have discomfort while crawling, kneeling, or squatting, as
appellant did not have his entire medial meniscus intact. Dr. McInerney opined that appellant
could perform job duties with restrictions on bending, kneeling, or using a ladder, otherwise it
would be difficult to perform full work duties.
On December 9, 2014 appellant submitted a November 24, 2014 report from
Dr. McInerney with respect to the left knee. Dr. McInerney reported that the left knee was
injured at the same time as the right knee. He reported than an MRI scan on June 3, 2014
showed a left knee medial meniscus tear. According to Dr. McInerney, appellant was more
symptomatic initially with the right knee, and had more weight bearing on the left knee which
exacerbated the condition.
By decision dated December 19, 2014, OWCP terminated compensation for wage-loss
and medical benefits. It found the weight of the medical evidence was represented by Dr. Lakin.
On December 30, 2014 appellant, through counsel, requested a hearing before an OWCP
hearing representative. Appellant submitted a brief note dated December 22, 2014 from
Dr. McInerney which related that appellant was doing well with his right knee, with good range
of motion, strength, and stability with only minimal swelling. Dr. McInerney reported that most
of appellant’s problems were with the left knee, and appellant could not squat without pain. He
indicated that appellant would need left knee surgery.
A hearing was held on June 23, 2015. As to additional medical evidence, appellant
submitted a February 2, 2015 report from Dr. McInerney. With respect to the right knee,
Dr. McInerney reported that appellant was unable to fully squat and has trouble standing up from
2/3 squatting position due to the right knee pain medially. He reported that there was mild
effusion with some crepitation with terminal knee extension, and otherwise relatively good range
of motion of the knee. As to the left knee, Dr. McInerney reported that appellant had pain due to
years of work at the employing establishment. He asserted that there was further aggravation
from the right knee injury, as appellant put more weight on the left knee. Dr. McInerney found
appellant was unable to work.
In a report dated June 19, 2015, Dr. McInerney reported that appellant was aware that
some of the pain that he had in his right knee when attempting to bend, squat, kneel, or climb
was most likely related to the fact that he did not have a normal and complete medial meniscus
that would act as a cushion between his femoral and tibial articulations of the medial aspect of
his right knee. He indicated that appellant was aware that significant amount of kneeling,
climbing, crawling, or climbing up and down the ladder would increase the force loads on his
knee joint. By report dated August 25, 2015, Dr. McInerney provided results on examination
and indicated that appellant needed left knee surgery.
By decision dated September 10, 2015, the hearing representative affirmed the
December 19, 2014 termination decision. She found that the weight of the medical evidence
rested with Dr. Lakin and OWCP met its burden of proof to terminate compensation.

3

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.3 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.4
To be of probative value, the opinion of the physician must be based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale.5 The Board has held that medical rationale is a medically sound explanation for the
opinion offered.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of the analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS -- ISSUE 1
In the present case, OWCP terminated compensation for wage-loss and medical benefits
effective December 19, 2014. The accepted condition in the case is a right knee torn medial
meniscus as a result of an employment incident on June 25, 2013. It is OWCP’s burden of proof,
with respect to the accepted condition, to terminate compensation.
The Board has reviewed the evidence of record before OWCP at the time of the
December 19, 2014 decision and finds that OWCP met its burden of proof to terminate
appellant’s compensation for wage-loss and medical benefits. Appellant underwent right knee
surgery on March 26, 2014. The attending physician, Dr. McInerney, indicated that in a May 29,
2014 report that appellant was doing well with the right knee.
The second opinion physician, Dr. Lakin, provided a complete report with a history,
results on examination, and review of medical records. The physical examination results
included no effusion, no mediolateral joint line tenderness, negative patellofemoral grind,
negative patellofemoral crepitus, negative McMurray’s test, and negative Laségue’s test.
Dr. Lakin provided a rationalized medical opinion that appellant had no objective findings, with
excellent range of motion and no instability in the right knee.

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

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

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

6

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
7

Supra note 5.

4

Appellant submitted an October 23, 2014 report from Dr. McInerney. This report is of
diminished probative value to the issue presented. Dr. McInerney does not provide results on
examination, or document any objective findings. It is unclear whether he examined appellant
on that date. He also does not clearly explain why he felt appellant had an employment-related
disability. The right knee surgery occurred approximately seven months earlier and there is no
rationalized medical opinion on disability. The November 24, 2014 report from Dr. McInerney
refers primarily to the left knee.
The Board accordingly finds that the weight of the medical evidence rests with the
complete report of Dr. Lakin. Dr. Lakin provided a rationalized medical opinion on the issue
presented. The Board thus finds that OWCP met its burden of proof to terminate compensation
with respect to the accepted right knee medial meniscus tear.
On appeal, appellant’s counsel argues there was a conflict in the medical evidence
between Dr. McInerney and Dr. Lakin. For the reasons discussed above, the Board finds the
weight of the medical evidence was properly accorded to Dr. Lakin.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that he
had an employment-related disability which continued after termination of compensation benefits.8
ANALYSIS -- ISSUE 2
Appellant submitted additional medical evidence after the December 19, 2014
termination decision. A review of that evidence indicates that it is not of sufficient probative
value to meet appellant’s burden to establish a continuing employment-related disability or
condition. In the brief report dated December 22, 2014, Dr. McInerney reported appellant was
doing well with his right knee, with good range of motion, strength, and stability with only
minimal swelling. This does not support a finding of disability casually related to the right knee
injury.
In a February 2, 2015 report, Dr. McInerney indicates that appellant was having some
trouble squatting and had some right knee pain. He also discusses the left knee, which has not
been accepted. Dr. McInerney does not provide a rationalized medical opinion that appellant
was disabled for work due to an accepted right knee injury.
In the June 19, 2015 report, Dr. McInerney refers to some pain in the right knee and the
lack of a complete medial meniscus. It is unclear whether he was opining that appellant was now
permanently disabled due to the medial meniscus tear and subsequent surgery. Dr. McInerney
does not discuss prior reports that had indicated appellant was doing well with his right knee, or
otherwise provide a reasoned medical opinion on disability for work. To the extent that he is
8

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

5

referring to a possible aggravation on returning to work, the possibility of a future injury does
not constitute an injury under FECA.9
The Board accordingly finds that appellant has not established a continuing employmentrelated right knee disability after December 19, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective December 19, 2014. The Board further finds appellant has
not established a continuing employment-related disability after December 19, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2015 is affirmed.
Issued: March 17, 2016
Washington, DC

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

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

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

9

Gaetan F. Valenza, 39 ECAB 1349, 1356 (1988).

6