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

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

Docket No. 19-1723
Issued: August 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On August 14, 2019 appellant, through counsel, filed a timely appeal from a June 18, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that the acceptance of her claim
should be expanded to include additional conditions as a result of her accepted employment injury;
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.

and (2) whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 18, 2019.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 6, 2012 appellant, then a 37-year-old sales distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, she injured her right shoulder when
she lifted a package out of a cage while in the performance of duty. On December 27, 2013 OWCP
accepted the claim for right shoulder strain and authorized right shoulder arthroscopic rotator cuff
repair, which was performed on July 30, 2014. It paid appellant wage-loss compensation on the
periodic rolls as of July 31, 2014.
In a letter dated September 29, 2017, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on a September 13, 2017 report from Dr. Joseph
Estwanik, a second opinion Board-certified orthopedic surgeon. By decision dated December 4,
2017, it terminated her wage-loss compensation and medical benefits, effective December 1, 2017,
finding that the weight of the medical opinion evidence rested with Dr. Estwanik.
On March 6, 2018 appellant, through counsel, requested reconsideration. By decision
dated May 8, 2018, OWCP denied modification of the December 4, 2017 decision. It also noted
that counsel had requested expansion of appellant’s claim to include right rotator cuff tear.
On June 19, 2018 appellant, through counsel, appealed to the Board. By decision dated
March 22, 2019, the Board reversed in part and set aside in part OWCP’s May 8, 2018 decision.4
The Board reversed the termination of appellant’s wage-loss compensation and medical benefits
as it found OWCP had not met its burden of proof to terminate her benefits effective
December 1, 2017. The Board found Dr. Estwanik’s opinion of diminished probative value
insufficient to support OWCP’s burden of proof since it was unclear whether his opinion was on
an accurate SOAF. The Board further found that the claim was not in posture for a decision as to
whether acceptance of the claim should be expanded to include a consequential right rotator cuff
tear. The case was remanded to OWCP to request that Dr. Estwanik provide a supplemental report
which addressed whether acceptance of appellant’s claim should be expanded to include additional
conditions.
Following the Board’s decision, on May 3, 2019, OWCP paid appellant wage-loss
compensation on the supplemental rolls for the period December 1, 2017 through April 27, 2019.
On May 25, 2019 it paid her wage-loss compensation on the periodic rolls commencing
April 28, 2019.

3

Docket No. 18-1300 (issued March 22, 2019).

4

Id.

2

On May 3, 2019 OWCP prepared a new SOAF and on May 9, 2019 OWCP again referred
appellant for a second opinion examination with Dr. Estwanik for an assessment of her workrelated condition including whether her claim should be expanded to include additional conditions
due to the accepted December 6, 2012 employment injury.
Dr. Estwanik, in a June 5, 2019 supplemental report, noted his review of additional medical
records and he provided examination findings. Based on his review of medical evidence from
September 13, 2017, Dr. Estwanik suggested that the rotator cuff repair surgery was unrelated to
the accepted December 6, 2012 employment injury. In support of this conclusion he noted that
the July 30, 2014 surgical report confirmed intact rotator cuff muscles and a magnetic resonance
imaging (MRI) scan demonstrated no tearing of the rotator cuff. Dr. Estwanik referenced
additional records, which he described as repetitive, confirmed intact rotator cuff muscles and
tendons. He again opined that appellant was capable of performing her date-of-injury job and that
her accepted right shoulder strain had resolved with no residuals.
By decision dated June 18, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, based on Dr. Estwanik’s opinion that she no longer had
any disability or residuals due to her accepted right shoulder sprain.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision as to whether appellant’s
claim should be expanded to include additional conditions causally related to the accepted
December 6, 2012 employment injury.

5

See S.L., Docket No. 19-0603 (issued January 28, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019); T.F.,
Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).
6

See S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7
See S.L., supra note 5; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).

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On prior appeal, the Board remanded the case for OWCP to obtain a supplemental report
from Dr. Estwanik addressing whether appellant’s claim should be expanded to include additional
conditions due to the accepted December 6, 2012 employment injury. On remand, OWCP
requested that Dr. Estwanik provide an opinion as to whether the claim should be expanded to
include additional conditions as work related. In his June 5, 2019 report, Dr. Estwanik failed to
provide an opinion on the issue which was the basis for the Board’s prior remand. As OWCP
undertook development of the issue of claim expansion, it had the responsibility to resolve the
issue. Once OWCP undertook development of the evidence by referring appellant back to the
second opinion physician, it had an obligation to do a complete job and obtain a proper evaluation
and report that would resolve the issue in this case.8
The case must therefore be remanded for consideration of whether acceptance of
appellant’s claim should be expanded to include additional conditions as causally related to the
accepted December 6, 2012 employment injury. Appellant shall be referred to a new second
opinion physician to opine the issue of whether the claim should be expanded to include additional
conditions as work related. Following this and such further development as deemed necessary,
OWCP shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.9 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.10 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.12 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.13

8

M.S., Docket No. 19-1401 (issued July 8, 2020); T.N., Docket No. 10-1810 (issued May 25, 2011).

9
S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
10

See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
11

D.G., supra note 9; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 29596 (1988).
12

S.P., supra note 9; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
13
D.G., supra note 9; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 18, 2019.
The Board has held that compensation benefits constitute a property interest protected by
the due process clause.14 Pursuant to OWCP’s procedures, before terminating appellant’s wageloss compensation and medical benefits, the claims examiner was responsible for advising her of
the proposed termination or reduction, the reasons for the proposed action, and of an opportunity
to respond in writing.15 Pretermination notices are required in cases in which compensation is
being paid on the periodic rolls16 and are also required in cases where all medical benefits are being
terminated based on the medical opinion of a referee or second opinion physician.17 The Board
has held that OWCP must follow its procedures and provide notice and opportunity to respond
prior to the termination of compensation benefits.18
The Board finds that when OWCP terminated appellant’s benefits on June 18, 2019 she
had again received wage-loss compensation on the periodic rolls as of May 25, 2019.
Furthermore, OWCP terminated her medical benefits based upon Dr. Estwanik’s report. However,
based upon the Board’s ruling as to Issue 1, as well as because appellant should have received
proper pretermination notification as she was being paid wage-loss compensation on the periodic
rolls and medical benefits, the termination must be reversed. OWCP should have provided her
with notice that it intended to terminate her wage-loss compensation and medical benefits, and
OWCP should have provided her an opportunity to submit evidence supporting continuing
employment-related residuals of her accepted condition.19 It should have also fully developed the
issue of claim expansion and whether the additional conditions, if any, resulted in continuing
disability from work.
Due process and elemental fairness require that a claimant under the circumstances
presented have notice and an opportunity to respond to the termination of benefits.20 The Board
finds that the termination was improper and will be reversed.

14

C.A., Docket No. 18-0470 (issued March 7, 2019); Felix Voyles, 46 ECAB 895 (1995).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(b) (February 2013);
see also Winton A. Miller, 52 ECAB 405 (2001).
16

J.S., Docket No. 17-0937 (issued December 14, 2017).

17

Id.

18

S.S., Docket No. 19-1091 (issued December 3, 2019); supra note 15.

19

Id.; K.S., Docket No. 11-2021 (issued August 21, 2012).

20

S.S., supra note 18; D.R., Docket No. 14-1688 (issued April 8, 2015).

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CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 18, 2019. The Board further finds that this
case is not in posture for decision as to whether acceptance of the claim should be expanded to
include additional conditions as a result of her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 18, 2019 is reversed in part, set aside in part, and the case is remanded for
further action consistent with this decision of the Board.
Issued: August 24, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 15-1042
Issued: September 17, 2015

Case Submitted on the Record

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

JURISDICTION
On April 14, 2015 appellant, through counsel, filed a timely appeal from a December 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability as of January 22, 2014 causally related to her August 11, 2006 and
January 14, 2007 employment injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the December 5, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt,
57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
This case was previously before the Board.3 In an August 27, 2014 decision, the Board
affirmed the denial of appellant’s recurrence of disability claim for a period commencing
March 27, 2013. It found that the medical evidence was insufficient to establish that appellant
was unable to work beginning March 27, 2013 as a result of a change in her accepted August 11,
2006 and January 14, 2007 employment injuries. The facts and circumstances as set forth in the
Board’s prior decision are incorporated herein by reference. The current claim concerns an
alleged period of disability commencing January 22, 2014. The relevant facts are summarized
below.
OWCP accepted that on August 11, 2006 appellant, then a 42-year-old mail handler,
sustained a lumbar sprain and thoracic or lumbosacral neuritis or radiculitis when she worked on
the culling belt and grabbed a piece of mail. Appellant stopped work and received compensation
benefits (OWCP file number xxxxxx250). OWCP also accepted that on January 14, 2007 she
sustained a spinal stenosis as a result of an employment injury (OWCP file number xxxxxx803).
Both claims were combined into the present claim (OWCP file number xxxxxx250). On
September 11, 2007 appellant was placed on the periodic rolls.
On November 15, 2008 appellant returned to limited duty.
On March 27, 2013 appellant received spinal injections and underwent a medial branch
block procedure. She stopped work and filed a recurrence claim for disability compensation
commencing March 27, 2013.
By decisions dated June 26 and October 23, 2013, OWCP denied appellant’s recurrence
of disability claim finding that the medical evidence was insufficient to establish that her
disability beginning March 27, 2013 was causally related to a worsening of the August 11, 2006
or January 14, 2007 employment injuries. Appellant filed an appeal to the Board. On
August 27, 2014 the Board affirmed the denial of her March 27, 2013 recurrence claim.
On February 6, 2014 appellant filed this recurrence of disability claim alleging that she
was unable to work beginning January 22, 2014. She reported that she underwent an authorized
procedure of ablation of the nerve root on January 22, 2014. Appellant stated that after the
procedure her pain increased and she was unable to return to work. The employing
establishment stated that she was out for approved surgery on January 22, 2014 and had been out
of work since March 27, 2013. Appellant requested disability compensation from January 22 to
February 21, 2014.
The record reflects that the lumbar/sacral joint procedures appellant underwent on
January 22, 2014 were authorized by OWCP for the accepted employment-related conditions.
These same procedures were again authorized as of February 10, 2014, as well as a procedure for
lumbar spine injection.

3

Docket No. 14-989 (issued August 27, 2014).

2

In February 17 and March 18, 2014 duty status and attending physician’s reports,
Dr. Mark A.P. Filippone, Board-certified in physical medicine and rehabilitation, reported a
diagnosis of lumbosacral radiculopathy and opined that appellant remained totally disabled as of
March 27, 2013.
By letters dated February 24 and 28, 2014, OWCP advised appellant that her recurrence
of disability claim beginning January 22, 2014 would not be paid in its entirety. The
February 24, 2014 letter advised that compensation would be paid for January 22 and 23, 2014,
but the February 28, 2014 letter authorized payment for eight hours for her approved surgery on
January 22, 2014.
Appellant submitted various physical therapy progress reports dated February 18 and
April 1, 2014.
On April 1, 2014 appellant stated that her claim for disability was due to her approved
surgery. She reported that she was still out of work. Appellant explained that her physical
therapy and surgeries were needed because of her work-related back condition. She stated that
her work-related conditions were continuously present and resulted in her injections in January
and February 2014.
In a decision dated April 23, 2014, OWCP denied appellant’s recurrence of disability
claim finding that the medical evidence was insufficient to establish that she was unable to work
due to a material change or worsening of her accepted August 11, 2006 and January 14, 2007
employment injuries. The decision noted, however, that appellant would be compensated for up
to four hours of disability for the authorized procedure of January 22, 2014. The record does not
reflect that she received any compensation for January 22, 2014, or any date thereafter.
On May 1, 2014 OWCP received appellant’s request for a hearing. Appellant submitted
attending physician and duty status reports dated April 22 to August 11, 2014 where
Dr. Filippone noted that she suffered from lumbosacral radiculopathy and remained totally
disabled since March 27, 2013. Dr. Filippone checked a box marked “yes” that her condition
was caused or aggravated by her employment.
In a May 13, 2014 magnetic resonance imaging (MRI) scan report, Dr. Stephen J. Conte,
a Board-certified diagnostic radiologist, related appellant’s complaints of low back pain to her
employment. He observed grade 1 retrolisthesis posterior aspect of L5 on S1, slightly reduced
with flexion and no change in extension. Dr. Conte also reported slight narrowing of the disc
spaces at L1-2, L2-3, and L5-S1 and osteoarthritis. He reviewed a previous June 2, 2011 MRI
scan and stated that the degree of posterior lateral bulging of appellant’s annulus had increased in
size when compared to the previous study. Dr. Conte stated that these findings were not present
in the prior June 2, 2011 examination.
On May 15, 2014 appellant underwent a functional capacity evaluation by Carl A.
Gargiulo, a physical therapist, who noted that her musculoskeletal examination was essentially
within normal limits and that her perceived level of disability was in the mild-to-moderate range.
Dr. Gargiulo concluded that she was capable of returning to work with restrictions of standing up

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to three hours, lifting up to 40 pounds, and repetitive lifting up to 30 pounds from floor to above
shoulder level.
Appellant was also examined by Dr. Marc A. Cohen, a Board-certified orthopedic
surgeon, who in a June 23, 2014 report, described her employment injuries and related her
complaints of continued pain in her lower back and right leg. Dr. Cohen reviewed the May 13,
2014 MRI scan and noted disc bulging and protrusions, herniated disc with annular tear at L4-5,
and herniated disc at L5-S1. Upon examination of the lumbar spine, he observed normal gait and
paravertebral spasm and tenderness in the right sciatic notch. Range of motion revealed pain
from forward flexion to neutral. Straight leg raise testing was positive. Dr. Cohen diagnosed
lumbar disc herniation worsening at L4-5 and L5-S1 and lumbosacral radiculopathy. He noted
that appellant appeared to be managing her complaints with a conservative program of physical
therapy and pain management.
In a June 24, 2014 report, Dr. A.R. Sayed Bakhaty, a pain medicine specialist, noted
appellant’s complaints of residual localized right side lower back pain. Upon examination of her
lumbar spine, he observed tenderness and spasm along paraspinal muscles L3 through S1 to the
right less than previously reported and localized over the mid and lower lumbar facet joint and
tenderness to percussion of the lumbar spinous process L3 through S1 maximum. Range of
motion demonstrated mild restriction by 20 degrees to forward bending and extension and lateral
bending lacked 5 degrees due to pain. Dr. Bakhaty diagnosed multiple injuries and persistent,
recurrent complaints most marked at the lower back on the right, post status lumbar discectomy
at L3-4 and L4-5, persistent recurrent residual right sided localized axial facet related pain,
recurrent disc herniation at L4-5 and L5-S1 with recurrent lower back pain, and lumbar
radiculopathy. He opined that within a reasonable degree of medical probability all of
appellant’s diagnoses were “causally and directly related to the accident on January 14, 2007
exacerbating previous injury in August 2006 resulting in permanent injuries, recurrent,
persistent, complaint at the lower back.” Dr. Bakhaty reported that she responded well to
previous surgery, but opined that her injuries were rather permanent in nature and would most
likely require additional treatment.
On July 3, 2014 Dr. Filippone reexamined appellant and performed lower extremity
electromyography (EMG) and nerve conduction velocity (NCV) studies. He related that she
continued to complain of low back pain radiating into the lower extremities bilaterally.
Dr. Filippone explained his examination findings and reported that all NCV studies were normal
with no nerve conduction evidence or suggestion of polyneuropathy. He reported that the needle
EMG examination, however, demonstrated abnormal findings of the L3-4 and L5-S1
lumbosacral radiculopathy. Dr. Filippone opined that all of the electrodiagnostic study
abnormalities were “directly and solely the result of the injuries that [appellant] sustained while
at work.” He recommended that appellant continue to follow-up with pain management and
stated that she remained totally disabled.
In a September 9, 2014 attending physician report and prescription note, Dr. Filippone
reported that appellant was under his care and noted a diagnosis of lumbosacral radiculopathy.
He checked a box marked “yes” that he believed that her condition was caused or aggravated by
an employment activity. Dr. Filippone reported that appellant was totally disabled from

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March 27, 2013 to September 21, 2014 and could return to full-time limited duty on
September 22, 2014. He provided a duty status report with work restrictions.
On September 22, 2014 appellant accepted a job offer for limited duty as a mail handler.
In an October 16, 2014 duty status report, Dr. Filippone limited appellant to intermittent
lifting up to 45 pounds and pushing and pulling up to 70 pounds for eight hours a day, kneeling,
bending, stooping, and twisting as needed.
On October 10, 2014 a hearing was held. Appellant and her counsel participated. She
stated that she had just returned to modified duty on September 22, 2014 after stopping work on
October 23, 2013. Appellant explained that around November 2013 she was experiencing a lot
of back spasms and tightness in her back so her doctor recommended that she obtain a nerve
ablation on January 22, 2014. She stated that after the procedure she was bedridden for about
one week because of severe pain in her back. On February 12, 2014 appellant underwent a
second ablation procedure. She reported that she did not have any other injuries to her lower
back.
In a decision dated December 5, 2014, an OWCP hearing representative affirmed the
April 23, 2014 denial decision. He determined that appellant did not submit rationalized medical
evidence that established that she was unable to work due to a worsening of her accepted
conditions. The hearing representative noted that she had undergone authorized ablation of the
right facet nerve at L4-S2 on January 22, 2014 and ablation of the medial branch L3 to S1 on
February 12, 2014.
He also noted that OWCP had advised appellant that wage-loss
compensation would be paid for authorized treatment on January 22 and February 12, 2014, but
he concluded that she had not established recurrence of disability as of January 22, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative, and substantial medical opinion evidence.4 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.5
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.6 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Dean E. Pierce, 40 ECAB 1249 (1989).

6

Laurie S. Swanson, 53 ECAB 517, 520 (2002); see also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

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addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.7
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain, lumbosacral neuritis or
radiculitis, and spinal stenosis as a result of August 11, 2006 and January 14, 2007 employment
incidents. Appellant stopped work and on November 15, 2008 returned to limited duty. She
stopped work again on March 27, 2013.8 On February 6, 2014 appellant filed a recurrence of
disability claim beginning January 22, 2014. The Board finds that the medical evidence in this
case insufficient to meet her burden of proof to establish a recurrence of disability beginning
January 22, 2014 causally related to her August 11, 2006 and January 14, 2007 employment
injuries.
The Board has found that when an employee claims that he or she has experienced a
recurrence of total disability after returning to a light-duty position, he or she must demonstrate
either a change in the nature and extent of his or her injury-related condition, or a change in the
nature and extent of the light-duty job requirements.9 Appellant does not allege and the record
does not show a change in her light-duty job requirements. Rather, she attributes her disability
beginning January 22, 2014 to her August 11, 2006 and January 14, 2007 employment injuries.
Accordingly, appellant has the burden of proof to provide medical evidence that establishes she
was disabled as of January 22, 2014 because of a worsening of her accepted work-related
conditions.10
In duty status and attending physician reports dated February 17 to August 11, 2014,
Dr. Filippone noted a diagnosis of lumbosacral radiculopathy and indicated that appellant
remained totally disabled as of March 17, 2013. He also checked a box marked “yes” that her
condition was caused or aggravated by her employment. When a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without any explanation or
rationale, that opinion is of diminished probative value.11 Accordingly, these reports are
insufficient to establish appellant’s claim.
On July 3, 2014 Dr. Filippone reexamined appellant and performed EMG/NCV studies
on her lower extremities. He provided examination findings and reported that all NCV studies
7

Amelia S. Jefferson, supra note 4.

8

Although appellant also filed a recurrence of disability claim beginning March 27, 2013, the Board only has
jurisdiction over the December 5, 2014 hearing representative decision, which denied her recurrence of disability
claim beginning January 22, 2014. Thus, the issue before the Board is whether she met her burden of proof to
establish that she sustained a recurrence of disability on January 22, 2014 causally related to her August 11, 2006
and January 14, 2007 employment injuries.
9

K.J., Docket No. 10-457 (issued September 15, 2010).

10

D.B., Docket No. 13-717 (issued July 24, 2013).

11

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

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were normal, but that the EMG examination revealed abnormal findings of lumbosacral
radiculopathy at the L3-4 and L5-S1 levels of her spine. Dr. Filippone opined that all of the
electrodiagnostic study abnormalities were “directly and solely the result of the injuries that
[appellant] sustained while at work.” He recommended that appellant continue with pain
management and found that she remained totally disabled. The Board notes that although
Dr. Filippone examined her and found her totally disabled, he did not provide medical rationale
to explain how her accepted lumbar condition changed or worsened to the extent that she was no
longer able to work limited duty. The Board has found that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.12
Dr. Bakhaty’s June 24, 2014 report reviewed appellant’s history and examination. He
diagnosed multiple injuries and persistent, recurrent complaints most marked at the right side of
the lower back. Dr. Bakhaty identified appellant as status post lumbar discectomy at L3-4
and L4-5, with persistent recurrent residual right-sided pain and recurrent disc herniations at
L4-5 and L5-S1 with recurrent lower back pain, and lumbar radiculopathy. He opined that all of
her diagnoses were causally and directly related to the accident on January 14, 2007 which
exacerbated a previous injury in August 2006. Dr. Bakhaty also failed to explain, based on
objective medical evidence and rationale, how appellant’s current back conditions worsened so
that she was unable to work.
Appellant also submitted a June 23, 2014 report by Dr. Cohen. Dr. Cohen reviewed her
history and conducted an examination. He observed paravertebral spasm and tenderness in
appellant’s right sciatic notch and pain from forward flexion to neutral. Straight leg raise testing
was positive. Dr. Cohen diagnosed lumbar disc herniation worsening at L4-5, L5-S1 and
lumbosacral radiculopathy. The Board notes that Dr. Cohen did not discuss appellant’s claimed
inability to work beginning January 22, 2014 as a result of her employment injuries. The Board
has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13
Likewise, Dr. Conte’s May 13, 2014 MRI scan report also provides no opinion on appellant’s
disability or whether her inability to work resulted from her accepted injuries.
The May 15, 2014 FCE and various physical therapy progress notes also fail to establish
appellant’s recurrence claim as physical therapists are not considered physicians under FECA.14
Therefore, their opinions are of no probative value.
On appeal, counsel alleges that appellant provided sufficient evidence to establish an
overall worsening of her low back condition which required additional medical treatment in the
form of lumbar injections beginning January 22, 2014. He further contends that she did not have
12

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
14

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

7

to return to work to establish recurrence of injury. As explained above, however, the medical
reports submitted failed to contain rationalized medical opinion explaining how appellant’s
inability to work resulted from a change or worsening of her accepted lumbar condition.
Because appellant has not submitted sufficiently reasoned medical opinion explaining why her
recurrence of disability resulted from her accepted employment injuries, she did not meet her
burden of proof to establish her claim.
The Board does find, however, that upon return of the case record OWCP should
determine whether appellant has received wage-loss compensation for disability incidental to her
medical treatments on January 22 and February 12, 2014, for the employment-related authorized
services. The Board has long recognized that under section 8103 of FECA15 payment of
expenses incidental to the securing of medical services encompasses payment for loss of wages
incurred while obtaining medical services.16 An employee is entitled to disability compensation
for loss of wages incidental to treatment for an employment injury.17 While OWCP has
indicated that some wage loss would be payable for the dates in question, the record is unclear as
to the hours and dates for which compensation has been authorized, and whether appellant has
received any wage-loss compensation.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability beginning January 22, 2014 causally related to her August 11,
2006 and January 14, 2007 employment injuries. Upon remand of the case, OWCP shall decide
her entitlement to wage-loss benefits incidental to her specific medical treatments of January 22
and February 12, 2014.

15

5 U.S.C. § 8103.

16

Daniel Hollars, 51 ECAB 355 (2000).

17

Id., see also Henry Hunt Searls, III, 46 ECAB 192 (1994); see also Federal (FECA) Procedure Manual, Part
2 -- Claims, Computing Compensation, Chapter 2.901.19 (February 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2014 merit decision of the Office
of Workers’ Compensation Programs is affirmed in part and remanded for further consideration.
Issued: September 17, 2015
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
TENNESSEE VALLEY AUTHORITY,
SEQUOYAH NUCLEAR PLANT,
Soddy -- Daisy, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-958
Issued: August 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 20, 2014 appellant, through his attorney, filed a timely appeal from the
February 7, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s hearing loss claim on the
grounds that it was untimely filed.
FACTUAL HISTORY
On May 24, 2013 appellant, then a 64-year-old retired boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he sustained hearing loss due to exposure to noise in the
1

5 U.S.C. §§ 8101-8193.

workplace.2 He first became aware of his claimed condition on January 1, 2008 and first realized
that it was caused or aggravated by his work on April 25, 2013 when he read a report of
Dr. William A. Logan, an attending Board-certified otolaryngologist.3 On the form, an
employing establishment claims representative noted that appellant first reported the claimed
condition to the employing establishment on May 24, 2013 and that he was last exposed to
employment conditions alleged to have caused his condition on October 30, 1990.
In an undated statement received on June 28, 2013, appellant noted that he worked as a
boilermaker at the Sequoyah Nuclear Plant for intermittent periods between January 11, 1989
and October 30, 1990. He also worked at the Widow Creek fossil fuel plant from May 1 to
25, 1990. At both facilities, appellant was exposed to loud noise from boilers, water pumps and
fans despite the fact that he wore earplugs at work. He noted that between 1988 and
November 20, 2009 he also worked as a union boilermaker under contractor status for the
employing establishment. Appellant worked at various employing establishment facilities,
including nuclear and fossil fuel plants, where he was exposed to loud noises. He also reported
various private sector jobs between 1965 and 1989, where he was exposed to some noise, as well
as service in the U.S. Army in 1966 and 1967, where he was exposed to noise from rifle fire.
Appellant stated that he “first noticed some problem with my hearing approximately [five] years
ago,” but first learned that his hearing was related to his work when he reviewed an April 28,
2013 report of Dr. Logan.
In a February 28, 2013 report, Dr. Logan stated that appellant reported that he had
“hearing loss for a number of years.” Appellant had trouble understanding people when they
talked, especially if there was background noise or if more than one person was talking.
Dr. Logan noted that appellant did not report ear drainage or ear pain and stated, “Worked in a
noisy environment for many years. Was in the military for only about six months back in 1967.
No significant tinnitus or dizziness.” Dr. Logan stated that an audiogram he obtained showed a
bilateral steeply sloping high frequency sensorineural hearing loss with Type A tympanograms.4
He stated that discrimination scores were 100 percent on the left and 84 percent on the right.
Dr. Logan diagnosed binaural sensorineural hearing loss. He noted that appellant was medically
cleared for amplification if he so desired.
A January 11, 1989 audiogram for the left ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cycles per second revealed decibel losses of 5, 5, 5 and 45 respectively and testing for
the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed
2

The claim was dated May 7, 2013 but was not received until May 24, 2013.

3

Appellant indicated that, when he learned of the work related cause of his hearing loss, he notified the
employing establishment by letter dated April 25, 2013. In this letter, he stated, “I have just been advised by a
physician for the first time that I have a hearing loss that is related to my employment with TVA. Therefore, please
be advised that I am filing a claim for federal workers’ compensation benefits based on this loss.” It is unclear when
the employing establishment received this letter.
4

An attached February 28, 2013 audiogram indicated that testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 10, 10, 25 and 70 respectively and that testing
for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of
10, 10, 25 and 70 respectively.

2

decibel losses of 0, 10, 5 and 30 respectively. It appears that the audiogram was obtained by the
employing establishment on appellant’s first day of work.5
By decision dated July 19, 2013, OWCP denied appellant’s hearing loss claim as
untimely filed. It stated:
“The date of your injury is [January 1, 2008]. The claim for compensation was
filed on May 7, 2013.6
“Although you indicate that on April 25, 2013, you were notified by a physician
that hearing loss was due to your employment at [the employing establishment],
you were aware of your hearing loss on January 1, 2008 according to the claim
you filed. Additionally, you were not a part of the annual hearing loss program at
[the employing establishment]. The Board has held that a program of annual
audiometric examinations conducted by an employing establishment in
conjunction with an employee testing program was sufficient to constructively
establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury.”
In a report dated August 5, 2013, Whitney K. Mauldin, an audiologist, reviewed the
record for the employing establishment, stated that the evidence of record did not reflect that
appellant’s present hearing loss was work related.
Appellant requested a hearing before an OWCP hearing representative. During the
December 9, 2013 hearing, he discussed his work history and testified that he first noticed a
problem with his hearing “about five years” ago. Appellant testified that he did not know such
problems were work related until he reviewed a report of Dr. Logan on April 25, 2013. He
indicated that he retired in 2010.
In a letter dated January 10, 2014, Robin Daugherty, an employing establishment official,
stated that the January 11, 1989 audiogram of record showed that appellant had preexisting
hearing loss when he began working for the employing establishment.
In a January 16, 2014 letter, counsel argued that the time for filing a hearing loss claim
does not begin to run until the claimant learns that his hearing loss is causally related to his
employment. Although appellant knew of his a hearing loss on January 1, 2008, he did not
realize that it was work related until he reviewed Dr. Logan’s report on April 24, 2013. Counsel
concluded that appellant’s May 24, 2013 hearing loss claim was timely as it was filed within
three years of when he became aware of a work relationship to his claimed condition.
In a February 7, 2014 decision, an OWCP hearing representative affirmed the
July 19, 2013 decision finding that appellant’s hearing loss claim was denied on the grounds that
it was untimely filed.
5

The audiogram was obtained by an audiologist and it does not appear that it was signed by a physician.

6

It is noted that the claim was filed on May 24, 2013.

3

LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.7 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”8
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality would be temporary or permanent.9 Where the employee continues in the same
employment after he or she reasonably should have been aware that he or she has a condition
which has been adversely affected by factors of federal employment, the time limitation begins
to run on the date of the last exposure to the implicated factors.10 Section 8122(b) of FECA
provides that the time for filing in latent disability cases does not begin to run until the claimant
is aware or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.11 The requirement to file a
claim within three years is the claimant’s burden and not that of the employing establishment.12
ANALYSIS
On May 24, 2013 appellant filed an occupational disease claim alleging that he sustained
a hearing loss due to exposure to noise in the workplace between 1989 and 2009. He first
became aware of his claimed condition on January 1, 2008 and that it was caused or aggravated
by his work on April 25, 2013 when he read a February 28, 2013 report of Dr. Logan, an
attending Board-certified otolaryngologist. OWCP denied appellant’s hearing loss claim on the
grounds it was untimely filed. It determined that in January 1, 2008 he was aware or reasonably
7

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a).

9

Larry E. Young, 52 ECAB 264 (2001).

10

Id.

11

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

12

Debra Young Bruce, 52 ECAB 315 (2001).

4

should have been aware of a possible relationship between his condition and his employment and
that, therefore, his May 24, 2013 claim was not filed within the requisite three years of obtaining
such knowledge.
The Board finds that OWCP did not support its determination that appellant filed his
hearing loss claim in an untimely manner. Although appellant indicated on the claim form that
he became aware that he had a hearing loss on January 1, 2008,13 he advised that he was not
aware of a work-related cause for his hearing loss until April 25, 2013 when he reviewed a
February 28, 2013 report of Dr. Logan.14 While appellant was exposed to hazardous noise while
working for the employing establishment directly or as a contractor between 1989 and 2009,
OWCP did not adequately explain its determination that he was aware or should have been
aware of a work related cause for his hearing loss in early 2008. Although appellant
acknowledged that he was aware of his hearing loss on January 1, 2008, this knowledge coupled
with the lack of contemporaneous indication that he might have a noise-induced hearing loss due
to exposure to noise at work is insufficient to establish that he should have known earlier than
April 25, 2013 that it was a work-related hearing loss. Appellant’s indication that he first
became aware of his hearing loss in early 2008 appears to be based upon his own observations
about his hearing problems, rather than upon any medical evaluation. The only audiogram
evaluation of record other than the February 28, 2013 evaluation of Dr. Logan is the
January 11, 1989 audiogram contemporaneous to appellant’s first day of work. OWCP has not
identified any medical evidence of record which suggests that appellant was aware or should
have been aware of a work-related cause of his hearing loss more than three years prior to his
May 24, 2013 filing.15
In addition, OWCP has not identified any statements made by appellant showing that he
was aware of a possible work-related cause for his claimed hearing loss more than three years
prior to his May 24, 2013 filing. As noted, appellant indicated that he was not aware of a
work-related cause for this hearing loss until April 25, 2013 when he reviewed a February 28,
2013 report of Dr. Logan. For these reasons, OWCP improperly denied his hearing loss claim on
the grounds that it was untimely filed.
Therefore, the case shall be remanded to OWCP for consideration of appellant’s claim as
a timely claim for work-related hearing loss. It shall issue an appropriate decision regarding his
claim that he sustained a hearing loss due to exposure to noise at work.

13

Appellant also indicated that he first noticed that he had a hearing loss about five years prior to filing his claim
in May 2013.
14

In his February 28, 2013 report, Dr. Logan noted that appellant reported working “in a noisy environment for
many years” and diagnosed “binaural sensorineural hearing loss.”
15

For example, the current record does not contain contemporaneous evidence such as audiograms taken during
federal employment which show significant progressive loss or which contain notations indicating a noise-induced
hearing loss. See William C. Oakley, 46 ECAB 519 (2005).

5

CONCLUSION
The Board finds OWCP improperly denied appellant’s hearing loss claim on the grounds
that it was untimely filed. The case is remanded to OWCP for further development of the
evidence.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, MN, Employer
__________________________________________

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

Docket No. 09-1366
Issued: February 1, 2010

Case Submitted on the Record

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

JURISDICTION
On May 5, 2009 appellant filed a timely appeal from the April 3, 2009 merit decision of
the Office of Workers’ Compensation Programs which denied her claim for disability
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
issue.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for
January 24, 2008.
FACTUAL HISTORY
On December 30, 2001 appellant, then a 38-year-old distribution clerk, filed an
occupational disease claim alleging that she sustained a shoulder, arm and neck condition due to
constant lifting and repetitive use of her right arm in the performance of duty. The Office
accepted the claim for a cervical condition to include right C7 radiculopathy and C6-7 herniated

disc. Appellant underwent a C6-7 discectomy with anterior C6-7 fusion on April 21, 2003.1
After her surgery, she returned to limited duty and filed claims for intermittent wage loss. In a
July 3, 2006 work restriction form, Dr. Kion Hoffman, a family practitioner, noted appellant’s
work restrictions and that she was attempting to work eight hours daily. Subsequently, he
submitted reports addressing appellant’s treatment for intermittent periods of disability.
In a report dated January 25, 2008, Dr. Arndt B. Braaten, a Board-certified family
practitioner and associate of Dr. Hoffman, noted that appellant had complaints of continuing
chronic neck and upper back pain. He advised that she just completed the busy holiday season
and experienced an increase of intensity and frequency of back pain. Dr. Braaten diagnosed
occipital neuralgia and cervicalgia with myofascial neck pain secondary to cervical
radiculopathy and overuse. He administered injections of lidocaine and marcaine. Dr. Braaten
advised that appellant could return to work on January 28, 2008. In a January 25, 2008 report, he
reiterated that appellant could return to restricted work on January 28, 2008. In a February 1,
2008 report of work ability, Dr. Braaten advised that she was unable to work beginning
January 29, 2008 and that she could return to restricted work on February 5, 2008.
The Office also received a February 20, 2008 report from a physician’s assistant, who
indicated that appellant was seen for cervical radiculopathy and occipital neuralgia. The
physician’s assistant advised that appellant could return to work with limitations on
February 23, 2008.
On June 25, 2008 appellant filed a CA-7 form claiming 80.72 hours of intermittent wage
loss from January 12 through March 28, 2008.
In a letter dated July 14, 2008, the Office advised appellant that 56.12 hours of wage loss
was payable for certain of the claimed dates. However, it advised that there was insufficient
medical evidence to establish disability for work from January 12 and 24 and February 20
through 22, 2008. The Office allotted appellant 30 days within which to submit the requested
information.
In a February 1, 2008 treatment record, Dr. Braaten advised that appellant presented with
complaints of cervicalgia and occipital neuralgia. He stated that appellant requested multiple
trigger point injections and also requested “forms to be filled out for workers’ compensation.”
Dr. Braaten noted completing a “workability” form but did not address particular periods of
disability. Appellant also submitted medical evidence that either predated the claimed dates, was
previously of record or addressed periods subsequent to the claimed dates. She also submitted a
February 20, 2008 report from a physician’s assistant.
By decision dated September 11, 2008, the Office denied appellant’s claim for
intermittent disability from January 12 and 24, 2008. It found that appellant established her
claim for the periods February 20 through 22, 2008. However, the Office found that she had not
submitted evidence to support disability on January 12 and 24, 2008 as there was no medical
1

The Office accepted a recurrence on June 9, 2003. It denied appellant’s claim for a recurrence on February 28
and May 25, 2005. The Office also accepted that she reinjured her cervical condition on September 8, 2004 under
File No. xxxxxx430. The claim was doubled into the present claim.

2

evidence from her attending physician which supported a work-related condition for which she
was either attending a doctor’s appointment or was totally temporarily disabled on those dates.
On September 15, 2008 appellant’s representative requested a hearing, which was held on
January 15, 2009. During the hearing, appellant clarified that she actually worked on
January 12, 2008. She indicated that the only date that remained unpaid was January 24, 2008.
Appellant explained that she was unable to work on January 24, 2008; however, she could not
get a doctor’s appointment until January 25, 2008.
In a decision dated April 3, 2009, the Office affirmed the September 11, 2008 decision as
modified. The Office hearing representative noted that January 12, 2008 was no longer claimed
and that the issue was moot related to that date. Regarding the date of January 24, 2008, the
Office hearing representative found that there was no medical evidence to support appellant’s
inability to work due to her accepted condition on January 24, 2008.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.2 As used in the Act,
the term “disability” means incapacity, because of an employment injury, to earn the wages that
the employee was receiving at the time of injury.3 Disability is thus, not synonymous with
physical impairment, which may or may not result in an incapacity to earn wages.4 Whether a
particular injury caused an employee disability from employment is a medical issue, which must
be resolved by competent medical evidence.5
With respect to claimed disability for medical treatment, section 8103 of the Act provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.6 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.7 However, the
Office’s obligation to pay for medical expenses and expenses incidental to obtaining medical
care, such as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.8

2

William A. Archer, 55 ECAB 674 (2004).

3

Patricia A. Keller, 45 ECAB 278 (1993); Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37
ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38 (1948); 20 C.F.R. § 10.5(17).
4

See Fred Foster, 1 ECAB 21 (1947).

5

See Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

6

5 U.S.C. § 8103(a).

7

Vincent E. Washington, 40 ECAB 1242 (1989).

8

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

3

ANALYSIS
The most contemporaneous medical evidence regarding appellant’s claim for wage-loss
compensation on January 24, 2008 were the January 25, 2008 reports from Dr. Braaten whose
narrative treatment report diagnosed occipital neuralgia and cervicalgia with myofascial neck
pain secondary to cervical radiculopathy and overuse. Dr. Braaten indicated that appellant could
return to work on January 28, 2008. The Board notes that he did not provide any opinion that
appellant was disabled or unable to work on January 24, 2008. Dr. Braaten’s February 1, 2008
report did not specifically address whether appellant was disabled due to her work injury on
January 24, 2008.
The record contains additional medical reports, however, they do not address the period
in question. An award of compensation may not be based on surmise, conjecture or speculation
or upon appellant’s belief that there is a causal relationship between her condition and her
employment.9 Furthermore, the record contains reports from a physician’s assistant but these
reports cannot be considered as probative medical evidence.10
Appellant failed to submit sufficient medical evidence in this case and, therefore, has
failed to discharge her burden of proof. He did not submit any reports which offered medical
rationale explaining the causal relationship as to how or why appellant’s accepted employment
injury prevented her from performing the duties of her position on January 24, 2008.11 As
appellant has failed to submit sufficient rationalized medical opinion evidence to establish that
she was unable to work on January 24, 2008, due to her employment injury, she has failed to
establish that she was disabled and thus, is not entitled to wage-loss compensation for that date.
CONCLUSION
The Board finds that appellant is not entitled to wage-loss compensation for her absence
on January 24, 2008.

9

Patricia J. Glenn, 53 ECAB 159 (2001).

10

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (physicians’ assistants are not “physicians”
as defined under the Federal Employees’ Compensation Act and their opinions are of no probative value). See also
5 U.S.C. § 8101(2) (defines the term “physician”).
11

Medical reports not containing rationale on causal relationship are entitled to little probative value and are
generally insufficient to meet appellant’s burden of proof. Lourdes Davila, 45 ECAB 139 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PUBLIC WORKS CENTER, Norfolk, VA,
Employer
__________________________________________

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Appearances:
Neil C. Bonney, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1610
Issued: April 25, 2019

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant, through counsel, filed a timely appeal from a July 20, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 20, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that modification of
his October 31, 2007 loss of wage-earning capacity (LWEC) determination was warranted.
FACTUAL HISTORY
On June 17, 1996 appellant, then a 41-year-old roofer, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, he injured his lower back when climbing and moving materials
while in the performance of duty. On August 7, 1996 OWCP accepted his claim for right hip
strain. On September 7, 1996 it expanded the acceptance of his claim to include lumbosacral
strain, herniated disc L5-S1, right sciatica, and the resulting surgery on June 29, 1996 including
hemilaminectomy, foraminotomy, on the right at L5-S1 with discectomy. On October 31, 1996
appellant underwent authorized lumbar fusion at L5-S1.
On December 26, 1996 OWCP placed appellant on the periodic rolls for payment of wageloss compensation due to total disability. Appellant returned to part-time work on May 5, 1997
for four hours a day, five days a week with a 25-pound lifting restriction and no climbing, bending,
or twisting. On March 16, 1998 he returned to work for eight hours a day.
On September 21, 1998 appellant filed a notice of recurrence (Form CA-2a) alleging that
his June 17, 1996 employment injury rendered him disabled from work beginning
September 18, 1998. On January 4, 1999 he underwent an authorized L4 right laminotomy,
removal of instrumentation, and implantation of bone graft. On May 26, 1999 OWCP again placed
appellant on the periodic rolls for wage-loss compensation due to total disability.
On May 24, 2007 the employing establishment offered appellant a light-duty position as
an equipment, facilities, and services assistant working eight hours a day. The position was
sedentary and required him to lift, push, and pull up to 10 pounds with the ability to alternate sitting
and standing. Appellant was required to walk short distances for up to one hour a day. On June 12,
2007 he accepted that light-duty position and returned to work.
By decision dated October 31, 2007, OWCP found that the equipment, facilities, and
services assistant position represented appellant’s wage-earning capacity. It authorized wage-loss
compensation benefits based on appellant’s loss of wage-earning capacity (LWEC) in this position
in the amount of $536.00 every 28 days.
On August 12, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that, on
July 28, 2015, he stopped work due to his May 17, 1996 employment injuries. He indicated that
he could only work four hours a day.
In an October 9, 2015 development letter, OWCP advised appellant that he should submit
medical evidence in support of his claimed recurrence. It afforded him 30 days to respond. No
response was received.
By decision dated November 16, 2015, OWCP denied appellant’s claim for a recurrence
of disability beginning on July 28, 2015.

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On November 19, 2015 appellant responded to OWCP’s request for information and
asserted that his back condition had worsened such that he could no longer sit for eight hours a
day. He provided a series of medical reports from Dr. Mark B. Kerner, a Board-certified
orthopedic surgeon. Dr. Kerner opined that appellant’s injury-related condition had worsened and
that he required additional surgery.
On September 6, 2016 appellant requested reconsideration of the November 16, 2015
decision. By decision dated November 29, 2016, OWCP denied modification of the November 16,
2015 decision, finding that the record supported four hours disability, rather than total disability
as appellant had claimed.
On March 6, 2017 appellant, through counsel, requested reconsideration of the
November 29, 2016 decision. Counsel contended that appellant was not seeking total disability as
described in OWCP’s November 29, 2016 decision, but instead partial disability for four hours a
day.
On May 22, 2017 OWCP informed appellant that as a formal LWEC determination had
been issued on October 31, 2007, his request for reconsideration had been considered as a request
for modification of the October 31, 2007 LWEC determination. It informed him of the standard
for modifying an LWEC determination and afforded him 30 days to respond.
On June 13, 2017 Dr. Kerner examined appellant due to back pain. He diagnosed lumbar
radicular pain and end of the battery life for appellant’s spinal cord stimulator.
By decision dated June 23, 2017, OWCP denied modification of the October 31, 2007
LWEC determination. It found that appellant had not submitted medical opinion evidence
establishing a change in his accepted conditions and that he had therefore not established a basis
for modification of the October 31, 2007 LWEC determination.
Subsequently, in a note dated June 13, 2017, Dr. Kerner reported appellant’s symptoms of
worsening pain down his left leg. He also noted that appellant’s spinal cord stimulator was not
working properly. Dr. Kerner recommended additional diagnostic testing to rule out junctional
stenosis at the level above appellant’s fusion.
On June 26, 2017 appellant underwent a lumbar spine computerized tomography (CT) scan
which demonstrated markedly increased degenerative disc disease at L3-4 as compared to his
June 2016 injury. Dr. Nripendra C. Devanath, a diagnostic radiologist, opined, “The findings
likely represent significantly worsened degenerative disc disease.”
On August 4, 2017 Dr. Kerner examined appellant due to back pain and diagnosed lumbar
stenosis, lumbago-sciatica due to displacement of lumbar intervertebral disc, insertion of spinal
cord stimulator, and displacement of lumbar intervertebral disc without myelopathy. He
recommended additional back surgery.
On September 18, 2017 Dr. Franklin M. Epstein, a Board-certified neurosurgeon acting as
an OWCP district medical adviser (DMA), reviewed the statement of accepted facts (SOAF) and
medical records. He found that appellant required additional back surgery causally related to his
June 17, 1996 employment injuries and resulting back surgeries on June 29, 1996, October 31,
1996, and January 4, 1999. Dr. Epstein noted that appellant was experiencing a marked increase
3

in the level of his chronic pain because of new nerve compression at the L3-4 level, an “adjacent
level” problem due to his prior spine fusions.
On December 7, 2017 appellant requested modification of the October 31, 2007 LWEC
determination. He continued to request compensation for four hours a day.
By decision dated January 10, 2018, OWCP denied modification of the October 31, 2007
LWEC determination. It found that Dr. Kerner’s reports failed to establish a material change in
the nature and extent of appellant’s injury-related condition.
On January 22, 2018 appellant again requested modification of the October 31, 2007
LWEC determination. He provided a January 16, 2018 report from Dr. Kerner who noted that he
reduced appellant’s work hours to four hours a day in July 2015. Dr. Kerner further noted that
appellant had sustained a material change in his injury-related condition as demonstrated by the
June 16, 2018 CT scan which confirmed severe stenosis at the level adjacent to appellant’s
previous lumbar fusions. He also noted that appellant’s lumbar pain had progressed necessitating
the reduction in his work hours from eight to four.
By decision dated April 26, 2018, OWCP denied modification of the October 31, 2007
LWEC determination.
On July 5, 2018 appellant, through counsel, again requested modification of the
October 31, 2007 LWEC determination. In a letter dated June 29, 2018, counsel asserted that,
after 19 years of working following his back injury, appellant requested leave without pay for four
hours a day due to a worsening of his accepted condition. On June 12, 2018 appellant described
his medical treatment from June 17, 1996 and his return to work for eight hours a day on
September 20, 2007. He noted on December 16, 2012 that he was transferred to a different
position as a facility service assistant. Appellant alleged that this position required sitting for
extended periods of time using a computer and other technology tools. He tried various ergonomic
chairs and desks, but he experienced uncontrolled nerve pain and spasms. On July 28, 2015
Dr. Kerner reduced appellant’s work hours to four a day. Appellant requested wage-loss
compensation for four hours a day from July 28, 2015 through May 1, 2017.
On January 31, 2017 Dr. Kerner continued to diagnose junctional stenosis above the L4
fusion. He noted that appellant was working four hours a day. In a note dated September 5, 2017,
Dr. Kerner diagnosed chronic back pain and post-laminectomy syndrome. On December 5, 2017
he diagnosed post-laminectomy syndrome with junctional stenosis at L3-4. Dr. Kerner
recommended surgery.
By decision dated July 20, 2018, OWCP denied modification of the October 31, 2007
LWEC determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represent a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it

4

remains undisturbed until properly modified.4 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.5
OWCP has by regulation defined when modification of an LWEC determination should
occur.6
“If OWCP issues a formal loss of wage-earning capacity determination including a
finding of no loss of wage-earning capacity, that determination and rate of
compensation, if applicable, remains in place until that determination is modified
by OWCP. Modification of such a determination is only warranted where the party
seeking the modification establishes either that 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
erroneous. However, OWCP is not precluded from adjudicating a limited period
of disability following the issuance of a loss of wage-earning capacity decision,
such as where an employee has a demonstrated need for surgery.7
“Further definition as to when modification of a formal LWEC determination
should occur if the claimant’s medical condition has materially changed is provided
in OWCP’s procedures.8 These procedures provide for modification of a[n] LWEC
determination when “Current medical evidence demonstrates either: (a) a
worsening of the accepted medical condition with no intervening injury resulting
in new or increased work-related disability; or (b) that the work-related condition
has improved and disability has decreased.”
The burden of proof is on the party seeking modification.9 There is no time limit for
appellant to submit a request for modification of a wage-earning capacity determination.10
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted appellant’s claim for right hip strain, lumbosacral strain, herniated disc
L5-S1, right sciatica, and the resulting surgeries on June 29, 1996, October 31, 1996, and
January 4, 1999. On October 31, 2007 it found that the employing establishment equipment,
4

S.S., Docket No. 18-0397 (issued January 15, 2019).

5

Id.; J.H., Docket No. 16-0314 (issued May 12, 2016); Sue A. Sedwick, 45 ECAB 211 (1993).

6

20 C.F.R. § 10.511.

7

Id.; supra note 3; Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2 -Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
8

Federal (FECA) Procedure Manual, id. at Chapter 2.1501 (June 2013).

9

Supra note 4; J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

10

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

5

facilities, and services assistant position, working eight hours a day, represented appellant’s wageearning capacity. Beginning on July 28, 2015, appellant alleged that he could no longer work eight
hours a day, but could only work four due to his accepted employment injuries.11 He continued
working four hours a day through May 1, 2017.
Dr. Kerner provided several reports and diagnostic tests. He opined that appellant’s injuryrelated condition had worsened and that he required additional surgery. OWCP referred the
medical evidence to its DMA, Dr. Epstein, who found that appellant required additional back
surgery causally related to his June 17, 1996 employment injuries and accepted back surgeries on
June 29, 1996, October 31, 1996, and January 4, 1999. He noted that appellant was experiencing
a marked increase in the level of his chronic pain because of new nerve compression at the L3-4
level, an “adjacent level” problem from his prior spine fusions.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.12 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.13 Herein, appellant
alleged and submitted medical evidence in support of his claim that his condition worsened
following the issuance of an LWEC determination. OWCP began to develop the evidence by
seeking an opinion from a DMA regarding his need for additional surgery. It failed, however, to
seek clarification as to whether appellant’s accepted employment-related conditions had materially
worsened thereby disabling him from performing the duties of his LWEC position of equipment,
facilities, and services assistant at the employing establishment.
On remand, OWCP shall create a new SOAF which properly describes appellant’s
equipment, facilities, and services assistant position, which was the basis of his LWEC
determination, and provide position descriptions for any subsequent positions to which he was
assigned including facility service assistant. It shall thereafter refer the medical evidence of record
and the new SOAF to a physician in the appropriate field of medicine for an opinion as to whether
appellant had a change in his employment-related medical conditions that rendered him disabled
from his LWEC position on or after July 28, 2015. After this and such other development of the
evidence as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

11

See Sharon C. Clement, 55 ECAB 552 (2004) (the criteria for modifying formal LWEC determinations remains
the same regardless of whether a given claimant continues to work or stops work after the issuance of the formal
LWEC determination).
12

S.S., Docket No. 18-0397 (issued January 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
13

S.S., id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development in
accordance with this decision of the Board.
Issued: April 25, 2019
Washington, DC

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

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

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

7