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

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

Docket No. 13-415
Issued: June 18, 2013

Case Submitted on the Record

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

JURISDICTION
On December 18, 2012 appellant filed a timely appeal of a November 9, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his left shoulder and neck conditions
were causally related to his employment.
FACTUAL HISTORY
On July 8, 2010 appellant, then a 61-year-old automation clerk, filed an occupational
disease claim alleging that on June 29, 2010 he first realized that the torn ligaments in his left
shoulder were due to his employment.

1

5 U.S.C. § 8101 et seq.

By letter dated July 13, 2010, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised as to the type of medical and factual
evidence required to support his occupational disease claim. He was given 30 days to provide
the requested information.
Subsequent to the July 13, 2010 letter, OWCP received appellant’s August 9, 2010
statement detailing his job duties and medical evidence.
A June 30, 2010 magnetic resonance imaging (MRI) scan of the left shoulder revealed a
supraspinatus tendon tear, a partial tear of the infraspinatus tendon with a tiny effusion of the
joint and a possible labral tear due to the irregularity of the superior glenoid labrum.
A July 12, 2010 cervical spine MRI scan showed significant C4-5, C5-6 and C6-7 spinal
stenosis, due to broad-based disc bulging and posterior osteophytic ridging.
An August 3, 2010 electromyogram revealed very severe C5 and C6 denervation changes
suggesting possible cervical radiculopathies, acute brachial neuritis or Parsonage-Turner
syndrome.
On August 30, 2010 OWCP received a July 15, 2010 report from Dr. Jimmy Wolfe, a
treating Board-certified neurologist, who provided physical findings and medical history. A
physical examination revealed left biceps as 2/5, atrophy of the left triceps region and posterior
deltoid and deep tendon reflexes were absent for the left biceps. Based on his review of
diagnostic tests and physical examination, Dr. Wolfe diagnosed left shoulder region atrophy and
sensory sparing and left arm weakness.
In an August 4, 2010 report, Dr. Domenic P. Esposito, an examining Board-certified
neurologist, provided findings on examination and reviewed diagnostic testing. He diagnosed
multilevel cervical disc disease and recommended surgery.
On August 16, 2010 Dr. William Hanigan, an examining Board-certified neurologist,
diagnosed weakness of the C5 and C6 muscles, some shoulder pain, a labial tear and cervical
spondylosis, which he attributed to appellant’s work.
By decision dated September 10, 2010, OWCP denied appellant’s claim. It found that he
failed to submit any medical evidence establishing that the diagnosed condition was causally
related to his employment.
On October 8, 2010 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 10, 2011.
In an October 25, 2010 report, Dr. Hanigan noted that appellant was doing well following
left shoulder surgical repair. He diagnosed cervical radiculitis which he attributed to appellant’s
employment.
In a November 5, 2010 report, Dr. William B. Geissler, a treating Board-certified
orthopedic surgeon, summarized findings from a physical examination and review of objective
tests. He concluded that appellant’s shoulder surgery was due to his left shoulder neurological
condition. Dr. Geissler reported that appellant’s shoulder condition was due to lack of
innervation to the rotator cuff musculature which resulted in adhesive capsulitis.
2

On December 21, 2010 OWCP received an August 27, 2010 report from Dr. Hanigan
diagnosing C5-6 radiculopathy and possibly shoulder injury or chronic bursitis by history.
Dr. Hanigan noted that appellant had a painful left shoulder and had been unable to move his
upper left arm for two to three months. He related that appellant has cervical arthritis which he
attributed to appellant’s work activities. Dr. Hanigan noted that appellant also developed a
shoulder problem, which he recommended an orthopedic surgeon address.
By decision dated May 2, 2011, an OWCP hearing representative affirmed the
September 10, 2010 denial of appellant’s claim. She found the record contained no rationalized
medical evidence explaining the relationship between appellant’s employment and the diagnosed
conditions.
In an April 23, 2012 letter, appellant’s representative requested reconsideration and
submitted evidence.
In an August 26, 2010 report, Dr. Wolfe diagnosed cervical stenosis and cervical
radiculopathy. He provided physical examination findings and reviewed an MRI scan, which
revealed severe cervical stenosis. Dr. Wolfe noted that appellant was undergoing neurosurgery
with the Dr. Hanigan on August 27, 2010.
In an October 4, 2010 report, Dr. Wolfe stated that he could not answer whether the
surgery due to appellant’s injury was due to his employment and deferred to Dr. Hanigan on this
issue.
In a July 22, 2011 report, Dr. Geissler stated that appellant underwent right shoulder
arthroscopic surgery on October 14, 2010. An evaluation on October 18, 2010 revealed rotator
cuff dense adhesions with adhesive capsulitis. Dr. Geissler opined that appellant’s lack of
motion was caused by decrease innervation to his shoulder girdle musculature as shown by the
cervical spine MRI scan and nerve conduction studies.
In a February 22, 2012 report, Dr. Alan R. Moore, a Board-certified neurologist, noted
appellant’s medical history and provided physical findings. He diagnosed left C5 and C6 motor
axon injury; chronic reinnervation changes in the left brachioradialis deltoid, biceps and
infraspinatus muscles; and very mild left wrist median neuropathy.
In an April 3, 2012 report, Dr. E. Thomas Cullom, II, an examining Board-certified
neurological surgeon, indicated that appellant was seen for left thumb numbness complaints. He
provided a history of the illness, surgical history and findings from a physical examination.
Dr. Cullom noted that appellant had left thumb numbness in August 2010 and that prior to that
he had some left arm weakness and neck pain.
By decision dated November 9, 2012, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
2

5 U.S.C. § 8101 et seq.

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States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations define the term occupational disease or illness as a condition
produced by the work environment over a period longer than a single workday or shift.5 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) medical evidence establishing the presence or existence of
the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.6
If a claimant does establish an employment factor, he must submit medical evidence
showing that a medical condition was caused by such a factor.7 The medical evidence required
to establish causal relationship is generally rationalized medical opinion evidence from a
physician. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.8
ANALYSIS
Appellant filed an occupational disease claim alleging that his left arm condition and
limited mobility was due to his employment. OWCP denied his claim on the basis that he failed
to submit any medical evidence explaining the causal relationship between his left arm condition
and the employment factors he identified. The issue to be resolved is whether the medical
evidence submitted by appellant is sufficient to support his claim. The Board finds that he failed
to meet his burden of proof.
In support of his claim, appellant submitted medical evidence from a number of
physicians. However, none of the physicians provided an opinion supported by medical
rationale explaining how the diagnosed conditions were causally related to appellant’s
employment.
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

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

5

20 C.F.R. § 10.5(ee). See S.M., Docket No. 09-2290 (issued July 12, 2010); Donald W. Wenzel, 56 ECAB
390 (2005).
6

D.U., Docket No. 10-144 (issued July 27, 2010); Roy L. Humphrey, 57 ECAB 238 (2005); Frankie A. Farinacci,
56 ECAB 723 (2005).
7

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

8

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

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The record contains several reports from Dr. Hanigan. On August 16, 2010 Dr. Hanigan
diagnosed a labial tear, cervical spondylosis, some shoulder pain and C5 and C6 muscle
weakness, which he attributed to appellant’s employment. He diagnosed cervical radiculitis in
an October 25, 2010 report which he opined was employment related. In an August 27, 2010
report, Dr. Hanigan diagnosed C5-6 radiculopathy, a possible shoulder injury or chronic bursitis
and cervical arthritis. He attributed appellant’s cervical arthritis to his employment duties. None
of Dr. Hanigan’s reports, however, contain an explanation as to how appellant’s shoulder and
cervical conditions were caused by his accepted employment factors. He failed to describe any
specific work duties or explain how the accepted employment factors would cause or aggravate
appellant’s shoulder condition. Rationalized medical evidence must relate specific employment
factors identified by the claimant to the claimant’s condition with stated reasons from a
physician.9 As none of Dr. Hanigan’s reports contain a rationalized medical opinion addressing
the cause of appellant’s cervical and shoulder condition, they are of diminished probative
value.10
The record also contains reports from Drs. Esposito, Geissler and Wolf. Dr. Wolf
diagnosed left shoulder atrophy, left arm weakness, cervical stenosis and diagnostic testing.
Dr. Esposito diagnosed multilevel cervical disc disease. Dr. Geissler diagnosed adhesive
capsulitis. While these physicians provided a diagnosis of appellant’s conditions, they did not
provide any opinion regarding the cause of the diagnosed shoulder and cervical conditions. 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.11 Thus,
these medical reports also fail to establish causal relationship and are insufficient to meet
appellant’s burden of proof.
The MRI scans and electromyography submitted by appellant are diagnostic in nature and
therefore do not address causal relationship. As such, the Board finds that appellant did not meet
his burden of proof with these submissions.
As previously stated, causal relationship is a medical issue and must be resolved by
probative medical evidence.12 Appellant was advised in OWCP’s July 13, 2010 letter that a
comprehensive medical report explaining how his shoulder and cervical condition were caused
or aggravated by his specific employment factors was needed to support his claim. He failed to
provide such probative medical evidence. Thus, appellant has not met his burden of proof to
establish that he sustained his shoulder and cervical conditions in the performance of duty.
An award of compensation may not be based on surmise, conjecture or speculation.13
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by his employment is
9

J.J., Docket No. 09-27 (issued February 10, 2009); D.G., 59 ECAB 734 (2008); Sedi L. Graham, 57 ECAB 494
(2006); Charles W. Downey, 54 ECAB 421 (2003).
10

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

K.W., 59 ECAB 271 (2007); Ellen L. Noble, 55 ECAB 530 (2004).

12

D.I., 59 ECAB 158 (2007); Margaret Carvello, 54 ECAB 498 (2003).

13

D.I., supra note 12; D.E., 58 ECAB 448 (2007); Paul E. Thams, 56 ECAB 503 (2005).

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sufficient to establish causal relationship.14 Causal relationship must be established by
rationalized medical opinion evidence.15 As appellant failed to submit such evidence, he has
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Boar finds that appellant failed to establish that his left shoulder and neck conditions
were causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2012 is affirmed.
Issued: June 18, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

G.T., 59 ECAB 447 (2008); V.W., 58 ECAB 425 (2007); Ronald K. Jablanski, 56 ECAB 616 (2005).

15

Roy L. Humphrey, supra note 6; Dennis M. Mascarenas, 49 ECAB 215 (1997).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sausalito, CA, Employer
__________________________________________

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Appearances:
Tami S. Seastrand, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1185
Issued: January 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 20, 2020 appellant, through her representative, filed a timely appeal from a
November 22, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated May 9,

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.

2019, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 30, 2018 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she stepped out of her mail truck and slipped and
twisted her left ankle while in the performance of duty. She stopped work on November 30, 2018.
In a separate statement of even date, appellant repeated the history of injury and noted that
the ground was wet and full of leaves. She continued her mail route until the pain increased.
On November 30, 2018 appellant was treated by Marissa Salinas, a physician assistant, for
a ground-level fall in which she twisted her left ankle. An x-ray of the left ankle revealed no acute
bone abnormality. Ms. Salinas diagnosed sprain of the left ankle, unspecified ligament, initial
encounter.
On November 30, 2018 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16). The Form CA-16 listed the date of injury as
November 30, 2018 and alleged injuries to appellant’s left ankle.
In a December 12, 2018 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed to establish her
claim and provided a questionnaire for her completion to substantiate the factual elements of her
claim. OWCP afforded her 30 days to respond.
OWCP subsequently received a declaration of disability note dated December 4, 2018,
wherein Dr. Michael D. Halperin noted appellant was injured at work. Dr. Halperin opined that
she would be temporarily totally disabled from work from November 30, 2018 through
February 28, 2019.

2

5 U.S.C. § 8101 et seq.

3

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, it was asserted that oral argument should be granted because it would
allow her to more completely explain the evidence and argument submitted prior to the November 22, 2019 decision.
The Board, in exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal
can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would
further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied
and this decision is based on the case record as submitted to the Board.

2

By decision dated January 15, 2019, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis in connection
with her accepted employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined under FECA.
OWCP subsequently received a report dated December 4, 2018, wherein Dr. Halperin
noted his treatment of appellant for acute left ankle and foot pain following a twisting injury on
November 30, 2018. Appellant reported delivering mail on her usual route when she stepped out
of her parked LLV with mail in her hands and swung her right leg out to place her right foot on
the running board and then attempted to exit the vehicle placing her left foot on the ground, but
stepped on what turned out to be a pine cone with her left foot and twisted her left ankle sustaining
an acute injury. He noted findings of massive left lateral malleolar effusion, limited range of
motion of the left foot, and reduced sensory perception to vibration, cold, and light touch.
Dr. Halperin diagnosed acute left ankle sprain, chronic left ankle sprain, acute plantar fasciitis,
posterior ankle impingement syndrome, acute left ankle contusion, acute exacerbation of left
plantar calcaneal spur, and mild-to-moderate depression. He opined that appellant’s diagnosed
medical conditions were causally related to the work injury on November 30, 2018. Dr. Halperin
noted that appellant worked as a mail carrier for five years, getting in and out of her vehicle dozens
of times a day, walking up to eight miles a day, climbing stairs, and walking on rough terrain. He
opined that the acute left foot injury was sustained during the normal course of her duties and to a
reasonable medical probability the diagnoses of acute left ankle sprain, acute plantar fasciitis, and
acute left ankle contusion occurred as a proximal result of her acute left ankle injury. Dr. Halperin
further opined that the diagnoses of chronic left ankle sprain and acute exacerbation of left plantar
calcaneal spur were the result of prior cumulative injuries sustained to the left foot during the five
years employed with the agency and were work related.
In a report dated December 18, 2018, Dr. Halperin noted his examination of appellant on
December 11, 2018, at which time he observed less swelling and pain over the left posterior tibial
tendon and lateral malleolus. He provided a history of injury as set forth in his prior report with
clinical and diagnostic findings. Dr. Halperin diagnosed contusion of the left ankle, left plantar
calcaneal spur, left foot acute plantar fasciitis, left synovial/ganglion cyst, sprain of the left anterior
talofibular ligament, and posterior ankle impingement. He noted that appellant had no prior history
of foot pain. Dr. Halperin reiterated the mechanism of injury as noted in his December 4, 2018
report and opined that the injury was proportional to the severity of injuries imaged by the MRI
scan. He noted that in the absence of reports of prior injury to the left foot and ankle, the acute
injury was entirely work related and he opined that all of the diagnoses arose acutely or were
exacerbations of the work-related foot traumas over the prior five years. Dr. Halperin noted that
causation was a combination of acute work-related left ankle and foot injuries along with an
exacerbation of previously undiagnosed more chronic foot condition associated with the normal
duties of a letter carrier.
A December 12, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed
mild bone marrow edema of the fifth metatarsal and distal portion of the cuboid, mild acute plantar
fasciitis, and thickening of the anterior talofibular ligament.
On January 25, 2019 appellant requested reconsideration.

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By decision dated January 25, 2019, OWCP’s hearing representative modified the
January 15, 2019 decision, finding that Dr. Halperin provided a series of valid diagnoses. The
hearing representative, however, affirmed the denial of the claim, finding that the medical evidence
of record was insufficient to establish a causal relationship between appellant’s diagnosed
conditions and the accepted November 30, 2018 employment incident. OWCP further found that
Dr. Halperin provided an inaccurate history of injury, noting appellant slipped on a pine cone and
injured her left ankle when appellant’s statement on the Form CA-1 did not mention a pine cone
rather she reported that the ground was wet with leaves. Based on an incomplete factual history,
it found Dr. Halperin’s report lacked probative value.
Appellant submitted a December 4, 2018 report from Dr. Halperin and a February 14, 2019
report from Dr. Elmi, both previously of record.
In an undated statement, appellant confirmed that Dr. Halperin was correct when stating
that she stepped on a pine cone after exiting her LLV on November 30, 2018, causing her left ankle
injury. She indicated that she did not provide details of the debris on the ground in her original
statement, because she was in a lot of pain, but indicated that the ground was covered with debris
which consisted of pine cones, rocks, and leaves.
On February 27, 2019 appellant requested reconsideration. In support of her request, she
submitted a February 14, 2019 report from Dr. Eman Elmi, a podiatrist, who treated her for a foot
disability and opined that she could not return to full-duty work for six to eight weeks. Dr. Elmi
provided work restrictions.
By decision dated May 9, 2019, OWCP denied modification of the January 25, 2019
decision.
On August 28, 2019 appellant requested reconsideration. In a statement dated August 28,
2019, appellant’s representative asserted that she provided relevant and pertinent new evidence
not previously considered by OWCP in support of her claim. He referenced a new report from
Dr. Halperin and submitted four black and white photographs of her LLV, as well as pictures taken
from Google Maps of the street where her injury occurred.
In an amended report dated June 4, 2019, Dr. Halperin provided an explanation of the
discrepancy between appellant’s wording on the Form CA-1 of slipping on wet debris causing a
left ankle injury and his factual presentation, which noted she stepped on a pine cone. He cited his
December 4, 2018 report and indicated that on November 30, 2018 appellant was performing her
usual and customary duties as a mail carrier and van driver when she stepped out of her parked
LLV and slipped on wet debris of some nature as it was a rainy day and all surfaces were wet. For
purposes of causation, Dr. Halperin indicated that it did not matter whether she tripped on wet
debris, wet pavement, rocks or gravel as the identical injury would have occurred under any of
these circumstances. He further explained that the fact that she reported to her supervisor and on
the Form CA-1 that she slipped on wet debris and five days later she acknowledged that she might
have seen a pine cone next to her LLV lying on wet debris, was understandable considering the
amount of pain she was in at the time of her reporting the injury to her supervisor and filling out
the Form CA-1 when she mentions wet debris and not pine cone. Dr. Halperin advised that
causation for the claim remained work related. He explained that appellant stepped out of her LLV

4

with her right leg, placing her right foot on the running board, swinging her body with her mail in
her left arm as she exited the vehicle, and placed her left foot on what was expected to be the
ground but turned out to be wet debris, she suddenly slipped and suffered an acute left ankle and
foot injury. Dr. Halperin advised that the medical data provided in this report was a reiteration of
the data that was already provided in his previous reports, but cited to his new statements which
provide factual clarification with regard to the mechanism of injury. He concluded that, based on
appellant’s history, medical records, physical examination findings, and diagnostic imaging, her
left ankle condition was industrial in nature.
By decision dated November 22, 2019, OWCP denied merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8

4

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued
January 21, 2020); M.S., 59 ECAB 231 (2007).
8
Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).

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ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Along with the August 28, 2019 reconsideration request, appellant submitted
Dr. Halperin’s June 4, 2019 supplemental report in which he specifically responded to the
deficiencies of his prior report noted by OWCP in its denial of appellant’s claim. In his
supplemental report, Dr. Halperin provided an explanation of the discrepancy between appellant’s
wording on the Form CA-1 of slipping on wet debris causing a left ankle injury and his factual
recitation, which noted that she stepped on a pine cone. He indicated that on November 30, 2018
appellant was performing her usual and customary duties as a mail carrier and van driver when she
stepped out of her parked LLV and slipped on wet debris of some nature as it was a rainy day and
all surfaces were wet. Dr. Halperin specifically reiterated his prior opinion and provided an
explanation as to the factual discrepancy relied upon by OWCP to deny appellant’s claim and why
that was improper. He further explained that the fact that she reported to her supervisor and on
the Form CA-1 that she slipped on wet debris and then five days later she acknowledged that she
might have seen a pine cone next to her LLV lying on wet debris, was understandable considering
the amount of pain she was in at the time of her reporting the injury to her supervisor and filling
out the Form CA-1. Dr. Halperin also provided citation to his prior rationale as to how the
employment factors were sufficient to support his continued opinion that they had caused or
aggravated the left ankle conditions. The Board finds that Dr. Halperin’s June 4, 2019 report
specifically addressed the deficiencies noted in OWCP’s denial of appellant’s claim and provided
further explanation to cure those deficiencies. As such, the report constitutes relevant and pertinent
new evidence in support of appellant’s claim for a left ankle condition. Therefore, the submission
of this evidence requires reopening of appellant’s claim for merit review pursuant to the third
requirement of 20 C.F.R. § 10.606(b).9
The Board will therefore set aside OWCP’s November 22, 2019 decision and remand the
case for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).10

9

See C.H., Docket No. 17-1065 (issued December 14, 2017); J.W., Docket No. 18-0822 (issued July 1, 2020);
D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).
10

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.11
Issued: January 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

On June 12, 2019 appellant filed an occupational disease claim (Form CA-2) alleging that she developed a left
ankle condition on November 30, 2018 as a result of constant pressure on her feet while walking her mail route, OWCP
File No. xxxxxx125. OWCP accepted for sprain of the deltoid ligament of the left ankle, plantar fascial fibromatosis,
and posterior ankle impingement syndrome. On May 9, 2019 appellant filed a claim for a May 6, 2019 traumatic
injury to the left ankle under OWCP File No. xxxxxx711, which was accepted for sprain of the deltoid ligament of
the left ankle. Appellant claimed that her left ankle buckled while walking delivering mail. OWCP’s procedures
provide that cases should be administratively combined when correct adjudication depends on cross-referencing
between files and when two or more injuries occur to the same part of the body. As the claims in the following OWCP
files all involve appellant’s left ankle, OWCP File Nos. xxxxxx711, xxxxxx125, and xxxxxx453, the Board finds that
they must be administratively combined for a full and fair adjudication of appellant’s present claim. This will allow
OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s current traumatic
injury claim.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1775
Issued: May 22, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On July 22, 2013 appellant submitted an appeal of Office of Workers’ Compensation
Programs’ (OWCP) decisions dated June 10 and July 3, 2013.1 The appeal was docketed as No.
13-1775.
On review of the case record the Board finds that the case must be remanded to OWCP.
The June 10, 2013 decision finds that the claim for compensation (Form CA-2) dated January 16,
2013 was untimely filed. OWCP found that the date of injury was November 11, 2002, the date
appellant reported on the claim form that she was aware of an employment-related condition.
The evidence of record does not establish an untimely claim for a new injury.
The January 16, 2013 claim identifies the conditions of vertigo, hearing loss and tinnitus.
According to the claim form, appellant sustained a head injury in 1999 at work and her
conditions had “progressed slowly” since that injury. In a February 11, 2013 response to an
OWCP request for information, she referred to an April 28, 1999 injury and another claim
number, stating that this injury caused her hearing loss and ear problems.

1

The June 10, 2013 decision is a merit decision finding the claim filed on January 16, 2013 was untimely filed.
The July 3, 2013 decision finds that a request for reconsideration was insufficient to warrant merit review.

Based on the evidence of record, appellant’s claim appeared to be a claim for
consequential injuries resulting from a 1999 work injury. The record indicated that she filed a
timely traumatic injury claim for an injury on April 28, 1999. OWCP also referred to a 2002
claim for vertigo and headaches, but the nature of this claim is not clear. If appellant is claiming
consequential injuries from a 1999 injury, then the relevant case records should be combined and
an appropriate decision issued based on all of the relevant evidence.
The Board notes that if appellant is claiming hearing loss or other conditions due to noise
exposure in federal employment, she can submit evidence with respect to her allegation and
OWCP can issue a proper decision on the issues presented.2 The current evidence of record does
not establish an untimely filing of a claim for a new injury. The case will be remanded to OWCP
for clarification, proper doubling of case records and appropriate adjudication of the issues
presented.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 3 and June 10, 2013 are set aside and the case remanded for
further action consistent with this order of the Board.3
Issued: May 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2

With respect to the timeliness of a claim for hearing loss, OWCP would have to consider the date of last
exposure to noise alleged to have contributed to the hearing loss. See Jose Salaz, 41 ECAB 743 (1990).
3

Richard J. Daschbach, Chief Judge, who participated in the preparation of this order, was no longer a member of
the Board after May 16, 2014.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Petersburg, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
No appearance, for the Director

Docket No. 07-1156
Issued: April 1, 2008

Oral Argument October 17, 2007

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

JURISDICTION
On March 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 15, 2007 regarding modification of a
wage-earning capacity determination. 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 the Office properly denied modification of an October 19, 2005
wage-earning capacity determination.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 With respect to a June 6, 2003 wageearning capacity determination based on actual earnings, the Board set aside the decision as
1

Docket No. 04-1579 (issued August 4, 2005).

improper based on a finding that appellant was no longer working due to her employment injury.
The history of the case as noted by the Board is incorporated herein by reference.
By decision dated October 19, 2005, the Office reduced appellant’s compensation
effective October 30, 1998. The Office found that appellant had been employed as a sales
associate with Burlington Coat Factory commencing October 30, 1998 with wages of $292.60
per week. According to the Office, appellant worked full time until November 1, 2001.2
In a decision dated December 9, 2005, the Office denied modification of the October 19,
2005 decision. The Office found that appellant had not shown an employment-related worsening
of her condition as of November 2, 2001. Appellant requested a hearing, which was held on
October 18, 2006. She submitted an April 26, 2006 report from an attending physician, Dr. Kazi
Hassan, who noted that appellant had a history of low back pain with L4-5 disc herniation.
Dr. Hassan stated that, as appellant was getting older, “her back pain is progressively getting
worse because of an existing problem and also worsening due to the nature of the injury and she
has also degenerative disc disease.” He noted that appellant had worked at Burlington Coat
Factory for several years and, “based on my request, she had stopped because it was causing her
relentless pain.”
By decision dated January 11, 2007, an Office hearing representative found that further
development was required on the issue of whether the wage-earning capacity determination
should be modified as of November 2, 2001, noting Dr. Hassan’s April 26, 2006 report. The
case was remanded for further development on the issue.
By decision dated February 15, 2007, another Office hearing representative set aside the
January 11, 2007 decision. The hearing representative found that the January 11, 2007 decision
was incorrect because it did not address the December 9, 2005 decision, which had decided the
issue of whether appellant’s condition had materially worsened after November 2, 2001.
According to the hearing representative, “None of the medical reports prior to [the] December 9,
2005 decision contained medical rationale to explain whether the worsening in the claimant’s
condition was medically connected to her original work injury. Instead, the contemporaneous
medical evidence specified that the claimant’s back pain was aggravated by her work activities at
Burlington Coat Factory.”
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

2

The record indicates that appellant reduced her hours in private employment to approximately 20 hours per
week as of November 2, 2001. She stopped working on March 10, 2003.

2

rehabilitated, or the original determination was erroneous.3 The burden of proof is on the party
attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
As noted, a modification of a wage-earning capacity is warranted where the original
determination was erroneous. The October 19, 2005 decision is a retroactive wage-earning
capacity determination, finding that appellant’s wage-earning capacity was properly based on
actual earnings commencing October 30, 1998 as a full-time sales associate in private
employment. Appellant had reduced her hours to part time in November 2001 and stopped
working in private employment as of March 10, 2003. However, the Office’s procedure manual
provides that a retroactive determination may be made where the claimant has worked in the
position for at least 60 days, the employment fairly and reasonably represents wage-earning
capacity, and “the work stoppage did not occur because of any change in the claimant’s injuryrelated condition affecting [her] ability to work.”5
Appellant did work in the position for more than 60 days. The critical issue, however, is
whether the work stoppage occurred because of a change in the injury-related condition. In its
August 4, 2005 decision, the Board found that appellant was no longer working due to her
claimed injury. If the Office is making a contrary finding, it must clearly explain its finding and
the supporting evidence. The October 19, 2005 decision did not explain its finding that the work
stoppage was not employment related. The February 15, 2007 decision refers to a “work
stoppage” on November 2, 2001, although this was a reduction in hours, not a work stoppage.
Appellant did not stop working until March 10, 2003. To properly issue a retroactive wageearning capacity determination based on actual earnings, when the claimant has stopped
working, the evidence must show the work stoppage did not occur because of a change in the
injury-related condition.
With respect to March 10, 2003, the hearing representative noted a report of that date
from Dr. Hassan, who indicated that appellant had severe back pain, to the point that she could
not walk. Dr. Hassan noted that bending, stooping and lifting caused her pain and he asked her
employer if they could allow her to sit every 15 to 30 minutes. He indicated that appellant was
advised not to work until she received further treatment. Dr. Hassan continued to submit reports,
such as on April 10, May 9 and June 6, 2003 reporting that appellant remained disabled. He did
not provide an opinion as to causal relationship between the back pain and the employment
injury.
Therefore the contemporaneous evidence did not provide any probative evidence on the
issue of the relationship between the work stoppage and the employment injury. Furthermore,
there is the April 26, 2006 report from Dr. Hassan. While the February 15, 2007 Office decision
3

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

4

Id.

5

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

3

acknowledges the report was submitted, it appears to find that it was of limited value because it
was submitted after the December 9, 2005 Office decision denying modification. A claimant
may submit new evidence relevant to the issue of modification of a wage-earning capacity
determination. The April 26, 2006 report is relevant to the issue of whether the work stoppage
on March 10, 2003 was employment related, as it refers to the progressive worsening of the
existing injury. Dr. Hassan noted that appellant had stopped work because of back pain and he
referred to a “worsening due to the nature of the injury.”6
The Board finds that based on the evidence of record the October 19, 2005 retroactive
wage-earning capacity determination was erroneous. Appellant was no longer working in the
Burlington Coat Factory position, and the Office failed to establish that “the work stoppage did
not occur because of any change in the claimant’s injury-related condition affecting her ability to
work.” Since one of the standards for modifying a wage-earning capacity determination is that
the original determination was erroneous, the Board finds a modification to be warranted.
CONCLUSION
The October 19, 2005 retroactive wage-earning capacity determination was erroneous
and therefore appellant has established that modification of the determination is warranted.

6

The hearing representative indicated in her January 11, 2007 decision that the report raised an unresolved issue
as to whether there was a worsening of the employment-related condition.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 15, 2007 is reversed.
Issued: April 1, 2008
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
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 21-1163
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a December 14, 2020 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
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 3, 2020, as she no longer had
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2020 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
evidence for the first time on appeal. Id.

disability or residuals causally related to her accepted February 21, 2006 employment injury;
(2) whether appellant has established that she had continuing disability or residuals on or after
December 3, 2020 causally related to her accepted February 21, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2006 appellant, then a 41-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS)
due to factors of her federal employment, including pushing, pulling, transporting, and lifting
patients. She noted that she first became aware of her condition and its relationship to her federal
employment on February 21, 2006. Appellant underwent a right carpal tunnel release on
July 12, 2006. OWCP accepted appellant’s claim for bilateral CTS on January 15, 2009.
On July 22, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Chason Hayes, a Board-certified orthopedic surgeon. It requested that Dr. Hayes evaluate
whether appellant continued to have residuals or disability due to the accepted February 21, 2006
employment injury.
In an August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported his findings on physical examination. He noted that appellant had last undergone an
electromyogram/nerve conduction velocity (EMG/NCV) study on October 10, 2014, which was
consistent with severe bilateral peripheral polyneuropathy, probably related to her insulin dependent diabetes. On physical examination Dr. Hayes observed that appellant’s wrists had no
abnormal findings, that her scar was well healed, she had no swelling, and full range of motion.
He also observed that she was uncooperative with the sensory examination. Dr. Hayes opined that
appellant’s work-related CTS had resolved following surgery and that she had no residuals. He
further opined that appellant was capable of working her date -of-injury position. Dr. Hayes
explained that appellant had residuals from unrelated medical conditions such as cervical
radiculopathy and peripheral neuropathy from diabetes, but that, with regard to the accepted work
condition, there was no medical contraindication to her returning to full-duty employment.
On October 23, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Hayes’ opinion that the February 21, 2006
accepted condition had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence of argument challenging the proposed termination.
In a response dated November 11, 2020, appellant replied to OWCP’s notice of proposed
termination, stating that she did not understand why her claim was being terminated when she still
had medical problems. In an attached letter dated March 5, 2020, Dr. Katherine Butler, an
3

Docket No. 10-1201 (issued January 4, 2011); Docket No. 09-2166 (issued May 12, 2010); Docket No. 07-1559
(issued November 7, 2007).

2

orthopedic surgeon, opined that appellant had recurrent bilateral CTS, noting that she had
previously been treated by another physician for bilateral CTS due to repetitive work activities.
She explained that appellant’s recurrence was likely due to scar tissue formation at the surgical
site and, therefore, could be considered related to her initial injury. In a letter dated June 24, 2020,
Dr. Butler explained that she had begun seeing appellant as a patient in 2020. She diagnosed
bilateral carpal tunnel syndrome, noting that it was supported by physical examination, NCV
studies, and medical reports. Dr. Butler stated that appellant’s symptoms appeared to be consistent
and that she had reached maximum medical improvement (MMI). She noted that appellant had
previously undergone bilateral CTS surgery, but continued to have numbness, burning, pain, and
weakness in her hands, which prevented her from returning to employment. Dr. Butler opined that
it was reasonable to assume, based on documentation, that appellant had bilateral CTS attributable
to work and that she has been persistently unable to return to work due to this injury.
In a letter dated July 15, 2020, Dr. Benjamin Ott, a Board-certified family practitioner,
opined that appellant had chronic bilateral CTS due to repetitive work activities in her federal
employment as of February 21, 2006. He explained that her persistent symptoms were likely due
to scar tissue formation related to previous treatment and that she was permanently disabled from
all occupations due to this injury.
Appellant also attached a progress report from Dr. William Mason, a Board-certified
orthopedic surgeon, dated November 29, 2006, in which he opined she was unable to work.
In a note dated November 27, 2020, Dr. Ott indicated that he had seen appellant regularly
every three to four months since prior to 2011. He noted that he regularly discussed her ongoing
issues with CTS and nerve damage at her appointments, including in 2019 and 2020.
By decision dated December 2, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 3, 2020, based on Dr. Hayes’ second
opinion report.
On December 10, 2020 appellant requested reconsideration.
submitted an EMG/NCV study dated March 3, 2020.

With her request, she

By decision dated December 14, 2020, OWCP denied modification the of the December 2,
2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 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. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
In his August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported the findings of his physical examination. On physical examination of appellant’s
wrists, he observed normal findings, including that appellant’s scar was well healed, she had no
swelling, and full range of motion. Dr. Hayes opined that appellant’s work-related CTS had
resolved after surgery and that she had no residuals. He related that he had reviewed appellant’s
October 10, 2014 EMG study, which he related was consistent with severe bilateral peripheral
polyneuropathy. While he opined that this finding was “probably” related to appellant insulindependent diabetes, Dr. Hayes offered no rationale in support of his opinion. His opinion regarding
the cause of appellant’s severe bilateral peripheral polyneuropathy was speculative in nature. The
Board has held that speculative and equivocal medical opinions regarding causal relationship have
no probative value. 9 The Board also notes that, while Dr. Hayes found that the 2014 EMG revealed
severe bilateral median nerve studies, he did not obtain further diagnostic studies to confirm
whether appellant’s condition had resolved. Dr. Hayes concluded that appellant had residuals from
unrelated medical conditions such as cervical radiculopathy and peripheral neuropathy from
diabetes, but he offered no medical rationale, supported by objective findings, regarding the cause
of appellant’s continued residuals. The Board has held that a medical opinion is of limited
probative value if it contains a conclusion regarding a given medical matter, which is unsupported
by medical rationale. 10

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

M.G., Docket No. 21-0747 (issued October 15, 2021).

10

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

As Dr. Hayes’ August 19, 2020 report was insufficiently rationalized and of diminished
probative medical value in establishing that appellant’s accepted bilateral carpal tunnel conditions
had resolved, OWCP improperly determined that it constituted the weight of the medical evidence.
The Board therefore finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

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

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

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Coppell, TX,
Employer
__________________________________________

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

Docket No. 20-1088
Issued: June 14, 2021

Case Submitted on the Record

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

JURISDICTION
On April 28, 2020 appellant filed a timely appeal from a November 12, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to modify OWCP’s May 29,
2012 loss of wage-earning capacity (LWEC) determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On May 2, 1997 appellant, then a 28-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained neck and upper extremity injuries as a result
of the mail handling duties of her federal employment. OWCP initially accepted her claim for
cervical strain, right wrist ganglion cyst, bilateral wrist tendinitis, and bilateral carpal tunnel
syndrome (CTS). Appellant underwent OWCP-authorized bilateral CTS release surgeries in 2002
and later returned to work in a limited-duty capacity. OWCP granted schedule awards for a
combined 16 percent permanent impairment of the right upper extremity and 12 percent permanent
impairment of the left upper extremity. By decision dated May 28, 2009, it accepted that appellant
suffered a recurrence of disability beginning January 13, 2009. OWCP also expanded the accepted
conditions in her claim to include cervical intervertebral disc displacement, tension headaches
(migraines), chronic pain syndrome, and brachial neuritis or radiculitis. It paid appellant wageloss compensation on the periodic rolls for temporary total disability from work commencing
June 6, 2009.3
By decision dated May 29, 2012, OWCP reduced appellant’s wage-loss compensation
effective June 3, 2012 based on her ability to earn weekly wages of $456.00 as an information
clerk.4 It accorded the special weight of the medical evidence to Dr. Dale R. Allen, a Boardcertified orthopedic surgeon, serving as an impartial medical specialist, who found that appellant
was capable of performing sedentary duty with occasional lifting of up to 10 pounds.
On June 14, 2012 appellant, through her representative, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, and argued that she had employmentrelated emotional conditions, which prevented her from working as an information clerk.
Appellant submitted an April 26, 2012 report from Dr. Frank Crumley, a Board-certified
psychiatrist, who diagnosed major depressive disorder (severe, recurrent), panic disorder with
agoraphobia, generalized anxiety disorder, chronic pain, and migraine pain. In a July 10, 2012
report, Dr. Richard Slaughter, III, a clinical psychologist, diagnosed pain disorder associated with
psychological factors and general medical condition, major depression (recurrent, moderate), and
moderate psychosocial stressors with occupational and economic problems. He advised that, until
2
Docket No. 16-0028 (issued November 28, 2016), petition for recon. denied, Docket No. 16-0028 (issued
May 15, 2017).
3

Appellant retired from the employing establishment on disability retirement, effective January 14, 2014.

4

In August 2011 OWCP referred appellant for vocational rehabilitation services. In November 2011, it developed
a rehabilitation plan for placement as a telemarketer, insurance clerk, or information clerk. According to the
Department of Labor, Dictionary of Occupational Titles (DOT), the identified positions were sedentary in nature. For
the position of information clerk, DOT No. 237.367-022, the rehabilitation counselor indicated the weekly earnings
were $456.00, and the job was reasonably available in appellant’s commuting area. As a sedentary position, the lifting
requirements were up to 10 pounds. After 90 days of job placement services, appellant was unable to secure
employment, and her OWCP-sponsored vocational rehabilitation program ended as of April 10, 2012.

2

these issues were addressed, it was unlikely that appellant could return to work even on a sedentary
job.
By decision dated December 5, 2012, OWCP’s hearing representative affirmed the
May 29, 2012 decision.
On October 23, 2013 appellant requested reconsideration of the December 5, 2012
decision. She submitted additional evidence, including September 10 and October 15, 2012, and
February 26, 2013 reports from Dr. Robert C. Schwartz, Jr., a Board-certified psychiatrist, who
diagnosed major depressive disorder (recurrent, severe) secondary to chronic pain syndrome,
tension headaches, neck sprain, cervical disc displacement, bilateral tenosynovitis of the
hands/wrists, right tendon ganglion, and bilateral CTS. Appellant also submitted reports dated in
2013 and 2014 from several attending physicians who discussed her physical condition.
By decision dated June 25, 2014, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On November 10, 2014 appellant requested reconsideration, and she submitted additional
reports dated in 2014 from attending physicians.
By decision dated December 4, 2014, OWCP determined both that it had issued its June 25,
2014 decision in error as appellant had filed a timely reconsideration request, and it also found that
she had not met her burden of proof to modify the May 29, 2012 LWEC determination.
Appellant continued to request reconsideration and submit reports of attending physicians,
and, by decisions dated April 8 and September 28, 2015, OWCP determined that she had not met
her burden of proof to modify the May 29, 2012 LWEC determination.
Appellant submitted an October 28, 2015 report from, Dr. Anthony Moore, a Boardcertified psychiatrist, who diagnosed major depression (caused by the “work-related accepted
injuries of [April 8, 1997]”); and chronic pain syndrome. In a November 11, 2015 report,
Dr. Ronnie Shade, a Board-certified orthopedic surgeon, diagnosed employment-related cervical
disc protrusions at C5-6 and C6-7, bilateral CTS (left greater than right), multilevel cervical
radiculopathy, and suspected cubital tunnel syndrome or ulnar nerve compression. He found that
appellant was totally disabled due to her neck, arm, and wrist complaints, and that her chronic pain
and narcotic medication use posed a risk to her and others if she returned to work for the employing
establishment. On May 24, 2016 Dr. Shade recommended that OWCP expand the accepted
conditions in appellant’s claim to include major depressive disorder, anxiety disorder, and lateral
epicondylitis of both elbows.
On July 7, 2016 OWCP expanded the accepted conditions in appellant’s claim to include
lateral epicondylitis of both elbows.
Appellant, through her representative, appealed to the Board and, by decision dated
November 28, 2016,5 the Board affirmed the September 28, 2015 decision. It found that
5

Supra note 2.

3

Dr. Allen’s opinion constituted the special weight of the medical evidence with respect to
appellant’s capacity to work.
On May 16, 2017 appellant, through her representative, requested reconsideration. She
submitted an April 26, 2017 report from Dr. Shade who diagnosed cervical disc protrusions at C56 and C6-7, bilateral CTS, multilevel cervical radiculopathy, cubital tunnel syndrome or ulnar
nerve compression, and chronic pain syndrome. He reiterated his opinion relative to disability as
he had in his previous November 11, 2015 report. In a May 25, 2017 report, Dr. Moore indicated
that appellant continued with depression symptoms (sadness, feeling blue/overwhelmed) and
recommended that she continue with psychotherapy and medical management.
In a June 6, 2017 report, Dr. Brittany Potter, Board-certified in physical medicine and
rehabilitation, diagnosed chronic pain syndrome, disc herniation at C4 through C7, radiculopathy
of the cervical region, back muscle spasm, lateral epicondylitis of both elbows, myalgia, sprains
of ligaments of the cervical spine, tension-type headaches, and bilateral CTS. In a June 21, 2017
report, Dr. James Currin, a clinical psychologist, noted that appellant related her emotional
problems to her employment-related injuries, and he diagnosed unspecified depression and
generalized anxiety disorder. He indicated that these conditions should be classified as accepted
employment injuries and recommended that appellant undergo psychotherapy. In a July 7, 2017
report, Dr. Shade diagnosed cervical disc protrusions at C5-6 and C6-7, bilateral CTS, multilevel
cervical radiculopathy, cubital tunnel syndrome or ulnar nerve compression, chronic pain
syndrome, and cervical spinal stenosis. He reiterated his opinion on appellant’s total disability as
he had provided in his previous May 13 and November 11, 2015, and April 26, 2017 reports.
By decision dated August 14, 2017, OWCP denied modification of its May 29, 2012
LWEC determination.
On August 6, 2018 appellant requested reconsideration of the August 14, 2017 decision.
She argued that the medical evidence she submitted after the issuance of the May 29, 2012 LWEC
determination demonstrated that her employment-related conditions had worsened. Appellant
submitted an August 11, 2016 report from Dr. Shade who diagnosed cervical disc protrusions at
C5-6 and C6-7, bilateral CTS, multilevel cervical radiculopathy, and suspected cubital tunnel
syndrome or ulnar nerve compression. Dr. Shade reiterated his opinion on appellant’s total
disability as he had provided in his previous November 11, 2015, and April 26 and July 7, 2017
reports. In a May 23, 2017 report, he reported the findings of a functional capacity evaluation
(FCE) performed on that date, noting that appellant lifted/carried a maximum of three pounds. He
advised that these tests were stopped for “biomechanical/ psychophysical” reasons. Dr. Shade
concluded that the results of the FCE demonstrated that appellant only qualified for “less than
sedentary work.” In June 28, August 25, November 3, 2017, and January 12, 2018 reports, he
diagnosed cervical disc protrusions at C5-6 and C6-7, bilateral CTS, multilevel cervical
radiculopathy, cubital tunnel syndrome or ulnar nerve compression, chronic pain syndrome, and
cervical spinal stenosis. Dr. Shade provided an opinion on disability, which was similar to those
contained in his previous reports.
On September 7, 2017 OWCP expanded the accepted conditions in appellant’s claim to
include major depressive disorder (severe, single episode) without psychotic features.

4

In a September 26, 2017 report, Dr. Potter diagnosed cervical herniated disc, cervical
radiculitis, cervical sprain/strain, chronic pain syndrome, bilateral CTS, tension headaches, lateral
epicondylitis of both elbows, muscle pain/myofascial pain syndrome, and muscle spasms. In an
October 11, 2017 report, Dr. Albert Vu, an osteopath Board-certified in physical medicine and
rehabilitation, diagnosed disc herniation at C4 through C7, radiculopathy of the cervical region,
cervical radiculitis, cervical sprain/strain, chronic pain syndrome, bilateral CTS, tension
headaches, lateral epicondylitis of both elbows, muscle pain/myofascial pain syndrome, and
muscle spasms.
In a December 8, 2017 report, Dr. Shade listed appellant’s accepted conditions and
provided a summary of Dr. Allen’s July 26, 2011 impartial medical examination report. He
advised that he agreed with the recommendation of Dr. John Sazy, an attending orthopedic surgeon
and neurosurgeon, who reported that appellant needed cervical spine surgery, but disagreed with
Dr. Allen’s recommendation that she was capable of returning to work performing sedentary duties
with multiple diagnoses and emotional conditions. Dr. Shade opined that appellant would be at
risk to herself and fellow employees and maintained that, due to “their own natural consequences,”
her conditions and disabling symptoms had worsened to the point where she was temporarily
totally disabled due to the employment “injury of [April 8, 1997]” without any intervening cause.
He noted that appellant had complained of increased pain and decreased strength/range of motion
in her neck, elbows, and hands since April 8, 1997 and opined that it was impossible for her to
work in any capacity until the disabling conditions had improved. Dr. Shade maintained that
diagnostic testing and consultations were performed that supported appellant’s present diagnoses
and her status of temporary total disability.
By decision dated November 23, 2018, OWCP denied modification of the August 14, 2017
decision. On September 25, 2019 appellant requested reconsideration of the November 23, 2018
decision and submitted a September 18, 2019 statement. By decision dated November 12, 2019,
OWCP denied modification of the November 23, 2018 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits.6 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.7 An employee’s actual earnings generally best reflect his or her wage-earning capacity.8
If actual earnings do not fairly and reasonably represent the employee’s wage-earning capacity or
the employee has no actual earnings, then wage-earning capacity is determined with due regard to
the nature of the injury, the degree of physical impairment, the employee’s usual employment, age,
6

L.M., Docket No. 20-1038 (issued March 10, 2021); James B. Christenson, 47 ECAB 775, 778 (1996).

7

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

8

Hayden C. Ross, 55 ECAB 455, 460 (2004). Absent evidence that actual earnings do not fairly and reasonably
represent the employee’s wage-earning capacity, such earnings must be accepted as representative of the individual’s
wage-earning capacity. Id.

5

qualifications for other employment, the availability of suitable employment and other factors and
circumstances that may affect wage-earning capacity in his or her disabled condition.9
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her vocational wage-earning capacity.10
The medical evidence OWCP relies upon must provide a detailed description of the employee’s
condition and the evaluation must be reasonably current.11 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
limitations from both injury-related and preexisting conditions, but not limitations attributable to
post-injury or subsequently acquired conditions.12 When OWCP makes a medical determination
of partial disability and of specific work restrictions, it may refer the employee’s case to an OWCP
wage-earning capacity specialist for selection of a position listed in the DOT or otherwise available
in the open labor market that fits the employee’s capabilities with regard to his or her physical
limitations, education, age and prior experience.13 Once this selection is made, a determination of
wage rate and availability in the open labor market should be made through contact with the state
employment service or other applicable service.14 Finally, application of the principles set forth
in the Shadrick decision will result in the percentage of the employee’s LWEC.15
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.16 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.17

9

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

10

M.A., 59 ECAB 624, 631 (2008).

11

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4d (June 2013).
12

N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, id. at Chapter 2.816.4c (June 2013).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b
(February 2011).
14
The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335
n9 (2004).
15

20 C.F.R. § 10.403(d), (e); see Albert C. Shadrick, 5 ECAB 376 (1953).

16

C.R., Docket No. 14-0111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

17

See T.M., Docket No. 08-0975 (issued February 6, 2009).

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to modify OWCP’s May 29,
2012 LWEC determination.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s September 28, 2015 decision regarding
whether the May 29, 2012 LWEC determination should be modified with regard to appellant’s
orthopedic conditions that had been accepted at the time of the September 28, 2015 decision
because the Board considered that evidence in its November 28, 2016 decision. Findings made in
prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA.18 The Board has already determined that the May 29, 2012 LWEC determination was not
erroneous at the time it was issued and the question becomes whether appellant has submitted
medical evidence demonstrating that, after issuance of the May 29, 2012 LWEC determination,
there was a material change in the nature and extent of her employment-related conditions such
that she could no longer work as an information clerk.19
At the time of the issuance of the September 28, 2015 decision reviewed by the Board on
November 28, 2016, OWCP had accepted appellant’s claim for the following conditions: cervical
strain, right wrist ganglion cyst, bilateral wrist tendinitis, bilateral CTS, cervical intervertebral disc
displacement, tension headaches (migraines), chronic pain syndrome, and brachial neuritis or
radiculitis. After the September 28, 2015 decision, OWCP expanded the accepted conditions to
include lateral epicondylitis of both elbows, accepted July 7, 2016, and major depressive disorder
(severe, single episode) without psychotic features, accepted September 7, 2017. As the Board
has not previously considered whether these work-related conditions worsened and prevented
appellant from working as an information clerk, it will do so in the present decision.20
With respect to her emotional condition, appellant submitted a July 10, 2012 report from
Dr. Slaughter who diagnosed pain disorder associated with psychological factors and general
medical condition, major depression (recurrent, moderate), and moderate psychosocial stressors
with occupational and economic problems. Dr. Slaughter advised that, until these issues were
addressed, it was unlikely that appellant could return to work even on a sedentary job. The Board
finds that this report of Dr. Slaughter is of limited probative value regarding appellant’s request to
modify the May 29, 2012 LWEC determination because his report does not contain adequate
medical rationale to demonstrate that appellant’s employment-related depression had worsened to
the point that she could not perform the sedentary duties as required by the constructed position of
information clerk. He did not sufficiently explain why appellant’s specific depressive condition
prevented her from performing such sedentary work. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining

18

C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).
19

See supra note 16.

20

See supra note 18.

7

how a given medical condition/level of disability has an employment-related cause.21 Therefore,
this report does not establish appellant’s request to modify the May 29, 2012 LWEC
determination.
Appellant also submitted September 10 and October 15, 2012, and February 26, 2013
reports from Dr. Schwartz who diagnosed major depressive disorder (recurrent, severe) secondary
to chronic pain syndrome. In an October 28, 2015 report, Dr. Moore diagnosed major depression
(caused by the “work-related accepted injuries of [April 8, 1997]”); and chronic pain syndrome.
On May 25, 2017 he indicated that appellant continued with depression symptoms. In a June 21,
2017 report, Dr. Currin diagnosed unspecified depression and generalized anxiety disorder, and he
indicated that these conditions should be classified as accepted employment injuries. However,
these reports are of no probative value on the underlying issue of the present case because they do
not provide an opinion on appellant’s disability from the information clerk position, which served
as the basis for OWCP’s May 29, 2012 LWEC determination.22
With respect to her orthopedic medical condition, appellant submitted reports of Dr. Shade
dated November 11, 2015, August 11, 2016, April 26, June 28, July 7, August 25, November 3,
and December 8, 2017, and January 12, 2018. In these reports, he collectively diagnosed cervical
disc protrusions at C5-6 and C6-7, bilateral CTS, multilevel cervical radiculopathy, cubital tunnel
syndrome or ulnar nerve compression, chronic pain syndrome, and cervical spinal stenosis.
Dr. Shade noted that appellant’s complaints and diagnoses were directly causally related to the
employment injury. He opined that appellant was incapable of returning to work, even performing
sedentary duty, given her neck, arm, and wrist complaints, and noted that, with her chronic pain
and narcotic medication, he believed that appellant would be a risk to herself and also the
employing establishment if she returned to work. In his December 8, 2017 report, Dr. Shade
further noted that, due to “their own natural consequences,” appellant’s conditions and disabling
symptoms had worsened to the point where she was temporarily totally disabled due to the
employment “injury of [April 8, 1997]” without any intervening cause. He advised that appellant
had complained of increased pain and decreased strength/range of motion in her neck, elbows, and
hands since April 8, 1997 and opined that it was impossible for her to work in any capacity until
the disabling conditions had improved.
The Board finds that these reports of Dr. Shade are of limited probative value regarding
appellant’s request to modify the May 29, 2012 LWEC determination because he did not provide
sufficient medical rationale in support of his opinion that appellant’s employment-related
conditions had worsened after the May 29, 2012 LWEC determination. He did not sufficiently
explain why appellant could not perform any work and, therefore, could not perform the sedentary
duties required by the constructed position of information clerk. Dr. Shade did not describe
appellant’s accepted employment conditions in detail or explain the medical processes that would
have rendered her totally disabled from all work. He appears to have primarily based his opinion
on disability on appellant’s own self-reported symptoms and beliefs about her ability to work. The
Board has held that a report is of limited probative value regarding causal relationship if it does
21

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

22
T.H., Docket No. 18-0704 (issued September 6, 2018). See also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018);Charles H. Tomaszewski, 39 ECAB 461 (1988).

8

not contain medical rationale explaining how a given medical condition/level of disability has an
employment-related cause.23 Therefore, these reports of Dr. Shade are insufficient to require
modification of OWCP’s May 29, 2012 LWEC determination.
In a May 24, 2016 report, Dr. Shade recommended that OWCP expand the accepted
conditions in appellant’s claim to include major depressive disorder, anxiety disorder, and lateral
epicondylitis of both elbows. However, this report contains no opinion on disability and, therefore,
is of no probative value regarding the modification of OWCP’s May 29, 2012 LWEC
determination.24 In a May 23, 2017 report, Dr. Shade reported the findings of a FCE performed
on that date, noting that appellant lifted/carried a maximum of three pounds. He noted that these
tests were stopped for “biomechanical/psychophysical” reasons. Dr. Shade concluded that the
results of the FCE demonstrated that appellant only qualified for “less than sedentary work.” This
report also is of limited probative value on the underlying issue of this case because it does not
contain sufficient medical rationale explaining why, due to specific employment-related
conditions, appellant was totally disabled or could only perform less than sedentary work.25
Appellant also submitted numerous reports in which attending physicians diagnosed
various conditions, some of which have been accepted by OWCP. In reports dated September 10
and October 15, 2012, and February 26, 2013, Dr. Schwartz diagnosed chronic pain syndrome,
tension headaches, neck sprain, cervical disc displacement, bilateral tenosynovitis of the
hands/wrists, right tendon ganglion, and bilateral CTS. In June 6 and September 26, 2017 reports,
Dr. Potter diagnosed chronic pain syndrome, disc herniation at C4 through C7, radiculopathy of
the cervical region, cervical radiculitis, lateral epicondylitis of both elbows, myalgia, sprains of
ligaments of the cervical spine, cervical strain, tension-type headaches, bilateral CTS, muscle
pain/myofascial pain syndrome, and back muscle spasms. In an October 11, 2017 report, Dr. Vu
diagnosed disc herniation at C4 through C7, radiculopathy of the cervical region, cervical
radiculitis, cervical sprain/strain, chronic pain syndrome, bilateral CTS, tension headaches, lateral
epicondylitis of both elbows, muscle pain/myofascial pain syndrome, and muscle spasms.
However, these reports are of no probative value on the underlying issue of the present case
because they do not provide an opinion on appellant’s disability from the information clerk
position, which served as the basis for OWCP’s May 29, 2012 LWEC determination.26
For these reasons, appellant has not shown that OWCP’s May 29, 2012 LWEC
determination was erroneous when issued or that there was a material change in the nature and
extent of her injury-related condition. The Board further finds that the record does not show that
appellant was vocationally rehabilitated after OWCP adjusted her compensation per its May 29,
2012 LWEC determination and; therefore, she has not demonstrated that modification of the

23

See supra note 21.

24

T.H., Docket No. 18-0704 (issued September 6, 2018). See also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018);Charles H. Tomaszewski, 39 ECAB 461 (1988).
25

See supra note 21.

26

See id.

9

May 29, 2012 determination would be warranted on one or more of these three bases.27 She may
request modification of the LWEC determination, supported by new evidence or argument, at any
time before OWCP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to modify OWCP’s May 29,
2012 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the November 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2021
Washington, DC

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

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

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

27

See supra note 16.

10