United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
PEACE CORPS, VOLUNTEER SERVICES,
Mombasa, Kenya, Employer
__________________________________________

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

Docket No. 12-1738
Issued: June 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 9, 2012 appellant filed a timely appeal from the July 30, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied wage-loss
compensation. 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 the accepted employment injury caused total disability for work
from April 21, 2006 to December 21, 2007.
FACTUAL HISTORY
On July 21, 2003 appellant, then a 28-year-old Peace Corps volunteer, sustained a
traumatic injury in the performance of duty. Three muggers attempted to rob him, but a mob
pulled the attackers off and took them to an alley. Appellant saw several men running toward
1

5 U.S.C. § 8101 et seq.

them, three with automobile tires and another with a can of kerosene. He realized that the
muggers were going to be killed, which he explained was not an uncommon thing to do to
thieves in that area. As appellant was driven away in a vehicle, he looked back “and was able to
see the thick black smoke from the tires, and the unfortunate souls stuck inside them, bellowing
up now over the tops of the buildings.”
After leaving the Peace Corps appellant remained in Kenya. He started a business with a
Kenyan citizen and while working in this business was attacked by a man with a knife. In
connection with the business, appellant was sued and charges were filed against him. He left the
country in 2006.
On March 26, 2009 OWCP accepted appellant’s June 30, 2008 claim for post-traumatic
stress disorder, aggravation of preexisting bipolar disorder and depression. Appellant received
wage-loss compensation beginning December 22, 2007.
On August 6, 2009 appellant claimed wage-loss compensation from April 21, 2006 to
December 21, 2007. In a July 27, 2009 note, Dr. Benjamin A. Root, Jr., a Board-certified
psychiatrist, stated that appellant was under his care during this period: “During most of that
period I considered you disabled from gainful employment because of your psychiatric condition
except for a brief interval in which you worked as an interpreter at Dollywood.”
OWCP advised appellant on October 19, 2009 that Dr. Root’s report indicated that he
was disabled except when he was working. In a letter to the physician, it informed Dr. Root that
his statement on causal relation was too vague to support compensation for the entire period.
OWCP asked him for copies of any treatment records during the period in which he found that
appellant was totally disabled.
Dr. Root submitted his treatment notes on November 20, 2009 for the period in question.
In a December 18, 2009 decision, OWCP denied appellant’s claim for wage-loss
compensation for the period April 21, 2006 to December 21, 2007. It determined that Dr. Root’s
treatment records consisted mainly of orders for prescription refills and annotations that
appellant appeared to be taking his medications appropriately. The records did not address
whether appellant was totally disabled for work.
In a March 18, 2010 note, Dr. Root explained that much of appellant’s symptomatology
appeared to stem from difficulties that arose in connection with his employment in Kenya about
the beginning of 2006. Appellant had been a partner in a safari company, and apparently some
sort of visa problems resulted in his being deported back to the United States. Dr. Root noted
that it appeared appellant had “many problems with post-traumatic like symptoms through the
years.” Appellant continued to have difficulty with symptoms of anxiety and despondency.
Appellant requested a hearing.
By decision dated June 17, 2010, OWCP’s hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation. He found that Dr. Root’s treatment records did
not explain appellant’s total disability during most of the period claimed. Further, Dr. Root’s

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supplemental report emphasized appellant’s difficulties with his business partner in 2006, which
were unrelated to his Peace Corps service.2
Following the hearing representative’s decision, OWCP obtained a second-opinion
evaluation on appellant’s current status. On November 22, 2010 Dr. R. Scott Benson, a Boardcertified psychiatrist, concluded that appellant’s current psychiatric condition was not related to
his service in the Peace Corps. He found the diagnosis of post-traumatic stress disorder suspect;
but if it existed, it was related to appellant’s experience while working in his private business in
Kenya. Dr. Benson clarified that appellant’s accepted psychiatric condition had resolved.
Dr. Terry E. Passman, the attending Board-certified psychiatrist since July 3, 2008,
disagreed. He found that appellant’s work-related injury was still medically present and
disabling, though it was unknown whether the work-related aggravation was temporary or
permanent.
To resolve the conflict between Dr. Benson and Dr. Passman on whether appellant’s
current psychiatric condition continued to be employment related, OWCP referred appellant to
Dr. William C. Wilkerson, a Board-certified psychiatrist and independent medical examiner,
who concluded that appellant’s current psychiatric condition was related to experiences he had in
the Peace Corps, in particular, the traumatic assault episode on July 21, 2003. Responding to a
question posed by OWCP, Dr. Wilkerson added that appellant was currently totally disabled as a
result of his psychiatric condition.
Appellant requested reconsideration of OWCP’s hearing representative’s June 17, 2010
decision on the period of claimed disability from April 21, 2006 to December 21, 2007. He
explained that Dr. Root was his primary care provider from April 21, 2006 to January 18, 2007
and again from May 30 to August 5, 2007. Appellant asked OWCP to reconsider the letters and
medical records submitted by Dr. Root as evidence that he was unable to work during those two
time periods.
Appellant added that Region 8 Mental Health Center provided his primary care from
January 19 to May 29, 2007. He submitted a report from Dr. Paul S. McGinnis, a psychiatrist, to
address that period. Appellant stated that he was under the care of Baldwin County Medical
Health Center from August 6, 2007 to June 25, 2008. He submitted a report from Dr. Gregory
Cummings, a psychiatrist, to support his claim for wage loss from August 6 to
December 21, 2007.
Dr. Root provided a supplement report dated November 15, 2010. He stated that much of
appellant’s difficulties harkened back to traumatic experiences when he was in the Peace Corps
between 2001 and 2003. “[Appellant] was stationed in Kenya and was subjected to dangerous
situations. [He] was witness to several violent episodes that occurred to people in the patient’s
vicinity. Part of patient’s symptomatology relates to the fact that he felt undeservedly
responsible for some of the mayhem.” Dr. Root explained that the difficulties appellant later
2

OWCP’s hearing representative found that there was justification in the medical records for the payment of
wage-loss compensation beginning in May 2008, when appellant was hospitalized, and noted that OWCP
commenced compensation effective December 22, 2007 based simply on the dates entered on his claim form.

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experienced in the safari business in Kenya related back to the painful experiences that he
previously had in the Peace Corps. He noted that appellant ended up having a rather bad
flashback early in 2008 which resulted in his hospitalization. Dr. Root repeated: “It appears that
most of the patient’s symptomatology continues to harken back to the horrendous experiences
that he had in the Peace Corps between 2001 and 2003.” Dr. Root noted that appellant worked as
a Swahili interpreter at Dollywood but after this seasonal employment ended, he was unable to
sustain the level of functioning need to move on to nonseasonal work.
On September 10, 2010 Dr. McGinnis described appellant’s symptoms, diagnosis and
treatment from January 19 to May 29, 2007. He stated: “While working with [appellant], he
presented the inability to work given the severity of his symptoms at the time.”
Dr. Cummings advised on February 10, 2010 that appellant was treated at the Baldwin
County Mental Health Center from August 6, 2007 to June 25, 2008 for post-traumatic stress
disorder and sedative dependence. He noted 19 visits concluding with a hospital admission due
to continued difficulties. “At the time of our care, [appellant’s] functional level was poor and he
appeared unable to work, as well as a poor candidate for vocational rehab[ilitation] services
referral.”
In a July 7, 2011 decision, OWCP reviewed the merits of appellant’s case and denied
modification of its prior decisions.
Appellant again requested reconsideration.
He submitted an August 16, 2011
supplemental report from Dr. Cummings to clarify that appellant’s condition was poor enough
that he required hospitalization and more extensive treatment for post-traumatic stress disorder
related to his time in Kenya with the Peace Corps. “At no time during our care was [appellant]
employable, and documentation from his other treatment providers in Mississippi and Louisiana
supported this clinical judgment.”
On July 30, 2012 OWCP reviewed the merits of appellant’s case and denied modification
of its prior decision. It found Dr. Cummings’ supplemental report to be a restatement of what he
earlier reported.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.3 A claimant seeking benefits under
FECA has the burden of proof to establish the essential elements of his or her claim by the
weight of the evidence,4 including that he sustained an injury in the performance of duty and that
any specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
3

5 U.S.C. § 8102(a).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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It is not sufficient for the claimant to establish merely that he has disability for work. He
must establish that his disability is causally related to the accepted employment injury. FECA
provides compensation only for as long as there exists a proven disability attributable to the
injury. The claimant must submit a rationalized medical opinion that supports a causal
connection between the claimed disabling condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the employment injury, and must explain from a medical perspective how the disabling condition
is related to the accepted injury.6
ANALYSIS
OWCP accepted that appellant sustained a post-traumatic stress disorder, an aggravation
of preexisting bipolar disorder and depression as a result of a work incident on July 21, 2003.
Three muggers attempted to rob appellant, but a mob pulled the attackers off and took them to an
alley. He saw several men running toward them, three with automobile tires and another with a
can of kerosene. Appellant believed that the muggers were going to be killed. As he was driven
away in a vehicle, he looked back and was able to see thick black smoke bellowing over the tops
of the buildings.7
The issue raised by appellant’s claim for wage-loss compensation is whether this
particular incident caused total disability for work from April 21, 2006 to December 21, 2007.
Dr. Root, the psychiatrist who treated appellant during the period claimed, considered
appellant psychiatrically disabled from gainful employment during most of that period except for
a brief interval in which appellant worked as an interpreter at Dollywood. The Board has
reviewed his treatment notes during this period.
Additionally, in his first supplemental report, Dr. Root explained that much of appellant’s
symptomatology appeared to stem from difficulties that arose in connection with his employment
in Kenya about the beginning of 2006, shortly before Dr. Root began treating him. More
specifically, appellant had been a partner in a safari company and apparently some sort of visa
problems resulted in his being deported back to the United States. This evidence does not
support his claim for wage-loss compensation. The difficulties appellant faced in connection
with his safari business in Kenya did not arise in the course of his federal employment as a
volunteer with the Peace Corps. If symptomatology from difficulties that arose about the
beginning of 2006 caused disability for work beginning April 21, 2006, the disability is not
compensable.
After OWCP’s hearing representative addressed Dr. Root’s first supplemental report,
Dr. Root submitted a second report. He asserted that much of appellant’s difficulties harkened
back to traumatic experiences when he was in the Peace Corps between 2001 and 2003, but he
did not mention the accepted employment incident on July 21, 2003. Instead, Dr. Root
implicated “dangerous situations” and “several violent episodes,” none of which he identified
6

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

7

It does not appear that appellant saw the assailants burned alive.

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with any specificity. He stated that appellant’s difficulties in the safari business related back to
the painful experiences he previously had in the Peace Corps, but he did not explain. As for later
disability for work, Dr. Root noted that appellant had a rather bad flashback early in 2008, which
resulted in hospitalization. This report did not address appellant’s claim that the July 21, 2003
injury caused total disability for work from April 21, 2006 to December 21, 2007.
Dr. McGinnis, the psychiatrist who treated appellant from January 19 to May 29, 2007,
advised that appellant presented the inability to work given the severity of his symptoms at the
time. As the Board noted earlier, it is not sufficient for the claimant to establish merely that he
has disability for work. Dr. McGinnis must establish that appellant’s disability is causally
related to the accepted employment injury. He did not attribute the severity of appellant’s
symptoms to what happened on July 21, 2003 or explain how the injury caused disability for
work beginning April 21, 2006.
Dr. Cummings, the psychiatrist who treated appellant from August 6, 2007 to June 25,
2008, noted that appellant’s functional level was poor during this period, and he appeared to be
unable to work. In a supplemental report, he added that appellant required hospitalization and
more extensive treatment for post-traumatic stress disorder “related to his time in Kenya with the
Peace Corps.” Like Dr. Root and Dr. McGinnis, Dr. Cummings did not address the July 21,
2003 employment injury or explain how it totally disabled appellant during the period in
question.
OWCP’s hearing representative observed that there was justification in the medical
records for the payment of wage-loss compensation beginning in May 2008, when appellant was
hospitalized following a bad flashback. The question raised by appellant’s claim is whether
there is any justification for the payment of wage-loss compensation from April 21, 2006 to
December 21, 2007. The medical opinion evidence submitted in support of his claim does not
provide justification. The physicians have not discussed what happened on July 21, 2003. They
have not rationally explained how that employment injury caused total disability for the period
claimed. Medical conclusions based on inaccurate or incomplete histories are of little probative
value.8 Medical conclusions unsupported by rationale are also of little probative value.9
Nor have appellant’s physicians supported their opinions with contemporaneous clinical
findings. Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.10 The Board has held that when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s
complaints, without objective signs of disability being shown, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.11
8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

11

John L. Clark, 32 ECAB 1618 (1981).

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As the medical opinion evidence does not establish that the accepted employment injury
caused total disability for work from April 21, 2006 to December 21, 2007, the Board finds that
appellant has not met his burden of proof. Accordingly, the Board will affirm OWCP’s July 30,
2012 decision denying his wage-loss claim for that particular period.
The Board notes that following OWCP’s hearing representative’s June 17, 2010 decision,
a conflict in medical opinion arose on whether appellant’s current psychiatric condition
continued to be related to the Peace Corps incident in 2003. This was a separate issue from the
one presented by appellant’s claim for wage-loss compensation from April 21, 2006 to
December 21, 2007. The conflict arose between Dr. Benson, who in 2010 found that the
accepted psychiatric condition had resolved and Dr. Passman, who found that it was still
medically present and disabling. Dr. Wilkerson, the impartial medical specialist, determined in
2011 that appellant still suffered from the accepted psychiatric condition, which was currently
disabling.
OWCP discharged its responsibility in the initial development of the claim by requesting
specific information from the attending physician,12 Dr. Root, on appellant’s claim for wage-loss
compensation from April 21, 2006 to December 21, 2007. It reviewed the evidence submitted,
adjudicated the claim and notified appellant of the deficiencies. Appellant pursued his appeal
rights and submitted additional evidence. OWCP’s hearing representative affirmed, again
explaining the deficiencies.
Appellant submitted additional evidence and requested
reconsideration. OWCP reviewed the merits of his case and found that the new evidence did not
cure the deficiencies in his claim and did not discharge his burden of proof to establish
entitlement to compensation for the particular period of claimed disability. The Board can find
no error, warranting further development, in OWCP’s management of this case or in its
development of the evidence as it relates to the issue on appeal. Appellant bears the burden of
proof. The decisions below have noted the deficiencies of this particular claim and of the
evidence necessary to establish entitlement to compensation. The burden of going forward with
the evidence, should appellant choose to do so, is his. In this regard, he may submit new
evidence or argument with a written request for reconsideration to OWCP within one year of this
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that the accepted
employment injury caused total disability for work from April 21, 2006 to December 21, 2007.

12

Id., Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.8.c
(June 2011).

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ORDER
IT IS HEREBY ORDERED THAT the July 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE TREASURY,
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INTERNAL REVENUE SERVICE NATIONAL
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OFFICE, Richmond, VA, Employer
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___________________________________________ )
J.A., Appellant

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

Docket No. 17-0236
Issued: July 17, 2018

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 November 11, 2016 appellant, through counsel, timely appealed from a September 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that modification
of her February 8, 2010 loss of wage-earning capacity (LWEC) determination was warranted.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On November 14, 2005 appellant, then a 40-year-old clerk, filed an occupational disease
claim (Form CA-2) attributing her elbow and arm pain to her work duties. OWCP accepted the
claim for lateral and medial epicondylitis of the right elbow and ulnar nerve entrapment at both
elbows. Appellant was taken off work on February 16, 2006. On March 2, 2006 she returned to
full-time work with restrictions. Appellant was taken off work on July 17, 2007. She was returned
to light-duty work four hours a day on April 17, 2008. Appellant underwent right ulnar nerve
transfer submuscular, gentle and right tennis elbow release on September 5, 2008. OWCP placed
appellant on the periodic rolls and she received wage-loss compensation and medical treatment.4
In a June 22, 2009 report, Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and
second opinion physician, determined that appellant was at maximum medical improvement and
was capable of performing full-time limited-duty work.
On August 6, 2009 Dr. Charles P. Bean, a Board-certified orthopedic surgeon and treating
physician, concurred with Dr. Swartz’s opinion and findings.
On December 7, 2009 appellant accepted a permanent position as a clerk and returned to
full-time work with permanent restrictions. She was off work for personal reasons from March 24
to 26, 2011. Since March 2011, appellant was scheduled for full-time light-duty work. The record
reflects that she worked from 20 to 58 hours every two weeks.
By decision dated February 8, 2010, OWCP advised appellant that she had been employed
as a clerk with wages of $510.98 per week with the employment, effective December 7, 2009, the
date she signed the job offer. It found that the duties of the clerk position reflected her work
tolerance limitations and were established by the weight of the medical evidence. Additionally,
appellant had demonstrated the ability to perform the duties of the position for two months or
more. OWCP found that her actual earnings as a clerk represented her wage-earning capacity, and
accordingly reduced her compensation to reflect her LWEC.5 It set forth the computation of

3

J.V., Docket No. 09-1154 (issued February 26, 2010).

4

Appellant also has a separate work-related injury which was accepted for left elbow ulnar nerve entrapment at the
left elbow under File No. xxxxxx593. OWCP doubled the claims under the present claim.
5
OWCP determined that appellant was entitled to compensation from December 7, 2009 to February 13, 2010,
based on her actual earnings at the compensation level noted in the decision.

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compensation noting a loss in earning capacity of $76.27 per week with an augmented
compensation rate of $50.78 per week.
On May 9, 2014 OWCP referred appellant for a second opinion examination with
Dr. Maya Thomas, a Board-certified neurologist, for an assessment of her work-related condition
and the extent of her disability and the need for treatment.
In a November 21, 2014 report, Dr. Thomas noted appellant’s history of injury and
treatment and examined her. She diagnosed several conditions to include: bilateral myofascial
pain; obstructive sleep apnea syndrome; fatigue; abnormal weight gain; and peripheral nerve
disease. Dr. Thomas also indicated that appellant continued to suffer from residuals of her right
elbow lateral epicondylitis, right medial epicondylitis, right elbow ulnar nerve entrapment, left
ulnar nerve entrapment neuropathy, and left elbow ulnar nerve entrapment work-related
conditions. Furthermore, she opined that it was likely that appellant met all of the symptoms for
fibromyalgia. Dr. Thomas opined that appellant’s symptoms had worsened since 2009. She
indicated that appellant was employable for part-time work that did not involve repetitive
movement of the arms or hands. Dr. Thomas also noted that appellant had gained 100 pounds over
the last 10 years. She provided findings and determined that appellant should have restrictions to
include working for no more than four hours a day. They included: sitting, walking, and standing
for no more than four hours a day. Dr. Thomas also indicated that appellant could not do any
repetitive movement. She indicated that the restrictions involved “not using her hands constantly
with typing or paperwork if such a job exists.”
On March 16, 2015 appellant filed a claim for compensation (Form CA-7) claiming
intermittent wage loss from February 22 to March 7, 2015.
In a letter dated March 26, 2015, OWCP informed appellant that they had received her
claim for wage-loss compensation. However, since a formal LWEC determination had been issued
in her claim, on February 8, 2010, the claim for wage-loss compensation would be treated as a
request for modification of her LWEC determination. OWCP allowed appellant 30 days to submit
evidence forming the basis for modifying her LWEC determination.
In a letter also dated March 26, 2015, OWCP also sent a request for clarification to
Dr. Thomas, regarding her assessment of work tolerance limitations.
In an April 6, 2015 report, the treating physician, Dr. Robert R. Taylor, an internal medicine
specialist, noted that appellant had fibromyalgia aggravated by her work injury. He determined
that appellant had numbness and tingling in her arm from the ulnar nerve injury, positive Tinel’s
at the elbow, and trigger-point point tenderness throughout neck, shoulders, back, and legs from
fibromyalgia. Dr. Taylor opined that the work injury limited her ability to function because of
numbness and tingling. He recommended a referral to a rheumatologist, instead of a neurologist,
to give an evaluation of her situation. Dr. Taylor explained that appellant would be better off with
a different position; however, it never occurred. Furthermore, appellant was “off work waiting for

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a Dragon [dictation] program to arrive.”6 Dr. Taylor indicated that, if the Dragon program had
been implemented, it may eliminate the problem of repetitive movement. He indicated that, if the
Dragon dictation program was implemented, appellant could work a minimum of four hours, but
she should not have any hand or repetitive type of program.
In an April 10, 2015 report, Dr. Taylor indicated that he concurred with most of
Dr. Thomas’ report as far as the accepted injuries. However, he did not agree with the fibromyalgia
diagnoses. Dr. Taylor opined that he, as well as other physician’s, agreed that she had fibromyalgia
and that it was “at the very least, aggravated, if not caused by the accepted work injuries….” He
noted that Dr. Thomas believed it was sleep apnea. Dr. Taylor requested a referee examination.
On April 13, 2015 OWCP received a supplemental report from Dr. Thomas indicating that
she completed her prior report to the best of her ability. Dr. Thomas indicated that she could not
“fill the form any differently.” She noted that appellant was working the same position despite
reporting severe disability and she indicated that she was doing this with pain. Dr. Thomas
indicated that appellant continuing to work with repetitive motions could cause persisting pain and
was not advised. She recommended a referral to physical medicine and rehabilitation.
In a letter dated April 15, 2015, OWCP explained to appellant that Dr. Thomas’ report was
insufficiently rationalized with regard to her assessment of appellant’s work tolerance. It advised
appellant that the previous work tolerance limitations provided by Dr. Swartz on June 22, 2009
remained in effect. OWCP also advised that no further action would be taken regarding her
pending claims for wage-loss compensation until the issue of her work-tolerance limitations was
resolved.
On April 16, 2015 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions, and the medical record to Dr. Michael E. Callahan, a Boardcertified orthopedic surgeon.
In a report dated May 11, 2015, Dr. Callahan described appellant’s history of injury and
treatment. He examined appellant and provided findings. Dr. Callahan found that appellant was
morbidly obese and appeared in no acute distress. He examined the upper extremities and found
well-healed surgical scars on the posteromedial and lateral aspect of her right upper elbow.
Dr. Callahan advised that he did not detect any signs of muscular atrophy in the upper extremities.
He explained that motor strength was within normal limits of muscle groups bilaterally.
Dr. Callahan determined that there was a slight decrease in the grip on the right side, and explained
that this was interpreted as being due to pain rather than any neurological weakness. He also
indicated that there was no atrophy in the thenar or hypothenar eminence of either hand. Regarding
the work-related accepted conditions, Dr. Callahan advised that appellant continued to complain
of right lateral epicondylitis and medial epicondylitis demonstrated by marked tenderness to
palpation in these areas with positive Tinel’s sign over the ulnar nerve. Furthermore, he advised
that she continued to complain of left ulnar nerve entrapment symptoms, but she had no surgical
treatment on that side. Dr. Callahan addressed whether appellant exhibited current objective
6

The record reflects that the employing establishment placed appellant off work pending installation of a Dragon
dictation program from March 20, 2015. Dr. Taylor filled in an April 3, 2015 duty status report (Form CA-17) in
which he diagnosed fibromyalgia and placed appellant off work until the Dragon dictation program was installed.

4

findings of the work-related conditions. He explained that appellant continued to be somewhat
physically active, and noted that, despite having a full year off work while she was caring for her
ill mother, there was no significant benefit to her physical condition. Dr. Callahan determined that
she had positive electromyography (EMG) scans, but they were “markedly variable” in the reports
of the severity of the ulnar neuropathies. Additionally, he found that appellant had marked
tenderness to palpation.
Dr. Callahan indicated that appellant worked four hours per day and continued to do
repetitive work activities. He also indicated that, if fibromyalgia was a valid diagnosis, it was
chronic, unremitting, and very difficult to treat. Dr. Callahan explained that appellant was very
cooperative during the evaluation and appeared to be a very goad historian. He also found that
there was no obvious symptom exaggeration or evasive behavior. Regarding the physical
examination, Dr. Callahan noted inconsistencies in the two-point discrimination testing her right
hand. He explained that the arm pains did not follow a typical radicular pattern although her
complaints of numbness and tingling were in the ulnar nerve distribution in the hand. Dr. Callahan
noted that appellant had failed virtually every attempted treatment including surgical intervention
as well as a long and extensive course of more conservative treatment. He opined that her
prognosis was extremely guarded and unlikely to resolve. Dr. Callahan explained that appellant
was a high risk for failure in any contemplated surgery whether on the left upper extremity or even
for neck surgery. Furthermore, appellant had failed injection therapy consistently and in? opined
that no further injections were indicated.
Regarding fibromyalgia, Dr. Callahan determined that appellant displayed some symptoms
of fibromyalgia including her chronic, somewhat diffuse, pain and complaints of muscle spasm.
He noted that she complained of increased sensitivity to touch when she described discomfort
wearing long sleeves, but he could not document that objectively when he conducted upper
extremity muscular testing. For example, Dr. Callahan explained that appellant did not indicate
any discomfort even with firm resistance in the hands, forearms, and arms of her upper extremities.
While Dr. Callahan found some mild trigger-point findings in the trapezius, he did not find a
pattern of the multiple trigger points usually described. Dr. Callahan determined that there was
nothing in the medical records from any of her physicians to document trigger-point point testing.
He indicated the only documentation was the diffuse pain and muscle spasms noted. Dr. Callahan
opined that it was questionable that appellant met the diagnostic criteria for fibromyalgia.
Additionally, Dr. Callahan explained that appellant’s morbid obesity had an adverse effect on her
overall physical health.
Regarding a worsening of her condition, Dr. Callahan opined that there were “no objective
findings to consistently document any worsening of her diagnosis since June 2009. Appellant does
complain subjectively of worsening symptoms, but these have not been documented by any
imaging studies or electrodiagnostic studies. They did not provide any obvious evidence for
progression.” Dr. Callahan opined that he “would have expected significant improvement of her
condition during that year away from her work-related activities. That also makes me skeptical of
her prognosis and a likelihood of recovering fully from her accepted injuries.” He completed the
work restriction form and opined that appellant was capable of working an eight-hour day if the
restrictions for her upper extremity and whole person limitations could be observed. Dr. Callahan
advised intermittent rest periods every two hours as well as the lunch period during her eight-hour
workday. He also indicated that psychometric testing and possible cognitive behavioral therapy

5

could be of significant benefit in her case to return her to a more functional and comfortable
lifestyle.
By decision dated October 29, 2015, OWCP denied modification of its February 8, 2010
LWEC determination. It found that the original LWEC determination was not in error, that
appellant had not been retrained or otherwise vocationally rehabilitated, or that her accepted
employment-related medical condition had materially changed.
On November 4, 2015 appellant, through counsel, requested a telephonic hearing, which
was held before an OWCP hearing representative on July 12, 2016. During the hearing, counsel
indicated that he would submit medical evidence which supported appellant’s disability due to
fibromyalgia. Appellant described her job duties, which included working on a computer and
sorting hundreds of documents a day for eight hours. She asserted that she performed the same
repetitive duties, and it worsened to the point where she could no longer perform her duties.
Appellant confirmed that she worked full time since November 2015.
Following the hearing, counsel submitted duplicate copies of Dr. Taylor’s April 6 and 10,
2015 reports.
On July 21, 2016 a copy of the transcript was sent to the employing establishment for
review and comment within 20 days. No response was received.
By decision dated September 21, 2016, OWCP’s hearing representative affirmed the
October 29, 2015 decision denying a modification of the February 8, 2010 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, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7
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.8
The burden of proof is on the party attempting to show a modification of the wage-earning
capacity determination.9

7

See R.E., Docket No. 17-1288 (issued May 16, 2018); Katherine T. Kreger, 55 ECAB 633 (2004).

8

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

9

Id.

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that
modification of her February 8, 2010 LWEC determination was warranted.
In seeking modification of her LWEC determination, appellant has not argued that the
original determination was in error or that she has been retrained or otherwise vocationally
rehabilitated. Rather, she argued that there has been a material change in the nature and extent of
her injury-related condition.
In support of her request for modification, appellant provided two reports from her treating
physician, Dr. Taylor. In an April 6, 2015 report, Dr. Taylor noted that appellant had fibromyalgia
aggravated by her work injury. He determined that appellant had numbness and tingling in her
arm from the ulnar nerve injury, positive Tinel’s at the elbow, and trigger-point tenderness
throughout neck, shoulders, back, and legs from fibromyalgia. Dr. Taylor opined that the work
injury limited her ability to function because of numbness and tingling. He noted that appellant
could work a minimum of four hours, but she should not have any hand or repetitive type of
program.
Dr. Taylor also provided an April 10, 2015 report and opined that he concurred with most
of Dr. Thomas’ second opinion report as far as the accepted injuries. However, he did not agree
with fibromyalgia diagnoses. Dr. Taylor opined that he, as well as other physicians, agreed that
she had fibromyalgia, and it was “at the very least, aggravated, if not caused by the accepted work
injuries….” He noted that Dr. Thomas believed the condition was sleep apnea instead of
fibromyalgia.
The Board finds that the medical reports of Dr. Taylor are insufficient to warrant
modification of the LWEC determination. First, Dr. Taylor did not provide any medical rationale
explaining how or why appellant’s condition had deteriorated such that she was precluded from
continuing to work in the position of clerk.10 Second, his opinion is insufficient to support a
finding that appellant sustained a new medical condition, fibromyalgia. Although the physician
provided an opinion on the cause of appellant’s conditions, which he believed was “at the very
least, aggravated, if not caused by the excepted work injuries….” Dr. Taylor’s report is of limited
probative value on this issue because he did not provide a clear opinion, supported by medical
rationale, that appellant sustained a claimed condition due to either of the specific employment
factors accepted in this case.11 The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was related to employment factors.12

10

R.M., 59 ECAB 690 (2008).

11

D.R., Docket No. 16-0528 (issued August 24, 2016).

12

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).

7

In support of her claim for modification of the LWEC determination, appellant also relied
upon the second opinion report of Dr. Thomas, who examined her and provided a November 21,
2014 report in which she opined that appellant’s condition had worsened. She diagnosed appellant
with several conditions to include: bilateral myofascial pain; obstructive sleep apnea syndrome;
fatigue; abnormal weight gain; and peripheral nerve disease. Dr. Thomas also indicated that
appellant continued to suffer from residuals of her right elbow lateral epicondylitis, right medial
epicondylitis, right elbow ulnar nerve entrapment, left ulnar nerve entrapment neuropathy, and left
elbow ulnar nerve entrapment work-related conditions. Furthermore, she opined that it was likely
that appellant met all of the symptoms for fibromyalgia. Dr. Thomas opined that appellant’s
symptoms worsened since 2009. She indicated that appellant was employable for part-time work
that did not involve repetitive movement of the arms or hands. Dr. Thomas determined that
appellant should have restrictions to include working for no more than four hours a day including
sitting, walking, and standing for no more than four hours a day and that appellant could not do
any repetitive movement. She noted that the restrictions involved “not using her hands constantly
with typing or paperwork if such a job exists.”
However, when Dr. Thomas was requested to clarify her opinion and provide objective
findings to support her opinion, she responded, but merely reiterated her prior opinion.
The Board finds that Dr. Thomas did not provide objective findings to explain why
appellant could not perform the duties of the clerk position. There was no explanation as to how
the work restrictions were due to the accepted work-related condition. Furthermore, there was no
explanation of how appellant’s functional ability due to her accepted conditions had changed such
that she could not perform the duties of the clerk position. The Board also notes that fibromyalgia
was not accepted as a work-related condition.13 The opinion of Dr. Thomas was that appellant did
not develop the condition of fibromyalgia, and thus her opinion does not support a finding that the
acceptance of the claim should be expanded to include this condition.14
Dr. Callahan examined appellant and provided findings and his opinion regarding
appellant’s physical condition and ability to perform her employment duties. He examined
appellant’s upper extremities and found well-healed surgical scars on the posteromedial and lateral
aspect of her right upper elbow. Dr. Callahan explained that appellant continued to be somewhat
physically active, and noted that despite having a full year off work while she was caring for her
ill mother, there was no significant benefit. He reviewed the diagnostic testing which was
“markedly variable” and also found marked tenderness to palpation. Dr. Callahan indicated that
appellant worked four hours per day and continued to do repetitive work activities. Regarding
fibromyalgia, he determined that there was nothing in the medical records from any of her
physicians to document trigger-point testing and opined that it was questionable that appellant met
the diagnostic criteria for fibromyalgia. Regarding a worsening of her condition, Dr. Callahan
opined that there were “no objective findings to consistently document any worsening of her
13
Where a claimant alleges that a condition not accepted or approved by OWCP was due to his or her employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury
through the submission of rationalized medical evidence. See M.B., Docket No. 17-1773 (issued May 24, 2018);
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
14

See M.B., id.

8

diagnosis since June 2009....” He noted that while she complained subjectively of worsening
symptoms, these were not documented by any imaging studies or electrodiagnostic studies. “They
did not provide any obvious evidence for progression.” Dr. Callahan opined that he “would have
expected significant improvement of her condition during that year away from her work-related
activities. That also makes me skeptical of her prognosis and a likelihood of recovering fully from
her accepted injuries.” Dr. Callahan completed the work restriction form provided to him and
opined that appellant was capable of working an eight-hour day if the restrictions for her upper
extremity and whole person limitations could be observed. He advised intermittent rest periods
every two hours as well as the lunch period during her eight-hour workday. The Board finds that
Dr. Callahan is entitled to the weight of the evidence as it provides a well-rationalized opinion
explaining that there had been no material change in the nature and extent of appellant’s injuryrelated condition. Appellant has not established a material change in the nature and extent of her
injury-related condition, that the original determination was in fact erroneous, or that she was
vocationally rehabilitated. Thus, she has not met her burden of proof to establish that the
February 8, 2010 LWEC determination should be modified.15
On appeal counsel for appellant, argues that OWCP committed error when it failed to
accept fibromyalgia. However, for the reasons noted above, the Board found that she did not meet
her burden of proof to support that either the original LWEC determination was erroneous or that
there had been a material change in the nature and extent of her injury-related conditions.
Appellant may request modification of an 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 establish that
modification of the LWEC determination was warranted.

15

See supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2018
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spooner, WI, Employer
__________________________________________

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

Docket No. 10-885
Issued: December 23, 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 February 17, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 14, 2010 which denied appellant’s claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
neck or low back injury on May 15, 2008, as alleged.
FACTUAL HISTORY
On May 22, 2008 appellant, then a 55-year-old mail processor, filed a traumatic injury
claim, alleging that he sustained an injury to his back, neck and shoulder on May 15, 2008 after
lifting a bag of parcels. He did not stop work.

By letter dated June 3, 2008, the Office requested additional factual and medical
information from appellant as the initial information submitted was insufficient to establish his
claimed injury.
Appellant came under the treatment of Dr. Bruce E. Bray, a Board-certified family
practitioner. In a June 6, 2008 attending physician’s report, Dr. Bray diagnosed myalgia and
myositis and noted with a checkmark “yes” that appellant’s condition was caused or aggravated
by a work injury. He reported that on May 15, 2008 appellant was lifting a bag and felt a sudden
sharp pain in the left and right arms. Dr. Bray recommended that appellant return to work with
restrictions. In an April 21, 2008 report, he diagnosed unspecified myalgia and myositis and
advised that appellant could return to work with restrictions.
In a July 17, 2008 decision, the Office denied appellant’s claim, finding that the medical
evidence was insufficient to establish that his claimed conditions were caused by the
employment incident.
On August 10, 2008 appellant requested a review of the written record. He submitted
reports from Dr. Bray dated December 29, 2006 to June 6, 2008 previously of record. On
July 25, 2008 Dr. Bray treated appellant for a longstanding history of myalgia pain and radial
head bursitis bilaterally. He diagnosed chronic neck, shoulder myofascial-type pain, recurrent
flares and bilateral radial head bursitis. On August 5, 2008 appellant was treated for arm,
shoulder and neck pain by Dr. Brian K. Konowalchuk, Board-certified in occupational medicine.
Appellant reported sustaining overuse injuries at work to his neck, shoulder and right hip dating
back to 1995 and a recent injury on May 15, 2008 when he was lifting a 40-pound bag of parcels
over his head. Dr. Konowalchuk diagnosed acute myofascial strain resulting from overhead
lifting. He released appellant to work with restrictions.
In a November 17, 2008 decision, an Office hearing representative found that the medical
evidence was not sufficient to establish that appellant’s claimed conditions were caused by the
May 15, 2008 work incident.
On November 16, 2009 appellant requested reconsideration. On April 21, 2009
Dr. Konowalchuk saw appellant for a two-month follow-up after a rotator cuff repair. Appellant
reported that on the date of injury he was lifting a 40- to 50-pound parcel above his head and
injured his shoulder. Dr. Konowalchuk noted that it was impossible to say whether appellant had
preexisting rotator cuff thinning or subacromial bursitis due to the natural history of the disease.
He advised that repetitive lifting with an outstretched arm and overhead activity could exacerbate
or aggravate shoulder symptoms. Dr. Konowalchuk advised that the mechanism of injury that
occurred in appellant’s case could be considered a direct aggravation if a preexisting condition
existed. He noted that it was reasonable to conclude that appellant’s daily activity led to an
aggravation of the subacromial bursitis and potential rotator cuff thinning. On May 26, 2009
Dr. Konowalchuk saw appellant for follow-up of his right shoulder surgery and for chronic right
thoracolumbar back pain. Appellant reported returning to work and experiencing a flare-up of
back pain due to prolonged standing at work. Dr. Konowalchuk diagnosed right rotator cuff tear,
surgically repaired and chronic thoracolumbar junction back pain. On June 12, 2009 he treated
appellant for back pain and diagnosed mild degenerative changes in the lumbar spine.

2

On May 21, 2009 appellant was treated by Dr. Troy D. Erickson, an osteopath, who
diagnosed status post right shoulder arthroscopy with extensive debridement, arthroscopic
subacromial decompression, distal clavicle excision and open rotator cuff repair. Dr. Erickson
returned appellant to work with restrictions. A magnetic resonance imaging (MRI) scan of the
lumbar spine revealed multilevel degenerative changes. Appellant also submitted evidence from
a physician’s assistant.
On October 31, 2009 Dr. Konowalchuk treated appellant for recurrent right upper lumbar
spine pain and diagnosed myofascial discomfort. He opined that appellant developed work
related myofascial low back pain related to workplace posture and activity. Dr. Konowalchuk
stated that he had previously addressed causal relationship and advised that appellant related that
he sustained a right shoulder injury after lifting a bag of parcels weighing 40 to 50 pounds onto a
cart. Appellant believed that this lifting episode and repetitive use of his shoulders was
instrumental to his right shoulder injury and subsequent surgery. Dr. Konowalchuk opined that
this was a reasonable assessment of appellant’s condition. He noted that “occupational disease”
with repetitive overhead and outstretched work while carrying weight “could lead one to a
position of an eventual rotator cuff tear.” Dr. Konowalchuk advised that he was not aware of
any activities outside of appellant’s workplace that would have contributed to his shoulder
condition. He advised that, on a more likely than not basis, appellant’s description of injury
contributed to his need for right shoulder rotator cuff repair.
In a decision dated January 14, 2010, the Office denied modification of the November 17,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained 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. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

3

established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed 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.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that he sustained a back, neck and right shoulder injury while lifting a
mail parcel at work on May 15, 2008. The Board notes that the Office accepted that the May 15,
2008 incident occurred as alleged. The Board finds, however, that the medical evidence is
insufficient to establish that appellant sustained a back, neck or right shoulder injury causally
related to the May 15, 2008 work incident. Appellant did not submit sufficient medical evidence
addressing how the May 15, 2008 work incident caused or aggravated his claimed conditions.
In a June 6, 2008 attending physician’s report, Dr. Bray diagnosed myalgia and myositis.
He checked a box “yes” that appellant’s condition was caused or aggravated by appellant’s work
indicating that on May 15, 2008 appellant was lifting a bag and felt a sudden sharp pain in the
left and right arms. The Board has held that an opinion on causal relationship which consists
only of a physician checking “yes” to a medical form report question on whether the claimant’s
condition was related to the history given is of diminished probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.7 In a July 25, 2008 report, Dr. Bray treated appellant for a longstanding history of
myalgia pain, radial head bursitis bilaterally and diagnosed chronic neck, shoulder myofascialtype pain, recurrent flares and bilateral radial head bursitis. Appellant reported exacerbating his
symptomology at work. This report is insufficient to establish appellant’s claim as Dr. Bray did
not provide a full history of appellant’s preexisting condition or provide a rationalized opinion
addressing how the May 15, 2008 work incident caused or contributed to the diagnosed

4

Id.

5

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

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

Deborah L. Beatty, 54 ECAB 340 (2003); Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

4

conditions.8 Appellant also submitted treatment notes from Dr. Bray that predated the May 15,
2008 incident and is not relevant to whether it caused injury.
In an August 5, 2008 report, Dr. Konowalchuk diagnosed acute myofascial strain
resulting from overhead lifting and arm, shoulder and neck pain. Appellant reported a history of
working for the employing establishment and sustaining overuse injuries to his neck, shoulder
and right hip dating back to 1995 and a recent injury on May 15, 2008 when he was lifting a bag
of parcels over his head. However, Dr. Konowalchuk repeated the occupational history as
reported by appellant without providing his own opinion regarding whether appellant’s condition
was caused or contributed to by the accepted incident at work. Dr. Konowalchuk failed to
provide a rationalized opinion explaining why any diagnosed conditions were caused or
aggravated by the May 15, 2008 work incident.9
On April 21, 2009 Dr. Konowalchuk noted that it was impossible to say whether
appellant had preexisting rotator cuff thinning or subacromial bursitis due to the natural history
of the disease. He advised that repetitive lifting with an outstretched arm and overhead activity
could exacerbate or aggravate shoulder symptoms. Dr. Konowalchuk further noted that it was
reasonable to conclude that appellant’s daily activity led to an aggravation of the subacromial
bursitis and potential rotator cuff thinning. While he provided general support for causal
relationship, Dr. Konowalchuk did not adequately explain how the May 15 2008 traumatic
incident caused appellant’s conditions. Rather, he attributed appellant’s conditions to work
factors occurring over a period of time and not to the May 15, 2008 lifting incident. The present
claim is one for a traumatic injury.10 Dr. Konowalchuk also did not provide sufficient medical
reasoning in support of his conclusion on causal relationship.
On October 31, 2009 Dr. Konowalchuk diagnosed myofascial discomfort and opined that
appellant had work related myofascial low back pain causally related to workplace posture and
activity. With regard to his right shoulder condition, appellant reported an episode of lifting a
bag of parcels onto a cart as well as performing other repetitive uses as the cause of his shoulder
injury. Dr. Konowalchuk opined that, on a more likely than not basis, appellant’s description of
injury contributed to his need for right shoulder rotator cuff repair. Although this report also
provides some support for causal relationship, he provided insufficient medical reasoning to
support his opinion. Dr. Konowalchuk did not adequately explain the reasons why the May 15,
2008 lifting incident would cause or aggravate appellant’s back or shoulder conditions. Again,
he generally related the conditions to work factors occurring over a period of time.
Dr. Konowalchuk also advised that he was not aware of any activities outside of appellant’s
workplace that would have contributed to his shoulder condition. The Board has held that the
mere fact that a disease manifests itself during a period of employment does not raise an
8

Supra note 6.

9

Id.

10

Office regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents within a single workday or shift. 20 C.F.R. § 10.5(ee). Office regulations define an
occupational disease or illness as a condition produced by the work environment over a period longer than a single
workday or shift. 20 C.F.R. § 10.5(q).

5

inference that there is a causal relationship between the two. Neither the fact that the disease
became apparent during a period of employment, nor the belief of a claimant that the disease was
caused or aggravated by employment conditions is sufficient to establish causal relation.11 Other
reports from Dr. Konowalchuk either did not address causal relationship or addressed it in the
same manner. Thus, his reports are insufficient to establish that appellant sustained a traumatic
injury due to the May 15, 2008 lifting incident.
The remainder of the medical evidence, including diagnostic test reports and a May 21,
2009 report from Dr. Erickson, is insufficient as it fails to address causal relationship between
appellant’s diagnosed condition and the May 15, 2008 work incident.12
Appellant also submitted evidence from a physician’s assistant. However, this evidence
is of no probative medical value as the Board has held that physician’s assistants are not
competent to render a medical opinion under the Act.13
Consequently, the medical evidence is insufficient to establish that the May 15, 2008
lifting incident caused or aggravated a diagnosed medical condition.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a back, neck and right shoulder injury causally related to his May 15, 2008
employment incident.

11

Beverly A. Spencer, 55 ECAB 501 (2004).

12

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. S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).
13

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under the Act); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).

6

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
LOMA LINDA HEALTHCARE SYSTEM,
Loma Linda, CA, Employer
__________________________________________
Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1140
Issued: June 15, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 22, 2019 appellant, through counsel, filed a timely appeal from a February 15,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of
the Appellate Boards docketed the appeal as No. 19-1140.
On April 6, 2018 appellant, then a 66-year-old dialysis technician/office worker, filed an
occupational disease claim (Form CA-2) alleging an injury to her back that occurred after she tried
to return to work. She asserted that she experienced pain which worsened every day and muscle

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
The Board notes that, although appellant included January 15, 2019 as the date of the decision he was appealing,
this is an apparent typographical error as the only OWCP decision is dated February 15, 2019.

spasms which occurred with increasing frequency. OWCP assigned the claim OWCP File No.
xxxxxx066.
Under a separate claim, OWCP File No. xxxxxx337, OWCP previously accepted that on
February 1, 2011 appellant sustained a back sprain.
By decision dated June 21, 2018, OWCP denied appellant’s occupational disease claim
finding appellant had not established fact of injury. It concluded that “the evidence does not
support that the injury and/or event(s) occurred” and that the “requirements have not been met for
establishing that you sustained an injury as defined by the [Federal Employees’ Compensation
Act].”
On July 20, 2018 appellant requested a telephonic hearing with a representative of
OWCP’s Branch of Hearings and Review and, during a December 4, 2018 hearing, she testified
regarding the nature of her job duties and back symptoms. By decision dated February 15, 2019,
OWCP’s hearing representative affirmed the June 21, 2018 decision as modified to reflect that
appellant established fact of injury, but had not submitted medical evidence sufficient to establish
a diagnosed medical condition causally related to the accepted employment factors.3
The Board has duly considered the matter and finds that the case is not in posture for
decision. Pursuant to 20 C.F.R. § 501.2(c)(1), 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. Decisions on
claims are based on the written record, which may include forms, reports, letters, and other
evidence of various types such as photographs, videotapes or drawings.4 Evidence may not be
incorporated by reference, nor may evidence from another claimant’s case file be used.5 Evidence
contained in another of the claimant’s case files may be used, however, a copy of that evidence
should be placed into the case file being adjudicated.6 All evidence that forms the basis of a
decision must be in that claimant’s case record.7
In adjudicating appellant’s present claim, OWCP File No. xxxxxx066, OWCP specifically
referenced medical evidence obtained from appellant’s earlier claim, OWCP File No. xxxxxx337.
However, it did not combine the case records related to appellant’s back injury claim or incorporate
the referenced evidence into the current case record.8 As noted, all evidence that forms the basis
3

OWCP’s hearing representative referenced medical evidence from OWCP File Nos. xxxxxx066 and xxxxxx337,
and recommended that the two claim files be administratively combined. The Board notes that the two claim files
have not been administratively combined.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
5

Id.

6

Id.

7

Id. See also G.O., Docket No. 18-1483 (issued June 20, 2019).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (cases should be doubled/combined when correct adjudication of the issues depends on frequent
cross-reference between files).

2

of a decision must be included in the case record.9 Because OWCP neglected to include evidence
that helped to form the basis for its determination regarding appellant’s back injury claim in the
current case record, i.e., evidence from OWCP File No. xxxxxx337, the Board is not in a position
to make an informed decision regarding appellant’s entitlement to compensation benefits.10
Therefore, the case shall be remanded to OWCP to consolidate OWCP File Nos. xxxxxx066 and
xxxxxx337. After OWCP has developed the record consistent with the above-noted directive, it
shall issue a de novo decision regarding appellant’s back injury claim.
IT IS HEREBY ORDERED THAT the February 15, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: June 15, 2020
Washington, DC

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

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

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

9

See supra note 7.

10
See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).

3


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

)
)
)
)
)
)
)
)

Appearances:
Sylvia R. Johnson, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0902
Issued: April 16, 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 March 26, 2019 appellant, through her representative, filed a timely appeal from two
October 11, 2018 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 11, 2018 decision, appellant submitted additional evidence to OWCP.
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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of total disability under OWCP File No. xxxxxx148, commencing September 21, 2017, causally
related to her accepted employment injury; and (2) whether appellant has met her burden of proof
to establish a lower back condition under OWCP File No. xxxxxx874 causally related to the
accepted factors of her federal employment.
FACTUAL HISTORY
On May 14, 2007 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging a lumbar injury when she opened the back door of her long-life vehicle
(LLV) while in the performance of duty. On June 27, 2007 OWCP accepted the claim for lumbar
sprain under OWCP File No. xxxxxx148. Appellant stopped work on September 29, 2009 and
OWCP paid her wage-loss compensation for total disability on the periodic rolls.
Appellant sought treatment for her condition following the May 14, 2007 employment
injury and OWCP authorized appropriate medical benefits. Beginning November 28, 2011, she
sought treatment with Dr. Richard Nolan, a Board-certified orthopedic surgeon. By decision dated
December 8, 2011, OWCP reduced appellant’s compensation benefits based on the determination
that she had the wage-earning capacity to work in the constructive position of a receptionist,
Dictionary of Occupational Titles (DOT) #237.367-038.
On June 10, 2013 OWCP referred appellant, along with a statement of accepted facts
(SOAF) to Dr. John Velyvis, a Board-certified orthopedic surgeon, for a second opinion evaluation
regarding the nature and extent of her work-related conditions and disability. In a July 24, 2013
report, Dr. Velyvis found that prognosis for resolution was poor as appellant’s sprain was chronic
and had progressed to discogenic disease, facet hypertrophy, and radiculitis. He explained that
traumatic injury to a weight-bearing joint (the lumbar spine) leads to regional anatomical changes
that progressively worsen over time. In this instance, Dr. Velyvis found that a natural progression
of her conditions was a gradual worsening. On September 23, 2013 he completed a revised report,
which provided a similar discussion of appellant’s conditions.
On September 29, 2014 appellant returned to work in a full-time modified-duty status. She
continued working full-time modified-duty work until April 3, 2017 when she began working
reduced hours because the employing establishment could no longer accommodate her work
restrictions on a full-time basis.
On October 6, 2017 appellant filed a claim for compensation form (Form CA-7) for the
period September 23 through October 5, 2017 under OWCP File No. xxxxxx148. In support of
her claim, she submitted medical reports from Dr. Nolan who diagnosed lumbar sprain,
spondylosis with radiculopathy, and lumbar facet joint syndrome. In a September 20, 2017
medical report, Dr. Nolan diagnosed lumbar radiculopathy resulting in temporary totally disability
from September 20 through November 1, 2017.
The record reflects that on October 30, 2017, under OWCP File No. xxxxxx874, appellant
filed an occupational disease claim (Form CA-2) alleging that she sustained lumbar sprain,
spondylosis with radiculopathy, and lumbar facet joint syndrome due to factors of her federal

2

employment. She reported that she first became aware of her condition on May 14, 2007 and of
its relationship to her federal employment on September 19, 2017.
By letter dated November 1, 2017, appellant’s representative asserted that appellant was
not alleging a recurrence of disability based on a spontaneous worsening of her prior lumbar injury.
Rather, appellant was alleging that her current conditions and disability were related to the original
May 14, 2007 employment injury as well as her federal employment duties.
By decision dated November 16, 2017, OWCP denied appellant’s disability claim
beginning September 20 through November 1, 2017, finding that the medical evidence of record
was insufficient to establish that her current period of temporary total disability was due to a
material worsening of her lumbar sprain without an intervening cause.
On December 13, 2017 appellant, through her representative, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review, and submitted additional
evidence in support of her claim.
During the hearing held on August 15, 2018, appellant testified that her lumbar condition
was ongoing from May 14, 2007. She returned to work on September 29, 2014 in a full-time
modified-duty capacity until April 3, 2017 when she returned to casing-type duties and her hours
were reduced by the employing establishment. It was her return to the casing-type duties on
March 28, 2017, which she alleged aggravated and caused her lumbar conditions. Dr. Nolan
discussed appellant’s lumbar conditions and asserted that the acceptance of the claim should be
expanded due to appellant’s federal employment duties. He further reported that her employment
duties aggravated her initial work injury resulting in her temporary total disability beginning
September 20, 2017.
By decision dated October 11, 2018, OWCP’s hearing representative affirmed the
November 16, 2017 decision denying appellant’s disability claim beginning September 20, 2017
and continuing, finding that the medical evidence of record was insufficient to establish disability
during the claimed period causally related to her accepted May 14, 2007 employment injury. The
hearing representative denied the recurrence claim, finding that the evidence failed to show
appellant suffered a spontaneous material change of her condition without an intervening injury.
The hearing representative noted that appellant, her representative, and Dr. Nolan all opined that
her employment duties from her part-time position caused her back conditions to worsen.
In an accompanying narrative statement, appellant reported a May 14, 2007 date of injury
and described a progressive aggravation of her condition on March 28, 2017. Appellant attributed
her conditions to reaching up, twisting, turning and casing mail, pushing and pulling hampers and
mail carts. She stated that she was given a modified-duty position on September 16, 2014, which
was changed to a regular-duty carrier position at four hours per day on March 28, 2017. Appellant
reported that on August 8, 2017 she began working carrier duties two hours per day because the
employing establishment could not accommodate her restrictions.
By decision dated February 16, 2018, OWCP denied appellant’s claim, finding that she
had not established the alleged employment factors and she had not submitted sufficient medical
evidence to establish that a diagnosed medical condition was causally related to the alleged
employment factors. It also noted that she had an accepted back condition under OWCP File No.
xxxxxx148, with an injury date of May 14, 2007; however, the medical evidence of record did not
3

provide a detailed medical history, which differentiated between the effects of the employmentrelated condition and the current diagnosed conditions.
On March 13, 2018 appellant, through her representative, requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. A hearing was held on August 15,
2018, where appellant testified in support of her claim. At the hearing, appellant testified that she
was initially assigned modified duty and subsequently placed back in her carrier-type duties of
casing mail on March 28, 2017. This consisted of reaching up, twisting, turning while casing mail,
pushing and pulling parcel hampers, pushing and pulling mail carts, pulling mail routes down from
the case, and sorting parcels for split routes, which caused her physical problems. Appellant
reported performing this work for eight hours per day, which was subsequently reduced to two
hours per day because the employing establishment could not accommodate her work restrictions.
She noted that aggravation and issues pertaining to her lumbar conditions began when she returned
back to her casing-type duties on April 3, 2017. Appellant’s representative asserted that she
developed additional conditions resulting in her disability because the employing establishment
had her working outside of her light-duty restrictions. As an example, she noted that appellant
would case mail for two hours per day at the request of her supervisor despite restrictions stating
no more than one hour per day. The record reflects that Dr. Nolan was also supposed to also testify
at the hearing, but the call was not connected.
In support of her claim, appellant submitted exhibits containing both medical and factual
evidence consisting of employing establishment offers of modified assignment (limited duty) as a
city carrier, the most recent of which appellant accepted on March 28, 2017 with an effective start
date of April 1, 2017. The offer of modified assignment was based on work restrictions provided
from a November 25, 2015 duty status report (Form CA-17). Appellant also provided medical
reports from Dr. Nolan dated July 11, 2017 through March 29, 2018, which provided a detailed
medical history, noted the progression of her lumbar conditions and how it related to her federal
employment duties and disability, and provided an opinion on the cause of appellant’s conditions
and expansion of the claim. OWCP also received a January 20, 2018 report from Dr. George
Karalis, a Board-certified psychiatrist, discussing appellant’s psychiatric conditions.
By decision dated October 11, 2018, OWCP’s hearing representative affirmed the
February 17, 2018 decision under File No. xxxxxx874, finding that the medical evidence of record
was insufficient to establish that the diagnosed lumbar conditions were causally related to the
alleged employment factors. The hearing representative reviewed and discussed medical reports
found in File No.xxxxxx148 and determined that the two claims should be combined as they
involved the same part of the body and required frequent cross-referencing.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury of illness, without an intervening injury of new exposure to the work environment that
caused the illness.4 Recurrence of disability also means an inability to work that takes place when
a light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn, or when the physical requirements of such
4

20 C.F.R. § 10.5(x).

4

an assignment are altered so that they exceed his or her established physical limitations.5 Absent
a change or withdrawal of a light-duty assignment, a recurrence of disability following a return to
light duty may be established by showing a change in the nature and extent of the injury-related
condition such that the employee could no longer perform the light-duty assignment.6
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.7 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the recurrent disability is causally related to the employment injury.8
The physician’s opinion must be based on a complete and accurate factual and medical history and
it must be supported by sound medical reasoning.9 Where no such rationale is present, the medical
evidence is of diminished probative value.10
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.11 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow an employee to self-certify their disability and entitlement to
compensation.12
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision with regard to whether appellant
has established her recurrence claim.
The Board notes that the two claims are alleging injury to the same body part resulting in
disability as it relates to appellant’s employment as a city carrier.
The Board notes that both files had a hearing scheduled on August 15, 2018 and both
decisions were issued on October 11, 2018 by an OWCP hearing representative. The record
reflects that Dr. Nolan testified during the hearing for File No. xxxxxx148, but did not testify
during the hearing for File No. xxxxxx874 due to possible technical difficulties.
5

Id.

6

G.L., Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004); see also
Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7
20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
8

H.T., Docket No. 17-0209 (issued February 8, 2019); S.S., 59 ECAB 315, 218-19 (2008).

9

Id.

10
G.L., Docket No. 19-0898 (issued December 5, 2019); E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
11

See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

12

Id., Fereideoon Kharabi, 52 ECAB 291 (2001).

5

In the October 11, 2018 decision issued for File No. xxxxxx148, the hearing representative
did not request that the two claims be administratively combined. Nor did he discuss the medical
evidence and exhibits submitted in support of appellant’s claim which were cataloged in File No.
xxxxxx148.
In the October 11, 2018 decision, issued under File No. xxxxxx874, the hearing
representative requested that the two claims be combined due to cross-referencing of the evidence
in File No. xxxxxx148. However, the decision failed to discuss all of the medical reports submitted
in support of appellant’s claim in the other case file and made no reference to Dr. Nolan’s
testimony provided in File No. xxxxxx148. The Board notes that, while the hearing representative
requested that the claims be combined at the time of the October 11, 2018 decision, neither
decision was issued based on a thorough and complete review of the other case record. While the
record currently before the Board contains the medical records from both files, OWCP’s decisions
on appeal did not address all of the relevant medical and factual evidence upon which the Board
could adjudicate appellant’s present claim.13 Furthermore, it appears that a portion of the medical
evidence submitted in support of appellant’s occupational disease claim was incorrectly placed in
OWCP File No. xxxxxx148, which was not discussed or evaluated in the final decision under File
No. xxxxxx874.14 Although the record before the Board reflects that the claims were subsequently
combined following the October 11, 2018 decision, the Board may not look at evidence that was
not before OWCP at the time of the final decision for the first time on appeal.15 While OWCP’s
hearing representative specifically advised that OWCP should double the instant case with OWCP
File No. xxxxxx148, this was not accomplished at the time the decisions were issued.16
OWCP failed to review these medical reports and make proper findings with respect to the
conditions claimed.17 Thus, it failed to discharge its responsibility to set forth findings of fact and
a clear statement of reasons explaining its disposition so that appellant could understand the basis
for the decision, as well as the precise defect and the evidence needed to overcome the denial of
her claims.18 The Board finds that, for a full and fair adjudication, the claims in File Nos.
xxxxxx874 and xxxxxx148 must be reviewed by OWCP following the doubling of the claims.
This will allow OWCP to consider all relevant allegations and accompanying evidence in issuing
a final decision and developing the claims.19

13

J.D., Docket No. 19-1585 (issued October 9, 2020).

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the
subject matter of the claim, which was properly submitted to OWCP prior to the time of issuance of its final decision
be reviewed and addressed by OWCP. See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55
ECAB 475 (2004); William A. Couch, 41 ECAB 548, 553 (1990).
14

15

A.C., Docket No. 20-0917 (issued January 27, 2021); id.

OWCP’s procedures provide that cases should be combined where correct adjudication depends on crossreferencing between files and where two or more injuries have allegedly occurred to the same part of the body. See
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
16

17

See Y.C., Docket No. 19-1712 (issued November 6, 2020).

18

M.J., Docket No. 18-0605 (issued April 12, 2019); R.M., Docket No. 16-0532 (issued August 9, 2017).

19

L.M., Docket No. 19-1490 (issued January 29, 2020).

6

The Board also notes that the record is unclear pertaining to appellant’s employment duties
and offer of modified assignment to determine the nature and extent of disability beginning
September 21, 2017. The hearing representative never addressed the long-standing work
limitations imposed by Dr. Nolan and accepted by the employing establishment, restrictions
relevant to the determination of appellant’s fitness-for-duty for the claimed period. Appellant
reported that, prior to her work stoppage on September 20, 2017, her supervisor requested that she
case mail for two hours per day, which was outside of her work restrictions and limited-duty
assignment. However, the hearing representative failed to discuss appellant’s work restrictions
and whether temporary total disability was established under the legal standard for a recurrence,
which also defines disability as working outside of a limited-duty assignment that exceeds physical
limitations.20 As OWCP failed to discuss the physical requirements of the position along with any
accompanying documents submitted by appellant, it is unclear from the record what the physical
requirements of city carrier position were and whether the physical requirements of the position
were within appellant’s medical restrictions.21 On remand it should obtain relevant evidence
including a written description of the job duties and physical restrictions of the modified-duty
position appellant performed as of April 3, 2017.22 OWCP should make proper findings of fact
and provide reasons for its decision, pursuant to the standards set forth in section 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.126.13.23
Accordingly, the Board will remand the case to OWCP to determine whether appellant has
established her claim for a recurrence of disability, as well as expansion of the acceptance of her
for additional conditions, as related to either employment injury under either File No. xxxxxx148
or xxxxxx874.24 Following this and such further development as it deems necessary, OWCP shall
issue a de novo decision.25
CONCLUSION
The Board finds that this case is not in posture for decision.

20

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
21

W.R., Docket No. 18-1782 (issued May 29, 2019).

22

Id.; A.J., Docket No. 10-0619 (issued June 29, 2010); 20 C.F.R. § 10.510.

23

C.M., Docket No. 20-0428 (issued August 25, 2020).

24

G.P., Docket No. 19-1258 (issued July 14, 2020).

25

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

7

ORDER
IT IS HEREBY ORDERED THAT the October 11, 2018 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.
Issued: April 16, 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

8