United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Staten Island, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0847
Issued: September 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 11, 2019 appellant filed a timely appeal from a February 4, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 1, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 4, 2014 appellant, then a 59-year-old supervisory facility operations
specialist, filed a traumatic injury claim (Form CA-1) alleging that on August 27, 2014 he injured
his back and both shoulders when he was attacked by a coworker while in the performance of duty.
OWCP accepted the claim for bilateral shoulder impingement and a bilateral rotator cuff tear.
By decision dated February 13, 2017, OWCP granted appellant a schedule award for
10 percent permanent impairment of the left upper extremity and 5 percent permanent impairment
of the right upper extremity. By decision dated June 16, 2017, an OWCP hearing representative
vacated the February 13, 2017 decision and remanded the case for OWCP to apply the provisions
of FECA Bulletin No. 17-06.3
Following further development, by decision dated September 12, 2017, OWCP granted
appellant a schedule award for 10 percent permanent impairment of the left upper extremity and 5
percent permanent impairment of the right upper extremity.4 By decision dated December 7, 2017,
an OWCP hearing representative vacated the September 12, 2017 decision and again remanded
the case for further development in accordance with FECA Bulletin No. 17-06.
On February 1, 2018 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), recommended a second opinion examination to determine the
extent of appellant’s upper extremity impairment.
OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a
second opinion examination.
In an April 10, 2018 impairment evaluation, Dr. Sultan diagnosed post-traumatic bilateral
shoulder derangement superimposed on preexisting bilateral degenerative changes of the shoulders
treated with a bilateral arthroscopy. He measured range of motion (ROM) of the bilateral
shoulders, noting that he had obtained three separate measurements. Dr. Sultan found that
appellant had six percent permanent impairment of each upper extremity due to his rotator cuff
tear according to Table 15-5 on page 403 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He indicated that he had
based his ROM measurements on the protocols of the fifth edition of the A.M.A., Guides.

3

FECA Bulletin No. 17-06 (issued May 8, 2017).

4

OWCP initially issued the decision on September 6, 2017, but reissued the decision on September 12, 2017 as it
had failed to include the relevant medical evidence with the decision.
5

A.M.A., Guides (6th ed. 2009).

2

On May 18, 2018 Dr. Garelick concurred with Dr. Sultan’s finding of six percent
permanent impairment of each upper extremity using the diagnosis-based impairment method. He
found, however, that appellant had nine percent permanent impairment of each upper extremity
due to loss of motion pursuant to Table 15-34 on page 475 of the A.M.A., Guides. Dr. Garelick
noted that appellant had previously received a schedule award for 10 percent left upper extremity
and 5 percent right upper extremity for his shoulder condition, and thus was entitled to an
additional award for 4 percent permanent impairment of the right upper extremity.
By decision dated June 1, 2018, OWCP granted appellant a schedule award for an
additional four percent permanent impairment of the right upper extremity. The period of the
award ran for 12.48 weeks from April 10 to July 6, 2018.
In a letter postmarked July 11, 2018, appellant requested a telephonic hearing before an
OWCP hearing representative.
By decision dated August 14, 2018, OWCP denied appellant’s request for a telephonic
hearing as untimely under 5 U.S.C. § 8124(b).6
On October 1, 2018 appellant requested reconsideration. In a separate letter of even date,
he again requested a telephonic hearing before an OWCP hearing representative. In an
accompanying statement, he explained that he had recorded the examination with Dr. Sultan and
obtained a professional transcription which established that Dr. Sultan had failed to obtain three
ROM measurements of the shoulder. Appellant also contended that Dr. Sultan indicated that he
had used the fifth edition of the A.M.A., Guides. He asserted that Dr. Sultan had not included all
of his physical complaints in his report, citing the audio recording. Appellant noted that he did not
treat patients. He submitted copies of Dr. Sultan’s examination and Dr. Garelick’s May 18, 2018
report.
On October 26, 2018 OWCP informed appellant that it had previously denied his request
for a telephonic hearing as untimely and advised him to follow the appeal rights accompanying
the June 1, 2018 decision.
By decision dated February 4, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
6

OWCP initially denied appellant’s request for a telephonic hearing on August 3, 2018; however, it issued a
corrected copy of its decision on August 14, 2018.
7

5 U.S.C. § 8128(a).

3

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.8
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.9 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.10 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
By decision dated June 1, 2018, OWCP granted appellant a schedule award for an
additional four percent permanent impairment of the right upper extremity. On October 1, 2018
appellant timely requested reconsideration. Initially, the Board finds that OWCP properly
considered his correspondence as a request for reconsideration and not as claim for an increased
schedule award.12 The underlying issue on reconsideration is whether the medical evidence
demonstrates a greater permanent impairment. Thus, the Board must determine whether appellant
presented sufficient evidence or argument regarding the extent of permanent impairment to
warrant a merit review pursuant to 5 U.S.C. § 8128(a).13
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. He contended that Dr. Sultan failed to obtain three
ROM measurements as indicated in his report, noting that he had recorded the examination.
Appellant further asserted that Dr. Sultan had referenced the fifth edition of the A.M.A., Guides
in reaching his impairment rating. While Dr. Sultan indicated that he had used the fifth edition of
the A.M.A., Guides in measuring ROM, he further indicated that he had obtained three separate
ROM measurements. Dr. Garelick, the DMA, reviewed the measurements obtained by Dr. Sultan
and applied the sixth edition of the A.M.A., Guides in rating appellant’s impairment using the

8

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

9
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

11

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

12

B.W., Docket No. 18-1415 (issued March 8, 2019).

13

S.W., Docket No. 18-1261 (issued February 22, 2019).

4

ROM method. Thus, the Board finds that appellant has not advanced a relevant legal argument
not previously considered by OWCP.14
Appellant further asserted that Dr. Sultan failed to include all his physical complaints in
his report. His argument, however, is not relevant to the underlying issue of his entitlement to an
additional schedule award, which is a medical issue that must be addressed by relevant and
pertinent new medical evidence.15 Consequently, appellant is not entitled to a review of the merits
of his claim based on the first and second above-noted requirements under section 10.606(b)(3).16
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered relative to the issue of whether he is entitled to a greater
schedule award. Appellant submitted copies of the reports of Dr. Sultan and Dr. Garelick, but this
duplicated evidence already of record and thus failed to constitute relevant and pertinent new
evidence.17 As he had not provided relevant and pertinent new evidence, he is not entitled to a
merit review based on the third requirement under section 10.606(b)(3).18
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.19
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

14

P.W., Docket No. 17-1911 (issued June 6, 2018).

15

T.W., Docket No. 18-1088 (issued February 14, 2019).

16

C.B., Docket No. 18-1108 (issued January 22, 2019).

17

See supra note 15.

18

R.L., Docket No. 18-0175 (issued September 5, 2018).

19

See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bremerton, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Charles P. Smith, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1777
Issued: February 10, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant, through his representative, filed a timely appeal from July 10
and September 10, 2007 and March 6 and April 16, 2008 merit decisions of the Office of
Workers’ Compensation Programs denying his claim for disability compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was partially disabled beginning
November 26, 2006 causally related to his accepted employment injury.
FACTUAL HISTORY
On May 26, 2006 appellant, then a 57-year-old mail processing/distribution clerk, filed
an occupational disease claim alleging that he sustained left and right shoulder strain and arthritis
causally related to factors of his federal employment. He worked modified duty beginning

September 17, 2005 due to a prior employment injury, assigned Office file number xxxxxx012.1
The Office accepted the claim for a bilateral suprascapularis sprain of the shoulder and upper
arm and bilateral/lateral epicondylitis. Appellant did not stop work.
In a report dated November 22, 2006, Dr. Frank E. Haydu, Board-certified in emergency
medicine, diagnosed bilateral rotator cuff tendinopathy, lumbar strain, left hip strain, bilateral
knee strain and lateral epicondylitis. He noted that appellant was considering retiring on
disability. In a November 22, 2006 duty status report, Dr. Haydu found that appellant could
work four hours per day with restrictions.
On December 13, 2006 appellant filed a claim for compensation for intermittent
disability from November 25 to December 8, 2006. A time analysis form indicated that he
worked four hours per day from November 25 to December 8, 2006 and claimed compensation
for four hours per day. Appellant continued to submit claims for compensation for four hours
per day subsequent to December 8, 2006.
On December 14, 2006 the Office requested that appellant describe his work restrictions
and provide a detailed medical report explaining why he was unable to work full time due to his
employment injury. In a December 20, 2006 response, appellant explained that he was claiming
partial disability in accordance with the restrictions provided in the November 22, 2006 duty
status report.
On December 18, 2006 Dr. Haydu stated:
“[Appellant] has had ongoing problems with his shoulders, his back, his knees,
his wrists and his elbows. He has been working an eight-hour shift. [Appellant]
is having increasing difficulty functioning at that level due to progressively
worsening problems with his multiple joints. So at this point, we have taken him
down to half a day … to allow him to adjust to the workload a little bit more
effectively. [Appellant] does not seem to be able to tolerate a full eight-hour
day.”
On January 10, 2007 Dr. Haydu diagnosed bilateral rotator cuff tendinitis and shoulder
strains. He noted that appellant had work restrictions of four hours per day with no lifting over
five pounds and minimal overhead reaching. On February 14, 2007 Dr. Haydu diagnosed
bilateral rotator cuff strains and degenerative shoulder changes, bilateral knee strain, left hip
strain and degenerative disc disease. He related that appellant could not tolerate working full
time.
The Office referred appellant to Dr. Richard Hall, a Board-certified orthopedic surgeon,
for a second opinion examination. On February 12, 2007 Dr. Hall diagnosed left elbow pain
with lateral epicondylitis and angiofibroblastic dysplasia occurring with work exposure but selflimiting, right shoulder sprain, preexisting left shoulder rotator cuff impingement with
degenerative changes, right shoulder strain/sprain and rotator cuff impingement and degenerative
1

The Office accepted that appellant sustained a lumbar and sacral strain due to an injury on September 17, 2005
under file number xxxxxx012.

2

disc disease of the spine. He found that appellant continued to have objective findings of his
bilateral shoulder strains and epicondylitis. Dr. Hall opined that appellant was not totally or
partially disabled from his limited-duty employment due to his accepted conditions and could,
with work hardening, resume his regular work duties.
On April 25, 2007 the Office requested that Dr. Haydu provide comments on Dr. Hall’s
report. In an April 30, 2007 response, Dr. Haydu stated that the majority of appellant’s problem
was “due to ongoing degenerative osteoarthritis exacerbated by his work” and that it was
“excessively optimistic” to find that he could return to his usual work with no restrictions. He
recommended pain management treatments and possible early retirement.
On May 16, 2007 the Office determined that a conflict existed between Dr. Hall and
Dr. Haydu regarding appellant’s work restrictions.2 By letter dated May 29, 2007, the Office
referred him, together with a statement of accepted facts, to Dr. Donald D. Hubbard, a Boardcertified orthopedic surgeon, for an impartial medical examination.3
In a report dated June 12, 2007, Dr. Hubbard reviewed the history of injury and the
medical evidence of record.4 He discussed the statement of accepted facts which described
appellant’s work restrictions beginning January 2006. On examination Dr. Hubbard found
shoulder pain with motion and significant crepitus in the bilateral subacroial and possibly the
glenohumeral joints with probable minimally positive impingement signs. He diagnosed
bilateral shoulder strains by history with objective resolution and bilateral/lateral epicondylitis by
history with objective resolution on physical examination.5 Dr. Hubbard reviewed the reports of
a magnetic resonance imaging (MRI) scan study of the right shoulder finding a labral tear and
tendinisis of the rotator cuff and an MRI scan study of the left shoulder showing no rotator cuff
tear, a slight subdeltoid bursitis and a degenerative tear of the inferior labrum. He diagnosed

2

By letter dated May 16, 2007, received by the Office on May 29, 2007, appellant authorized a representative to
assist him with his claim. On May 31, 2007 the Office requested that the representative submit written authorization
from appellant. In a June 5, 2007 response, appellant authorized his attorney to represent him and noted that he had
signed an authorization for his representative in his previous letter. He requested that his appointment with
Dr. Hubbard be postponed until his representative had the opportunity to review the case record.
3

The Office requested that Dr. Hubbard address whether appellant had residuals of his accepted bilateral shoulder
strain and bilateral/lateral epicondylitis under file number xxxxxx354 and lumbar and sacral sprain under file
number xxxxxx012.
4

By letter dated May 16, 2007, received by the Office on May 29, 2007, appellant authorized a representative to
assist him with his claim. The attorney requested a copy of the case record. On May 31, 2007 the Office requested
that the representative submit written authorization from appellant. In a June 5, 2007 response, appellant authorized
his attorney to represent him and noted that he had signed an authorization for his representative in his previous
letter. He requested that his appointment with Dr. Hubbard be postponed until his representative had the opportunity
to review the case record.
5

Dr. Hubbard also found that appellant had no residuals of his lumbar strain under file number xxxxxx012.

3

bilateral acromioclavicular joint degeneration, bilateral degenerative labral tears, bilateral
tendinisis of the rotator cuff structures and possible bilateral subacromial bursitis. Dr. Hubbard
stated:
“No objective findings on physical examination indicate that the above workrelated conditions are still active and causing symptoms as a result of his work
activities. No additional medical conditions due to the claimant’s repetitive work
activities were noted and essentially all findings by diagnostic test and/or physical
examination are commonly noted in humans experiencing the aging process.
“The duty status reports beginning 2005 have been reviewed. Based on objective
findings of physical examination and diagnostic tests, [he] would be capable of
working greater than four hours per day. It seems most probable that the inability
of [appellant] to tolerate nonsteroidal anti-inflammatory drugs and other drugs to
control his pain is due to abnormal liver function tests and is a major reason, but
not the primary reason, why he is not capable of current work activities without
restrictions….”
***
“By history, the current accepted diagnosed shoulder and elbow conditions were
cause by repetitive work activities. Uncharacteristic, however, is by history the
degree of abnormality identified has not been controlled effectively by medical
treatment and management including reduced work-related activity physical
demands. Thus by history the upper extremity conditions have not subjectively
resolved.”
***
“By physical examination and diagnostic tests, [appellant] does not suffer from
any residuals of the accepted work-related/injury conditions. The enclosed work
capacity evaluation has been completed noting physical restrictions, temporary or
permanent.
The permanent restrictions are due primarily to unrelated
degenerative changes of the bilateral acromioclavicular and glenohumeral joins
identified by MRI [scan] imaging.”
Dr. Hubbard opined that appellant could perform his usual employment without
restrictions and that he was able “from a physical viewpoint” of working in his limited-duty
position for eight hours per day from November 2006 onward.
By decision dated July 10, 2007, the Office denied appellant’s claim for partial disability
beginning November 25, 2006 on the grounds that the weight of the evidence established that it
was not causally related to his accepted work injury.
On July 24, 2007 appellant requested an oral hearing. He also submitted a claim for
compensation (Form CA-7) requesting compensation for wage loss from July 7 to 20, 2007.
Appellant claimed four hours per day of wage loss. By letter dated July 24, 2007, the Office
requested medical evidence showing that he was partially disabled beginning July 7, 2007 due to
4

his bilateral shoulder tendinitis. Appellant submitted statements from coworkers discussing his
decreased ability to perform his work duties. In a report dated July 31, 2007, Dr. Haydu
reviewed the findings of Dr. Hubbard and diagnosed a rotator cuff injury. He stated, “I will
restrict him with regard to lifting and reaching for the next month, but not with regards to
specific hours of total hours of work as that would be difficult to justify based on just his
shoulder claim alone….”
By decision dated September 10, 2007, the Office denied appellant’s claim for
compensation for partial disability from July 7, 2007 onwards. It determined that Dr. Hubbard’s
opinion established that he could work eight hours per day.
On September 14, 2007 appellant requested an oral hearing on the Office’s
September 10, 2007 decision.6 On November 28, 2007 the Office provided appellant with an
oral hearing regarding the July 10, 2007 decision. At the hearing, appellant’s attorney noted that
Dr. Hall referenced a rotator cuff injury and argued that the Office should have developed that
issue to determine if he sustained a new injury. The attorney also questioned why the Office
selected an impartial medical examiner outside of his zip code.
In a report dated November 29, 2007, Dr. Haydu opined that appellant’s degenerative
arthritis, shoulder injuries and back condition were related to his repetitive work activities. On
December 12, 2007 he related that he required surgery due to his accepted employment-related
shoulder injury. In a December 18, 2007 duty status report, he found that appellant could work
with restrictions.
On January 30, 2008 the Office held a hearing on the September 10, 2007 decision.
By decision dated March 6, 2008, an Office hearing representative affirmed the July 10,
2007 decision, finding that appellant had not established that he was partially disabled beginning
November 25, 2006. By decision dated April 16, 2008, an Office hearing representative
affirmed the September 10, 2007 decision. She found that appellant had not established partial
disability due to his employment injury beginning July 7, 2007. Both hearing representatives
relied upon the opinion of Dr. Hubbard in determining that appellant failed to establish that he
was partially disabled from his modified duty due to his accepted work injury.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act7 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.8 Whether a particular injury caused an employee disability for employment

6

On September 27, 2007 Dr. Haydu diagnosed chronic shoulder pain and rotator cuff tendinitis and, in an
accompanying duty status report, opined that appellant could work with restrictions. He completed similar form
reports on September 30 and October 30, 2007.
7

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

8

Paul E. Thams, 56 ECAB 503 (2005).

5

is a medical issue which must be resolved by competent medical evidence.9 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.10 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.13
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14
ANALYSIS
The Office accepted that appellant sustained a shoulder and upper arm sprain and
bilateral/lateral epicondylitis. Appellant worked full time with restrictions until November 25,
2006, when he began working four hours per day. The Office separately adjudicated appellant’s
claim for compensation for four hours per day from November 25, 2006 onward and his claim
for four hours per day from July 7, 2007 onwards. The pertinent issue, however, is whether
appellant sustained any periods of partial disability due to his work injury such that he could
work only four hours per day on or after November 25, 2006.
Dr. Haydu, appellant’s attending physician, opined that he could work four hours per day
with restrictions. Dr. Hall, who provided a second opinion examination, found that appellant
was not partially disabled for his limited-duty employment. The Office properly determined that
9

Id.

10

Id.

11

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

5 U.S.C. § 8123(a).

13

20 C.F.R. § 10.321.

14

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

6

a conflict existed between Dr. Haydu and Dr. Hall and referred appellant to Dr. Hubbard, a
Board-certified orthopedic surgeon, for an impartial medical examination.
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15
The Board finds that the July 12, 2007 opinion of Dr. Hubbard, a Board-certified
orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized and based on a
proper factual and medical history. He reviewed the medical evidence of record, including the
results of diagnostic studies and listed detailed findings on examination. Dr. Hubbard diagnosed
bilateral acromioclavicular joint degeneration, bilateral degenerative labral tears, bilateral
tendinisis of the rotator cuff structures and possible bilateral subacromial bursitis, all of which he
attributed to the normal aging process. Dr. Hubbard opined that the accepted conditions of
bilateral shoulder strain and bilateral epicondylitis had resolved. He provided rationale for his
opinion by noting that the findings on physical examination and the results of the objective
studies supported his conclusion. Dr. Hubbard asserted that appellant was physically capable of
performing his limited-duty position for eight hours per day from November 2006 onward. As
his report is detailed, well rationalized and based on a proper factual background, his opinion is
entitled to the special weight accorded an impartial medical examiner.
The remaining evidence submitted by appellant subsequent to Dr. Hubbard’s report is
insufficient to meet his burden of proof to show that he was partially disabled from employment.
In a report dated July 31, 2007, Dr. Haydu reviewed Dr. Hubbard’s findings. He provided work
restrictions but no restrictions of hours as it “would be difficult to justify based on just his
shoulder claim alone.” On November 29, 2007 Dr. Haydu attributed appellant’s degenerative
arthritis, shoulder injuries and back condition to repetitive work. He did not, however, address
disability from employment. In duty status reports dated September to December 2007,
Dr. Haydu listed work restrictions but did not find that appellant could work in a part-time
capacity. Consequently, his reports are insufficient to show partial disability from employment.
Further, as Dr. Haydu was on one side of the conflict resolved by Dr. Hubbard, his additional
reports are insufficient to overcome the special weight accorded Dr. Hubbard’s opinion or to
create a new conflict.16
On appeal, appellant’s attorney contended that Dr. Hall and Dr. Hubbard referenced
additional conditions that may be employment related. He stated that Dr. Hall mentioned a
rotator cuff injury and Dr. Hubbard alluded to a possible pain disorder. The attorney contended
that the Office should further develop these issues and determine whether they were employment
related. However, where appellant claims that a condition not accepted or approved by the
Office was due to his employment injury, he bears the burden of proof to establish that the

15

Id.

16

Alice J. Tysinger, 51 ECAB 638 (2000).

7

condition is causally related to the employment injury through the submission of rationalized
medical evidence.17
Appellant’s attorney further contends that the second opinion and referee examination
were outside the local commuting area. The Board notes, however, that the attorney did not
make any objection to the selection of the impartial medical examiner prior to the receipt of his
report. Further, the attorney has not submitted any evidence to support that the Office failed to
comply with its rotational procedures. Accordingly, appellant has not established that
Dr. Hubbard was improperly selected as the impartial medical examiner.18
Appellant’s attorney also noted that Dr. Hubbard did not find that appellant could work
his usual employment duties or find that his work injury caused no disability. Dr. Hubbard,
however, specifically found that he had no residuals of his accepted conditions and that he could
work in his limited-duty position full time from November 2006 and continuing.
CONCLUSION
The Board finds that appellant has not established that he was partially disabled
beginning November 26, 2006 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 16 and March 6, 2008 and September 10 and July 10, 2007
are affirmed.
Issued: February 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
17

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

18

See L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Bellmawr, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-2251
Issued: July 14, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant, through counsel, filed a timely appeal from October 7,
2008 and June 1, 2009 decisions of the Office of Workers’ Compensation Programs granting him
a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether appellant has more than six percent permanent impairment of the
right lower extremity for which he received a schedule award.
On appeal, appellant contends that the opinion of the impartial medical examiner is
insufficiently detailed or rationalized to represent the special weight of the medical evidence.
FACTUAL HISTORY
On January 27, 2006 appellant, then a 53-year-old automotive technician, filed a
traumatic injury claim alleging that on December 22, 2005 he injured his right hip while stocking

tires onto a tire dolly. The Office accepted the claim for sciatica and a recurrence of disability
beginning March 31, 2006.1 On April 6, 2007 appellant filed a claim for a schedule award.
In a November 7, 2007 report, Dr. Mitchell K. Freedman, an attending Board-certified
physiatrist with a subspecialty in pain medicine, noted the date of maximum medical
improvement as November 6, 2006. He identified the lumbar nerve root and noted right knee
pain. Dr. Freedman found that there was Grade 4/5 strength loss in the right quadriceps.
Appellant submitted a December 6, 2006 report from Dr. Nicholas P. Diamond, an
osteopath, who diagnosed L5-S1 herniated nucleus pulposus, degenerative L4-5, L5-S1 disc
disease and right lumbosacral radiculitis. Dr. Diamond stated that, under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) fifth edition,
appellant had 39 percent impairment of the right lower extremity. He found 19 percent
impairment for Grade 4/5 motor strength deficit of the right quadriceps (sciatic nerve),2
16 percent impairment for right hip abductor (superior gluteal nerve) motor strength deficit,3
2 percent impairment for right hip adductor (obturator nerve) motor strength deficit, a 4 percent
impairment for Grade 2 sensory deficit of the right L3 nerve root4 and a 4 percent impairment for
Grade 2 sensory deficit of the right L4 nerve root.5
In a report dated December 17, 2007, Dr. Harry J. Magilato, an Office medical adviser,
reviewed the reports by Drs. Diamond and Freedman. He determined that appellant had
15 percent lower extremity impairment. Dr. Magilato relied upon Dr. Freedman’s findings as his
report was more current than Dr. Diamond’s. Using Figure 17-8, page 532, he concluded that
appellant had 12 percent impairment based on a Grade 4/5 strength loss of the right quadriceps
due to the L4 radiculopathy and 3 percent impairment for right knee pain as a result of nerve pain
using Figure 18-1, page 574.
On August 7, 2008 the Office referred appellant to Dr. Gregory S. Maslow, a Boardcertified orthopedic surgeon, to resolve a conflict in the medical opinion evidence between
Dr. Diamond, an examining osteopath, who concluded that appellant had a 39 percent right
lower extremity impairment and Dr. Magilato, an Office medical adviser, who concluded that
appellant had 15 percent right lower extremity impairment.
In a February 19, 2008 report, Dr. Maslow, reviewed the medical evidence, a statement
of accepted facts and set forth findings on physical examination. He diagnosed lumbar sprain
with lumbar radiculitis and concluded that appellant had a six percent permanent impairment of
the right lower extremity. On physical examination, the lumbar spine revealed mild tenderness,
1

By decision dated March 9, 2008, the Office issued a loss of wage-earning capacity decision. It found that
appellant had no wage loss as a result of his modified job of lead automotive mechanic. The Office found that the
position represented his wage-earning capacity and reduced his wage-loss compensation to zero.
2

A.M.A., Guides, Table 15-16, page 424 and Table 17-37, page 552.

3

Id.

4

Id. at Table 15-15 and 15-18, page 424.

5

Id.

2

no sacroiliac notch tenderness, no sacroiliac joint tenderness, normal bilateral hip range of
motion, full knee range of motion and full lumbar range of motion. Dr. Maslow reported a
diminished right knee reflex on neurological examination. There was also some decreased
sensation to light touch of a very minimal sort in the anterior and lateral thigh. Dr. Maslow
reported that lower extremity knee strength testing was normal with no measurable atrophy.
Under discussion, he noted that, while other physicians had found atrophy and weakness, that he
did not. Dr. Maslow opined that appellant had an absent knee jerk and anterior lateral thigh
sensory abnormality. Using the fifth edition of the A.M.A., Guides, he found a three percent
impairment of the right lower extremity for sensory deficit of the L3 nerve root and three percent
right lower extremity impairment for sensory deficit of the L4 nerve root, resulting in a total six
percent right lower extremity impairment. Dr. Maslow noted that he did not understand
Dr. Diamond’s four percent sensory impairment or Dr. Magilato’s Grade 4/5 strength loss of the
quadriceps.
On April 5, 2008 Dr. Arnold T. Berman, an Office medical adviser, reviewed
Dr. Maslow’s report and recommended acceptance of the impairment.
On June 12, 2008 the Office requested that Dr. Maslow provide clarification on his
statement regarding Dr. Diamond’s strength deficit findings. It noted that he did not indicate
specific strength measurements or how strength was measured.
In a July 3, 2008 addendum, Dr. Maslow stated that he performed manual strength testing
when evaluating strength. He explained that in performing the test he compared appellant’s
strength against his, comparing side to side and adjusted for age. In testing for sensation,
Dr. Maslow stated that he measured by light touch, which included either a wisp of cotton or
finger on the skin and querying whether the sensation felt normal to the patient and whether there
was identical sensation comparing left to right.
On July 20, 2008 Dr. Andrew A. Merola, an Office medical adviser, reviewed
Dr. Maslow’s July 3, 2008 report. He concurred with Dr. Maslow’s findings and impairment
rating.
On October 7, 2008 the Office granted appellant a schedule award for six percent
permanent impairment of the right lower extremity. The period of the award was from
February 19 to June 18, 2008.
On October 30, 2008 appellant’s counsel requested an oral hearing before an Office
hearing representative, which was held on March 17, 2009.
In a decision dated June 1, 2009, the hearing representative affirmed the October 7, 2008
decision.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.8 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment.9
Section 8123(a) of the Act10 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.11 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.12
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.13 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.14 Unless this procedure is carried out by the Office, the intent of section 8123(a) of the

6

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

7

20 C.F.R. § 10.404.

8

Id. at § 8107(c)(19).

9

Id. at § 10.404; see I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009); A.A., 59 ECAB ___
(Docket No. 08-951, issued September 22, 2008); Billy B. Scoles, 57 ECAB 258 (2005).
10

5 U.S.C. §§ 8101-8193.

11

5 U.S.C. § 8123(a); see J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009); Geraldine Foster,
54 ECAB 435 (2003).
12

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009); J.M., 58 ECAB 478 (2007);
Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).
13

Phillip H. Conte, 56 ECAB 213 (2004).

14

L.R. (E.R)., 58 ECAB 369 (2007); Raymond A. Fondots, 53 ECAB 637, 641 (2002); Roger W. Griffith,
51 ECAB 491 (2000).

4

Act will be circumvented when the impartial specialist’s medical report is insufficient to resolve
the conflict of medical evidence.15
ANALYSIS
The Office accepted the claim for sciatica. On April 6, 2007 appellant filed a claim for a
schedule award. Dr. Diamond, an osteopath, addressed the extent of appellant’s permanent
impairment and rated 39 percent impairment of the his right leg due to sensory impairments of
the L3 and L4 nerve roots, loss of motor strength in the right quadriceps and loss of motor
strength in the right hip adductors and abductors. The Office medical adviser reviewed this
report and disagreed with the impairment rating provided by Dr. Diamond. He found that
appellant had 15 percent impairment of the right leg due to loss of motor strength in the right
quadriceps due to L4 radiculopathy and right knee pain. Due to the difference of opinion
regarding the nature and extent of appellant’s permanent impairment between Dr. Diamond and
the Office medical adviser, the Office properly found a conflict in medical opinion evidence and
referred appellant to Dr. Maslow, a Board-certified orthopedic surgeon, selected as the impartial
medical examiner to determine the nature and extent of impairment.
On February 19, 2008 Dr. Maslow concluded that appellant had six percent impairment
of his right lower extremity. He did not correlate his right lower extremity impairment rating
with the A.M.A., Guides. On June 12, 2008 the Office requested a supplemental report. In a
July 3, 2008 report, Dr. Maslow explained how he performed manual strength testing and
sensation measurement.
The Board finds that Dr. Maslow’s February 19 and July 3, 2008 reports are not
sufficiently detailed or rationalized to constitute the weight of medical evidence or resolve the
conflict in medical opinion. Dr. Maslow did not adequately explain how he determined the right
lower extremity rating under the A.M.A., Guides. He did not set forth sufficient findings on
examination of appellant to provide a sufficient description of how his left leg sensory or motor
loss was due to the accepted back condition.16 Dr. Maslow’s July 3, 2008 report did not resolve
the defects of his prior report. He failed to offer rationale for his determination that appellant
had six percent impairment of his left lower extremity. As these reports were not sufficient to
resolve the issue of appellant’s permanent impairment for schedule award purposes, the Office
should refer him, a statement of accepted facts and a list of specific questions, to another Boardcertified physician to resolve the conflict of medical opinion evidence.
CONCLUSION
The Board finds that Dr. Maslow’s report is not sufficient to resolve the conflict in the
medical opinion evidence.

15

Id.

16

See Peter C. Belkind, 56 ECAB 580 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2009 and October 7, 2008 decisions of
the Office of Workers’ Compensation Programs be set aside. The case is remanded for further
development consistent with this decision.
Issued: July 14, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, OLYMPIC
)
NATIONAL PARK, Port Angeles, WA, Employer )
__________________________________________ )
A.K., Appellant

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1919
Issued: December 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2016 appellant, through counsel, filed a timely appeal from an April 4,
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 claim.

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 OWCP met its burden of proof to modify a June 7, 2007 loss of
wage-earning capacity (LWEC) determination, and reduce appellant’s compensation to zero
effective May 7, 2015.
FACTUAL HISTORY
On June 8, 2005 appellant, then a 48-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging lower back and bilateral hip conditions arose in
the performance of duty on or about May 31, 2005.3 He stopped work on June 17, 2005. On
September 7, 2005 OWCP initially accepted appellant’s claim for lumbar strain. It subsequently
expanded the accepted conditions to include lumbosacral spondylosis.
On October 30, 2005 appellant returned to work in a temporary, light-duty assignment.
However, the employing establishment was only able to accommodate his restrictions through
December 3, 2005. OWCP paid appellant wage-loss compensation for temporary total disability
beginning February 19, 2006. Appellant continued to receive disability compensation through
October 31, 2006. Effective November 2, 2006, he began work in the private sector
(GoWireless) as a cellular telephone service salesperson. OWCP later terminated appellant’s
wage-loss compensation, but continued to compensate him based on the difference between his
actual earnings and his date-of-injury earnings as a maintenance mechanic.
On June 6, 2007 OWCP issued a formal LWEC determination. It found that appellant’s
actual weekly wages ($462.24) as a salesman for GoWireless, effective November 2, 2006, fairly
and reasonably represented his wage-earning capacity. OWCP further found that, because
appellant demonstrated his ability to perform the position for more than two months, the sales
position was considered suitable to his partially disabled condition. Consequently, it formally
adjusted his 28-day compensation payments to reflect his approximate 56 percent loss in wageearning capacity.4
Appellant subsequently advised OWCP that he no longer worked for GoWirless and that
in December 2007 he began working part time as a bus driver. He continued to work as a parttime bus driver for several years thereafter. OWCP paid appellant wage-loss compensation
based on the June 6, 2007 LWEC determination.
Dr. Jennifer Carl, a Board-certified physiatrist and appellant’s treating physician, last
examined him on August 17, 2009. At the time, she noted that she had not seen appellant in over
two years. Dr. Carl diagnosed work-related lumbar strain, lumbar spondylosis, and low back
3

Appellant indicated that he had worked as a maintenance mechanic since 1999. His responsibilities included
performing plumbing and electrical installation/repair work utilizing a variety of hand and power tools. Appellant
worked indoor and outdoor, in open spaces, as well as confined areas such as attics and crawl spaces. He also
performed building/carpentry trade work, such as roof repair, painting, cabinet installation, repairing overhead
doors, and pouring/forming concrete. Additional duties included operating various types of off-road and on-road
equipment, including front-end loaders, backhoes, and dump trucks.
4

OWCP noted that the current weekly pay rate of appellant’s date-of-injury position was $1,055.54.

2

degenerative disc and joint problems. She noted that appellant could not perform his usual job
and she imposed work restrictions, including a 30- to 35-pound weight limitation with respect to
pushing/pulling/lifting. Dr. Carl characterized them as “Lifetime” restrictions.
In a January 13, 2012 report, Dr. Michael J. Battaglia, a Board-certified orthopedic
surgeon and OWCP referral physician, noted the history of injury, reviewed the statement of
accepted facts (SOAF) and the medical record, and provided examination findings. He reported
that appellant had been working as a school bus driver since 2007 and currently was not
undergoing active treatment. Dr. Battaglia diagnosed lumbar spondylosis, which in his opinion
was unrelated to the employment injury. He also noted that appellant had permanent aggravation
secondary to the employment injury and the type of work he did for many years. Dr. Battaglia
noted that appellant’s work-related conditions had not resolved given his objective findings and
the fact that this was a permanent aggravation. He indicated that appellant was at maximum
medical improvement and was unable to perform his prior duties as a maintenance mechanic.
Dr. Battaglia explained that appellant’s inability to perform his date-of-injury position was due to
the industrial injury, as this was a “permanent aggravation.” No further treatment was
recommended. Dr. Battaglia also opined that appellant had permanent work-related restrictions,
noting in a separate work capacity evaluation (Form OWCP-5c) that appellant had a 35-pound
weight restriction with respect to pulling and lifting. He also precluded squatting and kneeling.
OWCP continued to pay wage-loss compensation based on the June 6, 2007 LWEC
determination.
In July 2014, OWCP again referred appellant for a second opinion examination. In an
August 9, 2014 report, Dr. Aleksandar Curcin, an orthopedic surgeon, noted the history of injury
and reviewed the SOAF and the medical record, including diagnostic testing and second opinion
reports. He noted that appellant currently worked as a school bus driver. Dr. Curcin opined that
the accepted lumbar sprain/strain had resolved, but appellant’s lumbosacral spondylosis was still
present and appeared to be causing subjective symptoms. He explained that a sprain/strain-type
injury would be expected to resolve within a 10- to 12-week timeframe, but the condition of
lumbosacral spondylosis would never completely resolve. Dr. Curcin further noted that
appellant appeared to be at baseline status with mechanical back pain. There were no symptoms
of radiculopathy and appellant did not have constant, daily pain. Dr. Curcin further commented
that there did not appear to be any medical impediments hindering recovery and that no further
medical care was warranted to address appellant’s work-related conditions. He noted that there
were no clear cut physical limitations resulting from the accepted conditions, but felt that a
functional capacity evaluation (FCE) would be helpful prior to completing a work capacity
evaluation (OWCP-5c). As to appellant’s ability to resume his date-of-injury maintenance
mechanic position, Dr. Curcin indicated that appellant was capable of returning to the position
full time, but cautioned that resuming that line of heavy manual labor more than likely would
result in exacerbating appellant’s back pain complaints.
A September 23, 2014 FCE revealed that appellant was capable of performing medium to
heavy physical demand work on a full-time basis.
In an addendum to his August 9, 2014 report, Dr. Curcin advised that he reviewed the
maintenance mechanic position description, as well as the recent FCE, and it appeared appellant

3

could perform the described duties without restriction. He also provided a separate work
capacity evaluation (Form OWCP-5c) which indicated that appellant was capable of performing
his usual job.
By notice dated October 30, 2014, OWCP advised appellant that it proposed to modify
the June 6, 2007 LWEC determination based on a “material change” in the extent/nature of his
injury-related condition(s). It explained that the evidence of record showed that appellant’s
accepted conditions had resolved/improved such that he was capable of performing his date-ofinjury maintenance mechanic position on a full-time basis. Consequently, appellant currently
had no LWEC and his periodic (28-day) compensation payments would be reduced to zero.
OWCP provided copies of Dr. Curcin’s August 9, 2014 report and addendum. Appellant was
afforded at least 30 days to submit additional evidence and/or argument should he disagree with
the proposed action.
In a November 25, 2014 letter, counsel argued that OWCP could not base its proposed
action on Dr. Curcin’s report because the second opinion examiner relied on an incomplete and
inaccurate SOAF. She noted that appellant wore corrective shoes and had mild scoliosis,
information she believed was not shared with Dr. Curcin. Counsel also argued that there was an
unresolved conflict in medical opinion between Dr. Curcin and Drs. Battaglia and Carl, and
therefore, the case should have been sent to an impartial medical examiner. She essentially
argued that OWCP had not met its burden of proof to modify or terminate appellant’s wage-loss
compensation determination.
OWCP prepared a March 4, 2015 amended SOAF, to include that appellant wore
corrective shoes and had preexisting scoliosis. It forwarded the latest SOAF to Dr. Curcin and
asked whether this additional information altered his prior opinion.
In a March 10, 2015 addendum, Dr. Curcin indicated that he had reviewed the updated
SOAF, but it did not alter his prior opinions.
By decision dated May 7, 2015, OWCP informed appellant that it was reducing his wageloss compensation to zero effective immediately. It addressed counsel’s arguments and
determined that Dr. Curcin’s opinion established that appellant was capable of performing his
date-of-injury maintenance mechanic position on a full-time basis. OWCP further noted that the
claim would remain open for medical care of appellant’s accepted lumbosacral spondylosis.
Appellant timely requested an oral hearing before a representative of OWCP’s Branch of
Hearings and Review, which was conducted via telephone on February 10, 2016. Counsel
argued that, while appellant was capable of working as a bus driver, appellant was unable to
resume his prior duties as a maintenance mechanic. At the hearing and in subsequent
correspondence, she continued to challenge OWCP’s reliance on Dr. Curcin’s opinion as a basis
for modifying the prior LWEC determination. Counsel also submitted additional medical
evidence.
In a November 26, 2014 report, Dr. Justin L. Esterberg, a Board-certified orthopedic
surgeon, reported that appellant had right-sided predominant low back pain at the lumbosacral
junction and upper buttock region/lateral sacral region, which had been ongoing for years. He

4

noted that appellant had a couple of severe episodes of pain in the past and also had a history of
work injury to his low back. Dr. Esterberg provided an assessment of chronic low back pain,
which he opined was likely due to the underlying arthritis present in the areas of L4-5,
potentially L5-S1. He noted that appellant seemed to be managing all of his symptoms quite
well. Dr. Esterberg indicated that he agreed with appellant that it was best to avoid any
significant manual labor or a lot of heavy lifting. He reasoned that being a mechanic at this point
would probably not work out very well for appellant’s low back and that he could have an
increase in his low back pain, particularly with the bending, lifting, and twisting done in that type
of work. Dr. Esterberg noted that he reviewed a magnetic resonance imaging (MRI) scan from
2005, which showed some disc degenerative changes at L4-5, L5-S1 without any stenosis.5
In a May 28, 2015 report, Dr. Roger Olsen, a family practitioner, noted the history of
injury and appellant’s work and medical history thereafter.6 He opined that appellant was totally
disabled due to a January 28, 2015 cerebrovascular accident and that a back examination was not
done due to appellant’s severe handicap secondary to stroke and inability to cooperate physically
with the examination. Dr. Olsen noted that the stroke left appellant with residuals of impaired
gait and that he used a cane and had severe right arm weakness, but that there had been some
improvement with speech. He diagnosed chronic back pain and indicated that appellant has had
“chronic impairment of functions including sitting, walking, reaching, twisting, bending,
stooping, pushing, pulling, lifting, squatting, kneeling, climbing.” Dr. Olsen noted that, prior to
his stroke, appellant had permanent disability from performing his previous maintenance
mechanic occupational duties due to work-related stresses and injuries aggravating his
underlying degenerative disc disease. In a May 29, 2015 work capacity evaluation (Form
OWCP-5c), he opined that appellant could not perform his usual job and that he was totally
disabled from any work.
By decision dated April 4, 2016, an OWCP hearing representative affirmed the May 7,
2015 decision. He found that Dr. Curcin’s opinion supported the modification/reduction of
appellant’s wage-loss compensation and that the reports of Drs. Esterberg and Olsen did not
reflect sufficient consideration of the September 23, 2014 FCE, which revealed appellant’s
ability to work at the medium to heavy job classification level. Consequently, the hearing
representative affirmed OWCP’s prior decision.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on LWEC.7 A wage-earning capacity
determination is a finding that a specific amount of earnings, either actual earnings or earnings
5

A June 16, 2005 lumbar MRI scan, interpreted by Dr. Michael Fishman, a radiologist, revealed mild disc
degeneration at L4-5 and L5-S1. It also showed minimal retrolisthesis of L5 on S1 and no impingement on neural
elements at these or other lumbar spine levels.
6

On May 27, 2015 appellant advised OWCP that Dr. Carl had retired and that Dr. Olsen was his new treating
physician.
7

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

5

from a selected/constructed position, represents a claimant’s ability to earn wages.8 Generally,
an employee’s actual earnings best reflect his or her wage-earning capacity.9 Absent evidence
that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.10
Compensation payments are based on the wage-earning capacity determination, and
OWCP’s finding remains undisturbed until properly modified.11 Modification of an LWEC
determination is unwarranted 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 erroneous.12 The burden of proof is on the party seeking
modification of the wage-earning capacity determination.13
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain and lumbosacral spondylosis as
a result of his employment activities as a maintenance mechanic. On June 6, 2007 it reduced his
entitlement to wage-loss compensation based upon a determination that his salesman position for
GoWireless fairly and reasonably represented his wage-earning capacity. For several years,
OWCP paid wage-loss compensation based on the June 6, 2007 LWEC determination. On
May 7, 2015 it reduced appellant’s entitlement to wage-loss compensation benefits to zero as the
medical evidence of record established a material change in condition and appellant was able to
return to his maintenance mechanic position without restrictions. By decision dated April 4,
2016, an OWCP hearing representative affirmed the May 7, 2015 decision. Accordingly, OWCP
has the burden of proof to establish that the June 6, 2007 wage-earning capacity determination
should be modified.14
The issue of whether there has been a material change in appellant’s work-related
condition is a medical determination and may only be resolved by probative medical evidence.15
OWCP accorded weight of the medical evidence to Dr. Curcin, a Board-certified orthopedic
surgeon and second opinion physician, who opined in August 9, 2014 and March 10, 2015
reports that appellant was capable of resuming full-time work with no restrictions as a
8

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

9

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

10

Id.

11

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

12

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
13

20 C.F.R. § 10.511.

14

See Tamra McCauley, supra note 12.

15

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

6

maintenance mechanic. Specifically, Dr. Curcin found that the accepted lumbar sprain/strain
was no longer active and that the lumbosacral spondylosis condition was at baseline.
In his August 9, 2014 report, Dr. Curcin noted the history of injury, and reviewed the
statement of accepted facts and the medical record. He also presented examination findings.
Dr. Curcin opined that the accepted sprain/strain of the lumbar region was no longer present. He
explained that the pathophysiology of a sprain/strain injury was expected to resolve within a 10to 12-week period of time. Dr. Curcin also found that, while the lumbosacral spondylosis was
still present and appeared to be causing subjective symptoms, appellant had reached/returned to
baseline status. He explained that appellant’s lumbosacral spondylosis would never completely
resolve and that appellant had mechanical back pain with no symptoms of radiculopathy or
constant daily pain. Dr. Curcin cautioned that in returning appellant to heavy manual labor,
appellant may experience an exacerbation of his back pain complaints. In a March 10, 2015
addendum, he reviewed the updated March 4, 2015 SOAF, which reflected that appellant wore
corrective shoes and had preexisting scoliosis. Dr. Curcin also reviewed appellant’s position
description and the September 23, 2014 physical capacity evaluation. He indicated that his prior
opinion, that appellant could resume his maintenance mechanic position without restriction, had
not changed.
The Board finds that, based on the opinion of Dr. Curcin, OWCP established that
appellant was no longer disabled as a result of his May 13, 2005 employment injury. He
concluded that appellant had recovered from the work-related conditions and was capable of
returning to full-time work as a maintenance mechanic. Dr. Curcin provided a thorough factual
and medical history and accurately summarized the relevant medical evidence. He conducted a
physical examination and opined that the lumbar sprain had resolved and the lumbosacral
spondylosis condition was at baseline. He also reviewed the position description and the
September 23, 2014 physical capacity evaluation and opined that appellant could resume his
date-of-injury position. Thus, OWCP met its burden of proof to modify the June 7, 2007 LWEC
determination, and reduce appellant’s compensation to zero effective May 7, 2015.
The opinions of Dr. Esterberg and Dr. Olsen regarding appellant’s disability are
insufficient to overcome the weight afforded Dr. Curcin’s opinion.
In his November 26, 2014 report, Dr. Esterberg provided an assessment of chronic low
back pain, which he opined was likely due to the underlying arthritis at L4-5 and potentially L5S1. Dr. Esterberg’s recommendation that appellant should avoid any significant manual labor or
a lot of heavy lifting are prophylactic in nature and does not establish ongoing employmentrelated disability. The possibility of future injury does not constitute a basis for the payment of
compensation under FECA.16 Moreover, Dr. Esterberg did not consider the results of the
September 23, 2014 FCE.
In his May 29, 2015 report, Dr. Olsen diagnosed chronic back pain and indicated that
appellant has had chronic impairment of several functions. However, Dr. Olsen did not perform
a back examination due to appellant’s severe handicap secondary to a January 28, 2015
cerebrovascular accident. While Dr. Olsen opined that appellant was permanently disabled from
16

See S.N., Docket No. 13-2069 (issued February 21, 2014).

7

performing his maintenance mechanic position prior to his stroke, he failed to provide a reasoned
explanation as to why he believed that appellant was disabled. He also failed to consider the
results of the September 23, 2014 physical capacity evaluation. The Board has found that
medical evidence that offers a conclusion, but does not offer any rationalized medical
explanation is of limited probative value.17
On appeal, counsel asserts that OWCP had not followed the process for modifying an
LWEC determination given the inaccurate SOAF and the inadequate job description provided
Dr. Curcin. He also argues that the new medical evidence was inconsistent with OWCP’s
determination. As noted, OWCP amended the SOAF and provided Dr. Curcin a copy of
appellant’s maintenance mechanic position description. Moreover, the reports of Dr. Esterberg
and Dr. Olsen are of diminished probative value and are insufficient to create a conflict of
medical opinion with Dr. Curcin. For the reasons noted above, OWCP met its burden of proof in
modifying the June 7, 2007 LWEC determination.
Appellant may request modification of the wage-earning capacity determination
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to modify the June 7, 2007 LWEC
determination, and reduce appellant’s compensation to zero effective May 7, 2015.

17

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

8

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.18
Issued: December 12, 2017
Washington, DC

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

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

18

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

9


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

)
)
)
)
)
)
)
)

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

Docket No. 07-2400
Issued: April 22, 2008

Case Submitted on the Record

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

JURISDICTION
On September 24, 2007 appellant filed a timely appeal from the August 20, 2007 merit
decision of the Office of Workers’ Compensation Programs that denied modification of a
previous Office decision denying her claim for recurrence of disability.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
recurrence of temporary total disability beginning on October 20, 2006 and continuing, causally
related to her accepted October 3, 2002 work injury.

1

The Board notes that the record also contains a June 8, 2007 decision finding an overpayment of compensation
and a June 21, 2007 decision granting appellant a schedule award for 23 percent permanent impairment of the right
lower extremity. However, on appeal, appellant has only requested the Board’s review of the August 20, 2007
Office decision.

FACTUAL HISTORY
On December 10, 2002 appellant, then a 48-year-old mail carrier, filed a traumatic injury
claim stating that she struck her knee on a console table on October 3, 2002. She initially
performed modified duty and missed intermittent work, but stopped work on June 16, 2003. The
Office accepted appellant’s claim for right knee internal derangement and paid appropriate
compensation. She underwent a right knee arthroscopy on October 3, 2003.
On August 18, 2004 Dr. Richard A. Nolan, a Board-certified orthopedic surgeon,
released appellant to return to modified work for four hours per day. Appellant returned to parttime limited-duty work, four hours per day, effective September 7, 2004. However, on
October 18, 2004 Dr. Nolan found that appellant was temporarily totally disabled until
October 21, 2004. In a December 1, 2004 report, he stated that appellant’s disability would
continue until January 7, 2005. Appellant returned to work on June 4, 2005 for six hours per
day.
On March 1, 2005 the Office referred appellant to Dr. John Randall Chu, a Boardcertified orthopedic surgeon, for a second opinion to determine her current work capacity and
whether she had continuing residuals from her accepted employment injury. On March 23, 2005
Dr. Chu examined appellant and concluded that she had permanently aggravated a chronic and
preexisting degenerative condition but could work eight hours per day with restrictions. In a
September 7, 2005 report, Dr. Nolan disagreed with Dr. Chu’s assessment of appellant’s workrelated condition and current work capability. On November 23, 2005 the Office found a
conflict in medical opinion between Dr. Chu, who opined that appellant had no objective
residuals of her work injury and could work eight hours daily with restrictions, and Dr. Nolan,
who opined that appellant had residuals of her work injury and could only work six hours per
day with restrictions.
On February 1, 2006 the Office referred appellant to Dr. Roger D. Dainer, an osteopath
and orthopedic surgeon, for an impartial medical examination to resolve the conflict in opinion
between Dr. Nolan and Dr. Chu. In a March 6, 2006 report and accompanying work capacity
evaluation, Dr. Dainer diagnosed right knee chondromalacia of the patellofemoral component
and the lateral tibial plateau and patellofemoral pain syndrome. He determined that appellant
had preexisting but asymptomatic chondromalacia. Therefore, appellant’s current residual
symptoms were directly related to the October 3, 2002 work injury. Dr. Dainer concluded that,
although appellant had objective evidence of residual disability, she could work for eight hours
per day with restrictions.
Appellant increased her workload to eight hours per day, with restrictions, effective
April 3, 2006. In an April 12, 2006 report, Dr. Nolan advised that appellant had new left knee
symptoms on February 8, 2006. He attributed her left knee symptoms to overuse and “guarding”
related to her accepted right knee condition. On May 1, 2006 Dr. Nolan indicated that appellant
had experienced “acute flare of symptoms” and was unable to work on April 14, 18, 19, 25
and 27, 2006. However, he noted that appellant could continue to work with her current
restrictions. On June 5 and July 10, 2006 Dr. Nolan again recommended that appellant continue
working under her current modifications. In his July 10, 2006 duty status report, he set forth
appellant’s work restrictions. In an August 2, 2006 report, Dr. Nolan explained that appellant’s

2

symptoms included aching, stabbing and throbbing sensations that were aggravated by prolonged
positioning, bending and stooping, extensive walking and sudden changes in direction when
ambulating. He noted that appellant could continue working with her present modifications.
Dr. Nolan reiterated his conclusions on August 9, 2006. However, on August 16 and 23, 2006 he
recommended that appellant maintain a “low level of activity” for 24 hours. In an October 4,
2006 report, Dr. Nolan noted that appellant had “some acute flare of symptoms, which prevented
performance of job tasks” on September 26, 2006, but recommended that she “continue
commonsense precautions in all activities.”
On October 6, 2006 appellant accepted a full-time limited-duty job offer as a city carrier,
“pending until doctor review.” The assignment noted physical requirements including standing
and walking for 1 hour, lifting and carrying 15 pounds, sitting for 4 hours, alternating sitting and
standing every 30 minutes, pushing and pulling for 3 hours, driving for 4 hours, grasping for 30
minutes and performing fine manipulation tasks for 2 hours. The employing establishment noted
that appellant would not be required to climb, bend, stoop, twist or reach above shoulder level.
The modified-duty assignment took effect on October 6, 2006.
On October 25, 2006 appellant filed a claim for compensation beginning October 20,
2006, the date she stopped work. On November 1, 2006 the Office advised her that it would
adjudicate her claim as a recurrence of disability. On November 3, 2006 appellant filed another
claim for compensation through February 1, 2007.
In an October 25, 2006 report, Dr. Nolan stated that appellant had an “acute aggravation
… to the right knee by entering and exiting a vehicle” while making collections. He advised that
appellant was unable to work since October 20, 2006 and would be temporarily totally disabled
until November 1, 2006. In a November 1, 2006 report, Dr. Nolan extended appellant’s
disability until February 1, 2007. He explained that appellant had experienced “an escalation and
acute flare of symptoms” on September 26, 2006. Dr. Nolan noted that her modified-duty job
required her to enter and exit her vehicle “numerous times” during the day. He also noted that
appellant’s condition was aggravated by factors including sitting, standing, bending and
stooping, kneeling, walking for extended periods, and “sudden changes of direction while
ambulating.” On November 13, 2006 Dr. Nolan clarified that appellant’s “acute aggravation of
symptoms” began on September 26, 2006 and extended to October 20, 2006, when she stopped
work completely. In a November 29, 2006 report, he stated that appellant had progressively
increasing right knee pain and would remain temporarily totally disabled until at least
January 5, 2007.
By decision dated December 5, 2006, the Office denied appellant’s claim for a recurrence
of total disability beginning on October 20, 2006.
In a December 20, 2006 report, Dr. Nolan explained that appellant had continuing right
knee pain, which was aggravated by prolonged weight bearing. He advised that she continue her
modified-duty assignment. Appellant also provided a December 15, 2006 magnetic resonance
imaging (MRI) scan from Dr. Joy Foster, a radiologist, who diagnosed contrast filled popliteal
cyst, patellofemoral degenerative type changes and mild tendinopathy but finding no evidence of
meniscal or ligamentous injury. Dr. Foster also conducted an arthrogram on the same day and
found “routine successful right knee arthrogram.”

3

On May 16, 2007 appellant requested reconsideration of the Office’s December 5, 2006
decision. She provided a June 20, 2007 report from Dr. Nolan, who noted her continuing knee
symptoms, including “aching, stabbing, burning pain, almost constant, disturbing nocturnal rest
on an average of two times per night.” Dr. Nolan explained that appellant’s symptoms often
subsided, but not entirely, with the day’s activities, but were aggravated by prolonged standing,
bending and stooping, kneeling and walking. He recommended that appellant continue working
with her current restrictions.
Appellant also provided an undated statement description of her limited-duty assignment.
She stated that her limited-duty job included driving to 37 different mailboxes, climbing down
from her vehicle, lifting letter flats and carrying them in and out of her truck, bending, stooping
and twisting, pushing a “dolly,” and grasping and carrying items. Appellant stated that she
exceeded her limitations of standing and walking for one hour, driving for four hours, lifting and
carrying no more than 15 pounds, and refraining from bending, stooping, twisting and climbing.
She did not indicate that her light-duty assignment had changed in any way.
In a July 11, 2007 report, Dr. Nolan noted appellant’s continuing complaints of moderate
aching and burning sensations with intermittent sharp pains over the anterior aspect of the right
knee. He noted that certain activities, including walking, driving, or placing the knee under load,
walking stairs and inclines, stooping and squatting, aggravated appellant’s knee pain. Dr. Nolan
recommended patellofemoral resurfacing and noted that appellant could continue modified work.
By decision dated August 20, 2007, the Office denied modification of its December 5,
2006 decision. It found that appellant had not established a change or worsening in her medical
condition such that she could not perform the requirements of her light-duty job.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.2
Recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the

2

Terry R. Hedman, 38 ECAB 222 (1986).

4

physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.3
ANALYSIS
The Office accepted appellant’s claim for right knee internal derangement. Appellant
returned to a part-time light-duty position, for six hours per day, effective June 4, 2005. She
increased her workload to full time, eight hours per day, effective April 3, 2006 and subsequently
stopped work on October 20, 2006. The Board finds that appellant did not meet her burden of
proof in establishing that she sustained a recurrence of temporary total disability.
Appellant submitted several reports from Dr. Nolan. On October 25, 2006 Dr. Nolan
reported that appellant experienced an “acute aggravation” to her right knee while entering and
exiting her vehicle and, in his November 1, 2006 report, he stated that she was totally disabled,
beginning on September 26, 2006, due to entering and exiting her vehicle numerous times during
the workday. In November 1 and 13, 2006 reports, he explained that appellant’s job required her
to enter and exit her vehicle several times each day and noted that her condition was aggravated
by factors including sitting, standing, bending and stooping, kneeling, walking for extended
periods and “sudden changes of direction while ambulating.” However, the Board notes that
Dr. Nolan did not specifically relate appellant’s aggravation of symptoms to the October 3, 2002
work injury but rather related it to a new employment exposure, entering and exiting her vehicle.
The Board notes that rather than a spontaneous change in appellant’s accepted condition,
Dr. Nolan’s October 25, 2006 report supports an intervening injury caused by entering and
exiting the vehicle. As noted, a recurrence of disability is a worsening of the accepted condition
without an intervening injury or new exposure to the work environment that caused the illness.4
Moreover, Dr. Nolan did not provide a reasoned opinion on causal relationship between the
disability beginning October 20, 2006 and the original 2002 work injury. In subsequent reports,
he noted appellant’s status and duties but did not provide any further reasoning or rationale
regarding how appellant’s disability beginning October 20, 2006 was causally related to the 2002
accepted injury.5 Consequently, the medical evidence does not show a change in the nature and
extent of appellant’s injury-related condition.
The Board also finds that appellant has not established a change in the nature and extent
of her light-duty job requirements. Appellant has not established that her light-duty job
requirements exceeded her physical restrictions or that appropriate light-duty work was not made
available. She accepted a limited-duty job offer from the employing establishment on
October 6, 2006. The job required appellant to stand and walk for 1 hour, sit for 4 hours while
alternating sitting and standing every 30 minutes, drive for 4 hours, push and pull for 3 hours,
and perform 2 hours of fine manipulation tasks with no twisting, climbing, reaching above
shoulder level, bending or stooping. None of Dr. Nolan’s reports specifically address the
3

20 C.F.R. § 10.5(x).

4

See id. If appellant feels that she sustained a new injury, this decision does not preclude her from pursuing a
claim for a new injury before the Office.
5

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

5

suitability of the job requirements, but his July 10, 2006 duty status report noting appellant’s
restrictions appears consistent with the requirements of position made available by the
employing establishment. In an undated statement, appellant described her limited-duty
assignment and asserted that she exceeded her limitations of standing and walking for one hour,
driving for four hours, lifting and carrying no more than 15 pounds, and refraining from bending,
stooping, twisting and climbing. However, there is no other evidence supporting that appellant’s
duties exceeded her work restrictions. Appellant did not assert that her light-duty assignment
was withdrawn; she essentially asserted that it was beyond her capabilities. Instead, the record
indicates that the employing establishment made light duty available that was within the
restrictions set forth in the medical evidence. As noted, the medical evidence does not show a
change in the nature and extent of the injury-related condition.
Therefore, the Board finds that appellant has not established a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements sufficient to show a recurrence of total disability.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that on
October 20, 2006 she sustained a recurrence of total disability causally related to her October 3,
2002 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCE CONSERVATION
SERVICE, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-0199
Issued: December 1, 2021

Case Submitted on the Record

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

On November 17, 2020 appellant sought an appeal from a purported November 3, 2020
decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate
Boards assigned Docket No. 21-0199.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
The case record as transmitted to the Board does not contain a final adverse decision of OWCP
issued within 180 days from the date of docketing of the current appeal. 3 Although the case record
does contain a document from OWCP dated November 3, 2020, it is an informational letter and,
thus, does not constitute a final adverse OWCP decision. As there is no final adverse decision

1

The Board notes that on May 19, 2021 appellant filed an appeal from an April 12, 2021 merit decision of OWCP.
The Clerk of the Appellate Board docketed that appeal as No. 21-8058. That appeal will be adjudicated separately.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
3

issued by OWCP over which the Board may properly exercise jurisdiction, the Board concludes
that the appeal docketed as No. 21-0199 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0199 is dismissed.
Issued: December 1, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2