United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, SOUTH SUBURBAN
GENERAL MAIL FACILITY, Bedford Park, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-993
Issued: September 10, 2013

Case Submitted on the Record

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

JURISDICTION
On March 18, 2013 appellant filed an appeal from a February 11, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her claim for a recurrence of
disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the May 15, 1997 loss of wageearning capacity determination should be modified.
On appeal, appellant contends that she remains disabled for her date-of-injury position.
She also contends that the original wage-earning capacity determination was in error as it was
based on a makeshift, odd-lot job created exclusively for her and not available on the open labor
market.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before October 19, 1992 appellant, then a 30-year-old mail
processing machine operator, sustained lumbar disc herniations at L4-5 and L5-S1 due to
repetitive lifting and bending in the performance of duty. Appellant underwent an L5-S1 fusion
in 1993. On April 6, 1994 she underwent a posterior L4-5 fusion with screw and plate
instrumentation. OWCP approved both surgical procedures.
Dr. William A. Earman, Jr., an attending osteopathic physician Board-certified in
orthopedic surgery, opined on July 7, 1995 that appellant had reached maximum medical
improvement. Appellant required permanent physical restrictions due to her postsurgical status.
Dr. Earman limited lifting to 20 pounds, with no bending, stooping or twisting. Appellant also
required frequent changes of position. Dr. Edward G. Nicholson, an attending osteopathic
physician Board-certified in family practice, reduced appellant’s lifting limitation to 10 pounds
due to lumbar instability.
On December 30, 1996 appellant accepted a permanent job offer as a modified mail
processor. The employing establishment stated that the position was offered to her as the
physical demands of a full-time mail handler exceeded the permanent physical restrictions
mandated by the accepted lumbar disc herniations. The modified mail processor position
required eight hours of alternate standing and sitting, with lifting limited to pieces of mail
weighing one ounce. Appellant returned to work on December 30, 1996.
By decision dated May 15, 1997, OWCP determined that appellant had no loss of wageearning capacity as she worked as a modified mail processor at retained pay for more than 60
days.
By decision dated September 24, 1998, OWCP granted appellant a schedule award for an
11 percent permanent impairment of the right lower extremity due to the accepted lumbar disc
herniations.2
From June 2000 through 2005, appellant continued working as a modified mail processor
under the limitations specified in the December 30, 1996 position description. In 2002, OWCP
assigned a vocational rehabilitation counselor to appellant’s case to assist the employing
establishment in obtaining a prescribed ergonomic chair.
On August 23, 2006 appellant accepted a full-time modified reassignment position in the
cancellation unit. She had no production quota and could work at her own pace. Appellant was
allowed to change positions at will, with lifting limited to five pounds. In reports from June 8,
2007 to December 6, 2010, Dr. Yolanda Escalona, an attending Board-certified internist,
affirmed appellant’s work restrictions against lifting more than five pounds, with no kneeling,
bending, stooping or twisting.
Appellant claimed wage-loss compensation beginning on September 13, 2010. She
claimed 80 hours of wage-loss compensation for the period December 6 to 17, 2010. On the
2

OWCP denied an additional schedule award by decision issued January 12, 1999.

2

reverse of the forms, the employing establishment wrote “NRP [National Reassessment Process],
No Work Available.” By decision dated January 13, 2011, OWCP denied a recurrence of
disability on the grounds that the medical evidence did not establish a spontaneous worsening of
the accepted lumbar conditions.
The employing establishment placed appellant in “stand by” status on February 4, 2011.
In a March 4, 2011 letter, it advised her that, under the limited-duty guidelines of NRP, there was
no work available within her restrictions as of that day. A review of area operations
demonstrated that there were no necessary tasks within her medical restrictions available in her
commuting area. Appellant was not to report for duty until work could be found for her. The
employing establishment instructed her to claim wage-loss compensation under FECA.
Appellant claimed compensation for total disability commencing March 4, 2011.
Appellant submitted reports dated from March 2011 through October 2012 from
Dr. Holly Carobene, an attending physician Board-certified in pain management, diagnosing
cervical and lumbar radiculopathy. Dr. Carobene administered lumbar epidural injections.
Dr. Escalona affirmed prior work restrictions through November 3, 2011.3
In a February 22, 2012 letter, appellant contended that the May 15, 1997 wage-earning
capacity determination was in error as it was based on a makeshift job specifically designed to
accommodate her work limitations and was not available on the open labor market.
In an April 5, 2012 letter, OWCP advised appellant of the evidence needed to establish
that the May 15, 1997 wage-earning capacity determination should be modified. It noted that
she must submit factual evidence that the original determination was in error or that she had been
vocationally retrained. Alternatively, appellant was to submit medical evidence demonstrating a
material worsening of the accepted conditions such that she could no longer perform the
permanent modified-duty position. OWCP afforded her 30 days to submit such evidence.4
Appellant submitted April 17 and 24, 2012 reports from Dr. Carobene reiterating prior
work restrictions.
By decision dated July 23, 2012, OWCP denied appellant’s claim for wage-loss
compensation beginning March 4, 2011 on the grounds that the medical evidence did not
establish a worsening of the accepted conditions such that she was totally disabled for work.
On August 16, 2012 appellant requested an oral hearing, held on November 27, 2012. At
the hearing, she again asserted that the May 15, 1997 wage-earning capacity determination was
erroneous as it was based on a makeshift position not available on the open labor market.
Appellant submitted November 2010 physical therapy notes and an October 2, 2012 report from
Dr. Carobene noting administration of a left L5 nerve root block.
3

A March 18, 2011 lumbar magnetic resonance imaging (MRI) scan showed trace disc bulges at L2-3 and L5-S1
superimposed on spinal changes from the two lumbar fusions with fixation.
4

The record reflects that OWCP requested the employing establishment to submit information pertaining to the
position appellant had been performing. The record does not document a response.

3

By decision dated and finalized February 11, 2013, an OWCP hearing representative
affirmed the July 23, 2012 decision, finding that appellant presented insufficient medical
evidence to establish a material worsening of the accepted condition. The hearing representative
further found that the evidence submitted was not sufficient to demonstrate that the May 15,
1997 wage-earning capacity determination was erroneous. The hearing representative did not
mention FECA Bulletin No. 09-05 or the criteria it sets forth for adjudicating claims for wage
loss under NRP when a loss of wage-earning capacity determination is in place.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment, OWCP must determine whether the earnings in the alternative
employment fairly and reasonably represent the employee’s wage-earning capacity.6
Once OWCP determines the employee’s wage-earning capacity, a modification of the
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been vocationally rehabilitated or retrained, or
the original determination was erroneous. These are the customary criteria for modification.
The burden of proof is on the party attempting to demonstrate that a modification of the wageearning capacity determination is warranted.7
FECA Bulletin No. 09-05 outlines OWCP’s procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case, OWCP issued a formal wage-earning
capacity determination, it must develop the evidence to determine whether a modification of that
determination is appropriate.8
ANALYSIS
OWCP accepted that appellant sustained L4-5 and L5-S1 disc herniations on or before
October 19, 1992, necessitating lumbar fusions in 1993 and 1994. Appellant returned to work on
December 30, 1996 as a modified mail processor, a permanent position designed to
accommodate her specific work-related physical limitations. On May 15, 1997 OWCP issued a
formal wage-earning capacity determination finding that she had no loss of wage-earning
capacity as she had been working the permanent modified job at retained pay for more than 60
days. Appellant claimed that she sustained a recurrence of total disability when her modifiedduty position was withdrawn effective March 4, 2011 under NRP.

5

5 U.S.C. § 8102(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009). See also M.A., Docket No. 12-316 (issued July 24, 2012).
7

Daniel J. Boesen, 38 ECAB 556 (1987).

8

FECA Bulletin No. 09-05 (issued August 18, 2009). See also M.A., supra note 6.

4

In the February 11, 2013 decision, OWCP analyzed the case under the customary criteria
for modifying a loss of wage-earning capacity determination. It found that appellant did not
submit sufficient medical evidence to establish a worsening of the accepted condition or that the
May 15, 1997 wage-earning capacity determination was in error. OWCP did not address FECA
Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this, in
which limited-duty positions are withdrawn pursuant to NRP.
When a wage-earning capacity determination is issued, FECA Bulletin No. 09-05
requires OWCP to develop the evidence to determine whether a modification of the decision is
appropriate. It requires OWCP to review the wage-earning capacity decision to determine
whether it was based on an actual bona fide position. OWCP confirmed that the file contains
documentary evidence supporting that the position was an actual bona fide position. FECA
Bulletin No. 09-05 also requires OWCP to review whether a current medical report supports
work-related disability and establishes that the current need for limited duty or medical treatment
results from residuals of the accepted injury and to further develop the evidence from both the
claimant and the employing establishment if the case lacks current medical evidence.
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position. The record reflects that on April 5, 2012 OWCP requested information from the
employing establishment as to the position appellant had been performing; but does not
document a response. The Board further notes that the December 30, 1996 job offer on which
the May 15, 1997 wage-earning capacity was based stated that the position was created for
appellant to accommodate her particular medical limitations.
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the February 11, 2013 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue a de novo decision on
appellant’s entitlement to wage-loss compensation for the period commencing March 4, 2011.9
On appeal, appellant asserts that she remains disabled for her date-of-injury position. She
also contends that the original wage-earning capacity determination was in error as it was based
on a makeshift, odd-lot job created exclusively for her and not available on the open labor
market. As stated above, the case will be remanded to OWCP for an appropriate analysis of the
medical aspects of the claim and whether the original wage-earning capacity determination was
based on a makeshift or odd-lot position, under FECA Bulletin No. 09-05.
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s May 15, 1997 wage-earning capacity determination is appropriate. The case will be
remanded to OWCP for further development, to be followed by issuance of a de novo decision.
9

See M.E., Docket No. 11-1416 (issued May 17, 2012); M.A., supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 11, 2013 is set aside and the case remanded to OWCP
for further action consistent with this decision.
Issued: September 10, 2013
Washington, DC

Richard J. Daschbach, 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
__________________________________________
D.Y., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0767
Issued: July 25, 2016

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 March 7, 2016 appellant filed a timely appeal from a February 22, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss in the
performance of duty.
FACTUAL HISTORY
On May 15, 2015 appellant, then a 59-year-old small craft operator leader, filed an
occupational disease claim (Form CA-2) alleging bilateral hearing loss occurred in the
1

5 U.S.C. § 8101 et seq.

performance of duty on or before September 1, 2013. He explained that he first became aware of
his hearing loss during a September 1, 2013 audiometric evaluation as part of an employing
establishment hearing conservation program.
Appellant retired from the employing
establishment on July 1, 2015.
Appellant submitted annual employing establishment audiograms from June 1984
through June 24, 2015. These audiograms show a progressive, bilateral, nonratable hearing loss.
A June 24, 2015 audiogram showed decibel losses at the frequency levels of 500, 1,000, 2,000,
and 3,000 hertz (Hz) in the right ear of 15, 5, 15, and 20, respectively. Testing at the same
frequency levels for the left ear revealed decibel losses of 20, 10, 30, and 20 respectively.2
On September 8, 2015 OWCP requested that appellant provide a detailed history of his
federal and nonfederal employment, sources of hazardous noise, duration of exposure, and the
use of hearing protection. It also requested that the employing establishment provide a history of
appellant’s hazardous noise exposure.
Appellant provided a May 15, 2015 employment history and September 14, 2015 letter,
noting that prior to working at the employing establishment he was exposed to shop noise in
1974 as a tire mechanic. From 1979 to 1999, he worked at the employing establishment as a
rigger, with exposure to “chainfalls, grinders, shipping guns, needle guns, diesel engines, pumps,
cranes, and forklifts.” Appellant wore hearing protection provided by the employing
establishment. From 1999 through his retirement on June 30, 2015, he worked as a long bronc
operator at the employing establishment, with exposure to boat engine noise for eight hours a
day. Appellant asserted that the employing establishment did not provide hearing protection.
In a May 27, 2015 letter, appellant’s supervisor affirmed that from 1999 to 2015
appellant was exposed to noise from engines, chippers, sanders, and the shipyard environment.
Hearing protection was available. In a September 17, 2015 letter, the supervisor noted that the
information appellant provided on his Form CA-2 was correct. An employing establishment
safety official noted on September 21, 2015 that a 2011 industrial hygiene survey listed noise
dosimetry results from February 6, 2009 for five individuals on “log broncs” or light tug vessels.
The eight-hour time-weighted averages ranged from 79.5 to 84.9 decibels.
On January 26, 2016 OWCP obtained a second opinion from Dr. Gerald G. Randolph, a
Board-certified otolaryngologist. Dr. Randolph reviewed the medical record and a statement of
accepted facts. He obtained an audiogram showing decibel losses at the frequency levels of 500,
1,000, 2,000, and 3,000 Hz in the right ear of 20, 10, 20, and 25, respectively. Testing at the
same frequency levels for the left ear revealed decibel losses of 20, 10, 35, and 35 respectively.
Tympanometry was within normal limits bilaterally. Dr. Randolph diagnosed a bilateral
sensorineural hearing loss. He opined that appellant’s occupational noise exposure prior to 1999
was not of sufficient intensity or duration to cause a hearing loss as he utilized hearing
protection. Dr. Randolph found that since 1999, “it appeared [appellant] has been employed in
areas where noise exposure has not been a significant hazard” because “noise dosimetry studies
failed to reveal time-weighted averages above 85 decibels.” He opined that the “sloping-type
nature of [appellant’s] hearing loss suggest[ed] that the hearing loss is largely due to a
2

Appellant also submitted a May 15, 2015 audiometric evaluation performed by a private hearing aid clinic.

2

combination of his diabetes mellitus with hypertension and possibly to some extent the aging
process.” Dr. Randolph therefore concluded that appellant’s hearing loss was not due to
occupational noise exposure, as it developed after he “was removed from areas of significant
noise exposure” in 1999. He recommended bilateral hearing aids. Dr. Randolph noted that the
“need for hearing aids, [was] likely due to causes other than his industrial noise exposure.”
By decision dated February 22, 2016, OWCP denied the claim, finding that causal
relationship had not been established, based on Dr. Randolph’s report as the weight of the
medical evidence. It accepted appellant’s account of noise exposure as factual. OWCP found,
however, that Dr. Randolph’s report was sufficient to establish that appellant’s occupational
noise exposure was not employment related.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability may not be allowed if a claim is not filed within
that time unless: (1) the immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior reasonably on notice of
an on-the-job injury or death; or (2) written notice of injury or death as specified in section 8119
was given within 30 days.5
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.6 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

5 U.S.C. § 8122(a).

6

Stanley K. Takahaski, 35 ECAB 1065 (1984).

7

See John W. Butler, 39 ECAB 852, 858 (1988).

3

presence or existence of the disease or condition for which compensation is claimed;8 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;9 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.10
The medical evidence required to establish causal relationship generally is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.11
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues presented in the case.12
ANALYSIS
OWCP accepted that appellant was exposed to hazardous noise at the employing
establishment from 1979 until his retirement on June 30, 2015. The primary issue in this case is
whether appellant met his burden of proof to establish an employment-related hearing loss.
In development of this claim OWCP obtained a second opinion from Dr. Randolph.
Dr. Randolph was provided with a copy of the medical records and a statement of accepted facts.
He obtained an audiogram which showed decibel losses at the frequency levels of 500, 1,000,
2,000, and 3,000 Hz in the right ear of 20, 10, 20, and 25, respectively. Testing at the same
frequencies in the left ear revealed decibel losses of 20, 10, 35, and 35. Tympanometry was
within normal limits bilaterally. In response to questions submitted with the referral,
Dr. Randolph noted that there was not a significant variation of the history of noise exposure
from that included in the statement of accepted facts. He further noted that the audiogram he
performed revealed a sloping bilateral sensorineural hearing loss compatible with hearing loss
due to a combination of presbycusis and his diabetes mellitus with hypertension. Dr. Randolph
opined that the accepted workplace exposure was of sufficient intensity and duration prior to
1999 to have caused and/or aggravated loss of hearing. He added that since 1999 appellant was
employed in areas where noise exposure had not been a significant hazard. Dr. Randolph also
opined that appellant’s diabetes with hypertension was likely an aggravating factor to his hearing
loss. He concluded by finding that appellant’s sensorineural hearing loss was not causally
related to the accepted noise exposure from his federal employment and that although he is a
candidate for hearing aids they are needed for causes other than his accepted work exposures.
8

Michael R. Shaffer, 55 ECAB 386 (2004).

9

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

10

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

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

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

4

The Board finds that the January 26, 2016 report of Dr. Randolph is insufficient on the
issue of causal relationship as his opinion is not well reasoned and is inconsistent. Dr. Randolph
acknowledged appellant’s occupational noise exposures, but concluded that appellant’s hearing
loss was not employment related because it was “largely” due to diabetes, hypertension, and
presbycusis.13 However, he also provided a contradictory opinion that the accepted workplace
noise exposure was of sufficient intensity and duration prior to 1999 to have caused and/or
aggravated hearing loss. Dr. Randolph failed to provide any rationale or explanation for these
disparate findings on the issue of causal relationship. The inconsistent and equivocal nature of
his opinion reduces its probative value.14
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.15 The Board finds that this case is not in
posture for decision and shall be remanded for further development. On remand, OWCP should
obtain a supplemental opinion regarding the issue of whether the accepted workplace exposure
was sufficient in intensity and duration to be a cause or contributing factor to the hearing loss
identified, as well as the need for hearing aids.16 After such further development as it deems
necessary, OWCP shall issue a de novo decision.
On appeal, appellant contends that his hearing loss was caused, in part, by continuous
exposure to hazardous noise at the employing establishment for 36 years. He asserts that he was
exposed to continuous noise at work as a small craft operator from 1999 through 2015.
Appellant notes that the employing establishment did not conduct noise surveys until 2011, after
four-stroke engines were in use. He explains that before 2011, the craft used two-stroke diesel
engines which were significantly louder. As set forth above, the case will be remanded for
additional development.
CONCLUSION
The Board finds that the case is not in posture for a decision.

13

There is no appointment under FECA. See C.J., Docket No. 15-1295 (issued November 24, 2015). Beth P.
Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a
diagnosed condition to establish causal relationship).
14

D.D., 57 ECAB 734 (2006).

15

P.K., Docket No. 08-2551 (issued June 2, 2009).

16

See Glenn C. Chasteen, 42 ECAB 493 (1991); Beth P. Chaput, supra note 13 (where the medical evidence
reveals that factors of employment contributed in any way to the disabling condition, such condition is considered
employment related for the purpose of compensation under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for additional
development consistent with this opinion.
Issued: July 25, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1459
Issued: December 3, 2015

Case Submitted on the Record

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

JURISDICTION
On June 12, 2014 appellant, through counsel, filed a timely appeal of a March 13, 2014
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
June 30, 2013 based on his capacity to earn wages in the constructed position of civil engineer.
FACTUAL HISTORY
On May 14, 2010 appellant, then a 49-year-old quality assurance inspector, filed a
traumatic injury claim (Form CA-1) alleging that on May 11, 2010 he sustained cervical,
lumbosacral, and left wrist sprains, left shoulder bursitis, left rotator cuff, a left slap tear, and left
1

5 U.S.C. § 8101 et seq.

biceps tendinitis when he slipped and fell down a soft incline onto his left side. OWCP accepted
the claim for left wrist, lumbosacral, and neck strains, which was expanded to include a left
rotator cuff tear. It authorized left arthroscopic rotator cuff repair surgery, which occurred on
September 7, 2010. Appellant stopped work at the time of his injury. In an October 20, 2010
letter, OWCP placed appellant on the periodic rolls for temporary total disability.
On February 29, 2012 Dr. Kevin J. Paley, a treating Board-certified orthopedic surgeon,
opined that appellant was unable to return to his date-of-injury position, but was capable of
performing a light-duty job with restrictions. Work restrictions included limitations on standing,
reaching, reaching above the shoulder, twisting, and no lifting more than 10 pounds.
On March 19, 2012 OWCP referred appellant for vocational rehabilitation services.
On April 16, 2012 a functional capacity evaluation (FCE) was performed to determine
appellant’s work restrictions. The test indicated that appellant was disabled from performing his
date-of-injury position, but was capable of performing light-to-medium physical demand
category jobs.
On July 6, 2012 appellant underwent a second FCE which showed that he was incapable
of performing his date-of-injury position. The test noted that appellant was capable of
performing in the medium-to-medium heavy physical demands category except for overhead
lifting where his restrictions were consistent with light physical demands.
On October 9, 2012 the vocational rehabilitation specialist and appellant identified the
positions of mechanical engineer, Department of Labor, Dictionary of Occupational Titles
(DOT) No. 007.061-014 and civil engineer, DOT No. 005.061-014. The weekly wages were
$1,357.20 for the mechanical engineer position and $1,452.40 for the civil engineer position.
On October 12, 2012 OWCP received a September 26, 2012 report from Dr. Paley, who
reviewed the FCE results and concluded that appellant was capable of working a job with the
restrictions noted in the FCE.
On October 15, 2012 OWCP received labor market surveys dated September 2, 2012
from the vocational rehabilitation counselor containing information for the positions of
mechanical engineer and civil engineer. The median hourly rate was noted as $36.31 (weekly
wages of $1,452.40) for the civil engineer position and $33.93 (weekly wages of $1,357.29) for
the mechanical engineer position as noted by information from the Ohio Labor Market Survey.
OWCP also received a September 25, 2012 Individual Rehabilitation Placement Plan and Job
Search Plan and agreement from the vocational rehabilitation counselor which identified Dayton,
Ohio and Cincinnati, Ohio as the geographic region and within appellant’s commuting area.
In a November 2, 2012 summary of contacts, the vocational rehabilitation counselor
detailed contacts with appellant for the period October 1 to November 2, 2012. On October 17
and November 2, 2012 the rehabilitation counselor sent appellant a list of six job openings on
each date for a total of 12 job openings.

2

On December 19, 2012 the vocational rehabilitation counselor provided an updated
summary of contacts. On November 19, 2013 appellant was provided with six job openings and
on December 12, 2013 a list of four job openings were provided.
On April 11, 2013 the vocational rehabilitation specialist indicated that vocational
rehabilitation was closed. She reported that she had identified the positions of mechanical
engineer and civil engineer and that both positions were performed in sufficient numbers in
appellant’s commuting area. The vocational rehabilitation specialist noted the weekly wages
were $1,357.20 for the mechanical engineer position and $1,452.40 for the civil engineer
position. She indicated that updated labor market surveys for these positions would be submitted
by the vocational rehabilitation counselor to ensure that the information provided was current.
On April 22, 2013 OWCP received labor market surveys dated April 22, 2013 from the
vocational rehabilitation counselor containing updated information for the positions of
mechanical engineer and civil engineer. The median hourly rate was noted as $36.39 for the
civil engineer position and $34.78 for the mechanical engineer position as noted by information
from the Ohio Labor Market Survey as of April 20, 2013. A 2011 state and national wages -civil engineers for Ohio reported a median hourly wage of $34.19. The median hourly rate for
mechanical engineers in Ohio was noted as $33.25. In an attached occupational wage survey
estimate for civil engineers, the median hourly rates under Data for JobsOhio Network Regions
were listed as $36.53 for the Cincinnati Region and $37.06 for the Dayton Region. An attached
occupational wage survey estimate for mechanical engineer reported medial hourly rates under
Data for JobsOhio Network Regions as $36.57 for the Cincinnati Region and $32.90 for the
Dayton Region.
On April 26, 2013 OWCP issued a notice proposing to reduce appellant’s compensation
as it determined that the position of civil engineer was medically and vocationally suitable for
him and represented his wage-earning capacity. It advised appellant that she had the capacity to
earn wages as a civil engineer at a rate of $1,452.40 per week, in accordance with the factors
outlined in 5 U.S.C. § 8115.2 OWCP calculated that appellant’s compensation should be
adjusted to $201.00 using the Albert C. Shadrick3 formula. It indicated that the salary for his job
when injured was $1,437.22, that the current salary for his job and step as of April 25, 2013 was
$1,535.85 and that appellant was currently capable of earning $1,452.40 per week, as a civil
engineer. OWCP therefore determined that appellant had a 95 percent wage-earning capacity. It
found that his current adjusted compensation rate per four-week period was $201.00. OWCP
stated that the case had been referred to a vocational rehabilitation counselor who determined
that the civil engineer position was suitable for appellant, given his work restrictions, and was
reasonably available in his commuting area. It allowed appellant 30 days in which to submit any
contrary evidence.
In a letter dated May 14, 2013 appellant responded to OWCP’s proposal to reduce his
wage-loss compensation. He noted that his cervical, shoulder, and upper back pain had become

2

5 U.S.C. § 8113.

3

5 ECAB 376 (1953).

3

more acute over the recent months. Appellant contended that as a result of this pain he is unable
to sit or use his left hand and arm without pain and adversely impacts his ability to work.
By decision dated June 24, 2013, OWCP reduced appellant’s benefits effective that date
to reflect that he was capable of performing the duties of a civil engineer earning $1,452.40 per
week.
On July 5, 2013 appellant requested a review of the written record by an OWCP hearing
representative.
On July 15, 2013 appellant’s counsel changed appellant’s request for a review of the
written record to a telephonic oral hearing before an OWCP hearing representative. The hearing
was held on December 2, 2013. At the hearing appellant testified that he had accepted and was
soon to start a new job with the employing establishment. He testified that OWCP should have
afforded him more time to find a position as engineering positions were not readily available due
to the slow economy and high number of applicants.
On September 27, 2013 the employing establishment offered appellant the position of
construction analyst, which appellant accepted on October 18, 2013. He returned to work with
the employing establishment on December 9, 2013.
By amended decision dated March 13, 2014, OWCP’s hearing representative affirmed
the June 24, 2013 loss of wage-earning capacity (LWEC) determination.4
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 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.6
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of

4

The hearing representative initially issued a decision on January 14, 2014 which referenced a female appellant.
Counsel pointed out the mistake in a letter dated March 6, 2014.
5

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
6

20 C.F.R. §§ 10.402, 10.403.

4

suitable employment, and other factors and circumstances which may affect his wage-earning
capacity in his disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fit the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Shadrick8 and codified by regulations at 20 C.F.R. § 10.4039 should be
applied. Subsection(d) of the regulations provide that the employee’s wage-earning capacity in
terms of percentage is obtained by dividing the employee’s actual earnings or the pay rate of the
position selected by OWCP, by the current pay rate for the job held at the time of the injury.10
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions.11 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.12
ANALYSIS
OWCP accepted appellant’s claim for left wrist, lumbosacral and neck strains, and left
rotator cuff tear. It authorized left arthroscopic rotator cuff repair surgery, which occurred on
September 7, 2010.
By decision dated June 24, 2013, OWCP reduced his wage-loss
compensation effective that day based on his capacity to earn wages as a civil engineer. An
OWCP hearing representative affirmed the June 24, 2013 decision in an amended March 13,
2014 decision. The issue on appeal is whether OWCP properly calculated appellant’s LWEC.
OWCP procedures instruct that, in cases where a claimant has undergone vocational
rehabilitation, the vocational rehabilitation counselor will submit a report summarizing why the
7

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 584
(1996).
8

Supra note 2.

9

20 C.F.R. § 10.403.

10

20 C.F.R. § 10.403(d).

11

James Henderson, Jr., 51 ECAB 268 (2000).

12

Id.

5

vocational rehabilitation was successful and list jobs that are medically and vocationally suitable
for appellant.
Pursuant to the procedure manual, OWCP initially utilized the median wage rate which
was correctly selected as appellant had a Bachelor of Science degree from the University of
Cincinnati with significant experience in design software and applicable work experience.
Under these circumstances, it is appropriate to assign a median hourly wage instead of the
default entry wage.13 OWCP went on to determine that appellant had a wage-earning capacity
with a median hourly rate of $36.31 per hour or weekly wage of $1,452.40 as a civil engineer.
This determination was based upon an October 15, 2012 labor market survey. On April 13, 2013
the vocational rehabilitation counselor provided an updated labor market survey which noted a
median hourly rate of $36.39 or weekly rate of $1,455.60 for civil engineer. The attachments to
his updated report contain conflicting median hourly rates for the position of civil engineer in
Ohio. A 2011 state and national wages -- civil engineers for Ohio indicated a median hourly
wage of $34.19 or weekly wages of $1,367.60 while an occupational wage survey estimates for
civil engineers provided different median hourly rates. The occupational wage survey reported
median hourly rates Data for JobsOhio Network Regions as $36.53 (weekly wages of $1,461.20)
for the Cincinnati Region and $37.06 (weekly wages of $1,482.40) for the Dayton Region. It is
unclear from the record how vocational rehabilitation counselor determined the weekly wage rate
for the constructed position of civil engineer. The attachments submitted by the vocational
rehabilitation counselor with an updated labor market survey contain weekly wage rates different
from the wage rates originally given on October 9, 2012 and used by OWCP in setting
appellant’s loss of wage-earning capacity determination. Moreover, the attachments report
different wage rates for the Dayton and Cincinnati region. On September 25, 2012 the
vocational rehabilitation counselor identified Dayton, Ohio and Cincinnati, Ohio as within
appellant’s commuting area. However, the determination of the wage rate for the constructed
position of civil engineer, remains unclear as to which city was used by the vocational
rehabilitation counselor as appellant’s commuting area when calculating appellant’s wage rate.
Thus, the Board is unable, from the evidence in the record, to determine what the actual weekly
pay rate was for the constructed position of civil engineer and which city or cities were used in
determining appellant’s commuting area. It is OWCP’s burden to establish wage-earning
capacity and thus it failed to meet its burden of proof in this case.
The Board finds that OWCP improperly determined appellant’s loss of wage-earning
capacity based on the median wages for the constructed position of civil engineer. Accordingly,
the case will be reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in reducing appellant’s
wage-loss compensation based on the constructed position of civil engineer.

13

Federal (FECA) Procedural Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on
Constructed Position, Chapter 2.816(5)(b) (June 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2014 is reversed.14
Issued: December 3, 2015
Washington, DC

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

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

14

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tucson, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1450
Issued: March 28, 2017

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 July 6, 2016 appellant filed a timely appeal from a May 10, 2016 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to a January 30, 2016 employment incident.
FACTUAL HISTORY
On February 15, 2016 appellant, a 32-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1), alleging that he suffered from heat exhaustion on January 30, 2016
1

5 U.S.C. § 8101 et seq.

while in the performance of duty. He stated that he sustained a heat-related injury resulting in
vomiting and cramping. The employing establishment did not indicate that appellant stopped
work.
Appellant submitted a January 30, 2016 ambulance bill from Ajo Ambulance, Inc. in the
amount of $1,733.89.
The employing establishment submitted an undated statement indicating that appellant
was seen and assessed by an ambulance, but was not transported, and was currently on full-duty
status.
In an April 7, 2016 letter, OWCP indicated that when appellant’s claim was received it
appeared to be a minor injury that resulted in minimal or no lost time from work and, based on
these criteria and because the employing establishment did not controvert continuation of pay or
challenge the case, payment of a limited amount of medical expenses was administratively
approved. It stated that it had reopened the claim for consideration because the medical bills had
exceeded $1,500.00. OWCP requested additional evidence from appellant within 30 days to
respond to its inquiries.
In response, appellant submitted an April 16, 2016 narrative statement indicating that on
January 30, 2016 he experienced symptoms of dehydration after hours of hiking through rugged
terrain while tracking a group of drug smugglers. A coworker notified a helicopter pilot that
appellant was in need of medical attention and that he was unable to hike out of the canyon to the
nearest means of transportation. The pilot was able to land nearby and transport appellant to the
Ajo Border Station. Once the helicopter landed at the station two paramedics, employed by Ajo
Ambulance, Inc., were waiting to assist appellant. They assessed his condition and determined
that, although he needed intravenous therapy to replace the fluids and electrolytes he had lost
throughout the day, a trip to the emergency room was not required. Appellant opted out of riding
in the ambulance to the emergency room and chose to stay at the station and received
intravenous therapy from another coworker who was also a certified emergency medical
technician. He did not receive any other medical treatment. Appellant stated that he obtained
the paramedics report and was unable to provide further medical evidence from a physician
because he did not visit or consult a doctor. He indicated that the only medical bill for which he
was seeking compensation was the bill from Ajo Ambulance, Inc., for services rendered on
January 30, 2016 in the amount of $1,733.89.
By decision dated May 10, 2016, OWCP denied appellant’s claim because the medical
evidence of record failed to establish a diagnosed condition causally related to the January 30,
2016 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 FECA, that the claim was timely filed within the applicable

2

time limitation period of FECA, that an injury2 was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is
causally related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he actually experienced the employment incident at the time, place, and
in the manner alleged. Second, the employee must submit sufficient evidence, generally only in
the form of medical evidence, to establish that the employment incident caused a personal injury.
An employee may establish that the employment incident occurred as alleged but fail to show
that his or her condition relates to the employment incident.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.5
ANALYSIS
OWCP has accepted that the employment incident of January 30, 2016 occurred at the
time, place, and in the manner alleged. The issue is whether appellant sustained an injury as a
result.
The Board finds that appellant did not submit any medical evidence from a physician
which provided a firm diagnosis and a reasoned explanation as to how the accepted incident
caused an injury. Appellant therefore failed to meet his burden of proof to establish that he has a
medical condition resulting from the January 30, 2016 employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
Finally, it is undisputed that an ambulance was called and assessed appellant’s condition
at Ajo Border Station shortly after the January 30, 2016 employment incident. Ordinarily, the
employing establishment will authorize treatment of a job-related injury by providing the
2

OWCP 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. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
3

See T.H., 59 ECAB 388 (2008).

4

Id.

5

Id.

3

employee a properly executed Form CA-16 within four hours.6 However, under 5 U.S.C.
§ 8103, OWCP has broad discretionary authority to approve unauthorized medical care which it
finds necessary and reasonable in cases of emergency or other unusual circumstances.7 Upon
return of the case record, OWCP shall determine whether appellant’s ambulance transportation
should be authorized pursuant to 20 C.F.R. § 10.304, which provides that in cases involving
emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than
as stated in this subpart.8
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to a January 30, 2016 employment incident. On return of the record, OWCP
should consider the ambulance bill issued in this case.

6

See 20 C.F.R. § 10.300; Val D. Wynn, 40 ECAB 666 (1989); a Form CA-16, authorization of medical care was
not issued in this case.
7

See M.A., Docket No. 14-1071 (issued October 3, 2014) (where the Board found that the employee failed to
establish that he had a medical condition resulting from a December 14, 2013 work incident, but returned the case to
OWCP to determine whether his ambulance transportation and initial medical care in the hospital emergency room
should be authorized).
8

See J.D., Docket No. 14-936 (issued August 8, 2014); L.B., Docket No. 10-469 (issued June 2, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lovington, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0492
Issued: October 12, 2016

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 January 20, 2016 appellant, through counsel, filed a timely appeal of an August 21,
2015 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(e), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a low back injury on January 11, 2013, causally
related to the accepted employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as previously
presented in the prior Board decision are incorporated herein by reference.
On January 11, 2013 appellant, then a 26-year-old mail carrier, filed a traumatic injury
claim (Form CA-1), alleging that he injured his left leg and lower back while stepping out of a
mail vehicle. His supervisor did not indicate on the claim form that appellant had stopped work.
In a January 14, 2013 report, received by OWCP on March 14, 2013, Dr. Amar Bains, a
specialist in family medicine, noted that appellant pulled a muscle at work when he stepped out
of his truck, set his foot on the ground the wrong way, and felt a sudden, sharp pain in his left
lower lumbar region that radiated down his left leg. He reported that appellant’s low back pain
caused him difficulty weight-bearing and walking. Dr. Bains performed an x-ray examination
and recommended that appellant undergo a magnetic resonance imaging (MRI) scan. He
diagnosed sciatica and radiculitis.
In a February 7, 2013 report, received by OWCP on March 14, 2013, Dr. Bains noted that
appellant underwent a lumbar MRI scan which revealed a left paracentral L5-Sl disc herniation,
compressing the left SI nerve root and causing a slight indentation on the thecal sac. The MRI
scan also showed a plus facet arthrosis, resulting in minimal foraminal encroachment, with a
small left paracentral L4-5 disc herniation which slightly impresses the thecal sac. Dr. Bains
opined that this was a work-related injury and diagnosed sciatica, radiculitis, and multiple disc
herniations.
By decision dated April 12, 2013, OWCP denied appellant’s claim, finding that he failed
to submit sufficient medical evidence in support of his claim that he sustained left leg and lower
back injuries causally related to the accepted January 11, 2013 employment incident.
On August 12, 2013 appellant requested reconsideration of the April 12, 2013 decision.
In a July 10, 2013 report, received by OWCP on August 12, 2013, Dr. Jeffrey Nees, a
specialist in neurosurgery, noted that he had been treating appellant for low back pain since
June 3, 2013. He indicated that appellant sustained a work injury in January 2013 when he
stepped out of his mail truck, planted his foot, and experienced pain in the left side of his back,
which radiated down his left leg. Dr. Nees performed a left L5-S1 discectomy and opined that
the injury to appellant’s back was directly related to his work and happened on the job and that
the care rendered for this injury, culminating in surgery, was a direct result of this work-related
injury. In a September 6, 2013 addendum to the July 10, 2013 report, he diagnosed displacement
of lumbar intervertebral disc without myelopathy, spinal stenosis in the cervical region, and
displacement of cervical intervertebral disc without myelopathy. Dr. Nees opined that
appellant’s injury was the direct and proximate cause of his diagnosed neck and back conditions.
By decision dated December 4, 2013, OWCP denied modification of the April 12, 2013
decision.
3

Docket No. 14-1123 (issued August 21, 2014).

2

On February 3, 2014 counsel requested reconsideration of the April 12, 2013 decision.
Appellant resubmitted Dr. Bains’ January 14, 2013 report, with diagnostic test results.
By decision dated February 25, 2014, OWCP denied modification of the April 12, 2013
decision.
Appellant appealed to the Board on April 14, 2014. By decision dated August 21, 2014,4
the Board affirmed OWCP’s December 4, 2013 and February 25, 2014 decisions.
By letter dated May 11, 2015, counsel requested reconsideration on May 11, 2015.
In a February 17, 2015 report, Dr. Nees essentially reiterated his previous findings and
conclusions.
By decision dated May 18, 2015, OWCP denied appellant’s request for reconsideration as
it neither raised substantive legal questions, nor included relevant and pertinent new evidence
sufficient to require OWCP to review its prior decision. It found that Dr. Nees’ February 17,
2015 report was cumulative and duplicative of his previously submitted July 10, 2013 report.
By letter dated August 14, 2015, counsel requested reconsideration on August 14, 2015.
In an undated report, received by OWCP on August 17, 2015, Dr. Nees opined that there
was clear evidence of a cause and effect relationship between appellant’s stepping down from his
mail truck and the onset of his back and left leg pain. He reasoned that the force of appellant’s
body weight coming down on his leg transmitted sufficient force to his L5-S1 disc that some of
the interior disc material was forced out through the annulus fibrosus, resulting in his nerve
impingement and subsequent pain. Dr. Nees advised that appellant did not have back problems
prior to the January 11, 2013 work incident. He opined that appellant suffered a left L5-S1 disc
herniation stepping down out of his mail truck on January 11, 2013.
By decision dated August 21, 2015, OWCP denied modification. It found that while
Dr. Nees explained in his August 13, 2015 report the physiological changes that occurred in disc
herniation/impingement, he did not explain the etiology as to how the employment event caused
the diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish that 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.6 These are the essential elements of each and every
4

Id.

5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9 The medical evidence required to establish
causal relationship is usually rationalized medical evidence. 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.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship.12 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
Appellant initially submitted July 10 and September 6, 2013 reports from Dr. Nees in
which he noted appellant’s history of injury, provided diagnoses of appellant’s lumbar
conditions, and concluded that appellant’s conditions were caused by the employment incident.
These reports, however, only offered a conclusion regarding causal relationship, without
supporting medical rationale.13

7

Victor J. Woodhams, id.

8

John J. Carlone, 41 ECAB 354 (1989).

9

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

10

Supra note 8.

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

13

See R.S., Docket No. 15-1364 (issued February 22, 2016). The Board has held that medical evidence consisting
solely of conclusory statements without supporting rationale is of little probative value.

4

OWCP thereafter received an August 13, 2015 report from Dr. Nees which did provide
necessary medical rationale explaining causal relationship. Dr. Nees opined that appellant
suffered a left L5-S1 disc herniation stepping down out of his mail truck on January 11, 2013.
He advised that there was clear evidence of a cause and effect relationship between appellant’s
stepping down from his mail truck and the onset of his back and left leg pain. Dr. Nees asserted
that the force of his body weight coming down on his leg transmitted sufficient force to his L5S1 disc that some of the interior disc material was forced out through the annulus fibroses,
resulting in his nerve impingement and subsequent pain. His report, therefore, related a medical
explanation as to how the January 11, 2013 employment incident could have resulted in an injury
to appellant’s back and left leg. The report from Dr. Nees was based on a proper factual and
medical background, and provided a medical explanation explaining the nature of the
relationship between the diagnosed condition and the employment incident.14
The Board finds that Dr. Nees’ report, while not fully rationalized, is sufficient, given the
absence of any opposing medical evidence, to require further development of the record.15 It is
well established that proceedings under FECA16 are not adversarial in nature.17 The case will be
remanded to OWCP for such further development of the case record as OWCP deems necessary
followed by the issuance of a de novo decision.18
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Supra note 8.

15

See Earnest J. Reece, Jr., 32 ECAB 1508, 1510 (1981).

16

5 U.S.C. § 8101 et seq.

17

See, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71 (1956).
18

See John J. Carlone, supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: October 12, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS
& DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1780
Issued: May 11, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant, through her representative, filed a timely appeal from the
February 3, 2010 merit decision of the Office of Workers’ Compensation Programs, which
denied compensation for claimed recurrences.
Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case. The Board also has jurisdiction to review the Office’s April 22, 2010
nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant’s December 2004 employment injury caused
disability for work beginning January 2, 2006; (2) whether appellant sustained a recurrence of
her medical condition on January 15, 2008; (3) whether appellant sustained an intervening injury
at Skip’s Snack Bar (Skip’s) on January 15, 2008, thereby breaking any chain of causation with

1

5 U.S.C. § 8101 et seq.

her federal employment; and (4) whether the Office properly denied appellant’s February 22,
2010 request for reconsideration.
FACTUAL HISTORY
In 2007 appellant, a 37-year-old Casual A or temporary employee, filed a claim for
compensation alleging that her cervical and thoracic spine condition was a result of very hard
work getting the mail out every day.2 She noted that, in December 2004, she was pitching heavy
mailbags and packages around Christmas when she heard a loud pop around her right shoulder.
The Office accepted appellant’s claim for cervical spondylosis with myelopathy.
Appellant did not stop work. She was terminated from her regular duties effective
December 31, 2005. Her supervisor explained that both she and her husband worked at the
employing establishment and were not reappointed for a second term because of their repeated
violation of the employing establishment policy on conduct. They had three warnings by
different supervisors and were on their last chance.3
In September 2006, appellant began work at Skip’s filling vending machines. On
January 15, 2008 she was working at the snack bar pulling the order for the day: “I reached up
to one of the shelves to get the potato chips and felt a lot of pain from my back, down my right
arm and into my hand.” Appellant did not notify Skip’s of an injury.
On May 9, 2008 appellant claimed wage-loss compensation beginning January 2, 2006.
On June 12, 2008 she claimed a recurrence of her accepted medical condition on
January 18, 2008. Appellant marked the box “Medical Treatment Only.”
A March 27, 2006 note from Dr. Steven M. Lomazow, a Board-certified neurologist and
assistant professor of neurology at the Mount Sinai School of Medicine, stated that appellant was
disabled indefinitely. On August 9, 2007 he discussed his examination of her in March 2006 and
May 2007. Dr. Lomazow offered his opinion on causal relationship:
“[Appellant] is suffering from severely symptomatic cervical spondylosis, which
will require extensive surgical decompression of the cervical spine. Changes of
this type in [her] of this age are usually secondary to physical activity, not unlike
that which [she] has been doing in her job at the [employing establishment].
“Within a reasonable degree of medical probability, [appellant’s] job is directly
contributory to the symptomatology [she] has at the present time. She is for all
intent purposes completely disabled.”

2

A casual mail handler loads mail onto a machine and clears minor jams; loads/unloads trucks; empties
containers of mail; opens/dumps sacks of mail; transports mail and empties equipment throughout the facility; hand
stamps odd/over-sized mail; requires the ability to lift and carry up to 25 pounds on a continuous basis and up to 70
pounds on an intermittent basis.
3

The supervisor indicated on appellant’s claim form that she was last exposed to the employment factors alleged
to have caused her condition on December 31, 2005.

2

On April 3, 2008 Dr. Lomazow completed an attending physician’s form report
indicating that appellant’s injury-related neuropathy had rendered her totally disabled for work
from December 1, 2004 to the present. He stated that her condition had not improved.
On December 12, 2008 the Office denied appellant’s claim for compensation benefits. It
found that the evidence failed to establish that her disability beginning January 2, 2006 was
causally related to the December 2004 employment injury. The Office also found that the
incident at Skip’s was intervening.
On June 17, 2009 an Office hearing representative affirmed, finding that Dr. Lomazow’s
opinion had no probative value in establishing entitlement to compensation beginning
January 2, 2006. She also found that the incident at Skip’s was intervening and therefore did not
establish a recurrence.
Appellant requested reconsideration and submitted additional medical evidence. On
November 3, 2009 Dr. Lomazow stated that the incident at Skip’s was a direct consequence of
the spondylitic changes in her cervical spine. On November 17, 2009 he explained that the
underlying condition was cervical spondylosis with myelopathy, which was a consequence of
appellant’s federal employment: “The exacerbation sustained most recently at the snack bar was
superimposed upon the severe cervical spondylitic changes that were diagnosed by me in 2006.
Once again, this was a direct result of her work at the U.S. Postal Service.”
In a decision dated February 3, 2010, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that her decision to work in a position that
required physical activity such as the lifting and reaching she performed at Skip’s was
unreasonable in light of her knowledge of her condition therefore the incident at Skip’s was not
considered to be the normal progression of her medical condition.
On February 22, 2010 appellant’s representative requested reconsideration. He argued
that the Office’s February 3, 2010 decision focused on the incident at Skip’s in January 2008,
which could not be an intervening event to the disability that began in January 2006. The
representative stated that the incident at Skip’s was a direct consequence of the accepted work
injury, as Dr. Lomazow reported. He attached appellant’s statement and a copy of relevant
portions of her testimony to document what happened at Skip’s.4 The representative stated that
the medical evidence was clear that she had a very severe injury before she ever went to Skip’s
and there was no change in her condition since Skip’s. Rather, he argued, appellant was not able
to handle the job at Skip’s because of her underlying work injury.
In a decision dated April 22, 2010, the Office denied a merit review of appellant’s case.
It found that the February 22, 2010 request for reconsideration neither raised substantive legal
4

Appellant stated that she did not believe she was significantly injured at Skip’s. She stated that the pop in her
right shoulder was not significant. Appellant stated that she stopped work at Skip’s because it was going to lead to
further injury. (She testified before the hearing representative that Skip noticed that she was slacking off and
dropping things more than usual, so he sat her down and told her it was not going to workout). Appellant stated that
the postal service let her go in January 2006 because she was injured. She added that Dr. Lomazow was of the
opinion that she suffered, at most, a temporary exacerbation at the snack bar.

3

questions nor included new and relevant evidence and therefore was insufficient to warrant a
merit review of the prior decision.
On appeal, appellant’s representative argues that the Office’s reliance on appellant’s
subsequent employment at Skip’s makes no sense as to her initial disability in January 2006. He
adds that the Office has not cited one medical report of record that states that appellant’s job at
Skip’s made her condition worse. The representative argued that there was no valid reason to
term the Skip’s job an intervening event. He concludes that appellant’s neck injury was from her
federal employment and that her recurrences were from the original injury, not from her job at
Skip’s.
LEGAL PRECEDENT -- ISSUE 1
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.6
A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,7 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.8
It is not sufficient for the claimant to establish merely that she has disability for work.
She must establish that her disability is causally related to the accepted employment injury. The
claimant must submit a rationalized medical opinion that supports a causal connection between
her current 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 current disabling condition is related to the
injury.9
ANALYSIS -- ISSUE 1
Appellant claims wage-loss compensation beginning January 2, 2006. She therefore has
the burden of establishing that the disability for which she claims compensation is causally
related to her accepted employment injury.

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

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

8

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

9

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

4

The basic question raised by this claim is why appellant stopped working in
January 2006. She stated in her most recent reconsideration request that the employing
establishment let her go in January 2006 because she was injured. However, there is no evidence
of this in the record. Instead, appellant’s supervisor explained that both appellant and her
husband were not reappointed because of their repeated violation of the employing establishment
policy on conduct. Apparently, they had three warnings by different supervisors and were on
their last chance.
The factual record paints a different picture of appellant’s work stoppage in January 2006
than is reflected in her claim and supporting statements. The record shows that she was
terminated from her temporary appointment effective December 31, 2005 and for reasons
unrelated to the injury she sustained in December 2004.
Dr. Lomazow, the attending neurologist, did not demonstrate his understanding of this
factual background. He found that appellant was totally and continuously disabled for work
since December 1, 2004. However, appellant did not stop work following her December 2004
employment injury. She worked her reappointed assignment in 2005 without claiming
compensation for any disability and she continued to work regular duty until she was terminated
on December 31, 2005. Dr. Lomazow did not acknowledge these facts or attempt to reconcile
them with appellant’s claim that what happened in December 2004 caused her to become
medically disabled for work beginning January 2, 2006. Medical conclusions based on
inaccurate or incomplete histories are of little probative value.10
Dr. Lomazow found that appellant was totally disabled since December 1, 2004.
Consistent with this, he found on March 27, 2006 that she was disabled indefinitely. On
August 9, 2007 Dr. Lomazow found that appellant was for all intents and purposes completely
disabled. He made general references to “physical activity, not unlike that which [she] has been
doing in her job at the [employing establishment]”11 and to “her work at the U.S. Postal Service.”
However, Dr. Lomazow never described what appellant did at the postal service. He did not
demonstrate an understanding of the position she held or its physical demands such that he could
intelligently determine that her cervical spondylosis with myelopathy precluded her from
engaging in her former duties. Again, medical conclusions based on inaccurate or incomplete
histories are of little probative value.
So while Dr. Lomazow supported appellant’s disability for work, he did not support that
her disability began on January 2, 2006 and he did not demonstrate that he based his opinion on a
proper factual history. The Board finds that his opinion has little probative value on her claim
for wage-loss compensation beginning January 2, 2006. The Board will therefore affirm the
Office’s February 3, 2010 merit decision denying modification of its prior decision to affirm the
denial of compensation for disability.
10

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value of
medical opinions). James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value
because the history was both inaccurate and incomplete).
11

Dr. Lomazow’s use of the present perfect progressive tense indicates an incorrect understanding that appellant
continues to work at the employing establishment or just recently stopped.

5

LEGAL PRECEDENT -- ISSUE 2
A “recurrence of medical condition” means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.12
ANALYSIS -- ISSUE 2
Appellant claimed a recurrence of her medical condition on January 15, 2008 when,
while working at Skip’s, she reached up to one of the shelves to get potato chips. She stated that
she felt a pinch in her right shoulder blade and pain down her right arm and into her hand.
However, Dr. Lomazow had not released appellant from treatment for her accepted cervical
condition and it does not appear that she needed medical treatment as a result of what happened
that day. Appellant explained that she did not significantly injure herself. She did not notify the
snack bar proprietor. Appellant did not seek prompt medical attention. She saw Dr. Lomazow
over a month later, but he made no mention of the incident in his April 3, 2008 report. So there
appears to be no basis for appellant’s claim that she sustained a “recurrence of medical
condition” on January 15, 2008. Continued treatment for the original condition is not considered
a renewed need for medical care nor is examination without treatment.13
The Board will affirm the Office’s February 3, 2010 decision insofar as it denied
appellant’s claim of a recurrence of her medical condition.
LEGAL PRECEDENT -- ISSUE 3
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause attributable to the employee’s own intentional conduct.14 Once
the work-connected character of any injury has been established, the subsequent progression of
that condition remains compensable so long as the worsening is not shown to have produced by
an independent nonindustrial cause and so long as it is clear that the real operative factor is the
progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable under the circumstances. A different question is presented when the triggering
activity is itself rash in light of the claimant’s knowledge of her condition.15
ANALYSIS -- ISSUE 3
The evidence does not establish an intervening injury on January 15, 2008. The incident
itself -- reaching up to a shelf to get potato chips -- was minor, as was the result of the incident.
12

20 C.F.R. § 10.5(y).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.a (May 1997).

14

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

15

Knox, id.

6

Appellant described it as merely a warning signal. The Board does not consider her action
“rash” in light of her December 2004 injury. It must be noted that appellant did not stop work as
a result of this injury, but continued to perform the regular duties of her position through 2005,
when her employment was terminated. It must also be noted that she worked at Skip’s for
almost a year and a half before the January 15, 2008 incident and did so without apparent injury
from the duties she performed.
The mere fact that the incident in question occurred outside appellant’s former federal
employment is not sufficient to break the chain of causation. The only medical evidence
developed on this issue comes from Dr. Lomazow, who supports that the January 15, 2008
exacerbation was superimposed on and a direct consequence of the accepted spondylitic changes
in appellant’s cervical spine. In other words, he supports that the real operative factor behind
appellant’s symptomatic manifestation was the compensable injury. The Office has therefore
failed to establish that the incident at Skip’s was wholly responsible for her cervical condition
after January 15, 2008.16 This does not mean that appellant has met her burden to establish that
the incident in any way worsened her underlying cervical condition or caused any disability for
work, only that the Office has not established a legal or medical break in the chain of causation
on January 15, 2008.
The Board will set aside the Office’s February 3, 2010 decision on the issue of
intervening cause.
LEGAL PRECEDENT -- ISSUE 4
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.17 The employee shall exercise this right through a request to
the district Office.18
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.19

16

Charles R. Hollowell, 8 ECAB 352 (1955); Rudolph P. Wirth, 8 ECAB 271 (1955); see Carl Hueneberg, 4
ECAB 630 (1952) (having accepted the medical condition, the Bureau -- now the Office -- must assume the
consequence of the condition unless it can establish an intervening cause).
17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.605.

19

Id. at § 10.606.

7

A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.20 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the request for reconsideration without reopening the case for a review on the merits.21
ANALYSIS -- ISSUE 4
Following the Office’s February 3, 2010 merit decision, appellant timely requested
reconsideration. The question therefore is whether her request meets at least one of the three
standards for obtaining a merit review of her case.
Appellant’s representative argued that the Office’s February 3, 2010 decision focused on
the incident at Skip’s in January 2008, not on appellant’s disability beginning January 2006. It
was he who submitted two reports from Dr. Lomazow focusing on the incident at Skip’s. The
Office, quite naturally, focused its decision on that very matter. That it did so in response to the
evidence appellant’s representative submitted in no way establishes that the Office erroneously
applied or interpreted a specific point of law.
It is true, as appellant’s representative suggested, that the issue of intervening cause in
January 2008 has no bearing on disability in January 2006. But the Office did not contend
otherwise. It did not deny appellant’s claim for disability beginning January 2006 because of
what happened at Skip’s in January 2008. This is a mischaracterization of the Office’s
February 3, 2010 decision and does not show that the Office erroneously applied or interpreted a
specific point of law.
Appellant’s representative advanced no relevant legal argument not previously
considered by the Office with respect to disability beginning in January 2006 or with respect to
the incident at Skip’s in January 2008. The evidence he submitted -- a statement from appellant
on what happened at Skip’s, together with copies of her testimony before the Office hearing
representative -- is both cumulative and repetitive and does not constitute relevant and pertinent
new evidence not previously considered by the Office.
Because appellant’s February 22, 2010 request for reconsideration did not meet at least
one of the three standards for obtaining a merit review of her case, the Board finds that the
Office properly denied that request. The Board will therefore affirm the Office’s April 22, 2010
nonmerit decision.
Appellant’s representative argues on appeal that the Office’s February 3, 2010 “reliance”
on appellant’s employment at Skip’s makes no sense as to disability in January 2006. The Board
has addressed this matter and considers this a simple misunderstanding of the Office’s decision.
Indeed, as appellant’s representative states, the Office has cited not one medical report to support
20

Id. at § 10.607(a).

21

Id. at § 10.608.

8

that appellant’s job at Skip’s made her condition worse. The same may be said of appellant, who
has submitted medical evidence supporting only a symptomatic manifestation of the accepted
cervical condition on January 15, 2008, not a material worsening of the condition. The Board
agrees with appellant’s representative that the record offers no valid basis for considering the
January 15, 2008 incident at Skip’s an intervening cause. While the Office has accepted that
appellant sustained a neck injury in the performance of duty, the evidence does not establish that
her disability for work beginning January 2006 was a result of that injury or that on January 15,
2008 she sustained a recurrence of medical condition, as that phrase is defined.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her
December 2004 employment injury caused disability for work beginning January 2, 2006 nor has
she established a recurrence of medical condition on January 15, 2008. The Board further finds
that the Office has failed to establish that the incident at Skip’s on January 15, 2008 was an
intervening cause. The Board also finds that the Office properly denied appellant’s February 22,
2010 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. The Office’s February 3, 2010 decision is set
aside on the issue of intervening cause and is otherwise affirmed.
Issued: May 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9