United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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Appearances:
Dr. Benjamin Zvenia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2308
Issued: September 1, 2010

Case Submitted on the Record

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

JURISDICTION
On September 17, 2009 appellant, through counsel, filed a timely appeal of the April 16,
2009 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective January 20, 2008 on the grounds that she no longer had any residuals or
disability causally related to her September 30, 2003 employment injury; and (2) whether she
had any continuing employment-related residuals or disability after January 20, 2008.
On appeal, appellant’s attorney contends that medical reports from attending physicians
are sufficient to establish that appellant suffers from residuals that require medical treatment due
to her September 30, 2003 employment injury. He further contends that the impartial medical
specialist did not conduct a thorough medical examination or provide a sufficiently rationalized

medical opinion to establish that she no longer had any residuals of her accepted condition. His
opinion was not based on a proper factual and medical background. The impartial medical
specialist failed to apply the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) in determining appellant’s permanent
impairment. He did not properly refute the findings of an attending physician who found that
she had annular tears at L4-5 and L5-S1.
FACTUAL HISTORY
The Office accepted that on September 30, 2003 appellant, then a 36-year-old
transportation security screener, sustained a lumbar strain while in the performance of duty.
On August 5, 2004 the Office referred appellant, together with a statement of accepted
facts and medical record, to Dr. Jerrold M. Sherman, a Board-certified orthopedic surgeon, for a
second opinion medical examination to determine the nature and extent of her employmentrelated injury and disability and appropriate treatment. In an August 27, 2004 medical report,
Dr. Sherman found that her September 30, 2003 lumbar strain had resolved without neurologic
deficit. Appellant did not require any further medical treatment. She could perform her regular
work duties as a transportation security screener with no restrictions. Dr. Sherman stated that
findings on physical and x-ray examination were consistent with a normal lumbar spine.
On November 10, 2004 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Sherman’s August 27, 2004 medical
opinion. Appellant was afforded 30 days to respond to this notice.
In reports dated December 3 and 11, 2004, Dr. George M. Oehlsen, an attending
osteopath, advised that appellant sustained sacroiliitis, piriformis contractures and lumbar
sprain/strain due to the September 30, 2003 employment injury. Appellant was totally disabled
from December 11, 2004 to January 8, 2005.
By decision dated February 24, 2005, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to her accepted employment-related injury, effective
February 19, 2005. It found that Dr. Sherman’s August 27, 2004 opinion constituted the weight
of the medical opinion evidence. On March 21, 2005 appellant requested an oral hearing before
an Office hearing representative.
In a September 1, 2005 decision, an Office hearing representative set aside the
February 24, 2005 decision and remanded the case to the Office. She found a conflict in the
medical opinion evidence between Dr. Sherman and Dr. Oehlsen as to whether appellant had any
continuing residuals of the September 30, 2003 employment injury. On remand, the hearing
representative instructed the Office to refer appellant to an appropriate impartial medical
examiner to resolve the conflict.
By letter dated November 29, 2005, the Office referred appellant, together with a
statement of accepted facts and medical record, to Dr. Donald R. MacKay, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a January 24, 2006 report,
Dr. MacKay listed normal findings on physical and objective examination. He diagnosed

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lumbosacral and coccygeal pain of uncertain cause and lumbar strain secondary to the
September 30, 2003 injury. Dr. MacKay stated that the cause of appellant’s continuing
complaint of back pain was uncertain because it was not supported by his objective findings but
she did not require any further medical treatment. He advised that, although she could not
perform her regular work duties due to pain, she could work eight hours per day with restrictions.
On February 9, 2006 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. MacKay’s January 24, 2006 medical
opinion. Appellant was afforded 30 days to respond to this notice.
In reports dated December 31, 2005 to January 15, 2006, Dr. Oehlsen reiterated his prior
opinion that appellant’s sacroiliitis, piriformis contractures and lumbar sprain/strain were
causally related to the September 30, 2003 employment injury and that she was totally disabled
for work. He listed her physical restrictions in a September 25, 2005 work capacity evaluation.
In reports dated May 17 and July 13, 2005, Dr. Samuel A. Wise, a Board-certified
physiatrist, advised that appellant possibly sustained spina bifida occulta, chronic valve
syndromes and other autoimmune diseases.
By decision dated March 13, 2006, the Office terminated appellant’s compensation for
wage-loss and medical benefits effective that date. The medical evidence submitted was found
insufficient to outweigh the special weight accorded to Dr. MacKay’s impartial medical opinion.
By letter dated April 6, 2006, appellant requested a telephonic hearing with an Office hearing
representative.
In a June 22, 2006 decision, an Office hearing representative set aside the March 13,
2006 termination decision and remanded the case to the Office to obtain a supplemental report
from Dr. MacKay clarifying his opinion that there were no objective findings of employmentrelated disability, yet appellant was unable to perform full-duty work. It was unclear whether he
prescribed work restrictions due to residuals of the September 30, 2003 employment injury or for
some other reason, such as her resistance to return to work or the possibility of future injury.
In a July 6, 2006 supplemental report, Dr. MacKay stated that, on an objective basis,
appellant should be able to return to her regular work duties. However, due to appellant’s
ongoing complaints of pain, he stated that she should be assigned light-duty work which would
decrease the risk of reinjuring her back.
By decision dated July 17, 2006, the Office terminated appellant’s compensation for
wage-loss and medical benefits effective that date. It found that Dr. MacKay’s medical opinion
was entitled to special weight accorded an impartial medical specialist. On August 6, 2006
appellant requested an oral hearing.
In a July 19, 2007 decision, an Office hearing representative set aside the July 17, 2006
termination decision and remanded the case to the Office to obtain a supplemental report from
Dr. MacKay as to whether diagnostic test results of record demonstrated that appellant’s
continuing back pain was causally related to the September 30, 2003 employment injury.

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Due to Dr. MacKay’s retirement in 2006, the Office, on September 27, 2007, referred
appellant, together with a statement of accepted facts and medical record, to Dr. Reynold L.
Rimoldi for an impartial medical examination.
In an October 31, 2007 report, Dr. Rimoldi reviewed a history of appellant’s
September 30, 2003 injury, medical treatment and smoking background. He noted her complaint
of lumbar spine pain with radiation down both lower extremities with the main discomfort
located in her lumbar spine. Appellant rated her pain 8 out of 10 at the time of Dr. Rimoldi’s
examination and stated that it was 10 out of 10 at its worse level. Dr. Rimoldi listed essentially
normal findings on physical examination. Appellant did not use any type of lateral support. She
did not wear a brace or corset. No trigger points were noted. Motor and sensory examinations of
the lower extremities including, key dermatomes and myotomes tested from L3 to S1 were
intact. Reflexes were two out of four and symmetrical at the patella and Achilles. Straight leg
raising was negative and hip range of motion did not increase appellant’s pain. Appellant had
five percent limitation of the lumbar spine range of motion with diffuse tenderness throughout
the lumbosacral region.
Dr. Rimoldi diagnosed nonspecific lumbar enthesopathy. He stated that it was reasonable
that appellant sustained a soft tissue lumbar sprain/strain injury as a result of the September 30,
2003 injury. Dr. Rimoldi stated that, following conservative treatment, a magnetic resonance
imaging (MRI) scan showed no objective findings. He noted Dr. MacKay’s opinion that there
were no objective findings to explain appellant’s ongoing complaints and that she could perform
her regular work duties. Dr. Rimoldi advised that contrary to the finding of Dr. Michael J.
McKenna, a Board-certified anesthesiologist, that a discogram showed annular tears at L4-5 and
L5-S1, a January 2004 MRI scan did not demonstrate this condition. He opined that there were
no objective findings to support appellant’s continuing subjective complaints of pain. Appellant
did not have any ratable impairment. Dr. Rimoldi advised that she could perform her regular
work duties with no restrictions.
On November 16, 2007 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Rimoldi’s October 31, 2007 impartial
medical opinion. Appellant was afforded 30 days to respond to this notice.
In an April 4, 2005 report, Dr. Wise listed findings on physical examination and reviewed
diagnostic test results. He advised that appellant had increased angulation of the lumbar spine at
L5-S1 and otherwise straight lumbar spine. Appellant also had scoliosis, which may have been a
structural problem. In a February 14, 2007 report, Dr. Wise stated that her complaint of
continuing and worsening back pain was consistent with Dr. McKenna’s finding that she had
tears at L4-5 and L5-S1.
In a November 30, 2006 report, Dr. McKenna provided the results of a provocation
discography of L3-4, L4-5 and L5-S1. The L3-4 and L4-5 discs were negative, producing no
pain at pressures greater than 100 psi. The L5-S1 disc produced concordant pain at 70 psi, 67 psi
above opening pressure. According to ISIS criteria, the L5-S1 disc was indeterminate.
Dr. McKenna stated that a subsequent computerized tomography (CT) scan demonstrated
annular tears at L4-5 and L5-S1. The study suggested that the L5-S1 segment was appellant’s
pain generator at a relatively high pressure. In reports dated December 13, 2006 to

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December 18, 2007, Dr. McKenna listed essentially normal findings on physical examination
and diagnosed axial back pain with lumbar disc pathology at L4-5 and L5-S1, bilateral lower
extremity, probable significant lumbar zygapophyseal facet joint pain and a history of mitro
valve prolapse. In a December 3, 2007 report, he recommended additional testing as the source
of appellant’s persistent pain could not be determined and treated. A discography and CT scan
did not confirm that her pain was discogenic.
By decision dated January 14, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits with regard to her accepted employment-related injury,
effective January 20, 2008. It accorded special weight to Dr. Rimoldi’s October 31, 2007
impartial medical opinion.
On January 13, 2009 appellant, through counsel, requested reconsideration. In reports
dated January 15 through February 21, 2008, Dr. McKenna reiterated his prior finding that
appellant had axial back pain with lumbar disc pathology at L4-5 and L5-S1, bilateral lower
extremity and probable significant lumbar zygapophyseal facet joint pain, an indeterminate
provocation discography at L5-S1 and a history of mitro valve prolapse. In a December 2, 2008
report, Dr. Allan P. Long, a Board-certified chiropractic neurologist, reviewed a history of
appellant’s September 30, 2003 injury and medical treatment. He listed findings on physical
examination and diagnosed lumbar sprain/strain, muscle spasm and sacroiliac sprain/strain.
Dr. Long opined that appellant continued to experience residuals of the accepted injury and she
was totally disabled for work. He stated that, more than likely, she had ongoing zygapophyseal
joint damage with associated nerve irritation, which could account for most of her
symptomatology that was complicated by annular disc tears at L4-5 and L5-S1, which could also
produce associated symptoms.
By decision dated April 16, 2009, the Office denied modification of the January 14, 2008
termination decision. It found that the evidence submitted by appellant was insufficient to
overcome Dr. Rimoldi’s impartial medical opinion.1
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3 Furthermore, the right to medical
1

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before the Office at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003). Appellant may resubmit this evidence and legal contentions to the Office
accompanied by a request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.4
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.5
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of January 20, 2008 on the grounds that she had no
residuals or disability of the accepted employment-related lumbar strain. The Board notes that a
conflict in the medical opinion evidence arose between Dr. Oehlsen, an attending physician, and
Dr. Sherman, an Office referral physician, regarding whether she had any residuals or disability
causally related to the September 30, 2003 employment injury. Dr. Oehlsen opined that
appellant sustained sacroiliitis, piriformis contractures and lumbar sprain/strain and was totally
disabled due to the employment injury. Dr. Sherman opined that the employment injury had
resolved and she could return to her regular work duties as a transportation security screener with
no restrictions.
The Office referred appellant to Dr. Rimoldi, the impartial medical specialist who
provided an accurate history of injury and detailed essentially normal findings on physical
examination with five percent limitation of the lumbar spine range of motion and diffuse
tenderness throughout the lumbosacral region. In an October 31, 2007 report, Dr. Rimoldi
opined that there were no objective findings to support appellant’s subjective complaints of pain
and that she could perform her regular work duties with no restrictions. On examination, he
found that she did not use any type of lateral support. Appellant did not wear a brace or corset.
Dr. Rimoldi found no trigger points, intact sensory and motor function of the bilateral lower
extremities, symmetrical reflexes at the patella and Achilles and negative straight leg raising. He
stated that hip range of motion did not increase appellant’s pain. Dr. Rimoldi reviewed a
January 2004 MRI scan which did not demonstrate annular tears at L4-5 and L5-S1. He
diagnosed nonspecific lumbar enthesopathy.
The Board finds that Dr. Rimoldi’s opinion is entitled to special weight accorded an
impartial medical specialist and is sufficiently well reasoned and detailed to resolve the conflict
of medical opinion evidence. Dr. Rimoldi provided extensive findings on physical examination
and explained why he felt that appellant’s current symptoms and disability were not causally
related to the September 30, 2003 employment-related lumbar strain. The Board finds, therefore,
that the Office met its burden of proof to terminate her compensation and medical benefits
effective January 20, 2008.

4

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

5

Gloria J. Godfrey, 52 ECAB 486 (2001).

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Appellant did not submit any rationalized medical evidence to overcome the weight of
Dr. Rimoldi’s opinion or to create a new conflict. Dr. Wise’s April 4, 2005 and February 14,
2007 reports found that she had increased angulation of the lumbar spine at L5-S1 and tears at
L4-5 and L5-S1. His report failed to provide a rationalized medical opinion explaining how the
diagnosed conditions were causally related to appellant’s accepted employment injury. Reports
that do not provide a rationalized medical opinion on the causal relationship of the condition are
insufficient to create another conflict or overcome the special weight accorded an impartial
specialist’s opinion.6
Dr. McKenna’s November 30, 2006 report found that a provocation discography
demonstrated negative L3-4 and L4-5 discs, which did not produce any pain at pressure points
greater than 100 psi. He stated that the L5-S1 disc produced concordant pain at 70 psi but was
indeterminate based on ISIS criteria. A CT scan showed annular tears at L4-5 and L5-S1.
Dr. McKenna opined that the L5-S1 segment was appellant’s pain generator. His reports dated
December 13, 2006 to December 18, 2007 found that she had axial back pain, “probable”
significant lumbar zygapophyseal facet joint pain and a history of mitro valve prolapse. A
provocation discography at L5-S1 was “indeterminate” for pain. Pain is a symptom, not a
compensable medical diagnosis. Further, Dr. McKenna did not provide a firm diagnosis of a
compensable condition, but only provided a speculative diagnosis of pain.7 In a December 3,
2007 report, he recommended additional testing to determine the source of appellant’s pain.
Moreover, none of Dr. McKenna’s reports provided an opinion on the causal relationship
between her lumbar pain and the September 30, 2003 employment injury.8
LEGAL PRECEDENT -- ISSUE 2
Following the proper termination of benefits, the claimant has the burden to establish
continuing employment-related residuals and/or disability with probative medical evidence.9
The medical evidence required to establish a causal relationship, generally, is rationalized
medical evidence. Rationalized medical evidence is medical evidence, which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated 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

6

Alice J. Tysinger, 51 ECAB 638, 646 (2000).

7

See C.F., 60 ECAB __ (Docket No. 08-1102, issued October 10, 2008) (pain is a symptom, not a compensable
medical diagnosis); Robert Broome, 55 ECAB 339, 342 (2004).
8

Alice J. Tysinge, supra note 6.

9

See Talmadge Miller, 47 ECAB 673 (1996).

10

Joe L. Wilkerson, 47 ECAB 604 (1996); Alberta S. Williamson, 47 ECAB 569 (1996).

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ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals or
total disability after January 20, 2008 due to her September 30, 2003 injury. Dr. McKenna’s
January 15 through February 21, 2008 reports reiterated his prior finding that appellant had axial
back pain with lumbar disc pathology at L4-5 and L5-S1, bilateral lower extremity and probable
significant lumbar zygapophyseal facet joint pain, a history of mitro valve prolapse and an
indeterminate provocation discography at L5-S1 for pain. As stated, this evidence is of
diminished probative value as it failed to provide a firm diagnosis and a rationalized opinion on
the causal relationship between appellant’s lumbar pain and the accepted injury and whether
there was any resulting disability.
Dr. Long’s December 2, 2008 report found that appellant’s lumbar sprain/strain, muscle
spasm and sacroiliac sprain/strain and disability for work were causally related to the
September 30, 2003 injury. He also found that she “more than likely” suffered from ongoing
zygapophysial joint damage with associated nerve irritation, which accounted for most of her
symptomatology that was complicated by annular disc tears at L4-5 and L5-S1, which could also
produce associated symptoms. Dr. Long did not provide a rationalized medical opinion
addressing the causal relationship between the diagnosed conditions and the September 30, 2003
injury.11 Further, he did not provide a firm diagnosis of a compensable condition but, only
provided a speculative diagnosis of zygapophyseal joint damage.12
The Board finds that appellant did not submit sufficiently rationalized medical evidence
to substantiate that the claimed continuing residuals or disability on or after January 20, 2008
were causally related to her employment-related lumbar strain.
The Board notes that, while Dr. Rimoldi opined that appellant had no ratable impairment
without referencing the A.M.A., Guides, the relevant issue in this case is whether the Office
properly terminated her compensation and medical benefits on the grounds that she no longer
had any residuals and total disability causally related to the September 30, 2003 injury. As the
Board has found, the Office met its burden of proof to terminate compensation benefits in this
case based on the special weight accorded to Dr. Rimoldi’s impartial medical opinion.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
January 20, 2008 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related lumbar strain. The Board also finds that she failed to
meet her burden of proof that she had continuing disability or residuals causally related to the
September 30, 2003 employment injury.

11

Alice J. Tysinge, supra note 6.

12

C.F., supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the April 16, 2009 and January 14, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scottsboro, AL, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1369
Issued: September 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 4, 2015 appellant, through counsel, filed a timely appeal from a May 22, 2015
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 in the
performance of duty on March 15, 2014.
FACTUAL HISTORY
On March 24, 2014 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 15, 2014 he sustained an injury to his upper right
arm. He described the cause of injury as possibly loading trays or closing the vehicle door.
1

5 U.S.C. § 8101 et seq.

Appellant stated that constant repetitive motion intensified the pain.2 He did not stop work at the
time of the alleged injury.
In a report dated March 17, 2014, Dr. Anthony Sims, a Board-certified family
practitioner, noted that appellant reported neck and shoulder pain with a gradual onset of
symptoms. Appellant reported that it was job related but “not being accident related.” By form
report (Form CA-20) dated March 18, 2014, Dr. Sims diagnosed back pain and cervicalgia. He
checked a box “yes” that the diagnosed conditions were “aggravated by job duties.” In a report
dated March 24, 2014, Dr. Sims again diagnosed back pain and cervicalgia.
Dr. Sims referred appellant to Dr. Curt Freudenberger, a Board-certified orthopedic
surgeon. In a report dated April 2, 2014, Dr. Freudenberger provided a history that appellant had
chronic neck pain 10 years earlier and had two cervical surgeries.3 He stated that appellant was
seen for neck pain with recent onset on March 15, 2014. The history states that on March 15,
2014 appellant “was working at a task that required a lot of twisting” and he had an acute onset
of right upper extremity pain, and pain in the right L4 distribution. Dr. Freudenberger provided
results on examination and discussed the results of diagnostic testing. He reported x-rays taken
that date showed fusions at C5-6 and C6-7, with advanced stenosis at C6-7. Dr. Freudenberger
also noted that thoracic spine x-rays showed degenerative changes, and lumbar x-rays showed
right L4-5 facet hypertrophy. He diagnosed cervical spondylosis, cervical neural foraminal
stenosis, lumbar spondylosis, and cervical radiculopathy. In the addendum statement,
Dr. Freudenberger stated that appellant reported a substantial increase in neck pain beginning
March 15, 2014. He indicated that appellant had pain radiating into both the right arm and right
leg, and appellant should continue physical therapy and work sedentary duty.
In a report dated April 21, 2014, Dr. Freudenberger provided results on examination and
indicated that a magnetic resonance imaging (MRI) scan showed C6-7 stenosis. He
recommended C6-7 surgery.
By letter dated July 11, 2014, OWCP requested additional factual and medical evidence
with respect to the claim. It asked appellant to provide a detailed description as to how the injury
occurred, and noted that it was not clear whether he was claiming a traumatic injury (from one
workday) or an occupational claim (more than one workday). In addition, appellant was advised
to submit medical evidence.
In an undated statement received on July 27, 2014, appellant stated that he had two prior
neck surgeries and these surgeries and subsequent treatment were related to constant repetitive
motion of his job duties, including, standing, walking, driving, twisting, reaching, and lifting. He
stated that on March 15, 2014 while delivering his route his usual neck and back pain increased
and progressed into his right arm and leg. Appellant indicated that he had returned to modified
2

The record indicates that appellant has filed additional claims for injury to his neck. Appellant filed a traumatic
injury claim for a neck injury on June 7, 2014. He filed an occupational disease claim (Form CA-2) dated
September 23, 2014 alleging that his job duties had contributed to a neck condition, including prior cervical disc
fusion surgeries.
3

The report was prepared by a physician assistant, but includes an addendum statement and signature by
Dr. Freudenberger.

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work on April 3, 2014. According to appellant, he had another injury on June 7, 2014 when he
bent over a hamper and was struck in the forehead with a small parcel thrown by a coworker,
causing increased pain to the neck, shoulder and arm.4 Appellant stated that he had not worked
in over a month. He also asserted that the July 11, 2014 letter from OWCP did not include an
attached questionnaire regarding the injury.
Appellant submitted an August 7, 2014 report from Dr. Sims, stating that appellant was
treated on March 24 and May 5, 2014 for a neck injury on March 15, 2014. Dr. Sims stated that
appellant’s preexisting condition had been aggravated by job duties, with repetitive twisting,
lifting, and overhead work.
By decision dated August 14, 2014, OWCP denied the claim for compensation. It found
appellant had not submitted sufficient factual information to establish that an incident occurred
as alleged. In addition, OWCP found the medical evidence was insufficient.
Appellant, through counsel, requested a hearing before an OWCP hearing representative.
He submitted a September 22, 2014 report from Dr. Freudenberger, who stated that the date of
injury was March 15, 2014 and referred to his April 2, 2014 report. Counsel stated that appellant
had reported an increased pain radiating into the arms and the right arm radiculopathy was
consistent with C7 nerve root radiculopathy. On October 7, 2014 appellant submitted an undated
statement that again explained he had increased pain on March 15, 2014 while delivering mail.
He stated that the severity of the pain and the symptoms involving the right side of his body
prompted him to seek treatment on March 17, 2014.
A hearing was held on March 18, 2015. Appellant stated that he had been working for
the past nine months in a “temporary management job” at the employing establishment.
According to counsel, on March 15, 2014 appellant was assigned different duties that involved
more lifting and bending. He stated that it was not a specific incident but the “totality of that
day.” Appellant stated that he had to case two routes on March 15, 2014, and there was heavy
mail volume and parcel delivery.
With respect to additional medical evidence, appellant submitted reports dated March 16
and April 6, 2015 from Dr. Alan Elliot, a Board-certified internist, who indicated that appellant
was seen for evaluation of myalgias and arthralgias, related to muscle pain and spasms for the
prior 20 years.
By decision dated May 22, 2015, the hearing representative affirmed the denial of the
claim. He indicated that appellant had established an incident on March 15, 2014, but the
medical evidence was insufficient to establish the claim for compensation.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”5 The
4

As noted above, appellant filed a traumatic injury claim for injury on June 7, 2014.

5

5 U.S.C. § 8102(a).

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phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”6 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.7 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.8
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.9 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.10
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.11
ANALYSIS
In the present case, appellant submitted a traumatic injury claim alleging an injury on
March 15, 2014. The Board notes that, while appellant had referred to general job duties
performed over a long period, he also filed an occupational disease or illness claim on
September 23, 2014.12 That claim is not before the Board on this appeal. The claim in this case
is for a traumatic injury resulting from work duties performed on March 15, 2014.

6

Valerie C. Boward, 50 ECAB 126 (1998).

7

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

8

See John J. Carlone, 41 ECAB 354, 357 (1989).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

10

Id. at Chapter 2.805.3(d) (January 2013).

11

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

12

A traumatic injury is an injury caused by an incident or incidents within one workday or shift. 20 C.F.R.
§ 10.5(ee). An occupational disease or illness is a condition produced by the work environment over more than one
workday or shift. 20 C.F.R. § 10.5(q).

4

Appellant alleged that on March 15, 2014 he delivered mail and was engaged in activity
that including lifting, bending, and casing mail. He indicated that mail volume was heavy and he
had to case two routes. The hearing representative accepted that the alleged employment activity
occurred on March 15, 2014. The issue is whether there was sufficient medical evidence to
establish a diagnosed condition causally related to the employment activity.
The Board finds the evidence of record does not contain a rationalized medical opinion
on the issue presented. Appellant was treated by Dr. Sims on March 17, 2014 but he did not
provide an accurate history of the March 15, 2014 employment incident. Dr. Sims reported a
gradual onset of symptoms, and stated there was no accident involved. In the March 18, 2014
CA-20 form report, as well as the brief August 7, 2014 report, he referred to aggravation by job
duties. As noted, the occupational disease claim is not before the Board on this appeal.
In the April 2, 2014 report, Dr. Freudenberger provides a history of a lot of twisting on
March 15, 2014, without further explanation. He does not discuss the specific job duties alleged
by appellant, or otherwise provide a complete and accurate factual history. Moreover,
Dr. Freudenberger does not provide a rationalized medical opinion. He diagnosed cervical
spondylosis, cervical neural foraminal stenosis, lumbar spondylosis, and cervical radiculopathy
Dr. Freudenberger stated that appellant had increased symptoms on March 15, 2014, without
explaining how the job duties on March 15, 2014 contributed to a diagnosed condition. Medical
rationale is a medically sound explanation for the opinion offered.13 Dr. Freudenberger does not
provide a medically sound explanation on causal relationship between a diagnosed condition and
work incidents on March 15, 2014.
The September 22, 2014 report from Dr. Freudenberger refers to the April 2, 2014 report
without providing additional relevant evidence on the issue presented. Dr. Elliot did not provide
a complete history or a rationalized opinion on the relevant medical issue in his March 16 and
April 6, 2015 reports.
The Board finds that appellant did not meet his burden of proof in this case. The record
does not contain a medical report with a complete and accurate history and a medical opinion,
supported by sound medical reasoning, on causal relationship between a diagnosed condition and
the March 15, 2014 work incident.
On appeal, appellant’s counsel states that Dr. Freudenberger’s report is sufficient to
establish causal relationship. For the reasons discussed, the Board finds Dr. Freudenberger’s
reports are not sufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

13

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB
641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on March 15, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2015 is affirmed.
Issued: September 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MS, Employer
__________________________________________

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

Docket No. 11-1093
Issued: November 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 29, 2011 appellant filed a timely appeal from the December 10, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a
loss of wage-earning capacity decision. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied modification of its March 23, 2010 loss of
wage-earning capacity decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 3, 2008 appellant, then a 46-year-old cook, filed a traumatic injury claim
alleging that he sustained injuries to his legs and back at work on February 28, 2008 when he fell
from a table while cleaning a hood vent. OWCP accepted his claim for cervical disc herniation
at C3-4 and bilateral knee abrasions and placed him on the periodic rolls. On December 22,
2008 appellant underwent authorized neck surgery, which was performed by Dr. Terry C. Smith,
a treating physician.
On June 4, 2009 OWCP asked Dr. Smith for an updated medical assessment regarding
appellant’s condition and his ability to return to work. In a June 14, 2009 work capacity
evaluation, Dr. Smith advised that appellant could return to full-time employment with
permanent restrictions, including climbing, lifting and reaching above the shoulder no more than
four hours a day. He also restricted appellant from lifting more than 25 pounds above the
shoulder. Dr. Smith noted that appellant’s job description was not available for his review.
Based on Dr. Smith’s work restrictions, OWCP referred appellant for vocational
rehabilitation on September 10, 2009. A rehabilitation plan was developed with the objective of
securing new employment as either a cashier or a short order cook, based upon the rehabilitation
counselor’s determination that the positions were reasonably available in the local labor market
and were compatible with appellant’s medical restrictions. OWCP approved the plan and
advised appellant on November 19, 2009 that he would be given job placement assistance for 90
days, after which his compensation would be reduced based on the constructed position if he
failed to secure employment.
The record contains a position description for short order cook (Dictionary of
Occupational Titles (DOT #313.374.014). Duties of the position included: preparing and
serving restaurant patrons at counters or tables; cooking foods requiring short preparation time;
carving meats; making sandwiches; brewing coffee; and cleaning food preparation equipment
work area and counter or tables. Physical requirements are described as “light,” which is defined
as “20 pounds, occasionally (activities or conditions exist up to 1/3 of the time); 10 pounds,
frequently (activities or conditions exist from 1/3 to 2/3 of the time); 10 pounds, constantly
(activities or conditions exists 2/3 or more of the time.” The position also requires frequent
reaching, handling and fingering.”
On February 18, 2010 OWCP issued a notice of proposed reduction of compensation, on
the grounds that appellant was no longer totally disabled and had the capacity to earn the wages
of a short order cook at the rate of $290.00 a week. Noting the rehabilitation counselor’s
conclusion that, based upon his experience, education, medical restrictions and a labor market
survey, appellant was qualified for the position and that sufficient positions are reasonably
available in his commuting area, OWCP found that the position of short order cook was
medically and vocationally suitable and fairly and reasonably represented his wage-earning
capacity. It determined that his compensation would be reduced to $307.97 every four weeks;
that his salary on February 29, 2008, the date of his injury, was $349.97 a week; that the current
adjusted pay rate for his job on the date of injury was $433.85 a week; that he was currently
capable of earning $290.00 a week, the pay rate of a short order cook; that he had a 67 percent
wage-earning capacity, which resulted in an adjusted wage-earning capacity of $234.48 a week.

2

OWCP then determined that appellant had a loss of wage-earning capacity of $115.49 a week.
Based upon a 75 percent rate, appellant’s new compensation rate was $76.99 a week. A copy of
the February 18, 2010 proposed reduction was sent to appellant, who was provided 30 days to
submit additional evidence or argument in support of any objection to the proposed reduction.
The record does not reflect that any additional information was received within the 30-day
period.
By decision dated March 23, 2010, OWCP finalized the reduction of appellant’s
compensation benefits effective that date, in accordance with the computations contained in the
February 18, 2010 notice of proposed reduction of compensation.
On May 29, 2010 appellant requested reconsideration of the March 23, 2010 decision,
contending that he was physically unable to perform the duties of the constructed position. He
submitted physical therapy notes, mental health records from Anthony Williams, a psychologist,
unsigned notes from McKensie Institute regarding a cervical spine condition and a prescription
for physical therapy from a nurse practitioner.
By decision dated August 12, 2010, OWCP denied modification of the March 23, 2010
decision, finding that the medical evidence did not establish that appellant’s condition had
worsened since the original decision and did not indicate that the duties of short order cook were
beyond his capabilities.
On October 18, 2010 appellant again requested reconsideration, contending that his
accepted condition had worsened. He submitted nursing notes dated August 5, 2010 and a
disability slip from Dr. William McCutcheon, a treating physician, dated March 8, 2008.
By decision dated December 12, 2010, OWCP denied modification of the March 23,
2010 decision. The claims examiner found that the evidence was insufficient to establish that
appellant was incapable of performing the duties of a short order cook with respect to his
accepted employment-related condition.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.2 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 wage-earning 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 suitable employment and other

2

20 C.F.R. §§ 10.402, 10.403 (2006); see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

3

factors and circumstances which may affect wage-earning capacity in his or her disabled
condition.3
OWCP must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
medical evidence on which it relies must provide a detailed description of appellant’s condition.4
Additionally, a wage-earning capacity determination must be based on a reasonably current
medical evaluation.5
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a wage-earning capacity specialist for selection
of a position listed in the Department of Labor’s Dictionary of Occupational Titles (DOT) or
otherwise available in the open labor market, that fits the employee’s capabilities with regards to
his or her physical limitations, education, age and prior experience. Once this selection is made,
a determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in the Shadrick decision will result in the percentage of the employee’s loss
of wage-earning capacity.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was erroneous.7 The burden of proof is on the party
seeking modification of the wage-earning capacity determination.8
ANALYSIS
The March 23, 2010 wage-earning capacity determination was premised on appellant’s
ability to work full time as a short order cook. The Board finds that OWCP failed to establish
that the constructed position of short order cook fairly and reasonably represented appellant’s
wage-earning capacity. Therefore, the March 23, 2010 loss of wage-earning capacity decision
was erroneous and OWCP improperly denied modification.
A rehabilitation plan was developed, and the constructed short order cook position was
selected, based on work restrictions contained in Dr. Smith’s June 14, 2009 work capacity
evaluation. The duties of the position, however, did not comport with Dr. Smith’s restrictions,
3

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

4

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28
ECAB 43 (1976).
5

Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

6

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

7

Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

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which precluded appellant from climbing, lifting and reaching above the shoulder more than four
hours a day or lifting more than 25 pounds above the shoulder. The constructed position
required: preparing and serving restaurant patrons at counters or tables; cooking foods requiring
short preparation time; carving meats; making sandwiches; brewing coffee; and cleaning food
preparation equipment work area and counter or tables. These activities reasonably would
involve reaching and lifting.9 As the physical requirements of the short order cook position,
which were described as “light,” involved performing these activities frequently (from 1/3 to 2/3
of the time) and constantly (2/3 or more of the time), they exceeded appellant’s restrictions of
lifting and reaching no more than four hours a day.
As noted, the medical evidence on which OWCP relies in determining appellant’s
medical condition and work restrictions must provide a detailed description of his condition.10
Dr. Smith’s June 14, 2009 work capacity evaluation did not contain examination findings, an
accurate factual and medical history or adequate explanation as to how he arrived at his
recommendations. Dr. Smith did not express an opinion as to whether appellant could perform
the duties of the constructed position, as he did not have an opportunity to review the job
description for short order cook. The Board finds his June 14, 2009 report to be of limited
probative value and insufficient to establish that appellant has the physical capacity to perform
the duties of a short order cook.
The evidence establishes that the original March 23, 2010 loss of wage-earning capacity
(LWEC) decision was erroneous. The Board finds, therefore, that a modification of the decision
is warranted and OWCP’s December 10, 2010 decision must be reversed.11
CONCLUSION
The Board finds that OWCP improperly determined that the constructed position of short
order cook represented appellant’s wage-earning capacity.

9

The position description also indicated that appellant would be required to perform frequent reaching, handling
and lifting.
10

See supra note 4.

11

Tamra McCauley, 51 ECAB 375, 377 (2000). The Board notes that as the original decision was erroneous, it is
not necessary to address whether appellant’s condition worsened to the degree that a modification of the LWEC
decision was warranted.

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ORDER
IT IS HEREBY ORDERED THAT the December 10, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 18, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 16-1333
Issued: February 21, 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 June 14, 2016 appellant filed a timely appeal from a December 17, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from, the date of the last OWCP merit decision, dated May 1, 2015 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after the December 17, 2015 decision
was issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its
final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 5, 2011 appellant, a 62-year-old maintenance mechanic, filed a traumatic injury
claim (Form CA-1), alleging that he sustained an injury to his right shoulder as a result of
working on a mail jam on that date. OWCP accepted the claim for right rotator cuff tear and
shoulder impingement syndrome and authorized right shoulder surgery, which appellant
underwent on September 27, 2011.
OWCP referred appellant to Dr. Medhat A. Kader, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of his accepted conditions. In
a February 3, 2012 report, Dr. Kader found that appellant had not yet reached maximum medical
improvement and released him to modified duty with restrictions.
On August 1, 2012 appellant filed a claim for a recurrence of disability (Form CA-2a).
By decision dated September 12, 2012, OWCP accepted appellant’s claim for a recurrence of
total disability on July 26, 2012.
On October 28, 2013 appellant filed a claim for a schedule award (Form CA-7) and
submitted a February 20, 2014 report from Dr. Jack Goldstein, a Board-certified orthopedic
surgeon, who opined that appellant had 10 percent permanent impairment of the right upper
extremity.
In a July 3, 2014 report, OWCP’s medical adviser reviewed the evidence of record and
concluded that appellant had six percent permanent impairment of the right upper extremity
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (here after A.M.A., Guides) (2009).
By decision dated May 1, 2015, OWCP granted appellant a schedule award for six
percent permanent impairment of the right upper extremity for 18.72 weeks and a fraction of a
day for the period October 17, 2013 to February 25, 2014.
On November 16, 2015 appellant requested reconsideration and submitted a narrative
statement reiterating his claim that he was entitled to a schedule award for 10 percent permanent
impairment to the right upper extremity based on Dr. Goldstein’s February 20, 2014 report and
expressed his willingness to see another doctor for a new impairment rating. Appellant also
resubmitted a February 3, 2012 second opinion report from Dr. Kader.
By decision dated December 17, 2015, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review

2

an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.6 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
In support of his reconsideration request, appellant submitted a narrative statement
reiterating his claim that he was entitled to a schedule award for 10 percent permanent
impairment to the right upper extremity based on Dr. Goldstein’s February 20, 2014 report and
expressed his willingness to see another doctor for a new impairment rating. The Board finds
that these are not legal arguments and were previously considered by OWCP in its May 1, 2015
schedule award decision. Evidence or argument which repeats or duplicates evidence or
argument already to the case record does not constitute a basis for reopening a case.10
Appellant also resubmitted the February 3, 2012 second opinion report from Dr. Kader.
The Board has held that material which is duplicative of that already contained in the case record

3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See P.O., Docket No. 14-1675 (issued December 3, 2015).
855 (1989).
9

See also Kenneth R. Mroczkowski, 40 ECAB

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

See supra note 8.

3

does not constitute a basis for reopening a case.11 Therefore, this evidence is not sufficient to
require OWCP to reopen appellant’s claim for consideration of the merits.
The Board finds that appellant did not meet any of the necessary requirements and is not
entitled to further merit review.12
On appeal, appellant argues the merits of his claim. As noted above, the Board only has
jurisdiction over OWCP’s December 17, 2015 nonmerit decision which denied his request for
reconsideration and is therefore precluded from conducting a merit review.
A claimant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.13
CONCLUSION
The Board finds that OWCP properly appellant’s request for reconsideration of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).

11

See supra note 8.

12

See L.H., 59 ECAB 253 (2007).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims.
Chapter 2808.9b (March 2013). In addition, OWCP’s procedure provides that a request for reconsideration of a
schedule award based on a disagreement with the percentage awarded must be distinguished from a situation where
a claimant who previously received an award is filing for an increased impairment due to a worsening of the
claimant’s medical condition due to deterioration of his condition or increased exposure. Id. at Chapter 2.808.9c.

4

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 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
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY, FORT
McCOY, Sparta, WI, Employer
__________________________________________

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

Docket No. 14-1075
Issued: November 3, 2014

Case Submitted on the Record

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

JURISDICTION
On April 7, 2014 appellant, through counsel, filed a timely appeal from a March 13, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant may receive a schedule award for her bilateral upper
extremity impairment.
On appeal appellant’s counsel argues that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, then a 46-year-old boiler
fireman, sustained an injury at work on February 9, 1979 when he bumped his head against a
pipe. OWCP accepted his claim for acute muscle spasm with C5-6 radiculopathy, for which he
underwent a cervical discectomy and fusion. In a June 20, 1994 decision, OWCP terminated
appellant’s monetary compensation benefits under section 8106(c) due to his refusal of an offer
of suitable work. The termination was effective as of June 18, 1994. The facts as set forth in the
Board’s prior decisions are hereby incorporated by reference.
On November 21, 2012, January 25 and February 1, 2013 appellant submitted claims for
a schedule award.
By decision dated March 12, 2013, OWCP denied appellant’s claim for a schedule award.
It found that no evidence was submitted to establish the date of maximum medical improvement
or any percentage of permanent impairment.
By letter dated March 18, 2013 appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative.
In a March 2, 2013 report, Dr. Neil Allen, a Board-certified internist and neurologist,
listed a diagnosis of displacement of a cervical intervertebral disc without myelopathy. He
applied the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed., 2009) (A.M.A., Guides). Dr. Allen determined that appellant
had an upper extremity impairment of 35 percent, comprised of 18 percent motor impairment
and 17 percent sensory impairment. He made reference to Chapter 17, pertaining to rating
impairment of the spine.
The record was referred to Dr. Christopher Gross, an OWCP medical adviser. In a report
dated April 28, 2013, Dr. Gross determined that the date of maximum medical improvement was
January 2, 1990, as reflected by the report of Dr. Stephen L. Haug, an attending physician.
Dr. Haug determined that appellant had degenerative arthritis of the cervical spine with fusion at
two levels as a result of the 1979 injury. He stated that appellant’s prognosis was poor and he
did not foresee any change in the future. Dr. Gross determined, based on the clinical findings by
Dr. Allen, that appellant had 23 percent impairment of the right arm and 5 percent impairment of
the left arm due to his accepted injury.
By decision dated June 5, 2013, OWCP hearing representative remanded the case to
OWCP to further evaluate the medical evidence.

2

In Docket No. 84-725 (issued June 13, 1984), petition for recon. denied, Docket No. 84-725 (issued August 21,
1984), the Board affirmed OWCP’s finding that appellant failed to establish disability causally related to his
employment after March 12, 1979, the date he returned to his regular duties. In Docket No. 97-2794 (issued
April 24, 1998) the Board dismissed appellant’s appeal at his request. In Docket No. 06-1946 (issued July 13,
2007), Docket No. 09-511 (issued September 4, 2009), petition for recon. denied and Docket No. 09-511 (issued
December 24, 2009), the Board affirmed OWCP’s denial of reconsideration as his requests were untimely and did
not establish clear evidence of error.

2

A payment history inquiry report reflects that appellant received wage-loss compensation
commencing in 1982 for total disability. Appellant was paid wage-loss compensation until
June 18, 1994, the date monetary benefits were terminated under section 8106(c)(2) based on his
refusal of suitable work. The period of wage-loss payments made to appellant incorporate
January 2, 1990, the date of maximum medical improvement as determined by the medical
adviser, through September 5, 1991, the date benefits payable under the schedule would cease.
By decision dated August 28, 2013, OWCP found that the weight of medical opinion was
represented by Dr. Gross, the medical adviser. It determined that appellant sustained 23 percent
impairment to the right upper extremity and 5 percent impairment to the left upper extremity.
The date of maximum medical improvement was on January 2, 1990. The decision noted that
the schedule awards for the arms equaled 74.88 weeks of compensation, beginning with the date
of maximum medical improvement on January 2, 1990 and running through September 5, 1991.
OWCP determined that, as appellant received wage-loss compensation for disability during this
period, he was not eligible for payment under the schedule award as it would constitute a
prohibited dual payment.
On September 5, 2013 appellant, through counsel, requested a telephone hearing.
At the January 27, 2014 hearing, appellant’s counsel argued that appellant reached
maximum medical improvement prior to the date OWCP terminated his benefits in 1994;
therefore, he should be entitled to schedule award benefits accruing prior to such date.
By decision dated March 13, 2014, an OWCP hearing representative affirmed the
August 28, 2013 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform stands applicable to all
claimants. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides.5 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. For impairment ratings calculated on and after May 1, 2009, OWCP uses the sixth edition. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a
(January 2010).
6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

3

Section 8106(c)(2) of FECA provides in pertinent part, that a partially disabled employee
who refuses or neglects to work after suitable work is offered is not entitled to compensation.7 A
claimant who refuses suitable work is not entitled to further compensation, including payment of
a schedule award, for the permanent impairment of a scheduled member.8 If, however, a
claimant reached maximum medical improvement prior to termination for refusal of suitable
employment, he or she would be entitled to payment of any portion of the schedule award due
prior to the termination of monetary compensation benefits.9
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.10
The Board notes that a claimant is not entitled to concurrent wage-loss compensation and
a schedule award for the same injury.11
ANALYSIS
The Board finds that appellant is not entitled to schedule award compensation from
January 2, 1990 through September 5, 1991, a period during which he already received wageloss compensation for disability.
Dr. Allen did not list the date of maximum medical improvement. Dr. Gross, OWCP
medical adviser, reviewed the medical record and determined that the date of maximum medical
improvement was January 2, 1990, the date appellant’s then-treating physician noted that his
prognosis was poor and did not expect appellant’s condition to change in the future. In Marie J.
Born,12 the Board reviewed the rule that a period covered by a schedule award commences on
the date the employee reached maximum medical improvement. The Board stated that
maximum medical improvement “means that the physical condition of the injured member of the

7

5 U.S.C. § 8106(c)(2).

8

D.S., Docket No. 08-885 (issued March 17, 2009); Sandra A. Sutphen, 49 ECAB 174 (1997).

9

Id.; see also G.S., Docket No. 14-408 (issued June 10, 2014).

10

Mark A. Holloway, 55 ECAB 321, 325 (2004).

11

See James A. Earle, 51 ECAB 567 (2000).

12

27 ECAB 623 (1976), petition for recon. denied, 28 ECAB 89 (1976).

4

body has stabilized and will not improve further.”13 The question is factual and depends in each
case on the medical findings in the record.14
In this case, the date of maximum medical improvement is clearly supported by the
weight of medical opinion of Dr. Gross, the medical adviser, based on a review of the medical
reports of Dr. Haug. Accordingly, the period of appellant’s schedule awards for impairment to
his arms commenced on January 2, 1990.15 As the schedule awards for the upper extremities
covered 74.88 weeks of compensation, the end date was on September 5, 1991. The record
reflects, however, that appellant had already received wage-loss compensation for total disability
during this time period.
As held in Eugenia L. Smith,16 a claimant is not entitled to dual workers’ compensation
benefits for the same injury. A claimant may not receive compensation for temporary total
disability based on his or her loss of wage-earning capacity and a schedule award covering the
same period of time.17 Therefore, appellant cannot receive concurrent wage-loss compensation
and a schedule award for the same injury.18
Counsel for appellant was correct in stating that he reached maximum medical
improvement prior to June 20, 1994, when his monetary benefits were terminated under section
8106(c)(2), but the prohibition against dual benefits for the same injury precludes the receipt of
schedule award compensation from January 2, 1990 to September 5, 1991 due to the payment of
wage-loss compensation for total disability during this period.
CONCLUSION
The Board finds that appellant is precluded from receipt of schedule award compensation
for a period he received wage-loss compensation for total disability.

13

Id. at 27 ECAB 629.

14

Id. at 630. See also James Kennedy, 40 ECAB 620 (1989).

15

See V.B., Docket No. 14-8 (issued March 6, 2014).

16

41 ECAB 409 (1990).

17

Id. at 412-13.

18

James A. Earle, supra note 11.

5

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, BUSINESS
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1295
Issued: March 10, 2011

Case Submitted on the Record

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

JURISDICTION
On April 6, 2010 appellant, through his attorney, filed a timely appeal of a December 15,
2009 merit decision of the Office of Workers’ Compensation Programs determining his
wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to consider the merits of the case.
ISSUE
The issue is whether the selected position of information clerk fairly and reasonably
represents appellant’s wage-earning capacity.
On appeal, counsel argues that appellant was not capable of performing the selected
position of part time information clerk or chemical dependency counselor from either a
vocational or physical standpoint.
FACTUAL HISTORY
This case was previously before the Board. On February 6, 1992 appellant, then a 36year-old machinist, injured his right knee while moving a valve. The Office initially denied his

claim on April 30, 1992. The Branch of Hearings and Review affirmed the denial on
December 14, 1992. By decision dated April 15, 1994,1 the Board remanded the case for
development of the medical evidence. The facts and circumstances of the case as set out in the
Board’s prior decision are adopted herein by reference.
The Office accepted appellant’s claim for right knee strain as well as meniscal tear and
authorized surgery. Appellant underwent right knee surgery on July 9, 1992. His surgeon,
Dr. Mark Avart, an osteopath, found a complete medial meniscal tear with horizontal and
vertical components as well as synovitis with some spurring of the anterior cruciate ligament, but
no tearing.2
Appellant’s federal employment terminated on September 15, 1995 as the employing
establishment facility closed. He was unemployed from September 15, 1995 through January 11,
1999 when he began work as a residential rehabilitation specialist in the private sector.
Appellant filed a claim on March 13, 1999 alleging on October 6, 1998 he sustained a recurrence
of total disability. On July 9, 1999 the Office accepted this claim for medical treatment of his
right knee. By decision dated December 9, 1999, the Branch of Hearings and Review denied
appellant’s claim for a recurrence of total disability beginning on October 6, 1998.
Appellant filed a claim for recurrence on July 27, 1999 alleging on July 22, 1999 he
experienced a recurrence of total disability. The Office referred him for an impartial medical
examination with Dr. E. Balasurbramanian, a Board-certified orthopedic surgeon, who found that
there were no objective residuals from the 1991 employment injury and that the subjective
complaints were not supported by objective findings. Dr. Balasurbramanian stated that appellant
did not require additional surgery and could return to work without restrictions.
By decision dated February 21, 2001, the Office terminated appellant’s wage-loss
compensation benefits effective that date.
Appellant requested an oral hearing and by decision dated October 22, 2001, the Branch
of Hearings and Review reversed the February 21, 2001 determination and remanded for
additional development of the medical evidence. The Office again terminated appellant’s
compensation benefits by decision dated June 27, 2002. Appellant requested an oral hearing and
on June 9, 2003, the Branch of Hearings and Review set aside this decision.
The Office referred appellant for an additional impartial medical examination on
October 20, 2003. Dr. John F. Perry, a Board-certified orthopedic surgeon, found that appellant
had a chronic impairment of his right knee due to his 1991 employment injury which resulted in
a stretch injury to his anterior cruciate ligament and a complex tear of the posterior horn of the
medial meniscus which developed into work-related arthritis. The Office accepted his claim for
the right lateral meniscus tear and chondromalacia patella.
1

Docket No. 93-1263 (issued April 15, 1994).

2

On January 27, 1993 appellant filed a second claim alleging that he injured his right knee pushing a hand truck.
The Office created a separate case File No. xxxxxx210 for this claim. It accepted this injury as right knee strain on
February 10, 1993. The Office doubled appellant’s knee claims on May 28, 1997.

2

The Office authorized rehabilitation services beginning August 2, 2004. Vocational
testing noted that appellant received his associate degree in liberal arts with a major in education.
Appellant also received a chemical dependency counselor certification, but not a license in
chemical addiction counseling. Based on his aptitude test results, the suggested positions were
information clerk, clerk aide, program aide, social-services aide and intake worker. Appellant
signed an agreement to search for work as a program aide, intake worker or residence supervisor
within 25 miles from his home.
On September 7, 2005 appellant underwent additional arthroscopic surgery on his right
knee resulting in partial medial meniscectomy of the right knee, arthroscopic chondroplasty of
the medial femoral and medial tibial condyles with partial synovectomy of the right knee.
In a report dated March 14, 2008, Dr. Avart noted appellant’s continued right knee pain
and found right knee medial joint lined tenderness, pain with valgus stress and crepitus as well as
weakness in the quadriceps and hamstrings with mild atrophy. He completed a work restriction
evaluation on June 7, 2008 and indicated that appellant had no limitation on sitting or repetitive
movements of the wrists or elbows. Dr. Avart found that appellant could work for two to four
hours a day including walking, standing, bending, stooping and operating a motor vehicle at
work for less than one hour each. He indicated that appellant should push, pull and lift less than
10 pounds and that he should squat and kneel for less than one hour. The Office referred
appellant for additional rehabilitation services on July 1, 2008. Appellant agreed to seek
employment as a residence supervisor or information clerk.
Dr. Avart examined appellant on November 10, 2008 and diagnosed intermittent right
knee pain noting that appellant’s disability and prognosis did not change. On January 12, 2009
he found that appellant’s right knee pain had worsened with effusion, medial and patellofemoral
pain with clicking, crepitus and restriction of motion. Appellant underwent a magnetic
resonance imaging (MRI) scan on March 12, 2009 which demonstrated peripheral osteoarthritis
of the medial femoral condyle and medial tibial plateau.
The vocational rehabilitation counselor reported that appellant had applied to 78
employers, but with no positive results. On March 31, 2009 appellant selected the position of
information clerk as within his work abilities. The information clerk was required to work at a
sedentary level with occasional lifting, carrying, pushing and pulling up to 10 pounds. The
position was mostly sitting with standing or walking for brief periods of time. The position did
not require climbing, balancing stooping, kneeling, crouching or crawling. The vocational
rehabilitation counselor found that appellant’s education and work experience met the specific
vocational preparation and that the job was being performed in sufficient numbers to make it
reasonable available to appellant within his commuting area. The position was available both
full and part time with hourly earnings of $11.04 or $220.80 a week for a 20-hour week.
In a letter dated May 14, 2009, the Office proposed to reduce appellant’s wage-loss
benefits based on his capacity to earn wages as a part-time information clerk earning $11.04 an
hour, 20 hours a week. It issued a final decision on June 19, 2009, reducing his compensation to
reflect wage-earning capacity as an information clerk.

3

Appellant, through his attorney, requested an oral hearing. In a June 15, 2009 report,
Dr. Avart reviewed appellant’s June 17, 2008 work capacity evaluation and stated that appellant
was not capable of working four hours a day. Dr. Avart stated:
“The job description of informational clerk is possible for somewhere between
two to four hours a day, but this is again depending upon how far he has to drive
to travel to get to the place, how available standing and sitting, and the use for ice
and elevation of his knee, which he will need to do as well if there are any stairs
involved or things like this. The capabilities without having a place to work and
to be able to accurately assess whether he could in fact work either two or four or
none depending upon all of these factors, needs to be done before any
determination about his work ability.”
On September 1, 2009 Dr. Avart stated that appellant’s disability and prognosis were unchanged.
Appellant testified at the oral hearing on October 22, 2009 and stated that he applied for
jobs that were an hour’s drive, beyond his physician’s restrictions. He noted that he did not have
any interview despite sending 69 resumes. Appellant stated that he would have to walk, sit and
squat as an information clerk and that he had difficulty focusing due to his medications.
Following the oral hearing he submitted an October 27, 2009 note from Dr. Avart, who advised
that appellant could not work more than two hours a day either sitting or standing with position
changes. Appellant could not drive more than 20 minutes at one time and had to elevate his knee
three to four times a day as well as ice his knee for 10 to 15 minutes two to three times a day.
Dr. Avart also found that appellant could not knell, squat, climb or crawl and should not lift over
10 pounds.
By decision dated December 15, 2009, an Office hearing representative affirmed the
June 19, 2009 wage-earning capacity determination, finding that Dr. Avart did not provide
sufficient physical findings or medical reasoning to support a change in appellant’s work
restrictions to two hours a day. The hearing representative further found that appellant was
capable of performing the selected position as he had completed a two-year associate’s degree
program and had worked as a residential rehabilitation specialist for seven months.
LEGAL PRECEDENT
Section 8115 of the Federal Employees’ Compensation Act3 provides that 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 wage-earning capacity, or the employee has no actual earnings, his wage-earning
capacity is determined with due regards to the nature of his injury, the degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment, and other factors or circumstances which may affect his
wage-earning capacity in his disabled condition.4
3

5 U.S.C. §§ 8101-8193, 8115.

4

N.J., 59 ECAB 171 (2007).

4

When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
the Office for selection of a position, listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that 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 open labor market should be made
through contact with the state employment service or other applicable service. Finally, application
of the principles set forth in Albert C. Shadrick5 will result in the percentage of the employee’s loss
of wage-earning capacity. The basis range of compensation paid under the Act is 66 2/3 percent of
the injured employee’s monthly pay.6
ANALYSIS
The evidence establishes that appellant has the capacity to earn wages. Dr. Avart,
appellant’s surgeon, reported in 2008 that appellant was no longer totally disabled for work. He
released him to modified work and specified his work restrictions. An Office vocational
rehabilitation counselor, who is a wage-earning capacity specialist, found that appellant was
capable of earning wages as a part-time information clerk. He conducted a labor market survey
to determine the wage and availability of the selected position. The vocational rehabilitation
counselor also noted that appellant’s education and work experience qualified him for the
specific vocation requirements of the selected position.
The physical duties of an information clerk include occasional lifting, carrying, pushing
and pulling up to 10 pounds. The position required mostly sitting with brief periods of standing
or walking. An information clerk is not required to climb, balance, stoop, kneel, crouch or crawl.
Appellant’s attending physician, Dr. Avart, completed a work restriction evaluation on June 7,
2008 indicating that appellant could work from two to four hours a day. The work restrictions
were commensurate with the duties of an information clerk with no limitation on sitting, but a
less than one hour a day restriction on walking, standing, bending, stooping and operating a
motor vehicle at work. Dr. Avart also found that appellant should push, pull and lift less than 10
pounds and that he should squat and kneel for less than one hour. Based on this information, the
Office reduced appellant’s compensation benefits based on his earning capacity as a part-time
information clerk.
Dr. Avart completed a report on June 15, 2009 which stated that appellant was not
capable of working four hours a day. However, he noted that appellant could possibly perform
the duties of an information clerk up to four hours a day based on the specifics of the position.
Dr. Avart indicated that appellant’s work hours were dependent upon his commute, his ability to
change positions between sitting and standing and whether he could elevate and ice his knee
during the workday. The Board finds that he did not provide sufficient reasoning for altering
appellant’s work restrictions such that the selected position of part-time information clerk would
not be appropriate. Dr. Avart did not have any objections to the stated duties of the selected
position, but instead indicated that appellant might not be able to work four hours in some
5

5 ECAB 376 (1953).

6

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

5

information clerk positions which required a long commute or did not offer the ability to change
positions. As there are no additional requirements for the selected position upon which the
Office based its decision, Dr. Avart did not adequately explain his objections given the stated
physical requirements. For these reasons, the Board finds that the Office has met its burden of
proof to reduce appellant’s wage-loss compensation benefits based on his wage-earning capacity
in the selected position.
Appellant also pointed to his lack of success in obtaining placement with a new employer
in the field. However, failure to obtain employment does not require the inference of impairment
of wage-earning capacity.7 The question is not whether appellant was able to secure
employment. The question is whether he has the capacity to earn wages. The evidence from
both the vocational rehabilitation counselor and appellant’s physician establishes that he has the
capacity to earn wages as a part-time information clerk.
On appeal, counsel argued that the selected position was not within appellant’s physical
or vocational abilities. As noted, the vocational rehabilitation counselor addressed the necessary
preparation for the position and found that appellant’s education and work experience were
consistent with the information clerk position. Furthermore, Dr. Avart’s initial work restrictions
are within the job requirements and he failed to offer any medical reasoning for rejecting the
stated physical requirements of the selected position. The Board finds that the Office met its
burden of proof to reduce appellant’s compensation for total disability. The Office gave due
regards to relevant factors and followed standard procedures in determining appellant’s wageearning capacity as appears reasonable under the circumstances. The Board will therefore affirm
the Office’s decision.
CONCLUSION
The Board finds that the Office met its burden of proof to reduce appellant’s wage-loss
compensation benefits based on his ability to earn wages in the selected position of part-time
information clerk.

7

W.B., 61 ECAB ___ (Docket No. 09-934, issued January 11, 2010); Ruth Lahr, 2 ECAB 86 (1948).

6

ORDER
IT IS HEREBY ORDERED THAT December 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7