United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 14-53
Issued: April 4, 2014

Case Submitted on the Record

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

JURISDICTION
On October 16, 2013 appellant, through her attorney, filed a timely appeal from a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying a schedule award claim. 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 the
case.
ISSUE
The issue is whether appellant sustained permanent impairment to a scheduled member
causally related to her accepted right hip region enthesopathy.
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 7, 2012, the
Board affirmed a November 1, 2011 OWCP decision, which denied appellant’s August 2, 2011
1

5 U.S.C. § 8101 et seq.

reconsideration request.2 The Board found that she did not advance a relevant legal argument
that a conflict in medical evidence existed between the August 27, 2007 opinion of Dr. David O.
Weiss, an osteopath, who opined that she had six percent impairment of her right and left lower
extremity based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) and the July 14, 2010 opinion of
Dr. David Rubinfeld, a Board-certified orthopedic surgeon and OWCP referral physician, who
opined that she had no impairment under the sixth edition of the A.M.A., Guides. The Board
found that OWCP properly denied appellant’s schedule award claim. The only medical evidence
that addressed impairment under the applicable sixth edition of the A.M.A., Guides was
Dr. Rubinfeld’s July 14, 2010 evaluation, which found no impairment. The facts of the previous
Board decision are incorporated herein by reference.
On December 19, 2012 appellant, through her attorney, requested reconsideration. He
submitted Dr. Weiss’ August 27, 2007 report updated to the sixth edition of the A.M.A., Guides
on November 30, 2012. Dr. Weiss stated that appellant was involved in a work-related motor
vehicle accident on December 11, 2002 and another work-related accident on January 26, 2004.
He also noted that she was involved in a motor vehicle accident on December 25, 2005.
Dr. Weiss noted appellant’s complaints of bilateral shoulder pain and occasional bilateral hip
pain and presented physical examination findings of August 27, 2007. He opined that she
reached maximum medical improvement on August 27, 2007. Under the sixth edition of the
A.M.A., Guides, Dr. Weiss opined that appellant had 12 percent left upper extremity impairment,
1 percent right upper extremity impairment, 2 percent right lower extremity impairment and
2 percent left lower extremity impairment.
On February 10, 2013 an OWCP medical adviser reviewed the January 29, 2013
statement of accepted facts and the medical record. He noted that Dr. Weiss did not mention the
accepted March 24, 2005 injury to the right hip and that his report focused on a December 11,
2002 motor vehicle accident and a January 2, 2004 slip and fall, with left shoulder injuries. The
medical adviser noted that Dr. Weiss mentioned a May 16, 2005 hip magnetic resonance imaging
(MRI) scan, which was unremarkable and a December 25, 2005 motor vehicle accident. He
opined that appellant’s diagnosis of chronic post-traumatic trochanteric bursitis to the right and
left hips was based on subjective entities. The medical adviser stated that a date of maximum
medical improvement was not applicable. He opined that there was no right lower extremity
impairment based on the previous medical adviser’s August 31, 2010 opinion based on
Dr. Rubinfeld’s July 14, 2010 medical report.
By decision dated February 27, 2013, OWCP denied the schedule award claim finding
that the medical evidence failed to establish any permanent impairment. It noted that the
November 30, 2012 report of Dr. Weiss contained permanent impairment ratings for conditions
not accepted by OWCP.

2

Docket No. 12-573 (issued September 7, 2012). OWCP accepted that on March 24, 2005 appellant, then a
37-year-old letter carrier, sustained an enthesopathy of the right hip region. In a September 15, 2010 decision, it
denied her schedule award claim. OWCP noted that decisions issued on or after May 1, 2009 must be in accordance
with the sixth edition of the A.M.A., Guides.

2

On March 5, 2013 appellant’s counsel requested a hearing before an OWCP hearing
representative.
On April 8, 2013 appellant’s counsel requested reconsideration before OWCP based on
Dr. Weiss’ narrative report updated to the sixth edition of the A.M.A., Guides on
November 30, 2012.
By decision dated July 3, 2013, OWCP denied reconsideration as there was no new
relevant legal argument and the November 30, 2012 medical report of Dr. Weiss was previously
considered in the February 27, 2013 decision and of no probative value to support appellant’s
current request.3
On June 24, 2013 a hearing was held. Counsel contended that Dr. Weiss’ November 30,
2012 report, which found two percent right lower extremity impairment under the sixth edition
of the A.M.A., Guides, created a conflict in medical opinion with Dr. Rubinfeld and the medical
advisers, who found no impairment to the right lower extremity.
By decision dated September 9, 2013, an OWCP hearing representative affirmed the
February 27, 2013 decision. The hearing representative found that Dr. Weiss did not establish
that appellant sustained impairment due to her accepted work injury and the medical evidence of
record did not establish injury-related permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.5 The claimant has the burden of proving that the condition for which a schedule award
is sought is causally related to his or her employment.6

3

The last merit decision of record at the time of appellant’s reconsideration request was OWCP’s February 27,
2013 decision denying the schedule award claim. The Board’s September 7, 2012 nonmerit decision became final
upon the expiration of 30 days from the date of issuance. 20 C.F.R. § 501.6(d). Thus, appellant could not request
reconsideration of the Board’s September 7, 2012 decision. While she could have requested reconsideration of
OWCP’s February 27, 2013 decision, this issue as well as OWCP’s July 3, 2013 decision is moot as OWCP
performed a merit review on September 9, 2013.
4

5 U.S.C. § 8107.

5

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Veronica Williams, 56 ECAB 367, 370 (2005).

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OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.7
ANALYSIS
OWCP accepted the condition of enthesopathy of the right hip resulting from a March 24,
2005 work injury. It denied appellant’s claim for a schedule award finding that the medical
evidence did not establish a permanent impairment due to the accepted condition. The issue is
whether appellant sustained a ratable impairment causally related to the accepted March 24, 2005
work injury.
Appellant underwent an examination by Dr. Weiss on August 27, 2007. He rated
impairment under the fifth edition of the A.M.A., Guides. On November 30, 2012 Dr. Weiss
provided an updated opinion as to appellant’s permanent impairment under the sixth edition of
the A.M.A., Guides, based on the August 27, 2007 examination results.8 The Board has held that
an opinion on a permanent impairment must be based on a reasonably current physical
examination and that an opinion based on examination conducted several years earlier is of
diminished probative value.9 The November 30, 2012 rating by Dr. Weiss was not based on a
current physical examination. He did not discuss the history of the March 24, 2005 employment
injury or provide any rationale that his right lower extremity impairment rating was causally
related to the work injury. The Board has held that medical reports must be based on a complete
and accurate factual and medical background and medical opinions based on an incomplete or
inaccurate history are of limited probative value.10 Because Dr. Weiss’ report is based on
inaccurate history, his opinion on causal relationship and subsequent impairment rating is
insufficient to establish her claim.11
In a February 10, 2013 report, OWCP’s medical adviser noted that Dr. Weiss did not
mention the accepted March 24, 2005 injury to the right hip and that the May 16, 2005 hip MRI
scan was unremarkable.12 He opined that appellant’s diagnosis of chronic post-traumatic
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
8

Under the sixth edition of the A.M.A., Guides, Dr. Weiss that opined appellant had 12 percent left upper
extremity impairment, 1 percent right upper extremity impairment, 2 percent right lower extremity impairment and 2
percent left lower extremity impairment.
9

See B.N., Docket No. 12-1394 (issued August 5, 2013) (examination dated July 2004, updated opinion provided
in November 2011 report); E.W., Docket No. 13-506 (issued May 13, 2013) (October 2004 examination, May 2011
opinion); W.M., Docket No. 12-773 (issued March 29, 2013) (September 2006 examination, June 2010 opinion).
10

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

11

See Veronica Williams, supra note 6.

12

The medical adviser indicated that Dr. Weiss’ report focuses on a December 11, 2002 motor vehicle accident
and a January 2, 2004 slip and fall, with left shoulder injuries and mentions a December 25, 2005 motor vehicle
accident.

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trochanteric bursitis to the right and left hips was based on subjective entities. Thus, the medical
adviser found that there was no evidence of an injury-related ratable impairment. He also found
that the evidence of record did not establish an injury-related permanent impairment. There is no
other medical evidence in record establishing that appellant has permanent impairment to a
scheduled member causally related to her accepted enthesopathy of the right hip region.
On appeal, appellant’s counsel contends that Dr. Weiss’ report created a conflict in
medical evidence with OWCP’s medical adviser and Dr. Rubinfeld’s July 14, 2010 evaluation,
which found no impairment. OWCP’s procedures provide that, after obtaining all necessary
medical evidence, the file should be routed to an OWCP medical adviser for an opinion
concerning the percentage of impairment using the A.M.A., Guides.13 Where there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.14
However, for the reasons set forth above, Dr. Weiss’ report is of diminished probative value and
does not create a conflict of medical opinion with the medical adviser or Dr. Rubinfeld.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not sustained permanent impairment to a scheduled
member causally related to her accepted enthesopathy of the right hip region.

13

See supra note 7.

14

K.S., Docket No. 12-43 (issued March 12, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2014
Washington, DC

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

Michael E. Groom, Alternate 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
__________________________________________
P.P., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND
CENTERS, Dahlgren, VA, Employer
__________________________________________

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Appearances:
Toby Rubenstein, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0901
Issued: August 11, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 29, 2016 appellant, through his representative, filed a timely appeal from an
October 23, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which found that his request for reconsideration was untimely filed and failed to
present clear evidence of error. The appeal was docketed as No. 16-0901.
This case was previously on appeal. In an August 8, 2012 merit decision, the Board
found that appellant had not filed a timely claim for compensation and therefore, his claim was
barred by the applicable time limitation provisions of FECA.2 In a July 21, 2013 letter, received
by OWCP on August 2, 2013, appellant requested that OWCP review his claim and submitted
arguments in support of his request. He indicated that this was “an appeal back to you on the
USDOL, Employees’ Compensation Appeals Board (ECAB) Decision and Order on above
1

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.
2

Docket No. 12-272 (issued August 8, 2012).

docket issued on August 8, 2012.” In a July 25, 2015 letter, appellant’s representative requested
reconsideration. By decision dated October 23, 2015, OWCP denied his reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error on the part
of OWCP.
The Board finds that appellant’s July 21, 2013 letter, received August 2, 2013, was a
timely request for reconsideration. Although the letter did not use the word reconsideration,
appellant stated that he wanted OWCP to “review” his claim and he provided several arguments
to support his assertion that his claim was valid.3 Section 10.607(a) of the implementing
regulations provide that an application for reconsideration must be received within one year of
the date of OWCP’s decision for which review is sought.4
The Board notes that the last merit decision was the Board’s August 8, 2012 decision5
and appellant’s request for reconsideration was received by OWCP on August 2, 2013. As the
request was received within one year of the August 8, 2012 decision, it was timely filed.
Because appellant filed a timely reconsideration request, the case will be remanded to
OWCP for application of the standard for reviewing timely requests for reconsideration.6 The
“clear evidence of error” standard utilized by OWCP in its October 23, 2015 decision is
appropriate only for untimely reconsideration requests. After such further development as the
OWCP deems necessary, it should issue an appropriate decision.

3

While no special form is required, a reconsideration request must be in writing, identify the decision and
specific issue(s) for which reconsideration is being requested, and be accompanied by relevant and pertinent new
evidence or argument not previously considered. The application need not contain the word reconsideration. Gladys
Mercado, 52 ECAB 255 (2001); Vincente P. Taimanglo, 45 ECAB 504 (1994); D.W., Docket No. 12-1226 (issued
November 26, 2012).
4

20 C.F.R. § 10.607(a).

5

OWCP procedures provide that a right to reconsideration within one year accompanies any merit decision of the
Board. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a)
(February 2016).
6

See 20 C.F.R. § 10.606(b)(3).

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IT IS HEREBY ORDERED THAT the October 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this order of the Board.
Issued: August 11, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
St. Cornelia, GA, Employer
__________________________________________

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

Docket No. 17-0208
Issued: April 17, 2018

Case Submitted on the Record

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

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from a
September 23, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation,
effective October 29, 2015, based on her capacity to earn wages in the constructed position of
customer service representative.
FACTUAL HISTORY
On August 24, 2004 appellant, then a 47-year-old consumer safety inspector, filed an
occupational disease claim (Form CA-2) alleging that her asthma attacks were caused or
aggravated by the chemicals in the plant at work. She stopped work on February 14, 2004 and
returned to work on August 26, 2004 with restrictions of not entering chiller/rehang room. OWCP
initially accepted the claim for precipitation of asthma (asthma attacks) due to chlorine exposure.
Appellant intermittently stopped work. She stopped work on November 11, 2005 and has not
returned. OWCP paid appellant wage-loss compensation benefits on the periodic rolls as of
December 25, 2005. On February 21, 2008 it expanded acceptance of the claim to include
consequential right carpal tunnel syndrome, for which she underwent right carpal tunnel release
on January 9, 2008.
Appellant continued to submit medical reports from Dr. Timothy B. Gibson, a Boardcertified family practitioner. In a report dated October 30, 2009, Dr. Gibson related that her asthma
flare-ups did not cease when she was no longer exposed to chemicals or temperature changes. He
related that appellant could return to work, but not in the job she performed at the time that her
asthma flared up.
OWCP referred appellant for second opinion evaluations to determine her disability status.
In an August 16, 2010 report, Dr. Wesley R. Bray, Board-certified in internal medicine and
pulmonary disease, related that she had been exposed to chlorine gas in 2004 and, after that time,
her asthma was harder to control, and she was more sensitive to exposures. He explained that this
was consistent with reactive airways dysfunction syndrome. Dr. Bray opined that appellant could
return to work in some capacity, but that she should not be exposed to inhaled chemicals or
irritants.
In a January 24, 2013 report, Dr. Gibson stated that appellant’s asthma was stable and that
her January 23, 2013 pulmonary function test was unchanged from the prior year. He opined that
she could return to gainful employment as long as she was not exposed to chemicals, fumes,
irritants, and/or extreme changes in temperature.
On April 11, 2013 OWCP referred appellant for vocational rehabilitation services. On
August 30, 2013 appellant tripped and fell, breaking her left small finger and spraining her right
ankle. She underwent surgery on her left small finger on September 24, 2013. On November 22,
2013 appellant was placed in medical rehabilitation status while recovering from the August 30,
2013 fall. She subsequently completed computer classes and earned certificates in Microsoft Word
Access, Excel, and PowerPoint.
In a June 24, 2014 report, Dr. Eric S. Furie, a Board-certified orthopedic surgeon, acting
as an OWCP second opinion physician, related that appellant no longer required treatment for her

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carpal tunnel syndrome. He opined that she could be gainfully employed and recommended work
hardening. Appellant subsequently attended a work hardening program.
A March 25, 2015 functional capacity evaluation (FCE) demonstrated that appellant could
perform a job in the light physical demand category with some ability in the medium category. It
noted that she was able to perform safe lifting in the following capacity: 30 pounds, floor to waist
(occasional); 20 pounds, floor to waist (frequent); 25 pounds, waist to shoulder (occasional); 20
pounds, waist to shoulder (frequent); 25 pounds overhead (occasional); and 10 pounds, overhead
(frequent). Appellant was also cable of frequent reaching, constant sitting, and frequent
walking/standing with intermittent sitting due to asthma symptoms with sustained physical
activity.
In a May 12, 2015 work-capacity evaluation (OWCP-5c), Dr. Gibson opined that appellant
could return to work full-time limited duty. He also concurred with the March 25, 2015 FCE
findings.
In a June 11, 2015 report, a vocational rehabilitation specialist recommended positions of
customer service representative and receptionist. The position of customer service representative,
Department of Labor, Dictionary of Occupational Titles (DOT) No. 239.3621-014, is sedentary,
and has physical demands of occasional reaching and handling and frequent fingering. The
vocational rehabilitation specialist indicated that appellant met the specific vocational preparation
level as she had been provided training in Word, Excel, PowerPoint, and Access which qualified
her for the job. In a June 10, 2015 labor market survey, the vocational rehabilitation specialist
confirmed that there were sufficient openings for those positions in appellant’s commuting area.
By letter dated September 24, 2015, OWCP proposed to reduce appellant’s wage-loss
compensation based on her capacity to earn wages in the constructed position of customer service
representative, DOT No. 239.3621-014, at the rate of $393.20 per week. It determined that the
selected position was medically and vocationally suitable for her and represented her wage-earning
capacity. As appellant’s wage-earning capacity was less than the current pay of the job she held
when injured, 34 percent, OWCP proposed to reduce her wage-loss compensation benefits to
$2,155.00 every four weeks. She was afforded 30 days in which to submit contrary evidence.
In response, appellant submitted additional medical evidence. In an October 20, 2015
letter, Dr. Gibson advised that while she had occasional exacerbations of her asthma, her condition
had been stable overall. He further stated “unfortunately, due to [appellant’s] past problems, she
has now developed [chronic obstructive pulmonary disease] COPD and is on continuous oxygen.”
Dr. Gibson opined that appellant was totally disabled from work and could not be gainfully
employed.
By decision dated October 29, 2015, OWCP reduced appellant’s wage-loss compensation
based on her capacity to earn wages as a customer service representative earning $393.20 per week.
On November 4, 2015 counsel requested a telephonic hearing before an OWCP hearing
representative. The telephonic hearing was held on July 12, 2016. Appellant testified that she has
had rheumatoid arthritis for a number of years, which has gotten worse in recent years, and that
she used a walker to assist in ambulation. She stated that she was on 24-hour oxygen and has to

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carry around an oxygen canister during the day. Appellant indicated that her bilateral carpal tunnel
syndrome, for which she underwent surgery on both hands, limited her ability to type. She noted
that her left carpal tunnel surgery occurred in the 1990s and was covered by workers’
compensation. Appellant further stated that she was on multiple medications for diabetes,
depression, carpal tunnel syndrome, rheumatoid arthritis, and her breathing conditions, which
limited her ability to drive. She alleged that she did not have the vocational background for office
work. Counsel argued that appellant was not capable of performing the selected position due to
her accepted conditions and preexisting rheumatoid arthritis condition, which required her to use
a walker to get around.
OWCP also received a November 12, 2015 x-ray report of appellant’s hands which noted
unremarkable findings.
In a January 22, 2016 letter, Dr. Gibson reiterated that appellant’s asthma condition was
stable overall. He also reiterated that, due to her past problems, she developed COPD and was on
continuous oxygen.
Treatment notes dated October 22, 2015 to March 31, 2016 from Dr. Alok Sachdeva, a
rheumatologist, were also received. In the November 19, 2015 treatment note, he reviewed
laboratory results and stated that appellant “likely has seronegative rheumatoid arthritis.”
Dr. Sachdeva assessed rheumatoid arthritis of multiple sites with negative rheumatoid factor. He
noted that “symptoms are suggestive of rheumatoid arthritis despite negative serologies.” In a
March 31, 2016 note, Dr. Sachdeva noted that appellant reported pain in hands, swelling and
stiffness pain in legs. On examination, appellant’s hands, wrists, elbows, shoulders, and knees
were tender, but no synovitis or effusion was noted.
By decision dated September 23, 2016, OWCP’s hearing representative affirmed OWCP’s
October 29, 2015 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 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 (LWEC).4
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 or her 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
3

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
4

20 C.F.R. §§ 10.402 and 10.403.

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employment, age, qualifications for other employment, the availability of suitable employment,
and other factors and circumstances which may affect her wage-earning capacity in his or her
disabled condition.5
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 her
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 Albert C. Shadrick6 and codified by regulations at 20 C.F.R. § 10.4037 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.8
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.9 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to the
LWEC 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.10
ANALYSIS
OWCP accepted appellant’s claim for precipitation of asthma (asthma attacks) due to
chlorine exposure and later expanded the claim to include consequential right carpal tunnel
syndrome and surgery. Appellant was placed on the periodic compensation rolls for total disability
resulting from this injury and eventually referred for vocational rehabilitation services. OWCP
based its October 29, 2015 LWEC determination on her capacity to earn wages as a customer
service representative.

5

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).
6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403.

8

Id. at § 10.403(d).

9

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

10

Id.

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OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the condition.11 In a
May 12, 2015 work capacity evaluation, Dr. Gibson advised that appellant could work full-time
limited duty and concurred with the March 25, 2015 FCE findings that she could perform light-tomedium work. The position selected was sedentary, and its physical demands of occasional
reaching and handling and frequent fingering are within the restrictions provided by the FCE and
which Dr. Gibson concurred. Dr. Furie, OWCP’s second opinion physician also reported on
June 24, 2014 that appellant no longer required medical treatment for her carpal tunnel syndrome,
and he opined that she could be gainfully employed. Appellant, thus, has the physical capacity to
perform the duties of the selected position of customer service representative.12
The Board also finds that appellant had the necessary vocational and educational
preparation for the selected position of customer service representative. Appellant successfully
completed and obtained certificates in Microsoft Word, Excel, PowerPoint, and Access.13
The vocational rehabilitation specialist also found that the position of customer service
representative was reasonably available in appellant’s local labor market with an entry level
weekly wage of $393.20.14
The Board finds that OWCP considered the appropriate factors in determining that the
customer service representative position represented appellant’s wage-earning capacity.15 These
factors included availability of suitable employment and her physical limitations, usual
employment, age, and employment qualifications.16 The evidence established that appellant had
the requisite physical ability, skill, and experience to perform the position and that such a position
was reasonably available within the general labor market of her commuting area. Counsel argued
that she was not capable of performing the selected position due to the additional conditions of
COPD and rheumatoid arthritis.17 Appellant claimed that the medications she takes for multiple
medical conditions limit her ability to drive. However, there is no medical evidence of record
which addresses the effect of any medications that she takes for her work-related and preexisting
conditions on her ability to drive. While Dr. Gibson indicated that appellant was on continuous
oxygen due to COPD, he did not provide an opinion which related her COPD to the accepted
asthma condition or indicated whether COPD was a preexisting condition. He merely noted that
“due to [appellant’s] past problems, she has now developed COPD.” As noted, in determining an
11

William H. Woods, 51 ECAB 619 (2000).

12

Id.

13

See J.E., Docket No. 16-0006 (issued November 16, 2016).

14

Id.

15

John D. Jackson, 55 ECAB 465 (2004).

16

Id.

17
Appellant alleged her left carpal tunnel syndrome was previously accepted by OWCP. This is supported under
case File No. xxxxxx596, which was retired to the Federal Records Center in July 1999.

6

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.18 With regard to appellant’s rheumatoid arthritis, there is no
evidence that this condition preexisted her injury or that it limits her ability to perform the duties
of the selected position. Dr. Sachdeva merely noted that she had a several-year history of joint
pain. OWCP, therefore, properly determined that the position of customer service representative
reflected her wage-earning capacity.19
OWCP also properly reduced her compensation pursuant to the principles set forth under
Shadrick to $2,155.00 every four weeks, effective October 29, 2015, because the pay rate of the
selected position was less than her date-of-injury salary. The wages in the selected position were
reported as $393.20 per week. OWCP applied the Shadrick formula to determine the LWEC. The
earnings of $393.20 are divided by the current pay rate for appellant’s date-of-injury job, to
determine the wage-earning capacity of 34 percent.20 The pay rate for compensation purposes is
then multiplied by the wage-earning capacity percentage.21 This amount is subtracted from the
pay rate for compensation purposes to determine the LWEC.22 OWCP found that appellant’s
LWEC was $629.19 per week or $2,155.00 every four weeks. The record does not contain any
evidence of error with respect to these calculations.23
On appeal, counsel alleges that the decision ignored appellant’s physical conditions.
However, as explained above, OWCP discussed and properly considered both her preexisting and
subsequently acquired conditions.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.

18

Supra note 9.

19

James Smith, 53 ECAB 188 (2001).

20

20 C.F.R. § 10.403(d).

21

Id. at § 10.403(e).

22

Id.

23

See T.D., Docket No. 16-0028 (issued November 28, 2016).

7

CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation, effective
October 29, 2015 based on her capacity to earn wages in the constructed position of customer
service representative.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KEESLER AIR FORCE BASE, MS, Employer
__________________________________________

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

Docket No. 11-1186
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant filed a timely appeal of the December 14, 2010 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 established a modification of OWCP’s June 15, 1999
wage-earning capacity determination.
On appeal, appellant contends that OWCP erred in determining his wage-earning
capacity as the physical demands of his assigned light-duty position were not within his
restrictions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 4, 1997 appellant, then a 49-year-old heating,
ventilating and air conditioning mechanic, sustained a lumbar strain and disc herniation at L4-5
as a result of slipping on a ladder at work.2 It authorized lumbar surgery which he underwent on
June 1, 1998.
In a February 10, 1999 medical report, Dr. Charles J. Winters, a Board-certified
orthopedic surgeon, advised that appellant had lumbar intervertebral disc disorder with
myelopathy due to the accepted employment injuries. He reached maximum medical
improvement on November 18, 1998. Dr. Winters advised that appellant could perform lightduty work with permanent restrictions which included no lifting more than 5 to 10 pounds and no
frequent bending or stooping.
On February 17, 1999 appellant accepted the employing establishment’s job offer of the
same date for a full-time light-duty facility maintenance controller position. The light-duty
position had a compressed work schedule, eight days from 7:00 a.m. to 4:45 p.m. and on the
ninth day, 7:00 a.m. to 3:45 p.m. It involved processing written and call-in work requests via a
work information management system (WIMS). The computer data base assisted in prioritizing
work requests/job orders and creating daily/weekly/monthly reports in this regard. It
accomplished all daily labor recordings, summarizing and verifying craft efforts assigned to
sections which included, but were not limited to, man hours expended on work and job orders,
service calls, equipment maintenance operations, indirect activities, leave and supervision. The
physical requirements of the light-duty position involved occasional job site visits, extended
hours of research and development of computer products and other administrative actions and
ability to work under extreme pressure and display the highest degree of tact and courtesy
necessary for daily contact with all levels of personnel base-wide. On February 22, 1999
appellant returned to work in the accepted light-duty position.
On June 15, 1999 OWCP issued a decision finding that appellant’s actual earnings as a
facilities maintenance controller fairly and reasonably represented his wage-earning capacity. It
indicated that he worked more than 60 days in the light-duty position. OWCP reduced
appellant’s compensation to zero as his actual earnings equaled those of his date-of-injury
position.
On May 21, 2009 appellant complained to OWCP that the monitor at his desk was too
low and he had to sit five hours straight because his office was busy in his new job at the
visitor’s desk.
On January 25, 2010 appellant filed a claim for total wage-loss compensation (Form
CA-7) from December 1, 2009 to March 5, 2010. He stopped work on November 3, 2009.

2

In a prior appeal, the Board issued a decision on October 22, 1997 affirming an OWCP hearing representative’s
May 5, 1995 decision which found that appellant did not sustain a medical condition causally related to his exposure
to chemicals in the performance of duty. Docket No. 95-2684 (issued October 22, 1997).

2

In a November 4, 2009 report, Dr. Valerie R. Lenox, an internist, stated that she had
treated appellant for several years. She advised that he would not recover from his condition
which would likely continue to worsen.
In a November 6, 2009 report, Dr. William J. Evans, a Board-certified neurologist, stated
that he had followed appellant since May 5, 2009. Appellant had a history of multilevel
degenerative disc disease which caused cervical pain with radiation into the right side of his
head, shoulder and upper back. He also had occipital neuralgia with sharp shooting pains
radiating into the right posterior region of his head. Due to the above, Dr. Evans advised that
appellant was unable to work for any extended period of time without exacerbation. Appellant
was required to take pain medications that would result in cognitive side effects limiting his
ability to perform his work duties.
By letters dated February 12 and March 10, 2010, OWCP acknowledged receipt of
appellant’s CA-7 form. It advised him that the medical evidence of record was insufficient to
establish that he sustained a recurrence of disability. OWCP requested factual and medical
evidence.
In reports dated February 25 and April 14, 2010, James Meeks, a nurse practitioner,
advised that appellant had low back and neck pain and insomnia.
In a Form CA-7 dated November 17, 1999 and received by OWCP on March 11, 2010,
appellant requested leave buy back for time lost from work from November 3 to
December 4, 2009. A time analysis form (CA-7a) dated November 17, 2009 indicated that he
lost time from work from November 3 to 11, 2009 due to back pain.
In an April 7, 2010 report, Dr. Lenox advised that appellant had chronic back pain since
his November 4, 1997 employment injuries. She reviewed Dr. Evans’ assessment and findings
and concluded that they were related to the accepted injuries. Dr. Lenox reiterated her prior
opinion that appellant would not recover from his accepted back condition which would likely
continue to worsen.
By decision dated May 5, 2010, OWCP denied appellant’s recurrence of disability claim
for the period December 1, 2009 to March 5, 2010. It found that the medical evidence was
insufficient to establish that his clamed disability was causally related to his accepted
November 4, 1997 employment-related injuries.
Also, on May 5, 2010 OWCP advised appellant that the medical evidence of record was
insufficient to establish his claim for the period commencing November 3, 2009. It requested
factual and medical evidence.
In reports dated May 13 and June 10, 2010, Mr. Meeks reiterated his prior diagnoses of
low back and neck pain and insomnia. In a prescription with an illegible date, he ordered
physical therapy to treat appellant’s low back pain.
On June 9, 2010 OWCP issued a decision denying appellant’s recurrence claim for the
period November 3, 2009 to March 5, 2010. It found that the medical evidence failed to
establish that his claimed disability was causally related to the accepted injuries.
3

Appellant requested an oral hearing.
A June 16, 2010 report from appellant’s physical therapist addressed the treatment of his
low back pain.
In a November 3, 2009 report, Dr. Evans noted that appellant continued to suffer from
pain in his upper back at his injury site from cervical surgery. Appellant also had a lot of neck
pain and stiffness. He experienced a sharp shooting pain mostly up the right side of his head and
down his right leg. Dr. Evans listed his findings on physical and neurological examination. He
diagnosed occipital neuralgia. Dr. Evans noted appellant’s back, neck and right-sided headache
symptoms and stated that prior cervical magnetic resonance imaging (MRI) scan reports showed
multilevel degenerative changes. He also diagnosed disturbance of skin sensation. Dr. Evans
noted that appellant complained of pain radiating down his right leg since his heart cauterization
in January 2009. He also reported a hematoma from the cauterization. Based upon the
distribution, Dr. Evans advised that appellant likely suffered from femoral neuropathy. A brain
MRI scan report showed some chronic ischemic changes. Appellant took aspirin and had risk
factors for diabetes and hypertension. In an August 3, 2010 report, Dr. Evans stated that
appellant’s headaches were improving. Appellant had continuing back pain. Dr. Evans listed his
findings on physical examination and diagnosed back pain.
At the September 23, 2010 hearing, appellant testified that his facility maintenance
controller position was supposed to allow him to move about with only intermittent sitting, but
he sat all day taking telephone calls. The prolonged sitting caused a worsening of his low and
upper back pain and occipital neuralgia. Appellant contended that, although OWCP had only
accepted his claim for a low back condition, his upper back and headaches had existed since his
November 4, 1997 employment injuries. He testified that in January 2009 he was reassigned to a
new position due to downsizing. The position involved sitting at a desk all day, stooped over
processing identification badges and passes. This activity worsened appellant’s low back and
neck pain and required him to take additional pain medications which interfered with his ability
to concentrate at work.
In a December 14, 2010 decision, an OWCP hearing representative affirmed the June 9,
2010 decision. He found that appellant failed to establish that modification of the June 15, 1999
wage-earning capacity determination was warranted. Appellant had not shown that the June 15,
1999 determination was made in error or that a material change in the nature and extent of his
injury-related conditions.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
3

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

4

[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP’s procedures further provide that the party seeking modification of a
formal loss of wage-earning capacity decision has the burden to prove that one of these criteria
has been met. If it is seeking modification, it must establish that the original rating was in error,
that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.7
Section 8115(a) of FECA provides that the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.8 The Board has stated, generally, wages actually earned are the best measure
of a wage-earning capacity and in the absence of evidence showing that they do not fairly and
reasonably represent the injured employee’s wage-earning capacity, must be accepted as such
measure.9 However, wage-earning capacity may not be based on an odd-lot or make-shift
position designed for an employee’s particular needs or a position that is seasonal in an area
where year-round employment is available.10 Wage-earning capacity may only be based on a
temporary or part-time position if the position held by the employee at the time of injury was a

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
5

Stanley B. Plotkin, 51 ECAB 700 (2000).

6

Id.

7

See Federal (FECA) Procedure Manual, supra note 4, at Chapter 2.814.11 (June 1996).

8

5 U.S.C. § 8115(a).

9

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury. 20 C.F.R. § 10.5(f). Once it is determined that the actual
wages of a given position represent an employee’s wage-earning capacity, OWCP applies the principles enunciated
in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the employee’s compensation.
10

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, supra note 4 at
Chapter 2.814.7a(1) (July 1997).

5

temporary or part-time position.11 OWCP’s procedures direct that a wage-earning capacity
determination based on actual wages be made following 60 days of employment.12
ANALYSIS
On November 4, 1997 appellant sustained lumbar strain and disc herniation at L4-5 as a
result of slipping on a ladder at work. After a period off work, he began working on a full-time
basis on February 22, 1999 in a light-duty facility maintenance controller position. The position
required processing written and call-in work requests using WIMS which assisted in prioritizing
work requests/job orders and creating daily/weekly/monthly reports in this regard and
accomplished all daily labor recordings, summarizing and verifying craft efforts assigned to
sections which included, but were not limited to man hours expended on work and job orders,
service calls, equipment maintenance operations, indirect activities, leave and supervision. The
physical requirements of the light-duty position involved occasional job site visits, extended
hours of research and development of computer products and other administrative actions and
ability to work under extreme pressure and display the highest degree of tact and courtesy
necessary for daily contact with all levels of personnel base-wide. Based on this position,
OWCP reduced appellant’s compensation to zero after finding that his actual earnings as a
facility maintenance controller fairly and reasonably represented his wage-earning capacity.
Appellant later filed claims for compensation from November 3, 2009 to March 5, 2010 due to
back pain.
The Board finds that OWCP’s determination that appellant’s actual earnings as a facility
maintenance controller beginning February 22, 1999 fairly and reasonably represented his
wage-earning capacity was consistent with section 8115(a) of FECA which provides that the
wage-earning capacity of an employee is determined by his actual earnings if his actual earnings
fairly and reasonably represent his wage-earning capacity.13 OWCP properly noted that he had
received actual earnings as a facility maintenance controller for more than 60 days in that he had
been working in the position since February 22, 1999 when OWCP issued its June 15, 1999
decision and there is no evidence that his earnings in this position did not fairly and reasonably
represent his wage-earning capacity. The facility maintenance controller position was not an
odd-lot or make-shift position designed for appellant’s particular needs and it was not seasonal in
nature.14 Moreover, the position was not a temporary or part-time position.15
The evidence does not show that appellant’s actual earnings as a facility maintenance
controller did not fairly and reasonably represent his wage-earning capacity and OWCP properly

11

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.814.7a(1), (3) (July 1997).

12

Id. at Chapter 2.814.7c (December 1993).

13

See supra note 9 and accompanying text.

14

See supra note 10 and accompanying text.

15

See supra note 11 and accompanying text.

6

adjusted his compensation based on this wage-earning capacity determination.16 For these
reasons, appellant has not shown that OWCP’s original determination with regard to his wageearning capacity was erroneous.
Appellant did not allege that he was retrained or otherwise vocationally rehabilitated and,
as noted, there is no evidence that the original wage-earning capacity determination was
erroneous. Furthermore, the Board finds that the evidence does not establish a material change
in his employment-related conditions.
Dr. Lenox’s reports found that appellant would not recover from his back condition and
the condition would likely continue to worsen. However, she did not explain why his accepted
conditions worsened and prevented him from performing the facility maintenance controller
position or otherwise establish that OWCP improperly determined his wage-earning capacity.17
The Board finds, therefore, that Dr. Lenox’s reports are of diminished probative value.
Dr. Evans’ reports found that appellant had occipital neuralgia with sharp shooting pains
radiating into the right posterior region of his head which prevented him from working for any
extended period of time without exacerbation of the conditions. He stated that appellant’s pain
medication for the diagnosed condition had cognitive side effects that would limit his ability to
perform his work duties. Dr. Evans advised that appellant also had disturbance of skin sensation.
He stated that appellant complained of pain radiating down his right leg and sustained a
hematoma since undergoing cauterization in January 2009. Based on the distribution, Dr. Evans
advised that appellant likely had femoral neuropathy. Lastly, he advised that appellant suffered
from back pain. While Dr. Evans opined that appellant was totally disabled for work, the Board
notes that OWCP has not accepted his claim for occipital neuralgia or disturbance of skin
sensation. For conditions not accepted by OWCP as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not OWCP’s burden to disprove such relationship.18 Dr. Evans provided no rationale
explaining how appellant’s occipital neuralgia and disturbance of skin sensation conditions were
caused or related to the November 4, 1997 injuries. Further, the Board has consistently held that
pain is a symptom, not a compensable medical diagnosis19 and a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.20 Dr. Evans did not explain how
slipping on a ladder would cause or contribute to the claimed back condition. In light of his
failure to provide medical rationale in support of his opinions, the Board finds that Dr. Evans’
reports are of diminished probative value.21 Accordingly, the Board finds that the record lacks
16

OWCP properly applied the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to
calculate the adjustment in appellant’s compensation.
17

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

18

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

19

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

20

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

21

S.S., 59 ECAB 315, 322 (2008); Cecilia M. Corley, 56 ECAB 662 (2005); George Randolph Taylor, 6 ECAB
986, 988 (1954).

7

medical evidence showing that an injury-related condition prevented appellant from working as a
facility maintenance controller.
The reports of Mr. Meeks, a nurse practitioner, and appellant’s physical therapist are of
no probative value because neither a nurse practitioner22 nor a physical therapist23 is a physician
as defined under FECA.
Appellant did not submit sufficient medical evidence to establish that the 1999 wageearning determination was erroneous or that there has been a material change in the accepted
conditions. For the stated reasons, he did not meet his burden of proof to establish that OWCP’s
wage-earning capacity decision should be modified.
On appeal, appellant contended that OWCP erred in determining his wage-earning
capacity as the physical demands of the facility maintenance controller position exceeded his
restrictions. After his injury, he returned to light-duty work on February 22, 1999. Appellant
accepted the position without contending that the light-duty requirements were outside his work
restrictions and worked for 10 years before stopping on November 3, 2009. He did not present
any evidence that the light-duty position was not suitable or outside his work restrictions and the
record contains no probative evidence on this issue. The Board finds that appellant did not meet
his burden of proof to establish that OWCP erred in finding that his actual earnings in the facility
maintenance controller position represented his wage-earning capacity.
Appellant may request modification of the wage-earning capacity determination
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has failed to establish that modification of OWCP’s wageearning capacity determination was warranted.

22

See 5 U.S.C. § 8101(2); L.D., 59 ECAB 648 (2008).

23

A.C., Docket No. 08-1453 (issued November 18, 2008).

8

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
U.S. POSTAL SERVICE, KUNA POST OFFICE,
Kuna, ID, Employer
__________________________________________

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

Docket No. 20-1680
Issued: November 10, 2021

Case Submitted on the Record

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

JURISDICTION
On September 24, 2020 appellant filed a timely appeal from May 8 and August 25 and 31,
2020 merit decisions 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish intermittent
disability from work commencing November 5, 2019 causally related to her accepted March 8,
2019 employment injury; and (2) whether OWCP has abused its discretion by denying appellant’s
request for authorization for physical therapy.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 8, 2019 appellant, then a 39-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that day she strained both knees and injured her back when she
missed a step as she exited a long-life vehicle and fell to the ground while in the performance of
duty. OWCP accepted the claim for bilateral knee contusions, initial encounter, and sprain of
ligaments of the lumbar spine. It paid appellant wage-loss compensation for disability on the
supplemental rolls as of April 27, 2019.
OWCP subsequently received medical reports by Dr. Kevin R. Krafft, an attending Boardcertified physiatrist and sports medicine physician. In an October 7, 2019 duty status report (Form
CA-17), Dr. Krafft listed appellant’s work restrictions as provided by her obstetrician/gynecologist
(OB/GYN).
In an October 7, 2019 narrative medical report, Dr. Krafft noted appellant’s history of low
back pain. He also noted that her OB/GYN had placed her on light-duty work five hours per day
with lifting restrictions. Dr. Krafft discussed examination findings and provided assessments of
sprain of ligaments of the lumbar spine, muscle spasms of the back, insomnia due to her condition,
binge eating disorder, and threat of job loss. He indicated that he would update restrictions for her
work-related back injury and those provided by her OB/GYN.
On October 30, 2019 appellant filed a claim for compensation (Form CA-7) seeking
compensation for leave without pay (LWOP) for disability from October 12 through 25, 2019. In
an attached time analysis form (Form CA-7a), she claimed wage-loss compensation for 44.48
hours of LWOP for the period October 15 through 25, 2019.
In a November 7, 2019 development letter, OWCP requested that appellant submit medical
evidence establishing her inability to work commencing October 12, 2019. It noted that the
medical evidence of record indicated that, effective October 7, 2019, her time loss from work was
due to part-time limited-duty work restrictions set forth by her OB/GYN and not due to her
accepted employment-related conditions. OWCP afforded appellant 30 days to submit the
requested evidence.
OWCP received the employing establishment’s November 6, 2019 job offer for a part-time
limited-duty rural carrier effective November 7, 2019, which appellant accepted on
November 6, 2019.
In November and December 2019 and January 2020, appellant filed additional Form CA7 claims seeking compensation for LWOP from August 31 through September 13, 2019 and
October 26, 2019 through January 17, 2020. In accompanying CA-7a forms, she claimed wageloss compensation for 23.92 hours of LWOP for the period September 3 through 7, 2019 and
September 13, 2019, 5.38 hours of LWOP for December 20, 2019, 41.97 hours of LWOP for the
period December 21, 2019 through January 3, 2020, and 41.50 hours of LWOP for the period
January 4 through 17, 2020.
In a November 4, 2019 report, Dr. Krafft reexamined appellant and reiterated his
assessments of sprain of ligaments of the lumbar spine, muscle spasms of the back, insomnia due

2

to her condition, binge eating disorder, and threat of job loss. He determined that she had reached
maximum medical improvement (MMI). Dr. Krafft released appellant to return to work with no
restrictions related to her accepted employment-related injury. He indicated that she did have
restrictions related to her pregnancy. Dr. Krafft related that no further diagnostic testing or
treatment related to appellant’s work-related injury was required at that time. He further related
that, if her symptoms persisted after her pregnancy, then a follow-up evaluation may be indicated.
Dr. Krafft determined that appellant had one percent whole person permanent impairment in
accordance with the sixth edition of the A.M.A., Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 In a November 4, 2019 return to work slip, he reiterated that she
could return to work with nonindustrial-related restrictions.
In a December 11, 2019 narrative report and December 13, 2019 Form CA-17 report,
Tarasue Maness, a certified family nurse practitioner, examined appellant and provided
assessments of lower back myalgia, lumbago, lumbar degenerative disc disease, other
intervertebral disc displacement and other spondylosis with radiculopathy, and mild left L3 -4 and
mild bilateral L4-5 foraminal stenosis in the lumbar region, chronic pain, depression, anxiety,
panic attack, and disc displacement. In the December 13, 2019 Form CA-17 report, she indicated
that appellant’s diagnosed disc displacement was due to injury. Ms. Maness also advised that she
could return to work with restrictions on December 16, 2019.
A January 6, 2020 Form CA-17 report by Dr. Eli Harris, a Board-certified anesthesiologist,
diagnosed the accepted condition of disc displacement due to injury. He listed appellant’s
restrictions and noted that on December 16, 2019 he advised her that she could resume work.
Progress notes dated July 22, 24, and 31, and August 2, 12, and 14, 2019 signed by
appellant’s physical therapists addressed the treatment of her low back pain, sacroiliitis, back
muscle spasm, and sprain of other parts of the lumbar spine and pelvis.
The employing establishment, in letters dated November 26 and December 10, 2019,
informed OWCP that appellant was unable to work because it was unable to accommodate her
work restrictions which were related to her pregnancy. It maintained that, if she did not have such
restrictions, she could work full time in the modified job she accepted on November 6, 2016.
On December 18, 2019 appellant accepted the employing establishment’s job offer as a
modified-duty rural carrier.
In a January 23, 2020 Form CA-17 report, Dr. Shane Andrew, an orthopedic surgeon,
diagnosed the accepted sprain of ligaments of the lumbar spine, initial encounter, due to injury,
and advised appellant that she could resume work with restrictions.
By decision dated January 23, 2020, OWCP found that appellant was entitled to wage-loss
compensation for 66.50 hours of LWOP for the period October 12 through November 4, 2019.3
2

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

3

On December 16, 2019 OWCP paid appellant wage-loss compensation on the supplemental rolls for four hours
of LWOP on September 6, 2019.

3

It, however, denied her claim for wage-loss compensation for LWOP for the period November 5,
2019 and continuing as the medical evidence was from a nurse practitioner who is not considered
a physician under FECA and it also indicated that appellant had no restrictions or required further
treatment related to her accepted work-related conditions.
OWCP subsequently received an additional report dated January 6, 2020 by Dr. Harris who
provided examination findings. Additionally, Dr. Harris noted assessments of lower back myalgia,
lumbago, lumbar degenerative disc disease, other intervertebral disc displacement and other
spondylosis with radiculopathy, and mild left L3-4 and mild bilateral L4-5 foraminal stenosis in
the lumbar region, chronic pain, depression, anxiety, and panic attack. He recommended that any
changes in work restrictions should go through a functional capacity examination and a primary
care physician. Dr. Harris noted that he explained to appellant that he did not provide work
restrictions orders although it was previously provided by his nurse practitioner.
In an additional report dated January 23, 2020, Dr. Andrew noted a review of lumbar spine
magnetic resonance imaging (MRI) scan results and discussed findings on physical examination.
He provided assessments of other intervertebral disc degeneration and other spondylosis with
radiculopathy, lumbar region. Dr. Andrew explained to appellant that he could not do anything
due to her pregnancy. He referred her to pain management for acupuncture.
In February and March 2020, appellant continued to submit Form CA-7 claims seeking
compensation for LWOP from January 18 through February 28, 2020. In accompanying CA-7a
forms, she claimed wage-loss compensation for 50.14 hours of LWOP compensation for the period
February 1 through 14, 2020 and 5.58 hours of LWOP for February 21, 2020.
Additional physical therapy daily notes and a progress note dated October 2, 7, 9, 14, 16,
23, 25, and 30 and November 4, 2019 and January 23, 27, 2020 from appellant’s physical
therapists again addressed the treatment of her low back pain, sacroiliitis, back muscle spasm, and
sprain of other parts of the lumbar spine and pelvis.
In a January 29, 2020 report, Ms. Maness continued to note her assessments of lower back
myalgia, lumbago, lumbar degenerative disc disease, other intervertebral disc displacement and
other spondylosis with radiculopathy, and mild left L3-4 and mild bilateral L4-5 foraminal stenosis
in the lumbar region, chronic pain, depression, anxiety, panic attack, and disc displacements.
On February 25, 2020 Rehab Authority, LLC, requested that OWCP authorize physical
therapy for the period January 27 through March 12, 2020 to treat appellant’s diagnoses of low
back pain, sacroiliitis, and back muscle spasm.
OWCP, in a March 10, 2020 development letter, informed appellant of the deficiencies of
her request for authorization for physical therapy treatment for the period January 27 through
March 12, 2020. It requested that she submit a rationalized medical opinion from her physician
establishing a causal relationship between her current medical condition and need for treatment
and her accepted March 8, 2019 employment injury. OWCP afforded appellant 30 days to submit
the necessary evidence.
In March 2020, appellant filed additional Form CA-7 claims for LWOP for disability from
February 29 through April 24, 2020. In accompanying CA-7a forms, she claimed 38.76 hours of
4

LWOP from March 3 through 13, 2020, 22.33 hours of LWOP from March 14 through 27, 2020,
and 160 hours of annual leave and other leave from March 28 through April 24, 2020.
Dr. Andrew, in an April 9, 2020 letter, referenced his January 23, 2020 evaluation of
appellant, including his review of the lumbar spine MRI scan findings. He noted that the MRI
scan revealed degenerative disc disease at L4-5 with Modic changes in the endplates indicating
some signiﬁcant inﬂammation in the disc. The scan also revealed some facet arthritis at L4 -5 and
L5-S1. Dr. Andrew related that, although appellant’s employment injury did not cause the
degenerative changes in her lumbar spine, her symptoms were likely aggravated by the work
injury. He further related that the objective MRI scan findings indicated that she would likely have
back pain intermittently and maybe even continuously throughout her life. Dr. Andrew advised
that the changes were not related to appellant’s work-related injury as they were degenerative and
not traumatic in nature. He agreed with Dr. Krafft that no further treatment was necessary for her
employment injury. Dr. Andrew maintained that this did not mean that appellant did not need
therapy and or that she would need therapy throughout the rest of her life, but the therapy would
be related to her degenerative changes and not her work-related injury. He concluded that she had
back pain prior to her injury and she would continue to have some back pain as mentioned above
due to the degenerative changes in her spine.
By decision dated May 8, 2020, OWCP denied appellant’s request for authorization for
physical therapy treatment, finding that the medical evidence of record did not contain a
rationalized medical opinion to support that the requested treatment was medically necessary to
address the effects of her accepted employment-related conditions.
In May, June, and July 2020, appellant filed additional Form CA-7 claims for LWOP for
disability for the period April 25 through July 31, 2020, and CA-7a forms requesting 536 hours of
LWOP and other leave for the claimed period.
Physical therapy daily notes dated January 29 and 31, and February 3, 5, 7, 10, 14, 26, and
28, and June 24, 2020 from appellant’s physical therapists were submitted and continued to
address the treatment of appellant’s lumbar conditions.
OWCP received additional reports from Dr. Krafft. In reports dated June 2 and 25 and
July 16, 2020, Dr. Krafft reiterated his prior lumbar, sleep, eating, and emotional assessments. He
noted that appellant was not working because she was caring for her children due to COVID-19
and she could not lift things with her back. Dr. Krafft indicated that he would update her return to
work status. He determined that appellant had zero percent whole person permanent impairment
based on the sixth edition of the A.M.A., Guides.
In a June 2, 2020 order, Dr. Krafft referred appellant to physical therapy for treatment of
her low back pain.
Dr. Krafft, in Form CA-17 reports dated June 25 and July 16, 2020, listed appellant’s work
restrictions.
On August 11, 2020 appellant requested reconsideration of the January 23 and May 8,
2020 decisions.

5

On August 18, 2020 appellant filed a Form CA-7 claim requesting LWOP for disability for
the period August 1 through 14, 2020 and a Form CA-7a claiming eight hours of LWOP and eight
hours of other leave for August 1, 2020.
By decision dated August 25, 2020, OWCP denied modification of its January 23, 2020
decision denying appellant’s claim for wage-loss compensation commencing November 4, 2019.
It found that the medical evidence submitted continued to establish that her claimed disability from
work was not causally related to her accepted March 8, 2019 employment injury.
In an August 31, 2020 decision, OWCP denied modification of its May 8, 2020 decision
denying appellant’s request for authorization for physical therapy. It found that the medical
evidence submitted continued to support that appellant’s need for physical therapy treatment was
not related to her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury .5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury. 6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are m edical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence. 7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages. 9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

4

See supra note 1.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

7

20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).

8

Id. at § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

J.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

6

claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish intermittent
disability from work commencing November 5, 2019 causally related to her accepted March 8,
2019 employment injury.
In support of her claims for compensation, appellant submitted reports a return to work slip
from Dr. Krafft who determined that she reached MMI and could return to work with no
restrictions related to the accepted March 8, 2019 employment-related conditions. Dr. Krafft
noted that she had work restrictions related to her pregnancy and established by her OB/GYN. He
later reported that appellant was unable to work because she was caring for her children due to
COVID-19 and was unable to lift things using her back. Although he noted her disability for work,
Dr. Krafft did not attribute her disability to the accepted March 8, 2019 employment injury.
Accordingly, his reports are of no probative value and are insufficient to establish appellant’s claim
for disability.11
Dr. Andrew’s January 23, 2020 reports diagnosed the accepted sprain of the ligaments of
the lumbar spine due to injury and provided work restrictions. However, he did not provide an
opinion on whether appellant was disabled from work during the claimed period due to her
accepted employment condition.12 In an April 9, 2020 report, Dr. Andrew advised that lumbar
spine degenerative changes as demonstrated by MRI scan were not caused by the accepted
employment injury, but were likely aggravated by the work injury. Additionally, he found that
these lumbar symptoms were not related to the accepted work injury because they were
degenerative and not traumatic in nature. Dr. Andrew also agreed with Dr. Krafft that no further
treatment of appellant’s accepted injury was required and that any need for future therapy would
be related to her degenerative changes and not to her accepted conditions. The Board finds that
Dr. Andrew did not provide an opinion on whether appellant was disabled from work due to her
March 8, 2019 employment injury,13 therefore, the Board finds that these reports are insufficient
to establish that the claimed disability is causally related to the accepted employment injury.
Dr. Harris diagnosed lower back myalgia, lumbago, lumbar degenerative disc disease,
other intervertebral disc displacement and other spondylosis with radiculopathy, and mild left L34 and mild bilateral L4-5 foraminal stenosis in the lumbar region, chronic pain, depression,
anxiety, and panic attack. He opined that appellant’s disc displacement was due to injury. Further,
10

J.K., Docket No. 19-0488 (issued June 5, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005).

11

See M.A., Docket No. 20-0033 (issued May 11, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018); T.R., Docket No. 17-0567 (issued April 20, 2018); R.A., Docket No. 141327 (issued October 10, 2014).
12

See J.T., supra note 8; M.J., Docket No. 19-1287 (issued January 13, 2020); M.M., Docket No. 18-0817 (issued
May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).
13

Id.

7

Dr. Harris advised that she could return to work with restrictions. The Board finds that he
diagnosed conditions which were not accepted by OWCP and he did not attribute appellant’s
restrictions to the accepted bilateral knee and lumbar conditions. Thus, Dr. Harris’ reports are
insufficient to meet her burden of proof. 14
The reports from Ms. Maness, a certified family nurse practitioner, and progress and daily
notes from appellant’s physical therapists have no probative medical value. The Board has held
that neither a nurse practitioner nor a physical therapist is a physician as defined under FECA.15
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 16 Because appellant has not submitted rationalized medical opinion evidence
to establish employment-related intermittent disability commencing November 5, 2019 as a result
of her accepted bilateral knee and lumbar conditions, the Board finds that she has not met her
burden of proof to establish her claim for disability compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19

14

F.H., Docket No. 18-0160 (issued August 23, 2019).

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not
considered physicians under FECA).
15

16

See C.E., Docket No. 19-1617 (issued June 3, 2020); Fereidoon Kharabi, supra note 6.

17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

8

Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work -related injury.20
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness. 21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization for physical therapy.
On February 25, 2020 Rehab Authority, LLC, on behalf of appellant, sought authorization
for physical therapy for the period January 27 through March 12, 2020 to treat her diagnoses of
low back pain, sacroiliitis, and back muscle spasm.
In his reports, Dr. Krafft noted that appellant’s work restrictions were related to her
pregnancy and prescribed by her OB/GYN. He opined that she did not require further diagnostic
testing or treatment related to her work-related injury.
Dr. Andrew, in his April 9, 2020 report, agreed with Dr. Krafft that no further treatment of
appellant’s accepted conditions was required. He related that the need for future therapy would
be related to the degenerative changes in her lumbar spine and not to her accepted conditions. In
his January 23, 2020 report, Dr. Andrew referred appellant to pain management for acupuncture
to treat her symptoms related to her pregnancy and not the accepted employ ment conditions.

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., supra note 18.

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

9

As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness.24 In the instant case, appellant did not submit evidence to support that the
requested physical therapy was medically necessary to treat her accepted bilateral knee and lumbar
conditions. The Board thus finds that OWCP has not abused its discretion by denyin g her request
for authorization for physical therapy. 25
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board appellant has not met her burden of proof to establish intermittent disability
from work commencing November 5, 2019 causally related to her accepted March 8, 2019
employment injury. The Board further finds that OWCP has not abused its discretion by denying
her request for authorization for physical therapy.

24

Supra note 21; see also A.W., Docket No. 14-0708 (issued January 2, 2015) (the Board found that OWCP did not
abuse its discretion by relying on the opinion of its second opinion examiner as the weight of evidence to deny approval
for elective spinal surgery).
25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

10

ORDER
IT IS HEREBY ORDERED THAT August 31 and 25 and May 8, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 10, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11