United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-2439
Issued: April 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 25, 2007 denying a claim for a recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability causally related
to her employment injury.
FACTUAL HISTORY
On June 25, 1997 appellant filed a traumatic injury claim (Form CA-1) alleging that she
sustained injuries when a chair went from under her and she fell to the floor. The Office
accepted the claim for lumbar strain, right elbow contusion and right foot contusion. According
to the evidence of record, appellant had previously sustained lumbar strains in the performance

of duty on December 11, 1986, February 22, 1988 and March 10, 1989. Her employment
history, as reported by the employing establishment in a January 31, 2002 memorandum, began
in 1980 as a nursing assistant. After the March 10, 1989 injury, appellant was placed on
permanent light duty and worked as a messenger. Pursuant to the March 10, 1989 claim, the
Office accepted a recurrence of disability on September 21, 1993. Appellant began working as a
triage clerk in 1994 and as of 2002 she was working as a patient service assistant. She retired
from federal employment in July 2004.
On June 26, 2006 appellant filed a notice of recurrence of disability (Form CA-2a). She
identified the date of the original injury as March 10, 1989. As to the date of the recurrence,
appellant listed both September 21, 1993 and June 25, 1997. She stated that she had never
stopped receiving treatment for her back since March 10, 1989. In a narrative statement,
appellant reported that she had spinal stenosis with degenerative arthritis. She stated that she had
taken leave without pay (LWOP) in 2003, for which she had never been paid. Appellant stated
that she was “requesting consideration of my LWOP [and] reinstatement of my back problems so
I can continue treatment for my back.”
The record contains reports from Dr. Paul Papanek commencing in July 2001. The
diagnoses for the back included chronic mechanical back pain due to L5-S1 disc disease. In a
report dated March 13, 2003, Dr. Papanek stated that he was puzzled that the Department of
Labor had denied authorization for treatment, as he had submitted reports since June 2002 and
these reports had discussed causal relationship. He stated that it appeared the basis for
appellant’s ongoing pain was her disc disease and her condition dates from the original injury in
1997 with intermittent flare-ups. On January 13, 2004 Dr. Papanek began diagnosing L4-5 disc
herniation and lumbar stenosis.
The Office referred appellant for a second opinion examination by Dr. Ghol Ha’Eri, an
orthopedic surgeon. In a report dated January 9, 2007, Dr. Ha’Eri provided a history of the
June 25, 1997 injuries and results on examination. He opined that the accepted employment
injuries had resolved. Dr. Ha’Eri found that appellant had preexisting mild L5-S1 disc
degeneration that was not employment related.
Pursuant to the June 25, 1997 claim, the Office issued a January 16, 2007 decision
denying the claim for a recurrence of disability. The Office found that the medical evidence was
insufficient to establish a recurrence of disability causally related to the June 25, 1997
employment injuries. With respect to the March 10, 1989 claim, the Office issued a February 14,
2007 decision denying the claim for a recurrence of disability.
Appellant requested a review of the written record regarding the January 16, 2007 Office
decision. By decision dated June 25, 2007, the Office hearing representative affirmed the
January 16, 2007 decision.

2

LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”1
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.2 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.3
ANALYSIS
The evidence from the employing establishment indicated that appellant had been
working in light-duty positions since March 10, 1989. Appellant filed a notice of recurrence of
disability (Form CA-2a) on June 26, 2006.4 The Form CA-2a does not clearly indicate the
period of disability claimed. Appellant stated that on appeal she was not claiming a recurrence
of disability in 2006, as she had retired in 2004. As to the date of a recurrence of disability on
the claim form, she listed September 21, 1993 and June 25, 1997. Neither of these dates is
relevant since appellant already had an accepted recurrence on September 21, 1993 and June 25,
1997 represented the date of an accepted lumbar strain in the performance of duty. In a narrative
statement, she referred to using LWOP in 2003, but she did not clearly indicate the specific dates
1

20 C.F.R. § 10.5(x).

2

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
3

Maurissa Mack 50 ECAB 498 (1999).

4

The Office issued decisions on the recurrence of disability claim pursuant to both the March 10, 1989 injury
(OWCP File No. 130883749) and the June 25, 1997 injury (OWCP File No. 131144363). The Board has reviewed
all decisions with respect to the June 26, 2006 CA-2a issued within one year of the filing of the appeal.

3

claimed.5 Appellant appeared also to seek medical benefits, without identifying a date of a
recurrence of a medical condition. She provided only a general statement that she had never
stopped treatment for her back.
To the extent that appellant was claiming a recurrence of disability for periods in 2003,
she must establish that she had a continuing employment-related condition or that there was a
change in the condition causing disability for specific periods claimed. She did not submit
probative medical evidence on this issue. Dr. Papanek, for example, diagnosed L5-S1 disc
disease, L4-5 disc herniation and spinal stenosis. None of these conditions has been accepted as
employment related. A physician must provide a rationalized medical opinion, based on a
compete background, on causal relationship between a diagnosed condition and appellant’s
federal employment.6 In a March 13, 2003 report, Dr. Papanek suggested that he had discussed
causal relationship in prior reports, but the record does not contain a rationalized medical opinion
in the prior reports of record. On March 13, 2003 he noted that appellant’s condition dated from
the original injury in 1997, without providing a complete factual and medical history or a
rationalized medical opinion on causal relationship between L5-S1 disc disease and the
employment injuries. With respect to appellant’s current condition, the second opinion
physician, Dr. Ha’Eri, opined in his January 9, 2007 report that residuals of the June 25, 1997
employment injury had resolved and appellant’s symptoms were related to a preexisting
degenerative L5-S1 condition.
The Board finds that appellant did not submit sufficient factual and medical evidence to
establish a recurrence of disability in this case. Appellant did not identify the specific period of
compensation claimed or submit probative medical evidence sufficient to meet her burden of
proof.
CONCLUSION
Appellant did not meet her burden of proof to establish a recurrence of disability.

5

The record contains information from the employing establishment regarding intermittent dates from June 1 to
August 9, 2003 with entries such as LWOP, absent without leave (AWOL) and “called in late,” but it is not clear
what periods are applicable to the claim for a recurrence of disability.
6

See Donald Wenzel, 56 ECAB 390 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 25, February 14 and January 16, 2007 are affirmed.
Issued: April 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

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

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 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 appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101et seq.

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a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
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 the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his 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.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 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 E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
U.S. POSTAL SERVICE, VANDERVEER
STATION, Brooklyn, NY, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1113
Issued: January 10, 2017

Case Submitted on the Record

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

JURISDICTION
On May 2, 2016 appellant, through counsel, filed a timely appeal from a
January 29, 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 appellant met his burden of proof to establish that bilateral
hernias were a consequence of a May 20, 1999 employment injury.
On appeal counsel asserts that the statement of accepted facts (SOAF) provided to
Dr. Howard Beaton, a Board-certified surgeon, was incomplete because it did not include
the fact that appellant had hernia repairs in 2002 and 2004 and thus, as the physician’s
report is based on an inaccurate medical history, it should be discounted. He further
asserts that the opinion of Dr. Michael J. Katz, an attending Board-certified orthopedic
surgeon, is sufficient to establish causal relationship. Counsel concludes that, at a
minimum, a conflict in medical evidence has been created between the opinions of
Dr. Beaton and Dr. Katz.
FACTUAL HISTORY
On May 20, 1999 appellant, then a 36-year-old building equipment mechanic, fell
from a ladder while climbing down from a roof after repairing an air-conditioner. He
stopped work that day and has not returned. Appellant received continuation of pay and
was placed on the periodic compensation rolls in August 1999. He remains on the
periodic rolls to date. An OWCP Non-Fatal Summary indicated that on May 25, 1999
the claim was accepted for cervical sprain, lumbar sprain, left wrist sprain, open wound
to the face, and injury to nerve with approved surgery.
In an undated report, received by OWCP on February 28, 2011, Dr. Timothy T.
Robinson, an attending Board-certified family physician, noted diagnoses of fracture of
orbital socket and nerve damage of the right eye; cervical and lumbar spine disc bulges;
left wrist nonunion fracture of scaphoid bone resulting in reconstructive surgery; hernias
with two nonsuccessful surgeries for repair; arthralgias of the neck, back, shoulder,
bilateral wrists, hips, knees, and ankles; and right-sided dental damage. He advised that
all diagnoses were directly related to the May 20, 1999 employment injury, which
resulted in chronic pain, instability, and unreliability. Dr. Robinson concluded that
appellant could not work. On October 4, 2012 he diagnosed low back, left wrist, and
neck pain, and abdominal hernias. Dr. Robinson continued to advise that appellant could
not work and that vocational rehabilitation could be considered.
In a November 19, 2012 report, Dr. Mary Ann Hopkins, a Board-certified
surgeon, noted appellant’s complaint of recurrent right and left inguinal and umbilical
hernias. She reported that he had a right inguinal hernia repaired twice in the mid-2000s.
Physical examination demonstrated left inguinal and umbilical hernias and possible
recurrent right inguinal hernia. Dr. Hopkins recommended laparoscopic surgical repair.
On December 12, 2012 she indicated that appellant could not participate in a functional
capacity evaluation because he could not lift due to the diagnosed hernias.3
3

Appellant was referred for vocational rehabilitation on October 25, 2012. In January 2013, vocational
rehabilitation was placed in interrupted status pending hernia surgery.

2

On September 30, 2013 Dr. Katz noted diagnoses of left wrist fracture cervical
and lumbar spine derangement, and advised that appellant was totally disabled and
needed hernia surgery. On March 25, 2014 Dr. Robinson agreed that appellant was
totally disabled.
In reports dated April 2 and 3, 2014 report, Dr. Alex M. Stone, a Board-certified
surgeon, noted that appellant fell off a roof and injured his back, head, and torso, and that
this was followed by bilateral inguinal hernias and an umbilical hernia, which were
employment related. He described appellant’s complaints of swelling in the left groin
and pain in the right groin. Dr. Stone diagnosed multiple recurrent hernias. An April 28,
2014 computerized tomography (CT) scan of the abdomen and pelvis demonstrated
bilateral recurrent inguinal hernias. On May 14, 2014 Dr. Stone advised that he would
proceed with left inguinal hernia repair and requested authorization.
By letter dated May 22, 2014, OWCP informed appellant that it could not
authorize the surgery because the record of evidence failed to establish the need for the
procedure due to factors of employment.
In correspondence dated May 27, 2014, appellant described the employment
injury and his current medical condition. He noted that he had a right hernia repairs on
April 12, 2004 and on November 13, 2006 a second hernia repair on the right. Appellant
attached copies of medical reports dated from 1999 to present.
In a June 2, 2014 report, Dr. Katz noted first seeing appellant on
October 22, 2012. He reported a history that appellant injured his neck, back, and left
wrist on May 20, 1999, which resulted in five surgeries to the left wrist. Dr. Katz related
appellant’s report of back, abdominal, groin, and testicular pain since the fall at work,
advising that appellant initially associated this with his back pain, but that it “was
actually a hernia that happened as a result of the fall” which became strangulated in 2004
and required emergency surgery, noting that this was done under his private health
insurance because he could not wait for authorization. He noted that appellant
subsequently suffered recurrences and now required further surgery. Dr. Katz opined that
appellant’s back spasm caused further exacerbation of the hernia condition. He
concluded that it appeared that his fall caused the initial hernia with his back condition
making his hernia condition worse. Dr. Katz requested authorization for the hernia
surgery because it was causally related to his May 20, 1999 employment injury.
In June 2014, OWCP referred appellant to Dr. Arnold Goldman, a Board-certified
orthopedic surgeon. The SOAF provided to Dr. Goldman indicated that the accepted
conditions were “left wrist sprain, open wound to the face, and injury to the nerve” as
arising out of the May 20, 1999 employment injury. Dr. Goldman was asked to provide
an opinion on whether appellant continued to have disabling residuals of the accepted
conditions or concurrent nonwork-related disability.
In a July 7, 2014 report, Dr. Goldman noted his review of the SOAF and medical
evidence, and described physical examination findings, noting marked limitation of range
of motion of the left wrist, and a marked left inguinal hernia on the left. He diagnosed

3

cervical and lumbosacral sprains, status post left wrist fusion, and bilateral inguinal
herniorrhaphies. Dr. Goldman advised that the diagnosed cervical and lumbosacral
sprains were also directly related to the May 20, 1999 injury and opined that appellant
continued to have a marked disability with regard to the left wrist. He deferred comment
regarding the hernias to an appropriate specialist and concluded that appellant could work
in a sedentary capacity with regard to his orthopedic condition. In an attached work
capacity evaluation (Form 5c), Dr. Goldman provided restrictions to appellant’s physical
activity.
In reports dated September 22, 2014, Dr. Katz noted his review of Dr. Goldman’s
report and magnetic resonance imaging (MRI) scans of December 1999. He described
physical examination findings and diagnosed status post left wrist fracture, cervical and
lumbar spine derangement, and status post bilateral herniorrhaphies with recurrent
hernias. Dr. Katz repeated his opinion that appellant’s inguinal hernias were caused by
his fall and that he needed hernia surgery. He advised that appellant’s neck, back, and
left shoulder conditions appeared permanent, that he was totally disabled due to pain, and
needed hernia surgery.
On September 24, 2014 counsel requested that appellant’s claim be expanded to
include the hernias and that OWCP authorize surgery for these conditions. On
October 27, 2014 he forwarded operative reports dated April 12, 2004 and November 13,
2006, in which Dr. Andrew Y. Lo, a surgeon, performed right inguinal hernia repair and a
recurrent right inguinal hernia repair respectively. Also forwarded was a May 10, 2005
CT scan of the abdomen and pelvis that demonstrated recurrent right inguinal hernia.
In November 2014, OWCP referred appellant to Dr. Beaton for a second opinion
evaluation. Dr. Beaton was specifically asked to advise whether the claim should be
expanded to include the diagnosed hernias and lumbar and cervical disc herniations. An
October 30, 2014 SOAF provided that the accepted conditions were left wrist sprain,
open wound to the face, and injury to the nerve as arising out of the May 20, 1999
employment injury.4 In a November 18, 2014 report, Dr. Beaton noted his review of the
SOAF and medical record. He described the employment injury and appellant’s medical
and surgical history, including that Dr. Lo repaired right inguinal hernias in 2004 and
2006, and that appellant now had similar pain, and a bulge in his left groin. Dr. Beaton
reported examination findings of a large bulge in the left groin consistent with an inguinal
hernia. He diagnosed left inguinal hernia and recurrent right inguinal hernia, on CT scan
only.
Dr. Beaton opined that surgical repair of the left inguinal hernia was medically
indicated and that the right inguinal hernia did not warrant surgery at that time. He
opined that appellant’s hernias were not related to his May 20, 1999 fall and injury
because he did not report pain in his right groin at that time, and there was no medical
4

The record contains two SOAFs dated October 30, 2014. Each stated “This SOAF supersedes any and
all prior SOAFs.” One additionally included a description of the physical requirements of the building
equipment mechanic position. Otherwise they are identical, including the list of accepted conditions
described above.

4

record of hernia until 2004, five years after the work injury. Dr. Beaton disagreed with
Dr. Katz’ opinion that the hernias were caused by the 1999 employment injury,
concluding that without some documentation of a hernia being present much closer in
time to the employment injury, it was his opinion that neither the right nor left inguinal
hernias were work related. In an attached work capacity evaluation, Dr. Beaton advised
that, with regard to the hernia, appellant could not perform heavy lifting, but could work
eight hours a day.
In a March 21, 2015 report, Dr. Katz repeated his previous conclusions. He noted
his review of additional medical records and referenced a July 1, 1999 report in which
Dr. Michael Brooks noted lower back pain that radiated around to the lower abdomen in
the area of a 1980 stab wound; reports from Dr. Robinson who reported appellant’s
complaint of back pain radiating to the groin on October 7, 1999; and January 28 and
March 7, 2000 notes in which Dr. Peter D. Stein, Board-certified in orthopedic and hand
surgery, advised appellant to see a spine surgeon with regard to his back pain and
testicular symptoms. Dr. Katz further referenced a January 17, 2001 report from Dr. Kiril
Kiprovski, a Board-certified neurologist, who noted appellant’s complaint of unrelieved
lower back pain that radiated into the right buttock and groin, and notes from Brenda
Caron, a nurse, who indicated that appellant had low back pain radiating to the right
groin. He opined that these reports clearly showed that appellant had abdominal/groin/
testicular pain since the May 20, 1999 employment injury and maintained that the
resultant inguinal hernia condition should be accepted. Dr. Katz concluded that the
May 20, 1999 fall caused the initial hernia with appellant’s back condition making this
condition worse. He requested that hernia surgery be authorized.
By decision dated July 17, 2015, OWCP denied appellant’s request to expand the
accepted conditions for a consequential hernia condition. It found that the weight of the
medical evidence rested with the opinion of Dr. Beaton who, while diagnosing a large left
inguinal hernia, opined that this was not caused by the May 20, 1999 employment injury.
On July 28, 2015 appellant, through counsel, timely requested a hearing with
OWCP’s Branch of Hearings and Review. He submitted a September 21, 2015 report, in
which Dr. Katz again reiterated his opinion that appellant had abdominal/groin/testicular
pain since the May 20, 1999 work injury, stating that the right inguinal hernia was
directly caused by the injury and was not a consequential injury. Dr. Katz related that,
because appellant was not medically sophisticated, the significance of his abdominal and
groin pain was not apparent to him at the time of his injury. He noted that appellant
reported that he complained to numerous physicians about his abdominal and groin pain,
which Dr. Beaton did not mention. Dr. Katz opined that the May 20, 1999 fall caused the
initial right inguinal hernia and the subsequent need for two right inguinal hernia repairs.
Appellant’s back condition caused spasms and an awkward stance and gait, which caused
a consequential left inguinal hernia which now required surgery. Dr. Katz requested
authorization for the surgery.
In form reports dated September 30, 2015, Dr. Katz reiterated appellant’s
diagnoses. He noted that appellant was unable to sit or stand for long periods of time,
needed hernia surgery, and was totally disabled.

5

Appellant was not present at the hearing, held on November 13, 2015. Counsel
asserted that because injuries to appellant’s groin were not initially addressed, he had to
have additional hernia surgery. He discussed the medical evidence that described
appellant’s groin pain and other complaints. Counsel maintained that the reports of
Dr. Katz were sufficient to establish causal relationship or, at a minimum, create a
conflict in medical evidence.
By decision dated January 29, 2016, an OWCP hearing representative affirmed
the July 17, 2015 decision denying expansion of the accepted conditions. While the
hearing representative found Dr. Beaton’s report of diminished probative value as the
medical record reported right groin pain at an early date, the request for expansion was
for a left hernia condition, and none of the contemporaneous medical reports described a
hernia condition. As such, the hearing representative found that appellant failed to
establish causal relationship.
LEGAL PRECEDENT
In discussing the range of compensable consequences, once the primary injury is
causally connected with the employment, Larson notes that, when the question is whether
compensability should be extended to a subsequent injury or aggravation related in some
way to the primary injury, the rules that come into play are essentially based upon the
concepts of direct and natural results and of claimant’s own conduct as an independent
intervening cause. The basic rule is that a subsequent injury, whether an aggravation of
the original injury or a new and distinct injury, is compensable if it is the direct and
natural result of a compensable primary injury.5
A claimant bears the burden of proof to establish a claim for a consequential
injury. As part of this burden, he or she must present rationalized medical opinion
evidence, based on a complete factual and medical background, showing causal
relationship. The opinion must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.6
Causal relationship is a medical issue, and the medical evidence required to
establish a causal relationship is rationalized medical evidence.7 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 employee.8 Neither the mere fact that a disease or
5

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 1300 (2010); see Charles W.
Downey, 54 ECAB 421 (2003).
6

Charles W. Downey, id.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

6

condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
It is OWCP’s responsibility to provide a complete and proper frame of reference
for a physician by preparing a SOAF.10
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that the SOAF is defective because it did not include all of
appellant’s accepted conditions. As noted on a Non-Fatal Summary on May 25, 1999,
OWCP indicated that the claim was accepted for cervical sprain, lumbar sprain, left wrist
sprain, open wound to the face, and injury to nerve with approved surgery. The
October 30, 2014 SOAF provided to Dr. Beaton indicated that the accepted conditions
were “left wrist sprain, open wound to the face, and injury to the nerve” as arising out of
the May 20, 1999 employment injury. It did not indicate that cervical and lumbar sprains
had been accepted. Because the SOAF sent to Dr. Beaton was not accurate, the Board
finds that the January 19, 2016 decision must be set aside and the case remanded to
OWCP.11
On remand OWCP should prepare a corrected SOAF that includes all accepted
conditions. It shall forward this to Dr. Beaton and ask the second opinion physician to
provide an opinion as to whether appellant’s current hernia and spinal conditions are
related to the June 20, 1999 work injury, noting the additional accepted conditions. If
Dr. Beaton is unable to provide the requested opinion, OWCP should refer appellant for
another second opinion evaluation. After this and such further development deemed
necessary, OWCP should issue a de novo decision.12
CONCLUSION
The Board finds that this case is not in posture for decision.

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

Donald E. Ewals, 51 ECAB 428 (2000).

11

S.H., Docket No. 14-1280 (issued June 24, 2015).

12

The Board notes that appellant has also requested that diagnosed disc herniations be accepted under
this claim. The Board’s jurisdiction extends only to the review of final decisions by OWCP. 20 C.F.R.
§ 501.2(c). As OWCP has not issued a decision regarding these conditions, the Board has no jurisdiction to
review this request. See E.L., 59 ECAB 405 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2016 decision of the Office
of Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: January 10, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Leesburg, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1198
Issued: August 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 16, 2016 appellant, through counsel, filed a timely appeal from a December 14,
2015 merit decision2 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
1

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

The Board notes that the record contains a January 27, 2016 merit decision which denied modification of a
January 8, 2015 decision in which OWCP terminated appellant’s medical benefits and wage-loss compensation for
the conditions of aggravation of asthma, fatigue, and fibromyositis. As counsel has not appealed this decision, the
Board will not consider this issue.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits based on her capacity to earn wages in the constructed position of
customer service representative.
On appeal counsel contends that OWCP improperly shifted the burden of proof to
appellant and that the statement of accepted facts (SOAF) provided to the impartial medical
examiner was inaccurate. She further contends that OWCP provided a second opinion physician,
a psychiatrist, with leading questions and that the second opinion psychiatrist’s report was stale.
Finally, counsel contends that the impartial medical examiner determined that appellant could
work only four hours a day.
FACTUAL HISTORY
On September 9, 1978 appellant, then a 26-year-old air traffic controller, filed a traumatic
injury claim4 (Form CA-1) alleging that she slipped on water in front of an ice machine in the
employee cafeteria. OWCP accepted this claim for right hand, bilateral knee, and bilateral ankle
injuries. Appellant had a recurrence of disability due to her September 9, 1978 injury on
June 22, 1979 and returned to work on July 6, 1979.
Appellant filed a traumatic injury claim (Form CA-1) alleging that on December 20,
1979 she again slipped on a wet floor at work and developed back pain. OWCP accepted this
claim for chronic lumbosacral strain and bulging disc. Appellant stopped work on July 7, 1980
and returned to work on July 29, 1980. OWCP thereafter accepted a recurrence of disability due
to her December 20, 1979 injury on March 11, 1980, but appellant returned to work on
April 1, 1980. A March 12, 1980 lumbar myelogram showed an L4-5 disc bulge not
significantly changed since a July 1979 study. Appellant sustained a second recurrence of
disability due to her December 20, 1979 injury beginning August 3, 1981.
5

Appellant filed a traumatic injury claim (Form CA-1) on May 21, 1981 alleging that she
slipped and fell reinjuring her back. Her physician released her to return to work on
August 28, 1981. OWCP accepted left ankle strain and lumbosacral strain. Appellant was off
the employing establishment rolls from September 1981 until January 1984. She was terminated
on September 14, 1983; however, her termination was subsequently overturned on
March 30, 1984.
In an August 15, 1984 decision, OWCP’s hearing representative found that appellant had
no disability for work after May 21, 1981 due to any employment injury.

4

OWCP File No. xxxxxx483.

5

File No. xxxxxx558.

2

Appellant subsequently filed additional traumatic injury claims, occupational disease
claims, and claims for wage-loss compensation and medical benefits.6
In an August 11, 1987 letter, counsel informed OWCP that on June 2, 1983 the Fourth
Circuit Court of Appeals had found that appellant “was the object of sustained and nontrivial
harassment....” She further noted that the employing establishment knew or should have known
of the harassment, but made no significant effort to the end the harassment.7 Counsel contended
that appellant developed an emotional injury as a result of this harassment. She further
contended that the employing establishment had treated appellant as a “striker” even though the
Merit Systems Protection Board (MSPB) found that she was not a strike participant. Finally, in
the letter counsel detailed appellant’s sexual harassment at the employing establishment.
Appellant filed an occupational disease claim (Form CA-2) on August 28, 1987 alleging
intermittent respiratory and cardiac problems, anxiety, chronic fatigue, depression, intermittent
muscular problems, and temporomandibular joint (TMJ) dysfunction. She provided a detailed
statement describing the events that contributed to her emotional condition. OWCP developed a
SOAF noting appellant’s established sexual harassment and the decision by MSPB. In an
August 13, 1987 decision, however, it denied her claim. Subsequently, on April 23, 1992,
OWCP accepted the claim for anxiety disorder, fatigue, aggravation of asthma, and
fibromyositis. Appellant filed claims for wage-loss compensation benefits (Form CA-7) due to
her accepted conditions.
OWCP authorized total disability compensation beginning
April 6, 1994. It placed appellant on the periodic rolls on December 10, 1998. The employing
establishment terminated her employment effective January 15, 1999.
Dr. Mayo F. Friedlis, a Board-certified physiatrist, examined appellant on October 27,
2009, and April 20 and November 30, 2010, diagnosing right L5 radiculopathy, L4-5 neural
foraminal stenosis, L4-5 disc bulge, lumbar spondylosis, lumbar facet arthropathy, fibromyalgia,
chronic fatigue syndrome, and chronic lymphedema. He recommended therapeutic Rolfing,
massage, and neuromuscular massage for pain.
Dr. Stephen J. Rojcewicz, Jr., a Board-certified psychiatrist, diagnosed anxiety disorder
on January 24, 2011. At that time he opined that appellant’s anxiety condition was still present
and disabled her from all work.

6

On October 26, 1982 appellant filed an occupational disease claim (Form CA-2) alleging that she developed a
herniated disc at L4-5, back pain, ear problems, and severe anxiety due to harassment at the employing
establishment; a November 20, 1984 traumatic injury claim (Form CA-1) alleging that on May 27, 1981 she
developed severe anxiety from persistent harassment by her supervisor; a March 18, 1985 traumatic injury claim
(Form CA-1) for an emotional condition due to a March 15, 1985 incident; and a September 18, 1985 traumatic
injury claim (Form CA-1) for an emotional condition that she related to a September 13, 1985 letter about leave use.
She filed a second occupational disease claim (Form CA-2) on March 20, 1985 alleging that she developed anxiety,
fatigue, stress, and lower back conditions due to factors of her federal employment. OWCP requested additional
information from appellant on July 9, 1987 and afforded her 30 days to respond. It denied this case by decision
dated August 13, 1987.
7

Katz v. Dole, 709 F.2d 251 (1983).

3

On April 26, 2011 OWCP referred appellant, along with a SOAF and a list of questions,
for a second opinion evaluation with Dr. Lance Atkinson, Board-certified in occupational
medicine. The accepted conditions listed in the SOAF were anxiety disorder, fatigue,
aggravation of asthma, and nonspecific fibromyositis. It further noted that appellant had filed 17
claims for injuries, but the onset date of the conditions at issue was the claim first reported on
January 1, 1980. In a May 9, 2011 report, Dr. Atkinson noted that on physical examination he
did not find any find any evidence of asthma, musculoskeletal abnormalities, or fibromyalgia.
He opined that appellant’s physical therapy, massage, or Rolfing had not cured her conditions,
but could be palliative for her chronic lumbar back pain, her fibromyalgia, and her lymphedema.8
OWCP found a conflict of medical opinion between Drs. Atkinson and Friedlis on the
issue of whether massage therapy should continue and determined that the conflict required
referral to an impartial medical examiner. It referred her to Dr. Bao T. Pham, a Board-certified
physiatrist. In a November 6, 2011, report, Dr. Pham opined that physical therapy and Rolfing
had not provided any significant relief or lessened her degree of disability. He found that
appellant was disabled from her date-of-injury position, but that she could participate in
vocational rehabilitation.9
In a May 30, 2012 note, Dr. Rojcewicz opined that appellant had a medical necessity for
massage therapy as there was a direct correlation between muscle tension, pain, and spasms and
appellant’s anxiety level. He noted that appellant had adverse reactions to anti-anxiety and
muscle relaxant medications and that he could not prescribe such medications.
Dr. Brian C. Turrisi, a Board-certified pulmonologist diagnosed chronic asthma, residual
sarcoidosis, and lymphedema. He opined that appellant’s asthma was chronic, present, and
disabling. Dr. Turrisi noted that anxiety, fatigue, and lymphedema aggravated her asthma. On
June 25, 2012 he opined that the ongoing massage therapy would provide continued relief of
symptoms directly associated to appellant’s asthma, myalgia, and fatigue. Dr. Turrisi noted that
appellant could not take medications which would normally be prescribed for her symptoms and
used massage therapy modalities to control pain and offer relief.
On August 14, 2012 an OWCP hearing representative found that Drs. Rojcewicz and
Turrisi created a conflict with Dr. Pham’s report regarding the ongoing need for massage
therapy. He remanded the case and ordered OWCP to update the SOAF and refer appellant for
an impartial medical examination.
OWCP referred appellant, a list of questions, and an updated SOAF for a second opinion
evaluation with Dr. Anjali Pathak, a Board-certified psychiatrist on December 17, 2012. The
December 13, 2012 SOAF noted that appellant’s accepted conditions were anxiety disorder,
fatigue, aggravation of asthma, and nonspecific fibromyositis and also provided an excerpt from
appellant’s website which listed her campaigns for political office since 2000 and her travel. The
excerpt from the website noted that she had worked with Congressional Members and staff,
testified before Congress when requested, and made proposals to Congress for restricting the
8

Dr. Atkinson did not specifically address appellant’s disability for work.

9

By decision dated March 16, 2012, OWCP denied authorization for further massage therapy. Counsel requested
an oral hearing on March 27, 2012.

4

Federal Aviation Administration under the Department of Defense. The excerpt also noted
organizing activities including her organization of “Walking for Safety” and organizing a
petition of “Signatures for Solidarity” collecting nearly 100,000 signatures nationwide.
OWCP also referred appellant, the December 13, 2012 SOAF, and a list of specific
questions to Dr. Stuart M. Brooks, Board-certified in occupational medicine, for an impartial
medical examination to resolve the conflict of medical opinion evidence regarding the ongoing
need for massage therapy due to her psychiatric conditions.
Dr. Pathak completed her second opinion report on January 28, 2013. She reviewed the
SOAF and evaluated appellant’s test results. Dr. Pathak diagnosed anxiety disorder, conversion
disorder/somatization disorder, and dependent personality disorder. She opined that appellant’s
anxiety disorder was related to her employment injury. Dr. Pathak found that appellant did not
require psychiatric interventions and that massage therapy had not improved her psychiatric
symptoms. She determined that there was no justification to continue massage therapy for her
anxiety disorder. Dr. Pathak found that appellant’s symptoms of anxiety were chronic,
pervasive, and likely to interfere with her ability to work at the employing establishment. She
opined that appellant’s prognosis for return to work was poor. Dr. Pathak concluded that
appellant was not currently a candidate for vocational rehabilitation.
In a report dated March 18, 2013, Dr. Brooks, the impartial medical examiner, on the
issue of the need for massage therapy due to appellant’s orthopedic and pulmonary conditions,
reviewed the updated SOAF and obtained a history from appellant. He discussed each of
appellant’s physical conditions. Dr. Brooks determined that massage therapy was not curative.
He contended “that it borders on biological implausibility to presume that unremitting massage
therapies provided for more than 18 years, are necessary to treat her proclaimed work-related
injury/conditions(s).” In response to OWCP’s questions, Dr. Brooks opined that there were no
objective medical diagnoses causally related to appellant’s injuries at work as described in the
SOAF and there were no remaining work-related medical conditions. He concluded, “Most of
her findings relate to subjective complaints and there are few objective medical findings to
support her contentions.” In a March 19, 2013 work capacity evaluation worksheet (Form
OWCP-5c), Dr. Brooks found that appellant could return to work with restrictions. He indicated
by checking a box marked “yes” that she could work eight hours a day with her motivation and
desire to work as reasons for difficulty in her return. Dr. Brooks then noted that, if appellant was
unable to work an eight-hour day, she could work four hours a day. He provided restrictions
indicating that she was allowed to sit for six hours, walk for three hours, stand for four hours,
and reach for three hours. Dr. Brooks found that appellant was capable of twisting for two hours,
and bending or stooping for one hour. He indicated that she could operate a motor vehicle for
four hours at work. Appellant’s lifting was limited to five pounds for three hours a day. She
could push and pull up to five pounds for four hours a day. Appellant could squat for one hour a
day, but could not kneel or climb. Dr. Brooks indicated that she required 15-minute breaks every
two hours. He also noted that she was at maximum medical improvement (MMI) for any listed
work-related condition.
On March 27, 2013 OWCP requested clarification from Dr. Pathak. It requested that she
review the entire SOAF, including appellant’s activities following her 1994 federal work
stoppage. OWCP noted, “Please discuss the SOAF in its entirety, including the candidacies,

5

activities, and national as well as international travel. [Appellant] has presented herself to voters
as an able-bodied retired federal employee and ran for United States Congress several times.
Given her activities please explain your finding that she is totally disabled.”
In an April 9, 2013 decision, OWCP denied authorization for massage therapy. Counsel
requested an oral hearing on April 18, 2013.
Dr. Pathak provided a supplemental report on April 23, 2013. She opined that appellant’s
symptoms of anxiety, including feelings of apprehension, irritability, and labiality of affect, as
well as nightmares and flashbacks, were directly related to her work for the employing
establishment. Dr. Pathak reviewed appellant’s postemployment activities including running for
office and traveling abroad. She opined, “After reviewing the additional information provided
about her activities, such as running for political office, campaigning for the office, and her
national and international activities, it is clear that [appellant] is not totally disabled. Appellant
may be able to work for an agency not related to the [employing establishment].” Dr. Pathak
opined that appellant could participate in vocational rehabilitation and that there were no
psychiatric work restrictions other than not working for the employing establishment.
OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits
in a letter dated May 21, 2013. By decision dated June 19, 2013, it found that appellant had
forfeited her compensation benefits for the period January 9, 1998 through April 9, 2000 and
October 21, 2009 through February 1, 2013. OWCP found that appellant had improperly failed
to report her candidacy for political offices and her work in a travel agency.10
In a decision dated July 11, 2013 and corrected July 22, 2013, OWCP terminated
appellant’s entitlement to medical and wage-loss compensation benefits for the physical
conditions of fatigue, aggravation of asthma, and fibromyositis.
Counsel requested an oral hearing on July 15, 2013 and requested that the oral hearings
on both the April 9, 2013 and July 22, 2013 decisions be consolidated and heard at the same
time.
Dr. Brooks, in a July 30, 2013 supplemental report, opined that appellant was capable of
performing work at the sedentary level including exerting up to 10 pounds of force occasionally,
or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects,
including the human body. He noted that appellant could sit most of the time, as well as walk or
stand for brief periods of time. Dr. Brooks opined that appellant could walk and stand
occasionally.
OWCP referred appellant for vocational rehabilitation on August 27, 2013 based on the
work restrictions provided by Drs. Pathak and Brooks. Appellant met with the vocational
rehabilitation counselor on September 23, 2013.

10

On August 6, 2013 OWCP made a preliminary finding that appellant had received a $457,842.76 overpayment
because the compensation paid for the period January 9, 1998 through April 9, 2000 and from October 21, 2009
through February 1, 2013 was forfeited. Appellant requested a prerecoupment hearing on September 4, 2013. The
forfeiture issue was addressed in a November 13, 2013 decision.

6

In a November 13, 2013 decision, an OWCP hearing representative found that the issue
of massage therapy authorization required additional medical development. He also found that
OWCP had not met its burden of proof to terminate appellant’s wage-loss compensation.11 The
hearing representative determined that Dr. Brooks’ reports were not entitled to special weight as
he had not been provided a complete and accurate history of all of the pertinent claims for
accepted conditions. He directed OWCP to combine appellant’s claims for physical injury,12 and
to obtain supplemental reports from Dr. Brooks and Dr. Pathak based on a revised SOAF and to
issue a de novo decision on authorization for continuing massage therapy. The hearing
representative also reversed the decisions dated July 11 and 22, 2013 which terminated
appellant’s wage-loss compensation benefits. Appellant appealed to the Board, but it dismissed
the appeal.13 She again challenged the forfeiture decision with OWCP.
OWCP formulated an additional SOAF on January 8, 2014 which included the statement
that appellant had operated her own travel agency and run for political office several times while
receiving temporary total disability compensation.14 This SOAF also noted that appellant had
traveled extensively including Canada, Europe, Africa, South America, Australia, New Zealand,
Israel, and Japan. Counsel objected to the updated SOAF on January 13, 2014.
OWCP thereafter composed a new SOAF on January 30, 2014. This SOAF listed
appellant’s accepted conditions due to her sexual harassment claim including anxiety disorder,
fatigue, aggravation of asthma, and nonspecific fibromyositis. OWCP also specifically noted
five of appellant’s accepted claims for physical injury including lumbosacral strain, bulging disc
at L4-5, left ankle sprain, contusion to the face, neck sprain, right shoulder sprain, and left knee
sprain occurring from 1978 through 1994. It noted that appellant was last treated for these
conditions in 2002. OWCP further indicated that appellant had stopped her federal employment
in 1994 and had operated her own travel agency business and ran several times for political
office while receiving temporary total disability for the conditions set forth in the SOAF. OWCP
also noted that she had traveled extensively throughout the United States, Canada, Europe,
Africa, South America, Australia, New Zealand, Israel, and Japan. It concluded that in the fall of
2013 she traveled to Europe for several weeks while receiving total wage-loss compensation
11

On February 20, 2014 counsel contended that OWCP had not established forfeiture or overpayment. Appellant
provided a February 19, 2014 affidavit noting that she was an investor in Herndon Sterling Travel Service based on
stocks issued in January 1998. The owner of the travel service substantiated this statement in an affidavit dated
February 19, 2014.
12

OWCP’s hearing representative found that appellant had a total of 12 claims including a September 9, 1978
claim, File No. xxxxxx483 accepted for stain of the lumbosacral joint; a March 3, 1990 claim, File No. xxxxxx625
accepted for contusions to the face, scalp, and neck; and a January 4, 1994 claim, File No. xxxxxx448 accepted for
sprain of the neck, lumbar region, right shoulder and upper arm as well as left collateral knee sprain and left calf and
thigh contusions. He noted that it was not clear whether claims dated February 10 and April 7, 1987 were formally
accepted.
13

The Board issued an Order Dismissing Appeal on September 28, 2015 finding that the November 13, 2013
decision appealed by counsel was not a final adverse decision. Docket No. 14-0487 (issued September 28, 2015).
14

OWCP listed five additional claims including September 9, 1978, December 20, 1979, March 3, 1990, and
January 4, 1994 described by an OWCP hearing representative. It also detailed the accepted conditions in the
April 7, 1987 claim of left ankle sprain and lumbar strain.

7

benefits. OWCP requested a supplemental report from Dr. Brooks on January 30, 2014 using the
updated January 30, 2014 SOAF.
On January 17, 2014 the vocational rehabilitation counselor provided appellant with a job
placement plan in the positions of a motor vehicle dispatcher, customer service representative, or
reservation clerk. OWCP authorized 90 days of placement in the selected positions on
February 4, 2014. Appellant signed the rehabilitation plan from the vocational rehabilitation
counselor on February 21, 2014. On February 24, 2014 the vocational rehabilitation counselor
noted that she had conducted a labor market survey of the positions of motor vehicle dispatcher,
customer service representative, and reservations clerk.
Counsel objected to the most recent SOAF on February 5, 2014 noting that appellant had
not operated her own travel agency.
In his March 10, 2014 supplemental report, Dr. Brooks noted reviewing the January 30,
2014 SOAF. He reviewed appellant’s accepted injuries including lumbosacral strains in 1978,
1979, and 1987. Dr. Brooks again opined that appellant’s accepted conditions of anxiety
disorder, fatigue, aggravation of asthma, fibromyositis, as well as all other accepted conditions
listed in the updated SOAF had resolved. He determined that it was not appropriate for appellant
to receive continued massage therapy and that appellant was capable of performing sedentary
work as he previously reported.
Dr. Leonard J. Hertzberg, a Board-certified psychiatrist, completed a report on March 10,
2014 and diagnosed anxiety disorder. He opined that appellant continued to be disabled from
working at the employing establishment. Dr. Hertzberg noted, “It is not envisioned that
[appellant] will be fit to work in any capacity and her status is regarded as permanent.” He noted
that efforts of the vocational rehabilitation counselor to return her to work as a dispatcher “would
not be feasible as it would be too humiliating and impact negatively upon her self-esteem.”
By decision dated March 13, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. On April 18, 2014 it determined that the
March 13, 2014 decision was issued in error and vacated that decision.
OWCP issued a notice of proposed termination of appellant’s wage-loss compensation
and medical benefits on May 6, 2014.
The vocational rehabilitation counselor completed a report on May 19, 2014 and found
that the positions of motor vehicle dispatcher, customer service representative, and reservation
clerk were reasonably available. She submitted a closure report on May 29, 2014 and provided
the median wages for the selected positions. The vocational rehabilitation counselor determined
that the median wages were appropriate based on appellant’s extensive experience and
background as an air traffic controller and dispatcher.
By decision dated June 19, 2014, OWCP’s Branch of Hearings and Review reversed the
June 19, 2013 forfeiture decision and set aside the preliminary overpayment finding. The
hearing representative found that appellant had not worked for or run a travel agency, but instead
was a passive investor in a travel agency. She further found that there was no tangible

8

documentation that appellant was actively running any of the campaigns for public office
identified by OWCP.
On July 21, 2014 counsel noted that the hearing representative found that appellant was
only a passive investor in a travel agency and asked that OWCP alter the SOAF to reflect this
finding. She also requested that appellant’s bids for political office be excluded from the SOAF.
OWCP again updated its SOAF on August 18, 2014. This SOAF listed appellant’s
accepted conditions including anxiety disorder, fatigue, aggravation of asthma, and fibromyositis
due to her accepted emotional conditions. It also noted appellant’s accepted physical conditions,
from five specific claims, of lumbosacral strains, bulging disc at L4-5, left ankle sprain,
contusion to the face, and sprains of the neck, right shoulder and left knee. OWCP noted that
appellant had run for political office and traveled extensively throughout the United States,
Canada, Europe, Africa, South America, Australia, New Zealand, Israel, and Japan while
receiving compensation for total disability. It reported appellant’s attempts at public office, but
removed the reference to the travel agency.
On August 27, 2014 the vocational rehabilitation counselor closed appellant’s vocational
services noting that she had not obtained employment within 90 days of placement. She found
that appellant was capable of performing sedentary work and that the positions of customer
service representative, reservation clerk, and motor vehicle dispatcher were vocationally and
medically appropriate. The counselor noted that appellant had several years of coursework
beyond high school at two different colleges and that she worked in many different
clerical/administrative positions prior to her work as an air traffic controller. The labor market
survey dated January 16, 2014 found that the three selected positions existed in sufficient
numbers within a reasonable commuting area based on actual employer contacts and the most
recent data from the state. The vocational rehabilitation counselor concluded that based on
appellant’s education, work experience, and transferable skills, she should be capable of earning
the median wages in the identified positions which ranged from $431.60 to $740.40 per week.
Counsel continued to protest the SOAF, on September 17, 2014 alleging that reference to
appellant’s political activities were prejudicial.
OWCP terminated appellant’s wage-loss compensation and medical benefits effective
January 8, 2015 for her physical conditions of aggravation of asthma, fatigue, and fibromyositis.
It noted that medical benefits and wage-loss compensation for anxiety disorder continued.
On January 27, 2015 OWCP proposed to reduce appellant’s compensation benefits as she
was no longer totally disabled and had the capacity to earn wages as a customer service
representative at the rate of $431.60 per week. It noted that her wage-earning capacity was less
than the current pay of the job she held when injured. It relied on Dr. Pathak’s January 28 and
April 23, 2013 reports for the finding as to her ability to return to gainful employment. OWCP
afforded appellant 30 days to respond.
In a March 2, 2015 decision, OWCP reduced appellant’s wage-loss benefits based on her
capacity to earn wages as a customer service representative. It based her work restrictions on
those set forth in the April 23, 2013 report of Dr. Pathak. OWCP found that the position of

9

customer service representative was medically suitable, vocationally suitable based on the
findings of the vocational rehabilitation counselor, and reasonably available in her commuting
area.
On March 30, 2015 counsel requested an oral hearing regarding the March 2, 2015 wageearning capacity decision. She later changed this to a request for a review of the written record.
Counsel contended that OWCP had the burden of proof to establish that the constructed positions
fairly and reasonably represented appellant’s wage-earning capacity. She further contended that
the medical evidence from Dr. Pathak was stale, that the medical reports were based on an
incorrect SOAF, and that the selected position was not medically suitable.
By decision dated December 14, 2015, OWCP’s hearing representative found that the
March 2, 2015 wage-earning capacity determination should be affirmed.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.15 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 wageearning capacity.16
Section 8115 of FECA17 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity, or the employee has no actual earnings, her wage-earning capacity is determined with due
regard to the nature of her injury, the degree of physical impairment, her usual employment, her
age, her qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect her wage-earning capacity in his disabled condition.18
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the
condition.19 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.20 In determining an employee’s wageearning capacity based on a position deemed suitable, but not actually held, OWCP must
15

James M. Frasher, 53 ECAB 794 (2002); J.E., Docket No. 16-0006 (issued November 16, 2016).

16

20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).

17

5 U.S.C. § 8115.

18

Id.

19

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

20

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

10

consider the degree of physical impairment, including impairments resulting from both injuryrelated and preexisting conditions, but not impairments resulting from postinjury or subsequently
acquired conditions. Any incapacity to perform the duties of the selected position resulting from
subsequently acquired conditions is immaterial to the loss of wage-earning capacity that can be
attributed to the accepted employment injury and for which appellant may receive
compensation.21
When OWCP 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
OWCP 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
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 Albert C. Shadrick22 will result in the percentage of the employee’s loss of
wage-earning capacity. The basis rage of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.23
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s monetary
benefits based on her ability to earn wages in the selected position of customer service
representative.
OWCP accepted appellant’s claims for the conditions of right hand, bilateral knee, and
bilateral ankle injuries, chronic lumbosacral strain and bulging disc, left ankle strain and
lumbosacral strain, anxiety disorder, fatigue, aggravation of asthma, and fibromyositis. It
terminated benefits for all but the psychiatric condition on January 8, 2015. In a March 2, 2015
decision, OWCP found that the selected position of customer service representative fairly and
reasonably represented appellant’s wage-earning capacity, basing its determination on the
restrictions set forth by Dr. Pathak for her psychiatric condition claim. The March 2, 2015
decision was affirmed on December 14, 2015 by a hearing representative who found that OWCP
had properly determined appellant’s wage-earning capacity.
Dr. Brooks, in a July 30, 2013 report, opined that appellant was capable of performing
work at the sedentary level, including exerting up to 10 pounds of force occasionally, or a
negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects,
including the human body. He noted that appellant could sit most of the time, as well as walk or
stand for brief periods of time. Dr. Brooks opined that appellant could walk and stand
occasionally. In his March 10, 2014 report, Dr. Brooks reviewed the January 30, 2014 SOAF
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.1
(February 2011); John D. Jackson, supra note 16.
22

5 ECAB 376 (1953).

23

Karen L. Lonon-Jones, 50 ECAB 293 (issued March 18, 1999).

11

and found that appellant could perform sedentary work. The Board finds that Dr. Brooks’
reports are based on a proper factual background and contain sufficient medical reasoning to
establish that appellant was capable of performing a sedentary position for eight hours a day.
In her August 23, 2013 report, Dr. Pathak, OWCP’s second opinion physician, opined
that appellant could participate in vocational rehabilitation and that she had no work restrictions
for her psychiatric condition, except that she could not return to work at the employing
establishment. The Board finds that this report was based on a proper factual background and is
sufficiently well-reasoned to represent the weight of the medical evidence and establish that
appellant was capable of working in the constructed position of customer service representative.
Appellant submitted a March 10, 2014 report from Dr. Hertzberg finding that she was
totally disabled as returning to work as a dispatcher would be “humiliating” and “negatively
impact her self-esteem.” The Board finds, however, that this report does not establish
appellant’s disability for work in the selected position of customer service representative.
Dr. Hertzberg’s reasoning for finding appellant could not perform the selected position is not
related to her employment injury, but instead it is considered self-generated and not compensable
as it amounts to frustration over not being able to hold a particular position or to work in a
particular environment.24
In development of the claim OWCP properly referred appellant for vocational
rehabilitation as both Dr. Pathak’s and Dr. Brooks’ reports established that she was no longer
totally disabled due to residuals of her employment injury.25 In addition, OWCP properly found
that appellant had the capacity to perform the duties of a customer service representative. The
position is classified as sedentary work requiring occasional lifting of up to 10 pounds, which is
within the restrictions set forth by Dr. Brooks. While Dr. Brooks’ work status report listed an
ability to work eight hours in a sedentary position, and subsequently noted an ability to work
four hours, the Board finds that his opinion was fully premised upon the determination that
appellant’s work injuries had fully resolved. He primarily noted that she was capable of a full
eight-hour day, but with several activities during that day restricted to four or fewer hours each.
Therefore Dr. Brooks’ opinion is a proper basis for the finding that appellant had the capacity to
perform the duties of a customer service representative. Following its proposed reduction of her
compensation, appellant did not submit any rationalized medical evidence to establish that she
was unable to perform the sedentary position. The medical evidence, consequently, establishes
that she has the requisite physical ability to earn wages as a customer service representative.26
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account appellant’s work experience, age, mental
24

Martha L. Watson, 46 ECAB 407, 418 (1995); J.M., Docket No. 16-0312 (issued June 22, 2016). See also
Merle J. Marceau, 53 ECAB 197, 203 (2001) (while appellant contended that the selected position would not fully
utilize his skills, the Board found that determining an employee’s wage-earning capacity was not contingent upon
such factors).
25

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

26

See S.J., Docket No. 14-1455 (issued October 23, 2014); S.S., Docket No. 13-0011 (issued March 21, 2013).

12

capacity, and educational background.27 The rehabilitation counselor determined that appellant
had the skills necessary to perform the position of customer service representative based on her
several years of coursework beyond high school at two different colleges and her work in many
different clerical/administrative positions prior to her work as an air traffic controller. The
rehabilitation counselor found that the position existed in sufficient numbers within a reasonable
commuting area based on actual employer contacts and the most recent data from the state. The
rehabilitation counselor concluded that based on appellant’s education, work experience, and
transferable skills that she was capable of earning the median wages in the identified positions
which ranged from $431.60 to $740.40 per week. As the rehabilitation counselor is an expert in
the field of vocational rehabilitation, OWCP may rely on her opinion in determining whether the
job is vocationally suitable and reasonably available.28 The Board finds that OWCP considered
the proper factors, including the availability of suitable employment, appellant’s physical
limitations, and employment qualifications in determining that she had the capacity to perform
the position of customer service representative.29 OWCP also properly determined her loss of
wage-earning capacity in accordance with the formula developed in Shadrick and codified at 20
C.F.R. § 10.403. It, therefore, correctly found that the position of customer service
representative reflected appellant’s wage-earning capacity effective March 2, 2015.
On appeal counsel asserts that OWCP improperly shifted the burden of proof for
modification of wage-loss compensation benefits to appellant. The Board finds this assertion is
without merit. The burden of terminating or modifying compensation benefits, once a claim has
been accepted, falls onto OWCP.30 The record of evidence establishes that OWCP obtained the
necessary medical opinions from Drs. Brooks and Pathak prior to proposing modification of
benefits. At all times the burden remained upon OWCP to develop the medical evidence in the
process of determining appellant’s wage-earning capacity.
Counsel further asserts on appeal that OWCP was in error to rely upon the medical
opinions of Dr. Brooks as to the status of appellant’s physical conditions, claiming that he relied
upon an improper SOAF and was prejudiced by leading questions and materials included in the
SOAF, including notation of appellant’s travels, organizing activities, and political campaigns.
The Board finds counsel’s challenges to the medical opinions of Dr. Brooks to be without merit.
The January 30, 2014 SOAF, upon which Dr. Brooks relied in providing his medical opinion, is
found to be a proper SOAF for purposes of obtaining an accurate assessment of appellant’s
current ability to return to an employment position. The January 30, 2014 SOAF was sufficient
to provide a framework for the physician to conduct his own physical examination of appellant
and formulate his own independent medical opinion as to her ability to return to work.31 As the
Board has previously held, a physician’s report should be excluded when there is evidence that
OWCP may have influenced the opinion of the physician, such as through leading questions or
27

Id.

28

C.S., Docket No. 17-0496 (issued May 25, 2017).

29

Id.

30

Supra note 15.

31

See Abe E. Scott, 45 ECAB 164, 174 (1993).

13

telephone contact.32 The Board finds the information contained in the SOAF at issue to be an
accurate, factual presentation of appellant’s activities while on total disability compensation and
provided a proper background for an opinion in this case, and thus was not a prejudicial
disclosure of information.
Finally, counsel asserts on appeal that the medical opinion of Dr. Pathak was stale and
therefore an improper foundation for the finding that appellant was capable of the selected
position of customer service representative. The Board finds that Dr. Pathak’s opinion was
limited to a determination that, due to her knowledge of appellant’s postinjury activities coupled
with her psychiatric evaluation, appellant was not totally disability and was able to participate in
vocational rehabilitation activities. The Board finds that as Dr. Pathak’s April 23, 2013 report
was less than two years old when considered, it is not considered stale under the facts of this
case.33 Counsel did not provide any evidence or argument to contest Dr. Pathak’s opinion that
appellant was capable of participation in vocational rehabilitation, especially in light of the fact
that she did successfully participate in such activity.
For the reasons set forth herein, the Board finds that OWCP properly reduced appellant’s
compensation benefits based on the reports of Drs. Brooks and Pathak.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s monetary
benefits based on her capacity to earn wages in the constructed position of customer service
representative.

32

See R.A., Docket No. 10-844 (issued December 22, 2010).

33

G.M., Docket No. 16-1032 (issued January 4, 2017).

14

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15