United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF INTERIOR, NATIONAL
PARK SERVICE, Arlington, VA, Employer
__________________________________________

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

Docket No. 17-1397
Issued: October 26, 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 June 12, 2017 appellant filed a timely appeal from an April 21, 2017 merit decision
and a June 6, 2017 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has more than seven percent permanent impairment
of his right upper extremity, for which he previously received a schedule award; and (2) whether
OWCP properly denied his request for a review of the written record under 5 U.S.C. § 8124(b) as
untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 2, 2001 appellant, then a 44-year-old laborer, filed a traumatic injury claim
(Form CA-1) alleging that on September 24, 2001 he sustained cervical strain and carpal tunnel
syndrome in the performance of duty. OWCP accepted the claim for cervical strain, right
shoulder strain, and right carpal tunnel syndrome. Appellant stopped work on July 27, 2002 and
did not return. On August 22, 2002 he underwent a right anterior acromioplasty, lateral
resection, and decompression of impingement syndrome of the right shoulder.
In an impairment evaluation form dated November 30, 2015, Dr. Rida N. Azer, a Boardcertified orthopedic surgeon, found on examination objective evidence of right carpal tunnel
syndrome, no impingement, and tenderness at the “right levator, scapula and trapezius, over C5,
C6 and C7.” He opined that appellant had 45 percent permanent impairment of the right upper
extremity.
Appellant, on April 19, 2016, filed a schedule award claim (Form CA-7). By letter dated
August 19, 2016, OWCP requested that he submit an impairment evaluation from his attending
physician addressing the extent of any permanent employment-related impairment in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
OWCP, on November 18, 2016, referred appellant to Dr. D. Burke Haskins, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated December 15,
2016, Dr. Haskins discussed appellant’s continued symptoms of pain in his neck, shoulder, and
right hand. On examination, he found a negative Tinel’s sign of the right wrist with no atrophy
and intact sensation. Dr. Haskins diagnosed carpal tunnel syndrome, resolved, nonemploymentrelated cervical disc disease with radiculopathy, status post-surgery for a torn rotator cuff, and
resolved cervical sprain. He opined that appellant had reached maximum medical improvement.
Dr. Haskins identified the ratable diagnosis as a class 1 full-thickness rotator cuff tear using
Table 15-5 on page 403 of the A.M.A., Guides, which yielded a default value of five percent. He
applied a grade modifier of two for functional history due to pain with activities and a grade
modifier of two for physical examination findings of a moderate decrease in range of motion to
find an adjusted impairment rating of seven percent. Dr. Haskins opined that appellant had no
ratable impairment due to carpal tunnel syndrome.
An OWCP medical adviser reviewed the evidence on February 9, 2017 and concurred
with Dr. Haskins’ impairment rating.
By decision dated April 21, 2017, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right upper extremity. The period of the award ran for
21.84 weeks from April 2 to September 1, 2017.
In a letter dated May 13, 2017 and postmarked June 1, 2017, appellant requested a review
of the written record. By decision dated June 6, 2017, OWCP denied his request for a review of
the written record as it was untimely. It considered the request within its discretion and found
that the matter could be equally well addressed by appellant requesting reconsideration and
submitting evidence showing more than seven percent permanent impairment.

2

On appeal appellant describes his injury and the medical treatment he received. He
asserts that he continues to have pain with certain movements and at night. Appellant maintains
that he should be awarded the 45 percent permanent impairment found by Dr. Azer in his
November 30, 2015 report. He contends that he injured his right knee participating in a 2015
functional capacity evaluation.
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of the Office of Workers’
Compensation Programs.2 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.3 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.4
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled “Clarifications and
Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document
included various changes to the original text, intended to serve as an erratum/supplement to the
first printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated
into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.6
ANALYSIS -- ISSUE 1
The issue on appeal is whether appellant has more than seven percent permanent
impairment of the right upper extremity.

2

See 20 C.F.R. §§ 1.1-1.4.

3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
6

Isidoro Rivera, 12 ECAB 348 (1961).

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The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the range of motion (ROM) methodology when assessing the extent of
permanent impairment for schedule award purposes.7 The purpose of the use of uniform
standards is to ensure consistent results and to ensure equal justice under the law to all
claimants.8 In T.H., the Board concluded that OWCP physicians were at odds over the proper
methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cite to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians are inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the
law for all claimants.9
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 21, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.10
On appeal appellant asserts that he injured his right knee undergoing a functional
capacity evaluation.11 The Board’s jurisdiction is limited to reviewing final decisions of
OWCP.12 OWCP has not issued a final decision on this issue and thus it is not before the Board
at this time.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

T.H., Docket No. 14-0943 (issued November 25, 2016).

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

Supra note 7.

10

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

11

In view of the Board’s disposition of the merits, it is premature to address the issue of whether OWCP properly
denied appellant’s request for an oral hearing as untimely.
12

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the June 6 and April 21, 2017 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: October 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 10-633
Issued: November 1, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal of the August 21 and December 15,
2009 decisions of the Office of Workers’ Compensation Programs denying a consequential knee
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant established that he sustained a right knee condition as a
consequence of treatment for his accepted left knee conditions.
On appeal, appellant contends that he injured his right knee during physical therapy
sessions authorized to treat his accepted left knee conditions. He noted that his only expense was
a $66.00 payment for a September 14, 2009 right knee x-ray.
FACTUAL HISTORY
The Office accepted that on or before July 8, 2008 appellant, then a 50-year-old city letter
carrier, sustained a torn left medial meniscus, anterior cruciate ligament sprain and localized

primary osteoarthritis of the left knee in the performance of duty. On December 4, 2008
appellant underwent arthroscopic repair of the medial meniscus, lateral meniscus tear
debridement and anterior cruciate ligament reconstruction, authorized by the Office. He returned
to light duty on March 11, 2009.
Dr. John A. Gillen II, an attending Board-certified orthopedic surgeon, prescribed
physical therapy to rehabilitate appellant’s left knee. Appellant participated in physical therapy
beginning on December 5, 2008, authorized by the Office. On March 13, 2009 a physical
therapy assistant noted that appellant “continue[d] to report stiffness and soreness in the right
knee.” In April 28 and May 1, 2009 progress notes, the physical therapy assistant related
appellant’s complaints of mild bilateral knee pain with closed chain activities.1
On June 12, 2009 appellant asserted that on or about March 13, 2009 he injured his right
knee below the patella during physical therapy for his left knee. In a July 15, 2009 letter, the
Office advised appellant of the additional evidence needed to establish his claim for a
consequential right knee condition, including a rationalized report from his physician explaining
how and why the approved physical therapy program caused a right knee injury. It afforded
appellant 30 days in which to submit such evidence.
By decision dated August 21, 2009, the Office denied appellant’s claim for a right knee
condition on the grounds that causal relationship was not established. It found that appellant did
not submit sufficient medical evidence diagnosing a right knee condition.
In a September 18, 2009 letter, appellant requested a review of the written record. He
submitted additional evidence.
In a September 14, 2009 report, Dr. Vincent H. Key, an attending Board-certified
orthopedic surgeon, noted appellant’s complaints of bilateral knee pain, with a history of left
knee surgery. Appellant related that his right knee pain “over the tibial tuberosity” began on
March 13, 2009 “in a work-related incident.” On examination of the right knee, Dr. Key noted
retropatellar crepitus and tenderness along the tibial tubercle. Lachman’s examination was
negative, varus and valgus stress was stable and there was a full range of right knee motion.
Dr. Key obtained x-rays of the right knee showing mild degenerative changes of the
patellofemoral articulation. He diagnosed patellar tendinitis of the right knee. In an October 12,
2009 report, Dr. Key recommended a repeat left knee surgery. He did not address the right knee.
By decision dated and finalized December 15, 2009, an Office hearing representative
affirmed the August 21, 2009 decision, finding that appellant submitted insufficient medical
evidence to establish the claimed consequential right knee condition. She found that Dr. Key did
not provide opinion on whether the diagnosed right patellar tendinitis was related to physical
therapy for the left knee.

1

Dr. Gillen examined appellant on April 10 and June 3, 2009 but did not mention the right knee.

2

LEGAL PRECEDENT
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. 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.2
ANALYSIS
The Office accepted that appellant sustained a torn left medial meniscus, anterior cruciate
ligament sprain and localized osteoarthritis of the left knee, requiring surgery in December 2008.
It authorized physical therapy. Appellant claimed that on or about March 13, 2009 he sustained
a right knee injury as a consequence of physical therapy for his left knee.
Appellant submitted several reports addressing his right knee. In notes dated March 13,
April 28 and May 1, 2009, a physical therapy assistant described right knee pain. As a physical
therapy assistant is not a physician as defined by the Act,3 these notes are of no probative
medical value.4 Dr. Key, an attending Board-certified orthopedic surgeon, provided a
September 14, 2009 report noting appellant’s complaint of right knee pain beginning with a
March 13, 2009 “work-related incident.” He diagnosed patellar tendinitis of the right knee.
Dr. Key did not describe the nature of the March 13, 2009 work incident or offer an etiology for
appellant’s patellar tendinitis. He did not address the physical therapy received or offer any
opinion explaining how therapy would contribute to appellant’s right knee condition. As
Dr. Key did not provide medical rationale explaining how or why the diagnosed tendinitis was
causally related to specific work factors, Dr. Key’s opinion is insufficient to meet appellant’s
burden of proof.5
The Office advised appellant of the need to submit a physician’s opinion explaining how
physical therapy for the accepted left knee conditions would cause a right knee injury. Appellant
did not submit such evidence. Therefore, the Office properly denied his claim for a right knee
injury.

2

C.O., 61 ECAB ___ (Docket No. 10-189, issued July 15, 2010); Charles W. Downey, 54 ECAB 421 (2003).

3

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides
as follows: (2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law.
4

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

5

Charles W. Downey, supra note 2.

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On appeal, appellant contends that he injured his right knee during authorized physical
therapy sessions to treat the accepted left knee conditions. As noted, he did not submit sufficient
medical evidence to establish the causal relationship asserted.
CONCLUSION
The Board finds that appellant has not established that he sustained a right knee injury as
a consequence of physical therapy for accepted left knee conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 15 and August 21, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milligan, NE, Employer
__________________________________________

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Appearances:
David L. Buelt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-211
Issued: August 12, 2009

Case Submitted on the Record

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

JURISDICTION
On October 28, 2008 appellant filed a timely appeal from January 10 and July 28, 2008
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits on January 10, 2008 on the grounds that he had no residuals of his
accepted injuries.
On appeal appellant, through his attorney, argues that the opinion of the impartial
examiner, Dr. Kral Varhan, a Board-certified orthopedic surgeon, is insufficient to be entitled to
special weight. Moreover, the Office did not provide Dr. Varhan’s report in a timely fashion and
did not grant appellant sufficient time to respond to the notice of proposed termination.

FACTUAL HISTORY
On May 17, 2002 appellant, then a 40-year-old rural carrier associate, sustained
employment-related injuries when his postal vehicle was rear-ended. The Office accepted the
claim for cervical strain, lumbar strain, lumbago, left rotator cuff strain, an aggravation of lumbar
degenerative disc disease and an annular tear at L4-5. A June 27, 2002 lumbar spine magnetic
resonance imaging (MRI) scan demonstrated mild disc bulging and possible minimal protrusion
at L4-5. Appellant worked limited duty until he underwent left shoulder arthroscopy on
August 20, 2002, after which he returned to limited duty. A November 11, 2002 lumbosacral
spine MRI scan demonstrated mild degenerative changes, otherwise negative. Appellant stopped
work on February 21, 2003 because his position was no longer available and did not return.1 A
March 17, 2003 provocation discogram of the lumbar spine demonstrated annular tears at L3-4
and L4-5 with concordant pain reproduction. Postdiscogram computerized tomography (CT)
scan was interpreted as showing an annular tear at L4-5, normal appearance of L3-4 and mild
degenerative change at L5-S1.
Appellant was treated by Dr. Michael Longley, Board-certified in orthopedic surgery. A
December 10, 2003 MRI scan of the lumbar spine demonstrated multilevel degenerative disc
disease and annular bulging at L4-5 with multilevel hypertrophic changes and mild canal
stenosis and bilateral neural foraminal stenosis at L4-5. A lumbar discogram on December 10,
2003, performed by Dr. Longley, demonstrated an annular tear at L4-5 with radiating pain.
Postdiscogram CT scan demonstrated L4-5 disc degeneration with extensive leak and mild spinal
canal stenosis at L4-5. A September 24, 2004 functional capacity evaluation demonstrated that
appellant could perform work activities within the medium physical demand level with
occasional forward bending.
On June 23, 2006 appellant was referred to Dr. Anil K. Agarwal, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a July 14, 2006 report, Dr. Agarwal
reviewed the statement of accepted facts and the physical requirements of his position. He also
summarized the medical record including diagnostic studies. Dr. Agarwal noted appellant’s
complaint of chronic low back pain and advised that he demonstrated no positive physical
findings. He diagnosed status post left shoulder rotator cuff repair in 2003 with no complaints
and healed lumbar strain. Dr. Agarwal advised that there was no evidence of any ongoing workrelated strain conditions or disc herniation at L4-5. He recommended a good home exercise
program and over-the-counter medication. Dr. Agarwal advised that appellant could return to his
job as a rural mail carrier.

1

Appellant also worked on a family farm. He was referred for vocational rehabilitation services in July 2003. By
decision dated February 17, 2004, the Office reduced appellant’s wage-loss compensation to zero on the grounds
that he failed to participate in vocational rehabilitation. In a May 5, 2005 decision, an Office hearing representative
found that appellant’s failure without good cause to participate in preliminary vocational meetings and testings
constituted a failure to participate in the rehabilitative effort and affirmed the February 17, 2004 decision. The
hearing representative, however, returned the case to the Office for further develop of the medical evidence
regarding appellant’s low back condition.

2

By report dated August 4, 2006, Dr. Longley noted appellant’s complaints of low back
pain and reported findings on physical examination. He diagnosed low back pain, L4-5 annular
tear and disc injury secondary to the employment injury.
In a report dated October 20, 2006, Dr. Agarwal reviewed Dr. Longley’s August 4, 2006
report. He advised that, at the time of appellant’s examination, no neurological deficits were
noted. Dr. Agarwal stated that appellant’s underlying degenerative disc disease was temporarily
exacerbated by the May 2002 employment injury, but had resolved. He advised that appellant
did not need narcotic medication.
The Office found a conflict in medical evidence arose between Dr. Agarwal and
Dr. Longley as to whether appellant had any residuals of his employment injury. On April 23,
2007 the Office referred him to Dr. Varhan, for an impartial evaluation. In a May 14, 2007
report, Dr. Varhan reviewed the history of injury and appellant’s complaint of low back pain. He
noted the medical record and December 10, 2003 diagnostic studies and stated that appellant
walked with a cane. Physical examination demonstrated no spinal tenderness or spasm from the
cervical to lumbar spine and normal sensation to light touch and pinprick over all dermatomes in
his lower extremities with 5/5 muscle strength. Dr. Varhan advised that appellant had no
difficulty moving from a sitting to supine or supine to sitting positions and straight leg raising
was negative to 70 degrees with functional range of motion of the hips, knees and ankles
bilaterally. He diagnosed status postop left rotator cuff repair (industrial), preexisting lumbar
spine degenerative disc disease (nonindustrial), exacerbation of preexisting lumbar spine
degenerative disc disease (industrial) and habituation to narcotic medications. Dr. Varhan
advised that appellant’s left shoulder had recovered very well. While the employment injury had
exacerbated his underlying degenerative disc disease of the lumbar spine, this was a temporary
aggravation and there was no evidence to support that work-related conditions were still active or
related to the May 17, 2002 employment injury. Dr. Varhan noted that any deterioration in the
degenerative disease process was expected over time and was nonindustrial. He recommended
over-the-counter medication, a home exercise program and no surgical treatment. Dr. Varhan
advised that, based on his review of the September 2004 functional capacity evaluation,
appellant could perform the duties of rural mail carrier associate.
In a deposition of July 30, 2007,2 Dr. Longley described the employment injury,
appellant’s treatment and the December 10, 2003 diagnostic studies. He opined that appellant’s
L4-5 annular tear was due to an acute phenomenon rather than a degenerative process

2

This was apparently for appellant’s third-party suit. A third-party settlement was reached on September 12,
2007 and appellant submitted a statement of recovery dated October 3, 2007. By letter dated November 19, 2007,
the Office informed appellant that future payments of compensation and/or medical expenses would be credited
against the remainder of his third-party recovery.

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and caused by the May 17, 2002 car accident. Dr. Longley stated that appellant continued to
have back pain and recommended further surgery.3
On December 7, 2007 the Office proposed to terminate appellant’s compensation benefits
on the grounds that the medical evidence, as represented by Dr. Varhan, established that he had
no ongoing disability or residuals due to the accepted injury. On January 9, 2008 appellant,
through his attorney, disagreed with the proposed termination.
By decision dated January 10, 2008, the Office finalized the termination, effective that
day.
On January 25, 2008 appellant, through his attorney, requested a hearing that was held on
May 23, 2008. Counsel noted appellant’s disagreement with Dr. Varhan’s opinion and argued
that the medical report was not timely submitted to appellant. Appellant described the
employment injury and his current condition and testified that his farm duties were restricted.
He stated that he was awaiting Federal Drug Administration approval for a particular type of disc
replacement surgery and that he would like to return to his position as rural carrier following
surgery. In a May 20, 2008 affidavit, Dr. Longley reiterated his conclusions. In a June 16, 2008
affidavit, Dr. Robert McKeeman, Board-certified in family medicine, advised that he had cared
for appellant for many years, including 18 examinations since the May 17, 2002 employment
injury. He stated that he disagreed with Dr. Varhan’s opinion and agreed with Dr. Longley
regarding appellant’s continuing back condition.
By decision dated July 28, 2008, an Office hearing representative affirmed the
January 10, 2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
Section 8123(a) of the Federal Employees’ Compensation Act6 provides that if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
3

On September 19, 2007 appellant filed a schedule award claim. By letter dated October 18, 2007, the Office
informed appellant of the type evidence needed to support a schedule award claim, and advised him that it would be
left open for 60 days. In his July 30, 2007 deposition testimony, Dr. Longley provided some impairment analysis
under Chapter 15 of the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment.
4

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

5

Id.

6

5 U.S.C. §§ 8101-8193.

4

examination.7 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.8
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits. The Office determined that a conflict in medical evidence arose between
Dr. Longley, appellant’s treating physician, and Dr. Agarwal, who provided a second opinion
evaluation for the Office. Dr. Longley found appellant disabled due to residuals of his accepted
conditions. Dr. Agarwal advised appellant’s accepted conditions had resolved and that he could
return to work. The Office properly referred appellant to Dr. Varhan, Board-certified in
orthopedic surgery, for an impartial evaluation.
In a comprehensive May 14, 2007 report, Dr. Varhan advised that appellant’s left
shoulder condition had healed following surgery. The Board notes that Dr. Longley did not
address appellant’s shoulder condition or report any residuals of the accepted left rotator cuff
strain. Dr. Varhan found no tenderness to palpation with a good range of shoulder joint motion
and radial pulse. Regarding the accepted lumbar conditions, he reported that physical
examination demonstrated no spinal tenderness or spasm from the cervical to lumbar spine with
normal sensation to light touch and pinprick over all lower extremity dermatomes and 5/5 muscle
strength. Dr. Varhan advised that appellant had no difficulty moving from a sitting to supine or
supine to sitting position and straight leg raising was negative to 70 degrees with functional
range of motion of the hips, knees and ankles bilaterally. There was no evidence of lumbar
radiculopathy. Dr. Varhan diagnosed status postop left rotator cuff repair (industrial),
preexisting lumbar spine degenerative disc disease (nonindustrial), exacerbation of preexisting
lumbar spine degenerative disc disease (industrial) and habituation to narcotic medications. He
advised that, while the May 17, 2002 employment injury exacerbated appellant’s lumbar
degenerative disc disease lumbar, this was a temporary aggravation. Dr. Varhan found no
evidence to support that the work-related conditions were still active or related to the
employment injury. The deterioration of appellant’s spine was progressive and nonindustrial.
He concluded that appellant could perform the duties of rural mail carrier associate.
Dr. Longley was deposed on July 30, 2007 and in a May 20, 2008 affidavit. These
reports, however, merely reiterated his prior findings and opinion. A subsequently submitted
report of a physician on one side of a conflict of medical opinion is generally insufficient to
overcome the weight of the impartial medical specialist or to create a new conflict of medical
opinion.9 The Board finds that Dr. Longley’s medical opinion is insufficient to overcome the
special weight accorded Dr. Varhan as an impartial medical specialist regarding appellant’s
lumbar condition.10
7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

Manuel Gill, 52 ECAB 282 (2001).

9

Richard O’Brien, 53 ECAB 234 (2001).

10

Manuel Gill, supra note 8.

5

Appellant’s attending family physician, Dr. McKeeman, provided a June 16, 2008
affidavit. However, he merely stated his disagreement with Dr. Varhan’s conclusions and
agreement with Dr. Longley. A medical opinion not fortified by rationale is of diminished
probative value.11 Furthermore, a report of a physician whose specialty is not in a germane area
of medicine is entitled to lesser weight.12 The Board therefore finds that Dr. McKeeman’s report
is insufficient to overcome the special weight accorded Dr. Varhan.
Dr. Varhan provided a comprehensive, well-rationalized evaluation regarding appellant’s
left shoulder and lumbar spine conditions. He found that the accepted conditions had resolved.
Dr. Varhan’s report is entitled to the special weight accorded an impartial examiner and
constitutes the weight of the medical evidence regarding appellant’s right elbow and lumbar
conditions.13 The Office properly terminated his compensation benefits for these conditions.14
Appellant contended that the Office not to provide Dr. Varhan’s report in a timely
fashion and that he was not granted sufficient time to respond to the notice of proposed
termination. The notice was dated December 7, 2007 and the final termination decision was
issued on January 10, 2008, 34 days later. Office procedures provide that a 30-day notice be
given.15 It complied with its procedures. The record reflects communication between counsel
and the Office concerning the third-party settlement. There is no evidence reflecting that a copy
of Dr. Varhan’s report was delayed due to the settlement. On December 7, 2007 the date of the
proposed termination, the claims examiner addressed the impartial report with appellant’s
attorney. A copy of the report was submitted, following which counsel requested an extension of
the period for a response, which was denied.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on the grounds that he had no residuals or disability due to his accepted
conditions.16

11

Cecelia M. Corley, 56 ECAB 662 (2005).

12

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

13

See Sharyn D. Bannick, 54 ECAB 537 (2003).

14

Manuel Gill, supra note 8.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 1.1400.7(b)(2)(c) (March 1997).

16

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider
this evidence as its review of the case is limited to the evidence or record which was before the Office at the time of
its final decision. 20 C.F.R. § 501.2(c); see Sandra D. Pruitt, 57 ECAB 126 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed
Issued: August 12, 2009
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE POST
OFFICE, Evansville, WI, Employer
__________________________________________

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 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 the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

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

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

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

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

6

rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Roosevelt, NY, Employer
__________________________________________

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

Docket No. 21-0473
Issued: January 31, 2022

Case Submitted on the Record

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

JURISDICTION
On February 8, 2021 appellant, through counsel, filed a timely appeal from a December 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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, during the pendency of this appeal, OWCP issued an April 22, 2021 decision, which denied
modification of its December 1, 2020 decision. The Board and OWCP may not simultaneously exercise jurisdiction
over the same issue(s). Consequently, OWCP’s April 22, 2021 decision is set aside as null and void. 20 C.F.R.
§§ 501.2(c)(3), 10.626; see J.W., Docket No. 19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2
(issued December 30, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 4
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted July 24, 2020 employment incident.
FACTUAL HISTORY
On July 24, 2020 appellant, then a 55-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his left knee when he jumped from the street to
the sidewalk in an effort to clear a large puddle while in the performance of duty. He asserted that,
when he landed, he experienced a sharp pain in his left knee. On the reverse side of the claim
form, the employing establishment contended that appellant was not in the performance of duty
when he was injured, as he had called out sick earlier that week due to a knee injury. It further
indicated that his injury was a result of misconduct. Appellant stopped work that same day and
returned to part-time modified-duty work on September 14, 2020.
OWCP received a July 24, 2020 x-ray of the left knee which revealed no fracture or other
acute osseous findings.
In a July 28, 2020 letter, the employing establishment controverted appellant’s claim,
noting that he had previously called in sick on July 21, 2020 due to left knee pain and had been
wearing a knee band every day at work. OWCP also received a position description for a city
carrier.
In a July 28, 2020 report, an unidentifiable healthcare provider noted that appellant was
seen that day at urgent care and excused him from work for the period July 24 through 29, 2020.
In a July 31, 2020 work status note, Dr. Paul Kubiak, a Board-certified orthopedic surgeon,
diagnosed left knee contusion and advised that appellant was unable to work. In a duty status
report (Form CA-17) of even date, he diagnosed left knee contusion and provided work
restrictions.
In an August 18, 2020 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of additional factual and medical evidence needed to
establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30
days to respond.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the December 1, 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.

2

In medical reports dated July 31, 2020, Dr. Kubiak noted that appellant presented with left
knee pain after injuring his left knee at work on July 24, 2020. He recounted that appellant
experienced a sharp pain after he leapt over a puddle/object on a rainy day. Dr. Kubiak noted that
appellant reported a history of left knee arthroscopy with a meniscus tear, but that he experienced
minimal symptoms prior to the July 24, 2020 employment incident. He conducted a physical
examination, reviewed the left knee x-ray, and diagnosed left knee pain with contusion and a
possible meniscus tear.
An August 22, 2020 magnetic resonance imaging (MRI) scan of the left knee demonstrated
an oblique tear involving the posterior horn and body of the medial meniscus extending to the
inferior surface, as well as small knee joint effusion and mild osteoarthrosis in the anterior
compartment.
In an August 19, 2020 work capacity evaluation (Form OWCP-5c), Dr. Kubiak diagnosed
a left knee medial meniscus tear and provided work restrictions.
In a September 11, 2020 medical report, Dr. Kubiak noted that appellant continued to
experience left knee pain and occasional locking. He conducted a physical examination, reviewed
an MRI scan and diagnosed left knee pain with a medial tear and recommended physical therapy
treatment. In a Form CA-17 of even date, Dr. Kubiak diagnosed a left knee meniscus tear and
provided work restrictions.
On September 14, 2020 the employing establishment offered appellant a modified-duty
assignment.
In a September 15, 2020 attending physician’s report (Form CA-20), Dr. Kubiak reported
that appellant injured his left knee after stepping over an object and landing awkwardly at work.
He diagnosed a left knee medial meniscus tear.
By decision dated October 2, 2020 OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed left knee condition and the accepted July 24, 2020 employment incident.
In an October 23, 2020 medical report, Dr. Kubiak again noted that appellant sustained an
injury on July 24, 2020 when he leapt over a puddle and landed directly on his left leg with a sharp
pain. He conducted a physical examination and diagnosed left knee pain with a medial meniscus
tear. Dr. Kubiak opined that the accepted July 24, 2020 employment incident was the “direct cause
of the left knee damage, including the meniscus tear, as well as associated increased pain from
inflammatory conditions, including irritation of the underlying cartilage injury .” In a work status
note of even date, he advised that appellant could work with restrictions.
On November 3, 2020 appellant requested reconsideration.
By decision dated December 1, 2020, OWCP denied modification of its prior decision
dated October 2, 2020.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 and 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. 7 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.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 9 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occurred. 10
The second component is whether the employment incident caused a personal injury. 11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 12 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident. 14
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

5

Supra note 3.

6

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
9

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

12

S.S., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

13

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

Id.

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted July 24, 2020 employment incident.
In an October 23, 2020 medical report, Dr. Kubiak noted that appellant injured his left knee
when he leapt over a puddle and landed directly on his left leg on July 24, 2020. He diagnosed
left knee pain with a medial meniscus tear. Dr. Kubiak opined that the accepted employment
incident was the “direct cause of the left knee damage, including the meniscus tear, as well as
associated increased pain from inflammatory conditions, including irritation of the underlying
cartilage injury.” However, this report is conclusory. The Board has held that a medical opinion
is of limited value if it is conclusory in nature. 16 A medical opinion must explain how the
implicated employment factors physiologically caused, contributed to, or aggravated the specific
diagnosed conditions. 17 Without this explanation, Dr. Kubiak’s October 23, 2020 medical report
is, therefore, insufficient to meet appellant’s burden of proof.
Dr. Kubiak, in his medical reports dated July 31, 2020, noted that appellant reported to him
that he had a history of an arthroscopy in the left knee with a meniscus tear, but that he experienced
minimal symptoms prior to the accepted July 24, 2020 employment incident. He diagnosed left
knee pain with contusion and a possible meniscus tear. However, Dr. Kubiak did not provide an
opinion on the issue of causal relationship. Likewise, in a work status note and a Form CA-17 of
even date, a Form OWCP-5c dated August 19, 2020, and medical reports dated September 11 and
15, 2020, he diagnosed left knee contusion and a left knee medial meniscus tear and provided work
restrictions, without addressing the issue of causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship. 18 Therefore, evidence is also
insufficient to establish appellant’s claim.
Appellant also submitted a July 24, 2020 x-ray and an August 22, 2020 MRI scan of the
left knee. However, the Board has explained that diagnostic studies, standing alone, lack probative
value as they do not address whether the employment incident caused any of the diagnosed
conditions.19 As such, they are insufficient to establish causal relationship.
The remaining medical evidence of record consists of a July 28, 2020 report by an
unidentifiable health care provider, indicating that appellant was seen that day at urgent care. The
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
16

O.N., Docket No. 20-0902 (issued May 21, 2021); C.M., Docket No. 19-0360 (issued February 25, 2020).

17

S.C., Docket No. 20-0492 (issued May 6, 2021); R.S., Docket No. 19-1774 (issued April 3, 2020).

18

R.O., Docket No. 20-1243 (issued May 28, 2021); P.B., Docket No. 20-1602 (issued May 26, 2021).

19

R.O., id.; V.L., Docket No. 20-0884 (issued February 12, 2021).

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Board has held that reports that are unsigned or bear an illegible signature lack proper identification
and cannot be considered probative medical evidence as the author cannot be identified as a
physician.20 Thus, this letter is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing a left knee
condition causally related to the accepted July 24, 2020 employment incident, the Board finds that
he 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted July 24, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2020 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: January 31, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

C.M., Docket No. 21-0004 (issued May 24, 2021); T.D., Docket No. 20-0835 (issued February 2, 2021).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0665
Issued: June 15, 2016

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 February 22, 2016 appellant filed a timely appeal of a February 1, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to modify the December 20, 2010
wage-earning capacity decision.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On March 28, 2000 appellant,
then a 43-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that she injured her
left leg lifting heavy bags and experienced sciatica in the performance of duty. On July 18, 2000
1

5 U.S.C. § 8101 et seq.

she underwent a right L5-S1 discectomy during which a small nick was seen at the shoulder
junction of the S1 nerve root. OWCP accepted appellant’s claim for herniated lumbar disc on
January 9, 2004 and placed her on the periodic rolls on February 16, 2005.
In an effort to determine appellant’s work capacity, OWCP referred appellant for a
second opinion evaluation. In a report dated April 29, 2010, Dr. Larry M. Parker, a Boardcertified orthopedic surgeon, provided a history of injury and findings on physical examination.
He noted that appellant had a slightly positive straight leg raising on the right, with slight
diminution of the Achilles reflex on the right side. Dr. Parker reviewed a May 17, 2008
magnetic resonance imaging (MRI) scan and concluded that she had a recurrence of disc
herniation with objective findings to support lumbar radiculitis in the right lower extremity with
an L5 radicular pattern in the right lower extremity. He noted that appellant could work a
sedentary or light position. Dr. Parker completed a work capacity evaluation on May 11, 2010
and found that she could work eight hours a day with restrictions, and she could walk and stand
for 4 to 8 hours a day with 5- to 10-minute breaks every hour. Dr. Parker opined that she could
lift up to 20 pounds.
OWCP referred appellant for vocational rehabilitation services on May 13, 2010. The
vocational rehabilitation counselor conducted a labor market survey based on appellant’s
transferable skills and considered entry level positions within her light-duty physical
requirements of lifting up to 20 pounds and the need to change positions for 5 to 10 minutes each
hour. She identified the positions of general office clerk, cashier II and outside delivery. The
vocational rehabilitation counselor provided labor market survey information to support her
finding that the position of cashier II was reasonably available. There were 11,380 cashier
positions available. She provided appellant with 20 job openings as a cashier which did not
require any specific education or vocational preparation.
In a letter dated August 17, 2010, OWCP informed appellant that the positions of cashier,
Department of Labor, Dictionary of Occupational Titles (DOT) No. 211.462-10, and general
office clerk, DOT No. 209.562-10, were within her physical restrictions. It stated that appellant
would receive 90 days of assistance to find employment.
The vocational rehabilitation counselor determined that the position of cashier II, DOT
No. 211.462-10, was within appellant’s work restrictions and vocational ability. This was
defined as a light position requiring lifting, carrying, pushing, and pulling up to 20 pounds
occasionally, and up to 10 pounds frequently. The position required walking and standing
frequently as well as pushing or pulling. On November 8, 2010 the rehabilitation specialist
reported that the position of cashier II was reasonably available to appellant with an expected
entry level wage of $7.25 per hour. The position description required up to 30 days of specific
vocational preparation or level 2 and the general educational requirements were reasoning level
3, mathematics level 2 and language level 2.
On November 16, 2010 OWCP proposed to reduce appellant’s compensation benefits
based on her capacity to earn wages as a cashier II. Appellant, through counsel, disagreed on
November 24, 2010 as the job description was not in keeping with her restrictions.

2

By decision dated December 20, 2010, OWCP determined that the position of cashier II
represented appellant’s wage-earning capacity and reduced her compensation effective that date.
Appellant, through counsel, requested an oral hearing.
By decision dated July 29, 2011, the OWCP hearing representative affirmed OWCP’s
December 20, 2010 decision finding that the cashier II position properly reflected appellant’s
wage-earning capacity and was within her physical abilities.
Appellant requested reconsideration and offered a legal argument based on the Board’s
decision in M.V.2 OWCP declined to reopen appellant’s claim on October 12, 2011.
Counsel appealed to the Board and in an October 2, 2012 decision, the Board found that
the position of cashier II represented appellant’s wage-earning capacity.3 The Board further
found that appellant had submitted insufficient evidence to warrant modification of the wageearning capacity decision as the findings of M.V. were not applicable to her case.
While the case was pending with Board, OWCP had referred appellant for a second
opinion examination on May 2, 2012 with Dr. David A. West, a Board-certified orthopedic
surgeon. It requested that Dr. West address two questions: whether appellant’s accepted workrelated condition had resolved and whether appellant could perform her date-of-injury position.
OWCP provided Dr. West with appellant’s date-of-injury position description which reflected
the requirement of standing up to eight hours a day and generally standing three to five hours a
day and walking from four to eight hours a day.
In a report dated May 17, 2012, Dr. West examined appellant and found that she walked
in an upright position with no assistive device. He found negative straight leg raising and good
strength of the quadriceps, hamstrings, dorsiflexors, and plantar flexors. Dr. West noted that
appellant had deep tendon reflexes at two of four at her Achilles and patella. He reported that
appellant was able to heel and toe walk with difficulty. Dr. West noted that appellant had a
radicular pattern in the right lower extremity and that her magnetic resonance imaging (MRI)
scan demonstrated a recurrent disc herniation. He opined that appellant could not return to her
date-of-injury position due to the job requirements that she stand or walk for four to eight hours a
day. Dr. West noted that appellant could not kneel, bend, squat or climb.
Following the Board’s October 2, 2012 decision, counsel requested reconsideration on
October 9, 2012 and again cited M.V., as well as the second opinion report of Dr. West. OWCP
acknowledged this request on December 16, 2013.
By decision dated January 27, 2014, OWCP denied modification of appellant’s wageearning capacity determination. It found that appellant had submitted no medical evidence to
establish a material change in the nature and extent of the injury-related condition. OWCP noted
that Dr. West had not addressed appellant’s ability to perform the selected position. It further
2

Docket No. 10-1642 (June 15, 2011) (finding that as the vocational rehabilitation counselor trained appellant as
an entry-level budget analyst the record should have demonstrated how many of the positions available were entry
level and therefore suitable to the claimant’s vocational training).
3

Docket No. 12-228 (issued October 2, 2012).

3

noted that the Board had previously ruled on the reasonable availability of the cashier II position
in this case and found that M.V. was not applicable. Counsel appealed to the Board. The Board
affirmed the January 27, 2014 decision that there was no medical evidence of a change in the
nature and extent of appellant’s injury-related condition warranting modification of her wageearning capacity determination.4
Following the Board’s September 4, 2014 decision, appellant requested reconsideration
on February 9, 2015. She submitted an MRI scan report dated March 11, 2014 from Dr. Barry
Allen, a Board-certified radiologist. Dr. Allen diagnosed severe degenerative disc disease at
multiple levels, especially L5-S1, as well as spinal stenosis at L5-S1 and bilateral foraminal
stenosis at L5-S1 and L4-5. He also found hypolordosis of the lumbar spine. Appellant alleged
that this report as well as the 2008 MRI scan demonstrated a material change in the nature and
extent of her injury-related condition such that her wage-earning capacity decision should be
modified.
In a report dated January 16, 2015, Dr. David H. McCord, a Board-certified orthopedic
surgeon, reviewed appellant’s MRI scan and diagnosed degenerative disc historically related to
her injury. He opined that there was no change in her condition and no new medical evidence.
By decision dated March 24, 2015, OWCP reviewed the merits of appellant’s claim and
denied modification of her wage-earning capacity decision. It found that Dr. McCord did not
support appellant’s claim for modification of her wage-earning capacity decision as he found that
her injury-related condition had not changed.
Appellant requested reconsideration on June 12, 2015. She alleged that Dr. McCord was
an OWCP doctor, that he attempted to persuade her to undergo surgery, and that he was a
“disgrace to his profession.” Appellant submitted an internet article alleging that Dr. McCord
performed unnecessary surgeries and had lost hospital privileges due to this practice.
By decision dated June 18, 2015, OWCP declined to reopen appellant’s claim for review
on the merits as the evidence submitted was irrelevant to the issue for which her claim had been
denied.
Appellant again requested reconsideration on September 14 and November 13, 2015.
She submitted additional medical evidence in support of her request. In reports dated July 10
and 14, 2015, Dr. James Fiechtl, a physician specializing in emergency medicine, examined
appellant due to worsening back pain. He noted that appellant was exiting her vehicle when she
felt that her back and left leg “went out.” Appellant reported lateral left lower leg and toe
numbness. Dr. Fiechtl found symmetric reflexes at patellar Achilles with loss of muscle strength
on the left. He noted that despite appellant’s description of paresthesia in the left lateral lower
leg, she responded to gross touch. Dr. Fiechtl diagnosed degenerative disc changes in the lumbar
spine, disc herniation at L4-5 and lumbar radiculopathy. He opined that appellant’s current
condition was not due to her accepted employment injuries.

4

Docket No. 14-0926 (issued September 4, 2014).

4

Dr. Michael J. McNamara, a Board-certified orthopedic surgeon, examined appellant on
August 7, 2015 due to a new injury on July 3, 2015 which occurred while she was getting out of
her car. He found normal muscle strength in all motor groups, no focal weakness, and a positive
sciatic nerve root tension sign on the left. Dr. McNamara found decreased range of motion, but
no muscle spasm. He diagnosed disc herniation, degenerative disc disease, L4-5 disc protrusion,
prior decompression at L5-S1. In a separate August 7, 2015 report, Dr. McNamara opined that
appellant’s disc herniation at L4-5 was not due to her accepted employment injury. He noted
that there was an objective change in appellant’s condition, but that this change was not related
to her L5-S1 condition.
By decision dated February 1, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of her wage-earning capacity decision. It reviewed the medical evidence
and found that Dr. Fiechtl had not attributed her worsening back pain to her accepted
employment injuries. OWCP also found that Dr. McNamara had not attributed her current
condition to her employment injuries.
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.5 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.6 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.7
Modification of a standing wage-earning capacity 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
error.8 OWCP’s procedures provides that, if 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 claims examiner will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.9 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.10

5

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
6

K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

8

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
10

Selden H. Swartz, 55 ECAB 272, 278 (2004).

5

ANALYSIS
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish a change in the nature and extent of her injury-related condition such that her
December 20, 2010 wage-earning capacity decision should be modified.
The Board has previously determined that appellant’s original wage-earning capacity
decision was proper. Appellant has not submitted any evidence or argument regarding an error
in the original determination of her wage-earning capacity. Further, there is no argument that
appellant has been otherwise vocationally rehabilitated such that that the wage-earning decision
is no longer appropriate. Instead, appellant has submitted additional medical evidence in an
attempt to establish a change in the nature and extent of her injury-related condition such that her
wage-earning capacity decision should be modified.
Appellant has submitted medical evidence from Drs. McCord, Fiechtl, and McNamara
regarding her current medical conditions. None of these physicians have supported a change in
her accepted injury-related condition. Dr. McCord found on January 16, 2015 no change in her
condition. Drs. Fiechtl and McNamara opined in 2015 reports that appellant had sustained a new
back injury and that her current back conditions and resulting sciatica were not related to her
accepted employment injury. Appellant has submitted no medical evidence supporting her claim
for modification of her wage-earning capacity decision based on a material change in the nature
and extent of her injury-related condition. Due to the deficiencies in the medical evidence, the
Board finds that appellant has failed to meet her burden of proof.
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 not met her burden of proof to modify the loss of
wage-earning capacity decision.

6

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2016
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

7