United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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Appearances:
William P. Sims, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2160
Issued: June 3, 2010

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 August 17, 2009 appellant filed a timely appeal from a June 17, 2009 merit decision
of the Office of Workers’ Compensation Programs. 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 the Office properly reduced appellant’s compensation on the
grounds that the selected position of receptionist represented her wage-earning capacity.
FACTUAL HISTORY
This case was previously before the Board. In an order dated June 1, 2009, the Board
remanded the case on the grounds that the March 25, 2008 Office wage-earning capacity
decision was not properly issued. The Board noted that appellant had an authorized
representative, but the March 25, 2008 decision was not sent to the representative as required by
Office regulations. The case was remanded for an appropriate decision.
With respect to the evidence relevant to appellant’s wage-earning capacity, the Office
had referred her for vocational rehabilitation.

The accepted employment-related conditions were a wrist sprain and bilateral carpal
tunnel syndrome. On November 28, 2006 the rehabilitation counselor completed an OWCP
Form 66 for the position of receptionist, identified under the Department of Labor’s Dictionary
of Occupational Titles as No. 237.367-038. The rehabilitation counselor advised that the job was
reasonably available with wages of $10.30 per hour, or $21,424.00 per year.
In a September 29, 2007 report, the rehabilitation counselor indicated that, as of
September 17, 2007, appellant had been working as a sales clerk with wages of $9.00 per hour at
28 hours per week. Appellant noted that her employer was not able to offer full-time work at
that time. In an October 22, 2007 report, the rehabilitation counselor reported the anticipated
wages for receptionist in appellant’s area was $21,424.00 per year. Wages for the selected
position of appointment clerk were $15,600.00 per year.
By report dated October 29, 2007, an Office rehabilitation specialist stated that the
vocational counselor had submitted the positions of receptionist at $536.00 per week, or
appointment clerk at $416.00 per week, as appropriate for appellant. The specialist did not
provide any additional explanation as to the wage information.
On December 6, 2007 the Office noted that the employing establishment reported the
current pay rate for appellant’s date-of-injury position was $43,084.00 annually, with Sunday
premium of 1.25 percent per hour for 8 hours and 22 hours per weeknight differential of 10
percent per hour. On December 12, 2007 appellant submitted a CA-1032 form indicating she
had been working as a cashier at $9.00 per hour since September 3, 2007.
In a work capacity evaluation (Form OWCP-5c) dated December 3, 2007, Dr. Andre
Eglevsky, an attending orthopedic surgeon, found that appellant was able to work eight hours per
day with restrictions. He noted that appellant was limited to 4 hours of repetitive wrist and
elbow motions, 6 hours of pushing and pulling and a 20-pound lifting restriction.
By letter dated December 14, 2007, the Office advised appellant that it proposed to
reduce her wage-loss compensation based on her capacity to earn $536.00 per week as a
receptionist. It noted that she was currently working as a cashier, stating “but unfortunately this
does not represent your wage-earning capacity.” By decision dated March 25, 2008, the Office
reduced appellant’s compensation. Its calculations were based on a current (as of March 1,
2007) date-of-injury position pay rate of $915.52 per week, with earnings in the selected position
of $536.00 per week.
As noted, the Board set aside the decision, as it was not sent to the authorized
representative. By final decision dated June 17, 2009, the Office again found the selected
position of receptionist represented appellant’s wage-earning capacity and reduced appellant’s
compensation. The calculations were the same as in the March 25, 2008 decision, with an
effective date reported as July 5, 2009.

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LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.1
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity, or if the employee has no actual earnings, her wage-earning
capacity is determined with due regard to the nature of her injury, her degree of physical
impairment, her usual employment, her age, her qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect her
wage-earning capacity in her disabled condition.2
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist 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 the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.3 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.4
ANALYSIS
The Office determined the selected position of receptionist represented appellant’s wageearning capacity and reduced her monetary compensation. At the time of the notice of proposed
reduction on December 14, 2007, appellant was working as a cashier. The Office noted that
appellant was earning $9.00 per hour, but found “this did not represent her wage-earning
capacity,” without further explanation. The March 25, 2008 and June 17, 2009 Office decisions
do not discuss her actual earnings.
It is well established that, when a claimant has actual earnings, the Office must make a
proper finding as to whether such earnings fairly and reasonably represent her wage-earning
capacity.5 The Board has noted that actual earnings are generally the best measure of wageearning capacity as they more reasonably reflect appellant’s employment capacity in the open
labor market.6 The Office did not specify any deficiency in appellant’s actual earnings or
1

Carla Letcher, 46 ECAB 452 (1995).

2

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

3

See Dennis D. Owen, 44 ECAB 475 (1993).

4

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

5

See Sherman Preston, 56 ECAB 607 (2005).

6

Daniel Renard, 51 EACB 466 (2000).

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explain why her actual earnings did not fairly and reasonably represent her wage-earning
capacity.7 Only then may the Office consider a selected position with regard to the factors
enumerated in 5 U.S.C. § 8115.
The Office did not make adequate findings in this case. There was no explanation
provided as to why appellant’s actual wages did not fairly and reasonably represent her wageearning capacity, with reference to relevant Office procedures or Board precedent on the issue.
Without a proper adjudication as to actual earnings, it was premature for the Office to consider a
selected position.
The Board finds that the Office did not meet its burden to reduce appellant’s
compensation pursuant to 5 U.S.C. § 8115(a).
CONCLUSION
The Board finds that the Office did not meet its burden of proof to reduce appellant’s
compensation based on wage-earning capacity in the selected position of receptionist.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 17, 2009 is reversed.
Issued: June 3, 2010
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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Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camp Hill, PA, Employer
__________________________________________

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

Docket No. 19-0690
Issued: August 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 11, 2019 appellant, through counsel, filed a timely appeal from a January 8,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated January 26, 2018, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 3, 2017 appellant, then a 48-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she underwent left knee arthroscopy for microfracture of
a bone fragment, meniscus tear, and arthritis due to factors of her federal employment. She
indicated that she first became aware of her conditions on August 8, 2016 and first realized that
they were caused or aggravated by her federal employment on December 29, 2016. In a
supplemental statement dated January 31, 2017 appellant noted that she previously sustained left
knee and rib injuries and a torn muscle on the right side when she fell while delivering mail on
January 2, 2014.3 She alleged that subsequently in July 2016 her knee pain became unbearable.
Appellant sought medical treatment in August 2016 from Dr. Timothy S. Ackerman, an
attending Board-certified orthopedic surgeon, who found that a magnetic resonance imaging
(MRI) scan of the left knee showed arthritis and advised that arthroscopic surgery would provide
some relief. Dr. Ackerman also advised that a full or partial knee replacement would eventually
be required. Appellant underwent arthroscopic surgery on September 16, 2016. During a followup evaluation on September 26, 2016, Dr. Ackerman informed her that he had removed arthritis
and microfracture of a bone fragment and cleaned up a meniscus tear. Appellant was released to
return to work without restrictions on December 19, 2016. She related that on December 29, 2016
Dr. Ackerman advised her that her bone fragment could have been caused by the January 2, 2014
fall and damaged her knee. Appellant indicated that she sustained a similar nonwork-related injury
in December 2002 and had a meniscus tear repaired. At that time, a physician informed her that
she had arthritis in her knee, which he cleaned out during surgery.
On the reverse side of appellant’s claim form K.H., an employing establishment supervisor,
indicated that, while appellant claimed that her pain was unbearable by late July 2016, she had not
worked since June 4, 2016. In addition, appellant’s new supervisors were unaware of when she
told anyone about her claimed conditions.
In a development letter dated February 15, 2017, OWCP notified appellant of the factual
and medical deficiencies of her claim. It provided a questionnaire for her completion regarding
the factual elements of her claim. OWCP also requested that appellant provide a narrative medical
report from her physician, which contained a detailed description of findings and diagnoses,
explaining how her work activities caused, contributed to, or aggravated her medical condition. In
a development letter of even date, it requested that the employing establishment respond to
appellant’s allegations and provide information regarding her work stoppage, work activities, and
job description. OWCP afforded both parties 30 days to respond.

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Appellant had filed a prior traumatic injury claim (Form CA-1) for a left knee injury, which was assigned OWCP
File No. xxxxxx425. The record indicates that OWCP accepted the claim for left knee contusion.

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In a statement dated March 12, 2017, appellant responded to OWCP’s development
questionnaire. She claimed that, as previously stated, her left knee discomfort started long before
her last day of work on June 4, 2016. Appellant further claimed that she actually stopped work on
June 7, 2016 and not on June 4, 2016 due to severe migraines that were later determined to be
caused by her neck and back issues. She maintained that she did not become aware of her meniscus
tear until her follow-up visit with Dr. Ackerman on September 26, 2016. Appellant provided her
employment history at the employing establishment and listed her activities outside her federal
employment. She also submitted medical evidence and an official description of her city letter
carrier position.
In letters dated March 15 and April 21, 2017, K.F., a human resource management
specialist, responded to OWCP’s development letter. She noted appellant’s annual and sick leave
balance and number of hours worked from January 14, 2012 through 2016 and contended that they
did not reflect excessive amounts of work. K.F. further noted that her claim for her January 2,
2014 employment-related injury under OWCP File No. xxxxxx425 had been accepted for left knee
contusion. She asserted that appellant had not submitted medical evidence to establish her instant
claim or immediately report her claimed injury. K.F. further asserted that appellant’s new
supervisor was unaware of the reason for her work stoppage on June 4, 2016 when her surgery
was not performed until September 9, 2016. She questioned how appellant maintained that she
first became aware of her claimed work-related left knee condition on August 8, 2016 when she
had related that she started having knee pain in January 2014 that increased in March/April 2016.
K.F. noted that she did not stop work until June 2016 and did not seek medical treatment until
August 2016.
In an undated letter dated D.W., appellant’s supervisor, maintained that appellant had not
sustained a work-related injury. Appellant had not mentioned having a work-related injury when
she requested to return to work with restrictions following her left knee surgery. D.W. noted that
when she informed appellant that no work was available within her craft, appellant requested to
be placed in another craft with restrictions. She replied that, since her injury was not work related,
she could not put her into another craft without a grievance being filed. D.W. noted that appellant
related to her that she would speak to a union representative, but instead she filed a Form CA-2.
By decision dated May 1, 2017, OWCP denied appellant’s occupational disease claim
finding that the evidence of record was insufficient to establish the factual aspect of her claim.
On June 2, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on November 14, 2017.
OWCP thereafter received additional medical evidence.
By decision dated January 26, 2018, an OWCP hearing representative affirmed the May 1,
2017 decision, as modified. She found that appellant had established the factual aspect of her
claim based on her hearing testimony and evidence of record. However, the claim remained denied
as appellant had not provided a rationalized medical opinion explaining how her new or preexisting
left knee conditions were caused or aggravated by the accepted employment factors.

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On October 11, 2018 appellant, through counsel, requested reconsideration and submitted
medical evidence from Dr. Scott King, a Board-certified orthopedic surgeon. In a report dated
August 17, 2018, Dr. King reviewed the physical requirements and environmental factors of
appellant’s city letter carrier position. He advised that appellant was not capable of performing
the full duties of her position without restrictions, limitations, or accommodations.
In an employing establishment physician or practitioner certification for light-duty request
form also dated August 17, 2018, Dr. King excused appellant from work for the period from
August 6 through October 29, 2018 because she had undergone revision of a total left knee
arthroscopy on August 6, 2018. He provided a surgical follow-up report on August 29, 2018.
Appellant also submitted an additional report dated August 30, 2018 from Dr. Ackerman.
Dr. Ackerman noted that appellant related a history that she was involved in a motor vehicle
accident while delivering mail on June 15, 2017. He discussed physical examination findings and
diagnosed a partial rotator cuff tear, acute strain, incomplete, adhesive capsulitis, and scapular
dyskinesis of the right shoulder. Dr. Ackerman recommended arthroscopic surgery.
OWCP subsequently received additional reports from Dr. King. In an August 17, 2018
report, Dr. King discussed physical examination findings and reviewed diagnostic test results. He
provided an assessment of two weeks’ status post total left knee replacement. Dr. King indicated
that appellant would be released to return to work the following week.
Dr. King, in a state workers’ compensation form dated August 17, 2018, noted that
appellant’s condition of revision of total left knee arthroscopy and her incapacity approximately
commenced on June 20, 2018. He also noted that the probable duration of her condition was 10
days. Dr. King advised that appellant was incapacitated for the period from August 6 through
October 19, 2018.
OWCP, by decision dated January 8, 2019, denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted in
support of reconsideration was irrelevant or immaterial.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. It may review an award for or against payment
of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence 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.5 If OWCP determines
4

5 U.S.C. § 8128(a).

5
20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).

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that at least one of these requirements is met, it reopens and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 11, 2018 timely request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, and did not advance a new and relevant
legal argument not previously considered.8 Consequently, she is not entitled to further review of
the merits of her claim based on the first or second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).9
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP under 20 C.F.R. § 10.606(b)(3). The Board notes that the underlying issue
in this case is whether she had established a left knee condition that required surgery and resulted
in her disability due to the accepted factors of her federal employment as a city letter carrier. That
is a medical issue which, on reconsideration, must be addressed by relevant medical evidence not
previously considered.10
On reconsideration appellant submitted new reports from Dr. King and Dr. Ackerman.
However, neither physician provided a relevant medical opinion as to causation. Although
evidence submitted on reconsideration need not carry appellant’s burden entirely to suffice for
reconsideration, the new evidence must at least be relevant and pertinent to the issue upon which
the claim was denied.11 While this evidence is new, it does not address the underlying medical
issue of causal relationship. Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

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

8

Supra note 5 at § 10.606(b)(3)(i) and (ii); see also M.S., Docket No. 19-0291 (issued June 21, 2019).

9

Id.

10

See G.T., Docket No. 18-1506 (issued April 24, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

11
R.R., Docket No. 18-1562 (issued February 22, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); K.B.,
Docket No. 18-1392 (issued January 15, 2019).

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The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 11-93
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On October 14, 2010 appellant filed a timely appeal of an April 29, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying compensation benefits.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 has met her burden of proof in establishing that she
sustained a right shoulder condition causally related to factors of her federal employment.
On appeal, appellant argued that she did not have a preexisting condition and that her
physicians supported a casual relationship between her diagnosed condition and her employment
activities.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2008 appellant, then a 53-year-old sales and service associate, filed an
occupational disease claim alleging that she developed pain and inflammation in the right arm
and shoulder due to writing in the performance of duty. She stated that the more she wrote the
more pain she experienced. Appellant also stated that the constant cold from the air conditioner
increased her pain. Dr. Roscoe Adams, a Board-certified family practitioner, examined appellant
on July 9, 2008 and diagnosed pain in the shoulder, impingement syndrome of the shoulder and
strain of the arm or forearm due to repetitive use. In a letter dated July 18, 2008, OWCP
requested additional factual and medical evidence in support of appellant’s claim. It allowed 30
days for a response.
Appellant’s supervisor submitted a statement dated August 1, 2008 stating that appellant
was on light duty which entailed answering the telephone, writing second notices for letters and
parcels, some light lifting and assisting customers in the lobby area. He noted that appellant was
required to sit, stand and reach to retrieve different items intermittently throughout an eight-hour
day.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on
July 23, 2008. This test demonstrated two partial thickness bursal surface tears of the
supraspinatus anteriorly and that posterior supraspinatus and infraspinatus tendon. In a note
dated July 31, 2008, Dr. Adams stated that appellant’s shoulder examination showed positive
impingement signs and tenderness of the acromioclavicular joints with decreased range of
motion in both shoulders. He reviewed the MRI scans and diagnosed rotator cuff tears
secondary to repetitious work.
By decision dated August 27, 2008, OWCP denied appellant’s claim finding that the
medical evidence did not establish that the claimed condition resulted from appellant’s accepted
work activities.
Appellant requested a review of the written record on September 24, 2008. She
submitted a left shoulder MRI scan dated July 23, 2008, which demonstrated a partial thickness
tear of the rotator cuff at the junction of the posterior of the supraspinatus and infraspinatus as
well as a tear of the anterior-anterosuperior labrum. On September 15, 2008 Dr. Adams
diagnosed rotator cuff tear and impingement syndrome of the shoulder, strain of right arm
repetitive use and pain in shoulder longer than three months. He noted that appellant reported
bilateral shoulder pain with decreased range of motion since April 15, 2008. Appellant stated
that the pain began after working on April 15, 2008 which was an especially busy day.
Dr. Adams opined that appellant’s injuries did not occur as a result of other medical problems,
but from repetitive motion at work. By decision dated November 18, 2008, the Branch of
Hearings and Review vacated OWCP’s August 18, 2008 decision and remanded the case for
additional development of the medical evidence.
Dr. Leonard F. Tassy, a Board-certified orthopedic surgeon, examined appellant on
December 9, 2008 and diagnosed partial thickness rotator cuff tear bilaterally. He noted that
appellant was more symptomatic on the right.

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OWCP referred appellant to Dr. Robert F. Draper, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a report dated December 23, 2008, Dr. Draper stated that
appellant was writing when she felt a pop in her right shoulder and felt some pain in her right
shoulder. He noted that appellant had a history of pushing and pulling in the performance of
duty, but that she attributed her condition to writing a lot in the performance of duty. Dr. Draper
reviewed appellant’s MRI scans and diagnosed impingement syndrome of the right shoulder with
preexisting osteoarthritis of the right acromioclavicular (AC) joint with arthropathy. He stated
that appellant was sitting at her desk writing and that writing in and of itself was not of a
sufficient magnitude of trauma to cause a rotator cuff tear or injury. Dr. Draper stated that
appellant had osteoarthritis of the AC joint with arthropathy with hypertrophy and crowding of
the supraspinatus outlet. He stated, “This crowding of the supraspinatus outlet led to
impingement syndrome in the supraspinatus outlet and caused the partial tearing of the
supraspinatus and infraspinatus tendons.” Dr. Draper concluded, “I believe that the patient’s
symptoms are due to the osteoarthritis of the AC joint of the right shoulder, causing these other
impingements and damages to the rotator cuff generally, I do not find that the writing in and of
itself caused the rotator cuff tear. Consequently, I do not consider this an on-the-job injury but
the result of her unrelated medical condition.” Dr. Draper noted that appellant had similar
findings in her left shoulder on MRI scan and that she was reporting some discomfort in the left
shoulder. He noted that appellant’s left shoulder was not injured in her employment in any way
and opined that she had a similar condition in her left shoulder. Dr. Draper stated that he did not
believe that appellant’s right left shoulder problems were related to work activity or aggravated
by work activity.
On January 30, 2009 OWCP referred appellant for an impartial medical examination with
Dr. James Tozzi, a Board-certified orthopedic surgeon. In a report dated February 17, 2009,
Dr. Tozzi noted appellant’s history of injuring her right shoulder while writing in the
performance of duty. He noted that she underwent right shoulder surgery on February 12, 2009
and reviewed her surgical report. Dr. Tozzi stated that the changes found in surgery were
primarily that of wear and tear commonly found in patients in appellant’s age group. He stated,
“There is ample medical information that links this to wear and tear rather than injury.”
Dr. Tozzi diagnosed rotator cuff degeneration, AC joint hypertrophy with degeneration,
supraspinatus tendinitis. He stated, “The condition was preexisting and is degenerative. It may,
in fact be considered an occupational hazard, just as carpal tunnel. However, it is such a
common condition that one would have to say that the act of aging in and of itself would be,
then, work related if we are to assume that wear and tear in the musculoskeletal system is work
related to rather age related and common to every human being.” Dr. Tozzi also noted that
appellant had a similar left shoulder condition which was unrelated to any reports of injury. He
concluded that appellant’s condition was not work related.
By decision dated March 18, 2009, OWCP denied appellant’s claim finding that the
weight of the medical evidence as represented by Dr. Tozzi’s report established that her right
shoulder condition was preexisting and not causally related to her accepted employment activity
of writing.
Appellant requested an oral hearing on April 15, 2009. Appellant attributed her rotator
cuff tear to repetitive use of her right shoulder since July 1988 including lifting, pushing, pulling,
reaching and throwing packages. She stated that her job assignment when her right shoulder

3

injury occurred was repetitive writing. Appellant submitted a report dated January 8, 2009 from
Dr. Tassy. He reviewed appellant’s operative report dated February 12, 2009 and diagnosed
partial thickness rotator cuff tear right shoulder. Dr. Tassy found grade three to four
chondromalacia on the humeral head and glenoid with some cartilage floating free. He also
found mild fraying at the superior labrum and subscapularis anteriorly.
Appellant testified at the oral hearing on July 28, 2009. Counsel argued that Drs. Draper
and Tozzi inappropriately evaluated appellant’s claim as a traumatic injury rather than an
occupational disease claim. Appellant stated that she worked as a flat sorter operator initially
and then as a sales associate. She stated that on May 8, 2008 she was writing certified letters.
Appellant also noted that it was very cold at the employing establishment. She stated that she
was required to lift and reach in the performance of duty. Appellant stated on May 8, 2008 that
she was writing and felt something pop. She noted that she continued to write for several days
and her pain worsened. Appellant first sought medical attention on June 27, 2008. She noted
that she had recently filed a separate claim for her left shoulder condition.
In a report dated September 28, 2009, Dr. Tassy stated that appellant had to do “a lot of
lifting” in the performance of duty and that this “may be related to her problem.” He diagnosed
partial thickness rotator cuff tear. Dr. Tassy stated, “It is likely that some of the lifting she had to
do at her work maybe led to this problem that is as specific as I can be in regard to this.”
By decision dated November 17, 2009, the Branch of Hearings and Review found that
Dr. Tozzi’s report required clarification regarding whether appellant’s employment in any
manner affected the diagnosed conditions and remanded the case to OWCP for further
development.
In a letter dated March 3, 2010, OWCP requested that Dr. Tozzi provide a supplemental
report addressing whether the preexisting condition may have been an occupational hazard. It
requested that Dr. Tozzi explain whether the accepted employment factors contributed to any
extent in appellant’s condition and supply medical reasoning in support of his conclusion.
Dr. Tozzi responded on April 21, 2010 and stated that appellant attributed her right shoulder
condition to repeated writing and being placed in a position where cold air affected her right
shoulder. He stated, “It is my opinion that [appellant] has rotator cuff degenerative changes
bilaterally that the reported aggravating environment and activities were inconsequential. The
active writing per se and cold air do not cause rotator cuff tears.” Dr. Tozzi noted that cold air
could cause a temporary aggravation of her shoulder symptoms, but did not cause the condition
nor lead to any permanent aggravation. He further stated, “It is therefore my opinion that
[appellant] has attritional wear and tear-related rotator cuff disease that is linked to genetics, age
and simple wear and tear that would be present regardless of her employment. Based upon my
understanding of her employment, she has limited lifting requirements, the bulk of her work
being writing and sedentary activity which does not predispose the patient to occupational hazard
of rotator cuff disease.” He noted that as appellant’s position at the time of her complaints was
not physically demanding, the duties would not be associated with the production of shoulder
pain and tearing that necessitated surgical intervention.
By decision dated April 29, 2010, OWCP denied appellant’s claim finding that the
weight of the medical opinion evidence rested with Dr. Tozzi who reviewed the statement of

4

accepted facts and provided medical reasoning in support of his opinion that appellant’s
condition was not related to her accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”4 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.5
ANALYSIS
Appellant alleged that she developed a right shoulder condition due to her employment
duties of writing and working in an over air conditioned area. Her attending physician,
Dr. Adams attributed her right shoulder impingement syndrome to her employment duties.
OWCP referred appellant for a second opinion evaluation with Dr. Draper who opined that
appellant’s shoulder condition was not related to her implicated employment duties, but instead
was due to normal wear and tear through the process of aging.
The Board finds that OWCP properly determined that there was a conflict of medical
opinion evidence between appellant’s attending physician, Dr. Adams, and Dr. Draper, an
OWCP referral physician, regarding the causal relationship between appellant’s diagnosed
2

Id. at §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

4

20 C.F.R. § 10.5(q).

5

Lourdes Harris, 45 ECAB 545, 547 (1994).

5

condition and her employment duties. When there are opposing reports of virtually equal weight
and rationale, the case will be referred to an impartial medical specialist pursuant to section
8123(a) of FECA which 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 examination and resolve the conflict of medical evidence.6
This is called a referee examination and OWCP will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.7
OWCP properly referred appellant, a statement of accepted facts and a list of specific
questions to Dr. Tozzi, a Board-certified orthopedic surgeon, to resolve the existing conflict of
medical opinion evidence. In his initial report dated February 17, 2009, Dr. Tozzi accurately
reported appellant’s history of injuring her right shoulder while writing in the performance of
duty and working in a cold environment. He reviewed the February 12, 2009 surgical report and
opined that the changes found in surgery were primarily that of wear and tear commonly found
in patients in appellant’s age group. Dr. Tozzi diagnosed rotator cuff degeneration, AC joint
hypertrophy with degeneration, supraspinatus tendinitis. He opined that appellant’s shoulder
condition was preexisting and degenerative noting that it could be considered an occupational
hazard, but was so common that it was really age related. Dr. Tozzi bolstered his opinion by
noting that appellant’s left shoulder condition was similar and not attributed to her employment.
Dr. Tozzi submitted a supplemental report dated April 21, 2010 and again reviewed the
statement of accepted facts noting that appellant attributed her right shoulder condition to
repeated writing and being placed in a position where cold air affected her right shoulder.
Dr. Tozzi opined that appellant’s accepted employment activities could not cause her right
shoulder rotator cuff tears. He opined that cold air could cause a temporary aggravation of her
shoulder symptoms, but did not cause a rotator cuff tear or lead to any permanent aggravation of
that condition. Dr. Tozzi concluded, “It is therefore my opinion that [appellant] has attritional
wear and tear related rotator cuff disease that is linked to genetics, age and simple wear and tear
that would be present regardless of her employment. Based upon my understanding of her
employment, she has limited lifting requirements, the bulk of her work being writing and
sedentary activity which does not predispose the patient to occupational hazard of rotator cuff
disease.”
The Board finds that the weight of the medical evidence rests with the well-reasoned
reports of Dr. Tozzi. In situations were there are opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.8 Dr. Tozzi based his report on a
proper history of injury and provided a clear opinion that appellant’s right shoulder condition
was not due to the accepted employment factors of writing and working in a cold environment.
He attributed appellant’s rotator cuff tear to the aging process, noting that appellant had similar
6

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

7

R.C., 58 ECAB 238 (2006).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

6

findings in her left shoulder. Dr. Tozzi explained that appellant’s basically sedentary work
duties were not sufficiently strenuous to result in the diagnosed rotator cuff tear. He explained
why he believed that appellant’s shoulder condition was not the result of her implicated
employment duties and suggested an alternative explanation for her condition that the condition
arose as a result of the normal aging process. This reasoning is sufficient to resolve the existing
conflict of medical opinion evidence and does not support appellant’s claim for an occupational
disease.
Dr. Tassy examined appellant following her right shoulder surgery and listed appellant’s
work requirements as “a lot of lifting” and suggested that the lifting may be related to appellant’s
shoulder condition. He stated, “It is likely that some of the lifting she had to do at her work
maybe led to this problem that is as specific as I can be in regard to this.” While Dr. Tassy
offered an opinion that appellant’s employment contributed to her right shoulder condition, this
report is not based on a proper history of injury as appellant’s position was sedentary with
limited lifting. He also failed to provide a definitive opinion, stating that it was likely that lifting
may be led to appellant’s shoulder condition. This speculative statement is not sufficient to meet
appellant’s burden of proof.
The Board finds that the weight of the medical evidence fails to support appellant’s claim
that her employment duties of writing and working in a cold environment caused or contributed
to her diagnosed condition of right rotator cuff tear. The Board further finds that Dr. Tozzi’s
reports are entitled to the weight of the medical evidence and disagrees with appellant’s
interpretation of the medical evidence.
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 failed to meet her burden of proof to establish that she
developed a right shoulder condition due to factors of her federal employment.

7

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 17-0211
Issued: April 3, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from a
September 16, 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 claim.

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 has met her burden of proof to establish a left shoulder
condition causally related to the accepted January 8, 2014 employment incident.
FACTUAL HISTORY
On February 10, 2014 appellant, then a 57-year-old tax law specialist, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury on January 8, 2014 while moving files
and boxes in the performance of duty.3 In a May 22, 2014 supplemental statement, she explained
that she injured her left shoulder while boxing up coworker’s personal belongings and moving
files across the office on January 8, 2014 following a water pipe break. Appellant claimed that the
she left the office that day feeling tired and faint. The next day she was ill and used sick leave.
Appellant then began having body aches and pains and could only use her left shoulder for limited
activity. She underwent physical therapy for her left shoulder. Appellant noted that, on March 17,
2014, while on her way to physical therapy, she was involved in an automobile accident which left
her incapacitated.
Evidence submitted with the claim included physical therapy prescription notes dated
February 20 through June 9, 2014. The notes contain diagnoses of bicipital tenosynovitis and note
the work history of January 8, 2014.
In a January 30, 2014 report, Dr. Michael F. Bartell, an internist, noted that appellant had
a left shoulder injury with pain in the joint involving the left shoulder region. He indicated that,
approximately 21 days ago, she injured her left rotator cuff tendon at work while helping to move
furniture and equipment in her office. Dr. Bartell indicated that a diagnosis had not been
determined. In a February 13, 2014 note, he indicated that appellant was seen on January 30, 2014
for a left shoulder injury and he had recommended referral to an orthopedic specialist.
In a February 7, 2014 report, Dr. Julienne Lippe, an orthopedic surgeon, advised that
appellant was under her care for left shoulder biceps tenosynovitis. She indicated that appellant
received a steroid injection and was given a prescription for physical therapy.
In a March 21, 2014 treatment note, Dr. Ellen Loeffler, a family practitioner, noted that
appellant had been involved in a March 17, 2014 motor vehicle accident and presented for
emergency room follow-up. An assessment of acute upper back pain, lower back pain, left leg
pain, and left arm pain was provided. Diagnostic testing was ordered. Dr. Loeffler indicated that
the leg pain was likely sciatic involvement from muscle spasm. She indicated that a disc herniation
could not be ruled out, but noted no major nerve deficits.
An unsigned May 12, 2014 treatment note from St. Louis Orthopedic Institute, Inc., noted
back pain.

3

OWCP initially administratively approved a limited amount of medical expenses as there was minimal or no lost
time from work and the employing establishment did not controvert continuation of pay or challenge the merits of the
case.

2

By development letter dated May 16, 2014, OWCP advised appellant of the factual and
medical evidence needed to establish her claim. It allotted her 30 days to submit the requested
evidence. Appellant did not respond.
By decision dated July 16, 2014, OWCP denied appellant’s claim as the medical evidence
of record did not demonstrate that a medical condition was causally related to the accepted
employment incident.
On July 30, 2014 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative, which was held on March 11, 2015. At the hearing, appellant
testified that she did not seek medical treatment until January 30, 2014 as she thought she was
“just having some pain.” She also testified as to the events of March 17, 2014 when she was
involved in a motor vehicle accident as a passenger. Appellant indicated that she was enroute to
her physical therapy appointment for her left shoulder, but cancelled her physical therapy
appointment after the accident. Counsel also presented argument, but no additional evidence was
submitted.
By decision dated April 30, 2015, an OWCP hearing representative affirmed the July 16,
2014 decision as the medical evidence of record did not establish causal relationship. The hearing
representative further found that, as the claimed January 8, 2014 injury had not been shown to be
the cause of appellant’s current medical condition, it was premature to determine whether the
March 17, 2014 motor vehicle accident was a consequential injury.4
On January 21, 2016 OWCP received appellant’s January 21, 2016 request for
reconsideration. Additional evidence, including medical reports pertaining to her pelvis and left
knee were received along with diagnostic testing of bilateral knees. None of the reports discussed
appellant’s claimed left shoulder condition.
In a November 19, 2015 report, Dr. Charles W. Ampadu, an internist, stated that appellant
was under his care for a shoulder injury, chronic back pain, and migraine headaches. He indicated
that her pain medications caused drowsiness and lack of concentration and that she may not be
able to perform her usual work functions.
By decision dated September 16, 2016, OWCP denied modification of the April 30, 2015
decision. It again found that appellant had not established that her left shoulder condition was
causally related to the accepted January 8, 2014 employment incident.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
4

The hearing representative further noted that additional evidence would be needed to determine whether or not
the motor vehicle accident arose in the performance of duty.
5
OWCP again explained that the matter concerning the motor vehicle accident would be further considered if the
original injury was accepted as work related.

3

limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.8 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.9
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
ANALYSIS
The Board finds that appellant has not established a left shoulder condition causally related
to the accepted January 8, 2014 employment incident.
OWCP accepted that the January 8, 2014 employment incident occurred as alleged and that
a medical diagnosis had been provided for a left shoulder condition, i.e., left shoulder biceps
tenosynovitis. It denied the claim, however, as the medical evidence of record failed to establish
a causal relationship between the accepted employment incident and the diagnosed left shoulder
condition.
In a January 30, 2014 report, Dr. Bartell noted that appellant had sustained a left shoulder
injury with pain in joint involving left shoulder region. While he noted the history of the work
injury, he related that no diagnosis had been made. In his February 13, 2014 note, Dr. Bartell
indicated that he had referred appellant to an orthopedic physician. His reports are insufficient to

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

See S.P., 59 ECAB 184, 188 (2007).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

10

Solomon Polen, 51 ECAB 341 (2000).

4

establish her claim as he failed to provide a medical diagnosis or offer any opinion regarding the
cause of her condition.11
In a February 7, 2014 report, Dr. Lippe noted that appellant was under her care for left
shoulder biceps tenosynovitis and discussed appellant’s treatment. In a November 19, 2015 report,
Dr. Ampadu noted that appellant was under his care for a shoulder injury, chronic back pain, and
migraine headaches and indicated that her pain medications may not allow her to perform her usual
work functions. These reports, however, are of limited probative value as neither physician noted
the history of the January 8, 2014 work incident or offered any opinion regarding the cause of her
condition.12
The diagnostic testing of record is of diminished probative value and is insufficient to
establish appellant’s claim as diagnostic reports do not provide an opinion on the cause of her
diagnosed conditions.13
OWCP also received physical therapy records. Physical therapy reports are likewise
insufficient to establish appellant’s claim as reports by a physical therapist are of no probative
value because a physical therapist is not a physician under FECA.14
While appellant also claimed a consequential injury due to a March 17, 2014 automobile
accident enroute to physical therapy for her claimed left shoulder condition and submitted medical
evidence, including Dr. Loffler’s March 21, 2014 report and the May 12, 2014 treatment note
pertaining to conditions other than her left shoulder, the Board finds that a determination on a
consequential injury is premature until the claimed January 8, 2014 injury has been shown to be
causally related to her claimed left shoulder condition.15
Accordingly, the medical evidence contained in this case record does not provide a wellrationalized medical opinion establishing that the diagnosed condition of left shoulder biceps
tenosynovitis was causally related to the accepted January 8, 2014 employment incident. OWCP
advised appellant that it was her responsibility to provide a comprehensive medical report
11

L.L., Docket No. 16-0896 (issued September 13, 2016) (Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
12
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
13

See C.P., Docket No. 15-0600 (issued June 2, 2015).

14

5 U.S.C. 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law; J.G., Docket No. 15-0251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18,
2008) (records from a physical therapist do not constitute competent medical opinion in support of causal relation, as
physical therapists are not considered physicians as defined under FECA).
15

The general rule respecting consequential injuries is that, when the primary injury is shown to have arisen out of
and in the course of employment, every natural consequence that flows from the injury is deemed to arise out of the
employment, unless it is the result of an independent intervening cause, which is attributable to the employees own
intentional conduct. A claimant bears the burden of proof to establish a claim for a consequential injury. See R.O.,
Docket No. 16-1516 (issued August 28, 2017).

5

explaining how the diagnosed medical condition was caused by the accepted employment incident.
Appellant failed to submit appropriate medical documentation in response to OWCP’s request.16
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.17 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between his or her condition and his or her employment.18 Causal relationship must
be based on rationalized medical opinion evidence.19 As appellant did not submit a rationalized
medical opinion supporting that her left shoulder condition was causally related to the accepted
January 8, 2014 employment incident, she did not meet her burden of proof.
On appeal counsel argues generally that the decision is contrary to fact and law. Based on
the findings and reasons stated above, the Board finds that counsel’s arguments are not
substantiated.20
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 her burden of proof to establish that her left
shoulder condition was causally related to the accepted January 8, 2014 employment incident.

16

See D.B., Docket No. 16-1219 (issued November 8, 2016); see also T.H., Docket No. 15-0772 (issued
May 12, 2016).
17
L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
18

Patricia J. Glenn, 53 ECAB 159-60 (2001).

19

M.E., Docket No. 14-1064 (issued September 29, 2014).

20

See E.L., Docket No. 16-0635 (issued November 7, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 16, 2016 is affirmed.
Issued: April 3, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1659
Issued: August 18, 2020

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 August 1, 2019 appellant, through counsel, filed a timely appeal from a February 13,
2019 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 has met his burden of proof to modify a November 5, 1997
loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 31, 1993 appellant, then a 35-year-old letter carrier, filed a notice of recurrence
(Form CA-2a) claiming that he had originally sustained a herniated back disc in October 1991 or
on February 26, 1993 and that he sustained a recurrence of disability on March 16, 1993 due to
getting in and out of his mail truck multiple times while in the performance of duty.4 He advised
that he experienced low back pain/soreness and indicated that he was unsure if his back condition
was a recurrence or a new low back injury. Appellant stopped work on March 16, 1993. On
July 30, 1993 OWCP informed appellant that the claim filed on March 31, 1993 was considered
to be for a new injury and would be developed as such. On August 18, 1994 it accepted his claim
for lumbar strain and L4-5 disc herniation. OWCP authorized low back surgery, including L4-5
microdiscectomy on June 8, 1994 and L4-5, S1 spinal fusion with decompression of the right L5
nerve root/lateral recess on July 27, 1995.
On January 8, 1997 the employing establishment offered appellant a permanent, full-time
position as a modified letter carrier. The duties of the position included setting up carrier routes
for mail delivery, casing mail on other routes, and performing other duties as assigned within
physical restrictions. The position had the same work restrictions as those set forth by Dr. Bruce
Rudin, a Board-certified orthopedic surgeon, based on the findings of a November 25, 1996
functional capacity evaluation.5 On January 10, 1997 appellant accepted the job offer and returned
to work as a modified letter carrier.
By decision dated November 5, 1997, OWCP reduced appellant’s compensation to zero
effective that same date based on his ability to earn wages of $36,577.00 a year as a modified letter
carrier. It indicated that appellant had been employed in the position for over 60 days and noted
that his actual wages exceeded the wages of the job he held when injured. OWCP determined that
the position of modified letter carrier fairly and reasonably represented his wage-earning capacity.

3

M.G., Docket No. 15-1015 (issued January 28, 2016).

4
OWCP assigned the claim OWCP File No. xxxxxx707. The case record reflects that appellant sustained a low
back strain on October 8, 1991 which was accepted under OWCP File No. xxxxxx725. OWCP File Nos. xxxxxx725
and xxxxxx707 have been administratively combined, with the latter designated as the master file.
5

The work restrictions included lifting no more than 10 pounds, walking or standing no more than four hours per
day, no bending below 20 degrees, squatting or stair usage no more than one hour, driving no more than three hours,
and kneeling/twisting as tolerated.

2

On November 21, 1997 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on May 24, 1999. By decision dated
August 2, 1999, OWCP’s hearing representative affirmed the November 5, 1997 LWEC
determination.6
On June 3, 2013 appellant filed a claim (Form CA-2a) alleging a recurrence of disability
on April 17, 2013 due to his accepted March 16, 1993 employment injury. He alleged that his
employment-related back condition had worsened.
Appellant subsequently submitted a June 3, 2013 report from Dr. Rudin who diagnosed
degenerative lumbar disc and noted that appellant was unable to perform his current duties as a
modified letter carrier. In reports dated June 20, 2013, Dr. Rudin noted that appellant had
experienced a severe flare-up of symptoms of low back pain and lower extremity weakness on
April 17, 2013. He described appellant’s symptoms as emanating from the sacroiliac joint,
adjacent to the two-level spinal fusions. Dr. Rudin opined that appellant’s current condition was
wholly causally related to his work injury of March 16, 1993 and that he was totally disabled from
his position at the employing establishment. In an August 5, 2013 addendum to his June 20, 2013
report, he diagnosed lumbar sprain and degeneration of lumbar or lumbosacral intervertebral disc.
Dr. Rudin noted that appellant was unable to perform any work duties which would require him to
lift, bend, twist, stretch, or to sit or stand for longer than an hour at a time. He opined that he was
not capable of returning to these duties due to the injury he suffered on March 16, 1993.
By decision dated October 7, 2013, OWCP denied appellant’s claim for a recurrence of
disability, finding that the evidence of record failed to establish a change in the nature and extent
of his injury-related disability or a change in the nature of his light-duty job.
On October 15, 2013 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
April 22, 2014. By decision dated July 8, 2014, OWCP’s hearing representative affirmed the
October 7, 2013 decision.
On September 15, 2014 appellant, through counsel, requested reconsideration of the July 8,
2014 decision. He submitted a September 9, 2014 report from Dr. Obi Onyewu, Board-certified
in pain management, who noted a history of appellant’s March 16, 1993 work injury. Dr. Onyewu
indicated that appellant reported that he stopped work on April 17, 2013 due to a worsening of his
March 16, 1993 injury. He opined that, to a reasonable degree of medical probability, the
treatment appellant was receiving at the spine center was causally related to the March 16, 1993
work injury.

6

In July 2008 appellant began working in a full-time position as a modified letter carrier with an annual salary of
$51,252.00. The position duties included casing mail, delivering Express Mail, and assisting with mark-up mail. In
May 2009 appellant began working in another full-time position as a modified letter carrier with an annual salary of
$53,684.00. The position duties included casing mail and delivering Express Mail.

3

By decision dated December 10, 2014, OWCP denied modification of the July 8, 2014
decision.
Appellant appealed to the Board and, by decision dated January 28, 2016, the Board set
aside the December 10, 2014 decision and remanded the case to OWCP for proper development
as a request for modification of the November 5, 1997 LWEC determination, rather than as a
recurrence of disability.7
In a June 9, 2016 development letter, OWCP advised appellant of the standards for
modifying an LWEC determination and afforded him 30 days to submit additional evidence. In a
June 21, 2016 letter, counsel referenced previously submitted reports of Dr. Rudin and
Dr. Onyewu.
By decision dated August 26, 2016, OWCP denied modification of the November 5, 1997
LWEC determination. It found that the evidence of record was insufficient to support such
modification.
On September 8, 2016 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
January 19, 2017.
Appellant subsequently submitted an April 24, 2013 magnetic resonance imaging (MRI)
scan of the lumbar spine which contained an impression of minimal retrolisthesis at L2-3, diffuse
disc bulge with foraminal protrusion and canal stenosis, and mild right foraminal narrowing at
L3-4. An August 28, 2013 electromyogram and nerve conduction velocity (EMG/NCV) study
revealed chronic bilateral L4-5 motor radiculopathy and axonal motor sensory peripheral
polyneuropathy.
By decision dated February 23, 2017, OWCP’s hearing representative set aside the
August 26, 2016 decision and remanded the case to OWCP for further development of the medical
evidence. The hearing representative instructed OWCP to refer appellant for a second opinion
examination and evaluation of whether a worsening of his employment-related condition caused
or contributed to an inability to work on or after April 17, 2013.
On March 30, 2017 OWCP referred appellant for a second opinion examination to
Dr. Robert A. Smith, a Board-certified orthopedic surgeon. It provided him with a statement of
accepted facts (SOAF) and requested that he evaluate whether appellant was unable to work on or
after April 17, 2013 due to a worsening employment-related condition.
In a report dated April 17, 2017, Dr. Smith discussed appellant’s factual and medical
history and provided results on physical examination. He opined that appellant’s lumbar
degenerative disc disease and L4-5 radiculopathy were not caused, aggravated, accelerated, or
precipitated by the original work injury. Dr. Smith further noted that the medical data and physical
examination findings did not support any worsening of appellant’s accepted employment condition
7

Supra note 3.

4

on or around April 17, 2013. He indicated that appellant could return to sedentary duty on a fulltime basis.
By decision dated June 21, 2017, OWCP denied modification of the November 5, 1997
LWEC determination.
On June 27, 2017 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. The hearing was held on October 24, 2017.
Appellant submitted the findings of an August 21, 2017 EMG/NCV study which contained
an impression of bilateral L4-S1 motor radiculopathy without acute change and diffuse sensory
peripheral polyneuropathy. A CT scan of the lumbar spine dated September 5, 2017 revealed
satisfactory postoperative changes at L4 through S1 and L5-S1, mild bilateral lateral recess and
neural foraminal narrowing, L2-3 disc displacement with facet arthropathy, L3-4 concentric disc
displacement, moderate canal stenosis, bilateral lateral recess, and neural foraminal narrowing.
By decision dated January 2, 2018, OWCP’s hearing representative set aside the June 21,
2017 decision and remanded the case for further medical development. The hearing representative
instructed OWCP to refer appellant back to Dr. Smith for a supplemental opinion addressing
whether the recent EMG/NCV study and CT scan changed his opinion as to whether appellant’s
lumbar degenerative disc disease and L4-5 radiculopathy were caused or aggravated by an
employment event, and whether appellant experienced a worsening of the accepted employment
conditions effective April 17, 2013.
On January 16, 2018 appellant submitted several reports, dated between December 5, 2016
and September 18, 2017, discussing treatment provided by Dr. Frank Falco, a Board-certified
anesthesiologist. Dr. Falco diagnosed chronic pain syndrome, mechanical complication of
nervous system device, post-laminectomy syndrome of the lumbar region, radiculopathy of the
lumbar region, and neck pain. He reported improved radicular pain on the right side with a spinal
cord stimulator (SCS) implantation and recommended a revision of this device.
On February 9, 2018 OWCP requested a supplemental report from Dr. Smith.
March 22, 2018 Dr. Smith indicated that he would not provide a supplemental report.

On

On May 3, 2018 OWCP referred appellant for a second opinion evaluation to Dr. Steven J.
Valentino, a Board-certified orthopedist. It requested that he evaluate whether appellant was
unable to work on or after April 17, 2013 due to a worsening employment-related condition.
In a report dated May 22, 2018, Dr. Valentino reviewed the records provided to him and
provided results on physical examination. He diagnosed status post lumbar discectomy and status
post lumbar decompression with instrumented fusion. Dr. Valentino noted that appellant’s history
was significant for hypertension and diabetes. He reported findings of obesity, moderately
restricted cervical and thoracic range of motion with pain, and decreased sensation in the right leg
in a sock-like distribution. Dr. Valentino opined that the diagnosis of aggravation of adjacent
segment disease was not supported. He noted that degenerative changes above the surgical fusion
were mild and consistent with natural age-related degenerative changes opposed to accelerated

5

degenerative changes from the L4-S1 fusion surgery. Dr. Valentino further noted that the recent
EMG/NCV study revealed L4-S1 motor radiculopathy and polyneuropathy consistent with
appellant’s history of diabetes. He opined that he found no evidence to substantiate material
worsening of appellant’s employment-related low back condition. In support of his opinion,
Dr. Valentino noted diagnostic studies which confirmed a solid fusion. He opined that he found
no objective evidence to support a worsening of appellant’s employment-related medical
condition, without intervening injury, which resulted in new or increased work-related disability
on April 17, 2013, the day appellant stopped work. Dr. Valentino further opined that there was no
evidence in the case record, including diagnostic studies, which showed that the accepted
conditions had materially worsened to the point where appellant was not able to perform the
position of modified letter carrier as of April 17, 2013.
By decision dated June 19, 2018, OWCP denied modification of the November 5, 1997
LWEC determination. It found that the weight of the medical evidence rested with the opinion of
Dr. Valentino who determined that appellant’s work stoppage on and after April 17, 2013 was not
due to a worsening employment-related condition.
On June 26, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
December 11, 2018. By decision dated February 13, 2019, OWCP’s hearing representative
affirmed the June 19, 2018 decision.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.8 Generally, wages actually earned are the best measure of wage-earning capacity and, in
the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.9 A determination regarding
whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be
made only after an employee has worked in a given position for at least 60 days.10 Wage-earning
capacity may not be based on an odd-lot or make-shift position designed for an employee’s
particular needs, a temporary position when the position held at the time of injury was permanent,
or a position that is seasonal in an area where year-round employment is available.11

8

5 U.S.C. § 8115(a); see O.S., Docket No. 19-1149 (issued February 21, 2020); Mary Jo Colvert, 45 ECAB 575
(1994); Keith Hanselman, 42 ECAB 680 (1991).
9

See J.A., Docket No. 18-1586 (issued April 9, 2019).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
11
See M.S., Docket No. 19-0692 (issued November 18, 2019); James D. Champlain, 44 ECAB 438, 440-41 (1993);
Federal (FECA) Procedure Manual, id. at Chapter 2.815.5c (June 2013).

6

Compensation payments are based on the wage-earning capacity determination, and it remains
undisturbed until properly modified.12
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.13 OWCP’s procedures provide
that, “[i]f a formal [LWEC] 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 CE [claims
examiner] will need to evaluate the request according to the customary criteria for modifying a
formal [LWEC].”14 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify a November 5,
1997 LWEC determination.
With respect to the first basis for modifying an LWEC determination, appellant has not
demonstrated that the November 5, 1997 LWEC determination was erroneous.16 On January 10,
1997 he returned to work for the employing establishment as a modified letter carrier. The position
had the same work restrictions as those recommended by Dr. Rudin, an attending physician. It
was not an odd-lot or make-shift position and appellant worked in the position for more than 60
days prior to the issuance of the November 5, 1997 LWEC determination.17 Therefore, appellant
has not presented evidence showing that the November 5, 1997 LWEC determination was
erroneous when issued.
Further, the Board notes that appellant has alleged that his accepted conditions worsened
such that he became totally disabled from all work as a result of the accepted employment
conditions commencing April 17, 2013. Since OWCP found that appellant could perform the
duties of a modified letter carrier, the issue is whether there has been a material change in his workrelated condition that would render him unable to perform those prescribed duties.18 This is
12

See M.F., Docket No. 18-0323 (issued June 25, 2019).

13

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.812.9(a)
(June 2013); D.T., Docket No. 18-0174 (issued August 23, 2019); J.B., Docket No. 17-0817 (issued April 26, 2018);
Harley Sims, Jr., 56 ECAB 320 (2005).
15

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

16

See supra note 13.

17

See supra notes 10 and 11.

18

D.Q., Docket No. 17-1220 (issued May 18, 2018); Phillip S. Deering, 47 ECAB 692 (1996).

7

primarily a medical question.19 In reviewing the medical evidence of record, the Board finds that
appellant has failed to provide sufficient evidence to establish that a modification of the
November 5, 1997 LWEC determination is warranted under the basis of a worsening of his injuryrelated condition.20
The Board finds that the weight of the medical evidence rests with the well-rationalized
opinion of Dr. Valentino, OWCP’s referral physician.21 The Board has noted that in assessing
medical evidence the weight of such evidence is determined by its reliability, its probative value
and its convincing quality and the factors which enter in such an evaluation include the opportunity
for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge
of the facts and medical history, the care of the analysis manifested and the medical rationale
expressed in support of the physician’s opinion.22
In a May 22, 2018 report, Dr. Valentino diagnosed status post lumbar discectomy, status
post lumbar decompression with instrumented fusion. He opined that degenerative changes above
the fusion were mild and consistent with natural age-related degenerative changes opposed to
accelerated degenerative changes from L4-S1 fusion. Dr. Valentino further noted that an
EMG/NCV study revealed L4-S1 motor radiculopathy and polyneuropathy consistent with
appellant’s history of diabetes. He opined that there was no evidence in the case record which
showed that the accepted conditions had materially worsened to the point where appellant was not
able to perform the position of modified letter carrier as of April 17, 2013.
The Board has carefully reviewed Dr. Valentino’s May 22, 2018 report and notes that it
has such reliability, probative value, and convincing quality. Prior to reaching his conclusions,
Dr. Valentino extensively detailed appellant’s factual and medical history and reported the
findings of his examination of appellant. He had the benefit of a SOAF which delineated those
employment-related incidents and conditions accepted as compensable employment factors.
Moreover, Dr. Valentino provided a proper analysis of the factual and medical history and the
findings on examination and reached conclusions regarding appellant’s condition which
comported with this analysis.
Appellant submitted other medical evidence which he believed showed a change in his
injury-related condition sufficient to warrant modification of the November 5, 1997 LWEC
determination, but the Board finds that these reports are of limited probative value with respect to
19

R.S., Docket No. 15-1229 (issued October 2, 2015).

20

See R.L., Docket No. 15-1337 (issued January 27, 2016).

21

The Board notes that OWCP initially referred appellant for a second opinion examination with Dr. Smith, who
produced a report dated April 17, 2017. OWCP determined that another opinion was necessary as Dr. Smith did not
properly resolve the issue before him, specifically whether appellant’s accepted employment condition worsened in
April 2013, resulting in disability. See Ayanle A. Hashi, 56 ECAB 234 (2004) (when OWCP refers a claimant for a
second opinion evaluation and the report does not adequately address the relevant issues, OWCP should secure an
appropriate report on the relevant issues).
22
See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi
Lilly, 10 ECAB 560, 573 (1959).

8

this matter. He had submitted a June 3, 2013 report, Dr. Rudin diagnosed degenerative lumbar
disc and noted that appellant was unable to perform his current duties as a modified letter carrier.
In a report dated June 20, 2013, Dr. Rudin indicated that appellant had experienced a severe flare
up of symptoms of low back pain and lower extremity weakness on April 17, 2013. He opined
that appellant’s current condition was wholly causally related to his employment injury of
March 16, 1993 and that he was totally disabled from his position at the employing establishment.
In an August 5, 2013 addendum to his June 20, 2013 report, Dr. Rudin diagnosed lumbar sprain
and degeneration of lumbar or lumbosacral intervertebral disc. He noted that appellant was unable
to perform any work duties which would require him to lift, bend, twist, stretch, or to sit or stand
for longer than an hour at a time and opined that he was not capable of returning to these duties
due to the March 16, 1993 injury.
The Board finds that these reports are of limited probative value because Dr. Rudin did not
describe objective findings, accompanied by adequate medical rationale, to support a material
worsening of appellant’s accepted employment-related back conditions. The Board has held that
medical conclusions unsupported by facts and rationale are of limited probative value.23 Dr. Rudin
did not explain why appellant was unable to perform the duties of the modified letter carrier on
which the November 5, 1997 LWEC determination was based or explain why any inability to work
would be related to the accepted employment conditions. The Board finds Dr. Rudin’s opinion
insufficient to establish a material change in the injury-related conditions such that the
November 5, 1997 LWEC determination should be modified.24
In a September 9, 2014 report, Dr. Onyewu noted a history of appellant’s work injury on
March 16, 1993 and noted that on April 17, 2013 appellant stopped work due to a worsening of
his original employment injury. He opined, to a reasonable degree of medical probability, that the
treatment appellant was receiving at the spine center was causally related to the March 16, 1993
employment injury. Dr. Onyewu’s report does not establish, with medical rationale, that appellant
had experienced a worsening of the accepted medical conditions with no intervening injury
resulting in new or increased work-related disability.25 He did not explain why appellant’s medical
condition after April 2013 had worsened such that he could not perform the duties of the modified
letter carrier or explain how appellant’s condition/work ability was related to the accepted
employment conditions. This report is thus insufficient to warrant modification of the
November 5, 1997 LWEC determination.26 The case record also contains reports from Dr. Falco,
dated from December 5, 2016 through September 18, 2017, which noted treatment for chronic pain
syndrome, neck pain, and chronic intractable pain of the low back with radiculopathy. These
reports do not provide any rationalized medical opinion that appellant’s employment-related

23

C.B., Docket No. 08-2268 (issued May 22, 2009).

24

B.B., Docket No. 17-1757 (issued March 14, 2018).

25

See D.T., Docket No. 18-0174 (issued August 23, 2019).

26

Id.

9

medical condition had materially worsened to cause further disability. Therefore, they also are
insufficient to establish that the November 5, 1997 LWEC determination should be modified.27
The Board further notes that appellant has not alleged, as a basis for modification of the
November 5, 1997 LWEC determination, that he had been retrained or otherwise vocationally
rehabilitated.28
Counsel asserts on appeal that the reports of Dr. Rudin and Onyewu were sufficient to
establish that appellant was totally disabled beginning April 17, 2013. However, the Board finds,
for the reasons explained above, that the medical evidence of record fails to establish a material
worsening of the accepted employment conditions such that appellant was precluded from
performing his duties as a modified letter carrier during the claimed period. Thus, appellant has
not met his burden of proof to modify the November 5, 1997 LWEC determination.29
Appellant may request modification of an LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify a November 5,
1997 LWEC determination.

27

Id.

28

See supra note 13.

29

S.J., Docket No. 17-0449 (issued May 7, 2018).

10

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2020
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

11