United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER,
West Palm Beach, FL, Employer
__________________________________________

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Appearances:
Christina Berrios, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1270
Issued: February 1, 2016

Case Submitted on the Record

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

JURISDICTION
On May 13, 2014 appellant, through her representative, filed a timely application for
review from January 10 and February 4, 2014 merit decisions, and a March 5, 2014 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 met her burden of proof to establish intermittent
periods of work-related disability from July 24 through December 6, 2013; and (2) whether
OWCP properly refused to reopen her claim for further review of the merits as it was untimely
filed and failed to show clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 15, 2012 appellant, then a 42-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her bilateral thighs and upper
legs when the gate of a general purpose container came off as she closed it for dispatch. Her
regular work schedule was Thursday through Monday, from 10:00 p.m. to 6:30 a.m.
In a report dated March 19, 2012, Dr. Rena R. Amro, a Board-certified orthopedic
surgeon, diagnosed pain, bone contusion, and internal derangement of the left knee, and pain and
laceration of the right leg. Appellant told Dr. Amro that she pulled the front gate of a general
purpose container on the morning of March 15, 2012, when the door malfunctioned, fell, and hit
her left knee. The door weighed approximately 20 pounds and caused immediate pain and
swelling to her left knee. The gate latch hit appellant’s right knee and caused a laceration.2 In a
duty status report dated March 19, 2012, Dr. Amro noted that appellant was not advised to return
to work.
Appellant submitted reports from physical therapists dating from March 21, 2012 through
January 8, 2014.
In a report dated May 30, 2012, Dr. Amro noted that appellant still had pain in the front
of her left knee and that her ankle had improved with iontophoresis treatment. She noted that
appellant had returned to work with restrictions and that she was in the “stand by” room. To the
assessments previously listed, Dr. Amro added left knee chondromalacia of the patella and
removed internal derangement of the left knee. In a duty status report dated May 30, 2012, she
noted that appellant could return to work on April 18, 2012 on a part-time trial basis of no more
than four hours per day with no work restrictions. Dr. Amro renewed this restriction in a duty
status report dated June 6, 2012.
On May 31, 2012 the employing establishment offered appellant a limited-duty position
with physical requirements of standing, walking, and twisting for an average of four hours per
day and reaching above the shoulder for an average of two hours per day. Appellant accepted
this assignment on the same date.
In a report dated June 6, 2012, Dr. Amro noted that appellant had returned for a followup and wished to proceed with a knee injection for pain in the front of her left knee. On June 7,
2012 she noted that appellant had returned with increased pain in her left knee after the injection,
and that appellant had taken off work on June 6, 2012.
In a workers’ compensation status report and a duty status report dated June 6 and June 7,
2012, respectively, Dr. Amro noted that appellant could return to work with no restrictions, but
for only four hours per day. She stated that appellant had been out of work on June 6, 2012. In a
report dated June 13, 2012, Dr. Amro noted that appellant had increased pain in her left knee
after an injection the previous week. She stated that appellant had been out of work on June 8
through 10, 2012 due to her knee pain.

2

This history of injury was repeated in the follow-up reports of Dr. Amro up to August 23, 2012.

2

On June 7, 2012 OWCP accepted appellant’s claim for a left knee contusion and a sprain
of the left knee and leg.
On July 2, 2012 Dr. Amro submitted another duty status report advising appellant to
work four hours per day with no restrictions.
In the report dated July 2, 2012, Dr. Amro noted that appellant was unable to work on
June 28 and 29, 2012 due to pain in her left knee. Her findings on physical examination and
assessments remained the same as in the report of May 30, 2012, except that she added an
assessment of left knee partial medial meniscus tear. On July 10, 2012 Dr. Amro noted that
appellant had missed work on July 7 and 8, 2012 due to increased left knee pain. In a report
dated July 27, 2012, she stated that appellant was unable to work on July 20 and 21, 2012 due to
pain in her left knee. Dr. Amro also submitted a duty status report on this date continuing
appellant’s four-hour workday restriction.
On July 10, 2012 appellant claimed wage-loss compensation (Form CA-7) for leave
without pay, loss of night differential, and loss of Sunday premium for intermittent absences
between May 31 and June 15, 2012. A supervisor noted that appellant claimed 101.77 hours of
wage-loss compensation. In a time analysis form, appellant noted that she claimed 1.98 hours of
leave without pay on May 31, 2012; 4.01 hours on June 1, 2012; 3.97 hours on June 2, 2012;
3.88 hours on June 3, 2012; 3.97 hours on June 4, 2012; 3.98 hours on June 8, 2012; 4 hours on
June 14, 2012; and 3.98 hours on June 15, 2012 due to her medical restriction of working no
more than 4 hours per day. Appellant claimed eight hours of leave without pay on June 7 and
June 9 through 11, 2012 due to a cortisone injection leaving her unable to walk or bend her knee
on those dates.
In a separate Form CA-7 dated July 10, 2012, appellant claimed wage-loss compensation
for leave without pay, loss of night differential, and loss of Sunday premium for intermittent
absences between June 16 and 29, 2012. A supervisor noted that appellant was claiming 47.58
hours of wage-loss compensation. In a time analysis form, appellant noted that she claimed 3.47
hours of leave without pay on June 16, 2012; 3.95 hours on June 17, 2012; 3.99 hours on
June 18, 2012; 3.93 on June 21, 2012; 3.89 on June 22, 2012; 3.94 on June 23, 2012; 3.94 on
June 24, 2012; and 3.97 on June 28, 2012 due to her medical restriction of working no more than
4 hours per day. Appellant claimed eight hours of leave without pay on June 25 and 29, 2012
due to an inability to walk or bend her knee.
By letter dated July 25, 2012, OWCP informed appellant that she had provided
insufficient evidence to support her claim for compensation for the period May 31 through
June 29, 2012. It noted that the medical reports contained only a diagnosis of pain. OWCP
requested that appellant submit a complete and comprehensive narrative report, including a
history of injury and a thorough explanation of how her condition worsened such that she was no
longer able to perform her duties after she stopped work on May 31, 2012.
On July 31, 2012 appellant requested wage-loss compensation for leave without pay, loss
of night differential, and loss of Sunday premium for intermittent absences between June 30 and
July 27, 2012. A supervisor noted that appellant was claiming 79.54 hours of wage-loss
compensation. In a time analysis form, appellant noted that she claimed 3.97 hours of leave

3

without pay on July 5, 2012; 4 hours on July 6, 2012; 4 hours on July 7, 2012; 4 hours on July 8,
2012; 4 hours on July 12, 2012; 3.88 hours on July 13, 2012; 3.98 hours on July 14, 2012; 4
hours on July 15, 2012; 3.97 hours on July 16, 2012; 3.95 hours on July 20, 2012; 3.95 hours on
July 21, 2012; 3.95 hours on July 22, 2012; 3.93 hours on July 23, 2012; 3.97 hours on July 26,
2012; and 3.99 hours on July 27, 2012. Appellant claimed eight hours of leave without pay on
June 30 and July 1, 2012 due to an inability to walk or bend her knee.
By letter dated August 6, 2012, OWCP informed appellant that her claim for
compensation for the period June 30 through July 27, 2012 required more evidence to support
disability during that period. It noted that there were no time analysis forms of record and that
she had not submitted findings on examination from her physician justifying disability for the
claimed period.
In a duty status report dated August 10, 2012, Dr. Amro recommended that appellant
return to work full time with restrictions of no standing greater than 30 minutes continuously and
limited walking, and that she must wear braces. On August 14, 2012 she noted that appellant
had attempted to return to work for eight hours per day with restrictions. Dr. Amro noted that
appellant had pain and clicking in the left knee with trouble standing.
In a report dated August 31, 2012, Dr. Amro noted that appellant had to miss work on
August 24 through 26, 2012 due to swelling in the knee. In a workers’ compensation status
report of the same date, she recommended that appellant work full duty without restrictions.
By decision dated September 10, 2012, OWCP denied appellant’s claims for
compensation for wage loss between May 31 and July 27, 2012. It stated that she never
responded to its request for a time analysis form detailing the number of hours and days
requested. OWCP further stated that the medical evidence provided showed no evidence of
disability or that appellant’s physician had taken her off work.
On September 30, 2012 the employing establishment offered appellant a limited-duty
position with physical requirements of no standing greater than 30 minutes continuously, limited
walking, wearing a brace while working, and avoiding squatting, kneeling, and bending.
Appellant accepted this offer on the same date.
On November 2, 2012 OWCP issued an amended acceptance letter, which accepted the
conditions of bilateral knee contusion, knee and leg sprain, left ankle contusion and a right lower
leg laceration without complications.
In a duty status report dated December 19, 2012, Dr. Amro restated appellant’s
restrictions of August 10, 2012.
On April 17, 2013 OWCP updated appellant’s accepted conditions, adding internal
derangement of the left knee. It authorized left knee surgery on April 17, 2013.
In an operative report dated April 30, 2013, Dr. Amro described appellant’s left knee
surgery. Appellant’s postoperative diagnoses included left knee internal derangement, left knee
medial meniscal tear, left knee lateral meniscal tear, and a left knee osteochondral defect of the

4

medial femoral condyle. In a postsurgical report dated May 20, 2013, Dr. Amro noted that
appellant was still out of work.
On June 5, 2013 appellant claimed wage-loss compensation for intermittent leave without
pay, loss of night differential, and loss of Sunday premium for the period April 27 through
May 31, 2013.
By letter dated June 10, 2013, OWCP authorized payment for wage-loss compensation
for the period April 30 through May 31, 2013. On July 16, 2013 it denied appellant’s claim for
compensation for the period April 27 through 29, 2013.
Dr. Amro submitted duty status reports dated June 5 and July 3, 2013, stating that
appellant was not advised to return to work. In a duty status report dated July 31, 2013, she
recommended that appellant work no more than 4 hours per day, with restrictions of no more
than 30 minutes of continuous standing or walking, no bending or stooping, no more than 4
hours of twisting, no more than 2 hours or pulling or pushing, and wearing of a brace. In a report
dated August 1, 2013, Dr. Amro noted that appellant had increased pain and swelling in her left
knee after twisting it in an elevator, and that she was unable to return to work July 31, 2013. On
examination, she found tenderness to palpation over the patella and joint line tenderness.
Dr. Amro diagnosed appellant with contusions of the ankle and knee, pain in the limb and joint
involving the lower leg, an open wound of the hip and thigh without complication, sprain of the
knee and leg, unspecified injury to the knee, unspecified accident and unspecified internal
derangement of the knee.
On August 5, 2013 appellant requested wage-loss compensation for leave without pay,
loss of night differential, and loss of Sunday premium from June 1 through July 23, 2013. A
supervisor noted that appellant was claiming 304 hours of wage-loss compensation.
On August 8, 2013 the employing establishment offered appellant a limited-duty position
at 4 hours per day with physical requirements of standing and walking in no more than 30minute intervals, reaching above the shoulder for no more than 2 hours, and
twisting/pulling/pushing for no more than 4 hours. Appellant accepted on the same date.
In a report dated August 15, 2013, Dr. Amro noted that appellant did not go to work on
August 14, 2013 due to increased pain in her left knee. On examination, she noted a healed
incision with joint line tenderness. In a duty status report dated August 15, 2013, Dr. Amro
recommended work restrictions of no more than 4 hours of work per day, no more than 30
minute intervals of standing or walking, use of a brace, and avoiding kneeling/squatting/bending.
On August 28, 2013 she noted that appellant had been working four hours per day and that she
had been unable to work on August 24 and 25, 2013 due to increased knee pain. On
examination, Dr. Amro noted minimal swelling and effusion with joint line tenderness.
By letter dated September 13, 2013, received by OWCP on the same date, appellant’s
representative requested compensation for appellant’s wage losses from May 31 through July 27,
2012, which totaled 188.89 hours. She submitted an addendum to Dr. Amro’s reports, signed by
Dr. Amro, which stated, “The patient was unable to work more than four hours a day from
May 30, 2012 to August 10, 2013 due to an acute exacerbation of her knee symptoms. Appellant

5

had increased pain and swelling with buckling of the left knee. [The patient] was unable to
tolerate more than [four] hours of standing on the knee per workday. [She] subsequently
required surgery for the knee which indicated meniscal tears and a large osteochondral defect
which were not diagnosed on the previous [two] MRIs of the knee.”
In a duty status report dated September 18, 2013, Dr. Amro recommended work
restrictions of no more than six hours of work per day. Her recommendations were otherwise
unchanged from August 15, 2013. On October 8 and 10, 2013 Dr. Amro reiterated her
recommendations, and noted that appellant had been off work from October 7 through 9, 2013.
On October 10, 2013 she noted that appellant was unable to work on October 9, 2013 due to
acute exacerbation of her knee symptoms. On examination, Dr. Amro noted effusion and joint
line tenderness.
On October 11, 2013 the employing establishment offered appellant a limited-duty
position at six hours of work per day. The physical requirements included no stooping or
bending, no squatting or kneeling, and 30-minute limited intervals of standing/walking.
Appellant accepted the limited-duty position on the same date.
In a report dated October 28, 2013, Dr. Amro noted that appellant missed work from
October 25 through 27, 2013 due to increased pain in her left knee. On examination, she noted
joint line tenderness and minimal effusion. In a duty status report of the same date, Dr. Amro
reiterated the work restrictions of October 10, 2013. She continued to recommend these
restrictions on November 15, 2013.
On November 22, 2013 appellant claimed wage-loss compensation for leave without pay,
loss of night differential, and loss of Sunday premium, for continuous absence between July 24
and August 7, 2013. A supervisor noted that she requested 80 hours of wage-loss compensation.
By letter dated December 5, 2013, OWCP authorized payment for wage-loss
compensation for the period July 25 through 29, 2013. A review of appellant’s compensation
history reveals that this payment was made on December 27, 2013. It stated that it had not
received any evidence for the dates from July 31 through August 7, 2013, because she was
released to part-time work. OWCP requested that appellant submit additional evidence within 30
days.
On December 6, 2013 appellant claimed wage-loss compensation for intermittent leave
without pay, loss of night differential, and loss of Sunday premium from August 8 through
December 6, 2013. A supervisor indicated that she claimed 260.45 hours of wage-loss
compensation. In a time analysis form, appellant noted that she claimed four hours of leave
without pay per day from August 8 through September 16, 2013. She claimed two hours of
leave without pay per day from September 19 to December 6, 2013. Appellant claimed 8 hours
of leave without pay on August 25 and 26, 2013 due to a knee injection and on October 10,
October 26 through 28, and November 28, 2013 due to her physician’s medical restrictions.
In a duty status report dated December 18, 2013, Dr. Amro reiterated the work
restrictions of November 15, 2013.

6

By letter dated December 23, 2013, appellant’s representative noted that appellant did not
return to work in a four-hour per day capacity until August 8, 2013, and that she was entitled to
wage-loss compensation for the period from July 31 through August 7, 2013.
By letter dated January 2, 2014, OWCP authorized payment for wage-loss compensation
for four hours per day from August 8 through September 16, 2013. It authorized payment for
two hours per day from September 19 through December 6, 2013. A review of appellant’s
compensation history reveals that this payment was made on January 10, 2014. It stated that it
could not make payment for eight hours of leave without pay on August 25, 2013; six hours on
October 26 through 27 and November 28, 2013; and four hours on August 26, October 10, and
October 28, 2013. OWCP explained that appellant was claiming a full eight hours of leave
without pay each day when her limitations confirmed that she could work partial days. It
afforded her 30 days to submit additional evidence.
By decision dated January 10, 2014, OWCP denied appellant’s claim for compensation
for the period July 24 through August 7, 2013. It found that she had not submitted sufficient
evidence to explain why she was unable to work during this period.
By decision dated February 4, 2014, OWCP denied appellant’s claim for compensation
for the period August 8 through December 6, 2013. It found that she had not established
disability for eight hours of leave without pay on August 25, 2013; six hours on October 26
through 27 and November 28, 2013; and four hours on August 26, October 10 and 28, 2013.
By letter dated February 28, 2014, appellant’s representative clarified that her
September 13, 2013 letter was intended as a request for reconsideration of the September 10,
2012 denial letter.
By decision dated March 5, 2014, OWCP denied appellant’s request for reconsideration
as being untimely filed and failing to establish clear evidence of error. It noted that her letter did
not present evidence that was clear on its face that OWCP erred in its decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.3 For each period of
disability claimed, the employee has the burden of establishing that she was disabled for work as
a result of the accepted employment injury.4 Whether a particular injury causes an employee to
become disabled for work and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.5 The Board will
not require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

7

essentially allow an employee to self-certify his or her disability and entitlement to
compensation.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.7 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.9 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.10
OWCP regulations provide that, where an attending physician notifies the employing
establishment in writing that the employee can return to restricted duty, the employing
establishment must advise the employee in writing of any available positions which
accommodate his restrictions.11 The offer must include a description of the duties of the
position, the physical requirements of those duties and the date by which the employee is either
to return to work or notify the employing establishment of his decision to accept or refuse the job
offer. When the employing establishment sends a copy of the offer to the employee, it must
simultaneously send a copy of the offer to OWCP.12
If an employee can resume regular federal employment, he or she must do so.13
However, if he or she cannot return to the job held at the time of injury, but has recovered
enough to perform some type of work, the employee must seek work.14 Where the employer has
specific alternative positions available for partially disabled employees, the employer should
advise the employee in writing of the specific duties and physical requirements of those

6

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

See Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

11

20 C.F.R. § 10.507(b).

12

Id. at § 10.507(d).

13

Id. at § 10.515(a).

14

Id. at § 10.515(b).

8

positions.15 If there are no specific positions available, the employer should notify the employee
of accommodations it can make to accommodate his injury.16
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral knee contusions, sprain of the left knee
and leg, a left ankle contusion, an open wound of the hip and thigh without complications, and an
unspecified internal derangement of the left knee due to a work-related injury on
March 15, 2012.
Appellant claimed compensation for continuous temporary total disability between
July 24 and August 7, 2013. OWCP authorized a payment for the period July 25 through 29,
2013, but denied the remainder of this claim, explaining that she was released to part-time work
for the dates July 31 through August 7, 2013.
Dr. Amro submitted duty status reports dated June 5 and July 3, 2013, stating that
appellant was not advised to return to work. In a duty status report dated July 31, 2013, she
recommended that appellant work no more than 4 hours per day, with restrictions of no more
than 30 minutes of continuous standing or walking, no bending or stooping, no more than 4
hours of twisting, no more than 2 hours or pulling or pushing, and wearing of a brace.
Dr. Amro’s work restrictions were supported by findings on examination and directly addressed
the dates of appellant’s disability. On August 8, 2013 the employing establishment offered
appellant a limited-duty position at 4 hours per day with physical requirements of standing and
walking in no more than 30-minute intervals, reaching above the shoulder for no more than 2
hours, and twisting/pulling/pushing for no more than 4 hours. Appellant accepted the limitedduty position on the same date.
The Board finds that appellant has established that she was disabled from July 31 through
August 7, 2013 causally related to her March 15, 2013 employment injury.17 While her
attending physician released her to return to limited duty on July 31, 2013, the employing
establishment did not offer her a limited-duty position in writing as required by the implementing
regulations until August 8, 2013. Accordingly, neither appellant nor her physician were put on
notice of any specific alternative positions existing prior to that time. As there is no indication
that the employing establishment provided her with a written limited-duty job offer in
accordance with the applicable regulations, OWCP erred in finding that she had not established
entitlement to disability compensation from July 31 through August 7, 2013.18

15

Id. at § 10.505 (a). A similar written requirement is imposed with respect to offers of suitable work. See id. at
§ 10.506(c) and (d).
16

Id. at § 10.505(b).

17

With regard to the date of July 24, 2013, OWCP properly found that appellant had not established entitlement
to compensation as this date, a Wednesday, was not part of appellant’s regular work schedule of Thursday through
Monday from 10:00 p.m. through 6:30 a.m.
18

See B.S., Docket No. 11-1973 (issued May 7, 2012).

9

Appellant also claimed compensation for intermittent partial disability between August 8
and December 6, 2013 based on her work restrictions of working no more than four or six hours
per day between those dates. OWCP authorized payment for four hours of wage-loss
compensation per day on dates of August 8 through September 16, 2013; and for two hours of
wage-loss compensation per day on dates of September 19 through December 6, 2013. It stated
that it could not make payment for eight hours of leave without pay on August 25, 2013; six
hours on October 26 through 27 and November 28, 2013; and four hours on August 26,
October 10 and 28, 2013. OWCP explained that appellant was claiming a full eight hours of
leave without pay each day when her limitations confirmed that she could work partial days.
The Board finds that appellant has established that she was disabled on August 25, 2013
and from October 26 to 27, 2013, causally related to her March 15, 2013 employment injury. On
August 28, 2013 Dr. Amro noted that appellant had been working four hours per day and that she
had been unable to work on August 24 and 25, 2013. On examination, she noted minimal
swelling and effusion with joint line tenderness. Dr. Amro diagnosed appellant with contusions
of the ankle and knee, an open wound of the hip and thigh without complication, unspecified
injury to the knee, unspecified internal derangement of the knee, and sprain of the knee and leg.
In a report dated October 28, 2013, she acknowledged appellant’s absence from work for the
period October 25 through 27, 2013. On examination, Dr. Amro noted joint line tenderness and
minimal effusion. Thus, appellant had submitted medical evidence from her attending physician
supporting disability for the full workdays of August 25, 2013 and from October 26 to 27, 2013.
There is no medical evidence of record supporting disability for the remaining six hours on
November 28, 2013 and four hours on August 26, October 10 and 28, 2013. Hence, OWCP
properly denied wage-loss compensation due to disability for these dates.
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.
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.20 When review is sought for merit decisions issued on or after
August 29, 2011, timeliness is determined by the document receipt date of the reconsideration.
If the request for reconsideration is received more than one year after the last decision, the
request must be considered untimely.21

19

20 C.F.R. § 10.607(a).

20

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

10

OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.22 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.23
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.24 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.25 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.26 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.27 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.28
In order to establish clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.29
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that it abused its discretion in denying merit review
in the face of such evidence.30
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant failed to file a timely application for review of
its decision dated September 10, 2012. Its procedures provide that the one-year time limitation
22

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

23

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5(a) (October 2011). OWCP’s procedures further provide, “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate.”
24

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

25

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

26

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

27

See Leona N. Travis, supra note 25.

28

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

29

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

30

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

11

period for requesting reconsideration begins on the date of the original OWCP decision.31 A
right to reconsideration within one year also accompanies any subsequent merit decision on the
issues.32 As noted above, when review is sought for merit decisions issued on or after
August 29, 2011, timeliness is determined by the document receipt date of the reconsideration.
If the request for reconsideration is received more than one year after the last decision, the
request must be considered untimely.33
As OWCP received appellant’s request for
reconsideration more than one year after September 10, 2012, on September 13, 2013,
appellant’s request for reconsideration was untimely filed. Consequently, she must demonstrate
clear evidence of error by OWCP in denying her claim for compensation.34
The underlying claim for compensation was denied as appellant had not established, by
submission of medical evidence, that she was disabled from work for the period May 31 through
July 27, 2012. The September 10, 2012 decision stated that appellant never responded to its
request for a time analysis form detailing the number of hours and days requested, and that the
medical evidence provided showed no evidence of disability or that her physician had taken her
off work. The Board has duly considered the case record and finds that OWCP has not abused
its discretion in denying merit review of its September 10, 2012 decision.
On reconsideration, appellant submitted an addendum to Dr. Amro’s reports, which read
“The patient was unable to work more than four hours a day from May 30, 2012 to August 10,
2013 due to an acute exacerbation of her knee symptoms. She had increased pain and swelling
with buckling of the left knee. Appellant was unable to tolerate more than four hours of standing
on the knee per work day. This patient subsequently required surgery for the knee which
indicated meniscal tears and a large osteochondral defect which were not diagnosed on the
previous two MRIs of the knee.”
The Board has held that even a report such as a detailed, well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical
evidence requiring further development is not sufficient to establish clear evidence of error.35
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.36 This report fails to establish on its face that OWCP committed error in its
March 5, 2014 decision.
CONCLUSION
The Board finds that appellant met her burden of proof to establish work-related
disability on August 25 and October 26 and 27, 2013. The Board further finds that appellant
31

20 C.F.R. § 10.607(a).

32

Robert F. Stone, 57 ECAB 292, 295 (2005).

33

Supra note 5.

34

Supra note 7; see D.G., 59 ECAB 455, 458 (2008).

35

A.R., Docket No. 15-1598 (issued December 7, 2015).

36

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011).

12

failed to establish work-related disability for six hours on November 28, 2013 and four hours on
August 26, October 10 and 28, 2013. Finally, the Board also finds that OWCP properly refused
to reopen her claim for further review of the merits as it was untimely filed and failed to present
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 4 and January 10, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed, as modified. The March 5, 2014
decision of OWCP is set aside and the case remanded for further action consistent with this
decision.
Issued: February 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 20-1668
Issued: March 2, 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 September 28, 2020 appellant, through counsel, filed a timely appeal from an August 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the August 5, 2020 decision.
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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that OWCP should
expand the acceptance of her claim to include a low back injury, pelvic or hip condition, right lower
extremity pain, and a balance disorder causally related to an accepted July 23, 2019 employment
injury.
FACTUAL HISTORY
On July 23, 2019 appellant, then a 52-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right shin when she stepped into a hole
on a customer’s property while in the performance of duty. She stopped work on July 23, 2019. On
August 7, 2019 OWCP accepted the claim for right ankle sprain, a right lower extremity laceration,
and cellulitis of the right lower extremity.
In an August 8, 2019 report, Dr. Amy S. Beck, an osteopath Board-certified in internal
medicine, noted that the right anterior shin laceration was healing poorly, with serous sanguineous
fluid and mild surrounding reactive erythema. In a separate note of the same date, she held appellant
off work through August 29, 2019.
OWCP paid appellant wage-loss compensation on the supplemental rolls from September 7
through 13, 2019.
In September 18, 2019 reports, Dr. David S. German, a Board-certified plastic surgeon,
noted that appellant sustained a right lower leg injury with flap laceration on July 23, 2019. He
diagnosed a healed chronic ulcer of the right anterior lower leg and right lower leg discomfort with
activity. In a work status report of the same date, Dr. German returned appellant to light-duty work
with a restriction against operating vehicles.
Appellant returned to part-time, light-duty work on or about September 18, 2019 and again
stopped work on September 21, 2019.
In a September 23, 2019 prescription note, Dr. German held appellant off work through
October 3, 2019. In a report dated September 27, 2019, he returned her to light-duty work for four
hours a day with restrictions. Dr. German released appellant to full-duty work as of
October 14, 2019.4
Appellant resumed light-duty work on October 5, 2019. She stopped shortly afterward due
to right lower extremity pain. 5

4

Dr. German submitted periodic reports dated through November 6, 2019 noting appellant’s continuing lumbar and
right lower extremity symptoms.
5

OWCP received an October 5, 2019 hospital emergency department report signed by Nichole MacLellan, a family
nurse practitioner.

2

In a letter dated October 10, 2019, appellant requested that OWCP expand its acceptance of
her claim to include a balance problem, paraspinal muscle spasms, back pain, right hip pain,
coccygeal pain right lower extremity pain, right knee pain, and right-sided pelvic pain.
In an October 11, 2019 report, Dr. Mahesh Bagwe, a Board-certified orthopedic surgeon,
noted appellant’s complaints of back discomfort due to a slight limp. He opined that October 10,
2019 magnetic resonance imaging (MRI) scans of the right lower extremity demonstrated edema at
the anterior tibia wound site, and mild tendinitis along multiple tendons of the right ankle. 6
Dr. Bagwe recommended physical therapy to address muscle weakness in the right lower extremity.
In a development letter dated October 22, 2019, OWCP informed appellant of the additional
evidence needed to expand her claim for additional conditions causally related to the July 23, 2019
employment incident. It afforded her 30 days to submit the necessary evidence.
In response, appellant submitted an October 5, 2019 emergency department report by
Dr. John P. Fortney, Board-certified in emergency medicine, who diagnosed low back pain and
sequela of the accepted right lower extremity injury.
In an October 6, 2019 emergency department report, Dr. Steven Hilton, Board-certified in
emergency medicine, noted appellant’s complaints of back pain after lifting items and placing
weight on her right leg while at work. Appellant also experienced right-sided low back spasms
while pushing and pulling carts at work. Dr. Hilton opined that her back pain and spasms were due
to not bearing weight on her right leg for some time and continuing to favor it.
In an October 8, 2019 report, Dr. Beck diagnosed acute right-sided low back pain, neck pain,
weakness, and gait instability.
In an October 30, 2019 report, Dr. Bagwe noted slight weakness of right plantar flexion. He
recommended physical therapy to address deficits in balance and strength.
Appellant returned to work for four hours a day in early November 2019.
In a November 6, 2019 emergency department report, Dr. Thomas F. Wheeler, Boardcertified in emergency medicine, diagnosed lumbar spasm.
In reports dated November 8 and 13, 2019, Dr. Bagwe opined that appellant had right leg
weakness as she had not been physically active for months during recuperation from the July 23,
2019 employment injury. He recommended a work conditioning program. 7
In a December 12, 2019 development letter, OWCP again informed appellant of the type of
medical evidence needed to expand acceptance of her claim to include additional conditions causally

6

An October 10, 2019 MRI scan of the right lower extremity demonstrated subcutaneous edema in the region of a
skin wound anterior to the tibia, intramuscular edema within the tibialis anterior muscle and mild irregularity of its
myotendinous junction, and possible fluid collection along the anterior margin of the tibialis anterior muscle.
7

November 14, 2019 electromyography/nerve conduction velocity testing of the right lower extremity was within
normal limits.

3

related to the July 23, 2019 employment incident. It noted that there was no deadline for her to
request expansion of her claim.
In a December 13, 2019 report, Dr. Bagwe noted that appellant was able to balance easily
on her right lower extremity and had run half a mile on a treadmill without difficulty. He noted that
an MRI scan demonstrated an injury to the tibialis anterior musculature with soft tissue injury and
a partial tear of the tibialis anterior tendon. In reports through January 15, 2020, Dr. Bagwe
recommended that appellant gradually increase her work hours.
By decision dated January 29, 2020, OWCP denied expansion of the claim to include
additional diagnosed conditions of the back or right knee, finding that the medical evidence of record
did not diagnose a back or knee condition or support a causal relationship between any additional
conditions and the July 23, 2019 employment injury.
On February 4, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review held on June 5, 2020. She submitted
additional evidence.
In January 31, 2020 reports, Dr. Bagwe noted that appellant had scar tissue at the site of the
accepted injury that moved with flexion of the tibialis anterior muscle. He opined that she had
residual weakness in her tibialis anterior musculature that affected her balance. Dr. Bagwe
permanently restricted lifting to 60 pounds.
In an April 2, 2020 report, Dr. Bagwe opined that appellant had attained maximum medical
improvement (MMI) on January 31, 2020. He opined that she had sustained 15 percent permanent
impairment of the right lower extremity. Dr. Bagwe noted permanent work restrictions against
working more than eight hours a day and lifting more than 60 pounds. He opined that these
restrictions and permanent impairment were “the result of [appellant’s] loss of strength of the tibialis
anterior musculature due to a partial tendon and muscular laceration.” Appellant had chronic right
lower extremity weakness that precipitated “early fatigue and poor balance with isolated weight
bearing on [her] right lower extremity.”
By decision dated August 5, 2020, the hearing representative affirmed the prior decision.
She found that the medical evidence was insufficient to establish causal relationship between the
July 23, 2019 employment incident and right knee, pelvis, hip, low back, or balance conditions.
Additionally, appellant related her conditions to restricted duties performed following the accepted
injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.8

8

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.9 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.10
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence. 11 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. 12 The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include additional medical conditions as causally
related to an accepted July 23, 2019 employment injury.
Dr. Fortney indicated in his October 5, 2019 report that appellant had low back pain related
to sequela of the accepted right lower extremity injury. Dr. Hilton opined on October 6, 2019 that
appellant’s lumbar spasms were caused by not bearing weight on her right lower extremity during
recuperation and continuing to favor it. Both physicians provided a conclusory opinion and did not
explain, with rationale, their opinions as to how the accepted employment injury had caused or
aggravated additional diagnosed conditions. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was causally related to employment factors.14 Thus, their opinions are
of limited probative value and insufficient to establish expansion of the claim.
In an August 8, 2019 reports, Dr. Beck held appellant off work noting that her right anterior
shin laceration was healing poorly. She observed objective right leg weakness and acute right-sided
lumbar pain, as noted in her October 8, 2019 report. Dr. Wheeler diagnosed gait instability and
right lower extremity weakness in his November 6, 2019 report. However, these medical reports
9

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

10

Id.

11

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
12

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
13

See P.M., Docket No. 18-0287 (issued October 11, 2018).

14

D.S., Docket No. 21-0673 (issued October 10, 2021); A.L., Docket No. 18-1706 (issued May 20, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).

5

do not offer an opinion as to whether these diagnosed conditions were causally related to the
accepted employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 15 These reports are, therefore, of no probative value on the issue of causal
relationship and are insufficient to meet appellant’s burden of proof.
In an October 11, 2019 report, Dr. Bagwe noted appellant’s complaints of back discomfort
due to a slight limp. In an October 30, 2019 report, he noted slight weakness of right plantar flexion.
In November 8 and 13, 2019 reports, Dr. Bagwe attributed this weakness to physical inactivity
during recuperation from the July 23, 2019 employment injury. He opined in January 31, 2020
reports that residual weakness in the tibialis anterior musculature affected appellant’s balance.
Dr. Bagwe noted in an April 2, 2020 report that the accepted laceration caused weakness of the
tibialis anterior musculature that precipitated poor balance with isolated weight bearing on
appellant’s right lower extremity. Although Dr. Bagwe indicated that the accepted injury could
cause or contribute to the additional conditions, he did not specify the objective clinical findings
that established causation. The Board has held that a medical opinion must provide an explanation
of how the specific employment incident or employment factors physiologically caused or
aggravated the additional diagnosed conditions. 16 Therefore, the Board finds that Dr. Bagwe’s
reports are of limited probative value and insufficient to establish appellant’s burden of proof.
In September 18, 2019 reports, Dr. German noted that appellant sustained a right lower leg
injury with flap laceration on July 23, 2019 and diagnosed a healed chronic ulcer of the right anterior
lower leg and right lower leg discomfort with activity. In a work status report of the same date, he
returned appellant to light-duty work with a restriction against driving vehicles. In a September 23,
2019 prescription note, Dr. German held appellant off work through October 3, 2019. In a report
dated September 27, 2019, he returned her to light-duty work for four hours a day with restrictions,
releasing appellant to full-duty work as of October 14, 2019. Dr. German also submitted periodic
reports through November 6, 2019, noting appellant’s continuing lumbar and right lower extremity
symptoms. In none of those reports, however, did Dr. German provide an opinion regarding causal
relationship between appellant’s additional diagnosed conditions and the accepted July 23, 2019
employment injury. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship. 17 Thus, the Board finds that the reports of Drs. German are of no probative value on
the issue of causal relationship and are insufficient to meet appellant’s burden of proof.

15

S.S., Docket No. 21-0837 (issued November 23, 2021); see J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
16

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and a
diagnosed condition/disability).
17

Id.

6

Appellant also submitted diagnostic studies that addressed her right lower extremity.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the
issue of causal relationship. 18
As the medical evidence of record is insufficient to establish expansion of the acceptance of
the claim to include additional conditions causally related to or as a consequence of her accepted
employment injury, the Board finds that appellant has not met her 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 her burden of proof to establish that OWCP
should expand the acceptance of her claim to include a low back injury, pelvic or hip condition,
right lower extremity pain, and a balance disorder causally related to an accepted July 23, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 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

18

S.S., id.; C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued
September 10, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, SHARED SERVICE
CENTER, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1464
Issued: February 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the April 22, 2009 decision of the
Office of Workers’ Compensation Programs concerning a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of his
left leg, for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that on May 18, 2003 appellant, then a 52-year-old mail handler,
sustained a medial meniscus tear of his left knee due to pushing a heavy mail container. On
June 16, 2003 Dr. Stuart L. Gordon, an attending Board-certified orthopedic surgeon, performed
left medial and lateral meniscectomies with partial synovectomy of the patellofemoral joint. The
procedures were authorized by the Office. Appellant returned to his regular work on
July 25, 2003.

On July 1, 2008 appellant filed a claim alleging that he was entitled to a schedule award
due to his accepted employment injury. Despite a request from the Office for more medical
evidence, appellant did not submit a medical report assessing his permanent impairment at this
time. In an August 6, 2008 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to show that he was entitled to schedule award
compensation.
On February 12, 2009 Dr. Nicholas Diamond, an attending osteopath, indicated that
examination of appellant’s left knee revealed an effusion with peripatellar tenderness. There was
medial joint space tenderness as well as lateral joint line and joint space tenderness noted.
Patellofemoral compression produced pain but no crepitus. However, there was crepitus noted in
the medial and lateral joint compartments. Dr. Diamond indicated that there was difficulty
performing both kneeling and squatting, that valgus and varus stress testing produced pain and
that range of motion of the left knee joint was painful and restricted on flexion and extension.
Manual muscle strength testing revealed that the quadriceps was graded 4/5 on the left versus 5/5
on the right and that the gastrocnemius was graded 4/5 on the left versus 5/5 on the right.
Dr. Diamond indicated that quadriceps circumferencial measurements taken at 10 centimeters
above the patella revealed 44.5 centimeters on the right versus 42.5 centimeters on the left. The
gastrocnemius circumferencial measurements reveal 40 centimeters on the right versus 37
centimeters on the left. Dr. Diamond indicated that the work-related injury was responsible for
the impairments that he found.1 He determined that, under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001), appellant had a 12 percent
impairment due to 4/5 motor strength deficit in the left quadriceps upon knee flexion and a 17
percent impairment due to 4/5 motor strength deficit in the left gastrocnemius upon ankle plantar
flexion.2 Dr. Diamond also indicated that appellant was entitled to a three percent impairment
rating for pain under Chapter 18.3 of the A.M.A., Guides. He used the Combined Values Chart
to combine all his impairment ratings and concluded that the total impairment of appellant’s left
leg was 30 percent.
On April 12, 2009 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as an Office medical adviser, reviewed the assessment of Dr. Diamond and concluded that
appellant only had a 10 percent permanent impairment of his left leg. He stated that, from a
clinical standpoint, atrophy and weakness would be unexpected and inconsistent with a claimant
who had been working on a full-time basis as a postal clerk for over five years since his
June 2003 surgery. Dr. Berman stated that the arthritic condition of the left medial joint space
preexisted the work injury according to diagnostic testing of record. He discussed manual
muscle testing and the need for consistency of measurements and stated, “Therefore, based upon
the clinical picture, it would not be consistent with [the] claimant’s activity level that there
should be motor weakness and atrophy.” Dr. Berman noted that, based on Table 17-33 on page
546 of the A.M.A., Guides, appellant was entitled to a 10 percent impairment rating due to the
partial medial and lateral meniscectomies he underwent in June 2003. He noted that appellant
1

Dr. Diamond used the Combined Values Chart on page 604 of the A.M.A., Guides to conclude that the total
impairment of appellant’s left leg due to muscle weakness was 27 percent. His diagnoses included post-traumatic
internal derangement, medial and lateral meniscus tears and traumatic chondromalacia patella of the left knee.
2

Dr. Diamond referenced Table 17-8 on page 532 of the A.M.A., Guides.

2

did not have any crepitation in the left knee and therefore was not entitled to a five percent
impairment rating for arthritis under the footnote of Table 17-31 on page 544. Dr. Berman
indicated that Dr. Diamond’s pain-related impairment of three percent was not appropriate under
the present circumstances. He concluded that appellant only had a 10 percent permanent
impairment of his left leg.
In an April 22, 2009 decision, the Office granted appellant a schedule award for a 10
percent permanent impairment of his left leg. The award ran for 28.80 weeks from February 12
to September 1, 2009. The Office indicated that it based its schedule award on the opinion of
Dr. Berman. It noted that the opinion of Dr. Diamond was of limited probative value because he
did not explain how he applied the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 It is well established that proceedings
under the Act are not adversarial in nature and while the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the
evidence.6
Section 8123(a) of the Act provides in pertinent part: “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.”7 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.8
ANALYSIS
The Office accepted that on May 18, 2003 appellant sustained a meniscus tear of his left
knee. On April 22, 2009 it granted appellant a schedule award for a 10 percent permanent
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064, 1975 (1989).

3

impairment of his left leg. The Office indicated that it based its schedule award on the opinion
of Dr. Berman, a Board-certified orthopedic surgeon serving as an Office medical adviser.
The Board finds that there is an outstanding conflict in the medical evidence between
Dr. Berman and Dr. Diamond, an attending osteopath, regarding the extent of appellant’s left leg
impairment. Therefore, the case must be remanded to the Office for further development.
On February 12, 2009 Dr. Diamond indicated that appellant had difficulty performing
both kneeling and squatting, that valgus and varus stress testing produced pain and that range of
motion of the left knee joint was painful and restricted on flexion and extension. Manual muscle
strength testing revealed that the quadriceps was graded 4/5 on the left versus 5/5 on the right
and that the gastrocnemius was graded 4/5 on the left versus 5/5 on the right.9
Dr. Diamond determined that manual muscle testing showed that appellant had a 12
percent impairment due to 4/5 motor strength deficit in the left quadriceps upon knee flexion and
a 17 percent impairment due to 4/5 motor strength deficit in the left gastrocnemius upon ankle
plantar flexion.10 He used the Combined Values Chart on page 604 of the A.M.A., Guides to
conclude that the total impairment of appellant’s left leg due to muscle weakness was 27
percent.11
In contrast, Dr. Berman concluded on April 12, 2009 that appellant only had a 10 percent
permanent impairment of his left leg. While Dr. Diamond felt that appellant had a 27 percent
impairment due to weakness of two left leg muscles, Dr. Berman determined that appellant did
not have any impairment due to muscle weakness.12 He stated that, from a clinical standpoint,
weakness and atrophy would be unexpected and inconsistent with a claimant who had been
working on a full-time basis as a postal clerk for over five years since his June 2003 surgery.
Dr. Diamond found that appellant only had a 10 percent impairment due to the partial medial and
lateral meniscectomies he underwent in June 2003.13
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between Dr. Berman and Dr. Diamond regarding the
extent of appellant’s left leg impairment. On remand the Office should refer appellant, along
with the case file and the statement of accepted facts, to an appropriate specialist for an impartial
9

Dr. Diamond indicated that quadriceps circumferencial measurements taken at 10 centimeters above the patella
revealed 44.5 centimeters on the right versus 42.5 centimeters on the left. The gastrocnemius circumferencial
measurements reveal 40 centimeters on the right versus 37 centimeters on the left.
10

See A.M.A., Guides 532, Table 17-8.

11

Dr. Diamond also indicated that appellant was entitled to a three percent impairment rating for pain under
Chapter 18.3 of the A.M.A., Guides. The Board notes, however, that Dr. Diamond did not adequately explain how
this rating was justified by the detailed requirements of that chapter. See A.M.A., Guides 569-81, Chapter 18.3.
12

Dr. Berman indicated that appellant was not entitled to an impairment rating for arthritis. Dr. Diamond did not
provide a rating for arthritis. Dr. Berman indicated that appellant did not have any left knee crepitation, but
Dr. Diamond found crepitation in the medial and lateral joint compartments of the left knee.
13

See A.M.A., Guides 546, Table 17-33.

4

medical evaluation and report including a rationalized opinion on this matter. After such further
development as the Office deems necessary, the Office should issue an appropriate decision
regarding appellant’s entitlement to schedule awards compensation.
CONCLUSION
The Board finds that, due to a conflict in the medical evidence, the case is not in posture
for decision regarding whether appellant has more than a 10 percent permanent impairment of
his left leg, for which he received a schedule award. The case is remanded to the Office for
further development.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: February 5, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
GENERAL SERVICES ADMINISTRATION,
NATIONAL CAPITAL REGION-PUBLIC
BUILDING SERVICE, Kansas City, MO,
Employer
__________________________________________

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Appearances:
Brian P. McIlhargie, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2037
Issued: July 21, 2011

Case Submitted on the Record

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

JURISDICTION
On July 29, 2010 appellant, through counsel, filed a timely appeal from a February 2,
2010 decision of the Office of Workers’ Compensation Programs (OWCP) denying modification
of a March 30, 2009 loss of wage-earning capacity decision. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
April 12, 2009 based on its determination that the constructed position of dispatcher/maintenance
service represented his wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends the loss of wage-earning capacity determination was
issued in error as there is an unresolved conflict in the medical opinion evidence.
FACTUAL HISTORY
On July 13, 2005 appellant, then a 58-year-old pipefitter, filed a traumatic injury claim
alleging that on May 18, 2005 he hit the top of his head and sustained a small cut on an
overhang. On December 16, 2005 OWCP accepted the claim for displaced cervical
intervertebral disc without myelopathy and authorized C5-6 cervical fusion surgery, which
occurred on May 8, 2006. By letter dated August 7, 2007, appellant was placed on the periodic
rolls for temporary total disability.
On January 17 and May 21, 2007 Dr. Brian Y. Kim, a treating Board-certified physiatrist,
diagnosed chronic cervical pain, significant myofascial restrictions of the levator and trapezius
muscles, severe cervical stenosis, severe cervical disc herniation and a May 5, 2006 C5-6 fusion.
A physical examination revealed severely reduced cervical range of motion, myofascial tightness
throughout the bilateral scapular, upper thoracic and cervical regions and no upper extremity
focal atrophy. Dr. Kim concluded that appellant was totally disabled for work as a result of his
worsening symptoms. He advised appellant was to avoid sitting or standing more than 30
minutes and encouraged to move frequently.
In a May 17, 2007 report, Dr. Robert F. Draper, Jr., a second opinion Board-certified
orthopedic surgeon, diagnosed cervical spondylosis, degenerative disc disease at C5-6, cervical
disc herniation with cord impingement at C5-6 and delayed anterior cervical discectomy and
fusion at C5-6. He stated that appellant was unable to perform his regular duties of a plumber or
pipe fitter. Dr. Draper concluded, however, that appellant was not totally disabled and was
capable of working a sedentary job with restrictions including no lifting more than 30 pounds
and no overhead work, climbing and crawling. In an attached work capacity evaluation (Form
OWCP-5c), he listed appellant’s work restrictions of no reaching above the shoulder and
climbing and up to eight hours of pulling, pushing and lifting up to 30 pounds.
OWCP referred appellant for vocational rehabilitation services on August 7, 2007.
On January 16, 2008 Dr. Kim diagnosed chronic cervical pain, significant myofascial
restrictions of the levator and trapezius muscles, a May 5, 2006 C5-6 fusion, severe cervical disc
herniation, multi-level degenerative disc disease and severe cervical spinal stenosis with spine
card impingement. A physical examination revealed moderately reduced range of motion, no
upper extremity focal atrophy, myofascial tightness throughout the bilateral scapular, upper
thoracic and cervical regions. Dr. Kim reported a neurological examination revealed no
sustained hyperreflexia. As a result of appellant’s functional limitations and symptoms, he
reiterated that appellant remained totally disabled. Dr. Kim related that appellant needed to
change from a sitting to standing position every 15 to 20 minutes, and that he may need to lay
supine to relieve pressure on his back and pain for an extended period of time. In an attached
work capacity evaluation Form OWCP-5c, he diagnosed cervical disc herniation and indicated
that appellant was not capable of working due to his need to change posture/position every 15
minutes and need to frequently rest supine. Permanent restrictions included: 15 to 20 minutes of
sitting, standing and repetitive movements of the elbow and wrist; 30 minutes of walking;

2

minimal to no climbing, reaching above the shoulder and stooping/bending; no twisting; minimal
pushing and pulling of up to five pounds; rare lifting, squatting and kneeling; and 10 to 15
minute breaks every 15 to 20 minutes.
The vocational rehabilitation specialist identified the positions of dispatcher, maintenance
service and identification clerk as within appellant’s work restrictions and reasonably available
in sufficient numbers in his commuting area. In a letter dated May 29, 2008, OWCP informed
appellant that it would provide 90 days of placement services beginning that day to help him
obtain employment.
In a June 27, 2008 work capacity evaluation Form OWCP-5c, Dr. Kim advised that
appellant needed to rest in a supine position and to frequently change his posture/position. In
August 22 and October 3, 2008 reports, he noted similar physical findings as previously reported
and stated that appellant remained totally disabled. In an October 3, 2008 report, Dr. Kim
attributed appellant’s disability from working due to ongoing symptoms and severity of the
injury.
In a January 22, 2009 status report, Charles E. Terry, a rehabilitation specialist, noted that
vocational rehabilitation services were unsuccessful. He noted that the following positions were
suitable for appellant: dispatcher/maintenance service with wages of $483.00 a week; and
identification clerk, with wages of $384.00 a week. Both jobs were sedentary with no lifting
more than 10 pounds and no prolonged standing, walking, pushing, pulling, stooping, bending or
squatting. Mr. Terry recommended the positions as the physical requirements do not exceed
appellant’s medical restrictions. He considered the nature of appellant’s injury, his usual
employment, age, degree of physical impairment and qualifications as well as availability of
employment. Mr. Terry determined the position of dispatcher/maintenance service was
appropriate for appellant.
In a February 2, 2009 report, Dr. Kim diagnosed C5-6 cervical fusion, chronic cervical
pain, severe multi-level cervical disc herniations, severe multi-level cervical spinal stenosis and
myofascial cervical, thoracic and scapular muscles restrictions. Appellant continued to have
problems with more than 15 to 20 minutes of prolonged standing or sitting and required lying
down to relieve pressure on his spinal column. He also stated that appellant had restricted range
of motion as a result of the fusion surgery. Permanent restrictions included: no upper extremity
repetitive motion; no lifting more than five pounds; and changing positions every 15 to 20
minutes.
On February 26, 2009 OWCP proposed to reduce appellant’s compensation for wage
loss, noting that the medical and factual evidence established that he was no longer totally
disabled but had the capacity to earn wages as a dispatcher/maintenance service at the rate of
$483.00 a week.
Appellant disagreed with the proposal to reduce his compensation and noted that his
physician considered him totally disabled. In a February 2, 2009 work capacity evaluation Form
OWCP-5c, Dr. Kim diagnosed cervical disc herniation which indicated that appellant was not
capable of working an 8-hour day due to his need to change posture/position every 15 minutes
and need to frequently rest supine. Permanent restrictions included: 15 to 20 minutes of sitting,

3

standing and repetitive movements of the elbow and wrist; 30 minutes of walking; minimal to no
climbing, reaching above the shoulder and stooping/bending; no twisting; minimal pushing and
pulling of up to five pounds; rare lifting, squatting and kneeling; and 10 to 15-minute breaks
every 15 to 20 minutes.
By decision dated March 30, 2009, OWCP adjusted appellant’s compensation benefits
effective April 12, 2009 finding that the position of dispatcher/maintenance service represented
his wage-earning capacity. It noted that appellant’s weekly pay rate when injured was $996.14
and that the current pay rate for job and step when injured was $1,158.69. OWCP found that
appellant was capable of earning $483.00 a week, that the adjusted wage-earning capacity a
week was $418.38, that the percentage of new wage-earning capacity was 42 percent, that the
loss in wage-earning capacity amount a week was $577.76, leaving appellant with a
compensation rate of $433.32 a week or $462.75 a week when increased by applicable cost-ofliving adjustments. It calculated that this resulted in a new compensation rate every four weeks
of $1,851.00 beginning on April 12, 2009.
On December 17, 2009 appellant’s counsel requested reconsideration.
By decision dated February 2, 2010, OWCP denied modification of the March 30, 2009
loss of wage-earning capacity decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regards too the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances which may affect his wage-earning
capacity in his disabled condition.4
OWCP must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
2

T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 197 (2005); H.N., Docket No. 09-1628 (issued
August 19, 2010).
3

20 C.F.R. §§ 10.402, 10.403.

4

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 584
(1996).

4

Board has stated that the medical evidence upon which OWCP relies must provide a detailed
description of appellant’s condition.5 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.6
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles
(DOT) or otherwise available in the open market, that fit the employee’s capabilities with
regards to his physical limitations, education, age and prior experience. Once this selection is
made, a determination of wage rate and availability in the labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick7 and codified by regulations at 20 C.F.R. § 10.4038
should be applied. Subsection(d) of the regulations provides that the employee’s wage-earning
capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay
rate of the position selected by OWCP, by the current pay rate for the job held at the time of the
injury.9
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions.10 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.11
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s compensation effective
April 12, 2009 based on its determination that the position of dispatcher/maintenance service
represented his wage-earning capacity. OWCP improperly gave decisive weight to the opinion
of the second opinion physician, Dr. Draper. The Board finds an unresolved conflict in medical
opinion between appellant’s treating physician, Dr. Kim and of the second opinion physician,
Dr. Draper.
5

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

6

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

7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403.

9

Id. at § 10.403(d).

10

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

11

Id.

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Dr. Kim opined that appellant was totally disabled from working based on work
restrictions of 15 to 20 minutes of sitting, standing and repetitive movements of the elbow and
wrist; 30 minutes of walking; minimal to no climbing, reaching above the shoulder and
stooping/bending; no twisting; minimal pushing and pulling of up to five pounds; rare lifting,
squatting and kneeling; and 10- to 15-minute breaks every 15 to 20 minutes. Dr. Draper opined
that appellant was capable of working an eight-hour day with restrictions. He opined that
appellant was capable of working an eight-hour day provided there no reaching above the
shoulder and climbing and that appellant was capable of pulling, pushing and lifting up to 30
pounds for up to eight hours. Due to this conflict with regard to appellant’s restrictions and
whether he was totally disabled, OWCP should have referred appellant to an impartial medical
examiner.12 Because there remains an unresolved conflict in the medical opinion with regards to
appellant’s work restrictions and whether he is capable of working, the Board finds that OWCP
did not meet its burden of proof to issue a loss of wage-earning capacity decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation based on its determination that the constructed position of dispatcher/maintenance
represented his wage-earning capacity due to an unresolved conflict in medical opinion.

12

5 U.S.C. § 8123(a); see D.L., Docket No. 09-1549 (issued February 23, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2010 is reversed.
Issued: July 21, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kahului, HI, Employer
__________________________________________

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

Docket No. 16-0247
Issued: July 7, 2016

Case Submitted on the Record

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

JURISDICTION
On November 25, 2015 appellant, through counsel, filed a timely appeal from a July 7,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to modify an October 27, 2006
loss of wage-earning capacity (LWEC) determination.
On appeal counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a July 24, 2012 decision, the Board
set aside OWCP’s October 25, 2011 decision denying modification of an October 27, 2006
LWEC determination. OWCP had analyzed appellant’s claim for wage-loss compensation under
the customary criteria for modifying an LWEC determination without acknowledging FECA
Bulletin No. 09-05 or following the procedures outlined therein for claims, such as this, in which
a limited-duty position is withdrawn pursuant to the National Reassessment Process (NRP). The
Board remanded the case to OWCP with instructions to comply with the bulletin.3
Following further development, by decision dated December 11, 2012 OWCP denied
modification of the LWEC determination. After a hearing before an OWCP hearing
representative, on April 3, 2013 OWCP affirmed the December 11, 2012 denial of modification.
In a May 27, 2014 decision, the Board set aside OWCP’s April 3, 2013 decision which
found there was no basis for modification of the October 27, 2006 LWEC determination.4 The
Board noted that, despite the employing establishment’s assertion that the position offered in
2006 was a bona fide position, there was evidence that the position was both sheltered and oddlot. The July 7, 2006 job offer stated that the position was for incumbent only. The position was
one of miscellaneous customer service with administrative duties. The offer listed 21 such
duties, from assisting at the will-call window when needed, to assisting customers standing in
line to ensure the article is properly prepared for mailing, to rubber stamping nixie mail, to
answering telephones and handling routine inquiries, to filling vending machines with stamps.
The offer noted that, while all of these duties fell within appellant’s restrictions, it did not mean
that she would perform them all on a daily basis. The Board found that OWCP did not
adequately develop the evidence under FECA Bulletin No. 09-05 and had not complied with the
Board’s July 24, 2012 order as it remained unclear how appellant’s ability to perform the
miscellaneous and sundry duties of the July 7, 2006 job offer demonstrated that she has the
capacity, with her physical limitations, to earn the same wages ($46,331.00 annually) performing
the same or similar duties in the open labor market under FECA Bulletin No. 09-05. The Board
remanded the case to OWCP for further development of the evidence and a de novo decision on
whether the October 27, 2006 LWEC determination should be modified. The facts and
circumstances as presented in the prior appeals are incorporated herein by reference.

2

Docket No. 12-0316 (issued July 24, 2012).

3

On February 1, 2005 appellant, then a 33-year-old mail carrier, filed an occupational disease claim (Form CA-2)
alleging that her carpal tunnel syndrome, right rotator cuff syndrome, and neck and low back pain were the result of
performing her job duties. OWCP accepted her claim for right supraspinatus tendinitis, right carpal tunnel
syndrome and cervical, thoracic and lumbosacral subluxations. In an October 27, 2006 wage-earning capacity
decision, it determined that appellant’s earnings as rehabilitation clerk, effective July 22, 2006, fairly and reasonably
represented her wage-earning capacity. Appellant returned to limited-duty work in November 2010. However, the
employing establishment had no work available as of November 12, 2010 due to NRP. Appellant subsequently filed
a claim for compensation (Form CA-7) for wage loss for the period November 13, 2010 and continuing.
4

Docket No. 13-1342 (issued May 27, 2014).

2

Following the Board’s May 27, 2014 remand, on August 12, 2014 OWCP requested that
the employing establishment issue a statement advising whether the position in which appellant
was rated was a bona fide positon and to explain whether it was a regular position that would
have been performed by another employee. It also requested that the employing establishment
explain why the job offer indicated the position was “for incumbent only” and listed 21 duties.
In a September 25, 2014 statement, Lori Yamamoto, Health and Resources Management
Specialist, indicated that the duties identified in the rehabilitation clerk job offer were core duties
that were normally performed in a clerk position and should be considered a bona fide position.
She further indicated that the reason the position was identified as “for incumbent only” was for
union purposes.
In an August 12, 2014 report and accompanying work status report, Dr. Paula T. Lenny, a
physician Board-certified in occupational medicine, provided an assessment of stable right
rotator cuff syndrome, stable myofascial pain/cervical and lumbar strains, chronic mild
persisting, and stable carpal tunnel syndrome, very mild, rare symptoms. No changes to
appellant’s permanent restrictions were indicated. The permanent restrictions were noted as:
sit/walk/stand up to 2 hours intermittently; no repetitive reaching above shoulder level; lift, push,
pull up to 40 pounds; and stand and walk 6 hours per day with a 10-minute break every 2 hours.
By decision dated September 26, 2014, OWCP denied modification of its October 27,
2006 LWEC determination and, therefore, found no basis for payment of wage-loss benefits as
of November 13, 2010. It noted that there had been no material change in the nature and extent
of the injury-related condition and that the reason for the loss of work hours effective
November 13, 2010 was due to full-time work no longer being available as part of NRP.
On October 3, 2014 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on April 17, 2015.
In a February 17, 2015 report and accompanying work status report, Dr. Lenny again
provided an assessment of stable right rotator cuff syndrome, stable myofascial pain/cervical and
lumbar strains, and stable carpal tunnel syndrome. No changes to appellant’s permanent
restrictions were indicated.
By decision dated July 7, 2015, an OWCP hearing representative affirmed OWCP’s
September 26, 2014 decision denying modification of its October 27, 2006 LWEC
determination. She found that the job offer on which the LWEC was based was a valid job, not
odd-lot or makeshift. The employing establishment stated that the duties were core duties for a
clerk position and clarified that the position was indicated as for “incumbent only” so that it
would not be reposted after it was vacant within 28 days. The hearing representative further
found that there is no medical evidence to establish a material change in the accepted condition
or work limitations to consider a modification of the LWEC based on a medical basis.
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

3

wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP procedures at Chapter 2.1501 contain
provisions regarding the modification of a formal LWEC.6 The relevant part provides that a
formal LWEC will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has materially changed; or (3) the claimant has been vocationally
rehabilitation.7 The Board has long recognized these provisions.8
Chapter 2.1501 further provides that FECA Bulletin No. 09-05 should be consulted if the
circumstances in the case indicate that the position in question may have been withdrawn (in
whole or in part) as a result of NRP.9 FECA Bulletin No. 09-05 outlines the procedures OWCP
should follow when limited-duty positions are withdrawn pursuant to NRP. If OWCP has issued
a formal wage-earning capacity determination, it must develop the evidence to determine
whether a modification of that determination is appropriate.10 FECA Transmittal No. 13-09
provides information regarding updating OWCP Procedure Manual Chapters 2.814 to 2.816 and
2.1500 to 2.1501.11 OWCP procedures further provide that the party seeking modification of a
formal LWEC decision has the burden to prove that one of these criteria has been met.12
OWCP procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal, or permanent and the
tour of duty, that is, whether it is part time or full time.13 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.14
ANALYSIS
As the Board noted in its prior appeals, FECA Bulletin No. 09-05 requires OWCP to
develop the evidence to determine whether a modification of a wage-earning capacity
determination is appropriate.
5

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
7

Id. at Chapter 2.1501.3(a).

8

See Sue A. Sedgwick, 45 ECAB 211 (1993); D.M, 59 ECAB 164 (2007); see also A.T., Docket No. 14-0082
(July 15, 2014).
9

Supra note 6 at Chapter 2.1501.1.

10

FECA Bulletin No. 09-05 (issued August 18, 2009).

11

FECA Transmittal No. 13-09 (issued June 4, 2013).

12

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1501.4 (June 2013).

13

Id. at Chapter 2.815.5.c(1).

14

Id. at Chapter 2.815.5.c(2)(a).

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In accordance with the Board’s second remand order, OWCP requested that the
employing establishment provide a statement as to whether the rehabilitation clerk job offer was
an actual bona fide position at the time of the rating and to explain why the job offer indicated
the position was “for incumbent only.” In a September 25, 2014 statement, Ms. Yamamoto,
Health and Resources Management Specialist, indicated that the duties identified in the
rehabilitation clerk job offer were core duties that were normally performed in a clerk position.
The Board has carefully reviewed the statements of the employing establishment, the
facts of the case, and the circumstances surrounding the original LWEC determination and finds
that the July 7, 2006 job offer was not makeshift in nature. The requirements of a bona fide
position have been clearly established and decided by this Board pursuant to A.J. and its
progeny15 and these criteria have been met in this case. The offered rehabilitation clerk position
was not temporary as appellant was performing the duties of the modified job offer at the time of
the LWEC determination and had been performing the duties of the modified job offer for at
least 60 days prior to the wage-earning capacity determination.16 While the labor distribution
code indicated that the position had miscellaneous customer service and administrative duties,
the employing establishment clarified that it was in reality a clerk position as the rehabilitation
clerk job offer contained the core duties that were normally performed in a clerk position. The
offered job also had a position description, a set work schedule, and specific duties appropriate to
the positon.17 Furthermore, the physical restrictions for the rehabilitation clerk position were
reasonable and appellant worked in this capacity for almost four years until full-time work was
no longer available as part of NRP. Although the offered rehabilitation clerk position noted that
it was for “incumbent” only, the employing establishment explained that this was for “union
purposes” and that if the job was vacant for 28 days it would have to be reevaluated prior to
being posted automatically. Accordingly, the rehabilitation clerk job offer was not makeshift in
nature.18
There is no evidence that appellant’s medical condition has changed such that she could
no longer perform the duties of her wage-earning capacity positon, nor does she argue that she
has been retrained or vocationally rehabilitated.
On appeal counsel contends that OWCP’s decision is contrary to fact and law, but fails to
provide any arguments or evidence to support such assertion.

15

Compare A.J., Docket No. 10-0619 (issued June 29, 2010) (wherein the Board has discussed several factors
that may support a finding that the offered position was makeshift in nature. These factors include: (1) the positon
did not have an official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated that the claimant would not be able to adequately function in the
position nor secure a position in the community at large with such limited duties; (3) the claimant did not perform
any meaningful tasks in the positon; and (4) the job appeared by its terms to be temporary in nature).
16

See R.S., Docket No. 14-1426 (issued April 20, 2015).

17

While the July 7, 2006 job offer did not list appellant’s duty hours, appellant apparently worked full time in
such position until NRP in 2010 rendered the job unavailable.
18

See P.B., Docket No. 14-1049 (issued February 24, 2015).

5

Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has failed to establish modification of the October 27,
2006 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6