United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Odessa, FL, Employer
__________________________________________

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

Docket No. 10-2234
Issued: August 5, 2011

Case Submitted on the Record

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

JURISDICTION
On September 1, 2010 appellant, through counsel, filed a timely appeal from a June 11,
2010 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury to her back and
shoulder on November 14, 2009.
FACTUAL HISTORY
On November 18, 2009 appellant, then a 46-year-old rural carrier associate, filed a
traumatic injury claim alleging that on November 14, 2009 she felt electric shocks go into her

1

5 U.S.C. § 8101 et seq.

back and shoulder while pulling mail on light duty. She stopped work that day and has not
returned.
A November 16, 2009 disability note from Dr. Rudy Panganiban, Jr., a treating Boardcertified physiatrist, found that appellant was totally disabled and recommended a functional
capacity evaluation.
OWCP received an unsigned November 23, 2009 report listing Robert LaChar, a
physician’s assistant and Dr. Panganiban. It provided a diagnosis of myofascial pain syndrome
with exacerbations due to an employment injury and exacerbation of lumbar and cervical disc
disease following the injury. A history of injury noted cervical degenerative disc disease due to
an accident. Appellant related that she recently had an exacerbation of pain due to the lifting of a
heavy mailbag. Physical findings included tenderness on palpation of the lumbar paraspinous
musculature, a mildly antalgic gait and symmetrical and intact muscle strength.
In a November 23, 2009 duty status report (Form CA-17), Dr. Panganiban noted that the
November 14, 2009 injury with a notation “patient off work.” He obtained a magnetic resonance
imaging (MRI) scan and diagnosed lumbar strain/sprain with clinical findings of myofascial pain
and sprain/strain. Dr. Panganiban described the injury as occurring while appellant was working
light duty helping pull mail down when she experienced shooting electrical pain in the neck,
shoulders and back. He checked “yes” to the question of whether the condition was employment
related.
In a November 24, 2009 MRI scan, Dr. Eve Mary Jehle, an examining Board-certified
radiologist, compared the test results with a prior November 5, 2008 scan. The two scans made
similar findings for T12-L1; no significant abnormalities at L3-L4; a very mild disc bulge of
questionable significance at L2-L3; very mild bilateral neural foraminal narrowing at L4-L5 and
moderate disc bulge and moderate bilateral neural foraminal narrowing at L5-L6. Dr. Jehle
noted that the prior MRI scan showed a right-sided annular tear at L5-S1 while the current MRI
scan showed a small tear on the left side, which had not been identified in the prior scan.
On December 18, 2009 OWCP received a November 16, 2009 report from
Dr. Panganiban, who diagnosed chronic lower back pain. A physical examination revealed intact
motor and sensory at C5-T1 and L2-S1 and symmetrical bilateral upper and lower extremities.
By decision dated December 31, 2009, OWCP denied appellant’s claim on the grounds
that she had not established that she had sustained an injury. It accepted the November 14, 2009
incident but found the medical evidence inadequate on the issue of causal relation.
In a January 7, 2010 letter, appellant’s counsel requested a telephonic hearing before
OWCP’s hearing representative, which was held on April 1, 2010.
In a January 22, 2010 report, Dr. Panganiban stated that appellant sustained bilateral
upper and lower extremity dysesthesia/paresthesia due to slipping and falling while removing
newspapers from a pallet. He reported that possible sensory neuropathy based on diagnostic
studies. Dr. Panganiban noted that appellant complained of pain in the L4-5, L5-S1 lumbar
paravertebral region.

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In an April 10, 2010 disability note, Dr. Peter Candelora, a treating Board-certified
orthopedic surgeon, checked the box that appellant was off work until her next appointment.
By decision dated June 11, 2010, OWCP’s hearing representative affirmed the denial of
her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements.8 The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.9
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
2

Id.

3

Bonnie A. Contreras, 57 ECAB 364 (2006); C.S., Docket No. 08-1585 (issued March 3, 2009).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009).

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 3; C.B., Docket No. 08-1583 (issued
December 9, 2008).
8

Barbara R. Middleton, 56 ECAB 634 (2005); C.S., supra note 3.

9

H.G., 59 ECAB 552 (2008); Betty J. Smith, 54 ECAB 174 (2002).

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specific employment incident or to specific conditions of employment.10 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14
ANALYSIS
OWCP accepted that an employment incident occurred as alleged on November 14, 2009,
when appellant was pulling mail and felt pain in her upper back and shoulder area. The issue is
whether she submitted sufficient medical evidence to establish that the employment incident
caused an injury. The Board finds that the medical evidence does not provide a rationalized
medical opinion addressing how the work-related incident caused or aggravated appellant’s
shoulder or back conditions or disability caused for work. Therefore, appellant failed to meet her
burden of proof.
In support of her claim, appellant submitted an MRI scan, disability slip, duty status
report and medical reports from Drs. Panganiban and Candelora. The disability slips from
Drs. Panganiban and Candelora and MRI scan are insufficient to establish her claim as the issue
of causal relationship was not addressed in the reports.15
In reports dated November 16, 2009 to January 22, 2010, Dr. Panganiban diagnosed
chronic low back pain with bilateral upper and lower extremity dysesthesia/paresthesia.
However, he offered no opinion explaining how the diagnosed conditions were related to the
employment incident. Medical evidence that does not offer any opinion regarding the cause of

10

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997); P.K., Docket No. 08-2551 (issued June 2, 2009).

12

A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006); Y.J., Docket No. 08-1167 (issued
October 7, 2008).
13

Michael S. Mina, 57 ECAB 379 (2006); J.J., Docket No. 09-27 (issued February 10, 2009).

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

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an employee’s condition is of limited probative value on the issue of causal relationship.16 The
opinion of a physician supporting causal relationship must rest on a complete factual and medical
background supported by affirmative evidence, address the specific factual and medical evidence
of record and provide medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.17 Moreover,
Dr. Panganiban referenced a prior employment injury in his January 22, 2010 report. Therefore,
his medical reports are insufficient to meet appellant’s burden of proof.
In a November 23, 2009 duty status report, Dr. Panganiban indicated by check mark that
appellant’s lumbar strain/sprain, myofascial pain and sprain/strain were work related. His report
lacked a clear explanation on the causal connection of her back condition to her lifting boxes of
copier paper on June 23, 2009 and failed to support such explanation with medical evidence.
Medical reports not containing adequate rationale on causal relationship are of diminished
probative value and are insufficient to meet an employee’s burden of proof.18
An unsigned November 23, 2009 report containing signature blocks for Mr. LaChar, a
physician’s assistant and Dr. Panganiban is of no probative value, as it is not clear whether a
physician under FECA prepared the report. It is well established that medical evidence lacking
proper identification is of no probative medical value.19
An award of compensation may not be based on surmise, conjecture or speculation.20
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.21 The fact that a condition manifests itself or worsens during a
period of employment22 or that work activities produce symptoms revelatory of an underlying
condition23 does not raise an inference of causal relationship between a claimed condition and an
employment incident.

16

Jaja K. Asaramo, id.; C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued
May 6, 2009).
17

See Roy L. Humphrey, 57 ECAB 238 (2005); Lee R. Haywood, 48 ECAB 145 (1996).

18

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

19

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).
20

D.D., 57 ECAB 734 (2006); Paul E. Thams, 56 ECAB 503 (2005); E.J., Docket No. 09-1481 (issued
February 19, 2010).
21

Sandra D. Pruitt, 57 ECAB 126 (2005); W.D., Docket No. 09-658 (issued October 22, 2009).

22

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393 (1960).

23

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155 (1960).

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Because appellant has not submitted competent medical opinion evidence containing a
reasoned discussion of causal relationship, one that soundly explains how the accepted
employment incident caused or aggravated a firmly diagnosed medical condition, the Board
finds that appellant has not established the essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established she sustained an injury in the
performance of duty on November 14, 2009, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 11, 2010 is affirmed.
Issued: August 5, 2011
Washington, DC

Richard J. Daschbach, Chief 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.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1158
Issued: October 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 19, 2006 appellant filed a timely appeal of the March 27, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of a March 28, 2000
wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a basis for modification of the Office’s
March 28, 2000 wage-earning capacity determination.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, a 53-year-old former letter
carrier, has an accepted claim for exacerbation of os odontoideum (spina bifida) with instability
at C1-2. The accepted condition arose on or about July 10, 1990. Appellant has undergone three
Office-approved surgical procedures, the most recent of which occurred March 3, 1998.
Although a psychiatric condition has not been accepted as employment related, the Office

authorized treatment for a major depressive episode that followed appellant’s third cervical
fusion in March 1998. Approximately six months after her last surgery, appellant returned to
work in a part-time, limited-duty capacity. On March 28, 2000 the Office found that her actual
earnings as a part-time, modified clerk effective October 23, 1998, fairly and reasonably
represented her wage-earning capacity. Accordingly, appellant’s wage-loss compensation was
adjusted to reflect her part-time weekly wages of $373.20.
Appellant stopped working on June 9, 2003 and filed a claim for recurrence of disability
on September 30, 2003. She attributed her disability to a combination of medical conditions
including, bilateral carpal tunnel syndrome, serious emotional stress and extreme neck and head
pain. Appellant explained that she was having severe problems with carpal tunnel syndrome and
the employing establishment was preparing to assign her new job duties so her doctor took her
off work completely.
Approximately six months prior to appellant’s June 9, 2003 work stoppage, the
employing establishment advised her that the modified clerk position would be phased out in the
near future. Appellant was part of a two-man operation and it was anticipated that her supervisor
would retire later in the year and that his position would be abolished. In the months that
followed, she expressed her displeasure over being denied the level of seniority that she
previously attained in her date-of-injury position as a letter carrier. Appellant indicated that the
prospect of being reassigned to a lower-paying position as either a mail handler or janitor was
beyond her physical capabilities. A few days prior to her work stoppage, appellant’s supervisor
underwent bypass surgery. Between June 5 and 6, 2005, appellant exchanged numerous e-mails
with Donna Kay, an employing establishment injury compensation specialist. She expressed
frustration about the lack of available work and not knowing when and where she would be
reassigned. On Friday, June 6, 2003, appellant advised Ms. Kay that she would not be reporting
for work the following Monday, June 9, 2003, because she was completely depleted of emotional
strength.
In a May 30, 2003 report, Dr. Rey Ximenes, a Board-certified anesthesiologist
specializing in pain management, advised that he had been treating appellant for chronic cervical
radiculopathy with associated myofascial pain. He described appellant’s condition as stable, but
also noted that the condition caused considerable dysfunction and interfered with appellant’s
work. Dr. Ximenes stated that appellant seemed able to carry on with her part-time job, and in
fact, had been doing so for some time. However, because of appellant’s injury and her part-time
status, it appeared that there had been some emotional trauma, which he identified as mild
depression and post-traumatic stress disorder (PTSD). Dr. Ximenes indicated that these
conditions appeared to be related to appellant’s employment injury. He also stated that the
current situation made it difficult for appellant to remain at work.
In a June 8, 2003 letter, Marilyn M. Bradford, appellant’s therapist, stated that she had
been seeing appellant for weekly psychotherapy since January 24, 1995.1 She noted that prior to
appellant’s work injury there was no history of mental difficulties. But since then, appellant
suffered from depression, anxiety and PTSD. Ms. Bradford stated that appellant’s mental
1

Ms. Bradford is a licensed master social worker-advanced clinical practitioner (LMSW-ACP).

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difficulties were the result of her injury, the subsequent repeated injury-related surgeries, and
their ramifications for appellant in the workplace and beyond. She indicated that she was
gravely concerned by a recent escalation of appellant’s symptoms. Ms. Bradford advised that
appellant should no longer work for the employing establishment, and to continue to do so would
cause her serious emotional and mental harm.
In August 2003, the Office authorized a change of treating physicians. Dr. Rebecca J.
McKown, a general practitioner, first examined appellant on September 26, 2003. In a report of
that date, she diagnosed bilateral carpal tunnel syndrome, sequelae of stress fracture at C2 and
occipital neuralgia. Dr. McKown attributed the diagnosed conditions to appellant’s employment
and found her totally disabled as of June 9, 2003. In a November 5, 2003 report, she referenced
the recent reports from Ms. Bradford and Dr. Ximenes and noted that her findings were
consistent with Dr. Ximenes. Dr. McKown explained that appellant experienced radiculopathy
consistent with her injury, which resulted in cervical neck pain and bilateral arm weakness and
pain. She also noted that appellant displayed the diagnostic symptoms of PTSD and depression.
Dr. McKown further indicated that appellant should not return to work at the employing
establishment. According to her, appellant was debilitated to a degree that justified placing her
on permanent disability.
Dr. McKown referred appellant for a consultation with Dr. David C. Savage, a Boardcertified orthopedic surgeon. In a March 29, 2004 report, Dr. Savage noted complaints of
bilateral hand and elbow pain, left greater than right. He addressed appellant’s recent
electromyography (EMG), which demonstrated some evidence of carpal tunnel syndrome in the
left hand.2 Dr. Savage diagnosed left hand arthralgia, left upper extremity radicular pain, left
hand carpal tunnel syndrome, and elbow pain left, greater than right. He also noted appellant’s
history of cervical spine pathology with multiple surgeries. Dr. Savage administered a cortisone
injection into the left carpal tunnel and recommended a cervical magnetic resonance imaging
scan. He would later attribute appellant’s carpal tunnel syndrome to her “repetitive motion” job
duties, but not her previously accepted cervical injury.
Dr. George Pazdral, a Board-certified psychiatrist, saw appellant on April 23, 2004 and
diagnosed PTSD, which he attributed to “multiple sequelae” of her employment injury.
Dr. Pazdral indicated that appellant’s psychiatric status alone rendered her totally disabled.
In an August 2, 2004 report, Dr. William C. Nemeth, a Board-certified orthopedic
surgeon, indicated that appellant continued to suffer significant physical restrictions, chronic
pain and significant PTSD as a result of her employment injury. According to Dr. Nemeth,
appellant’s symptoms were exacerbated with the institution of new job demands. Appellant had
been doing quite well until the employing establishment decided to change her job duties.
Dr. Nemeth further noted that her treating physicians advised her not to work because the
employing establishment had been unable to satisfactorily accommodate her work restrictions.
He stated that the employing establishment had created a hostile work environment by placing
appellant in roles that flagrantly defied her medical restrictions and limitations.

2

Appellant underwent electrodiagnostic testing on February 9, 2004.

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On September 15, 2004 Dr. McKown advised that appellant would require bilateral
carpal tunnel releases. She explained that the change in appellant’s body mechanics from her
neck fracture, which included limited neck and shoulder mobility, caused appellant to utilize her
upper body differently, including the increased use of both wrists. As such, the initial neck
injury was an exacerbating factor in appellant’s current carpal tunnel injury. Dr. McKown
encouraged the Office to assist appellant in obtaining the recommended surgery.
In the prior appeal, the Office had denied appellant’s September 30, 2003 claim for
recurrence of disability. However, the Office continued to pay her wage-loss compensation for
partial disability in accordance with the March 28, 2000 loss of wage-earning capacity
determination. By order dated August 8, 2005, the Board found that the Office applied an
incorrect standard in reviewing appellant’s claim. Instead of adjudicating the matter as a
recurrence of disability, the Office should have considered appellant’s September 30, 2003 filing
as a request for modification of the March 28, 2000 wage-earning capacity determination.
Accordingly, the Board set aside the Office’s November 8, 2004 decision and remanded the case
for a determination of whether appellant established a basis for modification of the March 28,
2000 decision.3
In a January 16, 2005 statement, appellant indicated that concerns about her upcoming
reassignment and frustration from having to seek out work following her supervisors June 3,
2003 surgery were factors leading to her June 9, 2003 work stoppage.
In a January 17, 2005 report, Ms. Bradford attributed appellant’s PTSD to “ongoing and
chronic stress she experienced while working at the [employing establishment].” Ms. Bradford
noted that appellant described herself as feeling “paranoid” about what the employing
establishment would do to her next. The psychological healing process was reportedly stymied
because of what Ms. Bradford described as appellant being “continually retraumatized” by the
employing establishment. Ms. Bradford believed there was a strong possibility that appellant
would be pushed to death if she continued working for the employing establishment. She noted
that she had advised appellant not to return to the employing establishment for any reason.
In an October 26, 2005 report, Dr. McKown indicated that as of June 6, 2003 appellant
was totally and permanently disabled due to her ongoing PTSD, neck fracture, occipital
neuralgia, carpal tunnel syndrome and lateral epicondylitis.
By decision dated March 27, 2006, the Office denied modification of the March 28, 2000
wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4 Once the wage-earning capacity of an injured
3

Docket No. 05-591 (issued August 8, 2005). The August 8, 2005 order is incorporated herein by reference.

4

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

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employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous.5
The burden of proof is on the party seeking modification of the wage-earning capacity
determination.6
ANALYSIS
Appellant did not allege that she was retrained or otherwise vocationally rehabilitated or
that the original March 28, 2000 wage-earning capacity determination was erroneous.
Appellant’s claim is that, beginning June 9, 2003, she was unable to continue working. For
appellant to prevail she must demonstrate a material change in the nature and extent of the
injury-related condition, accepted for os odontoideum (spina bifida) with instability at C1-2 and
the three related surgeries.7
The Board finds that the medical evidence does not establish that appellant’s accepted
condition materially changed such that it precluded her from performing the part-time, modifiedclerk position she held at the time of her June 9, 2003 work stoppage. A week prior to her work
stoppage, Dr. Ximenes described appellant’s cervical condition as stable. He noted that
appellant seemed able to carry on with her part-time job, and had been doing so for some time.
What made it difficult for appellant to remain at work was the reported emotional trauma she had
suffered, which manifested itself in the form of mild depression and PTSD. Dr. Ximenes
indicated that these conditions appeared to be related to appellant’s employment injury. His
May 30, 2003 report noted that, from a purely orthopedic standpoint, appellant was not
precluded from performing her duties as a part-time, modified clerk. Dr. Ximenes did not
identify a material change in her accepted condition.
Four months later, Dr. McKown assumed responsibility for appellant’s care. She
diagnosed bilateral carpal tunnel syndrome, sequelae of stress fracture at C2 and occipital
neuralgia. In a September 26, 2003 report, Dr. McKown attributed the diagnosed conditions to
appellant’s employment and found her totally disabled as of June 9, 2003. In subsequent reports,
she continued to express her belief that all of appellant’s orthopedic and psychiatric maladies
were employment related.
Regarding appellant’s carpal tunnel syndrome, Dr. McKown attributed the condition to a
change in appellant’s body mechanics following her employment-related cervical injury. She
explained that appellant’s limited neck and shoulder mobility affected how she used her wrists.
However, Dr. McKown’s opinion on causation was refuted by the orthopedic specialist she
consulted with in March 2004. Dr. Savage, a Board-certified orthopedic surgeon, attributed
appellant’s carpal tunnel syndrome to repetitive job duties, and dismissed the notion that
5

Tamra McCauley, 51 ECAB 375, 377 (2000).

6

Id.

7

Where appellant claims that a condition not accepted or approved by the Office was due to her employment
injury, she bears the burden of proof to establish that the condition is causally related to the employment injury.
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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appellant’s upper extremity condition was associated with her prior cervical injury.8 The
probative evidence of record refutes Dr. McKown’s assertion that appellant’s upper extremity
condition is a sequela of the accepted cervical condition. Dr. McKown has not otherwise
identified any physical limitations attributable to the accepted cervical injury that precluded
appellant from performing her part-time, modified clerk duties.
Dr. Nemeth, another orthopedic specialist, found that appellant had significant physical
restrictions, chronic pain and significant PTSD as a result of her July 10, 1990 employment
injury. In an August 2, 2004 report, he noted that appellant had been doing quite well until the
employing establishment decided to change her job duties. Appellant’s symptoms reportedly
were exacerbated with the institution of new job demands. From an orthopedic perspective,
Dr. Nemeth’s opinion does not provide any insight on whether appellant’s accepted cervical
condition physically precluded her from performing her duties as a part-time, modified clerk. To
the extent that he believed that appellant performed “new job demands,” he was mistaken.
Although it was highly likely that appellant would be reassigned in the near future, appellant was
not subjected to any new job demands or requirements prior to her June 9, 2003 work stoppage.
The opinions of Drs. Ximenes, McKown, Savage and Nemeth do not establish that
appellant’s July 10, 1990 cervical injury materially changed such that she was no longer
physically capable of performing her part-time, modified duties on or after June 9, 2003.
Dr. McKown’s opinion is insufficient to establish that appellant’s carpal tunnel syndrome is
causally related to the accepted cervical condition.9
With respect to appellant’s diagnosed psychiatric conditions, several physicians of record
have attributed her depression and ongoing PTSD to her employment. Drs. Ximenes, McKown,
Nemeth and Pazdral each diagnosed an employment-related psychiatric condition. However, it
is not entirely clear whether the diagnosed conditions arose as a result of the accepted cervical
condition and subsequent surgeries or because of incidents that occurred in the workplace
subsequent to appellant’s 1990 cervical injury. There is also the possibility that appellant’s
psychiatric conditions were the result of a combination of factors, however, the medical evidence
is unclear on this particular point. What is clear is that appellant’s June 9, 2003 work stoppage
was unrelated to her accepted cervical condition.
By her own admission, appellant stopped work on June 9, 2003 because of stress she
attributed to the job reassignment process initiated by the employing establishment in
January 2003. She stated that she was frustrated from having to find tasks to perform following
her supervisor’s June 3, 2003 absence due to medical reasons. The identified circumstances,
although ostensibly job related, are unrelated to appellant’s accepted cervical injury and
subsequent surgeries.10 Although there is some suggestion that appellant’s PTSD may have
originally emanated from the July 10, 1990 cervical injury and related surgeries, the medical
8

Appellant did, in fact, file a separate occupational disease claim for bilateral carpal tunnel syndrome (File
No. 16-2093790), which the Office denied as untimely.
9

See Jaja K. Asaramo, supra note 7.

10

Much like her claimed carpal tunnel syndrome, appellant’s current psychiatric condition and associated
disability would appear to be the subject of a separate occupational disease claim.

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evidence of record does not clearly address any causal link between the diagnosed psychiatric
conditions and the accepted employment injury. Ms. Bradford, appellant’s therapist, diagnosed
employment-related PTSD, and in her latest report, dated January 17, 2005, she attributed
appellant’s PTSD to “ongoing and chronic stress … experienced while working….” However,
her reports do not constitute probative medical evidence as Ms. Bradford is not a physician as
defined under the Act.11
Appellant has not demonstrated that her carpal tunnel syndrome and PTSD are related to
her accepted cervical condition. She has also failed to establish that her accepted condition has
materially worsened such that she was no longer capable of performing her part-time, modified
duty assignment on or after June 9, 2003. Accordingly, appellant failed to establish a material
change in the nature and extent of the injury-related condition and, therefore, modification is
unwarranted.
CONCLUSION
The Board finds that appellant has not established a basis for modifying the Office’s
March 28, 2000 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
11

See Ernest St. Pierre, 51 ECAB 623 (2000).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
BUREAU OF LAND MANAGEMENT,
Denver, CO, Employer
__________________________________________

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

Docket No. 08-873
Issued: November 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal from a January 24, 2008 decision of
the Office of Workers’ Compensation Programs that denied benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office abused its discretion in denying appellant authorization
for a health club membership.
FACTUAL HISTORY
On February 13, 2007 appellant, then a 51-year-old customer support specialist, sustained
injury when he slipped on ice on the sidewalk outside of the employing establishment. He did
not stop work. The Office accepted the claim for lumbar dislocation, sacrum dislocation, lumbar

back sprain, muscle spasms, cervical strain, left shoulder strain (resolved) and left hand
contusion (resolved).1 Appellant received appropriate compensation for intermittent disability.
Appellant came under the care of Dr. Susan C. Lan, an osteopath, who first treated him
on February 15, 2007. Dr. Lan diagnosed hand contusion, lumbar strain and shoulder strain and
returned appellant to full-time modified duty. She recommended chiropractic treatment.
Thereafter, appellant sought treatment from Dr. Marc Wolff, a chiropractor, from March 7 to
October 5, 2007. Dr. Wolff diagnosed lumbar vertebral subluxation at L2, pelvic subluxation
(sacrum) and lumbar hypolordosis. An April 27, 2007 magnetic resonance imaging (MRI) scan
of the cervical spine revealed moderate left C5-6 uncovertebral degenerative changes and mild to
moderate right C3-4 uncovertebral degenerative changes. An MRI scan of the lumbar spine of
the same date revealed mildly degenerated L5-S1 disc displays prominent posterocentral annulus
fibrosis bulging which displaces both proximal S1 nerve roots.
On August 1 and 29, 2007 appellant was seen in consultation by Dr. John T. Sacha,
Board-certified in physical medicine and rehabilitation, who noted a history of injury and
diagnosed lumbosacral radiculopathy and cervical facet syndrome. Dr. Sacha performed an
L5-S1 intralaminar epidural injection and a right S1 transforaminal epidural injection. Appellant
was also treated by Dr. Allison M. Fall, Board-certified in physical medicine and rehabilitation,
on October 1 and 22, 2007. Dr. Fall diagnosed lumbosacral strain with L5-S1 disc bulge and
right S1 radiculopathy. On November 2, 2007 she opined that appellant had reached maximum
medical improvement with respect to his work-related injuries and provided an impairment
evaluation. She noted appellant was interested in a health club membership with which she was
in agreement.
On November 5, 2007 Dr. Lan requested authorization for a 12-month gym membership
for appellant. She noted that appellant’s lumbar, shoulder and left hand were to be treated.
In a letter dated November 21, 2007, the Office requested that Dr. Lan provide an opinion
on the medical necessity of a health club membership for treatment of appellant’s accepted workrelated conditions. It also requested that appellant submit information on the available health
club facilities suited to the program recommended by his physician, the cost of the programs, a
statement from the health club manager addressing whether the club was equipped to provide the
program recommended by his physician and an opinion from his physician describing the nature
of the recommended program.
In a report dated November 5, 2007, Dr. Lan treated appellant for persistent symptoms
and diagnosed lumbosacral strain at L5-S1 disc bulge and right S1 radiculopathy, improved. She
noted that appellant reached maximum medical improvement on November 2, 2007 and
provided permanent work restrictions. In a work capacity evaluation dated November 20, 2007,
Dr. Lan noted permanent work restrictions of no lifting over 10 pounds.
1

By letter dated March 26, 2007, the Office advised appellant that his claim was originally received as a simple,
uncontroverted case which resulted in minimal or no time loss from work. It indicated that appellant’s claim was
administratively handled to allow medical payments up to $1,500.00; however, the merits of the claim had not been
formally adjudicated. The Office indicated that since they received a request for additional treatment his claim
would be formally adjudicated. On March 29, 2007 it accepted appellant’s claim.

2

In a letter dated November 26, 2007, appellant requested Dr. Lan prescribe a one-year
health club membership so that he could fully recover from his injuries and return to normal
health. He submitted a brochure for 24 Hour Fitness Club.
On November 27, 2007 Dr. Lan addressed the medical necessity of the health club
membership and noted that the exercise/therapy program was a home exercise program as
prescribed by the physical therapist. She described the frequency of the regimen as three to six
days per week with a goal of maintaining a level of activity and strength to prevent further
injury. Dr. Lan anticipated the duration of the program would be one year and noted the regimen
was very effective compared to alternative modes. The equipment required was access to
professional gym equipment at a fitness center with a treadmill and weights. Dr. Lan noted that
the regimen could be performed without help and as an independent home exercise program.
On December 12, 2007 the Office referred appellant to Dr. Alfred C. Lotman, a Boardcertified orthopedic surgeon, for a second opinion evaluation on the nature of his condition, the
extent of disability and the appropriate treatment. It provided Dr. Lotman with appellant’s
medical records, a statement of accepted facts and a description of his work duties. The Office
also referred appellant for a functional capacity evaluation.
Appellant was treated by Dr. Fall on December 3, 2007 for complaints of persistent back
pain with radiculopathy. In a December 18, 2007 report, Dr. Lan noted treating appellant for
persistent back pain with leg symptoms. She dispensed a foam roller, cervical and lumbar
supports and a ball to assist appellant with a home exercise program.
On December 27, 2007 appellant underwent a functional capacity evaluation which
determined that he could perform at the medium physical demand level. The physical therapist
noted that appellant was limited by fatigue, low back and right leg pain and demonstrated
inconsistencies during the evaluation which suggested that he may be capable of performing at a
greater physical demand level than that exhibited during the evaluation. The therapist further
noted that the psychometrics evaluation suggested the presence of nonorganic problems and a
possible need for further evaluation or psychological evaluation.
In a January 10, 2008 report, Dr. Lotman reviewed the records provided and performed a
physical examination. He discussed appellant’s work history and noted that the physical
examination was essentially normal with no gait disturbances, no alignment abnormalities of the
cervical, thoracic or lumbar spine, some patchy decreased sensation in the upper and lower
extremities, breakaway weakness in the upper and lower extremities and no paravertebral muscle
spasms. Dr. Lotman advised that appellant had exaggerated pain behaviors. He opined that
appellant continued to have residuals of the work-related fall related to the low back and lumbar
spine and his prognosis was guarded due to the depressive component of his condition.
Dr. Lotman opined that the health club membership was not medically necessary and that
appellant was able to safely complete the home physical therapy program. He did not believe
continuing physical therapy through a health club membership would be beneficial to treat
appellant’s condition. In a supplemental report dated January 15, 2008, Dr. Lotman reviewed the
findings of the functional capacity evaluation and opined that the results did not change his prior
report or opinion.

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Appellant submitted a January 7, 2008 report from Dr. Fall who noted appellant’s
complaints of low back, right leg and left upper trapezius pain. Dr. Fall diagnosed lumbosacral
strain with L5-S1 disc bulge with right S1 radiculopathy.
In a January 24, 2008 decision, the Office denied appellant’s request for a health club
membership. It found the weight of the medical evidence was represented by Dr. Lotman and
did not establish that the membership was medically necessary for his accepted condition.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act2 provides that the United
States shall furnish to an employee, who is injured while in the performance of duty, the
services, appliances and supplies prescribed or recommended by a qualified physician, which the
Office considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.3
In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The Office has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible, in the
shortest amount of time. It, therefore, has broad administrative discretion in choosing means to
achieve this goal. The only limitation on the Office’s authority is that of reasonableness.4 In
order to be entitled to reimbursement for medical expenses, a claimant must establish that the
expenditures were incurred for treatment of the effects of an employment-related injury by
submitting rationalized medical evidence that supports such a connection and demonstrates that
the treatment is necessary and reasonable.5 While the Office is obligated to pay for treatment of
employment-related conditions, the employee has the burden of establishing that the expenditure
is incurred for treatment of the effects of an employment-related injury or condition.6
Regarding membership in a health club or spa, the Office’s procedure manual provides
that health club memberships may be authorized if needed to treat the effects of an injury, that
such memberships may be approved only for periods of six months at a time and that the treating
physician must describe the specific therapy and exercise routine needed, the anticipated
duration of the recommended regimen, the specific equipment or facilities needed, the treatment
goals, the actual or anticipated effectiveness of the regimen, the frequency of examinations to
determine the ongoing need for the program and whether the exercise routine can be performed
at home.7
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8103(a).

4

Dr. Mira R. Adams, 48 ECAB 504 (1997).

5

See Debra S. King, 44 ECAB 203 (1992).

6

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.15 (July 2000).

4

ANALYSIS
The Office accepted that appellant sustained employment-related lumbar dislocation,
sacrum dislocation, lumbar back sprain, muscle spasms, cervical strain, left shoulder strain
(resolved) and left hand contusion (resolved). Appellant requested a health club membership
that the Office denied in its January 24, 2008 decision.
The Office referred appellant to Dr. Lotman who found that his physical examination was
essentially normal but revealed exaggerated pain behaviors. Dr. Lotman opined that the health
club membership was not medically necessary and that appellant was capable of safely
completing a home physical therapy program. He opined that physical therapy through a health
club membership would not be beneficial to treat appellant’s injuries. In a report dated
January 15, 2008, Dr. Lotman reviewed the findings of a functional capacity evaluation which
revealed that appellant could perform at the medium physical demand level. He advised that the
results did not change his opinion.
In a November 2, 2007 report, Dr. Fall offered diagnoses and opined that appellant had
reached maximum medical improvement with respect to his work-related injuries. He noted
appellant’s interest in a health club membership with which she was in agreement. However,
Dr. Fall did not provide any medical rationale explaining the reasons why the health club
membership was necessary or useful in treating appellant’s accepted cervical and lumbar
conditions.8
On November 5, 2007 Dr. Lan recommended a maintenance gym membership for 6 to 12
months; however, she did not provide any reasoning to support the necessity of her
recommendation. In a November 27, 2007 report, she noted that the exercise/therapy program
was prescribed by the physical therapist with a frequency of three to six days per week with a
goal of maintaining a level of activity and strength to prevent further injury. Dr. Lan noted that
the equipment necessary to perform the regimen was in a professional gym which had a treadmill
and weights and the regimen could also be performed without help as an independent home
exercise program. She did not address the basis for her conclusion that a health club
membership was medically necessary and reasonable for treatment or how it might alleviate
appellant’s cervical and lumbar condition. Dr. Lan did not explain the medical reasons why a
health club membership would likely cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly compensation. Moreover, she indicated
that appellant would also benefit from a home exercise program that could be done
independently without help. Without medical reasoning explaining this apparent contradiction,
Dr. Lan’s report is insufficient to establish that a health club membership is necessary and
reasonable for treating appellant’s accepted conditions. No other medical evidence of record
provides a well-reasoned opinion explaining why a health club membership is necessary and
reasonable for the treatment of his accepted conditions.

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

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Because appellant did not submit medical evidence explaining why the health club
membership was necessary for treatment of his accepted conditions, the Office properly denied
authorization for the membership.
CONCLUSION
The Board finds that the Office did not abuse its discretion in refusing to authorize
payment for a health club membership.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2008 is affirmed.
Issued: November 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Bliss, TX, Employer
__________________________________________

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

Docket No. 14-1971
Issued: July 2, 2015

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 March 20, 2014 appellant filed a timely appeal from a December 18, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish pelvic
nerve/dysesthesia/lumbar conditions in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the record following OWCP’s December 18,
2013 decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of
its final review. 20 C.F.R. § 501(c).

FACTUAL HISTORY
Appellant, a 53-year-old security guard and police officer, filed a Form CA-2
occupational disease claim for benefits on April 30, 2012, alleging that she experienced tingling
in her pelvic area and a pinched nerve sensation near her thigh bone which was causing a twitch
radiating down her legs. She stopped work on April 12, 2012 and returned to work on
April 30, 2012.
In support of her claim, appellant submitted a May 9, 2012 return to work note signed by
a registered nurse and a May 11, 2012 report from Dr. Onyemas Amakiri, an osteopathic
physician specializing in internal medicine. Dr. Amakiri noted that appellant was seen for “jerky
movements.” He stated his diagnoses as abdominal pain, involuntary movements, restless leg
syndrome, and uric acid nephroisthiosis.
On June 12, 2012 OWCP advised appellant that the evidence of record was insufficient to
establish her claim. Appellant was advised that she should complete the attached questionnaire
and also submit a rationalized medical report from her treating physician explaining how her
employment activities caused her diagnosed condition.
By decision dated July 18, 2012, OWCP denied appellant’s claim finding that she did not
establish a pelvic nerve/dysesthesia/lumbar condition in the performance of duty. It also found
that she failed to establish fact of injury because she had not established that the employment
events occurred as alleged.
On July 23, 2012 appellant requested reconsideration.
Appellant submitted statements dated July 23 and 26, 2012 in which she further
explained her claim. In the July 23, 2012 statement, she alleged that she had been involved in a
work-related incident on January 6, 2004 while she was on patrol duty and she fell over a
railroad tie. Appellant related that due to the prior incident she sustained injury to her left
shoulder, which required surgery, and injury to her right knee and foot. She explained that she
had recurring symptoms of twitching in her feet since that time. In her July 26, 2012 statement,
appellant further alleged that since the January 6, 2004 injury her job duties required a lot of
standing while conducting traffic control and checking identification at access control points.
She noted that she was required to wear a bullet proof vest and gun belt with accessories which
placed pressure on her waist and caused nerve damage. Appellant alleged that she was suffering
nerve damage in her pelvic area from a work-related injury.
By decision dated August 28, 2012, OWCP modified the July 18, 2012 decision to find
that appellant had established fact of injury. However, it denied her claim, finding that she failed
to submit medical evidence sufficient to establish that she sustained her claimed pelvic
nerve/dysesthesia/lumbar conditions in the performance of duty.
By letter dated July 29, 2013, appellant requested reconsideration based on new unsigned
evidence noting she was seen by a Dr. Steven P. Glusman, a specialist in neurosurgery, including
a report containing a magnetic resonance imaging (MRI) scan of her lumbar spine.

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An unsigned report which noted that appellant had been seen by Dr. Glusman dated
May 14, 2012, received by OWCP on July 31, 2013, found that she was experiencing
dysesthesias, a twitching sensation in her legs which typically occurred when a patient is lying or
sitting down for long periods of time. Dr. Glusman stated that she used to be a police office and
had to wear a police duty belt for prolonged periods of time; the belt held a nine-millimeter
pistol, a flashlight, ammunition, magazines, etc. He opined that appellant had possible lumbar
myelopathy or polyradiculopathy, with restless leg syndrome. Dr. Glusman referred her for an
MRI scan of the lumbar spine in addition to nerve conduction and electromyelogram (EMG)
studies of both lower extremities.
In an unsigned July 31, 2012 report, which noted that Dr. Glusman had seen appellant,
the results of her EMG study were reviewed. Dr. Glusman stated that she probably had partial
lumbosacral plexopathy. He advised that appellant had denervation potentials in the iliopsoas on
the femoral nerve and at levels L1-3. Dr. Glusman stated that she also had fibrillation potentials
in the gluteus medius on the superior gluteal nerve and at the L5-S1 nerve root levels.
In an August 10, 2012 report, received by OWCP on July 31, 2013, Dr. William M.
Boushka, a specialist in diagnostic radiology, indicated that appellant underwent an MRI scan of
the lumbar spine which showed a small left foraminal annular tear without stenosis. He opined
that this could be a source of significant discogenic pain. In a March 7, 2013 report,
Dr. Glusman recommended that appellant be referred to neurosurgery for her torn disc at L4-5.
In its December 18, 2013 decision, OWCP found that appellant had submitted reports
from Dr. Boushka dated March 7, May 14, and July 31, 2013 which diagnosed several
conditions, including lumbago; i.e., a lumbar disorder, but did not offer a medical explanation as
to how these conditions are related to any specific work activities. It denied modification of the
August 28, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
3

Id.

4

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

5

Victor Woodhams, 41 ECAB 345 (1989).

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statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
ANALYSIS
The Board has duly considered the matter and notes that in the case of William A.
Couch, the Board held that, when adjudicating a claim, OWCP is obligated to consider all
evidence properly submitted by a claimant and received by OWCP before the final decision is
issued. While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that the documents which appellant submitted in support of her July 29, 2013
request for reconsideration were not properly or fully reviewed by OWCP in its December 18,
2013 decision. It erroneously stated that it received and reviewed reports from Dr. Boushka,
when in fact the reports it cited in its decision appear to be submitted by a Dr. Glusman.9
Dr. Boushka’s August 10, 2012 MRI scan report, which appellant referenced in her July 29,
2013 reconsideration request, contained a finding of a torn annular tear in the lumbar spine. This
report, however, was not mentioned or considered by OWCP in its December 18, 2013 decision.
In the March 7, 2013 report, it was recommended that appellant be referred to neurosurgery for
her torn disc at L4-5. OWCP, however, did not discuss or consider this report.
8

OWCP, in its December 18, 2013 decision, did not adequately or thoroughly review all of
the medical evidence. Its regulations require that a decision contain findings of fact and a
statement of reasons.10 The inaccurate and incomplete adjudication of the medical evidence in

6

Mary J. Briggs, 37 ECAB 578 (1986); Ausberto Guzman, 25 ECAB 362 (1974).

7

41 ECAB 548 (1990).

8

Id.

9

The actual dates of these reports were May 14 and July 31, 2012 and March 7, 2013.

10

20 C.F.R. § 10.126.

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the December 18, 2013 decision does not satisfy its obligation to provide a decision with
appropriate findings and clear analysis.11
For this reason, the case will be remanded to OWCP to require it to properly consider
appellant’s request for reconsideration and all the evidence submitted prior to the issuance of the
December 18, 2013 decision. Following further development as it deems necessary, it shall issue
an appropriate decision on the merits.
CONCLUSION
The Board finds that the case is not in posture for decision. The decision dated
December 18, 2013 is set aside and the case is remanded for further development consistent with
this opinion.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: July 2, 2015
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

11

See generally Tonja R. Hiebert, 55 ECAB 706 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF THE ARMY,
FORT ORD, CA, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-727
Issued: January 31, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2006 appellant, through his attorney, filed a timely appeal of a
February 1, 2005 merit decision of the Office of Workers’ Compensation Programs, finding that
the constructed position of help desk representative represented his wage-earning capacity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
November 4, 2001 based on its determination that the constructed position of help desk
representative represented his wage-earning capacity.
FACTUAL HISTORY
Appellant, a computer systems administrator, filed a traumatic injury claim alleging that
on April 8, 1991 he hurt his back while lifting a box of computer textbooks.1 The Office
1

The Board notes that appellant’s traumatic injury claim form is not contained in the case record.

accepted his claim for sciatic neuritis and lumbar strain. Appellant returned to work in a lightduty housing coordinator position on October 26, 1992. He stopped work on January 15, 1993
and did not return.
By letter dated February 5, 1998, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Ernest B. Miller,
an orthopedic surgeon, for a second opinion medical examination. In an April 15, 1998 medical
report, Dr. Miller opined that the April 8, 1991 employment injuries had resolved with no
objective factors of disability. He stated that the subjective factors of appellant’s disability were
exaggerated, nonphysiologic and nonanatomic due to emotional overlay and somatization.
Dr. Miller restricted appellant from lifting more than 75 pounds. However, he found that
appellant could return to his date-of-injury position with the stated lifting restriction. In an
accompanying work capacity evaluation (Form OWCP-5c) dated May 29, 1998, Dr. Miller
stated that appellant could work eight hours per day with a 75-pound lifting restriction.
On August 20, 1998 the Office found a conflict in the medical opinion evidence between
Dr. Gregg K. Satow, an attending physician, and Dr. Miller with regard to whether appellant had
any continuing residuals of his accepted employment injuries. To resolve the conflict, the
Office, by letter dated September 1, 1998, referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Edwin J. Kingsley, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In an October 7, 1998 medical report, Dr. Kingsley provided a history of appellant’s
April 8, 1991 employment injuries, medical treatment, family and social background. He noted
appellant’s current back symptoms and reviewed his medical records. Dr. Kingsley reported
essentially normal findings on physical examination. He diagnosed status post bilateral
hemilaminectomy with excision of the L5-S1 and removal of free fragment on January 12, 1989,
surgery as a result of a September 27, 1985 injury and lumbosacral strain syndrome with right
radiculitis associated with the April 8, 1991 employment injuries. Dr. Kingsley found that
appellant had employment-related residuals and that his condition was permanent and stationary
within six months of the employment injury. He stated that appellant had a Category D
disability which precluded him from lifting more than 25 pounds, bending and stooping.
Dr. Kingsley opined that appellant was capable of performing the duties of the offered police
dispatcher position provided that it did not require lifting more than 25 pounds. In an
accompanying Form OWCP-5c, he stated that appellant could work eight hours per day with a
25-pound lifting restriction.
The Office accepted that appellant had permanent work limitations precluding him from
heavy work based on Dr. Kingsley’s October 7, 1998 report and on January 28, 1999 advised a
vocational rehabilitation counselor, to whom appellant had been referred, that Dr. Kingsley’s
report represented the weight of the medical evidence regarding appellant’s work limitations.
In reports dated January 31 and March 2, 2001, a vocational rehabilitation counselor
identified the position of help desk representative as being within appellant’s physical
limitations, vocational skills and geographical area. The help desk representative position, as it
appeared in the Department of Labor, Dictionary of Occupational Titles (DOT), was classified as
a sedentary position. The position required, among other things, investigation and resolution of

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computer software and hardware problems of users, answering telephone calls from users having
problems with computer software and hardware or inquiring how to use specific software and
placing calls to software and hardware vendors to request service regarding defective products.
It also required possible testing, writing software and hardware, developing training materials,
training users and installing microcomputers, software and peripheral equipment. The physical
requirements included lifting of up to 10 pounds occasionally, no climbing, balancing, stooping,
kneeling, crouching and crawling, and frequent reaching, handling and fingering. Vocational
preparation for the constructed position required two to four years. The vocational rehabilitation
counselor stated that appellant received an Associate of Arts degree in 1983 and completed
coursework up to his senior year at San Jose State University. He successfully completed 36
units of college computer-related courses in software applications, computer operating systems,
Unix/Senix System Management, microcomputer database systems and LAN Systems
Management.
On April 19, 2001 the Office advised appellant that it had determined that the vocational
rehabilitation counselor’s plan to return him to work as a help desk representative was within his
limitations. The Office stated that he was expected to fully cooperate and that, at the end of the
rehabilitation program, whether he was actually employed or not, his compensation would likely
be reduced.
In an August 23, 2001 notice, the Office advised appellant that it proposed to reduce his
compensation because the medical and factual evidence of record established that he was no
longer totally disabled. The Office found that he had the capacity to earn the wages of a help
desk representative. The Office requested that appellant submit additional evidence or argument
within 30 days if he disagreed with the proposed action.
By letter dated September 10, 2001, appellant stated that he was neither physically nor
mentally able to perform the help desk representative job. He denied a vocational rehabilitation
counselor’s allegation that he refused to cooperate with testing. Appellant stated that he was not
physically able to participate in testing due to severe chronic pain and prescription pain
medications. He related that he always called to notify the staff when he was unable to drive or
keep appointments. Appellant denied having the ability or “transferable skills” necessary to
perform the duties of a help desk representative. He stated that his employment and educational
background was in the field of flight operations and he was an aircraft mechanic. Appellant
received his education in these fields in the 1970s. He related that he was unable to complete
computer training classes at Heald College because the school stated that it could not comply
with the physical limitations established by his doctor and that, when he did enroll in classes, an
instructor refused to allow him to take frequent breaks. Appellant contended that medical
evidence from his physicians established that he had continuing physical and emotional residuals
of his employment-related injuries.
Appellant submitted prescriptions notes dated May 11 and 23 and September 12, 2001 for
swim therapy, chiropractic treatment, nerve conduction velocity/electromyogram (NCV/EMG)

3

studies, medication and a referral to Dr. Gerald F. Wahl, a Board-certified neurologist,
Dr. Fennel,2 and a psychiatrist.
In reports dated March 23, 2001 and May 11, 2002, Dr. Satow found that appellant had
chronic radiculopathy and degenerative disc disease with chronic low back pain and myositis,
bilateral carpal tunnel syndrome and chronic depression secondary to long-term pain. He opined
that appellant was totally disabled and that he was unable to work due to the diagnosed
conditions. Dr. Satow stated that possibly, with psychiatric care and chiropractic treatment, he
could perform three to four hours of light-duty work per day. In the May 11, 2002 report and
addendum to this report, Dr. Satow stated that appellant could not perform repetitive bending,
twisting or lifting and he was not able to lift any amount, although on a rare occasion he could
lift up to 10 pounds or possibly 20 pounds.
In an August 27, 2001 report, Dr. Satow opined that appellant was disabled due to pain in
a mild to moderate form on a frequent to continuous basis despite significant and ongoing
conservation management. Appellant was a candidate for back surgery. Dr. Satow reported his
objective findings which included positive straight leg raising on the right and diminished reflex
at the S1 nerve root on the right, limitation of spinal motion, a magnetic resonance imaging
(MRI) scan that was positive for a prior surgery and probable nerve root impingement on the
right. He opined that appellant’s condition was permanent and stationary. Dr. Satow stated that
appellant was going to have ongoing pain symptoms and limited motion of the spine and ability
to perform any type of work. He further stated that, if he worked, the position must have
significant flexibility which included time restraints and mental and physical requirements.
Dr. Satow opined that it was highly unlikely that appellant could work eight hours per day. He
could only perform extremely light work three to four hours per day. Dr. Satow concluded that
appellant’s disabling condition was a result of his repeated work injuries and that he would not
be able to perform any sustained employment in a competitive work environment with
continuity, safety and ability.
An April 4, 2001 report of Karuna Licht, a family counselor, found that appellant had
post-traumatic stress syndrome associated with his work-related 1985 and 1986 back injuries and
1989 spinal surgery. She also reported recurrent major depression disorder resulting from his
chronic debilitating pain. In an April 10, 2001 report, Ms. Licht diagnosed recurring panic and
flashbacks and hopelessness regarding appellant’s 1985 employment injury.
By decision dated November 1, 2001, the Office finalized the wage-earning capacity
determination, effective November 4, 2001, based on appellant’s capacity to earn wages as a
help desk representative. It found that he failed to submit evidence sufficient to overcome the
weight of Dr. Kingsley’s October 7, 1998 impartial medical report. Based on the formula
developed in Albert C. Shadrick,3 the Office determined appellant’s weekly pay rate in the
former position to be $558.80, his adjusted earning capacity in the help desk representative
position was $486.15 per week which resulted in loss in earning capacity of $72.65 per week.
Appellant’s compensation rate every four weeks was found to be $243.00 with a net
2

The Board notes that Dr. Fennel’s professional qualifications are not contained in the case record.

3

5 ECAB 376 (1953).

4

compensation every four weeks of $173.20 based on applicable cost-of-living adjustments of
$60.75 and deductions of $68.52 for a health insurance premium and $1.20 for an optional life
insurance premium.
Appellant disagreed with the Office’s decision and, by letter dated November 27, 2001,
requested a review of the written record by an Office hearing representative. He submitted a
January 18, 2002 report from Dr. Satow who found that he had chronic degenerative disc
disease, myofascial pain, failed lumbar surgery syndrome and probable carpal tunnel syndrome
or cervical radiculopathy. Dr. Satow opined that appellant could perform light-duty work as
previously found, with frequent breaks.
Magnetic resonance imaging scan reports dated January 11, 1989 and October 14 and 25,
1999 found that appellant had right-sided disc herniation at L5-S1 with residual disc protrusion
and osteophyte and degenerative changes in the cervical spine.
In reports dated June 22 and 24, 2002, Dr. Robert T. Badke, a Board-certified orthopedic
surgeon, found that appellant suffered from recurrent disc problems at L5-S1. He stated that his
subjective complaints were severe. Based on his objective findings, Dr. Badke placed appellant
in Category H of the guidelines for work capacity which required him to be in a limited job
environment that provided sedentary work.
Dr. Satow’s treatment notes and report, covering the period October 1 through
November 24, 1999, addressed problems related to appellant’s lumbosacral and cervical spine,
right elbow and a lower extremity.
In reports dated November 2, 1999 to June 22, 2002, Dr. Satow diagnosed residual or
recurrent right paracentral and lateral disc protrusion partially embraced by ostephytes at L5-S1,
degenerative disc disease, recurrent lumbar herniation, cervical radiculopathy on the left greater
than the right at L5, right carpal tunnel syndrome and chronic depression. He stated that
appellant could continue performing semi-sedentary part-time work. On May 22, 2002
Dr. Satow found that appellant was temporarily totally disabled from May 22 through June 22,
2002 pending a psychiatric or psychological treatment.
By letter dated June 17, 2002, the Office denied appellant’s June 14, 2002 request for
authorization to seek psychiatric treatment and an evaluation by Dr. Dale A. Helman, a Boardcertified neurologist. The Office noted that his claim had been accepted for sciatic neuritis and
lumbar strain. Therefore, it could not authorize treatment for cervical radiculopathy, carpal
tunnel syndrome and upper extremity and psychiatric conditions.
In reports dated June 19 and August 14, 2002, Dr. Satow reiterated his prior diagnoses
and found that appellant continued to be temporarily totally disabled. He noted that appellant
continued to experience back pain and refused surgery.

5

Following a September 25, 2002 hearing,4 appellant submitted handwritten notes from
his computer class, classroom policies for Heald College and letters dated October 6, 18 and
December 6, 1999 in which he contended that the vocational rehabilitation program conflicted
with his physician’s orders and treatment. Dr. Satow’s October 1, 1999 treatment note indicated
that there was a hold on vocational rehabilitation until November 1, 1999. In an October 29,
1999 note, appellant stated that he continued to experience pain in his back and left and right legs
along with other symptoms. He attended a four-hour computer class at Heald College on
October 20, 1999 as ordered by a vocational rehabilitation counselor and noted that it very
difficult to concentrate. By the end of the class, appellant experienced intense shooting pain in
his right thigh. He stated that he was making a good faith effort to participate in vocational
rehabilitation.
Dr. Satow’s treatment notes covering intermittent dates in 1999 addressed appellant’s
back condition and indicated that he could perform modified work duties. In a November 24,
1999 treatment note, Dr. Satow found that appellant was totally disabled beginning
November 24, 1999 until he was evaluated by Dr. Howard.
A December 18, 2001 report of Robert M. Sayad, Ph.D., a psychologist, found that
appellant had a dysthymic disorder versus major depressive disorder, pain disorder with
psychological factors and a general medical condition. Dr. Sayad stated that his ability to
interact and respond appropriately to coworkers, supervisors and the public on a consistent basis
would be impaired by factors associated with the distracting effects of chronic pain, social
avoidance, emotional withdrawal, low self-esteem and affective instability. He further stated
that, although appellant’s current measured cognitive abilities fell within the low average to
average range and within that which would be necessary to understand, remember and carry out
simple instructions, the combined and interactive effects of his chronic pain symptoms and
mental processes suggested an impaired ability to consistently perform work activity while
dealing with the stresses and demands encountered in competitive work which would continue to
reflect the effects of his physical disability and the impact of chronic pain on his level of
adaptive functioning.
In a December 2, 2002 report, Dr. Wahl found that appellant had chronic lumbosacral
strain associated with lumbar disc disease.
By decision dated December 19, 2002, an Office hearing representative affirmed the
Office’s wage-earning capacity. She found that the evidence submitted by appellant was
insufficient to overcome the weight of Dr. Kingsley’s October 1, 1998 impartial medical report.
The hearing representative determined that, as the selected position of help desk representative
was suitable from a medical and vocational standpoint and was reasonably available in sufficient
numbers in appellant’s geographic area, the Office properly reduced his compensation. She
further determined that there was prima facie evidence of a chronic pain condition causally
related to the April 8, 1991 accepted employment injuries. The hearing representative instructed
the Office to further develop the record regarding this issue.
4

The Board notes that it appears that appellant changed his request from a review of the written record to an oral
hearing before an Office hearing representative.

6

The Office received prescriptions and medical reports from Dr. Wahl and Dr. Charles J.
Martin, a Board-certified neurologist, covering the period December 2, 2002 to June 26, 2003
which indicated that appellant continued to experience back problems and required medical
treatment.
By letter dated August 22, 2003, the Office requested that Dr. Wahl submit a rationalized
medical opinion as to whether appellant’s chronic pain was causally related to the April 8, 1991
accepted employment injuries.
In reports dated August 18 and September 2, 2003, Dr. Wahl found that appellant had
lumbar disc disease. He opined that appellant could not work in his regular capacity or sit more
than one hour without a marked increase in pain. Dr. Wahl doubted that appellant could work at
that time in any useful capacity or for any length of time.
In a September 22, 2003 report, Dr. Dale K. Buche, a psychiatrist, stated that he began
treating appellant on May 24, 2002 regarding a September 27, 1995 employment injury. He
diagnosed major depression on Axis I, post back surgery with continuing severe pain and
disability on Axis III, severe stress from continuing pain and disability secondary to industrial
causation on Axis IV and a global assessment functioning score of 50 on Axis V. Dr. Buche
found no diagnosis on Axis II. He stated that appellant’s prognosis was poor due to continuing
severity of both his physical and emotional conditions.
By letter dated November 21, 2003, appellant requested reconsideration of the hearing
representative’s December 19, 2002 decision.
On February 19, 2004 the Office denied modification of the December 19, 2002 decision.
It found that the evidence submitted was insufficient to overcome the weight of the medical
opinion evidence which established that appellant could perform the duties of the offered help
desk representative position.
The Office received medical reports and prescriptions from Dr. Martin and Dr. Wahl
covering the period February 19 to September 23, 2004 which addressed appellant’s back
condition and medical treatment. In a July 13, 2004 report, Dr. Wahl stated that appellant’s back
pain had not improved. He opined that appellant had marked immobility and inability to sit for
brief periods of time, which made work activities in any capacity virtually impossible.
On October 13, 2004 the Office received Dr. Buche’s February 23, 2003 report.
Dr. Buche tested the nature and severity of appellant’s mental impairment and based on his
findings, he opined that appellant remained severely depressed and that he was very anxious,
frustrated and angry. He further opined that appellant’s chronic pain and disability caused his
emotional symptoms and continued to aggravate them. Dr. Buche stated that appelant had not
improved psychologically in spite of treatment due to the severity of his physical problems and
their effect on other aspects of his life.
Dr. Wahl’s October 18, 2004 report found that appellant remained disabled for any work
activities. He stated that short periods of sitting and any bending or lifting markedly increased
his back pain and that depression was an associated factor.

7

On November 16, 2004 appellant, through his attorney, requested reconsideration of the
Office’s February 19, 2004 decision. He submitted Dr. Buche’s November 7, 2004 report which
found that he became depressed because he could not perform his job due to a work injury and
that his depression was aggravated by chronic pain associated with this injury. Dr. Buche stated
that, due to the severity of his depression, appellant had poor concentration and memory,
difficulty relating to people generally and a sleep disorder, which prevented him for working.
He concluded that appellant could not perform the duties of a help desk representative due to the
severity of his emotional problems.
In a January 21, 2005 report, Dr. Wahl noted that appellant continued to have very
intractable pain making even short periods of walking virtually impossible. He opined that
appellant continued to be totally disabled for any work activities.
By decision dated February 1, 2005, the Office denied modification of the February 19,
2004 decision. It found that the evidence of record established that appellant could perform the
duties of a help desk representative.5
LEGAL PRECEDENT
Once the Office has made a determination that an employee is totally disabled as a result
of an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.6
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent his wage-earning capacity or if the employee has no actual earnings, his
wage-earning capacity is determined with due regard to the nature of his injuries and the degree
of physical impairment, his usual employment, the employee’s age and vocational qualifications
and the availability of suitable employment.7
After the Office makes a medical determination of partial disability and of special work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his physical limitations, education, age and prior
experience. Once this selection is made, determination of wage rate and availability in the open
labor market should be made through contact with the state employment services or other

5

The Board notes that, following the Office’s February 1, 2005 decision, the Office received additional evidence.
The Board may not consider evidence for the first time on appeal which was not before the Office at the time it
issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and
request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
6

William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28
ECAB 43 (1976).
7

Samuel J. Chavez, 44 ECAB 431 (1993).

8

applicable services.8 Finally, application of the principles set forth in Shadrick will result in the
percentage of the employee’s loss of wage-earning capacity.9 This has been codified by the
regulations in 20 C.F.R. § 10.403(c).
ANALYSIS
On January 28, 1999 the Office advised a vocational rehabilitation counselor to whom
appellant had been referred, that it had accepted that he had permanent work restrictions which
precluded him from heavy work based on the October 7, 1998 report of Dr. Kingsley, an
impartial medical specialist. However, by the time the Office issued its November 1, 2001 final
decision reducing appellant’s compensation, Dr. Kingsley’s evaluation of appellant was over
three years old. The Board has held that the Office must base its determination of wage-earning
capacity on a reasonably current medical evaluation.10
In the present case, Dr. Kingsley’s October 7, 1998 report on appellant’s physical
limitations grew stale by the time the Office reduced his compensation. The passage of time
lessened its relevance on the nature and extent of his current limitations. Prior to the
November 1, 2001 wage-earning determination, appellant submitted medical evidence from his
attending physician who opined that he was totally disabled. After the Office reduced his
compensation, appellant submitted reports from Dr. Wahl who opined that appellant had lumbar
disc disease and that he could not work at that time in any useful capacity or for any length of
time. Dr. Wahl stated that appellant was unable to sit, bend, lift or walk for a short period of
time without experiencing increased pain. Because preexisting and injury-related medical
conditions and their resulting physical limitations can change over time, “due regard” to the
factors specified in section 8115 of the Act requires a reasonably current medical evaluation.
Further, the Board notes that the Office did not send Dr. Kingsley a description of the
constructed help desk representative position for an opinion as to appellant’s physical ability to
perform the duties of this position or request that he conduct another medical examination in
light of intervening medical evidence submitted by appellant.
As Dr. Kingsley’s evaluation of appellant was not reasonably current, the Office did not
establish that the constructed position of help desk representative was consistent with his current
work tolerance limitations. The Office did not give due regard to the factors specified in section
8115 of the Act and, therefore, the Board finds that the Office did not discharge its burden of
proof to justify the reduction of appellant’s compensation. The Board will reverse the Office
hearing representative’s February 1, 2005 decision.

8

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

9

See William H. Woods, supra note 6; Shadrick, supra note 3.

10

Carl C. Green, Jr., 47 ECAB 737, 746 (1996); Anthony Pestana, 39 ECAB 980, 987 (1988); Ellen G. Trimme,
32 ECAB 1878, 1882 (1981).

9

CONCLUSION
The Board finds that the Office did not meet its burden of proof to justify the reduction of
appellant’s compensation on the grounds that he had the capacity to earn wages in the
constructed position of help desk representative. The medical evidence on which the Office
relied, the report of the impartial medical specialist, Dr. Kingsley, was not reasonably current to
establish relevant work limitations.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2005 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 31, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 09-932
Issued: April 23, 2009

Case Submitted on the Record

ORDER GRANTING ORAL ARGUMENT
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

By application dated February 9, 2009 appellant filed for review of a December 12, 2008
decision of the Office of Workers’ Compensation Programs’ hearing representative which denied
her emotional condition claim. The appeal was docketed as No. 09-932. Appellant submitted a
timely request for oral argument, explaining the need to address the evidence of record before the
Board. She contends that her employer failed to provide equipment recommended by her
physician and that the Office failed to adequately consider her mental health records or Equal
Employment Opportunity claim.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board.1 In the present appeal, appellant’s request was timely filed and a need
for oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The December 12, 2008 decision of the Office hearing representative affirmed the denial of her
claim finding that appellant did not establish any compensable factors of employment. Appellant
contends that the employing establishment failed to make reasonable accommodations as
recommended by her physician which contributed to her claimed condition. Moreover, she
1

20 C.F.R. § 501.5(a).

argues that the Office did not sufficiently address the evidence of record. The Board, in its
discretion, grants oral argument.
IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 09-932 be granted.
Issued: April 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2