United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1258
Issued: October 9, 2014

Case Submitted on the Record

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

JURISDICTION
On May 7, 2014 appellant, through her attorney, filed a timely appeal from a January 29,
2014 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.
ISSUE
The issue is whether appellant established that she sustained plantar fasciitis causally
related to her accepted November 28, 2011 right heel injury.
FACTUAL HISTORY
On November 28, 2011 appellant, a 36-year-old letter carrier, filed a claim for benefits,
alleging that she injured her right heel when she stepped into a hole. Hospital records dated

1

5 U.S.C. § 8101 et seq.

November 28, 2011 reflect that she was evaluated for a right foot injury and was released with a
diagnosis of heel spur.
Appellant was seen by Dr. Joseph Daniel, an osteopathic physician Board-certified in
foot and ankle surgery, on December 2, 2011. Dr. Daniel noted that on physical examination she
was tender along the plantar aspect of the right heel and that x-ray of the right foot showed
evidence of an enthesophyte at the origin of the plantar fasciitis. He diagnosed contusion of the
right heel.
In a report dated December 14, 2011, Dr. James Cancilleri, a specialist in podiatry, stated
that x-rays of appellant’s right foot showed no evidence of fracture or dislocation and were
otherwise unremarkable. He diagnosed a stress fracture with contusion of the right foot and
scheduled appellant for a magnetic resonance imaging (MRI) scan.
In a February 24, 2012 report, Dr. Cancilleri reviewed the results of several diagnostic
tests. He stated that radiographs taken on December 2, 2011 showed no fractures, normal
alignment of the foot anatomy, with evidence of an enthesophyte at the origin of plantar fasciitis.
Dr. Cancilleri advised that December 14, 2011 x-rays of the lateral and axial view of the right
heel demonstrated unremarkable bone stock for appellant’s age and sex, with no evidence of
fracture or dislocation. A December 30, 2011 MRI scan showed a heel spur with minimal
change plantar fasciitis; there was no evidence of a stress fracture or post-traumatic change.
Dr. Cancilleri stated that appellant not only sustained a work-related injury to the affected heel
but also sustained an acute incident to the plantar fasciitis in the right leg, despite negative
osseous findings. He noted that, while the plantar fasciitis can be injured acutely or chronically,
she had sustained an acute event with triggering of an acute plantar fasciitis event. Dr. Cancilleri
opined that there was a contusion and that appellant would benefit from the use of appropriate
shoes, rest and functional foot orthosis.
By decision dated March 16, 2012, OWCP denied the claim, finding that appellant failed
to establish fact of injury.
By letter dated April 3, 2012, appellant’s attorney requested an oral hearing, which was
held on July 12, 2012. At the hearing, appellant testified that, when she tripped and fell in the
hole, her foot became stuck. She tried to catch her balance came down hard on her right foot.
By decision dated September 24, 2012, an OWCP hearing representative set aside the
March 16, 2012 decision. He found that appellant sustained the November 28, 2011 incident in
the time, place and manner alleged and had provided sufficiently rationalized medical evidence
to establishing that the incident caused a right heel contusion. The hearing representative found
that the medical evidence of record was not sufficient to accept plantar fasciitis, as an accepted
condition. He found that Dr. Cancilleri did not provide a reasoned medical explanation of how
the plantar fasciitis condition was causally related to her November 28, 2011 employment injury.
The hearing representative directed that appellant be referred to a second opinion examiner to

2

determine whether her plantar fasciitis condition was causally related to her November 28, 2011
work injury.2
In a progress report dated October 22, 2012, Dr. Cancilleri diagnosed a plantar fasciitis.
He explained that physical examination of appellant revealed mild tenderness on palpation at the
plantar medial aspect of the right heel at the area of the insertion of the plantar fasciitis.
Dr. Cancilleri advised that she should continue with use of a stable running shoe and orthotics,
but no follow up was necessary as she had reached maximum medical improvement.
Appellant submitted a December 4, 2012 Form CA-7 requesting compensation for wage
loss for January 13 to March 12, 2012.
By decision dated December 13, 2012, OWCP denied appellant’s claim for wage loss for
January 13 to March 12, 2012.
By letter dated December 18, 2012, appellant’s attorney requested an oral hearing, which
was held on March 26, 2013.
In a report dated March 29, 2013, Dr. Cancilleri stated that appellant sustained traumatic
plantar fasciitis with contusion of her right heel area. He asserted that the plantar fasciitis tore
and the heel was bruised as she twisted her foot. Dr. Cancilleri opined that as a direct result of
the November 28, 2011 injury appellant was totally disabled from her job from November 28,
2011 to October 22, 2012.
By decision dated June 12, 2013, the hearing representative vacated the December 13,
2012 decision, finding that the case should be referred to a second opinion physician.
OWCP referred appellant to Dr. Zohar Stark, Board-certified in orthopedic surgeon. In a
report dated July 11, 2013, Dr. Stark set forth findings on examination and reviewed the medical
history and statement of accepted facts. He concluded that appellant did not sustain a right
plantar fasciitis condition as a consequence of the November 28, 2011 work injury. On
examination, appellant was able to walk with a normal reciprocating heel/toe gait. Dr. Stark
advised that she was able to walk in calcaneus and equinus gaits but complained of pain in her
right heel. His examination of appellant’s right ankle and right hind foot revealed no swelling or
local tenderness on palpation over the ankle or foot. Based on Dr. Stark’s examination, she had
not developed plantar fasciitis in her right foot as a result of the accepted November 28, 2011
employment trauma. He advised that there were no objective findings to substantiate the
diagnosis and he determined that appellant had recovered from the November 28, 2011 work
injury. Dr. Stark concluded that she could perform her regular, preinjury work as a postal
worker.
By decision dated July 24, 2013, OWCP denied claim for benefits, finding that appellant
did not sustain right plantar fasciitis causally related to her accepted November 28, 2011
2

The hearing representative further found that the record was devoid of rationalized medical opinion evidence
explaining how and why appellant was ever temporarily and totally disabled as a result of her November 28, 2011
workplace injury.

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employment injury. It found that Dr. Stark’s referral opinion represented the weight of the
medical evidence.
By letter dated July 29, 2013, appellant’s attorney requested an oral hearing, which was
held on November 15, 2013.
By decision dated January 29, 2014, an OWCP hearing representative affirmed the
July 24, 2013 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 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.
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
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his or her condition was caused, precipitated or aggravated by his or her
employment is sufficient to establish causal relationship.9 Causal relationship must be
established by rationalized medical opinion evidence and appellant failed to submit such
evidence.
3

Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. For a definition of the term “injury” see 20 C.F.R. § 10.5(e).

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

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Section 8123(a) provides that if there is a disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.10 It is well established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.11
ANALYSIS
The Board finds that there is a conflict in medical opinion between Dr. Cancilleri and
Dr. Stark concerning whether appellant sustained a plantar fasciitis condition causally related to
her accepted November 28, 2011 right heel injury. In his October 22, 2012 report, Dr. Cancilleri
explained that he diagnosed her plantar fasciitis based upon physical examination as she had
tenderness on palpation at the plantar medial aspect of the right heel at the area of the insertion of
the plantar fasciitis. He submitted a March 29, 2013 report, in which he stated that appellant
suffered from traumatic plantar fasciitis with contusion of her right heel area. Dr. Cancilleri
explained that the plantar fasciitis tore and the heel were bruised as she twisted her foot during the
November 28, 2011 work incident. OWCP subsequently referred appellant for a second opinion
examination with Dr. Stark. In his July 11, 2013 report, Dr. Stark opined that he had reviewed
the prior medical reports and record and examined her and determined that she did not sustain a
right plantar fasciitis condition causally related to the November 28, 2011 work injury. He
opined that there were no objective findings to support diagnosis of plantar fasciitis in
appellant’s right foot, causally related to the November 28, 2011 work injury, from which she
had recovered. This created a conflict in the medical evidence.
The Board therefore finds that, in its July 24, 2013 decision, OWCP erred in failing to
find that a conflict existed in the medical evidence. Accordingly, the Board will set aside the
January 29, 2013 decision of the hearing representative and remands for referral of appellant, the
case record and a statement of accepted facts12 to an impartial medical specialist to resolve the
conflict in medical evidence regarding whether she sustained a plantar fasciitis condition
causally related to her accepted November 28, 2011 right heel injury.
After such further development of the record as it deems necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The case is remanded for
further development of the medical evidence.
10

Regina T. Pellecchia, 53 ECAB 155 (2001).

11

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

12

Appellant’s attorney contends that the statement of accepted facts is inadequate because appellant testified at
the hearing that, when she tripped and fell in a hole, her foot got stuck; when she tried to catch her balance, her foot
came out and she came down hard on her right foot. He argues that the mechanism of injury should be described
accurately so that any physician who evaluates the matter should have a full understanding of the work injury.

5

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.13
Issued: October 9, 2014
Washington, DC

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

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

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

13

See G.B., Docket No. 13-1260 (issued December 2, 2013); J.V., Docket No. 12-90 (issued July 2, 2012).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Branch, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1437
Issued: February 5, 2013

Case Submitted on the Record

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

JURISDICTION
On June 22, 2012 appellant, through her attorney, filed a timely appeal from a March 30,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation for the period
January 24, 2003 to December 31, 2006, based on her actual earnings during the years 2003
through 2007.
On appeal, appellant’s attorney asserts that her earnings in 2007 should not be considered
in determining entitlement to compensation for the period January 24, 2003 through
December 31, 2006.

FACTUAL HISTORY
This case has previously been before the Board.1 In an August 18, 2010 decision, the
Board found the case was not in posture for decision as to whether appellant established that she
was entitled to disability compensation for the period April 16, 2003 to May 1, 2006. The Board
found that the medical evidence of record supported that she had partial disability. Since the
evidence reflected that appellant had actual earnings that spanned a lengthy period of time,
compensation should be determined by averaging the earnings for the entire period, determining
the average pay rate and applying the Shadrick formula.2 Appellant furnished sufficient records
that encompassed a number of years such that OWCP could compare her actual earnings to those
wages earned when injured. The Board remanded the case for further development, to be
followed by an appropriate decision of appellant’s claim for compensation.
On November 3, 2010 OWCP accepted that appellant sustained a recurrence of disability
on August 13, 2010 when she underwent authorized right knee surgery.
By letter dated November 4, 2010, OWCP informed appellant that, in accordance with
the Board’s August 18, 2010 decision, it had determined her entitlement to compensation for the
listed periods as follows:
January 24 through December 31, 2003

$8,304.40;

January 1 through December 31, 2004

$9,803.78;

January 1 through December 31, 2005

$10,347.71;

January 1 through December 31, 2006

$11,551.61;

January 1 through December 31, 2007

$12,142.03.

OWCP further determined that appellant was entitled to compensation following an
accepted August 13, 2010 recurrence of disability and attached an explanatory pay rate
memorandum. It determined that she earned an average of $26,602.00 per year during the fiveyear period from 2003 through 2007, for average weekly earnings of $511.58. OWCP found that
appellant was last in a pay status (the date disability began) on January 23, 2003, when her
weekly earnings were $759.88. It determined that she was a grade 1 Step RC on the date

1

Appellant, then a 44-year-old part-time flexible clerk, sustained a left knee injury on April 24. 2002. OWCP
accepted as employment related a tear of the medial meniscus of the left knee and villonodular synovitis of the left
lower leg. Appellant had arthroscopic left knee surgery in November 2002, did not return to work and retired on
disability effective September 8, 2003. The record contains income tax returns for the years 2003 through 2006 and
additional wage information for the year 2007.
2

Alfred C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403. The Board noted that appellant had provided
information concerning her actual earnings in the private sector and income tax forms for the years 2003 through
2007.

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disability began and indicated that for the purposes of applying the Shadrick formula, her
earnings in subsequent years were as follows:3
2003 $20.57 per hour x 37.93 hours per week

$780.22 per week;

2004 $21.25 per hour x 37.93 hours per week

$806.01 per week;

2005

$21.72 per hour x 37.93 hours per week

$823.84 per week;

2006 $23.00 per hour x 37.93 hours per week

$872.39 per week;

2007

$885.25 per week.

$23.34 per hour x 37.93 hours per week

OWCP attached worksheets in which the Shadrick formula was applied, beginning
January 24, 2003 and for each year thereafter, utilizing appellant’s average weekly earnings for
the years 2003 through 2007 or $511.58. It also provided an election form, since appellant
received OPM benefits and she was asked to carefully review the calculations.4
On December 2, 2010 appellant elected FECA benefits for the period January 24, 2003 to
December 31, 2006, and beginning August 13, 2010 and continuing. OPM informed OWCP that
appellant’s OPM benefits would be suspended on May 5, 2011, and that for the period
January 26, 2003 through December 31, 2006 and August 13, 2010 through March 31, 2011, she
received OPM benefits totaling $78,302.60. By letter dated June 7, 2011, OWCP informed
appellant that OPM was owed a balance of $78,302.60 which must be deducted from
compensation payments and asked if she still wished to elect FECA benefits. On July 28, 2011 it
again informed her regarding her entitlement to compensation beginning January 24, 2003 and
continuing.
On August 13, 2011 appellant again elected FECA benefits, effective
August 10, 2010.
By letter dated September 12, 2011, counsel requested that a formal decision be issued
with regard to OWCP’s calculations of appellant’s entitlement to compensation for the period
January 24, 2003 through December 31, 2006.
In a September 29, 2011 decision, OWCP incorporated the November 4, 2010 pay rate
memorandum and worksheets regarding the years 2003 through 2007 and beginning August 13,
2010, which explained appellant’s entitlement to compensation for the period January 24, 2003
through December 31, 2006. On October 4, 2011 appellant, through counsel, requested a
hearing. Appellant was not present at the hearing, held on January 4, 2012. Counsel asserted
that OWCP erred in including appellant’s 2007 earnings to determine her average weekly wage
of $511.58, which was used in applying the Shadrick formula to determine entitlement to
compensation for the period January 24, 2003 through December 31, 2006. He noted that if it
had instead used appellant’s income for the years 2003 through 2006 to determine the average
weekly wage, the average weekly wage would have been reduced to $443.43.
3

OWCP noted that appellant earned $19.77 a hour, and worked 37.93 hours a week and that beginning in 2009
and continuing the hourly pay rate was $25.60 or $971.08 a week.
4

Office of Personnel Management (OPM) verified that appellant received a gross monthly annuity of $1,836.00.

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In a March 30, 2012 decision, OWCP’s hearing representative affirmed the
September 28, 2011 decision.
LEGAL PRECEDENT
OWCP procedures provide that where OWCP learns of actual earnings that span a
lengthy period of time, e.g., several months or more, the compensation entitlement should be
determined by averaging the earnings for the entire period, determining the average pay rate and
applying the Shadrick formula.5 The Shadrick formula has been codified at section 10.403 of
OWCP’s regulations.6
ANALYSIS
The Board finds this case is not in posture for decision. The Board agrees with
appellant’s assertion on appeal that OWCP should not have included her 2007 earnings in
establishing her average weekly wage to be used to determine her entitlement to compensation
for the period January 24, 2003 through December 31, 2006, the period she elected to receive
FECA benefits. Appellant did not claim compensation or elect FECA benefits for the year 2007.
The case will be remanded for OWCP to ascertain appellant’s earnings for the period claimed,
i.e., January 24, 2003 through December 31, 2006.7 OWCP should provide a breakdown of the
specific earnings relied upon for this period and find the average weekly wage using these
earnings only. It should compare appellant’s earnings from the job held when injured to this
information, and then apply the Shadrick formula to determine her entitlement to compensation
for the period January 24, 2003 through December 31, 2006.8 After such further development
deemed necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for decision.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity on
Actual Earnings, Chapter 2.814.7(d)(4) (October 2009); Albert C. Shadrick, supra note 2. OWCP calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current pay
rate for the date-of-injury job.
6

20 C.F.R. § 10.403.

7

The Board notes that the pay rate memorandum that accompanied the November 4, 2010 letter of explanation
and the September 29, 2011 decision did not include a breakdown of the income records OWCP relied upon in
finding the average weekly wage of $511.58.
8

Supra note 5. See also Federal (FECA) Procedure Manual Part 2 -- Claims, Computing Compensation, Chapter
2.901.15(e) (October 2009).

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ORDER
IT IS HEREBY ORDERED THAT the March 30, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: February 5, 2013
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
H.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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Appearances:
Antonia Shields, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1407
Issued: April 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 5, 2014 appellant, through his representative, filed a timely appeal from a
March 17, 2014 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective August 22, 2012 as he no longer had residuals of the accepted
employment-related lumbar sprain; and (2) whether appellant established continuing
employment-related disability or condition after August 22, 2012 due to the accepted condition.
On appeal, appellant generally asserts that the opinion of his physician establishes that he
is disabled.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 20, 2010 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim indicating that he injured his lower back that day while lifting a tub of mail. He stopped
work and was seen on April 21, 2010 by Dr. David J. Aarons, an internist at a Veterans
Administration Medical Center (VA) hospital. A May 2008 magnetic resonance imaging (MRI)
scan demonstrated lumbar radiculopathy. Dr. Aarons diagnosed low back strain and stated that
appellant could return to light duty with physical restrictions. On May 12, 2010 he noted that
appellant could return to work after a course of physical therapy.
OWCP accepted that appellant sustained a lumbar sprain and assigned Dianne Pyle, a
medical management nurse, to facilitate his care. Appellant received continuation of pay and
wage-loss compensation based on Form CA-7 claims. In reports dated August 5 to 31, 2010,
Dr. Aarons advised that appellant could not return to work. On September 30, 2010 he referred
appellant to orthopedic surgery.
In correspondence dated August 29, 2010 Ms. Pyle noted that she met with appellant and
Dr. Aarons at the VA hospital on August 26, 2010 and believed that appellant should be
evaluated by an orthopedic surgeon, as Dr. Aarons was an internist who told her that he had
never treated work injuries.
The employing establishment informed OWCP that appellant returned to work on
October 4, 2010. Two days later appellant was sent home under the National Reassessment
Process because no limited duty was available. He continued to receive wage-loss compensation
through November 19, 2010.
In reports dated November 30, 2010, Dr. J. Todd Smith, a Board-certified orthopedic
surgeon, related a history of low back pain since 2007 to 2008 and that appellant had an earlier
lumbar spine MRI scan, but continued his regular duties until the April 20, 2010 employment
injury which caused severe low back pain. Examination findings included pain with back
extension and normal sensation to light touch in the legs. X-rays of the lumbar spine
demonstrated severe spondylosis at L5-S1 with mild disease at L3-4 and L4-5. A recent lumbar
spine MRI scan showed multiple level disc bulges at L3-4, L4-5, and L5-S1 with severe
foraminal stenosis at L5-S1. Dr. Smith diagnosed lumbar degenerative disc disease and chronic
low back pain. He advised that the April 20, 2010 injury caused an exacerbation of appellant’s
symptoms that had returned to his preexisting baseline. Dr. Smith indicated that appellant could
return to full duty and had no impairment with regard to the April 20, 2010 employment injury.
On December 21, 2010 Dr. Aarons agreed with the interpretation provided by Dr. Smith with
regard to appellant’s condition.
Appellant returned to regular duty on December 11, 2010 and worked one full day,
before applying for social security disability. On January 25, 2011 Dr. Aarons indicated that
appellant could work four hours a day with a lifting restriction of 20 pounds. Walking, standing,
sitting, bending, stooping, kneeling, twisting, pulling, pushing, climbing, reaching, and reaching
above the head were limited to one hour. On February 2, 2011 appellant filed a Form CA-7
claim for compensation for the period November 20, 2010 to February 3, 2011. OWCP paid

2

compensation for the period November 20 through 30, 2010, noting that he was released to full
duty on November 30, 2010.
In a February 23, 2011 decision, OWCP terminated appellant’s wage-loss and medical
benefits, effective February 24, 2011. It found that the weight of the medical evidence rested
with the opinion of Dr. Smith who advised that the accepted lumbar sprain and any aggravation
of preexisting condition had ceased and noted that Dr. Aarons agreed with Dr. Smith’s
assessment. Appellant timely requested a review of the written record.
On April 4, 2011 Dr. Aarons noted appellant’s dates of examination, that he had
symptoms of low back pain with physical examination findings of tenderness and spasm in the
lumbar area. He diagnosed multilevel degenerative disc disease with foraminal narrowing at all
lumbar levels, most severe at L5-S1, outlined his course of treatment, and stated that he was
injured while on the job lifting mail. Dr. Aarons opined that appellant’s condition was
“definitely work related at the [employing establishment].” Appellant was separated from the
employing establishment, effective April 20, 2011. In a May 9, 2011 statement, he noted that
social security disability had been approved but asserted that, based on Dr. Aarons’ opinion, he
continued to have work restrictions.
On June 16, 2011 an OWCP hearing representative affirmed the February 23, 2011
decision terminating appellant’s compensation and medical benefits. Further, she found that he
had failed to provide medical documentation of continued disability due to the accepted
traumatic injury that occurred on April 20, 2010. Rather, the medical evidence demonstrated
that appellant’s back condition preexisted the April 10, 2010 injury. The hearing representative
also noted that he had previously filed an occupational disease claim that had been denied.
Appellant appealed the hearing representative’s decision to the Board. In a May 9, 2012
order, the Board remanded the case for the instant claim, adjudicated by OWCP under file
number xxxxxx616, to be consolidated with file number xxxxxx952, followed by an appropriate
decision.
OWCP thereafter doubled the case files. In file number xxxxxx952, appellant filed an
occupational disease claim on January 24, 2011 alleging that for 20 or more years he loaded and
unloaded half-ton trucks, top to bottom, and this caused acute lower back pain with tingling and
weakness in the legs, neck, arm, and shoulder pain. He first realized the condition was caused or
aggravated by employment on April 20, 2010, the date of his traumatic injury which had been
accepted for lumbar sprain. In an attached statement appellant indicated that his chronic back
pain limited standing and sitting, and that he had other medical conditions that caused a loss of
concentration. The employing establishment controverted the occupational disease claim,
maintaining that he did not load or unload trucks and was assigned a passenger van for his
deliveries. OWCP had denied the occupational disease claim on March 21, 2011.
The medical evidence submitted in support of the occupational disease claim included a
May 1, 2008 MRI scan of the lumbosacral spine which indicated that degenerative changes had
progressed since February 1, 2005. An April 20, 2010 lumbosacral spine x-ray demonstrated
mild to moderate degenerative changes. In treatment notes dated August 2 and 27, September 30
and October 25, 2010, Dr. Aarons discussed appellant’s medical problems and reviewed the

3

May 2008 MRI scan. A November 17, 2010 lumbar MRI scan showed multilevel degenerative
changes resulting in neural foramina narrowing at L3-4, L4-5, and L5-S1 where it was most
severe. On November 18, 2010 Dr. Aarons noted the November 17, 2010 MRI scan findings.
He reiterated his findings on December 21, 2010 and January 25, 2011.
In a treatment note dated March 3, 2011, Dr. Aarons repeated his discussion of
appellant’s condition. He stated that lumbar radiculopathy was first diagnosed on January 25,
2005 and advised that a May 2008 lumbar spine MRI scan demonstrated nerve root
impingement. Dr. Aarons noted the findings of the November 2010 MRI scan and concluded
that appellant could return to limited duty with restrictions of no standing, sitting, bending,
stooping, and driving for more than one hour at a time with a 10-pound lifting restriction.2 On
April 4, 2011 he noted symptoms of low back pain and opined that this was definitely related to
lifting mail at the employing establishment.
Under file number xxxxxx616, after reviewing the medical evidence in both case files
and finding no evidence to support disability or residuals from the April 20, 2010 employment
injury, by decision dated September 12, 2012, OWCP again terminated appellant’s benefits
effective August 22, 2012.
On October 5, 2012 appellant requested a hearing. On October 23, 2012 Dr. Aarons
indicated that the conclusions on his April 4, 2011 report were still current. In a January 14,
2013 treatment note he reiterated his description of appellant’s medical diagnoses including
multilevel degenerative disc disease. Dr. Aarons advised that a neurosurgery consult was
rejected.
At the hearing, held on February 15, 2013, appellant’s representative argued that
Dr. Aarons’ reports established that appellant continued to be disabled due to the employment
injury. Appellant thereafter submitted duplicates of evidence previously of record and copies of
regulations regarding the selection of treating physicians under the Energy Employees
Occupational Illness Compensation Program Act. In a March 15, 2013 statement, he maintained
that he was coerced by the medical management nurse, Ms. Pyle, to see Dr. Smith. Appellant
submitted a copy of a March 24, 2011 Social Security Administration decision granting disability
benefits. In an April 24, 2013 statement, a coworker, stated that he had one of the heaviest
collection routes which required physical efforts that were bad for his back.
By decision dated May 7, 2013, an OWCP hearing representative affirmed the
September 12, 2012 decision, finding that the medical evidence established that the lumbar
sprain of April 20, 2010 had resolved and appellant had returned to baseline with regard to the
preexisting degenerative disc disease.
On January 24, 2014 appellant requested reconsideration of the May 7, 2013 decision.
He asserted that the job duties of 25 years of the employing establishment caused his
degenerative back condition which was exacerbated by the April 20, 2010 employment injury.
In reports dated April 30 and July 5, 2013, Dr. Aarons indicated that appellant had severe
multilevel degenerative disc disease with severe foraminal stenosis at L5-S1 that would not
2

Appellant also submitted medical evidence relevant to additional medical conditions not at issue in this case.

4

improve. He opined that appellant’s inability to work as a letter carrier was “directly due to
[appellant’s] lumbar spine injury which I believe was incurred while working for the [employing
establishment].” Dr. Aarons advised that appellant had permanent restrictions due to this injury
of no lifting more than 10 pounds, no stooping, bending, twisting, or reaching over his head, and
driving and sitting should be limited to less than one hour.
In a March 17, 2014 merit decision, OWCP declined to modify the May 7, 2013 decision.
It discussed the evidence submitted and found that Dr. Aarons had not explained how the
April 20, 2010 employment injury caused or aggravated the preexisting multilevel degenerative
disc disease and that he failed to provide medical rationale to support that appellant continued to
have disability or residuals due to the April 20, 2010 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The accepted condition in file number xxxxxx616 is lumbar sprain caused by an April 20,
2010 employment injury. On September 30, 2010 appellant’s attending physician Dr. Aarons, an
internist, referred appellant for an orthopedic evaluation, and he was seen by Dr. Smith, a Boardcertified orthopedic surgeon on November 30, 2010. Appellant filed an occupational disease
claim on January 24, 2011, adjudicated by OWCP under file number xxxxxx952. He alleged
that employment duties over the years caused chronic, radiating back pain.
Under file number xxxxxx616, OWCP terminated appellant’s compensation benefits
effective February 24, 2011. By decision dated March 21, 2011, it denied the occupational
disease claim, file number xxxxxx952. A hearing representative affirmed the termination of file
number xxxxxx616 on June 16, 2011. Appellant filed an appeal of this decision with the Board,
and in an order dated May 9, 2012, the Board remanded the case to OWCP to double the two
files. OWCP doubled the files, and by decision dated September 12, 2012, terminated
appellant’s benefits under file number xxxxxx616, effective August 22, 2012. An OWCP
hearing representative affirmed this decision on May 7, 2013.
Appellant requested
reconsideration of both claims on January 24, 2014. In a May 17, 2014 merit decision on file
number xxxxxx616, OWCP declined to modify the May 7, 2013 decision, finding that
Dr. Aarons failed to provide medical rationale to support that appellant continued to have
disability or residuals due to the April 20, 2010 employment injury. The record indicates that
appellant received no wage-loss compensation after November 30, 2010.

3

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

4

Id.

5

Regarding the termination of benefits under file number xxxxxx616, the Board finds that
the weight of the medical evidence rests with the opinion of Dr. Smith, and that OWCP properly
relied on his opinion in terminating appellant’s compensation and medical benefits for the
April 20, 2010 injury accepted for lumbar sprain.
The medical evidence includes May 1, 2008 and November 17, 2010 MRI scan studies of
the lumbar spine and an April 20, 2010 computerized tomography scan of the lumbar spine.
These demonstrated preexisting multilevel degenerative disc disease but did not provide a cause
of these conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.5
In his November 30, 2010 report, Dr. Smith noted appellant’s history of low back pain
dating back a number of years and that appellant had continued to perform regular job duties. He
reported appellant’s description of the April 20, 2010 employment injury. Dr. Smith reviewed
lumbar x-rays and MRI scan studies and provided comprehensive examination findings in
support of his opinion that the residuals of the April 20, 2010 employment injury had ceased and
that appellant had returned to baseline with regard to his preexisting degenerative back condition.
He advised that appellant could return to full duty.
On December 21, 2010 Dr. Aarons noted his agreement with Dr. Smith’s assessment
regarding appellant’s back condition. He also noted in March and April 2011 and October 2012
that lumbar radiculopathy had first been diagnosed in January 2005 and that appellant had
symptoms of low back pain with physical examination findings of tenderness and spasm in the
lumbar area, and diagnosed multilevel degenerative disc disease of the lumbar spine. Dr. Aarons
opined that this was related to appellant’s federal employment. He, however, did not explain
how the diagnosed condition was caused by the April 20, 2010 lumbar sprain or indicate why or
if his agreement with Dr. Smith’s assessment had changed. Moreover, degenerative disc disease
has not been accepted as employment related.
The weight of the medical evidence, as characterized by Dr. Smith’s report and
Dr. Aarons’ December 21, 2010 concurrence, established that the April 20, 2010 lumbar sprain
had resolved. The condition of degenerative disc disease of the lumbar spine has not been
accepted as employment related. OWCP therefore met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits under file number xxxxxx616,
effective August 22, 2012.6
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s wage-loss compensation on
August 22, 2012, the burden shifted to him to establish any continuing disability causally related
5

Willie M. Miller, 53 ECAB 697 (2002).

6

The Board also notes that a second pretermination notice was not required prior to the August 22, 2012
termination. Appellant only received wage-loss compensation for the period June 5 to November 30, 2010. OWCP
procedures provide that a pretermination notice is not required when a beneficiary has no reasonable basis to expect
that payment of compensation will continue or when compensation has been paid for less than one year. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4.a (February 2013).

6

to the accepted lumbar conditions.7 Causal relationship is a medical issue. 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.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established continuing residuals of his accepted
lumbar sprain on or after August 22, 2012.
The regulations regarding Energy Employees Occupational Illness Compensation
Program Act are of no probative value in this case administered under FECA. As to the Social
Security Administration decision dated March 24, 2011 granting disability benefits, the
determination of an employee’s rights or remedies under other statutory authority does not
establish entitlement to benefits under FECA.9
As noted above, the diagnostic studies found in the record did not provide a cause of any
diagnosed conditions and medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.10
Appellant also submitted reports from Dr. Aarons dated March 3, 2011 to July 5, 2013.
As noted above, Dr. Aarons indicated that lumbar radiculopathy had first been diagnosed in
January 2005. On April 4, 2011 he advised that appellant’s condition was definitely related to
his employment and indicated on October 23, 2012 that this conclusion was still current. In
April 30 and July 5, 2013 reports, Dr. Aarons advised that appellant had severe multilevel
degenerative disc disease with severe foraminal stenosis at L5-S1 that would not improve and
opined that his inability to work as a letter carrier was directly due to his lumbar spine injury
which, he believed was due to working for the employing establishment. In none of these
reports, however, did Dr. Aarons specifically indicate that appellant was disabled due to the
April 20, 2010 lumbar sprain or relate his diagnosed degenerative low back condition to the
April 20, 2010 lumbar sprain at issue in the present case. The Board therefore finds that
Dr. Aarons’ opinion is of insufficient probative value to meet appellant’s burden to establish that
he has continued work-related disability due to the accepted April 20, 2010 lumbar sprain after
the termination of benefits on August 22, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

7

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

8

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

9

J.F., 59 ECAB 331 (2008).

10

Supra note 5.

7

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective August 22, 2012 as he had no residuals of the
accepted lumbar sprain and that he failed to establish continuing employment-related disability
or condition after that date causally related to the April 20, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 14-1423
Issued: November 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 10, 2014 appellant filed a timely appeal from a March 17, 2014 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.
ISSUE
The issue is whether appellant established any additional compensable work factors in
support of her emotional condition claim.
FACTUAL HISTORY
The case was before the Board on a prior appeal. Appellant filed a claim for
occupational disease (Form CA-2) on February 23, 2011. She alleged that she was subject to
harassment and bullying by management and coworkers, including having a noose hung in the
1

5 U.S.C. § 8101 et seq.

office. OWCP issued an April 4, 2011 decision denying the claim on the grounds that the
evidence did not establish that the incidents occurred as alleged. By decision dated July 8, 2011,
it found appellant did not establish any compensable work factors. In a decision dated
October 31, 2011, OWCP noted that she had filed a prior claim and stated “the majority of your
claim cites work factors which were previously claimed” under the prior claim. It again found
no compensable work factors were established.
In a decision dated February 13, 2012, OWCP found that appellant did not establish any
compensable work factor. The decision stated that the evidence was now sufficient to establish
“your supervisor improperly called your psychologists office” in early 2010, but this was not a
compensable work factor. By decision dated June 8, 2012, OWCP found no compensable work
factors were established.
By order dated February 27, 2013, the Board remanded the case to OWCP.2 The Board
noted that in the June 8, 2012 decision OWCP had referred to a prior claim and stated that most
of the alleged factors had been considered under that claim. The Board remanded the case to
combine the case files for proper adjudication of the issue.
On record, OWCP combined the claim files. In the prior claim, appellant filed a Form
CA-2 on February 24, 2010, alleging that she was subject to harassment, being singled out,
having work taken away, being subject to changing schedules and worksites. She also made an
allegation in a March 3, 2010 statement of seeing a noose hanging at one of the carrier’s cases.
By decision dated July 22, 2010, OWCP accepted the following as compensable work
factors: (1) Between late 2007 and January 2008 a noose was hanging in an employee’s desk
area and upon notifying management it was not removed and no action was taken until late
January 2008; (2) a coworker called appellant “cuckoo” and made “cuckoo” sounds in her
vicinity following a conversation about the noose; (3) a note left for a supervisor regarding her
route used derogatory language; and (4) appellant’s supervisors and coworkers had access to her
personal medical information and the contents of her Equal Employment Opportunity (EEO)
complaints; and (5) her supervisor contacted her physician to request private health information
and refused to honor her doctor’s note. OWCP found the medical evidence was insufficient to
establish an employment-related emotional condition due to any of the compensable factors.
Appellant submitted an October 20, 2010 report from Dr. Michael Schwartz, Ph.D a
clinical psychologist. On January 20, 2011 OWCP accepted the claim for major depressive
disorder, single episode and adjustment disorder, mixed anxiety and depressed mood. Appellant
was paid wage-loss compensation from January 25 to April 18, 2010.3
As noted above, the Board had reviewed a June 8, 2012 OWCP decision that did not refer
to the acceptance of the claim or the work factors accepted as compensable by OWCP. In this
regard, appellant had submitted a March 1, 2012 statement. She alleged her privacy had been
violated by a Supervisor Sloan, who called her physician. According to appellant, she was
2

Docket No. 12-1434 (issued February 27, 2013).

3

Appellant filed a Form CA-7 claim for compensation for the period January 25 to April 30, 2010.

2

subject to disparate treatment and derogatory comments. She alleged that on February 15, 2011
she was referred to as “the trash” by supervisors and her supervisor’s violation of regulations had
caused a hostile environment. Appellant also referred to a Supervisor Walicki, who she alleged
retaliated against her for filing EEO complaints. She noted a letter of warning and stated that her
route was “screwed up” and caused her stress.
By decision dated March 17, 2014, OWCP reviewed appellant’s March 1, 2012
allegations and found no additional compensable work factors had been established.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.4 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
In the present case, the only decision before the Board is the March 17, 2014 decision
which was limited to a determination that appellant did not have any additional compensable
4

Pamela R. Rice, 38 ECAB 838 (1987).

5

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

3

work factors. The case files were administratively combined and will be considered together.
As the case history indicates, OWCP did accept compensable work factors and accepted major
depressive disorder, single episode and adjustment disorder, mixed anxiety and depressed mood.
Appellant submitted a Form CA-7 claim for compensation and was paid from January 25 to
April 18, 2010. If appellant is seeking additional wage-loss compensation related to the accepted
conditions, she may submit an appropriate Form CA-7 and pursue the issue but on this appeal,
the only issue was whether there were additional compensable work factors.
In this regard, the Board notes that appellant’s March 1, 2012 letter refers to some factors
that have already been accepted by OWCP as compensable. OWCP accepted as a compensable
factor, in the July 22, 2010 decision, that a supervisor contacted appellant’s physician. In a later
February 13, 2012 decision, it indicated that, while it was accepted that appellant’s supervisor
improperly contacted the physician by telephone, which did not constitute a compensable work
factor. The Board notes that 20 C.F.R. § 10.506 of OWCP’s implementing regulations
specifically prohibits an employing establishment from contacting a physician by telephone.9
The record established error by the employing establishment in this regard and it is a
compensable work factor, as found in the July 22, 2010 OWCP decision in file number
xxxxxx247.
As to the other allegations in appellant’s March 1, 2012 letter, no evidence was submitted
to support a finding of an additional compensable work factor. With respect to allegations of
harassment or disparate treatment, a claimant must establish a factual basis for the claim by
supporting the allegations with probative and reliable evidence.10 An employee’s allegation that
he or she was harassed or discriminated against is not determinative of whether or not
harassment occurred.11 While appellant refers in the March 1, 2012 letter to specifically
numbered exhibits, the record did not contain any such evidence submitted with the letter. It is
not clear what specific evidence she is referring to in this regard. On August 2, 2011 appellant
had submitted a statement from Supervisor Walicki dated March 11, 2011, denying her
allegations of a hostile work environment. The general allegations of harassment and disparate
treatment are not sufficient to establish a compensable work factor and there is no supporting
evidence. There are, for example, no findings with respect to an EEO proceeding or other
probative evidence.12 With respect to a November 19, 2010 letter of warning, appellant
presented no evidence of error or abuse.13

9

An employing establishment may contact the physician in writing concerning work limitations, but may not
contact the physician through telephone or personal visit. 20 C.F.R. § 506.
10

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

11

Helen P. Allen, 47 ECAB 141 (1995).

12

The record contained an undated EEO decision, received by OWCP on November 1, 2010, finding that
appellant’s claim was improperly dismissed for failure to state a claim but no findings were made with respect to the
actual allegations of reprisal or discrimination.
13

Disciplinary actions such as a letter of warning are not compensable work factors unless there is evidence of
error or abuse by the employing establishment regarding the disciplinary action. See G.C., Docket No. 13-704
(issued April 4, 2014).

4

The Board finds that the record does not establish any additional compensable work
factors beyond those accepted in the July 22, 2010 decision, in the prior claim. As noted, if
appellant is seeking additional wage-loss compensation she may pursue such claim with OWCP.
CONCLUSION
The Board finds that appellant has not established any additional compensable work
factors beyond those previously accepted in a July 22, 2010 decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 17, 2014 is modified to reflect that a telephone call from a
supervisor to appellant’s physician is a compensable work factor and affirmed as modified.
Issued: November 21, 2014
Washington, DC

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

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

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

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

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

Docket No. 10-1830
Issued: June 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 1, 2010 appellant filed a timely appeal from a May 13, 2010 decision of the
Office of Workers’ Compensation Programs affirming the September 2, 2009 denial of her
recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 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 has established a recurrence of disability beginning
March 3, 2009 due to her accepted bilateral wrist and hand tenosynovitis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2006 appellant, then a 52-year-old mail processor clerk, filed an occupational
disease claim alleging that on July 6, 2006 she first realized that her bilateral wrist tendinitis was
employment related. The Office accepted the claim for bilateral wrist flexor tendinitis.2
On June 1, 2007 appellant accepted a temporary light-duty job which noted that she was
responsible for providing an updated duty status report (Form CA-17) yearly or when changes
occurred in her condition. Restrictions for the position included: no lifting more than five
pounds; no sitting more than 8 hours; intermittent standing; kneeing; twisting and walking up to
15 minutes; no climbing; up to 8 hours pushing/pulling; reaching above the shoulder; fine
manipulation and simple grasping; and no machine operation. The duties of the position were
ensuring mail was available and ready as related to the dispatch schedule and cull and sweat
letter trays for carriers.
A February 9, 2009 duty status report completed by Dr. Robert J. Harrison, a Boardcertified internist and occupational medicine specialist, contained diagnoses of foot and hand
pain. Restrictions included 15 minutes an hour of standing and walking up to 4 hours a day;
pulling/pushing; simple grasping and lifting/carrying up to five pounds for 2 hours a day; no
climbing; and up to 8 hours of kneeling, bending/stooping and twisting.
In a May 15, 2009 letter, Glynes Griffin, a supervisor, denied that appellant was required
to work outside her restrictions and provided a copy of a March 30, 2009 modified job offer and
a March 6, 2009 letter informing her that the employing establishment considered her to be
absent without leave (AWOL) beginning February 19, 2009. She stated that appellant’s
modified job complied with her work restrictions of standing 15 minutes an hour for 4 hours and
that most days appellant did not stand. Ms. Griffin related that appellant’s work area was
changed when she complained about walking so she had a chair and table placed within a few
steps of her work area perimeter. Appellant’s job required no operation of machinery so no
standing was required as was no pushing or pulling of heavy equipment. Ms. Griffin related that
appellant stopped working on February 14, 2009 when Ms. Griffin warned her about a 45-minute
break which allegedly stressed appellant out. In concluding, she contended that appellant’s
modified work complied with the work restrictions set by her physician and that appellant was
not sent home in February 2009.
The duties of the March 30, 2009 modified job assignment of mail processor listed four
hours of quality checks of trayed mail and three hours of culling oversized mail. Physical
restrictions of the job included 2 hours a day of simple grasping up to five pounds and
intermittent lifting/carrying of up to five pounds and walking/standing of “15 min[ute]s 4 h[ou]rs
day.”
On June 24, 2009 the Office received appellant’s claim for wage-loss compensation
(Form CA-7) for the period March 3 to 27, 2009 and March 10, 2009 letter from Geoffray
Dumaguit, Jr., her union representative. Mr. Dumaguit stated that he had advised appellant not
2

By decision dated March 24, 2009, the Office denied appellant’s claim for a schedule award on the grounds that
the medical evidence failed to demonstrate a measurable permanent impairment.

2

to report to work as of March 3, 2009 until the employing establishment provided her with a
medically suitable job offer.
In a letter dated July 9, 2009, the Office noted receipt of appellant’s claim for wage-loss
compensation and informed her that it would be treated as a claim for a recurrence of disability.
Appellant was advised that the medical and factual evidence required to support her recurrence
claim as the evidence of record was currently insufficient to support her claim.
Appellant responded to the Office’s request in a July 13, 2009 letter in which she
contended that her work duties and assignment had been changed beginning February 2009. She
alleged that in the new assignment she was required to walk more than 15 minutes every hour,
carry trays weighing more than 10 pounds, continuous grasping of mail weighing more than 5
pounds and push and pull carts weighing more than 50 pounds for over 2 hours a day. Appellant
noted that these duties exceeded her work restrictions and aggravated her condition such that she
could not work. In concluding, she stated that the employing establishment failed to provide her
with a medically suitable job and that she indicated that there was no job for her within her
restrictions.
In an August 18, 2009 letter, appellant reiterated that the new assignment required her to
work outside her restrictions as it required lifting, pushing, pulling and carrying over 10 pounds
when her restrictions were 5 pounds. She noted that her supervisor would verbally give her
assignments for the day and that no written job offer was given. Appellant alleged that the first
time she and Mr. Dumaguit were aware of a written job offer was the week prior to the date of
the letter.
In a letter dated August 18, 2009, appellant’s representative related that the March 2009
job offer sent by the employing establishment to the Office had not been given to appellant at
that time. He contended the new job offer was not suitable as it listed general duties without
providing specific descriptions of what the duties entail. In addition, the hours for the physical
restrictions and the duties do not add up to eight hours, so appellant’s representative wondered
what appellant would be doing the remaining hours.
By decision dated September 2, 2009, the Office denied appellant’s recurrence claim.
The Office found appellant failed to establish that her condition had worsened or that she was
unable to perform her limited-duty job.
On September 17, 2009 appellant requested an oral hearing before an Office hearing
representative, which was held on February 24, 2010.3
Following the hearing, appellant submitted an undated statement from Laura Bernardino,
a retired coworker, stating that when Ms. Griffin became appellant’s supervisor she noticed that
appellant was given additional work including pushing a cart of mail, which could weigh up to
100 pounds. Ms. Bernardino related that she had seen appellant carrying a tray of mail weighing
20 pounds, culling mail standing up and doing more walking back and forth.

3

Appellant retired from the employing establishment effective October 31, 2009.

3

In a report dated March 18, 2010, Dr. Harrison stated that appellant was examined on
March 30, 2009 for bilateral tingling, numbness and wrist pain. He stated that on April 9, 2009
he indicated that she was unable to return to work as no suitable job had been offered to her. In
concluding, Dr. Harrison reported that recent magnetic resonance imaging scans revealed
objective tenosynovitis evidence and small wrist joint effusion which he attributed to appellant’s
working outside of her restrictions.
By decision dated May 13, 2010 an Office hearing representative affirmed the denial of
appellant’s recurrence claim.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.4
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.5 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.6
ANALYSIS
The Office accepted appellant’s claim for bilateral wrist flexor tendinitis. She filed a
claim for a recurrence of total disability beginning March 3, 2009. Appellant has the burden to
provide medical evidence establishing that she was disabled on March 3, 2009 due to a
worsening of her accepted bilateral wrist flexor tendinitis or a change in her job duties such that
she was unable to perform her light-duty work.

4

Richard A. Neidert, 57 ECAB 474(2006); Cecelia M. Corley, 56 ECAB 662 (2005); A.M., Docket No. 09-1895
(issued April 23, 2010).
5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
6

Id. See A.M., supra note 4; K.S., Docket No. 08-2105 (issued February 11, 2009); Hubert Jones, Jr., 57 ECAB
467 (2006).

4

The Board finds that appellant has not submitted medical evidence in support of a change
in her injury-related condition on March 3, 2009. While she submitted a narrative statement and
testified that her condition had been aggravated by her work duties, appellant has not submitted a
medical report consistent with her assertions. The only medical report addressing a worsening of
her condition is a March 18, 2010 report from Dr. Harrison in which he contended that she was
totally disabled on April 9, 2009 because there was no suitable work available for her and that
objective testing revealed objective tenosynovitis evidence and small wrist joint effusion which
he attributed to her working outside of her restrictions. However, Dr. Harrison provided no
rationale explaining his conclusion that appellant’s condition had worsened due to working
outside her restrictions or identified how she was required to work outside of her restrictions. As
his report contains no rationale explaining his conclusion, his report is insufficient to support that
appellant sustained a worsening of her condition.7
The record also contains duty status forms containing work restrictions. Appellant’s
September 14, 2006 work restrictions included limited lifting, pushing/pulling up to 10 pounds
for eight hours a day and two hours of standing and walking. Dr. Harrison revised her work
restrictions on October 6, 2008 to no lifting, pushing and pulling more than five pounds for 8
hours and sitting and standing were limited to 15 minutes every hour for up to 8 hours. On
February 9, 2009 he limited the amount of lifting, pushing and pulling five pounds to two hours a
day. The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8 As appellant has not submitted medical evidence supporting that
she sustained a change in the nature and extent of her injury-related condition on or after
March 3, 2009, she has not met her burden of proof that she sustained a material worsening of
her condition.
Appellant has alleged that there was a change in the light-duty job, as she was required to
exceed her work restrictions. Although Dr. Harrison reported that she worked outside of her
restrictions, he does not explain how and why this debilitated her thereby rendering her incapable
of working.
The record also contains a statement from Ms. Bernardino, a retired coworker, supportive
of appellant’s allegations that she was required to work outside her restrictions. Ms. Bernardino
related that she had observed appellant being given additional work including pushing a heavy
cart of mail, carrying heavy trays of mail, culling mail standing up and doing more walking back
and forth. However, her statement provided no specific dates when she observed appellant
working outside her restrictions. This statement is in contrast to Ms. Griffin’s previous response
in which she indicated that appellant was not required to work outside of her restrictions.
Additionally, Ms. Griffin previously indicated that most days appellant did not stand. She also
noted changing appellant’s work area when she complained about walking so that she had a chair
and table placed within a few steps of her work area perimeter. Ms. Bernardino’s statement
7

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).
8

William A. Archer 55 ECAB 674, 679 (2004).

5

indicated that appellant performed certain activities requiring more walking, standing and lifting
while at work but they do not relate the precise time and place in which appellant was observed.
This statement is insufficient to show that there was a change in the nature and extent of
appellant’s light-duty job requirements.
The Board accordingly finds that appellant did not meet her burden of proof in this case.
Appellant did not establish a change in the nature and extent of the injury-related condition or the
light-duty job and the Office properly denied the claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability on or after March 3, 2009, causally related to her accepted employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 13, 2010 is affirmed.
Issued: June 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF DEFENSE, PENTAGON
FORCE PROTECTION AGENCY,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-1705
Issued: May 5, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant, through her attorney, filed a timely appeal of the April 5,
2010 merit decision of the Office of Workers’ Compensation Programs denying modification of
a wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation Act,1
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant established that modification of the Office’s May 19, 2005
wage-earning capacity determination is warranted.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on August 13, 2002 appellant, then a 34-year-old physical
security specialist, sustained cervical and lumbosacral strains with radiculopathy and a
concussion as a result of a motor vehicle accident. She stopped work on the date of injury. On
October 25, 2002 Dr. Michael E. Batipps, an attending Board-certified neurologist, released
appellant to return to work four hours per day with restrictions.
In a June 12, 2003 medical report, Dr. Robert F. Draper, Jr., a Board-certified orthopedic
surgeon and Office referral physician, listed normal findings on physical examination. He
advised that appellant had cervical, thoracic and lumbosacral strains based on her complaints of
discomfort in these body parts. Dr. Draper concluded that she could perform her regular work
duties as a security specialist, eight hours per day with no restrictions.
In a September 15, 2003 report, Dr. Batipps reviewed Dr. Draper’s June 12, 2003
findings. He stated that in addition to Dr. Draper’s diagnoses, appellant had lumbosacral and
cervical radiculopathy causally related to her August 13, 2002 employment injuries. Dr. Batipps
disagreed with Dr. Draper’s finding that appellant could work eight hours per day with no
restrictions. He advised that she could work six hours per day with restrictions.
On September 22, 2003 appellant returned to limited-duty work as a physical security
specialist, six hours per day. Her return to work was effective September 29, 2003.
In a May 19, 2005 decision, the Office reduced appellant’s compensation effective
September 29, 2003 based on its determination that her actual wages as a modified physical
security specialist working 30 hours a week fairly and reasonably represented her wage-earning
capacity.
On December 17, 2008 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period commencing February 8, 2008. On the claim form, the employing establishment
advised that she resigned on July 11, 2006.
In reports dated February 8 through December 17, 2008, Dr. Batipps reported his findings
on neurological examination which included tenderness and spasm in the cervical and
lumbosacral spines and tenderness in the right shoulder. Appellant had decreased pinprick
sensation and a limping gait. Dr. Batipps reviewed the results of magnetic resonance imaging
(MRI) scans and an electromyogram/nerve conduction velocity (EMG/NCV) study which were
normal. He diagnosed chronic post-traumatic cervical and lumbosacral pain and chronic pain in
the upper and lower extremities. Dr. Batipps advised that the diagnosed conditions were causally
related to appellant’s August 13, 2002 employment injuries. He concluded that she was
indefinitely totally disabled.
In a February 10, 2009 letter, the employing establishment controverted appellant’s claim
on the grounds that the medical evidence of record failed to establish that she sustained a
recurrence of disability due to her August 13, 2002 employment-related injuries.

2

By letter dated March 24, 2009, the Office requested that appellant file a recurrence claim
(Form CA-2a) for her disability commencing February 8, 2008. It also requested that she submit
additional factual and medical evidence.
In an April 29, 2009 report, Dr. Batipps again found tenderness in the cervical and
lumbosacral spines and shoulders, diminished pinprick sensation in the right upper extremity and
a limping gait due to pain. There was also tenderness in the lower extremities. Appellant had
decreased range of motion of the lumbosacral spine and motor strength. Dr. Batipps diagnosed
chronic cervical and lumbosacral radiculopathy and post-traumatic headaches and dizziness due
to her August 13, 2002 employment injuries. Appellant was status postconcussion due to the
accepted injuries. Dr. Batipps advised that the diagnosed conditions interfered with her ability to
use her right upper extremity and perform sedentary work. He concluded that appellant was
indefinitely totally disabled due to her employment-related conditions.
By letter dated June 11, 2009, the Office again requested that appellant file a
Form CA-2a. It also advised her that the evidence submitted was insufficient to establish her
claimed total disability.
On July 9, 2009 appellant filed a Form CA-2a contending that she never recovered from
her accepted employment-related conditions. In a September 10, 2009 report, Dr. Batipps
advised that, although EMG/NCV studies performed on July 23 and August 14, 2009 were
normal, appellant had cervical and lumbosacral radiculopathy symptoms. He stated that it may
have been difficult for the tests to identify her lumbosacral radiculopathy due to poor muscle
relaxation.
In a September 30, 2009 decision, the Office denied appellant’s recurrence of disability
claim. Appellant failed to submit any rationalized medical evidence establishing that she was
totally disabled for work commencing February 8, 2008 due to her August 13, 2002 employment
injuries.2
On October 24, 2009 appellant, through her attorney, requested a telephonic hearing with
an Office hearing representative. In a January 15, 2010 report, Dr. Batipps noted that there had
been no fundamental change in his neurological examination over the past two to three years.
He reiterated his findings of tenderness and decreased range of motion and sensation related to
appellant’s cervical and lumbosacral spines and right upper extremity. Dr. Batipps also
reiterated his diagnoses of chronic cervical and lumbosacral radiculopathy, post-traumatic
headaches and dizziness and status postconcussion due to appellant’s August 13, 2002
employment injuries. He advised that she had reached maximum medical improvement.
Dr. Batipps concluded that appellant’s prognosis for returning to work was poor. Appellant
would continue to experience long-term disability.

2

In the September 30, 2009 decision, the Office indicated that on October 2, 2005 appellant’s wage-loss
compensation was terminated because she had returned to full-time work with no loss of wages. The employing
establishment advised the Office that appellant was released to perform full-duty work effective June 6, 2005. The
Board notes that the record does not contain any evidence establishing that the Office made a formal loss of wageearning capacity determination in October 2005 regarding appellant’s return to full-time employment.

3

In an April 5, 2010 decision, an Office hearing representative affirmed the September 30,
2009 decision with a modification. He determined that appellant’s claim for a recurrence of
disability commencing February 8, 2008 should be treated as a request for modification of the
Office’s May 19, 2005 loss of wage-earning capacity decision. The hearing representative found
that the evidence did not establish a material change in appellant’s medical condition, that she
had been retrained or vocationally rehabilitated or that the original loss of wage-earning capacity
decision was erroneously issued. Accordingly, he found that the evidence was insufficient to
establish that the May 19, 2005 loss of wage-earning capacity decision should be modified.
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.3 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.4 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.5
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.6 The Office’s procedure manual provides that, if a formal loss of wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.7 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.8
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that the
May 19, 2005 wage-earning capacity decision should be modified.

3

5 U.S.C. § 8115(a); Lee R. Sires, 23 ECAB 12, 14 (1971) (the Board held that actual wages earned must be
accepted as the measure of a wage-earning capacity in the absence of evidence showing they do not fairly and
reasonably represent the employee’s wage-earning capacity). K.R., Docket No. 09-415 (issued February 24, 2010).
4

Roy Matthew Lyon, 27 ECAB 186, 190 (1975), Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); K.R., supra
note 3.
5

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

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
8

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

4

The Office accepted that appellant sustained cervical and lumbosacral strains with
radiculopathy and a concussion as a result of a motor vehicle accident that occurred in the
performance of duty on August 13, 2002. On May 19, 2005 it determined that her actual
earnings as a modified physical security specialist fairly and reasonably represented her wageearning capacity. Appellant claimed a recurrence of disability commencing February 8, 2008.
In a decision dated September 30, 2009, the Office found that the medical evidence was
insufficient to establish an employment-related recurrence of disability. On April 5, 2010 an
Office hearing representative affirmed and modified the September 30, 2009 decision to reflect
that the evidence was insufficient to establish that the May 19, 2005 loss of wage-earning
capacity determination should be modified. Because a formal decision of appellant’s loss of
wage-earning capacity was in place when she filed the recurrence of disability claim, the Office
properly adjudicated the case as a request for modification of an established loss of wage-earning
capacity.9
Appellant did not allege that the original loss of wage-earning capacity determination was
erroneous. There is also no evidence that her modified physical security specialist position was
part time, seasonal or temporary or that the wages received were not equal to or greater than her
wages on the date of injury. The issue, therefore, is whether appellant has established a material
change in the nature and extent of her employment-related conditions warranting modification of
the May 19, 2005 wage-earning capacity determination.
Appellant has submitted insufficient probative medical opinion on this point. Dr. Batipps
found that her cervical and lumbosacral radiculopathy, post-traumatic headaches and dizziness
were causally related to the August 13, 2002 employment injuries. He noted that appellant was
totally disabled for work commencing February 8, 2008 due to the accepted employment
injuries. Dr. Batipps stated that the diagnosed conditions prevented her from using her right
upper extremity and performing sedentary work. Although he offered an opinion that appellant’s
cervical, lumbosacral and headache conditions worsened and rendered her totally disabled
commencing February 8, 2008, he offered little medical rationale to support his stated
conclusion. Dr. Batipps did not adequately explain how the normal MRI scans or EMG/NCV
studies supported his clinical finding of a material worsening of appellant’s employment-related
condition or total disability. He explained that it “may” have been difficult for the normal
EMG/NCV studies to identify appellant’s lumbosacral radiculopathy due to poor muscle
relaxation is speculative in nature and of diminished probative value.10 Dr. Batipps did not
provide any other medical rationale to support his clinical findings of a material worsening of her
employment-related conditions and resultant total disability.
The Board finds that appellant has not established that the 2005 wage-earning capacity
determination was erroneous. Appellant has not established that she sustained a material change
in her accepted conditions that caused total disability as of February 8, 2008, the date she
stopped work.

9

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA)
Procedure Manual, supra note 7.
10

L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

5

CONCLUSION
The Board finds that appellant has failed to establish that modification of the Office’s
May 19, 2005 wage-earning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6