United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Pine Knot, KY, Employer
__________________________________________

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

Docket No. 09-754
Issued: January 15, 2010

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 26, 2009 appellant filed a timely appeal from a January 8, 2009 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the denial of his
claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
December 16, 2007 causally related to his January 18, 2007 injury.
FACTUAL HISTORY
On January 18, 2007 appellant, then a 39-year-old corrections officer, injured his right
knee, back, neck and left arm when trying to restrain an inmate. The Office accepted his claim
for cervical intervertebral disc disorder with myelopathy, right knee and leg contusion, closed
dislocations of cervical and thoracic vertebrae. Appellant stopped work on January 18, 2007 and
returned to a light-duty position on January 21, 2007.

Appellant was initially treated on January 19, 2007 by Dr. Dennis U. Anciro, a Boardcertified emergency room physician. A January 26, 2007 x-ray of the cervical spine revealed
lower cervical spondylosis and compression fracture involving C6. A magnetic resonance
imaging (MRI) scan of the cervical spine dated February 9, 2007 revealed bulging and a right
posterior-lateral herniation at C3-4 and C6-7 flattening the cord and bulging disc at C4-5 and
C5-6 flattening the cord and producing lateral stenosis.
Appellant came under the treatment of Dr. Magdy M. El-Kalliny, a Board-certified
orthopedic surgeon, from March 6 to June 18, 2007. Dr. El-Kalliny diagnosed large C5 broadbased disc herniation, left C6 radiculopathy and C4-5 disc herniation. He recommended
conservative treatment of physical therapy and epidural injections. On April 24, 2007
Dr. El-Kalliny advised that appellant was not responding to conservative treatment and
recommended surgical intervention. On June 18, 2007 he performed anterior cervical
discectomy and fusion of C5-6 and diagnosed left C6 radiculopathy due to C5-6 disc herniation.
Appellant was referred to Dr. Todd A. Bramble, a chiropractor, who treated him from March 19
to August 21, 2007 for spinal injuries incurred at work. Dr. Bramble diagnosed subluxation of
the cervical region and thoracic region, intervertebral disc disorder of the cervical region and
thoracic strain. His treatment consisted of spinal manipulation, electric stimulation and
percussive massage therapy.
On August 1, 2007 Dr. El-Kalliny noted that appellant was progressing well
postoperatively and could return to work light duty on August 6, 2007 subject to a 15-pound
lifting restriction, no inmate contact and the ability to rest his head for 15 to 20 minutes as
needed. In a September 26, 2007 work capacity evaluation, he advised that appellant could
return to work full time with restrictions of no pushing, pulling or lifting over 15 pounds, no use
of force, he is not able to participate in weapons training and rest his head as needed.
On September 28, 2007 the employing establishment offered appellant a temporary
alternative-duty assignment subject to the restrictions set forth by Dr. El-Kalliny on
September 26, 2007. The job duties included auditing three by five cards located in control and
in the lieutenants office, assisting with auditing the detail pouches and cards, assisting with all
control room functions and screening packets of incoming inmates. On September 30, 2007
appellant accepted the position but contended that he was not being treated fairly and his
supervisor addressed him in a hostile and intimidating manner.
Appellant submitted a November 20, 2007 note and duty status report from
Dr. El-Kalliny, who advised that appellant was status post C5-6 cervical fusion and could return
to full-time work on November 20, 2007 with a 30-pound lifting restriction. On December 17,
2007 he treated appellant for neck pain and noted that appellant was off work until
January 9, 2008. A January 11, 2008 MRI scan of the cervical spine revealed disc bulges at
C3-4, C4-5, C6-7. Appellant was also treated by Dr. Bramble from September 21 to
December 28, 2007 for upper back pain, spasm and soreness. Dr. Bramble diagnosed
subluxation of the thoracic spine. In a December 23, 2007 attending physician’s report, he noted
that appellant was injured on January 18, 2007 when restraining an inmate. Dr. Bramble noted
with a checkmark “yes” that appellant’s condition was caused or aggravated by a work injury. In
a December 28, 2007 report, he noted treating appellant for the January 18, 2007 work injury and
advised that appellant sustained permanent damage due to the injury. Dr. Bramble noted that

2

appellant sustained another work injury on December 15, 2007 which aggravated his underlying
condition and caused new problems. The chiropractor took appellant off work due to his
inability to perform light duty.
On January 30, 2008 appellant filed a Form CA-2a, notice of recurrence of disability,
alleging that on December 16, 2007 a coworker hit him in the shoulder, pushed him into a
concrete wall and punched him in the head. He experienced neck and back pain with tingling
and numbness in the left arm. At the time of the recurrence he was working limited duty with
restrictions.
By letter dated February 5, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his recurrence claim. It requested that he submit a physician’s
reasoned opinion addressing the relationship of his claimed recurrent condition and specific
employment factors.
In February 8, 2008 report, Dr. El-Kalliny treated appellant for cervical radiculopathy.
He advised that appellant was off work due to a significant delay in recovery following to a
second injury on December 15, 2007. On February 12, 2008 Dr. El-Kalliny noted a history of
appellant’s treatment and subsequent surgery for a C5-6 disc herniation resulting from the
January 18, 2007 work injury. He released appellant to work on August 6, 2007 with
restrictions. On December 17, 2007 Dr. El-Kalliny treated appellant on an emergency basis as
he reported being assaulted by a coworker and subsequently experiencing left arm tingling,
headaches and an inability to turn his head. He indicated that appellant’s condition worsened
because of the new injury and appellant had a recurrence of neck and left arm pain, weakness
and neck spasms and was taken off work. Dr. El-Kalliny opined that appellant had a recurrence
of symptoms that were originally caused by the January 18, 2007 work injury. He advised that
the December 2007 injury led to a worsening of appellant’s original condition.
In a decision dated March 11, 2008, the Office denied appellant’s claim for a recurrence
of disability.1
On March 18, 2008 appellant requested a telephonic oral hearing, which was held on
July 14, 2008. He submitted a March 26, 2008 report from Dr. El-Kalliny who noted his
complaints of neck pain and pain radiating into the left shoulder and left arm. Dr. El-Kalliny
noted findings of some limitation of left lateral rotation, numbness in the left shoulder, mild
strength deficit measured as four out of five in the upper and lower extremities, symmetric
reflexes and normal gait. He found appellant totally disabled. On May 6, 2008 Dr. El-Kalliny
noted that appellant completed physical therapy and was doing well functionally with
improvement in strength in the left upper extremity. He returned appellant to work with
restrictions and opined that he sustained a second injury that precipitated reappearance of
symptoms from the first injury. Other treatment notes from Dr. Bramble dated February 18 to
May 30, 2008, diagnosed subluxation of the thoracic and cervical spine and performed spinal
manipulation and electric stimulation.
1

Appellant filed a separate claim for the December 16, 2007 incident and the Office accepted cervical and
thoracic strains in File No. xxxxxx127. This claim was consolidated with the current case before the Board. The
Office authorized continuation of pay.

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On June 19, 2008 appellant requested a telephonic oral hearing which was held on
October 14, 2008.
In a decision dated January 8, 2009, the hearing representative affirmed the March 11,
2008 decision denying appellant’s claim for a recurrence of disability.2
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he 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 show that he 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 requirements.3
Causal relationship is a medical issue4 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.5
ANALYSIS
The Office accepted appellant’s claim for cervical intervertebral disc disorder with
myelopathy, right knee and leg contusion, closed dislocation of the cervical vertebrae, closed
dislocation of the thoracic vertebrae, thoracic and cervical strains. Appellant returned to a fulltime light-duty job on August 6, 2007. He stopped work and claimed disability compensation
beginning December 16, 2007, alleging neck and back pain with tingling and numbness in the
left arm after a coworker assaulted him.6 The Boards finds that appellant has not established a
2

On June 11, 2008 the Office denied appellant’s claim for chiropractic services and physical therapy as not being
required as a result of the work injury. On January 9, 2008 a hearing representative affirmed this decision.
Appellant did not appeal the January 9, 2008 decision.
3

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

6

As noted, appellant filed a separate claim for a work injury occurring on December 16, 2007 which was
accepted by the Office. He was authorized continuation of pay for a period of up to 45 days after this injury which
overlaps with the recurrent period claimed by appellant in the present appeal. Board notes that, pursuant to 5 U.S.C.
§ 8118(c) and 20 C.F.R. § 10.401(a), appellant is not entitled to continuation of pay and wage-loss compensation for
the same period of time.

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change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements.
In a December 17, 2007 note, Dr. El-Kalliny indicated that he treated appellant for neck
pain and took him off work until January 9, 2008. On February 8, 2008 he treated appellant for
cervical radiculopathy and advised that he would be off work due to a second injury on
December 15, 2007. On February 12, 2008 Dr. El-Kalliny noted that on December 17, 2007
appellant was seen on an emergency basis and reported being assaulted by a coworker and
experienced tingling in his left arm, headaches and he was unable to turn his head.
Dr. El-Kalliny indicated that appellant’s condition worsened because of the new injury and he
had a recurrence of neck and left arm pain, weakness and neck spasms that were originally
caused by the January 18, 2007 injury. He opined that the December 2007 injury led to a
worsening of appellant’s original condition.
Dr. El-Kalliny did not provide a rationalized opinion explaining the reasons why
appellant’s recurrent condition and disability on or after December 16, 2007 was due to the
accepted January 18, 2007 work injury.7 He did not note a particular change in the nature of
appellant’s physical condition, arising from the employment injury, which prevented appellant
from performing his light-duty position. Instead, Dr. El-Kalliny attributed appellant’s disability
to a new injury on December 16, 2007 that was developed separately.8 Therefore, the evidence
was insufficient to establish his disability commencing December 16, 2007 was due to residuals
of the January 18, 2007 work injury.
In a March 26, 2008 report, Dr. El-Kalliny noted appellant’s complaints of neck pain
radiating into the left shoulder and left arm and advised that appellant would be off work until
after he completed physical therapy. On May 6, 2008 he noted that appellant was progressing
well and showed improvement in strength in the left upper extremity and returned to work with
restrictions. Dr. El-Kalliny reiterated that appellant sustained a second injury on December 16,
2007 that precipitated the reappearance of symptoms from the first injury. As noted he again
attributed appellant’s disability on December 16, 2007 to a new work injury that was accepted
under a separate claim.
Appellant submitted reports from Dr. Bramble, a chiropractor, who treated him for pain,
spasm and soreness of the upper back and diagnosed subluxation of the thoracic spine. Section
8101(2) of the Federal Employees’ Compensation Act provides that chiropractors are considered
physicians “only to the extent that their reimbursable services are limited to treatment consisting

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Supra note 5.

8

The Board notes that a recurrence of disability is defined as the inability to work after an employee has returned
to work caused by a spontaneous change in the accepted medical condition without any intervening injury. See 20
C.F.R. § 10.5(x).

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of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary.”9
Where x-rays do not establish a subluxation spinal a chiropractor is not a “physician,” as
defined under the Act. His or her reports cannot be considered as competent medical evidence.10
Dr. Bramble did not state that he based his subluxation diagnosis on a review of x-rays. He is
not a physician as he did not diagnose a spinal subluxation as demonstrated by x-ray. Therefore,
Dr. Bramble’s opinion is not considered competent medical evidence under the Act.
The Board finds that the evidence does not substantiate that appellant experienced a
change in the nature and extent of the light-duty requirements or was required to perform duties
which exceeded his medical restrictions. Rather, the medical evidence of record attributed his
disability commencing December 16, 2007 to a new injury sustained on that date.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability on December 16, 2007 causally related to his January 18,
2007 injury.

9

5 U.S.C. § 8101(2); see also section 10.311 of the implementing federal regulations provides: “(c) A
chiropractor may interpret his or her x-rays to the same extent as any other physician. To be given any weight, the
medical report must state that x-rays support the finding of spinal subluxation. [The Office] will not necessarily
require submittal of the x-ray, or a report of the x- ray, but the report must be available for submittal on request.”
10

See Susan M. Herman, 35 ECAB 669 (1984).

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, METROPOLITAN
CORRECTIONAL CENTER, New York, NY,
Employer
__________________________________________

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

Docket No. 13-1217
Issued: November 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2013 appellant filed a timely appeal from an April 8, 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.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective April 8, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has been before the Board on a prior appeal. In a decision dated February 8,
2012, the Board reversed a May 19, 2011 OWCP decision terminating appellant’s wage-loss and
medical benefits.2 OWCP had accepted cervical, thoracic and lumbosacral sprain/strains
causally related to a September 15, 2004 employment incident. The Board found that the report
of the second opinion physician, Dr. William Dinenberg, a Board-certified orthopedic surgeon,
did not provide a rationalized medical report such that OWCP did not meet its burden of proof to
terminate compensation. The history of the case as provided by the Board in its prior decision is
incorporated by reference.
On return of the case record, OWCP referred appellant to Dr. Jonathan Black, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated August 6, 2012,
Dr. Black reviewed a history of injury and medical treatment. On examination he noted
hypersensitivity to palpation along the cervical, thoracic and lumbar spine. Dr. Black reported
decreased range of motion in flexion and extension of the cervical spine with pain. He noted that
the maneuvers performed did not produce radicular symptoms or muscle spasm. As to the
lumbar spine, Dr. Black reported decreased range of motion in flexion and extension. He
referred to prior diagnostic tests, noting an October 2004 lumbar magnetic resonance imaging
(MRI) scan which revealed mild annular bulging at L4-6 without herniation or stenosis. An
October 2004 cervical MRI scan revealed a tear of the posterior annulus with mild bulging C3-4.
An April 2005 electromyography and nerve conduction studies showing a normal lumbar spine
and suggested bilateral C6-7 radiculopathy. With respect to the specific question posed by
OWCP, Dr. Black stated that appellant described chronic neck and back pain, but “[t]here are no
objective medical findings that indicate that the work-related conditions were still active and
causing symptoms other than the claimant’s complaints of pain.” He stated that there were no
objective findings on physical examination to support evidence of any neurologic compromise,
and stated that the cervical, thoracic and lumbosacral sprain/stains had resolved. Dr. Black
concluded that there were “no objective findings on physical examination or thorough review of
radiographic studies or electrodiagnostic studies that would preclude the claimant from returning
to his position as a correctional officer.”
In a letter dated February 25, 2013, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits. It indicated that the proposal was based on the
report from Dr. Black. Appellant was advised to submit evidence or argument within 30 days.
By letter dated March 19, 2013, he indicated that Dr. Black disagreed with the proposed
termination. Appellant stated that he had reported decreased range of motion, but then found his
medical condition had resolved.
By decision dated April 8, 2013, OWCP terminated compensation for wage-loss and
medical benefits. It found the weight of the evidence was represented by Dr. Black.

2

Docket No. 11-1565 (issued February 8, 2012).

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LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.3
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background of reasonable medical certainty and supported by medical
rationale explaining the opinion. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of the analysis manifested and the medical
rationale expressed in support of the physician’s opinion.4
ANALYSIS
OWCP terminated appellant’s compensation for wage-loss and medical benefits,
effective April 8, 2013, based on the report of Dr. Black. The issue presented, as it was on the
prior appeal, is whether the medical evidence was sufficiently rationalized such that it represents
the weight of the medical evidence and meets OWCP’s burden of proof to terminate
compensation.
Dr. Black provided an opinion that the accepted conditions had resolved. The medical
rationale provided for his opinion is that there were “no objective findings” of a continuing
employment-related condition. A review of his report indicates that his statement as to the lack
of objective findings required additional explanation in order to constitute a rationalized medical
opinion. The physical examination findings, for example, clearly noted decreased range of
motion in flexion and extension of the cervical and lumbar spine, as well as sensitivity to
palpation. Board case law has noted a physician’s findings of decreased range of motion in the
spine as an objective finding.5 If Dr. Black felt that in this particular case the findings reported
did not constitute objective findings, or were objective findings but not employment related; he
needed to provide additional explanation.6 OWCP requested a narrative report responding to
questions concerning appellant’s present diagnosis and residuals. Dr. Black, however, provided
only brief statements that the accepted conditions had resolved without adequate explanation. In
addition, he did not discuss his opinion as to lack of objective findings in terms of the diagnostic
studies. Dr. Black’s description of previous studies did refer to objective findings and he did not
provide additional discussion of the issue.

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

5

See, e.g., E.G., Docket No. 12-1011 (issued November 28, 2012); N.W., Docket No. 11-661 (issued
July 6, 2012).
6

See C.C., Docket No. 13-446 (issued May 15, 2013); S.K., Docket No. 12-1798 (issued February 20, 2013) (the
physician explained that back range of motion was “voluntary” and not supported by other evidence).

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It is OWCP’s burden of proof and they should have requested clarification from the
second opinion physician. The August 6, 2012 report does not meet the requirements of a
rationalized medical opinion. The Board finds that OWCP did not meet its burden of proof in
this case.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate compensation
for wage-loss and medical benefits effective April 8, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 8, 2013 is reversed.
Issued: November 13, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0743
Issued: May 26, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 20, 2021 appellant filed a timely appeal from a purported April 5, 2021 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0743.
In a letter received April 28, 2021, appellant requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0743 is dismissed.
Issued: May 26, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0028
Issued: November 28, 2016

Case Submitted on the Record

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

JURISDICTION
On October 7, 2015 appellant, through her representative, filed a timely appeal from the
September 28, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish a basis for modifying
OWCP’s May 29, 2012 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On May 2, 1997 appellant, then a 28-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained neck and upper extremity injuries as a
result of her federal employment. OWCP accepted the claim for cervical strain, right wrist
ganglion cyst, bilateral wrist tendinitis, and bilateral carpal tunnel syndrome (CTS). Appellant
underwent a series of bilateral carpal tunnel releases in 2002. Following surgery, she returned to
work in a limited-duty capacity. OWCP has granted schedule awards for a combined 16 percent
permanent impairment of the right upper extremity and 12 percent permanent impairment of the
left upper extremity. In a May 28, 2009 decision, it accepted that appellant suffered a recurrence
of disability beginning January 13, 2009.3 Appellant received wage-loss compensation for
temporary total disability, and she received compensation benefits on the periodic compensation
rolls as of June 6, 2009.
With respect to continuing employment-related disability, OWCP referred appellant for a
second opinion examination by Dr. Donald M. Mauldin, a Board-certified orthopedic surgeon.
Dr. Mauldin examined appellant on May 3, 2011 and advised that, while she could not resume
her former duties as a mail processing clerk, appellant could work full time at a sedentary level
with a 10-pound lifting restriction. In a July 14, 2011 report, Dr. John Sazy, an attending
orthopedic surgeon and neurosurgeon, diagnosed cervical stenosis at C4-5, C5-6, and C6-7, and
advised that appellant required cervical fusion and was currently unable to return to work.
OWCP found that a conflict in the medical evidence existed and selected Dr. Dale R.
Allen, a Board-certified orthopedic surgeon, as an impartial medical examiner (IME). In a report
dated July 26, 2011, Dr. Allen found that appellant continued to suffer residuals of her accepted
bilateral CTS and cervical strain. He noted that appellant’s prognosis was poor given that she
had not shown any improvement over the past 13 years. Dr. Allen doubted whether any further
improvement was likely. He did not recommend surgery, particularly cervical fusion or
additional carpal tunnel releases. Instead, Dr. Allen recommended continued conservative
treatment, including anti-inflammatory drugs, nonnarcotic pain medications, and sleeping aids.
He further noted that, although appellant was unable to resume her mail processor duties, she
could work full time performing sedentary work with occasional lifting up to 10 pounds.
In August 2011, OWCP referred appellant for vocational rehabilitation services. In
November 2011, it developed a rehabilitation plan for placement as a telemarketer, information
clerk, or insurance clerk. According to the Department of Labor, Dictionary of Occupational
Titles (DOT), the identified positions were sedentary in nature. For the position of information
clerk, DOT No. 237.367-022, the rehabilitation counselor indicated the weekly earnings were
$456.00, and the job was reasonably available in appellant’s commuting area. As a sedentary
3

OWCP also expanded appellant’s claim to include tension headache (migraines), cervical intervertebral disc
displacement, and chronic pain syndrome.

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position, the lifting requirements were up to 10 pounds. After 90 days of job placement services,
appellant was unable to secure employment. Her OWCP-sponsored vocational rehabilitation
program ended as of April 10, 2012.
On April 12, 2012 OWCP issued a proposal to reduce appellant’s compensation as she
had the capacity to earn wages as an “insurance clerk.” The DOT No. 237.367-022 was
identified for the information clerk position, and the wages were $456.00 per week. Appellant
was advised to respond within 30 days if she disagreed with the proposal. On May 14, 2012
appellant’s representative submitted a letter arguing that OWCP had not met its burden of proof
to reduce appellant’s compensation as the medical evidence was insufficient.
By decision dated May 29, 2012, OWCP reduced appellant’s wage-loss compensation
effective June 3, 2012 based on her ability to earn weekly wages of $456.00 as an “Insurance
Clerk.” It found that the selected position was both vocationally and medically suitable. The
later finding was based on Dr. Allen’s July 26, 2011 opinion that appellant could perform
sedentary work. An OWCP hearing representative with the Branch of Hearings and Review
affirmed the decision on December 5, 2012. Since then, OWCP has denied modification of its
May 29, 2012 LWEC determination on four separate occasions. Its most recent merit decision is
dated September 28, 2015, and was issued in response to counsel’s June 20, 2015 request for
modification.4
On June 15, 2015 OWCP provided counsel a bypass history report, which consisted of 34
pages of screen shots with various codes and explanations why 32 physicians were bypassed
during the June 29, 2011 referee selection process. Prior to June 15, 2015, the only relevant
evidence regarding Dr. Allen’s selection as an IME was an iFECS ME023 - Appointment
Schedule Notification. This report was generated at “12:21:56 PM” on June 29, 2011.
In his June 20, 2015 request for modification, counsel specifically challenged OWCP’s
selection of Dr. Allen as an IME. He identified more than 30 physicians who OWCP bypassed
between 11:20 a.m. and 1:21 p.m. on June 29, 2011. Thirteen physicians were reportedly
bypassed after OWCP had already selected Dr. Allen at 12:21 p.m. Counsel conceded that
several physicians were properly bypassed where there was no current telephone listing or the
physician’s telephone had been disconnected (Code O - Other). He also noted several other
instances where the identified physician had previously examined appellant or an associate in the
same practice had seen appellant, and thus, was appropriately bypassed (Code C - Conflict).
Another instance involved a district medical adviser who OWCP properly bypassed (Code O).
However, counsel noted six instances where he believed OWCP improperly bypassed a
physician. The reported reason for bypassing these six physicians was because their respective
appointment schedulers were not in the office at the time OWCP called to schedule an IME
examination (Code O).5 Counsel argued that because OWCP had not properly selected
4

OWCP previously denied modification on December 4, 2014, April 8, and September 16, 2015. Its
September 28, 2015 decision is similar to its September 16, 2015 decision, except for a slightly more detailed
analysis on page 4 regarding Dr. Allen’s selection as IME.
5

Based on the bypass history report, all six physicians were bypassed after OWCP had already selected Dr. Allen
as a referee physician.

3

Dr. Allen, his opinion was not entitled to the weight normally afforded an IME. As such, he
argued that OWCP had not met its burden to justify modifying appellant’s wage-loss
compensation effective June 3, 2012.
In its September 28, 2015 decision, OWCP determined that appellant had not established
a basis for modifying its prior LWEC determination. Specifically, it found that the evidence did
not establish an error in OWCP’s selection of Dr. Allen as an IME.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.6
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the employee has no actual earnings, her wage-earning capacity is determined with due regard to
the nature of her injury, her degree of physical impairment, her usual employment, her age, her
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect her wage-earning capacity in his disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.8 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.9
Modification of an LWEC determination is unwarranted 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.10 The burden
of proof is on the party seeking modification of the LWEC determination.11

6

Carla Letcher, 46 ECAB 452 (1995).

7

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

8

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

9

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

10

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000).

11

Id. at § 10.511.

4

FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.12 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”13 Where OWCP has referred the case to an IME to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight.14
ANALYSIS
In the present case, counsel has argued that the May 29, 2012 LWEC determination was
erroneous and therefore should be modified. He argues that OWCP failed to satisfy its burden in
its initial LWEC decision because of misplaced reliance on Dr. Allen’s July 28, 2011 report.
Counsel identifies numerous physicians who OWCP bypassed after having already selected
Dr. Allen at 12:21 p.m. on June 29, 2011. The bypass history report identified 13 instances
where a physician was bypassed on or after 1:14 p.m. on June 29, 2011. Counsel took issue with
some, but not all of the reasons offered for bypassing those particular physicians.
Notwithstanding the reported rationale for bypassing the physicians, it is unclear from either the
record or the September 28, 2015 decision why OWCP apparently continued to contact various
physicians after having already appropriately scheduled an appointment with Dr. Allen.
Counsel asserts a reversal is warranted because the record does not indicate whether the
referee was properly selected from the Physician Directory System (PDS). However, this
argument is irrelevant as OWCP no longer utilizes the PDS for scheduling impartial medical
evaluations. That system has been replaced by the iFECS-based medical management
application (MMA).15 While the PDS is no longer utilized, the same “strict rotational
scheduling” process previously relied upon is incorporated into the MMA.16 The Board has
placed great importance on the appearance, as well as the fact of impartiality in selecting a
referee physician, and only if the selection procedures designed to achieve impartiality are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.17
It remains unclear why OWCP continued to contact various physicians after it had
already appropriately scheduled an appointment with Dr. Allen, however, there was no evidence
presented that establishes the selection of Dr. Allen was itself improper. OWCP did bypass
physicians prior to the selection of Dr. Allen, but provided valid reasons for each bypass, such as
no telephone listing for the physician, or that appellant had previously seen that particular
12

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

13

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14

Gary R. Sieber, 46 ECAB 215, 225 (1994).

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5 (May 2013).
16

Id.

17

L.W., 59 ECAB 471, 478 (2008).

5

physician. There was no violation of established procedures. Counsel concedes that the
physicians bypassed prior to the selection of Dr. Allen were all properly bypassed. Code C is
used when a physician has a prior connection to the claim, and Code O is used for situations such
as when there is no current telephone listing, the physician’s telephone had been disconnected, or
no one answers the telephone.18 Once the selection of Dr. Allen was properly made, the
additional attempts to schedule and thus bypass physicians constitutes harmless error. The
selection of Dr. Allen was made in accord with OWCP procedures.19 The attempts to schedule a
physician after the selection of Dr. Allen do not invalidate the proper selection of Dr. Allen as an
IME in this case.
The Board finds that Dr. Allen’s IME report represents the special weight of the medical
evidence. Dr. Allen provided a complete report based on an accurate factual and medical
background. He found that appellant could perform sedentary duty with a 10-pound lifting
restriction. As noted above, a well-reasoned opinion from an IME is entitled to special weight.20
The selected position of information clerk, although misidentified as insurance clerk, was a
sedentary position with occasional lifting of 10 pounds. It was clearly within the work
restrictions provided by Dr. Allen. The Board finds the probative medical evidence establishes
the position was medically suitable.
The rehabilitation counselor confirmed that the position was vocationally suitable and
was performed in appellant’s commuting area.21 The wages were reported as $456.00 per week.
OWCP applied the Shadrick formula to determine the LWEC. The earnings of $456.00 are
divided by the current pay rate for appellant’s date-of-injury job, to determine the wage-earning
capacity percentage.22 The pay rate for compensation purposes is then multiplied by the wageearning capacity percentage.23 This amount is subtracted from the pay rate for compensation
purposes to determine the LWEC.24 OWCP found that appellant’s LWEC was $438.92 per
week. The record does not contain any evidence of error with respect to these calculations.
The Board accordingly finds that no error in the original May 29, 2012 LWEC
determination has been established. Appellant has not alleged or shown that there was a material
change in the nature and extent of the injury-related condition, or that the employee has been
retrained or otherwise vocationally rehabilitated. It is appellant’s burden of proof to modify the

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.6
(May 2013) (the Board notes that if a message is left on the physician’s phone, the scheduler should allow at least
two business hours for a return call before bypassing the physician).
19

Supra note 15.

20

Supra note 14.

21

Supra note 7.

22

20 C.F.R. § 10.403(d).

23

Id. at § 10.403(e).

24

Id.

6

LWEC decision.25 Appellant has not met any of the requirements for modification, and the
Board therefore finds she did not meet her burden in this case.
CONCLUSION
The Board finds appellant did not meet her burden of proof to establish that a
modification of the May 29, 2012 LWEC determination was warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 28, 2016
Washington, DC

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

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

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

25

Supra, note 11.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________

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

Docket No. 20-0244
Issued: February 25, 2021

Case Submitted on the Record

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

JURISDICTION
On November 13, 2019 appellant filed an appeal from a June 7, 2019 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision dated March 14, 2018, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 11, 2017 appellant, then a retired 59-year-old supervisory civil engineer,
filed an occupational disease claim (Form CA-2) alleging that he suffered bilateral hearing loss
1

5 U.S.C. § 8101 et seq.

and tinnitus due to factors of his federal employment. He noted that he first became aware of his
condition and first realized it was caused or aggravated by his federal employment on
February 9, 2015. Appellant explained that his physician concluded on evaluation that excessive
noise and stress at work were aggravating factors of his tinnitus. A Notice of Personnel Action
(Form SF-50) indicated that appellant retired effective July 31, 2015.
In a July 9, 2015 medical report, Dr. Preston Rice, Board-certified in otolaryngology,
evaluated appellant for frequent headaches and a possible sinus issue. Appellant informed him
that he experienced headaches and fullness in his ear related to constant tinnitus. Dr. Rice provided
a diagnosis of sinusitis and pneumonia and referenced appellant’s symptoms of sensorineural
hearing loss and tinnitus. In his assessment, he noted that appellant would be retiring at the end
of the month and opined that being away from the noise at the shipyard may decrease the tinnitus,
as well as some of the headaches he had been experiencing. Dr. Rice explained that, while the
tinnitus will most likely be chronic, it should fade with time. He concluded by noting that
appellant’s symptoms began six months prior and that, from a subjective standpoint, some of the
excessive noise and stress he experienced at work were probably an aggravating factor for his
tinnitus and headaches.
Appellant also submitted the results of a September 11, 2017 audiometric evaluation from
Kim Coy, a Board-certified hearing instrument specialist.
On October 24, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Jackson Holland, Board-certified in otolaryngology, for a
second opinion evaluation to determine the nature and extent of his alleged employment-related
conditions.
In his November 20, 2017 medical report, Dr. Holland reviewed the SOAF and the July 9,
2015 medical report from Dr. Rice. He noted appellant’s history of noise exposure during his
federal employment and indicated that appellant’s hazardous noise exposure on marine repair
facilities/Department of Defense was spotty and sparse. Dr. Holland noted contributory noise
exposure that included discharging of various firearms and personal use of a chainsaw and a push
lawnmower. He noted Dr. Rice’s opinion of a probable inflammatory process involving the left
side of appellant’s inner ear. Dr. Holland also noted an unremarkable February 2015 magnetic
resonance imaging (MRI) scan of appellant’s brain. He indicated that audiometric testing
performed on the date of examination revealed an entirely normal right ear with pure-tone
thresholds in all test frequencies spanning 250 through 8,000 Hertz (Hz) and mild neurosensory
impairment on the left at 4,000 to 8,000 Hz. Dr. Holland diagnosed neurosensory hearing loss and
tinnitus of the left ear and concluded that appellant had a calculated hearing impairment of zero
percent binaural. He opined that appellant’s tinnitus was of an uncertain cause and that he likely
had multiple potentiating nonoccupational factors responsible for his condition. Dr. Holland
concluded by finding that no workplace injury occurred and that the circumstances of appellant’s
condition were unrelated to any exposure or any possibility of acquired injury while he served as
a member of the federal civilian workforce.
By decision dated December 5, 2017, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that his diagnosed condition
was causally related to the accepted factors of his federal employment.

2

On March 12, 2018 appellant requested reconsideration of OWCP’s December 5, 2017
decision. In an attached letter, he corrected the SOAF, noting that he worked for the Puget Sound
Naval Shipyard from November 2000 to July 2015 and not Naval Facilities Engineering Command
Northwest. Appellant calculated his noise exposure while employed was 10 percent from 1980 to
1984, 25 percent from 1986 to 1992, 10 percent from 1992 to 2000, and 5 percent from 2000 to
2015.
With his request for reconsideration, appellant submitted a January 4, 2018 medical report,
wherein Dr. Rice noted that appellant presented with ongoing hearing loss, tinnitus, and headaches.
Dr. Rice indicated that appellant’s tinnitus was most likely associated with his asymmetric
sensorineural hearing loss. He noted that it was still undetermined as to whether appellant’s
condition was viral or a result of unilateral acoustic trauma. Dr. Rice concluded by recommending
a second opinion from an alternative neurologist regarding appellant’s headaches.
By decision dated March 14, 2018, OWCP denied modification of its December 5, 2017
decision.
On June 6, 2019 OWCP received appellant’s request for reconsideration of OWCP’s
March 14, 2018 decision. In an attached letter, appellant asserted that, although the root cause of
his condition was unclear, Dr. Rice concluded that the most probable cause was his extensive
career working with the Department of the Navy. He also rejected OWCP’s determination that
“the name of the facility would not change the source and duration of noise exposure,” asserting
that working in an office building was drastically different than working in a congested industrial
setting.
By decision dated June 7, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
OWCP’s procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
the date of the original decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues. This includes any hearing or review of the written
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
2

3

20 C.F.R. § 10.607.

4
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees Compensation System (iFECS). Chapter 2.1602.4b.

3

record decision, any denial of modification following reconsideration, any merit decision by the
Board, and any merit decision following action by the Board, but does not include prerecoupment
hearing decisions.5 Timeliness is determined by the document receipt date of the reconsideration
request, i.e., the received date in the Integrated Federal Employees’ Compensation System
(iFECS). If the request for reconsideration has a document received date greater than one year,
the request must be considered untimely.6
OWCP will consider an untimely request for reconsideration only if it demonstrates clear
evidence of error on the part of it in its most recent merit decision. The request for reconsideration
must establish, on its face, that such decision was erroneous.7 The term clear evidence of error is
intended to represent a difficult standard. If clear evidence of error has not been presented, OWCP
should deny the request by letter decision, which includes a brief evaluation of the evidence
submitted and a finding made that clear evidence of error has not been shown.8
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the March 14, 2018 decision. Appellant had
one year from the date of that decision to timely request reconsideration.9 As OWCP did not
receive appellant’s request for reconsideration until June 6, 2019, more than one year after the
March 14, 2018 merit decision, it was untimely filed.10
The proper standard of review for an untimely reconsideration request is the clear evidence
of error standard.11 In denying her request, OWCP, however, applied the standard of review for
timely requests for reconsideration. The Board will, consequently, remand the case for application
of the proper standard for untimely reconsideration requests, to be followed by the issuance of an
appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

5

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4.a (February 2016).

6

Id. at Chapter 2.1602.4b (February 2016); see also S.J., Docket No. 19-1864 (issued August 12, 2020); W.A.,
Docket No. 17-0225 (issued May 16, 2017).
7

W.A., id.; D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

8

Supra note 4 at Chapter 2.1602.5(a) (October 2011).

9

Supra note 5.

10

Supra note 7.

11

Supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the June 7, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dorchester, MA, Employer
__________________________________________

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Appearances:
John L. Whitehouse, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0162
Issued: July 24, 2019

Case Submitted on the Record

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 30, 2017 appellant, through his representative, filed a timely appeal from an
October 13, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
bilateral knee osteoarthritis causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 15, 2016 appellant, then a 60-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed arthritis of both knees due his federal
employment duties including years of walking and climbing up and down stairs while carrying a
heavy mail sack. He indicated that he first became aware of the disease or illness on March 12,
1997 and first realized its relation to his federal employment on October 30, 2000. Appellant had
filed previous claims for knee conditions with OWCP. He retired from his federal employment on
February 29, 2016.
On September 21, 2016 OWCP received an unsigned statement from appellant. Appellant
described the physical requirements of the letter carrier position, noting that he had worked for
approximately 28 years, 8 hours a day, 5 days a week, with as much overtime as possible. He
noted that he spent approximately two hours standing at a case setting up his route, six hours
delivering the mail which required carrying a sack weighing up to 70 pounds while walking about
6 to 8 miles each day. Appellant also indicated that he delivered mail to 200 to 300 houses going
up and down thousands of steps each day. He explained that he tolerated the employment duties
until an injury to his left knee on March 24, 1994, after which he compensated by favoring the
injured knee causing problems with both knees. Appellant indicated that he was diagnosed with
osteoarthritis and degenerative arthritis of both knees.
In a development letter dated October 31, 2016, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim and it explained the type of evidence
required to establish his claim. It asked him to respond to a questionnaire and to arrange for a
physician’s opinion as to how specific work activities caused, contributed to, or aggravated his
condition. On even date a development letter was sent to the employing establishment requesting
information from a knowledgeable supervisor as to the physical duties performed by appellant.
OWCP afforded him and the employing establishment 30 days to respond.
In a November 22, 2016 statement, J.O., a manager, noted that the statement that appellant
had previously provided to OWCP was true. He indicated that appellant worked full time, as well
as overtime. J.O. noted that appellant was a productive worker who worked within his restrictions.
He informed OWCP that appellant previously had a knee replacement.
By decision dated December 1, 2016, OWCP denied appellant’s claim finding that he had
not submitted medical evidence containing a firm medical diagnosis from a physician in relation
to his injury claim. It concluded that he had not met the requirements to establish an injury as
defined by FECA.
In a letter dated November 30, 2016, K.S., a health and resource management specialist for
the employing establishment, controverted the claim. She explained that appellant had not been
required to carry 70 pounds in his mail satchel, but rather only 10 to 35 pounds. K.S. also noted

2

that he spent most of his career as a parcel post driver. She indicated that appellant was out of
work for intermittent periods throughout his career due to his other claims. K.S. indicated that his
compensation benefits had been terminated on October 17, 2016 and he had not returned to work,
but was out on a nonpay status for the period October 18, 2016 through February 29, 2017, when
he retired.
On December 28, 2016 appellant requested reconsideration. He submitted his responses
to the development questionnaire. Appellant explained that he began his federal career in 1984 at
the age of 28 and was given a complete physical examination which he passed. He noted no history
of arthritis of his knees. Appellant explained that he worked 10 years as a carrier before twisting
his knees in March 1994 while delivering his route and that two months later he had arthroscopic
surgery. He noted that he eventually returned to regular duty, but then developed pain in both
knees, which worsened over time and he was subsequently diagnosed with osteoarthritis/
degenerative arthritis of both knees. Appellant repeated his prior statement of his daily
employment duties as a letter carrier.
In support of his claim appellant submitted medical records from Carney and New England
Baptist Hospitals (including inpatient patient assessments, preoperative nursing notes, and
discharge summaries) for a variety of postoperative bilateral knee conditions.
In a May 27, 1994 operative report, Dr. Leonid Dabuzhsky, a Board-certified orthopedic
surgeon, performed a left knee procedure to the torn left medial meniscus and diagnosed
chondromalacia of the left femur.
In an October 26, 1994 report, Dr. Dabuzhsky related that appellant continued to have
significant pain in his left knee. He examined appellant and opined that it was five months since
his surgery without any significant improvement in his symptoms. Dr. Dabuzhsky recommended
another surgical procedure.
A December 26, 2000 x-ray of the left knee read by Dr. Steven Wetzner, a Board-certified
diagnostic radiologist, revealed degenerative changes of the medial compartment of the knee with
marginal osteophyte formation and mild patellofemoral disease with small joint effusion.
On January 5, 2001 Dr. David Mattingly, a Board-certified orthopedic surgeon, performed
a left total knee replacement. In a January 5, 2001 pathology report, Dr. Karoly Balogh, a Boardcertified anatomic pathologist, found degenerated fibrocartilage and articular surface with reactive
changes in adjacent bone and fatty bone marrow.
In a January 9, 2001 discharge summary, Dr. Thomas Hackett, an orthopedic surgeon,
noted that appellant had slipped on ice while working as a letter carrier approximately seven years
prior and suffered a twisting injury to his left knee. He noted that appellant underwent multiple
left knee arthroscopies without relief or discomfort. Dr. Hackett explained that all of the
conservative modalities had failed.
An October 8, 2009 x-ray, read by Dr. Mattingly, revealed a well-positioned left total knee
replacement. An October 24, 2013 magnetic resonance imaging (MRI) scan of the right knee, read
by Dr. Berry, found no evidence of infection and significant synovitis, but no effusion (right knee
pain and instability).
3

In a May 13, 2014 operative report, Dr. Berry diagnosed severe osteoarthritis of the right
knee and performed a total right knee replacement. In reports dated July 14 and September 25,
2014, he performed a right knee manipulation. Dr. Berry provided progress notes for treatment of
the right knee dated October 17 and December 2, 2014 and January 15, April 3, and
August 6, 2015. He advised that appellant previously had right total knee replacement surgery and
diagnosed other synovitis and tenosynovitis. Dr. Berry saw appellant on December 2, 2014 and
advised that he was having persistent symptoms of pain and stiffness after the operation. He
explained that appellant was doing better in November, but had aggravated his knee due to his
employment duties which required a lot of deliveries and going up and down stairs, about 600 to
700 steps per day. Dr. Berry recommended retirement.
In an April 3, 2015 report, Dr. Berry advised that appellant believed that his symptoms in
his right knee had been aggravated when he returned to work with the employing establishment.
He opined that appellant was incapable of working. In a February 23, 2016 report, Dr. Berry
indicated that appellant was permanently disabled from work from his injury of August 15, 2013.
In a June 16, 2016 report, Dr. Mattingly saw appellant for left knee pain. He determined
that appellant could return to full-time work with appropriate restrictions.
By decision dated May 25, 2017, OWCP modified its prior decision to accept fact of injury.
However, it denied appellant’s claim finding that he had not submitted sufficient evidence to meet
his burden of proof to establish causal relationship. OWCP explained that medical evidence on
causal relationship was required to address his preexisting bilateral knee conditions.
On July 17, 2017 appellant, through counsel, requested reconsideration. He submitted a
new report from Dr. Berry dated December 16, 2016, which he explained had been inadvertently
omitted from his previous submissions. Counsel asserted that the report from Dr. Berry set forth
a rationalized opinion that appellant’s bilateral osteoarthritis of the knees was causally related to
his employment as a letter carrier.
In the December 16, 2017 report, Dr. Berry noted appellant’s employment history and
noted that he commenced his letter carrier duties in 1984, at the age 28, and was essentially healthy
at that time with no prior history of knee problems. He explained that appellant’s duties included
standing at a case for two hours, setting up his mail route, followed by six hours of delivering mail.
Dr. Berry further explained that appellant walked approximately six to eight miles per day carrying
a mail sack, weighing up to 70 pounds, delivering mail to 200 to 300 houses and ascending over a
thousand stairs in the course of a workday. He advised that on March 24, 1994, while at work, he
sustained a twisting injury to the left knee resulting in pain and swelling, with a diagnosis of a torn
meniscus, and a March 27, 1994 arthroscopic surgery of the left knee with debridement of a large
osteocartilaginous lesion. Dr. Berry recounted appellant’s extensive treatment for his knees.
Dr. Berry explained that appellant developed arthrofibrosis of the knee status post right
total knee replacement and required knee manipulation. He indicated that appellant ultimately
returned to work and he worked for three days. However, during this three-day period, appellant’s
symptoms progressed dramatically including increased pain, increased swelling, his range of
motion dropped from over 100 down into the 70’s, and he was limping and he just felt he could
not do the work. Dr. Berry opined that appellant’s bilateral knee diagnoses were directly causally

4

related to his employment activities as a letter carrier over almost a 30-year period. He explained
that appellant’s requirement to walk six to eight miles and climb and descend many hundreds of
stairs in the course of a workday while carrying a mail sack weighing up to 70 pounds, combined
with his body weight, placed an axial load of almost 300 pounds on each knee with each step.
Dr. Berry opined that these exposures continued for almost three decades during which appellant
walked and climbed an incalculable number of miles and stairs. He explained that osteoarthritis
was a degenerative disease that occurred when the cartilage that cushioned the ends of the bones
forming the knee joint gradually deteriorated, leaving the patient with bone rubbing on bone
causing further deterioration as well as pain, swelling, and stiffness in the knee joint. Dr. Berry
opined that the employment exposures clearly placed inordinate repetitive and prolonged stress on
appellant’s knee joint and both precipitated and accelerated the disease causing the need for
bilateral total knee replacement.
By decision dated October 13, 2017, OWCP denied modification of the May 25, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time limitation
period of FECA,3 that an injury was sustained in the performance of duty as alleged, and that any
disability or medical condition for which compensation is claimed is causally related to the
employment injury.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 if an employee sustained a traumatic injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury. An
employee may establish that an injury occurred in the performance of duty as alleged, but fail to
establish that the disability or specific condition for which compensation is being claimed is causally
related to the injury.7

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

5

To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.9 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 employee.10 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 causal
relationship.11
In any case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim appellant submitted medical reports from his attending physician,
Dr. Berry, who consistently opined that his bilateral knee osteoarthritis had been caused or
aggravated by his duties over numerous years as a postal letter carrier. In his December 16, 2017
report, he accurately reported the history of injury, appellant’s prior medical treatment history, and
the accepted employment factors including repetitive standing, walking a mail route six to eight
miles per day, climbing stairs, carrying a 70-pound mail sack, and ascending over a thousand stairs
per day while delivering mail to 200 to 300 houses. Dr. Berry explained that osteoarthritis of the
knees is a repetitive stress injury which can be related to repetitive occupational exposures. He
indicated that appellant’s combined body weight, while carrying a postal sack, placed an axial load
of almost 300 pounds on each knee with each step. Noting the amount of walking and traversing
steps he performed each day for almost 30 years, Dr. Berry opined that such forces were sufficient
to have resulted in osteoarthritis. He also provided a pathophysiological explanation as to the
development of osteoarthritis describing how the cartilage that cushioned the ends of the bones
forming the knee joint deteriorate due to the repetitive forces including axial loading, leaves an
individual with bone rubbing on bone causing further deterioration as well as pain, swelling, and
8

J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

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

11

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
K.P., Docket No. 18-0041 (issued May 24, 2019).

6

stiffness in the knee. Dr. Berry opined that his exposures placed inordinate repetitive and
prolonged stress on his knee joint and both precipitated and accelerated the disease causing the
need for bilateral total knee replacements.
Accordingly, the Board finds that Dr. Berry provided an affirmative and rationalized
opinion on causal relationship. The Board further finds that Dr. Berry’s reports, when read
together, identified employment factors which appellant claimed caused his condition, identified
findings upon examination, and explained how the identified employment factors, specifically the
repetitive high-impact work activities as a letter carrier, had aggravated appellant’s bilateral knee
osteoarthritis and resulted in bilateral total knee replacements. The Board finds that Dr. Berry’s
opinion, while not sufficiently rationalized to meet appellant’s burden of proof, is sufficient, given
the absence of opposing medical evidence, to require further development of the record.13
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 OWCP has an obligation to see that justice is
done.15
The case will therefore be remanded to OWCP for further development of the medical
evidence, including the preparation of a statement of accepted facts which include all of appellant’s
accepted employment duties and a referral to an appropriate medical specialist for an examination
and opinion on the issue of causal relationship. After such further development as OWCP deems
necessary, it shall issue a de novo decision.16
CONCLUSION
The Board finds that this case is not in posture for a decision.

13

See J.G., Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
14
A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
15

See B.C., Docket No. 15-1853 (issued January 19, 2016).

16

The Board notes that it was unable to review appellant’s additional OWCP files in relation to his prior knee
claims as those cases were not within the Board’s jurisdiction. It is especially important, on remand, that all of his
prior knee claims be administratively combined as OWCP’s referral physician will require access to all of the relevant
medical records to issue an informed decision on causal relationship. Pursuant to OWCP procedures cases should be
doubled where correct adjudication depends on cross-referencing between files. See Federal (FECA) Procedure
Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(2) (February 2000).

7

ORDER
IT IS HEREBY ORDERED THAT the October 13. 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: July 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.T., Appellant
and
DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, Birmingham, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-753
Issued: August 14, 2012

Case Submitted on the Record

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

JURISDICTION
On February 21, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated September 7, 2011 which denied his
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year elapsed between the most recent merit decision
dated June 5, 2009 to the filing of this appeal on November 16, 2011, the Board lacks
jurisdiction to review the merits of his claim pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 7, 1985 appellant, then a 48-year-old special agent, injured his lower back
when the car he was driving was struck by another vehicle. OWCP accepted the claim for low
back strain and herniated nucleus pulposus at L4-5. It paid temporary total disability and placed
appellant on the periodic rolls.
In a report dated November 26, 2001, Dr. Anthony C. Pitts, a specialist in physical and
rehabilitative medicine, stated that appellant was not totally disabled. He noted that appellant
had been diagnosed with a herniated disc and had not been working. Dr. Pitts advised that
appellant should be permanently restricted from activities requiring frequent bending, lifting,
squatting and stooping but opined that he could perform sedentary work, as long as he was
allowed to stand as needed and avoid protracted immobilization. He stated that appellant had
degenerative disc disease which was evolutionary with age. In a work capacity evaluation dated
June 17, 2002, Dr. Pitts found that appellant could work an eight-hour day with restrictions of no
twisting; sitting for no more than four to six hours a day; walking, standing, pushing, pulling and
lifting for no more than one to two hours a day; and squatting and kneeling for no more than five
minutes a day. He instructed appellant to take 15- to 20-minute breaks every two to three hours.
On October 22, 2002 a vocational rehabilitation counselor selected a position as credit
authorizer, listed in the Department of Labor’s Dictionary of Occupational Titles, which she
determined reasonably reflected appellant’s ability to earn wages.
By decision dated July 16, 2003, OWCP reduced appellant’s compensation to reflect his
wage-earning capacity in the position of credit authorizer.
By letter dated October 17, 2006, appellant requested reconsideration of OWCP’s
July 16, 2003 decision. He stated that Dr. Pitt’s medical opinion was flawed because he ordered
appellant to undergo a magnetic resonance imaging (MRI) scan and nerve conduction studies,
but failed to cite the results of these tests in conjunction with his medical evaluation. Appellant
also objected to Dr. Pitt’s assertion that he was drug dependent. He further alleged that his
compensation checks were not based on the correct formula.
By decision dated November 20, 2006, OWCP denied appellant’s request for
reconsideration without a merit review, finding the request was untimely and that appellant had
not established clear evidence of error.
In a May 9, 2008 decision,2 the Board set aside the November 20, 2006 decision. The
Board found that OWCP erred by treating appellant’s October 17, 2006 correspondence as a
request for reconsideration of the July 16, 2003 wage-earning capacity determination under 5
U.S.C. § 8128(a). The Board found that, although appellant had used the term “reconsideration” in
his October 17, 2006 letter, he asserted that OWCP erred in the July 16, 2003 wage-earning
capacity determination. Appellant contended that he was totally disabled for work on or before
that date; that his loss of wage-earning capacity (LWEC ) compensation was not calculated using
the correct formula; and that his condition had worsened since the LWEC determination was made.
2

Docket No. 07-929 (issued May 9, 2008).

2

The Board found that his October 17, 2006 letter constituted a request for modification of the
July 16, 2003 wage-earning capacity determination. The Board determined that appellant was
entitled to a merit review on that issue. The Board set aside the November 20, 2006 decision and
remanded the case for adjudication of his request for modification of the wage-earning capacity
determination. The facts of the case as set forth in the Board’s May 9, 2008 decision are
incorporated by reference.
By decision dated May 30, 2008, OWCP denied modification of the July 16, 2003
wage-earning capacity determination. By decision dated June 5, 2009, it denied modification of
the May 30, 2008 decision.
In a December 23, 2010 report, Dr. Ronald Borlaza, Board-certified in internal medicine,
indicated that appellant continued to have chronic low back pain and residual symptoms from his
lumbar radiculopathy and degenerative disc disease. He stated that on examination appellant
demonstrated moderate lumbar back tenderness with 80 percent muscle strength and decreased
sensation on his legs bilaterally. Dr. Borlaza advised that appellant’s most recent lumbar MRI
scan, on May 17, 2006, showed degenerative changes with mild-to-moderate facet hypertophic
changes and mild disc bulges at L2-S1 and L2 vertebral body contusion or edema. He stated that
appellant’s condition was due to residual symptoms from his lumbar radiculopathy that did not
resolve despite his surgery. Dr. Borlaza also advised that appellant had additional back pain
from the degenerative changes seen on the MRI scan. He opined that appellant could not do any
meaningful full-time and part-time work and that his condition would not improve. Dr. Borlaza
advised that he would remain totally and permanently disabled due to this condition.
On April 18, 2011 appellant requested reconsideration and noted that he was seeking
modification of the LWEC determination. He asked OWCP to provide him with certified copies
of all medical records from Drs. Pius, Pins and Pitts. Appellant also requested that OWCP
provide him with justification for the pay rate for all compensation it paid him since his 1985
work injury was accepted. In addition, he stated that he was submitting his most recent medical
report; i.e., Dr. Borlaza’s December 23, 2010 report, which indicated that his condition had
worsened since OWCP’s July 16, 2003 wage-earning capacity determination.
By decision dated September 7, 2011, OWCP denied appellant’s request for
reconsideration without a merit review, finding that it was untimely filed and that appellant had
not established clear evidence of error.
LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal LWEC
determination. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.3 The burden of

3

Katherine T Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).

3

proof is on the party attempting to show modification.4 There is no time limit for appellant to
submit a request for modification of a wage-earning capacity determination.5
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP erred in considering appellant’s April 18, 2011 letter as a request for
reconsideration of the July 16, 2003 wage-earning capacity determination under 5 U.S.C.
§ 8128(a). It found the request untimely and that he did not submit relevant evidence or legal
argument establishing clear evidence of error. Appellant requested “reconsideration” but noted
that he sought modification of the LWEC determination. He submitted Dr. Borlaza’s
December 23, 2010 report in support of his contention that OWCP erred in its July 16, 2003
wage-earning capacity determination and that his condition has worsened since the LWEC
determination was made. Appellant’s April 18, 2011 letter is a request for modification of
OWCP’s July 16, 2003 wage-earning capacity determination.6 OWCP improperly characterized
his April 18, 2011 letter as a request for reconsideration subject to the one-year time limitation
set forth at 20 C.F.R. § 10.607(a).
The Board finds that appellant has requested modification of the July 16, 2003
wage-earning capacity determination. Appellant is entitled to a merit review on that issue.7 On
remand, OWCP shall adjudicate his request for modification of the wage-earning capacity
determination and issue an appropriate decision.
CONCLUSION
The Board finds that appellant requested modification of the July 16, 2003 wage-earning
capacity determination and is entitled to a merit review of the wage-earning capacity issue. The
case will be remanded to OWCP for all necessary development and issuance of an appropriate
decision.

4

Darletha Coleman, 55 ECAB 143 (2003).

5

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005),
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that the
claimants’ requests for reconsideration of a wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside OWCP’s decisions denying appellants’
reconsideration requests as untimely and remanded the cases for OWCP to address the merits of their requests for
modification of an LWEC decision).
6

See Gary L. Moreland, supra note 5.

7

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 7, 2011 is set aside and the case remanded for further
action consistent with this decision.
Issued: August 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5