United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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

Docket No. 08-759
Issued: December 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated March 7 and November 8, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective August 8, 2006; (2) whether appellant established that she had
any disabling residuals after August 8, 2006; and (3) whether appellant sustained a recurrence of
disability.
FACTUAL HISTORY
On August 25, 2003 appellant, then a 40-year-old letter carrier, was injured when the
stool on which she was sitting broke and she fell backwards onto the floor. On November 18,
2003 the Office accepted her claim for bilateral elbow contusions, cervical strain, right shoulder

strain and lumbar strain. At the time of her injury appellant was working eight hours per day as a
modified letter carrier with permanent restrictions due to a 1992 left shoulder injury.1
Commencing January 2004, appellant was treated by Dr. Leo Langlois, a Board-certified
physiatrist, for pain management.2 On January 27, 2004 Dr. Langlois reviewed a history of
appellant’s injury and her complaint of back, right leg, bilateral shoulder and neck pain. On
physical examination, he noted moderate obesity, symmetric reflexes, 4/5 ratchety give away
weakness and intact sensory response. Back range of motion was limited by pain and multiple
painful joints, especially at the shoulders. Dr. Langlois diagnosed herniated nucleus pulposus of
L5-S1; discogenic cervical and lumbar pain; chronic left shoulder pain, status post surgery;
chronic right shoulder pain with magnetic resonance imaging (MRI) scan evidence of rotator
cuff tear; and possible right carpal tunnel syndrome. He recommended long acting opioid
therapy.
The Office referred appellant to Dr. Alice M. Martinson, a Board-certified orthopedic
surgeon, for a second opinion. In a December 29, 2004 report, Dr. Martinson reviewed the
history of injury and medical treatment, including the prior left shoulder injury. On physical
examination, appellant demonstrated a full range of motion of the cervical spine without palpable
spasm. There was no focal motor weakness in either of the upper extremities and deep tendon
reflexes were described as normal. Dr. Martinson described nonanatomic areas of hypesthesia to
light touch in both arms but no sensory abnormalities. With coaxing, appellant achieved a full
range of overhead flexion and abduction of both shoulders with complaints of pain. She was
described as demonstrating inconsistent voluntary efforts with abduction of external rotation.
Dr. Martinson noted tenderness to pressure over the right acromioclavicular (AC) joint.
Appellant’s obesity prevented accurate palpation of certain muscles. Straight leg raising was
negative bilaterally with tenderness to palpation noted in the trochanteric bursa of the right hip.
Multiple MRI scan studies were reviewed which showed moderate arthritic changes to the
AC joint of the right shoulder, mild tendinopathy and a minimal partial thickness tear of the
supraspinatus tendon. The cervical studies showed disc bulges at C3-4, C5-6 and C6-7, with no
impingement upon the cervical canal or nerve roots. The lumbar studies revealed degenerative
disease at L5-S1 with a small dorsal disc bulge, but again no impingement on the lumbar canal or
nerve roots. The left shoulder studies showed some mild arthritic changes in the AC joint with
no evidence of a rotator cuff tear.
Dr. Martinson diagnosed right trochanteric bursitis, right AC joint arthritis, minor disc
abnormalities of the cervical and lumbar spine and morbid obesity. She commented that
appellant’s complaints were markedly disproportionate to the findings on examination and the
large consumption of narcotic analgesics started by Dr. Langlois. Dr. Martinson advised that
none of the conditions found on examination of appellant were medically related to the
August 25, 2003 injury or to other factors of appellant’s employment. She noted that the
shoulder MRI scan showed a degenerative signal change with both rotator cuffs, with the
possibility of partial thickness rotator cuff tear, as well as mild amount of arthrosis of the right
1

The Office accepted a cervical strain, left shoulder strain and left shoulder impingement. Appellant began
working at modified duty for four hours a day on May 18, 2004.
2

On June 25, 2004 the Office authorized Dr. Langlois as appellant’s treating physician.

2

AC joint. The MRI scan of appellant’s cervical spine showed miniscule annular bulges at C3-4,
C5-6 and C6-7, which had no effect upon her spinal canal diameter or any of the neural
foramina. Dr. Martinson opined that appellant had disability related to the accepted injury. She
attributed appellant’s low back and right hip complaints as a consequence of tightness of the
iliotibial band, which was very common in chronically obese individuals. Dr. Martinson opined
that appellant should have recovered from her accepted fall with no more than five days of total
disability. She stated that appellant’s primary pathology was her chronic narcotic dependence,
which was fostered by Dr. Langlois and “work related to the extent it has been passively
endorsed by workers’ compensation funding her ongoing narcotic usage.” Dr. Martinson
advised that, following five days after the accepted injury, appellant could return to the work she
had been performing.
Dr. Langlois continued to treat appellant and submit progress reports on her condition.
On March 25, 2005 he advised that she could work six hours a day at her current restrictions.
In April 2006, the Office authorized appellant’s change of treating physician to
Dr. Kathryn Mason, a Board-certified family practitioner. On May 9, 2006 Dr. Mason diagnosed
chronic low back pain, chronic cervical pain and chronic right shoulder pain. In a May 15, 2006
report, she noted appellant’s history of injury and diagnosed pain to the cervical spine, right
shoulder, low back and right wrist. Dr. Mason stated that appellant had been off work for the
prior 45 days by means of urgent care visits where she repeatedly requested time off work.3
Dr. Martinson was requested to address whether appellant could return to work as a
modified letter carrier after five days of disability. On June 6, 2006 she responded:
“At the time of my examination, I identified no musculoskeletal pathology, which
could attribute to her history of a fall due to a broken chair on August 25, 2003. It
was my opinion then as it is my opinion now that whatever minor injury she
might have sustained in her fall should have caused no more than five days worth
of temporary total disability. Her work limitations, as I understood them at the
time of the fall, were allegedly based on physical factors which preceded the fall.
If she was, in fact, working eight hours a day as a modified mail carrier at the
time of her August 25, 2003 injury, then she should have been capable of
returning to that position after five days of temporary total disability.”
On July 7, 2006 the Office proposed to terminate appellant’s compensation. It found that
the weight of the medical evidence was represented by Dr. Martinson’s opinion, which
established that her accepted conditions had resolved. The Office allowed appellant 30 days to
submit additional evidence.
On July 13, 2006 appellant requested 30 to 45 days to obtain additional medical evidence
in support of her claim. She submitted copies of physical therapy reports and materials
previously of record.

3

The record reflects that appellant was working eight hours a day as a modified letter carrier on the date of injury.

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By decision dated August 9, 2006, the Office terminated appellant’s compensation
benefits effective August 8, 2006.
In a July 24, 2006 report, Dr. Mason stated that appellant had been treated by
Dr. Langlois with multiple pain medications and continued with narcotic therapy. Appellant
transferred her treatment to Dr. Mason, but she was not successful in weaning her from the use
of narcotic medications. Dr. Mason advised that she did not initially have appellant’s records
from either Dr. Langlois or Dr. Martinson to review. She noted that appellant made repeated
visits to the Kaiser Permanente urgent care clinic and that appellant had requested that they be
authorized under her workers’ compensation claim. Dr. Mason stated that she could not do so
and advised that appellant’s employer was able to accommodate her physical restrictions. She
stated that appellant did not appear for several scheduled visits and she had no new physical
examination findings to report; however, she did agree with Dr. Martinson’s reports that
appellant’s subjective complaints were not supported by objective findings. Dr. Mason stated
her understanding that appellant’s benefits were to be terminated and she agreed that appellant
was at maximum medical improvement. She noted that there was “an interplay on the part of the
patient between her health plan benefits and her workers’ compensation benefits” in obtaining
narcotic medication. Dr. Mason recommended that any time off for specific work complaints be
disallowed unless appellant was seen by her primary treating physician, to assure continuity in
her care.
In reports dated January 4 to April 7, 2006, Dr. Langlois addressed appellant’s back
condition and prescribed narcotics for pain. He advised that she was permanent and stationary as
of September 2005.
On September 14, 2006 appellant filed a claim for a recurrence of total disability
commencing September 5, 2006. She attributed her condition to loading parcels into containers,
helping customers and checking all the carriers. Appellant stopped work on September 7, 2006.
On October 13, 2006 Dr. Robert Christopher, an orthopedic surgeon, noted the history of
injury and provided findings on examination. He diagnosed degenerative disc disease at L5-S1
and impingement syndrome of the right shoulder. Dr. Christopher stated that shoulder
impingement syndrome could flare up and can be related to a job incident or trauma. As
appellant’s job was somewhat active, it could have contributed to her condition. Dr. Christopher
noted that it was difficult to determine whether her degenerative lumbar disease had been present
for several years or occurred at the time of her injury. Appellant related to Dr. Christopher that
she had no back pain prior to the injury. Dr. Christopher recommended a discogram.
On December 14, 2006 the Office requested that appellant provide additional information
in support of her recurrence claim. Appellant was advised to submit medical evidence
addressing whether her accepted conditions had worsened or that she could no longer perform
the duties she was performing when she stopped work.
On January 24, 2007 appellant advised the Office that she was undergoing back surgery
on January 25, 2007.

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By decision dated March 7, 2007, the Office denied appellant’s recurrence of disability
claim, finding that she did not provide sufficient medical evidence.
On August 9, 2007 appellant requested reconsideration of the August 9, 2006 termination
decision. She submitted copies of leave records and reports of Dr. Langlois previously of record.
In a June 25, 2007 report, Dr. Mason noted that appellant had decompression and fusion
surgery at L5-S1 under her private insurance on January 31, 2007 to remedy spondylotic spinal
stenosis at L4-S1. Following surgery, appellant’s lower extremity pain resolved. Dr. Mason
advised that the surgeon did not address causation in her reports and was now deceased. She
reviewed the Kaiser medical records from 1997, noting two episodes of back pain prior to the
August 25, 2003 injury that resolved with conservative care. Dr. Mason stated that appellant
“may have had a mild preexisting condition of occasional low back pain” but her problems
occurred primarily after the chair collapsed at work. For this reason, appellant’s surgery and
time off work should be considered as part of the 2003 injury.
In an October 11, 2007 attending physicians report, Dr. Christopher D. Hamilton, a
Board-certified orthopedic surgeon, noted that appellant sustained a left shoulder injury at work
on January 29, 1992. He diagnosed chronic left shoulder pain and AC joint arthritis with
synovitis. Dr. Hamilton listed a checkmark “yes,” that appellant’s condition appeared directly
related to overuse injury and she was partially disabled since June 25, 2002 and should only
work within specified restrictions. On October 16, 2007 Dr. Hamilton advised that appellant was
unable to work due to an October 15, 2007 surgery.
By decision dated November 8, 2007, the Office denied modification of the August 9,
2006 termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.4 Having determined that, an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.5 The Office’s burden of proof in terminating compensation includes
the necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.6 The right to medical benefits for an accepted condition is not limited to
the period of entitlement for disability compensation.7 To terminate authorization for medical

4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

Roger G. Payne, 55 ECAB 535 (2004).

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treatment, the Office must establish that appellant no longer has residuals of an employmentrelated condition, which require further medical treatment.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained injury when she fell on August 25, 2003.
Appellant’s claim was accepted for bilateral elbow contusions, cervical strain, right shoulder
strain and lumbar strain. It has the burden of justifying the termination of appellant’s
compensation for these medical conditions.
The Office terminated appellant’s compensation benefits based on the opinion of
Dr. Martinson. In a December 29, 2004 report, Dr. Martinson provided comprehensive review
of appellant’s history of injury, medical treatment and diagnostic studies. On physical
examination, she noted that appellant demonstrated inconsistent voluntary efforts but no motor
weakness of either upper extremity. Sensory examination was noted as revealing nonanatomic
patchy areas of hypesthesia to light touch in both arms. Based on a review of multiple MRI scan
reports, Dr. Martinson diagnosed right trochanteric bursitis, right AC joint arthritis, minor disc
abnormalities of the cervical and lumbar spine and morbid obesity. However, she advised that
none of the diagnosed conditions were causally related to appellant’s August 25, 2003
employment injury. Dr. Martinson noted that the mechanism of the work injury would not
produce additional new shoulder pathology and attributed appellant’s low back and right hip
symptoms to the tightness of the iliotibial band, a problem in chronic obese individuals. She
opined that appellant would have recovered from her fall with no more than five days of total
disability. Dr. Martinson found that appellant’s complaints and use of narcotic analgesics were
disproportionate to the objective findings on examination and the MRI scan reports pertaining to
her shoulders, cervical spine and low back. She stated that appellant’s iatrogenic narcotic
dependency was work related to the extent workers’ compensation funded her ongoing narcotic
usage and that continued use would affect her ability to work. In a June 6, 2006 supplemental
report, Dr. Martinson reiterated that appellant would have been able to return to her date-ofinjury position after five days of temporary total disability. She concluded that there was no
musculoskeletal pathology attributable to the August 25, 2003 injury.
The Board finds that the opinion of Dr. Martinson is based upon an accurate medical
history and factual background. She performed a thorough examination and found that
appellant’s complaints were disproportionate to objective findings and the diagnostic studies of
her shoulders and spine. Dr. Martinson found no ongoing musculoskeletal pathology related to
the August 25, 2003 fall and attributed appellant’s current conditions to degenerative disc disease
and her obesity. The Board finds that her opinion is well rationalized and establishes that
appellant’s work-related conditions ceased.
Appellant submitted additional evidence from Dr. Langlois, who opined that her work
caused or contributed to her back conditions, pain in the shoulder region and carpal tunnel
syndrome. He did not provide sufficient findings on examination to support continuing disability
based on the accepted injury. As to those conditions not accepted by the Office as being
8

Pamela K. Guesford, 53 ECAB 726 (2002).

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employment related, it is appellant’s burden to provide rationalized medical evidence sufficient
to establish causal relation, not the Office’s burden to disprove any such relationship.9
Dr. Langlois provided his opinion in brief medical note and did not adequately explain how her
conditions were caused or aggravated by the accepted employment injury. The Board has held
that medical reports unsupported by medical rationale are of limited probative value.10
The reports from Dr. Mason do not support appellant’s claim of continuing employmentrelated disability. She noted that appellant resumed treatment at Kaiser after obtaining care from
Dr. Langlois, who had prescribed extensive narcotic medications. Dr. Mason advised that
appellant’s employer was able to accommodate her physical restrictions for work; however,
appellant made frequent visits to the urgent care clinic to obtain medication. She reviewed the
reports of Dr. Martinson and stated that she agreed with her observation that appellant’s
subjective complaints were not supported by findings on examination.
The Board finds that the weight of the medical evidence establishes that appellant’s
accepted work-related conditions have resolved. For these reasons, the Office met its burden of
proof in terminating appellant’s benefits for her accepted elbow contusions and strains of the
cervical and lumbar spine and right shoulder.11
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant.12
To establish a causal relationship between the condition, as well as any disability claimed
and the employment injury, the employee must submit rationalized medical opinion evidence,
based on a complete factual background, supporting such a causal relationship. Rationalized
medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.13
9

Alice J. Tysinger, 51 ECAB 638 (2000).

10

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006); George A. Rodriguez, 57 ECAB
224 (2005).
11

The Board notes that both Dr. Martinson and Dr. Mason commented on the narcotic medication prescribed by
Dr. Langlois in treatment of appellant’s accepted conditions. The Office has not adjudicated the issue of whether
appellant developed chronic narcotic dependence arising from the treatment of her August 25, 2003 injury. On
return of the case record it should further develop this aspect of the claim. See S.M., 58 ECAB ___ (Docket No.
06-536, issued November 24, 2006).
12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

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ANALYSIS -- ISSUE 2
Appellant has not established that she has any continuing residuals of her accepted elbow
contusions or strains of the spine and right shoulder. After the termination of her compensation
benefits, she submitted additional reports from Drs. Mason and Langlois. Dr. Langlois provided
treatment records briefly commenting on appellant’s back condition and prescribing medication
for pain. He noted that appellant was considered permanent and stationary, but did not fully
address whether she was disabled due to residuals of her accepted conditions. The record
establishes that appellant underwent back surgery and Dr. Mason addressed the decompression
and fusion at L5-S1, noting that appellant’s lower extremity pain resolved. However, she did not
address how appellant’s need for back surgery arose as from residuals of the accepted lumbar
strain. Dr. Mason noted that the surgeon did not address the issue of causal relationship and was
deceased. She reviewed prior records of treatment at Kaiser and commented that appellant may
have had some mild preexisting low back pain. However, Dr. Mason did not provide a
rationalized medical opinion explaining how the accepted lumbar strain arising from the
November 25, 2003 injury caused or contributed to the L5-S1 surgery in 2007. The opinion of
her is speculative on the issue of causal relationship.14
Dr. Christopher noted the history of injury and diagnosed degenerative disc disease at L5S1 and right shoulder impingement syndrome. He advised that the shoulder impingement
syndrome could be related to appellant’s employment as her job was somewhat active or, in the
alternative, it could be related to trauma. Dr. Christopher stated that appellant’s degenerative
disc disease might have been preexisting or due to her injury as she had no back pain prior to the
accident. His opinion on causal relationship is speculative. Dr. Christopher indicated that
appellant’s back and shoulder conditions could have arisen from either the employment injury or
other processes. He did not provide an opinion of sufficient certainty to establish that these
conditions arose from the November 25, 2003 injury. While the opinion of a physician
supporting causal relationship need not be one of absolute medical certainty, the opinion must
not be speculative or equivocal. The opinion should be expressed in terms of a reasonable
degree of medical certainty.15 The report from Dr. Hamilton addressed appellant’s left shoulder
condition which is not a condition arising from the injury accepted in this claim.
Appellant has not submitted a sufficient medical opinion to establish that the August 25,
2003 injury caused disabling residuals of her accepted conditions after August 8, 2006.
LEGAL PRECEDENT -- ISSUE 3
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.16
14

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical report not
containing ration on causal relationship are entitled to little provide value).
15

Ricky S. Storms, 52 ECAB 349 (2001).

16

20 C.F.R. § 10.5(x).

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Where appellant claims a recurrence of disability due to an accepted employment-related injury,
she has the burden of establishing by the weight of reliable, probative and substantial evidence
that the recurrence of disability is causally related to the original injury.17 This burden includes
the necessity of furnishing evidence from a qualified physician who, on the basis of a complete
and accurate factual and medical history, concludes that the condition is causally related to the
employment injury.18 Moreover, the physician’s conclusion must be supported by sound medical
reasoning.19
ANALYSIS -- ISSUE 3
The Office accepted appellant’s claim for bilateral elbow contusion, cervical strain, right
shoulder strain and lumbar strain. On June 19, 2006 appellant accepted a modified carrier
position with restrictions.20 On August 8, 2006 it terminated appellant’s compensation based on
the opinion of Dr. Mason, an Office referral physician. On September 14, 2006 appellant filed a
claim for recurrence of total disability commencing September 5, 2006.
Appellant attributed her disability to loading parcels into containers, helping customers
and checking the carriers. The Board notes that, at the time of the claimed recurrence of
disability, she was working a modified carrier position. Rather, than alleging a spontaneous
recurrence of disability, appellant identified new employment exposures as the cause of her
disability commencing September 5, 2006. The Board notes that these new exposures to
conditions at work would constitute a claim for a new injury rather than a spontaneous
recurrence of disability. Moreover, appellant did not submit any medical evidence to the record
to establish that her disability commencing that date arose out of the injury of
November 25, 2003. As noted, appellant has the burden of proof to establish a recurrence of
disability by submitting medical evidence from a physician addressing how her disability is
causally related to the accepted employment injury. She has not met her burden of proof in
establishing a recurrence of disability.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
August 8, 2006. Appellant failed to establish that she had any continuing disability after
August 8, 2006 due to her accepted employment conditions. She has not met her burden of proof
in establishing a recurrence of disability commencing September 5, 2006.

17

Robert H. St. Onge, 43 ECAB 1169 (1992).

18

Section 10.104(a)-(b) of the Code of Federal Regulations provides that when an employee has received medical
care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical
report. The physician’s report should include the physician’s opinion with medical reasons regarding the causal
relationship between the employee’s condition and the original injury, any work limitations or restrictions and the
prognosis. 20 C.F.R. § 10.104.
19

See Robert H. St. Onge, supra note 17.

20

See footnote 3 for a description of the modified job duties and restrictions.

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ORDER
IT IS HEREBY ORDERED THAT the November 8 and March 7, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 11, 2008
Washington, DC

Colleen Duffy Kiko, 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.C., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Elkins, WV, Employer
__________________________________________

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

Docket No. 16-0652
Issued: July 27, 2016

Case Submitted on the Record

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

JURISDICTION
On February 10, 2016 appellant filed a timely appeal from an August 18, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 18, 2015, the date of OWCP’s last decision was
February 14, 2016. As February 14, 2016 fell on a Sunday, the appeal would have been due the next business day,
which was February 15, 2015. Since using February 19, 2016, the date the appeal was received by the Clerk of the
Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is February 10, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established sacroiliac joint instability causally related
to her January 27, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The fact and circumstances outlined in
the prior Board decision are incorporated herein by reference. The facts relevant to the instant
appeal are set forth below.
On April 20, 2006 appellant, then a 28-year-old fish and wildlife biologist, filed a
traumatic injury claim (Form CA-1) alleging that on January 27, 2006 she injured her left hip,
low back, and left shoulder when she fell down a slope. OWCP accepted the claim for left hip
strain, thoracic strain, and lumbar strain.4
On August 3, 2007 appellant underwent arthroscopic surgery on her hip and a labral
debridement, capsulorrhaphy, iliopsoas tendon release, and iliotibial band release.5
In a progress report dated November 7, 2007, Dr. Vonda J. Wright, a Board-certified
orthopedic surgeon, discussed appellant’s complaints of left hip pain that had resolved after a
debridement of a labral tear. Appellant experienced pain after trying to jog and bike and “since
that time she has had left-sided S1 pain radiating down into the left ischium. She reports that this
pain was not present after the surgery until this jogging event and she is now in a significant
amount of pain.” Dr. Wright diagnosed S1 pain and recommended a “fluoroscopically-guided
S1 joint injection.”
Appellant, on November 30, 2007, underwent a computerized tomography (CT) guided
“diagnostic and therapeutic left S1 joint injection.” The report indicated that after the injection
her pain subsided.
On July 10, 2008 Dr. Gary S. Gruen, an attending Board-certified orthopedic surgeon,
diagnosed chronic left S1 joint instability.6
OWCP referred appellant, on September 16, 2008, to Dr. Charles A. Lefebure, a Boardcertified orthopedic surgeon, for a second opinion regarding the relationship between her current
condition and disability and her accepted work injury. In an October 14, 2008 report,
3

Docket No. 11-1617 (issued April 2, 2012).

4

In decisions dated August 1 and December 16, 2006, OWCP denied appellant’s claim for continuation of pay as
she did not report the injury on an approved form within 30 days.
5

Appellant, on June 14, 2007, underwent an injection of the left hip.

6

In a decision dated December 15, 2006, OWCP denied appellant’s claim for intermittent time lost form work
from August 11 to September 6, 2006. On April 23, 2007 it denied her request for compensation due to disability on
September 20, 2006. By decision dated December 17, 2007, OWCP denied modification of the December 15, 2006
and April 23, 2007 decisions. On February 20, 2008 it found that appellant had not established a recurrence of
disability beginning December 29, 2007 due to her accepted employment injury.

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Dr. Lefebure diagnosed a labral tear of the left hip due to the January 27, 2006 fall. He related,
“The question of left S1 joint instability is not established as seen by x-ray of the S1 joints.
Further, investigation into that condition could be determined by x-ray of the S1 joints.”
Dr. Lefebure recommended an magnetic resonance imaging (MRI) scan study of the left S1 joint
or repeat stress x-rays.
On February 25, 2009 OWCP authorized an MRI scan study of the S1 joints or further
x-ray studies to determine if appellant had S1 joint instability.
Dr. Gruen, in a report dated March 19, 2009, discussed appellant’s history of a fall at
work January 27, 2006 and subsequent sacroiliac joint instability. He indicated that x-rays were
“indeterminate for sacroiliac joint instability which is not uncommon.” On March 20, 2009
Dr. Gruen related that he specialized in sacroiliac joint instability and advised that MRI scan
studies and stork view x-rays were insufficient to “accurately diagnose sacroiliac joint
instability….” He opined that appellant sustained “sacroiliac joint instability despite the
negative stress views that she has had on her sacroiliac joints.”
On September 11, 2009 Dr. Philip J. Chua, an osteopath, diagnosed left hip strain,
thoracic strain, and lumbar strain due to appellant’s January 27, 2006 employment injury. He
attributed the left sacroiliac joint instability, thoracic strain, and left pelvis joint pain to the
January 27, 2006 work injury and requested that OWCP expand acceptance of appellant’s claim
to include the listed conditions.
An OWCP medical adviser reviewed the evidence of record on December 10, 2009 and
found no objective evidence of S1 joint instability. He opined that appellant’s physicians had not
supported their diagnosis of joint instability with either diagnostic or clinical evidence and
asserted, “The claimant’s S1 joint pain is well established and is related to the accepted
conditions in this case (as is left hip pain), however, there is no objective evidence for S1 joint
instability in this case.”
On December 15, 2009 OWCP informed Dr. P. Chua that it was denying his request for
expansion of the claim to include left sacroiliac joint instability and left pelvis joint pain. In an
undated response received February 22, 2010, Dr. P. Chua advised that S1 joint instability could
be made using clinical findings rather than diagnostic studies.
A second OWCP medical adviser reviewed the medical evidence on February 27, 2010.
He found no objective evidence of S1 joint disease and attributed appellant’s sacroiliac joint pain
to probable left hip or low back radiculopathy.
By decision dated March 2, 2010, OWCP denied expansion of appellant’s claim to
include sacroiliac joint instability/ left pelvis joint pain.
On March 1, 2011 appellant requested reconsideration.7 In a decision dated June 6, 2011,
OWCP denied modification of its March 2, 2010 decision.

7

In a report dated April 27, 2011, Dr. Chua diagnosed pelvic joint pain and indicated that appellant was waiting
for authorization to get physical therapy.

3

Appellant appealed to the Board. In a decision dated April 2, 2012, the Board set aside
the June 6, 2011 decision.8 The Board found that a conflict existed between Dr. Gruen and
Dr. P. Chua and the medical advisers on the issue of whether appellant sustained sacroiliac joint
instability as a result of her accepted employment injury. The Board remanded the case for
OWCP to refer her for an impartial medical examination.
On May 21, 2012 OWCP referred appellant to Dr. Peter K. Thrush, a Board-certified
orthopedic surgeon, for an impartial medical examination. In an evaluation dated June 22, 2012,
Dr. Thrush reviewed the history of injury and medical treatment received. On examination he
found normal strength and sensation of the hip, knee and ankle, no visible atrophy, no medial
lateral or anterior posterior instability, and a slight reduction in left hip motion with no
instability. Dr. Thrush noted that appellant complained of pain in the left S1 joint with range of
motion and tenderness to palpation. He noted that a bone scan or MRI scan study the sacroiliac
joints bilaterally would aid in verifying or disproving inflammation of the sacroiliac joint
inflammation. Dr. Thrush further related that a stork test used to test instability of the sacroiliac
joint was normal. He concluded that appellant had no objective evidence of sacroiliac joint
instability. Dr. Thrush related, “[Appellant] does have pain [in] the sacroiliac joint to
compression. However, this is a fairly common physical finding and can be due to a number of
different factors, including referred pain from the lumbar spine.” He agreed with Dr. Gruen’s
opinion that appellant would not benefit from surgery. Dr. Thrush advised that it was possible
that her symptoms might result from early left hip arthritis as a result of her labral tear. He found
that, considering the accepted conditions of strains of the left hip and thoracic and lumbar spine,
appellant could resume her usual employment. Dr. Thrush determined that her subjective
complaints would prevent her returning to her regular position.
By decision dated July 13, 2012, OWCP denied appellant’s request to expand her claim
to include sacroiliac joint instability/left pelvis joint pain. It found that the opinion of Dr. Thrush
established that she did not have sacroiliac joint instability.
On July 24, 2012 appellant, through counsel, requested a telephone hearing.
In a progress report dated August 23, 2012, Dr. Catherine M. Chua, an osteopath,
evaluated appellant for continued pain at the S1 joint. She found it unusual that a physician had
never “seen an S1 joint injury.” Dr. C. Chua related, “I find that hard to believe as I treat them
quite often.” She diagnosed pelvic joint pain and sprains of the hip, thigh, thoracic region,
lumbar spine, and sacroiliac.
A telephone hearing was held on November 16, 2012. In a decision dated January 31,
2013, an OWCP hearing representative affirmed the July 13, 2012 decision.
The January 31, 2013 decision was returned to OWCP as undeliverable. OWCP resent a
copy to appellant on May 22, 2013.

8

Supra note 3.

4

Appellant, on February 5, 2014, requested reconsideration.9 In a statement dated
January 31, 2014, she argued that Dr. Lefebure, Dr. Thrush, and the medical advisers failed to
consider the November 30, 2007 CT guided left S1 joint injection. Appellant advised that bone
scans and MRI scan studies of the S1 joints were not reliable in diagnosing S1 joint dysfunction,
but that the S1 joint injection was used as a diagnostic test. She maintained that the opinion of
Dr. Thrush was not rationalized or supported by scientific research or objective evidence.
Appellant reviewed her history of medical treatment. She questioned why Dr. Thrush had
discounted the sacroiliac joint as the reason for her pain and did not discuss the diagnostic value
of the S1 joint injection.
By decision dated July 3, 2014, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to establish clear evidence of error.
In a progress report dated July 9, 2013, Dr. C. Chua treated appellant for a sacroiliac
sprain and hip/thigh sprain. She noted that her workers’ compensation claim was not approved
for S1 joint instability.
Appellant appealed to the Board. In a decision dated April 21, 2015, the Board set aside
the July 3, 2014 OWCP decision.10 The Board found that, as the January 31, 2013 hearing
representative’s decision was returned as undeliverable, appellant had rebutted the presumption
of receipt under the mailbox rule. The Board found that she therefore had one year from
May 22, 2013 to request reconsideration. The Board remanded the case for OWCP to consider
appellant’s request for reconsideration under the standard for timely reconsideration requests.
On August 25, 2014 Dr. C. Chua discussed appellant’s back pain in the sacroiliac area
after a January 25, 2006 work injury. She diagnosed chronic sacroiliac sprain and a sprain of the
hip and thigh at an unspecified site.
Dr. Denzel W. Hawkinberry, Board-certified in anesthesiology, evaluated appellant on
October 6, 2014 for low back and left buttock pain.11 He noted that she “fell off a cliff while in
the woods several years ago and dislocated her left S1 joint.” Dr. Hawkinberry provided
examination findings and diagnosed low back pain, an inflamed sacroiliac joint, and sacroiliac
instability.
OWCP, in a decision dated August 18, 2015, denied modification of its March 2, 2010
decision. It noted that the November 30, 2007 joint injection report did not provide a diagnosis
other than pain at the S1 joint.
On appeal appellant describes the procedural history of her case before OWCP and the
Board. She maintains that OWCP should have considered the November 30, 2007 finding of S1
9

The record also contains reports from a physician assistant and a nurse practitioner dated November 26, 2014 to
June 23, 2015.
10

Docket No. 15-0479 (issued April 21, 2015).

11

On June 8, 2015 Dr. C. Chua diagnosed lumbar degenerative disc disease and noted that appellant had a motor
vehicle accident in March 2015 that “exacerbated the pain in her back from her comp[ensation] injury.” She
diagnosed a chronic sprain of the hip and thigh and lumbar disc disease without myelopathy.

5

pain after injection as diagnostic of S1 joint dysfunction. Appellant contends that bone scans,
stork view x-rays, and MRI scan studies are of little value in diagnosing sacroiliac joint
instability. She discusses medical literature supporting her position. Appellant critiques the
medical evidence of record, asserting that the opinions of the medical adviser and referral
physicians are speculative and not contradicted by outside sources. She also advises that
contrary to Dr. Thrush’s finding, a March 24, 2006 emergency room report refers to her
employment injury and diagnoses a sacroiliac joint strain.
LEGAL PRECEDENT
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 The opinion of the
physician must be based on a complete factual and medical background of the claimant,13 must
be one of reasonable medical certainty14 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.15
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.16 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.17
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.18
ANALYSIS
OWCP accepted that appellant sustained left hip strain, thoracic strain, and lumbar strain
causally related to a January 27, 2006 employment injury. On August 3, 2007 appellant
underwent a left hip arthroscopy to repair an anterior superior labral tear. On November 30,
2007 she underwent a CT-guided diagnostic and therapeutic S1 joint injection on the left side on
12

John J. Montoya, 54 ECAB 306 (2003).

13

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

14

Supra note 12.

15

Judy C. Rogers, 54 ECAB 693 (2003).

16

5 U.S.C. § 8123(a).

17

20 C.F.R. § 10.321.

18

Barry Neutuch, 54 ECAB 313 (2003) and David W. Pickett, 54 ECAB 272 (2002).

6

the recommendation of Dr. Wright, who noted that she experienced pain at S1 on the left after
she tried to jog and bike following her hip surgery.
On prior appeal, the Board determined that a conflict existed between appellant’s
physicians, Dr. Gruen and Dr. Chua, and the medical advisers regarding whether her claim
should be expanded to include sacroiliac joint dysfunction. OWCP referred her to Dr. Thrush, a
Board-certified orthopedic surgeon, for an impartial medical examination.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.19 In a report dated June 22, 2012,
Dr. Thrush found normal hip strength and sensation, no atrophy, and a slight loss of hip motion
without instability. He discussed appellant’s complaints of pain with motion of the left S1 joint
and tenderness to palpation, but noted that this was a common finding that could arise from other
factors, including lumbar spine pain. Dr. Thrush concluded that appellant had no evidence of a
sacroiliac joint injury at the time of her work injury. He provided rationale for his opinion by
noting that a stork test used to show instability of the sacroiliac joint was normal. Dr. Thrush
also found no objective evidence of sacroiliac joint instability based on the lack of diagnostic
studies. As his report is detailed, well rationalized and based on a proper factual background,
Dr. Thrush’s opinion is entitled to the special weight accorded an impartial medical examiner.20
The remaining evidence is insufficient to overcome the weight given to Dr. Thrush as
impartial medical examiner. On August 23, 2012 Dr. C. Chua noted that appellant had seen a
referee physician who had not treated joint injuries at S1. She diagnosed sacroiliac, hip, thigh,
thoracic, and lumbar sprains. On July 9, 2013 Dr. C. Chua diagnosed a hip/thigh and sacroiliac
sprain. As she did not specifically address the cause of the sacroiliac sprain, her opinion is of
little probative value.21
In a report dated August 25, 2014, Dr. C. Chua noted that appellant had experienced
sacroiliac pain subsequent to a January 25, 2006 employment injury. She diagnosed a hip and
thigh sprain and a chronic sacroiliac sprain. While Dr. C. Chua reviewed the history of the
January 25, 2006 injury, she did not provide an independent opinion regarding whether the work
injury caused a sacroiliac condition, and thus her opinion is insufficient to overcome the weight
of the impartial medical examiner’s opinion and meet appellant’s burden of proof.
On October 6, 2014 Dr. Hawkinberry discussed appellant’s history of a fall some years
ago and dislocation of the left S1 joint. He found an inflamed sacroiliac joint and instability.
Dr. Hawkinberry, however, did not address causation and relied upon a history of appellant
dislocating her left S1 joint at the time of her fall, which has not been accepted by OWCP.22

19

See J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

20

See J.M., id; Katheryn E. Demarsh, 56 ECAB 677 (2005).

21

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

22

See Conard Hightower, id.; M.W., 57 ECAB 710 (2006).

7

On appeal appellant asserts that the OWCP referral physicians and OWCP medical
advisers should have considered the November 30, 2007 S1 joint injection as objective evidence
of sacroiliac joint instability. The report from the November 30, 2007 diagnostic and therapeutic
left S1 joint injection indicated that she had reduced pain subsequent to the injection, but did not
otherwise contain a diagnosis or causation finding. Thus, the study is insufficient to support
causal relationship.23 Appellant further argues that the reports from the OWCP referral
physicians are speculative and not supported by medical literature. A lay opinion, however, does
not carry any probative weight.24
Appellant further contends that a March 24, 2006 emergency room report refers to her
work injury and contains a diagnosis of sacroiliac joint strain. Dr. Thrush, in his review of the
medical records, noted that the March 24, 2006 report was difficult to read and that he could not
see if the report contained a history of the January 27, 2006 injury. He did not rely on this
evidence in reaching his opinion and thus it does not affect the disposition of the case.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained sacroiliac joint
instability causally related to her January 27, 2006 employment injury.

23

See C.M., Docket No. 15-0386 (issued April 23, 2015).

24

See L.P., Docket No. 10-0319 (issued October 12, 2010).

8

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.T., Appellant
and
U.S. POSTAL SERVICE, BERGEN SOUTH
STATION, Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0001
Issued: July 1, 2021

Case Submitted on the Record

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

JURISDICTION
On October 1, 2019 appellant, through counsel, filed a timely appeal from an April 17,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the April 17, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period February 7 to August 7, 2015 causally related to the accepted
December 23, 2014 employment injury; (2) whether OWCP abused its discretion by denying
appellant’s request for authorization of left knee surgery due to the accepted left knee contusion;
and (3) whether appellant has met her burden of proof to establish that the acceptance of her claim
should be expanded to include additional left knee conditions causally related to the December 23,
2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On February 26, 2015 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 23, 2014 she tripped when ascending wet steps in
the rain, striking her left knee while delivering mail in the performance of duty.
On April 15, 2015 OWCP accepted appellant’s claim for left knee contusion.
In reports dated February 11 and March 23, 2015, Dr. Howard S. Levine, an osteopath
specializing in family medicine and manipulative therapy, noted that he began treating appellant
on February 4, 2015 for complaints of severe left knee pain. He indicated that a magnetic
resonance imaging (MRI) scan of her left knee showed a bone bruise.
Appellant filed claims for compensation (Form CA-7) for disability during the periods
February 7 to July 10, 2015 and July 11 to August 7, 2015. By decision dated September 17, 2015,
OWCP denied her claim for disability from February 7 through August 7, 2015. It found that the
medical evidence was insufficient to establish that the claimed disability was due to the accepted
condition.
Dr. Jeffrey F. Augustin, a Board-certified orthopedic surgeon, began treating appellant on
March 5, 2015. On June 25, 2015 he advised that her left knee x-ray demonstrated mild lateral tilt
of the patella, and on July 23, 2015. He recommended left knee arthroscopic lateral retinacular
release. Dr. Augustin requested authorization for left knee surgery on September 9, 2015.
By decision dated October 26, 2015, OWCP denied appellant’s request for authorization
of left knee surgery, finding that the medical evidence submitted was of insufficient rationale to
authorize the requested procedure.
Dr. Robin R. Innella, an osteopath Board-certified in orthopedic surgery, began treating
appellant on December 9, 2015. He noted a history that she hurt her left knee at work in
December 2014 when she slipped on a step while delivering mail in the rain. Dr. Innella described
left knee examination findings and diagnosed left knee chondromalacia patella and contusion. He
4

Docket No. 17-1012 (issued July 24, 2018); Order Dismissing Appeal, Docket No. 19-0706 (issued April 1, 2019).

2

opined that appellant most likely sustained an articular surface injury, recommended arthroscopy,
and advised that she could work light duty only. Dr. Innella continued to submit monthly treatment
notes in describing her continued left knee complaints with consistent examination findings. He
reiterated appellant’s diagnoses, opining that her knee injuries were causally related to the
December 23, 2014 employment injury.
Appellant, through counsel, requested reconsideration of the September 17, 2015 decision
on March 14, 2016. On August 12, 2016 appellant, through counsel, also requested
reconsideration of the October 26, 2015 decision.
By decision dated December 14, 2016, OWCP denied modification of the September 17
and October 26, 2015 decisions, finding that the medical evidence of record was insufficient to
establish the claimed disability or to authorize left knee arthroscopic surgery. 5
Appellant, through counsel, filed an appeal with the Board on April 10, 2017. By decision
dated July 24, 2018, the Board found that appellant had not met her burden of proof to establish
additional left knee conditions causally related to the December 23, 2014 employment injury, nor
had she established disability from work for the period February 7 to August 7, 2015 causally
related to the accepted employment injury. The Board further found that OWCP properly
exercised its discretion by denying her authorization for left knee surgery. It affirmed the
December 14, 2016 decision.6
On September 13, 2018 appellant, through counsel, requested reconsideration.
Dr. Innella continued to submit treatment notes describing her left knee condition from
February 1 to September 10, 2018 in which he reiterated his findings and conclusions. Beginning
March 28, 2018, he recommended left knee surgery and on August 16, 2018 he requested
authorization for left knee surgery for a diagnosis of transient synovitis.
In an August 20, 2018 report, Dr. Innella provided examination findings and diagnosed
transient synovitis, contusion, and chondromalacia patella of the left knee. He advised that
appellant’s left knee condition had not changed and reiterated his opinion that she had injured the
articular surface of the patella of her left knee when she had fallen several years prior, noting that
her knee had been flexed when she landed on the knee. Dr. Innella indicated that she had
subsequently developed recurrent symptoms from the chondral injury of traumatic chondromalacia
and synovitis within the knee.
On September 27, 2018 Dr. Innella performed left knee arthroscopic multiple compartment
synovectomy and chondroplasty patella. His postoperative diagnoses were transient synovitis,
chondral injury/chondromalacia patella, and lateral tracking patella of the left knee. On
October 29, 2018 Dr. Innella noted that appellant was doing well and that he had injected her left
knee.

5

Appellant continued to submit Form CA-7, claims for compensation, for disability for dates through
November 11, 2016. By letter dated December 14, 2016, OWCP advised her of the evidence needed to establish these
claims.
6

Supra note 4.

3

By decision dated December 4, 2018, OWCP denied modification of its prior decision. It
found the medical evidence insufficient to establish additional left knee conditions, disability from
work due to the accepted knee condition, and that knee surgery was necessitated by the accepted
employment injury.
OWCP continued to receive progress reports from Dr. Innella dated from January 7
through March 11, 2019.
In correspondence dated February 12, 2019, Dr. Innella opined, based on reasonable
probability that appellant’s injuries to her knee occurred during the accident when she fell directly
on her knee on December 23, 2014, based on the fact that her symptoms developed following this
incident. He noted that recurrent synovitis and a chondral injury underneath her patella were seen
on surgery. Dr. Innella opined that the direct impact to the patella caused articular surface injury
and resulted in the development of type 2 scar cartilage, noting that this type of cartilage
notoriously caused recurrent symptomatology. He concluded that appellant’s injuries were
causally related to the events of the December 23, 2014 accident, which caused left knee contusion,
chondral patella injury, and recurrent synovitis.
On March 6, 2019 appellant, through counsel, requested reconsideration.
By decision dated April 17, 2019, OWCP denied modification of its December 4, 2018
decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 8 Under FECA, the term
“disability” means the incapacity, because of an employment injury, to earn the wages that the
employee was receiving at the time of injury. Disability is, thus, not synonymous with physical
impairment, which may or may not result in an incapacity to earn wages. An employee who has
a physical impairment causally related to a federal employment injury, but who nevertheless has
the capacity to earn the wages he or she was receiving at the time of injury, has no disability as
that term is used in FECA.9 Furthermore, whether a particular injury causes an employee to be
disabled from work and the duration of that disability are medical issues which must be proven by
a preponderance of the reliable, probative, and substantial medical evidence.10

7

Supra note 2.

8

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
9

See 20 C.F.R. § 10.5(f); K.A., Docket No. 19-1564 (issued June 3, 2020); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

K.A., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that she was disabled from work due to
her accepted left knee contusion during the period February 7 to August 7, 2015.
In his reports, Dr. Innella advised that appellant was restricted to light duty, but he did not
explain why the accepted left knee contusion caused her disability. Furthermore, he did not offer
an opinion regarding the period of claimed disability at issue in this case. Similarly, Drs. Levine
and Augustin, in their reports, also did not provide an opinion regarding the claimed period of
disability. The Board has held that evidence which does not address the accepted condition and
explain why the accepted condition caused disability on the specific dates claimed, is insufficient
to establish a claim for wage-loss benefits.11
As appellant did not submit sufficient rationalized medical opinion evidence to establish
that she was disabled from work during the period February 7 to August 7, 2015 due to the
accepted left knee contusion, she failed to meet her burden of proof. She was, thus, not entitled to
wage-loss compensation for this period.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.12
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.13 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.14
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA. OWCP has the general objective of
11

See W.C., Docket No. 19-1740 (issued June 4, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12
5 U.S.C. § 8103; see B.H., Docket No. 17-0479 (issued March 19, 2019); Dona M. Mahurin, 54 ECAB
309 (2003).
13

M.G., Docket No. 19-1791 (issued August 13, 2020); M.B., 58 ECAB 588 (2007).

14

M.G., id.; R.C., 58 ECAB 238 (2006).

5

ensuring that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time. It, therefore, has broad administrative discretion in choosing means to
achieve this goal. The only limitation on OWCP’s authority is that of reasonableness.15 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.16
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left knee surgery.
For a surgical procedure to be authorized, a claimant must submit evidence to show that
the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment. 18 The
accepted condition in this case is left knee contusion.
Dr. Innella initially requested authorization for arthroscopic left knee surgery for an
articular surface injury of the patella medial femoral condyle. He continued to recommend left
knee surgery and on August 16, 2018 requested authorization for left knee surgery for a diagnosis
of transient synovitis. Dr. Innella did not indicate at any time that it was necessitated by the
accepted left knee contusion.
As indicated above, no additional left knee conditions have been accepted as employment
related. Appellant must submit evidence that shows that the requested medical procedure is both
due to a condition causally related to an employment injury and that it is medically warranted. 19
As the requested surgery has not been established to be causally related to appellant’s employment
injury, OWCP did not abuse its discretion by denying her requests for surgery. To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.20

15

D.K., Docket No. 20-0002 (issued August 25, 2020).

16

Id.; Daniel J. Perea, 42 ECAB 214 (1990).

17

P.L., Docket No. 18-0260 (issued April 14, 2020); Kennett O. Collins, Jr. 55 ECAB 648 (2004).

18

Supra note 14.

19

Id.

20

Supra note 13.

6

Based on the evidence of record, the Board finds that OWCP did not abuse it discretion in
denying the proposed surgical procedure. As noted, the only restriction on OWCP’s authority to
authorize medical treatment is one of reasonableness.21 Absent sufficient explanation as to why
the proposed surgery was causally related to the December 23, 2014 employment injury, the Board
finds that OWCP acted reasonably in denying appellant’s request for left knee surgery.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 3
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.22
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment injury is rationalized medical opinion evidence.23 The opinion of
the physician must be based on a complete factual and medical background, 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 injury.24
ANALYSIS -- ISSUE 3
The Board finds this case not in posture for decision with regard to whether appellant has
additional left knee conditions causally related to the accepted December 23, 2014 employment
injury.
Dr. Innella, in his December 9, 2015 report, indicated that appellant developed recurrent
symptoms from a chondral injury with articular cartilage traumatic chondromalacia and recurrent
synovitis within the knee and opined that, based on reasonable probability, her left knee injuries
occurred during the December 23, 2014 incident when she fell directly on her knee. He stated that
his opinion was based on the fact that her symptoms developed following this incident, and noted
his surgical findings of recurrent left knee synovitis and chondral injury underneath her patella.
Dr. Innella reiterated that this direct impact to the patella caused articular surface injury underneath
her patella, which resulted in the development of type 2 scar cartilage, noting that this type of
cartilage notoriously caused recurrent symptomatology. Dr. Innella continued to submit monthly
treatment notes in describing her continued left knee complaints with consistent examination
findings. He reiterated appellant’s diagnoses, opining that her knee injuries were causally related
to the December 23, 2014 employment injury.

21

Supra note 15.

22

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

23

B.C., Docket No. 20-0498 (issued August 27, 2020).

24

T.L., Docket No. 19-1467 (issued July 24, 2020); Victor J. Woodhams, 41 ECAB 345 (1989).

7

In an August 20, 2018 report, Dr. Innella provided examination findings and diagnosed
transient synovitis, contusion, and chondromalacia patella of the left knee. He advised that
appellant’s left knee condition had not changed and reiterated his opinion that she had injured the
articular surface of the patella of her left knee when she had fallen several years prior, noting that
her knee had been flexed when she landed on the knee. Dr. Innella indicated that she had
subsequently developed recurrent symptoms from the chondral injury, of traumatic
chondromalacia and synovitis within the knee.
In correspondence dated February 12, 2019, Dr. Innella opined that, based on reasonable
probability, appellant’s injuries to her knee occurred during the accident when she fell directly on
her knee on December 23, 2014, based on the fact that her symptoms developed following this
incident. He noted that recurrent synovitis and a chondral injury underneath her patella were seen
on surgery. Dr. Innella opined that the direct impact to the patella caused articular surface injury
and resulted in the development of type 2 scar cartilage, noting that this type of cartilage
notoriously caused recurrent symptomatology. He concluded that appellant’s injuries were
causally related to the events of the December 23, 2014 accident, which caused left knee contusion,
chondral patella injury, and recurrent synovitis.
The Board finds that, while Dr. Innella’s reports are not fully rationalized and are
insufficient to meet appellant’s burden of proof to establish her occupational disease claim, they
are consistent in indicating that she sustained a medical condition due to the accepted employment
incident.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.25
The Board will therefore remand the case for further development of the medical evidence.
On remand OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether appellant has additional left
knee conditions causally related to the accepted injury. If the referral physician disagrees with the
explanations provided by Dr. Innella, he or she must provide a fully-rationalized explanation
explaining why Dr. Innella’s opinion is unsupported. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has not established disability from work for the period
February 7 to August 7, 2015 causally related to the accepted employment injury. The Board also
finds that OWCP did not abuse its discretion by denying her request for authorization of left knee
surgery. The Board further finds that this case is not in posture for decision with regard to whether
the acceptance of her claim should be expanded to include additional left knee conditions causally
related to her December 23, 2014 employment injury.

25

S.W., Docket No. 18-0119 (issued October 5, 2018); William J. Cantrell, 34 ECAB 1233 (1993).

8

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.
Issued: July 1, 2021
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0595
Issued: September 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 24, 2019 appellant, through counsel, filed a timely appeal from an August 2,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (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
The Board notes that appellant, through counsel, specifically appealed OWCP’s August 2, 2018 merit decision.
Although OWCP’s October 24, 2018 merit decision which suspended appellant’s compensation benefits, effective
October 14, 2018, is within the Board’s jurisdiction, appellant has not appealed that decision. Therefore, the Board
will not address the October 24, 2018 suspension decision in this appeal. See 20 C.F.R. § 501.3(a)(c).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the
constructed position of general office clerk.
FACTUAL HISTORY
On May 21, 2014 appellant, then a 40-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 14, 2014 she injured her lower back and right leg when lifting
a tub of flats from the floor to a case while in the performance of duty. She noted that she felt a
pop in her lower back and experienced mild pain in her back and right leg, which gradually
worsened by the end of the day. Appellant stopped work on May 15, 2014. OWCP accepted the
claim for L4 herniated disc including inferiority extruded disc fragment. It paid appellant wageloss compensation for temporary total disability on the supplemental rolls beginning
August 2, 2014.
In a duty status report (Form CA-17) and work capacity evaluation (Form OWCP-5c) dated
June 10, 2016, Dr. Laverne R. Lovell, an attending Board-certified neurologist, diagnosed other
intervertebral disc displacement, lumbar region due to the accepted May 14, 2014 employment
injury. He advised that, while appellant could not perform her usual job, she could work four
hours a day with restrictions. Dr. Lovell’s restrictions included no operation of a motor vehicle at
work and no bending, stooping, twisting, pushing, or pulling. Appellant was also restricted to
continuous sitting and standing, intermittent simple grasping, and casing mail four hours a day,
and intermittent walking. Dr. Lovell indicated that these restrictions applied until her next monthly
appointment when a magnetic resonance imaging (MRI) scan would be completed.
OWCP, on July 1, 2016, referred appellant for vocational rehabilitation based on
Dr. Lovell’s June 10, 2016 report. In a letter dated August 4, 2016, a vocational rehabilitation
counselor requested that the employing establishment determine whether it had a position available
for appellant within the restrictions set forth by Dr. Lovell.
On September 8, 2016 the employing establishment offered appellant a part-time, modified
rural carrier position for seven and one-half hours a week, over a five-day workweek, which was
available effective September 17, 2016. Appellant accepted the position and returned to work on
September 9, 2016. She worked one hour a day in the position through September 16, 2016.
Effective September 17, 2016, appellant accepted the modified position working one and one-half
hour a day, five days a week.
OWCP thereafter received an October 17, 2016 functional capacity evaluation (FCE)
report which revealed that appellant was capable of performing light to medium physical demand
work with occasional lifting of 22 pounds from floor to waist, 20 pounds from waist to shoulder,
and 20 pounds from shoulder to overhead; carrying 30 pounds; pushing 49 pounds; and pulling 42
pounds. Appellant could also occasionally stand up to 1 hour, walk up to .23 miles, crawl up to
10 feet, kneel, squat, bend, climb up and down stairs, and sit frequently. She could never crouch
due to increased low back pain.

2

OWCP also received an additional Form CA-17 report dated November 10, 2016 by
Dr. Lovell who reiterated his diagnosis of other intervertebral disc displacement, lumbar region
due to the accepted May 14, 2014 employment injury. Dr. Lovell advised that appellant could
perform light to medium physical demand work.
On March 31, 2017 appellant stopped work after being notified by the employing
establishment that it could no longer provide work compatible with her restrictions.
OWCP received a Form CA-17 report dated April 21, 2017 by Dr. Toby Hampton, a
Board-certified family practitioner.
Dr. Hampton diagnosed other intervertebral disc
displacement, lumbar region due to the accepted May 14, 2014 employment injury. He advised
that appellant could perform light-duty work, four hours a day with restrictions. The restrictions
included no pulling, pushing, or lifting more than 20 pounds continuously for three to four hours
and intermittently for 20 to 30 minutes; standing more than 60 minutes; and climbing, kneeling,
bending/stooping, twisting, driving a vehicle, and operating machinery. Appellant was allowed to
sit continuously for three to four hours and intermittently for 20 to 30 minutes; stand and reach
above shoulder level continuously for one hour; walk intermittently for .2 hours; and perform
simple grasping and fine manipulation continuously for four hours.
On May 9, 2017 OWCP again referred appellant for vocational rehabilitation based on
Dr. Hampton’s4 April 21, 2017 report. A vocational rehabilitation counselor, on July 21, 2017,
completed a job classification (Form CA-66) for the position of general office clerk, listed in the
Department of Labor, Dictionary of Occupational Titles and bearing the DOT #219.362-010.5 The
physical demand was listed as light duty, which required occasional lifting of 20 pounds; frequent
lifting of 10 pounds; reaching, handling, fingering, talking, and hearing; and no climbing,
balancing, stooping, kneeling, crouching, or crawling. The position involved tasks including, but
not limited to maintaining records of business transactions and office activities and other general
clerical duties.
The rehabilitation counselor noted that appellant would meet the specific vocational
preparation for the position in three to six months by obtaining basic computer skills training at
Tennessee Career Center in Jackson, Tennessee for a period of approximately two months
followed by on-the-job training. He determined that the position was performed in sufficient
numbers to be reasonably available within the commuting area based on information from the state
Department of Labor and Workforce Development at a weekly wage of $340.00.
OWCP thereafter received an additional Form CA-17 report, dated October 26, 2017, from
Dr. Hampton who again advised that appellant could perform light-duty work, four hours a day
with restrictions. The restrictions were the same restrictions, with the exceptions of no walking
and driving a vehicle intermittently for one hour, set forth in his April 21, 2017 CA-17 form report.
4
The Board notes that it appears OWCP inadvertently misidentified the April 21, 2017 Form CA-17 report as being
authored by Dr. Lovell rather than Dr. Hampton. The report indicates that the author’s specialty is family medicine.
As noted, Dr. Lovell is a Board-certified neurologist, while Dr. Hampton is a Board-certified family practitioner.
5
The vocational rehabilitation counselor also completed CA-66 forms for the positions of hospital admitting clerk
(DOT #205.362-018) and receptionist (DOT #237.367-038).

3

On December 13, 2017 a rehabilitation specialist indicated that appellant had completed
computer training and that placement assistance would begin on December 28, 2017.
OWCP, in a letter dated January 11, 2018, requested that Dr. Lovell review the position
description for among other things, general office clerk and a labor market survey for this position.
It specifically requested that he provide whether the restrictions set forth in his October 26, 2017
Form CA-17 report6 represented appellant’s current restrictions and whether she was capable of
performing the duties of the general office clerk position.
In a Form OWCP-5c report dated February 5, 2018, Dr. Lovell noted that appellant could
not perform her usual job due to continued pain in the lower back and legs. He noted, however,
that she could perform sedentary or light work for eight hours a day with permanent restrictions.
These included: sitting, standing, and lifting 20 pounds for four hours; and walking, pushing 20
pounds, and pulling 20 pounds for two hours; and no squatting, kneeling, or climbing. Dr. Lovell
recommended 10-minute breaks every two hours and 30-minute breaks every four hours.
OWCP, in a letter dated March 8, 2018, requested that Dr. Lovell clarify how appellant
could work eight hours a day when she could only sit four hours a day.
Dr. Lovell responded in a letter dated March 21, 2018 that the four-hour sitting and
standing restrictions were meant to indicate continuous sitting or standing. He advised that
appellant could sit for longer periods during the day if she had frequent breaks where she could
get up, stand, and move around. Dr. Lovell concluded that she was able to sit, stand, and move
around while working such that she could maintain a reasonable comfort level.
In a letter dated June 21, 2018, OWCP notified appellant that it proposed to reduce her
wage-loss compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised her that she was only
partially disabled and that the position of general office clerk (DOT #219.362-010) was medically
and vocationally consistent with her medical limitations, work experience, and education. OWCP
explained that the physical requirements of the general office clerk did not exceed the restrictions
imposed by Dr. Lovell in his June 10, 2016 report. It found that appellant was capable of earning
wages at the rate of $340.00 per week as a general office clerk and that the position was reasonably
available within her commuting area. OWCP provided an attachment detailing the application of
the formula set forth in Albert Shadrick.7 Appellant was afforded 30 days to submit evidence and
argument challenging the proposed action.
In a letter dated July 19, 2018, appellant, through counsel, disagreed with the proposed
reduction of compensation. Counsel contended that Dr. Lovell’s June 10, 2016 work restrictions
were stale and should not be used as appellant’s valid work restrictions. Alternatively, she asserted
that the general office clerk position was not within the restrictions set forth by Dr. Lovell.
Counsel maintained that his June 10, 2016 Form OWCP-5c report indicated that appellant could
only work four hours a day and that her restrictions were not permanent as they only applied until
6

The record does contain a Form CA-17 report from Dr. Lovell. As previously noted by the Board, however, the
author of the October 26, 2017 Form CA-17 report is Dr. Hampton.
7

5 ECAB 376 (1953); as codified by regulation in 20 C.F.R. § 10.403.

4

her next monthly appointment when a lumbar spine MRI scan was completed. She referenced the
findings of the October 17, 2016 FCE8 and asserted that these findings, as well as subsequent Form
CA-17 reports from Dr. Lovell, provided additional work restrictions that were not within the
requirements of the general office clerk position.
Counsel submitted an October 20, 2017 report from Dr. Hampton who noted appellant’s
complaints of low back pain radiating down her right leg. Dr. Hampton indicated that appellant
reported that pain medication allowed her to work part time.
Dr. Hampton discussed examination findings and diagnosed low back pain and
degenerative disc disease of the lumbar spine with failed back surgery.
OWCP subsequently received an additional Form CA-17 report dated July 7, 2018 by
Dr. Hampton who reiterated that appellant could work four hours a day with restrictions.
Appellant was allowed to lift eight pounds continuously for three to four hours and 17 pounds
intermittently for 20 to 30 minutes; sit and stand continuously for four hours; and walk, kneel,
bend, stoop, twist, reach above shoulder with a maximum of 14 pounds, drive a vehicle, and
operate machinery intermittently for 20 to 30 minutes.
By decision dated August 2, 2018, OWCP reduced appellant’s wage-loss compensation
benefits, effective July 22, 2018, based on her ability to earn wages of $340.00 per week as a
general office clerk. It noted that the physical duties of the position were in accordance with the
restrictions provided by Dr. Lovell in his March 21, 2018 report, and that her rehabilitation
counselor had determined that she was vocationally capable of performing the constructed
position. OWCP applied the Shadrick9 formula to adjust appellant’s compensation.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.10 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.11
Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.12 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
8

The Board notes that it appears counsel inadvertently related that the FCE was performed on November 10, 2016
rather than October 17, 2016 as she referenced the exact findings contained in the October 17, 2016 FCE.
9

Supra note 7.

10

See E.D., Docket No. 17-1064 (issued March 22, 2018).

11

See S.N., Docket No. 17-1589 (issued January 3, 2018).

12

5 U.S.C. § 8115(a).

5

to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.13
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.14 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.15 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his or her
commuting area.16
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the condition.17
Additionally, the Board has held that a loss of wage-earning capacity (LWEC) determination must
be based on a reasonably current medical evaluation.18
When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.19 Lastly, OWCP applies the principles set forth in Albert C. Shadrick20 as
codified in section 10.403 of OWCP’s regulations,21 to determine the percentage of the employee’s
LWEC.22

13

Id.; see also J.M., Docket No. 17-0397 (issued April 3, 2018).

14
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.3 (June 2013); see also M.P., Docket No. 18-0094 (issued June 26, 2018).
15

See M.K., Docket No. 17-0208 (issued April 17, 2018).

16

See O.V., Docket No. 16-1702 (issued September 13, 2017).

17

See B.G., Docket No. 17-0477 (issued September 20, 2017).

18

Id.

19

Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.816.6.a (June 2013).

20

Supra note 7.

21

20 C.F.R. § 10.403.

22

See D.S., Docket No. 17-0496 (issued May 25, 2017).

6

ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the
constructed position of general office clerk.
The duties of the constructed position of general office clerk involved tasks including, but
not limited to, maintaining records of business transactions and office activities and other general
clerical duties. The physical demands of the position required occasional lifting of 20 pounds;
frequent lifting of 10 pounds; reaching, handling, fingering, talking, and hearing; and involved no
climbing, balancing, stooping, kneeling, crouching, or crawling.
OWCP relied on the opinion of appellant’s physician, Dr. Lovell, in finding that the
constructed position was within appellant’s physical limitations. On January 11, 2018 it requested
that Dr. Lovell review the position description for general office clerk and determine whether
appellant could perform the identified position. In response, Dr. Lovell submitted a Form
OWCP-5c report dated February 5, 2018 in which he advised that while appellant could not
perform her usual job she could perform sedentary light work eight hours a day with permanent
restrictions. These included sitting, standing, and lifting 20 pounds for four hours; and walking,
pushing 20 pounds, and pulling 20 pounds for two hours; and no squatting, kneeling, or climbing.
Dr. Lovell recommended 10-minute breaks every two hours and 30-minute breaks every four
hours. OWCP later sought clarification from Dr. Lovell regarding his finding that appellant could
work eight hours a day, but only sit for four hours a day. Dr. Lovell subsequently explained that
his sitting restriction referred to continuous sitting. He related that appellant could sit for longer
periods during the workday as long as she took frequent breaks to get up, stand, and move around.
As the physical requirements of the general office clerk position are within the restrictions
recommended by Dr. Lovell, the Board finds that the weight of the evidence establishes that
appellant had the physical capacity to perform the duties of the constructed position.23
Dr. Hampton, appellant’s physician, has submitted multiple reports detailing his treatment
of appellant. He opined that appellant could only work four hours a day with restrictions. The
Board finds, however, that these reports do not establish appellant’s disability from performing
work in the constructed position of general office clerk. Dr. Hampton did not indicate that he had
reviewed the duties required of a general office clerk. These reports merely provided findings and
did not offer an opinion as to whether appellant was capable of performing the duties required for
the constructed position of a general office clerk.24 Furthermore, Dr. Hampton provided work
restrictions more stringent than those in the constructed position of general office clerk, but did
not explain why appellant’s work restrictions were further limited.25 As such, the Board finds that

23

See C.H., Docket No. 19-0136 (issued May 23, 2019); C.M., Docket No. 18-1326 (issued January 4, 2019); J.B.,
Docket No. 17-0817 (issued April 26, 2018); T.J., Docket No. 16-1473 (issued January 26, 2017).
24

See J.S., Docket No. 12-1343 (issued April 22, 2013).

25

G.A., Docket No. 15-161 (issued May 6, 2015).

7

these reports fail to establish that appellant was unable to perform the duties of a general office
clerk.26
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account appellant’s work experience, age, mental
capacity, and educational background.27 The Board finds that appellant had received the necessary
vocational and educational preparation for the constructed position of general office clerk. The
rehabilitation counselor determined that appellant would acquire the skills necessary to perform
the position of general office clerk by attending computer skills training at Tennessee Career
Center, which she completed as of December 13, 2017. The counselor found that the position
existed in sufficient numbers within appellant’s commuting area. The rehabilitation counselor
concluded that, based on appellant’s education, work experience, and transferable skills that she
was capable of earning the median wages in the identified position as a skilled worker. As he is
an expert in the field of vocational rehabilitation, OWCP may rely on his opinion in determining
whether the job is vocationally suitable and reasonably available.28
The Board finds that OWCP considered the proper factors, including the availability of
suitable employment, appellant’s physical limitations, and employment qualifications in
determining that she had the capacity to perform the selected position.29 OWCP also properly
determined her loss of wage-earning capacity in accordance with the formula developed in
Shadrick and codified at 20 C.F.R. § 10.403. It, therefore, properly determined that the position
of general office clerk reflected appellant’s wage-earning capacity, and properly reduced her
compensation effective July 22, 2018.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective July 22, 2018, based on her capacity to earn wages in the
constructed position of general office clerk.

26

J.S., supra note 24.

27

See C.H., supra note 23; C.M., supra note 23; T.J., supra note 23.

28

See C.H., supra note 23; J.B., supra note 23; Federal (FECA) Procedure Manual, supra note 14 at Chapter
2.814.6(b) (June 2013).
29

See supra note 23.

8

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2019
Washington, DC

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

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

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

9