United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Dearborn, IL, Employer
__________________________________________

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Appearances:
David Teegarden, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0302
Issued: August 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 27, 2017 appellant, through her representative, filed a timely appeal from a
June 2, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days elapsed from OWCP’s last merit decision, dated July 1, 2015, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 28, 2011 appellant, then a 60-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that repetitive activity at work resulted in injury to her hands.
She first realized her claimed condition and its relation to her federal employment on
February 1, 2006.3 OWCP accepted the claim for disorder of bursae and tendons in left shoulder
and aggravation of bilateral primary osteoarthritis of the hands. Appellant stopped work on
December 17, 2011 and has not returned.
Appellant underwent OWCP-authorized trapeziectomy and carpometacarpal arthroplasty
with flexor carpi radialis tendon interposition left thumb on December 21, 2011, and trapeziectomy
and flexor carpi radialis tendon arthroplasty of basilar joint of right thumb on February 29, 2012.
She did not return to work following her February 29, 2012 right thumb surgery. Effective
September 10, 2013, appellant elected to receive FECA benefits.
OWCP assigned appellant to its vocational rehabilitation program from May 22 through
December 3, 2013 and, again, beginning September 10, 2014. The September 10, 2014 referral to
vocational rehabilitation services noted that the weight of the medical opinion rested with the
January 7, 2014 opinion of Dr. Kenneth Sander, a Board-certified orthopedic surgeon and
impartial medical specialist, that appellant was able to work within the limitations outlined in a
February 6, 2013 functional capacity evaluation (FCE).4 The referral also noted that the
employing establishment was unable to accommodate appellant’s restrictions. As the February 6,
2013 FCE was considered outdated, the claims examiner instructed the rehabilitation counselor to
obtain an updated FCE.
On October 3, 2014 appellant underwent an FCE conducted by a licensed/registered
occupational therapist. The overall results of the evaluation were inconsistent due to submaximal
effort by appellant during the performance of a variety of functional tasks. Appellant was found
to have demonstrated 39.1 percent inconsistent effort. A true demand level could not be
determined due to inconsistent effort.

3

The present claim was assigned OWCP File No. xxxxxx231. Under OWCP File No. xxxxxx888, date of injury
February 1, 2006, appellant has an accepted occupational disease claim for bilateral carpal tunnel syndrome.
Appellant underwent a right carpal release on September 26, 2007 and a left carpal tunnel release on
December 12, 2007. OWCP determined that she had reached maximum medical improvement on March 4, 2008. It
granted appellant a schedule award for eight percent permanent impairment of her bilateral upper extremities.
4

OWCP selected Dr. Sanders to resolve a conflict in the medical opinion evidence between appellant’s attending
physician, Dr. Florian Miranzadeh, an osteopath Board-certified in family practice, and a second opinion physician,
Dr. Theodore J. Suchy, an osteopath Board-certified in orthopedic surgery, as to the extent and degree of any
continuing employment-related disability or residuals.

2

In an October 8, 2014 letter, OWCP noted appellant’s inconsistent effort on the October 3,
2014 FCE and advised that she had impeded the vocational rehabilitation process precluding an
accurate determination of her ability to return to work. It advised her of the provisions of section
8113 (b) of FECA and 20 C.F.R. § 10.519 and warned of the consequences if she did not cooperate
with vocational rehabilitation effort required to assist OWCP in locating suitable work. OWCP
afforded appellant 30 days to either cooperate with vocational rehabilitation and undergo a new
FCE, or provide a valid reason for any nonparticipation with vocational rehabilitation.
On November 5, 2014 appellant underwent another FCE conducted by a physical therapist.
The FCE noted that she had demonstrated the ability to perform minimally at the light physical
demand category; however, her performance was described as “questionable secondary to varied
effort.” The physical therapist concluded that appellant was capable of greater function than that
demonstrated during the FCE.
By decision dated November 17, 2014, OWCP reduced appellant’s compensation to zero
as of November 16, 2014 due to failure to cooperate during the early stages of vocational
rehabilitation. It advised that the reduction in benefits would continue until a third FCE was
conducted which showed a true effort given during the examination or that she showed good cause
for not complying with the vocational rehabilitation effort.
On November 22, 2014 appellant elected to receive retirement benefits through the Office
of Personnel Management (OPM), effective November 17, 2014.
In a November 24, 2014 letter, appellant requested that OWCP schedule her for another
FCE. She also expressed her intent to fully comply with the examination to the best of her abilities.
On December 4, 2014 vocational rehabilitation services were closed. OWCP reduced her
compensation benefits to zero effective November 17, 2014, explaining that because she failed to
undergo the preparatory vocational testing, it assumed that she either would have returned to her
date-of-injury position or that she would have earned higher wages. It advised that the reduction
would continue until appellant, in “good faith,” either undergoes the vocational testing or shows
good cause for not complying.5
In a November 25, 2014 appeal request form, postmarked November 25, 2014, appellant
requested a telephonic hearing before an OWCP hearing representative. A telephonic hearing was
held on April 6, 2015, during which appellant testified and her authorized representative presented
arguments. At the conclusion of the hearing, the hearing representative held the record open for
30 days to allow for the submission of additional evidence. No evidence relevant to the sanction
decision was received.
By decision dated July 1, 2015, OWCP’s hearing representative affirmed OWCP’s
November 17, 2014 decision. The hearing representative determined that OWCP properly
determined there was a sufficient basis to reduce appellant’s compensation benefits as appellant

5
In a December 3, 2014 report, the vocational rehabilitation counselor noted that a new claims examiner was
assigned on November 26, 2014.

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had failed to cooperate with vocational rehabilitation by putting forth an inconsistent, suboptimal
effort in both the October and November 2014 FCE’s.
On June 20, 2016 appellant, through her representative, requested reconsideration. He
argued that it was a medical question as to whether or not appellant had impeded vocational
rehabilitation services by failing to put forth optimum efforts during an FCE. Specifically, the
representative contended that the FCEs relied upon by OWCP in issuing the suspension sanction
were signed by nonmedical personnel and not countersigned by a physician; accordingly, the
determination of appellant’s “efforts” was not probative medical evidence. In support of his
argument, he referenced specific chapters from the Federal (FECA) Procedure Manual pertaining
to the development and evaluation of medical evidence. The representative also cited to the
Board’s case in R.C., Docket No. 09-2095 (issued August 4, 2010).6 He noted that Dr. Sanders,
an impartial medical specialist, had determined appellant’s work restrictions based upon
appellant’s February 6, 2013 FCE (which OWCP had determined to be outdated.)
By decision dated June 2, 2017, OWCP denied appellant’s June 20, 2016 request for
reconsideration of the merits of her claim. It found that the representative’s argument regarding
putting forth maximum effort during an FCE did not apply to the rules of evaluating medical
evidence and thus was not relevant and was therefore insufficient to warrant a merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.9
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.10 When a timely application for reconsideration does not meet at least one
6

In R.C., the Board held that in the absence of probative medical evidence, OWCP’s determination that appellant
did not put forth maximum effort on functional capacity testing was not established. Accordingly, the Board reversed
OWCP’s decision that appellant failed to cooperate with vocational rehabilitation under section 8113(b) to support its
reduction of his monetary compensation to zero.
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

8

20 C.F.R. § 10.607.

9
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
10

20 C.F.R. § 10.606(b)(3).

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of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for further
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The underlying issue in this case is whether or not appellant had failed to cooperate with
vocational rehabilitation under section 8113(b) to support its reduction of her monetary
compensation to zero. With the June 20, 2016 reconsideration request, appellant’s representative
asserted that it was a medical question as to whether appellant put forth optimum efforts during an
FCE. In support of his argument, in both his reconsideration request as well as on appeal,
appellant’s representative cited to R.C., Docket No. 09-2095 (issued August 4, 2010) for the
proposition that probative medical opinion evidence was need to establish OWCP’s determination
that appellant did not put forth maximum effort on functional capacity testing.
The Board finds that appellant’s representative has advanced a relevant legal argument not
previously considered by OWCP, namely that the opinion of the licensed/registered occupational
therapist and physical therapist lacked probative value and was thus an insufficient basis to
terminate compensation benefits. Accordingly, appellant has advanced a new and relevant legal
argument not previously considered. OWCP did not specifically address the R.C. case in denying
appellant’s reconsideration request.
On remand OWCP shall review the merits of the claim. It shall also address appellant’s
November 24, 2014 request that another FCE be scheduled. After such further development of
the evidence as necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

Id. at § 10.608(a), (b).

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MACDILL AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 18-1744
Issued: March 21, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant filed a timely appeal from a May 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a cervical condition
causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 18, 2018 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.

FACTUAL HISTORY
On December 21, 2016 appellant, then a 44-year-old firefighter, filed an occupational
disease claim (Form CA-2) alleging that he sustained dull and burning pain on his cervical spine
while in the performance of duty. He explained that pulling and dragging large diameter hoses,
connecting the hoses to the fire truck water supply, and running the truck’s pump panel caused
pain. Appellant noted that he first became aware of the condition, and its relationship to his federal
employment duties, on November 28, 2016. On the reverse side of the claim form, the employing
establishment noted that he first reported his condition to his supervisor on December 6, 2016.
In a report dated December 15, 2016, Dr. Anthony P. Moreno, Board-certified in
orthopedic surgery, diagnosed cervicalgia, disc degeneration, and spinal stenosis. He referred
appellant for a magnetic resonance imaging (MRI) scan and x-rays.
In a statement dated December 18, 2016, appellant noted that heavy lifting and a high stress
environment of his federal employment caused pain and continuous discomfort of his cervical
spine. He noted that on October 2, 2008 he experienced a traumatic injury at work.3 Appellant
related that Dr. Moreno performed cervical surgery after the October 2, 2008 injury.
By development letter dated December 22, 2016, OWCP advised appellant that the
evidence submitted was insufficient to support his claim. It requested that he provide a
comprehensive medical report and complete a questionnaire to substantiate the factual elements of
his claim. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated January 4, 2017, Dr. Jayant Patel, Board-certified in diagnostic radiology
and neuroradiology, performed an MRI scan of appellant’s cervical spine. He noted impressions
of degenerative foraminal narrowing at C5-6 and C6-7.
In a report dated January 26, 2017, Dr. Moreno diagnosed unspecified cervical disc
degeneration and cervicothoracic spinal stenosis.
By decision dated January 31, 2017, OWCP denied appellant’s claim. It found that the
employment factors occurred as alleged and that medical conditions had been diagnosed.
However, OWCP found that the medical evidence submitted was insufficient to establish that the
diagnosed conditions were causally related to the accepted employment factors. It concluded,
therefore, that appellant had not met the requirements to establish that the sustained an injury
causally related to the accepted factors of his federal employment.
On February 1, 2018 appellant requested reconsideration of OWCP’s January 31, 2017
decision and submitted additional evidence.
In a January 26, 2017 report, Dr. Moreno indicated that appellant sustained an
employment-related injury causing cervical herniated disc. In a January 22, 2018 medical report,

3
Appellant had a prior traumatic injury claim on October 2, 2008, which OWCP accepted for cervical strain,
cervical herniated disc at C5-6 and C6-7, and cervical radiculopathy under OWCP File No. xxxxxx726.

2

he indicated that appellant suffered from unspecified cervical disc degeneration, postlaminectomy
cervical syndrome, cervicalgia, and cervicothoracic spinal stenosis.
By decision dated May 18, 2018, OWCP denied modification of its January 31, 2018
decision. It found that the medical evidence of record was insufficient to establish causal
relationship because appellant failed to submit rationalized medical opinion evidence addressing
how the accepted employment factors caused or aggravated his diagnosed conditions.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an employee of the United States within the meaning of
FECA, that the claim was filed within the applicable time limitation of FECA, that an injury was
sustained in the performance of duty as alleged, and that any specific condition or disability
claimed is causally related to the employment injury.5 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.10

4

Supra note 1.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

E.V., Docket No. 18-1617 (issued February 26, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

7

See M.B., Docket No. 17-1999 (issued November 13, 2018); Victor J. Woodhams, id.

8

B.H., Docket No. 18-1219 (issued January 25, 2019); see M.B., id.; Robert G. Morris, 48 ECAB 238 (1996).

9

See M.B., supra note 7.

10

L.G., Docket No. 18-0321 (issued October 25, 2018).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted reports from Dr. Moreno dated December 15,
2016, January 26, 2017, and January 22, 2018. These reports do not contain a rationalized medical
opinion regarding whether and how the November 28, 2016 employment factors caused or
aggravated his diagnosed conditions. Dr. Moreno only generally referenced a work-related injury
and diagnosed appellant with unspecified cervical disc degeneration, postlaminectomy cervical
syndrome, cervicalgia, and cervicothoracic spinal stenosis. The Board has held that a medical
opinion is of limited probative value if it is speculative and conclusory in nature.11 A medical
opinion must provide an explanation of how the specific employment factors physiologically
caused or aggravated the diagnosed conditions.12 Without medical reasoning explaining how the
accepted employment factors caused or contributed to the diagnosed conditions, Dr. Moreno’s
report is insufficient to establish the claim.13
Appellant submitted a report dated January 4, 2017 from Dr. Patel, who performed an MRI
scan of appellant’s cervical spine, and noted impressions of degenerative foraminal narrowing at
C5-6 and C6-7. However, Dr. Patel offered no opinion on the cause of appellant’s diagnosed
conditions. The Board has held that diagnostic testing reports lack probative value as they do not
provide an opinion on causal relationship between appellant’s employment duties and a diagnosed
condition.14 As such, the Board finds that Dr. Patel’s report is insufficient to meet appellant’s
burden of proof.
In his personal statement dated December 18, 2016, appellant noted that heavy lifting and
a high-stress environment of his federal employment caused pain and continuous discomfort of his
cervical spine. However, an award of compensation may not be based on surmise, conjecture,
speculation, or on the employee’s own belief of causal relationship.15 The Board has held that the
mere fact that a condition manifests itself during a period of employment does not raise an
inference of causal relationship.16
As appellant has not submitted rationalized medical evidence to establish a medical
condition causally related to the accepted employment factors, the Board finds that he has not met
his burden of proof to establish his claim.

11

M.W., Docket No. 17-0186 (issued March 13, 2018).

12

V.T., Docket No. 18-0881 (issued November 19, 2018).

13

R.T., Docket No. 17-2019 (issued August 24, 2018).

14

K.V., Docket No. 18-0723 (issued November 9, 2018).

15

R.M., Docket No. 18-1363 (issued February 9, 2019); D.D., 57 ECAB 734 (2006).

16

R.M., id.; Daniel O. Vasquez, 57 ECAB 559 (2006).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his cervical
conditions were causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
DAVID R. CLARK, Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madisonville, KY, Employer
__________________________________________

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

Docket No. 16-0083
Issued: March 8, 2016

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 October 19, 2015 appellant filed a timely appeal of a September 24, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on August 3, 2015.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 24, 2015 decision, OWCP received additional evidence.
Appellant also submitted new evidence with his appeal to the Board. However, the Board may only review
evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. §§ 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On August 3, 2015 appellant, then a 43-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day at 4:45 p.m. he experienced shortness of breath,
dizziness, cramping, blurred vision, kidney dysfunction, and dehydration while walking on Sugg
Street and provided a specific address. On the back of the form the employing establishment
noted that appellant’s tour of duty was from 7:15 a.m. to 3:45 p.m. It checked a box indicating
that the injury did occur in the performance of duty and that appellant stopped work at 5:00 p.m.
on the date of injury. The employing establishment controverted appellant’s claim as he had
failed to submit supporting medical evidence.
In support of his claim, appellant submitted an illegible return to work/school notification
form.
By letter dated August 14, 2015, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required to support his claim and was afforded 30 days to provide the requested
evidence. OWCP informed appellant there was no diagnosis for the alleged injury, nor was there
sufficient evidence supporting that he was in the performance of duty at the time of the incident.
It provided a questionnaire for appellant to answer. OWCP did not receive the completed
questionnaire from appellant.
Subsequent to OWCP’s letter it received an August 3, 2015 Baptist Health-Madisonville
document concerning appellant’s treatment on August 3, 2015 for a syncopal episode. The
report was electronically signed by Dr. Christopher Bunch, a Board-certified surgeon. Appellant
had related that he felt faint and collapsed while under exertion delivering mail. He noted that,
prior to fainting, he felt nauseous and light-headed. Treatment, test results, and examination
findings were provided. Clinical impressions were syncope, dehydration, and moderate acute
renal failure.
By decision dated September 24, 2015, OWCP denied appellant’s claim. It found the
evidence of record insufficient to establish that appellant was in the performance of duty at the
time of the incident due to the fact that his work schedule ended at 3:45 p.m. and the incident
occurred at 4:45 p.m. OWCP noted that no evidence had been submitted to show that appellant
was in the performance of duty at the time of the August 3, 2015 incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

5 U.S.C. § 8101 et seq.

2

employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
The phrase while in the performance of duty has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of arising out of
and in the course of employment.6 The phrase in the course of employment is recognized as
relating to the work situation and more particularly, relating to elements of time, place, and
circumstance. In addressing this issue, the Board has stated the following:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place where he or she may
reasonably be expected to be in connection with the employment; and (3) while
he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto.7”
The Board has noted that the course of employment for employees having a fixed time
and place of work includes a reasonable interval before and after official working hours while
the employee is engaged in preparatory or incidental acts and what constitutes a reasonable
interval depends not only on the length of time involved, but also on the circumstances
occasioning the interval and the nature of the employee’s activity.8 This alone is not sufficient to
establish entitlement to compensation. The employee must establish the concurrent requirement
of an injury arising out of the employment. Arising out of employment requires that a factor of
employment caused the injury. It is incumbent upon the employee to establish that the claimed
injury arose out of his or her employment; that is, the accident must be shown to have resulted
from some risk incidental to the employment. In other words, some contributing or causal
employment factor must be established.9
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained an injury on August 3,
2015 while walking on Sugg Street. OWCP denied the claim as it found that appellant was not
4

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

5

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

6

Charles Crawford, 40 ECAB 474, 476-77 (1989).

7

Mary Keszler, 38 ECAB 735, 739 (1987).

8

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989). In the cases concerning
what constitutes a reasonable interval before or after work, the Board has been influenced by the activities engaged
in by the employees before or after work. In Howell, the Board found coverage when the employee was injured five
minutes after work while performing the incidental task of submitting a job bid. However, in Arthur A. Reid, 44
ECAB 979 (1993), the Board denied coverage when the employee was injured 45 minutes after work while
engaging in a private conversation.
9

See Venicee Howell, supra note 8.

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in the performance of duty at the time of the injury as his tour of duty ended at 3:45 p.m. and the
injury occurred at 4:45 p.m. The employing establishment reported to OWCP that on the date of
injury he worked until 5:00 p.m.
It is appellant’s burden of proof to submit sufficient evidence for OWCP to make a
determination as to whether he was in the course of federal employment at the time of the
incident.10 This includes establishing the essential elements of his claim, which includes fact of
injury. Other than noting on his CA-1 form that he sustained injuries while walking on Sugg
Street on August 3, 2015, appellant has failed to provide a detailed account of the alleged injury
sufficient to establish that the incident occurred in the performance of duty.11 More specifically,
he did not identify what, if any, employment activity he was engaged in on his CA-1 form.
Appellant merely stated that he was in the process of walking on Sugg Street. In its August 14,
2015 development letter, OWCP informed appellant that the evidence of record was insufficient
to support his claim and requested that he submit additional evidence. While he submitted an
August 3, 2015 hospital report noting that he fainted while delivering mail, he did not provide
any factual evidence showing that he was in the performance of duty at the time of the incident.
Appellant did not respond to OWCP’s questionnaire or otherwise submit evidence showing he
was in the performance of duty, with a detailed account of what he was doing at the time of the
August 3, 2015 incident. The Board finds that his statement that he was walking at the time and
the lack of factual evidence showing his activities at the time of the incident does not support his
allegation that the August 3, 2015 event occurred in the performance of duty.
The Board therefore finds that appellant has not met his burden of proof to establish that
he experienced the August 3, 2015 employment incident in the performance of duty. He has
submitted no factual evidence establishing that he was performing work duties at the time of the
incident. Because he has not met his burden of proof to establish fact of injury, it is unnecessary
to make a finding as to whether appellant was performing work duties at 4:45 p.m. or to discuss
the medical evidence.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty on August 3, 2015.

10

T.S., Docket No. 09-2184 (issued June 9, 2010); Bonnie A. Contreras, supra note 4.

11

See M.B., Docket No. 11-1785 (issued February 15, 2012); Dennis M. Mascarenas 49 ECAB 215, 218 (1997

12

Tracey P. Spillane, 54 ECAB 608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2015 is affirmed, as modified.
Issued: March 8, 2016
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
No Appearance, for the Director

)
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)

Docket No. 12-1089
Issued: November 26, 2012

Oral Argument September 19, 2012

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On April 23, 2012 appellant, through her representative, filed an application for review of
a December 1, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of a December 13, 2007 loss of wage-earning capacity (LWEC) decision.
The appeal was docketed as No. 12-1089.1
Appellant was employed as a part-time letter carrier on June 25, 2007 when she filed an
occupational disease claim alleging a right upper extremity condition. OWCP accepted her
claim for bilateral shoulder impingement syndrome, bilateral carpal tunnel syndrome and
bilateral shoulder tendinitis and placed her on the periodic rolls. After an unsuccessful attempt to
obtain employment for appellant through the vocational rehabilitation process, OWCP proposed
to reduce her compensation on the grounds that she was no longer totally disabled and had the
capacity to earn wages based on the full-time constructed position of information clerk, at the
rate of $385.00 per week. In a formal LWEC decision dated December 13, 2007, OWCP
finalized its proposed reduction of benefits.
1

This case has previously been before the Board. By decision dated March 2, 2010, the Board set aside OWCP’s
May 28, 2009 decision and remanded the case for consideration of appellant’s request to modify the December 13,
2007 LWEC decision. Docket No. 09-2202 (issued March 2, 2010). In a December 29, 2010 order, the Board
remanded the case for proper issuance of a May 20, 2010 decision denying modification of the December 13, 2007
LWEC decision. Docket No. 1877 (issued December 29, 2010).

By decision dated May 4, 2011, OWCP denied modification of the December 13, 2007
LWEC decision. In a December 1, 2011 decision, an OWCP hearing representative affirmed the
May 4, 2011 decision and found that appellant had failed to show that there had been a material
change in the nature and extent of the injury-related condition, that she had been vocationally
rehabilitated or that the original determination was erroneous.
The Board having duly considered the matter concludes that the December 13, 2007
LWEC decision was erroneous.
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.2 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors and circumstances which may affect wage-earning capacity in his
or her disabled condition.3
In this case, OWCP based its determination on the full-time constructed position of
information clerk, which it found to be medically and vocationally suitable to represent
appellant’s wage-earning capacity, although she was working only part time at the time of injury.
The hearing representative agreed that appellant’s wage-earning capacity should be based on her
present ability to work full time, in spite of the fact that appellant worked part time on the date of
injury. This application, however, produces an inequitable result.4 Section 8115(a) of FECA
provides that, if a claimant’s actual earnings do not fairly and reasonably represent wage-earning
capacity, then it should be determined with regard to specific criteria, including his usual
employment. Appellant’s usual employment, namely, her employment on the date of injury, was
part time, not full time.5 Thus, OWCP based its wage-earning capacity decision on an incorrect,
inflated salary.6
The Board finds that the December 13, 2007 LWEC determination was, in fact,
erroneous. Therefore, the Board will reverse the hearing representative’s December 1, 2011
decision.

2

David W. Green, 43 ECAB 883 (1992).

3

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

4

See R.C., Docket No. 06-1293 (issued February 12, 2007).

5

5 U.S.C. § 8115(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment -- Determining
Wage Earning Capacity, Chapter 2.814.8 (December 1993).
6

Given the Board’s ruling, it is not necessary to discuss other arguments raised by counsel on appeal.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2011 is reversed.
Issued: November 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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)
)
)
)
)
)

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

Docket No. 12-573
Issued: September 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 23, 2012 appellant, through her representative, filed a timely appeal from the
November 1, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her reconsideration request. Since more than 180 days elapsed between
the last merit decision of September 15, 2010 and the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s August 2, 2011 reconsideration
request.
FACTUAL HISTORY
On March 24, 2005 appellant, a 37-year-old letter carrier, sustained an injury in the
performance of duty when she experienced hip pain while pivoting and casing mail. OWCP
accepted her claim for enthesopathy of the right hip region.
1

5 U.S.C. § 8101 et seq.

Appellant filed a claim for a schedule award. On August 27, 2007 Dr. David O. Weiss,
an osteopath, found that appellant had a six percent impairment of her right and left lower
extremity based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2001).
On September 11, 2008 Dr. David Rubinfeld, a Board-certified orthopedic surgeon and
OWCP referral physician, found that appellant had no impairment under the fifth edition of the
A.M.A., Guides. An OWCP medical adviser concurred.
On July 14, 2010 Dr. Rubinfeld updated his evaluation. As there were no findings on
examination, he concluded that appellant had no impairment under the sixth edition of the
A.M.A., Guides (2009). An OWCP medical adviser concurred.
In a September 15, 2010 decision, OWCP denied appellant’s schedule award claim. It
noted that decisions issued on or after May 1, 2009 must be in accordance with the sixth edition
of the A.M.A., Guides.
Appellant requested reconsideration on August 2, 2011. She argued that there was a
conflict between Dr. Weiss, who found six percent impairment, and Dr. Rubinfeld, who found no
impairment. Appellant argued that the conflict required referral to an impartial medical
specialist under 5 U.S.C. § 8123(a).
In a November 1, 2011 decision, OWCP denied appellant’s reconsideration request. It
found that her legal argument did not have a reasonable color of validity, as Dr. Weiss based his
rating on the outdated fifth edition of the A.M.A., Guides, while Dr. Rubinfeld based his opinion
on the applicable sixth edition.
On appeal, appellant’s representative argues that, when a conflict arose between
Dr. Weiss and Dr. Rubinfeld and the medical adviser, OWCP erred in not referring the matter to
an impartial medical specialist.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 A request for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought.4 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
2

Id. at § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

2

reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5
ANALYSIS
OWCP received appellant’s August 2, 2011 reconsideration request within one year of its
September 15, 2010 decision denying a schedule award. The request is therefore timely. The
question presented on this appeal is whether the request met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), which would require OWCP to reopen the case for a merit review.
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law. FECA provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee,
OWCP shall appoint a third physician who shall make an examination.6 Appellant would
therefore have an argument if OWCP had denied her schedule award claim upon receiving the
September 11, 2008 opinion of Dr. Rubinfeld, the referral orthopedic surgeon. He found no
impairment under the fifth edition of the A.M.A., Guides, while Dr. Weiss, appellant’s
osteopath, found a six percent impairment of the right and left lower extremity.
OWCP did not deny appellant’s claim at that time. Instead, it sought an updated
impairment evaluation from Dr. Rubinfeld because the fifth edition of the A.M.A., Guides was
no longer applicable. Decisions on or after May 1, 2009 must be based on the sixth edition.7
This rendered the prior conflict between Dr. Weiss and Dr. Rubinfeld moot. Further, if an
impartial medical specialist had resolved the conflict under the fifth edition, OWCP would still
be required to base its September 15, 2010 merit decision on the sixth edition.8 The Board
therefore finds that appellant’s reconsideration request did not meet the first standard for
obtaining a merit review of her case.
Appellant’s reconsideration request did not advance a relevant legal argument not
previously considered by OWCP. OWCP denied her schedule award claim because the only
medical evidence that addressed her impairment under the applicable sixth edition of the
A.M.A., Guides was Dr. Rubinfeld’s July 14, 2010 evaluation, which found no impairment.
Dr. Weiss’ evaluation under the fifth edition was no longer relevant to the determination of her
entitlement, which meant there was no conflict to resolve when OWCP issued its September 15,
2010 decision. The Board therefore finds that appellant has not advanced a relevant legal
argument.
5

Id. at § 10.608.

6

5 U.S.C. § 8123(a).

7

For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
8

See E.M., Docket No. 11-885 (issued November 7, 2011) (where a conflict arose under the fifth edition of the
A.M.A., Guides, and an impartial medical specialist in 2007 found a 12 percent impairment under the fifth edition,
the Board affirmed a schedule award for an 8 percent rating from a second opinion physician who in 2010 applied
the newer sixth edition).

3

Appellant’s reconsideration request did not contain relevant and pertinent new evidence
not previously considered by OWCP. She offered only the legal argument that OWCP erred in
not resolving a conflict. As the Board has explained, the conflict became moot.
Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s August 2, 2011 reconsideration
request.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
T.J., Appellant

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

Docket No. 16-1473
Issued: January 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2016 appellant filed a timely appeal from January 14 and May 10, 2016 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to reduce appellant’s
compensation benefits based on his capacity to earn wages in the selected position of
surveillance system monitor; and (2) whether appellant met his burden of proof to establish that a
January 14, 2016 loss of wage-earning capacity determination should be modified.
On appeal appellant asserts that, based on the reports of his attending physicians, he is
totally disabled.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 19, 2003 appellant, then a 25-year-old transportation security screener, injured
his back helping a passenger place luggage on a table. He stopped work on March 24, 2003.
Following a brief return to work, on May 1, 2003 appellant filed a recurrence of disability claim
(Form CA-2a), starting April 27, 2003 because his back pain continued. OWCP accepted lumbar
strain and paid wage-loss compensation. It placed appellant on the periodic compensation rolls.2
In June 2003 appellant came under the care of Dr. H. Vincent Mitzelfelt, who specializes
in occupational medicine. Dr. Mitzelfelt provided form progress reports at monthly intervals in
which he described appellant’s complaints, listed diagnoses including persistent symptomatic
lumbar radiculopathy, lumbosacral strain/sprain, lumbar disc syndrome, and thoracic
spondylosis. He advised that appellant should remain off work.
Dr. Ali Berenji, an orthopedic surgeon, performed authorized percutaneous discectomy at
L5-S1 on May 26, 2004.
On April 14, 2011 Dr. Mitzelfelt advised that appellant could not return to his previous
occupation and should be considered for vocational rehabilitation.
In June 2011 OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion. Following physical examination, Dr. Hanley
diagnosed discogenic lumbar spine pain secondary to annular tear due to the May 26, 2004
surgery. He opined that appellant was not totally disabled. Dr. Hanley recommended trunk and
core strengthening and a gradual return to work with permanent restrictions of four hours
bending, stooping, pushing, pulling, and lifting, and a 25-pound weight restriction.
In August 2011 OWCP referred appellant to Richard D. Hunt, a rehabilitation counselor,
for vocational rehabilitation services. Appellant had vocational testing and a transferable skills
analysis which indicated that appellant had a bachelor’s degree. Mr. Hunt identified the
positions of surveillance systems monitor and security guard, and completed a labor market
survey for each position on January 19, 2012. These included a job description with physical
demands for each position. The security guard position had a light strength level, and the
surveillance system monitor was sedentary. Mr. Hunt indicated that each job was available in
the local commuting area. A rehabilitation plan was approved. Appellant completed security
guard/firearms training in February 2012 and began job placement. Rehabilitation services were
closed on July 23, 2012.
An April 4, 2012 MRI scan of the lumbar spine demonstrated an annular tear at L4-5, and
disc protrusions at L4-5 and L5-S1. Appellant continued monthly treatment with Dr. Mitzelfelt.
On February 24, 2014 Dr. Mitzelfelt noted continued complaints of constant radiating low back
pain. He diagnosed failed lumbar spine surgery, multi-level lumbosacral discs, post-traumatic

2

A June 20, 2003 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated a disc protrusion at
L5-S1. In a September 17, 2003 report, Dr. William C. Boeck, Jr., a Board-certified orthopedic surgeon and OWCP
referral physician, diagnosed lumbar sprain. A second lumbar MRI scan on October 7, 2003 demonstrated
degenerative disc disease.

2

sexual dysfunction, and lumbar muscle spasm.
acupuncture, and heat therapy.

Dr. Mitzelfelt prescribed medication,

Appellant began pain management with Dr. Kamyar Assil, Board-certified in
anesthesiology and pain medicine, on March 18, 2014. Dr. Assil described appellant’s pain
complaints and listed examination findings. He diagnosed chronic low back pain with numbness
and tingling down both legs, discogenic low back pain, and lumbar facet arthropathy. Dr. Assil
recommended facet injections and/or spinal cord stimulation. He continued to follow appellant.
Facet injections were done on June 18 and September 29, 2014. Spinal cord stimulation leads
were placed operatively by Dr. Assil on March 11, 2015. These were removed on March 16,
2015 as they were not helpful. Both Dr. Mitzelfelt and Dr. Assil continued to follow appellant.
In April 2015 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a May 13, 2015 report, Dr. Rogachefsky
noted the history of injury, his review of the medical record, and appellant’s complaint of
radiating low back pain. Examination showed a mildly antalgic gait. Lumbar spine range of
motion was diminished, and there was tenderness to palpation of the low back region. Sensation
was decreased on the left leg and plantar aspects of both feet. Babinski, clonus, and straight leg
raise were negative, and reflexes were intact. There was slight atrophy of the left distal
quadriceps, and lower extremity muscle strength was 4+/5 to 5/5. Dr. Rogachefsky advised that
appellant continued to suffer objective residuals of the March 19, 2003 injury, noting decreased
lumbar spine range of motion and weakness of bilateral lower extremities. He reported
subjective findings of numbness in bilateral lower extremities and low back pain, radiating to
both legs. Dr. Rogachefsky recommended an updated MRI scan and continued therapy. He
indicated that appellant was capable of working modified duty. Dr. Rogachefsky advised that
appellant should have an evaluation and treatment by an orthopedic spine surgeon.
OWCP referred appellant for additional testing. A June 3, 2015 lumbar spine MRI scan
showed a nondisplaced endplate fracture of the L5 vertebral body, and disc desiccation and mild
disc height loss with disc bulge at L5-S1. T12 through L4-5 were normal. A June 19, 2015
lower extremity electrodiagnostic study was normal with no evidence to support motor
radiculopathy, distal peripheral neuropathy, or entrapment neuropathy.
In a June 3, 2015 supplemental report, Dr. Rogachefsky noted his review of the MRI scan
and electrodiagnostic study. He indicated that appellant continued to have objective residuals of
the March 19, 2003 work injury and May 26, 2004 surgery, noting decreased lumbar range of
motion, weakness of both legs, well-healed scars in the posterior aspect of the lumbar region, and
an MRI scan showing an L5 compression fracture. Dr. Rogachefsky further noted subjective
numbness in bilateral legs and radiating low back pain. He advised that appellant’s prognosis
was poor, reiterating his prior recommendations. Dr. Rogachefsky concluded that appellant was
no longer totally disabled and could work within the physical limitations of no climbing, bending
or stooping with lifting, pushing, and pulling limited to no greater than 10 pounds, and walking
to 25 minutes. Appellant was to take 15-minute breaks.
On July 24, 2015 OWCP again referred appellant to Mr. Hunt for vocational
rehabilitation services. On August 19, 2015 Mr. Hunt updated the labor market survey
information for the security guard and surveillance system monitor positions, with weekly wages
of $400.00 to $520.00 for the security guard position and $400.00 to $560.00 for the surveillance
3

system monitor position. Mr. Hunt noted that appellant had previous employment experience as
a transportation security screener, had completed 40 hours of security guard training, and
thereafter received a valid State of California Guard Card which authorized him to be employed
as an unarmed surveillance system monitor. The employing establishment provided updated
earnings information.
In reports dated June 1 and August 17, 2015, Dr. Mitzelfelt noted appellant’s complaint
of radiating low back pain. He provided physical examination findings and reiterated his
diagnoses which, he opined, were caused by employment. Dr. Mitzelfelt advised that appellant
was totally disabled, was at maximum medical improvement (MMI), and would be referred for a
schedule award.
Dr. Assil submitted reports dated June 23 to August 18, 2015 in which he described
appellant’s pain management. On September 22, 2015 he described appellant’s medical and
work history, complaints of constant radiating back pain with back stiffness and numbness and
tingling in the legs and feet, and difficulties with activities of daily living. Dr. Assil found
tenderness to palpation of the lumbar spine with decreased lumbar range of motion and
decreased left leg sensation in the L4-5 sensory dermatomes. He diagnosed discogenic low back
pain, history of low back pain and bilateral lower extremity pain with numbness and tingling,
worse on the left, MRI scan evidence of lower lumbar disc disease and annular fissure, and left
leg sensory and motor radiculopathy. Dr. Assil opined that all diagnoses were due to the
March 19, 2003 employment injury. He advised that appellant had permanent residuals as
demonstrated on MRI scan and electrodiagnostic studies, and that he had restrictions of no lifting
greater than 25 pounds, no repetitive bending, stooping, or twisting of the torso, and no
prolonged sitting, standing, or walking. Dr. Assil recommended continued pain management,
medication, and recommended evaluation by an orthopedic or neurological surgeon experienced
in discogenic disease.3
By letter dated December 1, 2015, OWCP proposed to reduce appellant’s compensation,
based on his capacity to earn wages as a surveillance system monitor, Department of Labor,
Dictionary of Occupational Titles, DOT No. 379.367-010. It noted that in reports dated May 13
and July 3, 2015, Dr. Rogachefsky advised that appellant could work with restrictions, as had
Dr. Assil in his September 22, 2015 report. OWCP noted that, based on Dr. Hanley’s opinion,
appellant had been referred for vocational rehabilitation services, and that the surveillance
system monitor position was selected as being the most appropriate, based upon the
rehabilitation counselor’s review of appellant’s work history and transferrable skills analysis. It
described the physical requirements of the surveillance system monitor position as sedentary and
within the restrictions provided by Dr. Rogachefsky.4 OWCP indicated that, based on recent
3

Dr. Assil also advised that, in accordance with California guidelines, appellant had 13 percent whole person
impairment.
4

The Dictionary of Occupational Titles job description for surveillance system monitor, DOT No. 379.367-010,
is as follows: Monitors premises of public transportation terminals to detect crimes or disturbances, using closed
circuit television monitors, and notifies authorities by telephone of need for corrective action: Observes television
screens that transmit in sequence views of transportation facility sites. Pushes hold button to maintain surveillance
of location where incident is developing, and telephones police or other designated agency to notify authorities of
location of disruptive activity. Adjusts monitor controls when required to improve reception, and notifies repair
service of equipment malfunctions.

4

wage and position information, the surveillance system monitor position was reasonably
available at an entry pay level of $560.00 per week.
Dr. Maliheb Massih, a Board-certified physiatrist, advised that a December 3, 2015 lower
extremity electrodiagnostic study was slightly abnormal, noting that it demonstrated highly
probable L5-S1 subacute lumbosacral radiculopathy bilaterally, and no electrodiagnostic
evidence to suggest peripheral neuropathy or other form of focal neuropathy.
A December 4, 2015 work capacity evaluation (OWCP-5c) electronically signed by
“Dr. Abdelsalam” indicated that appellant did not have the work capacity to stand, walk, sit,
climb, forward bend, kneel, crawl, twist, grasp, push, pull, or perform keyboarding.5
On December 28, 2015 appellant disagreed with the proposed reduction. He maintained
that he continued to be totally disabled, noting that Dr. Rogachefsky advised that he continued to
have residuals of the employment injury.
By decision dated January 14, 2016, OWCP reduced appellant’s wage-loss compensation
based on his capacity to earn wages as a surveillance systems monitor, effective that day. By
utilizing the Shadrick formula,6 it found that appellant had 21 percent loss of wage-earning
capacity.
On February 4, 2016 appellant requested reconsideration asserting that the medical
evidence established that he was totally disabled. In support, he submitted a December 4, 2015
report in which Dr. Charles Xeller, a Board-certified orthopedic surgeon, provided medical and
impairment evaluations. Dr. Xeller noted the history of injury, appellant’s complaints of
constant, radiating back pain, and his review of some medical evidence, including a lumbar spine
MRI scan dated November 23, 2015 and the December 3, 2015 electrodiagnostic study. Physical
examination demonstrated diminished lumbar range of motion and decreased sensation in both
feet. Dr. Xeller diagnosed lumbar intervertebral disc disorder with myelopathy and lumbar disc
displacement. He advised that MMI was reached that day. Dr. Xeller recommended over-thecounter medication and concluded that, based on L5 sensory and motor deficits, appellant had six
percent right lower extremity impairment, and one percent on the left.7
Appellant also submitted reports dated February 22 and April 4, 2016 in which
Dr. Mitzelfelt repeated appellant’s complaints of constant and increasing radiating low back
pain. He provided physical examination findings of tender areas in the lumbar spine area. With
regard to work status, Dr. Mitzelfelt advised that appellant could occasionally lift up to 20
pounds three or four times daily, and could work part time, for four hours a day at most, in a
sedentary position.
5

Dr. Abdelsalam could not be further identified.

6

Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra.

7

Appellant also submitted a schedule award claim dated February 1, 2016. Following review of Dr. Xeller’s
report by an OWCP medical adviser on February 18, 2016, on February 25, 2016 appellant was granted a schedule
award for six percent permanent impairment of the right lower extremity and one percent on the left, for a total
20.16 weeks of compensation, to run from February 7 to June 27, 2016. Appellant did not file an appeal with the
Board from the February 25, 2016 schedule award decision.

5

By decision dated May 10, 2016, OWCP denied modification of the January 14, 2016
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.9
Section 8115 of FECA and section 10.520 of OWCP regulations provide that wageearning capacity is determined by the actual wages received by an employee if the earnings fairly
and reasonably represent his or her wage-earning capacity. If the actual earnings do not fairly
and reasonably represent wage-earning capacity or the employee has no actual earnings, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment, and other factors or circumstances which
may affect his or her wage-earning capacity in the disabled condition.10
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.11 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.12
When OWCP makes a medical 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 that employee’s
capabilities with regard to his or her physical limitations, education, age, and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service, local Chamber of
Commerce, employer contacts, and actual job postings.13 Finally, application of the principles

8

James M. Frasher, 53 ECAB 794 (2002).

9

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

10

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id.

11

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

12

John D. Jackson, supra note 9.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a. (June 2013).

6

set forth in Albert C. Shadrick,14 as codified in section 10.403 of OWCP regulations,15 will result
in the percentage of the employee’s loss of wage-earning capacity.16
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently-acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.17
ANALYSIS -- ISSUE 1
OWCP issued its January 14, 2016 loss of wage-earning capacity determination based on
appellant’s capacity to earn wages as a surveillance system monitor. As noted above, it 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.18
In reports dated May 13 and June 3, 2015, Dr. Rogachefsky, OWCP’s referral physician,
advised that, while appellant continued to have residuals of his accepted conditions, however, he
was no longer totally disabled and was capable of employment within the physical limitations of
no bending or stooping. Lifting, pushing, and pulling were limited to no greater than 10 pounds,
and walking to 25 minutes with no climbing. The Board finds that these limitations are within
the restrictions of the sedentary surveillance system monitor position which provides a lifting
restriction of 10 pounds or less and requires no bending or stooping.19
Dr. Assil, the attending pain management specialist, also provided permanent restrictions,
noting on September 22, 2015 that appellant could not lift greater than 25 pounds, with no
repetitive bending, stooping, or twisting of the torso, and no prolonged sitting, standing, or
walking. These too are within the restrictions of the surveillance system monitor position.20
While Dr. Mitzelfelt advised that appellant was totally disabled in reports dated June 1
and August 17, 2015, he did not further elaborate as to the reasons why. The Board has long
held that medical conclusions unsupported by rationale are of diminished probative value.21
14

Supra note 6.

15

20 C.F.R. § 10.403.

16

Supra note 8.

17

John D. Jackson, supra note 9.

18

Supra note 11.

19

Supra note 4.

20

Id.

21

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

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The Board, therefore, finds that appellant had the physical capacity to perform the duties
of the selected position.
The Board also finds that appellant had the necessary vocational and educational
preparation for the selected position of surveillance system monitor. Appellant successfully
completed security guard training and obtained a valid security guard card which authorized
employment as a surveillance system monitor. Mr. Hunt, the vocational rehabilitation counselor
advised that the surveillance system monitor was reasonably available in the local labor market
with weekly wages of $560.00.
The Board concludes that OWCP considered the appropriate factors in determining that
the position of surveillance system monitor represented appellant’s wage-earning capacity.22
These factors include availability of suitable employment and appellant’s physical limitations,
usual employment, age, and employment qualifications.23 The evidence of record establishes
that appellant had the requisite physical ability, skill, and experience to perform the position and
that such a position was reasonably available within the general labor market of his commuting
area. OWCP therefore properly determined that the position of surveillance system monitor
reflected appellant’s wage-earning capacity, and properly reduced his compensation on
January 14, 2016.24
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.25 OWCP
procedures at Chapter 2.1501 contain provisions regarding the modification of a formal loss of
wage-earning capacity.26 The relevant part provides that a formal loss of wage-earning capacity
will be modified when: (1) the original rating was in error; (2) the claimant’s medical condition
has materially changed; or (3) the claimant has been vocationally rehabilitated.27
The burden of proof is on the party attempting to show a modification of the loss of
wage-earning capacity determination.28

22

John D. Jackson, supra note 9.

23

Id.

24

James Smith, 53 ECAB 188 (2001).

25

Sue A. Sedgwick, 45 ECAB 211 (1993).

26

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.1501 (June 2013).

27

Id. at § 2.1501.3(a).

28

Jennifer Atkerson, 55 ECAB 317 (2004).

8

ANALYSIS -- ISSUE 2
OWCP issued its loss of wage-earning capacity determination on January 14, 2016. On
February 4, 2016 appellant requested reconsideration, asserting that the medical evidence
established that he was totally disabled.
As a formal loss of wage-earning capacity determination was in effect at the time
appellant claimed total disability, he must show a basis for modification of that decision to be
entitled to wage-loss compensation. The Board finds that the evidence submitted is insufficient
to establish that the original loss of wage-earning capacity determination was erroneous or to
establish a material change in appellant’s employment-related conditions.29
The accepted conditions in this case are lumbosacral strain and displaced lumbar
intervertebral disc. Dr. Xeller did not comment on appellant’s work capabilities.30 Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.31 Dr. Xeller’s opinion is therefore
insufficient to establish modification of the January 14, 2016 loss of wage-earning capacity
determination.
As to Dr. Mitzelfelt’s opinion, the issue of whether a claimant’s disability is related to an
accepted condition is a medical question which must be established by a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disability is
causally related to employment factors and supports that conclusion with sound medical
reasoning.32 In his February 22 and April 4, 2016 reports, Dr. Mitzelfelt advised that appellant
could occasionally lift up to 20 pounds three or four times daily, well within the requirements of
the sedentary surveillance system monitor position. While Dr. Mitzelfelt also indicated that
appellant could only work part time, for four hours a day at most, in a sedentary position, he did
not provide any reasoned explanation as to why appellant could not perform the sedentary
surveillance system monitor position for eight hours a day. Thus, his opinion is of limited
probative value and insufficient to establish modification of the loss of wage-earning capacity
determination.33
The Board finds that appellant did not submit sufficient medical evidence to establish a
material change in the nature and extent of his injury-related conditions and, therefore, he did not
meet his burden of proof to show that the January 14, 2016 loss of wage-earning capacity
determination should be modified.34

29

Sue A. Sedgwick, supra note 25.

30

The Board also notes that the November 23, 2015 lumbar MRI scan referred to by Dr. Xeller is not found in the
case record before the Board.
31

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

32

Sandra D. Pruitt, 57 ECAB 126 (2005).

33

See F.B., Docket No. 15-1188 (issued November 6, 2015).

34

See T.M., Docket No. 08-975 (issued February 6, 2009).

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Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the selected position of surveillance system
monitor, and that appellant did not meet his burden of proof to establish that a January 14, 2016
loss of wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the May 10 and January 14, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 26, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10