United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 11-1820
Issued: March 2, 2012

Case Submitted on the Record

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

JURISDICTION
On August 2, 2011 appellant filed a timely appeal from a May 6, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for an employmentrelated injury and a July 13, 2011 nonmerit decision denying her request for a review of the
written record. 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
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
developed bilateral carpal tunnel syndrome in the performance of duty causally related to factors
of her federal employment; and (2) whether OWCP properly denied her request for a review of
the written record as untimely.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 13, 2011, OWCP’s decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 8, 2011 appellant, then a 49-year-old mail handler, filed an occupational
disease claim, Form CA-2, alleging that she developed bilateral carpel tunnel syndrome due to
factors of her federal employment, such as repetitive pushing, pulling, lifting and throwing stacks
of mail. She first became aware of her condition on December 27, 2010 and attributed it to her
employment on February 14, 2011.
Appellant submitted a December 27, 2010 report by Dr. Vinay M. Reddy, a Boardcertified physical medicine and rehabilitation physician, who obtained lower extremity
electrodiagnostic and nerve conduction studies. A needle electromyogram (EMG) of the
bilateral lower extremities and lumbar paraspinals demonstrated evidence of increased
polyphasic motor unit activity in muscles sharing the bilateral L5 and S1 nerve root innervation.
Dr. Reddy opined that there was evidence of chronic irritation of the bilateral L5 and S1 nerve
roots. He stated that appellant had already been diagnosed with cervical radiculopathy and
bilateral carpal tunnel syndrome.
By letter dated March 23, 2011, OWCP notified appellant regarding the deficiencies of
her claim and requested additional factual and medical evidence. It allotted 30 days for her to
respond to its inquiries. Appellant did not respond.
By decision dated May 6, 2011, OWCP denied the claim on the basis that the medical
evidence submitted was insufficient to establish causal relationship between the diagnosed
condition and factors of appellant’s federal employment.
By appeal request form postmarked June 17, 2011 and received by OWCP on June 21,
2011, appellant requested a review of the written record by an OWCP hearing representative. In
a June 6, 2011 report, Dr. Reddy diagnosed moderate bilateral carpal tunnel syndrome. He
reported that appellant had been working for the employing establishment for six years, the last
three of which involved work that was very repetitious, including a lot of sorting, pushing,
pulling and repetitive use of the upper extremities. Dr. Reddy stated that prior to this job she did
not have any pain or numbness in the hands or wrist and now had symptoms and EMG findings
consistent with carpal tunnel syndrome. He opined that it was reasonable to believe that this
could potentially be due to her federal employment.
By decision dated July 13, 2011, OWCP denied appellant’s request for a review of the
written record. It found that her request was untimely because it was not made within 30 days of
its May 6, 2011 decision. OWCP exercised its discretion and further denied appellant’s request
for the reason that the relevant issue of the case could be addressed by requesting reconsideration
and submitting evidence not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
3

5 U.S.C. §§ 8101-8193.

2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors.7 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to meet her burden of proof in establishing that
she developed an occupational disease in the performance of duty. The record reflects that she
was diagnosed with bilateral carpal tunnel syndrome and that her federal employment requires
sorting, pushing, pulling and repetitive use of the upper extremities. However, appellant has not
established that her condition is causally related to any of these factors of her federal
employment.
In support of her claim, appellant submitted reports by Dr. Reddy, who diagnosed
moderate bilateral carpal tunnel syndrome after conducting diagnostic tests. Dr. Reddy did not,
however, address the issue of causal relationship between the carpal tunnel syndrome and her
employment factors. Lacking thorough medical rationale on the issue of causal relationship, the

4

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

6

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See D.N., Docket No. 10-1762 (issued May 10, 2011).

8

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

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medical report of him is insufficient to establish that appellant sustained an employment-related
injury.9
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the indicated employment factors, she
failed to meet her burden of proof to establish a claim.
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 8124(b)(1) of the FECA provides: “Before review under section 8128(a) of this
title [relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a representative of the
Secretary.”10
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”11 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.12 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.13 In such a case, it will determine whether
to grant a discretionary hearing and, if not, will so advise the claimant with reasons.14
ANALYSIS -- ISSUE 2
Appellant had 30-calendar days from OWCP’s May 6, 2011 decision or until June 6,
2011, to request a review of the written record. Because her request was postmarked June 17,
2011, her request was untimely. Appellant was not entitled to a review of the written record as a
matter of right under section 8124(b)(1) of FECA. Exercising its discretion to grant a review of
the written record, OWCP denied her request on the grounds that she could equally well address
9

Although appellant submitted the June 6, 2011 report by Dr. Reddy with his request for review of the written
record by an OWCP hearing representative, OWCP did not review this report when it issued the July 13, 2011
nonmerit decision denying appellant’s request. As such, the Board may not review it for the first time on appeal.
See 20 C.F.R. § 501.2(c)(1).
10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. § 10.615.

12

Id. at § 10.616(a).

13

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

14

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

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any issues in her case by requesting reconsideration. Because reconsideration exists as an
alternative appeal right to address the issues raised by the May 6, 2011 decision, the Board finds
that OWCP did not abuse its discretion in denying appellant’s untimely request for a review of
the written record.15
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
developed bilateral carpal tunnel syndrome in the performance of duty causally related to factors
of her federal employment. The Board further finds that OWCP properly denied appellant’s
request for a review of the written record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 13 and May 6, 2011 are affirmed.
Issued: March 2, 2012
Washington, DC

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

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

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

15

See Gerard F. Workinger, 56 ECAB 259 (2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
FEDERAL JUDICIARY, FEDERAL PUBLIC
DEFENDER SERVICE, Washington, DC,
Employer
__________________________________________

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Appearances:
Paul S. Blumenthal, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1273
Issued: February 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2010 appellant, through his attorney, filed a timely appeal from a March 15,
2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective November 25, 2007 on the grounds that he had no further disability due to his accepted
employment injury; (2) whether it properly terminated authorization for medical treatment; and
(3) whether appellant has established that he has continuing disability as a result of his
February 8, 1984 work injury.
FACTUAL HISTORY
The Office accepted that on February 8, 1984 appellant, then a 35-year-old criminal
investigator, sustained a neck sprain, lumbsosacral sprain and lumbar disc displacement at L5-S1

when he was in a motor vehicle accident. He stopped work on February 8, 1984 and did not
return.
On December 19, 2006 the Office referred appellant to Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second opinion examination,1 who evaluated appellant on
January 9, 2007. Dr. Hanley diagnosed a history of a “musculoligamentous straining injury of
the lumbar spine and cervical spine.” On examination, he found no evidence of any “significant
ongoing musculoskeletal problem.” Dr. Hanley advised that appellant had no residuals from the
February 8, 1984 work injury and could return to work without restrictions.
In a report dated January 30, 2007, Dr. Charles F. Colao, a Board-certified internist,
discussed appellant’s symptoms of neck and low back pain with radiculopathy bilaterally. He
diagnosed cervical sprain with radiculopathy and possible herniated discs, lumbosacral strain
with radiculopathy and lumbar disc herniation. Dr. Colao found that appellant was disabled from
his usual employment. On April 10, 2007 he noted that magnetic resonance imaging (MRI) scan
studies of the cervical and lumbar spine revealed “marked abnormalities and progression of his
disc damage and significant disc damage in his neck, which in my opinion, based on a reasonable
degree of medical certainty, are all due to the injuries of [February 8, 1984].”2
On June 5, 2007 the Office referred appellant to Dr. Robert Smith, a Board-certified
surgeon, for an impartial medical examination. In a report dated June 19, 2007, Dr. Smith
reviewed appellant’s history of injury and discussed his complaints of back pain radiating into
the knee on the right side and into the left buttock. He listed normal findings on physical
examination. Dr. Smith noted that an MRI scan study dated March 21, 2007 revealed “a very
small calcified disc at L5-S1” without high grade spinal stenosis. He found that appellant’s
accepted neck and back sprain had long resolved and that his displaced L5-S1 disc had
“remained static” for 20 years. Dr. Smith related that a March 1989 MRI scan study showed a
small paracentral disc herniation at L5-S1 and an August 1986 computerized tomography (CT)
scan revealed a calcified disc herniation at L5-S1 which had “been there for quite some time and
probably way before the 1984 work incident. Those studies from almost 20 years ago essentially

1

On December 6, 2006 the Office noted that it had been three years since appellant submitted a medical report.

2

A March 22, 2007 MRI scan study of the lumbar spine revealed at L5-S1 a “focal right paracentral osteophyte
v[ersus] herniation superimposed on a broader osteophytic ridge that causes narrowing of the lateral recesses and
inferior neural foramina at this level bilaterally.” Appellant also had severe degenerative disc disease at L4-5 with
“crowding of the lateral recesses and inferior neural formamina with possible contact of the right L4 nerve root” and
a small disc protrusion at L3-4.

2

mirror the lumbar MRI [scans] that was done just a few months ago in 2007.”3 Dr. Smith
concluded:
“Based on the current examination and review of the imaging studies, there
appears to be no objective residuals from the work incident that happened more
than 20 years ago on February 8, 1984. Certainly, there is no finding of any
ongoing soft tissue sprains or strains of the neck or back. The small disc
herniation noted at L5-S1 that was accepted as part of the claim appears to have
been static over these 20 years and, in my opinion, also appears to have been
preexisting, since it was noted to be calcified in a study that was done way back in
1989.
“It does not appear that [appellant] would require any work restrictions for the
accepted condition.”
In an accompanying work restriction evaluation, Dr. Smith found that appellant could
work without restrictions.
On August 2, 2007 the Office notified appellant of its proposed termination of his
compensation and authorization medical benefits on the grounds that he had no further
employment-related condition or disability. In response appellant submitted an April 2, 2007
report from Dr. Colao, who asserted that diagnostic studies revealed a progression of his disc
condition at L5-S1 due to his work injury. On August 28, 2008 he challenged the termination of
his compensation, noting that Dr. Hanley’s and Dr. Smith’s examinations were cursory.
By decision dated October 24, 2007, the Office terminated appellant’s compensation and
authorization for medical treatment. It found that the opinion of Dr. Smith represented the
weight of the evidence and established that he had no further disability or need for medical
treatment due to his work injury.
On November 21, 2007 appellant requested a review of the written record. He submitted
additional medical evidence, including an August 15, 2007 report from Dr. George Mathews, a
Board-certified neurosurgeon, who discussed appellant’s work history and advised that the most
recent MRI scan study, when compared to the March 23, 1989 MRI scan study, was
“significantly worse.” Dr. Mathews diagnosed post-traumatic disc degeneration at L4-5 and L5S1, a disc hernation at L4-5 and L5-S1 and post-traumatic cervical disc degeneration at C5-6.
He opined that appellant was totally disabled.
In a report dated November 10, 2007, Dr. Colao provided a detailed report challenging
the conclusions of Dr. Hanley and Dr. Smith.

3

A CT scan dated August 11, 1986 showed a bulging disc “with some calcification at L5-S1” with no definite
acute herniation. A February 9, 1987 MRI scan study showed a herniated nucleus pulposus at L4-5 on the left and a
central herniated disc at L5-S1. An MRI scan study performed March 23, 1989 showed a small right paracentral L5S1 disc herniation that “may or may not” be impinging on the S1 root and a central disc hernation at L4-5.

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By decision dated March 27, 2008, the Office hearing representative affirmed the
March 27, 2008 termination decision. On March 25, 2008 appellant, through his attorney,
requested reconsideration. He submitted medical reports from 1984 onward. In a decision dated
March 15, 2010, the Office denied modification of its March 27, 2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 The Office may not terminate
compensation without establishing that the disability ceased or that it was 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
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.7 The implementing regulations state 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 Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.8 In situations where 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.9
The Office procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”10

4

Elaine Sneed, 56 ECAB 373 (2005).

5

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

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

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).

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ANALYSIS
The Office accepted that appellant sustained neck and back sprain and a displaced disc at
L5-S1 due to a February 8, 1984 motor vehicle accident. Appellant stopped work at the time of
his injury and did not return. The Office determined that a conflict existed between Dr. Hanley,
the second opinion physician and Dr. Colao, appellant’s attending physician, regarding whether
he had any continuing disability or residuals of his accepted employment injury. It referred him
to Dr. Smith for an impartial medical examination.
Where there exists a conflict in medical opinion 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.11 The Board finds, however, that Dr. Smith’s opinion is of diminished probative value
and thus does not represent the special weight of the medical evidence. On June 19, 2007
Dr. Smith listed normal findings on examination and asserted that appellant had no further
evidence of his accepted neck or back sprain and that his disc herniation at L5-S1 had been static
for 20 years. He noted that a CT scan from August 1986 showed a calcified disc herniation.
Dr. Smith opined that, consequently, the disc herniation at L5-S1 probably preexisted the
employment injury. He advised that appellant required no work restrictions for the accepted
condition. It is unclear, however, whether Dr. Smith included the disc herniation at L5-S1 as an
accepted condition in reaching this conclusion. He found that appellant’s L5-S1 disc
displacement, accepted by the Office as employment related and disabling, had been “static” for
20 years. Dr. Smith did not explain, however, whether the fact that the condition was static
meant that it caused no further disability or had resolved such that he required no further medical
treatment. He implied that the L5-S1 disc herniation was not work related as a CT scan from
1989, five years after the work injury, was calcified. However, the impartial medical examiner’s
opinion must be based on the statement of accepted facts for the probative value of the opinion is
significantly diminished.12 Dr. Smith, rather than providing a distinct opinion that appellant had
no further residuals from his L5-S1 disc herniation, instead found that the accepted condition
preexisted the work injury. As his opinion is outside the framework of the statement of accepted
facts, it is insufficient to meet the Office’s burden of proof on the relevant issue of whether
appellant had any further employment-related residuals of his back condition.13
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation and
medical benefits effective November 25, 2007 on the grounds that he had no further disability
due to his accepted employment injury.14

11

J.M., 58 ECAB 478 (2007); Glen E. Shriner, 53 ECAB 165 (2001).

12

Willa M. Frazier, 55 ECAB 379 (2004).

13

Id.

14

In view of the Board’s disposition of the termination, the issue of whether appellant has established continuing
disability due to his February 8, 1984 work injury is moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 15, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION HOSPITAL,
Chicago, IL, Employer
__________________________________________

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

Docket No. 16-0559
Issued: October 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 3, 2016 appellant filed a timely appeal of an October 22, 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 to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on January 28, 2015.
FACTUAL HISTORY
On July 24, 2006 appellant, a 59-year-old practical nurse, filed a traumatic injury claim
(Form CA-1) alleging that she injured her lower back and right knee when she tripped on a chair
1

5 U.S.C. § 8101 et seq.

leg and fell. OWCP accepted the claim for right knee contusion and lumbosacral sprain. It
subsequently accepted the additional conditions of lumbosacral spondylosis without myelopathy,
thoracic or lumbosacral neuritis, or radiculitis. Appellant stopped work on the date of injury.
She received wage-loss compensation benefits on the supplemental rolls as of August 20, 2006
and on the periodic rolls as of December 23, 2007.
Appellant received ongoing treatment from Dr. Charles Slack, a specialist in orthopedic
surgery.
On January 7, 2008 OWCP determined that a second opinion evaluation was necessary to
determine the status of appellant’s accepted conditions. Appellant was referred to Dr. Jeffrey M.
Tioco, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a report dated
January 30, 2008, Dr. Tioco noted her history of injury and examination findings. He concluded
that appellant’s diagnoses were L4-5 spondylolisthesis, low back pain, and status post stroke
with left-sided weakness. Dr. Tioco concluded that her L4-5 spondylolisthesis and low back
pain were causally related to her July 24, 2006 work injury and had not resolved. He related that
appellant was not totally disabled, but could work with restrictions regarding walking and
standing, as well as pushing, pulling, lifting, and climbing.
In a report dated October 18, 2012, Dr. Slack, appellant’s treating physician, advised that
appellant was experiencing ongoing back and leg symptoms with a burning sensation in her legs.
He reported that she had difficulty with any sustained activities. Dr. Slack noted that appellant
had a persistent low back derangement with radicular symptoms associated with lumbar spinal
stenosis at L3-4 and L4-5 with spondylolisthesis. He reported that he had discussed surgical
intervention with her, a two-level decompression at L3-4 and L4-5 with instrumentation fusion,
given the fact that she had spondylolisthesis at those levels. Dr. Slack advised that appellant
remained temporarily totally disabled.
In order to determine appellant’s current condition and ascertain whether she still
suffered residuals from her accepted conditions, OWCP again referred her for a second opinion
examination with Dr. James Elmes, Board-certified in orthopedic surgery. In an April 25, 2013
report, Dr. Elmes reviewed the medical history and the statement of accepted facts and noted
findings on examination. He advised that appellant’s right knee and lumbosacral sprain
condition had resolved. Dr. Elmes noted that her aggravation of lumbar spinal stenosis and
aggravation of the L4-5 lumbar spondylolisthesis conditions were still ongoing. He opined,
however, that appellant could perform sedentary work if accommodations were made for a work
conditioning program. In an April 25, 2013 work capacity evaluation (Form 5-c), Dr. Elmes
noted that she was capable of performing her usual job with restrictions and had reached
maximum medical improvement.
OWCP found that there was a conflict in the medical evidence between Dr. Slack and
Dr. Elmes, the second opinion physician, as to whether appellant still had residuals from her
accepted conditions. In a statement of accepted facts dated July 16, 2013, it was noted that the
accepted conditions were lumbosacral strain and right knee contusion.
OWCP referred appellant to Dr. Klaud Miller, Board-certified in orthopedic surgery, for
an impartial medical examination. In a report dated December 3, 2013, Dr. Miller provided

2

findings on examination, reviewed the statement of accepted facts and her medical history and
concluded that she had no residuals from her July 24, 2006 employment injury. He advised that,
based on the history and examination, appellant’s right knee condition had completely resolved.
Dr. Miller further opined that there was absolutely no evidence that her spondylolisthesis was
caused in any way by the July 24, 2006 work injury. He advised that Dr. Slack, appellant’s
treating physician, provided no information regarding this underlying condition, for which
Dr. Slack had treated her prior to the work injury. Dr. Miller asserted that, without any further
records, there was nothing in the records that could not be explained by spontaneous onsets of
symptoms from her spondylolisthesis.
Dr. Miller noted that appellant suffered a stroke 8 or 10 weeks after the July 24, 2006
work injury and clearly deteriorated after that. He opined that her stroke was not causally related
to the 2006 work injury. Dr. Miller opined that the only disability that could be related to the
incident in question was during the approximately 10-week period between the accepted incident
and her stroke, which occurred on October 11, 2006. Appellant’s lumbar sprain would have
resolved by that point.
Dr. Miller determined that appellant was clearly capable of at least a sedentary job and
probably a moderate-intensity job. He asserted that she displayed significant symptom
magnification and perhaps even fabrication. Dr. Miller indicated that he could not confirm any
objective residual physical limitations based upon appellant’s spondylolisthesis. He opined that
she could return to work with a 20-pound lifting restriction, although a significant percentage of
her lifting capacity was due to the residuals of her stroke; he attributed the remainder of her
disability to her preexisting spondylolisthesis. Dr. Miller related that appellant had no
restrictions specifically related to her July 24, 2006 work injury.
Dr. Miller concluded that appellant’s symptoms had been aggravated by normal daily
activities. He opined that the July 24, 2006 work injury was a temporary symptomatic
aggravation, which was superseded by the residuals of her stroke. Appellant had no residuals
that could be related to the 2006 work injury.
On November 20, 2014 OWCP issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits. It noted that her claim was accepted for
lumbosacral strain, right knee contusion, and lumbosacral spondylosis without myelopathy,
thoracic or lumbosacral neuritis, or radiculitis. OWCP found that the weight of the medical
evidence, as represented by Dr. Miller’s impartial opinion, established that appellant’s accepted
conditions had resolved.
In a December 11, 2014 report, Dr. Theodore J. Fisher, Board-certified in orthopedic
surgery, advised that appellant underwent radiographs of the lumbar spine dated on May 29,
2014, which showed spondylolisthesis of L3-4 and L4-5, accentuated with flexion. He reported
that there appeared to be an auto fusion or congenital fusion of the transverse processes of L5 to
the sacrum. Appellant also underwent a magnetic resonance imaging (MRI) scan of the lumbar
spine on November 24, 2014 which showed a grade 1 spondylolisthesis of L3 on L4 with severe
central stenosis; a slightly larger grade 1 spondylolisthesis at L4-5; and at L5-S1, the disc space
was maintained and also appears to be an auto fusion or congenital fusion of the transverse
processes of L5 to the sacrum. Dr. Fisher concluded that she had L4-5 and L5-S1

3

spondylolisthesis and spinal stenosis with lumbago and recurrent lower extremity
radiculopathy/neurogenic claudication. He related that because appellant’s symptoms were
affecting her activities of daily living, her ability to exercise and rehabilitate her back, she
wanted to undergo lower back surgery.
Dr. Fisher expressed his disagreement with the opinion of Dr. Miller, the impartial
medical specialist. He agreed with Dr. Miller that appellant’s spondylolisthesis most likely was
a degenerative condition that predated her work injury; however; he opined that her symptoms
were aggravated or accelerated by the work injury and had persisted since that time. Dr. Fisher
advised that the fact that she had a stroke did not change the fact that she had severe low back
pain and recurrent lower extremity radicular symptoms related to her spondylolisthesis and
spinal stenosis.
Dr. Fisher concluded that, within the degree of medical and surgical certainty, appellant’s
current condition was a direct result of her work accident. He opined that she most likely had
preexisting degenerative changes of the lumbar spine that were aggravated/accelerated by her
work injury. Dr. Fisher asserted that, because appellant failed to improve with nonoperative
measures, including physical therapy, medications, epidural steroid injection, and time, she was
now a surgical candidate. He advised that he would schedule her for surgery in the form of an
L3-4 and L4-5 decompression and fusion procedure as soon as it was approved by her insurance
company.
In a January 16, 2015 report, Dr. Slack advised that appellant had a persistent lumbar -radiculopathy with lumbar spinal stenosis and spondylolisthesis at L3-4 and L4-5, which were
medically connected to the July 24, 2006 work injury. He opined that these conditions
constituted an aggravation/acceleration of the lumbar spinal stenosis and spondylolisthesis that
had been present prior to the incident, but was not symptomatic until the July 2006 work injury.
Dr. Slack advised that this was a permanent aggravation as appellant’s condition had not
improved; appellant had ongoing pain and limitations of activity and had a progression of the
severity of her spondylolisthesis and stenosis as noted by internal x-rays and lumbar MRI scan.
He reiterated that she was unable to work at that time.
By decision dated January 28, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits, finding that Dr. Miller’s impartial opinion represented the
weight of the medical evidence.2
On February 4, 2015 appellant, through her representative, requested a hearing before an
OWCP hearing representative, which was held on July 9, 2014.
By decision dated October 22, 2015, OWCP’s hearing representative affirmed the
January 28, 2015 termination decision, finding that Dr. Miller’s report constituted the weight of
the medical evidence.

2

OWCP subsequently issued an amended decision dated February 6, 2015. The termination finding was not
changed, but the name of the employing establishment, which was listed as the U.S. Postal Service in the original
January 28, 2015 termination decision, was corrected and changed to Department of Veterans Affairs.

4

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.3 The burden of
proof on OWCP includes the necessity of furnishing rationalized medical opinion evidence
which is based upon a proper factual and medical history.4
In assessing medical evidence, the weight of a physician’s opinion is determined by its
reliability, the opportunity for and thoroughness of the examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, and the care
manifested in the medical rationale expressed to support the physician’s opinion on causal
relationship.5
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.6 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.7
The Board has previously stated that, when OWCP refers to an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from the
specialist requires clarification or elaboration, OWCP has the responsibility to secure a
supplemental report from the specialist for the purpose of correcting a defect in the original
report. When the impartial medical specialist’s statement of clarification or elaboration is not
forthcoming or if the specialist is unable to clarify or elaborate on the original report or if the
specialist’s supplemental report is also vague, speculative, or lacks rationale, OWCP must
submit the case record together detailed statement of accepted facts to a second impartial
specialist for a rationalized medical opinion on the issue in question. Unless this procedure is
carried out by OWCP, the intent of section 8123(a) will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.8
ANALYSIS
OWCP accepted appellant’s claim for right knee contusion and lumbosacral sprain. By
the time it issued the proposed termination of compensation on November 20, 2014 it had also
accepted the conditions of lumbosacral spondylosis without myelopathy, thoracic, or
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

J.M., 58 ECAB 478 (2007).

5

See Michael E. Mina, 57 ECAB 379 (2006); Anna C. Leanza, 48 ECAB 115 (1996).

6

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

7

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

8

Roger W. Griffith, 51 ECAB 491 (2000).

5

lumbosacral neuritis/radiculitis. The last statement of accepted facts, dated July 16, 2013,
however, only listed the accepted conditions of lumbosacral strain and right knee contusion. The
Board has previously explained that when an OWCP medical adviser, a second opinion
specialist, or an independent medical examining physician renders a medical opinion based on an
incomplete or inaccurate statement of accepted facts or does not use the statement of accepted
facts as the framework in forming the opinion, the probative value of the opinion is diminished,
or negated altogether.9
The January 28, 2015 decision terminating appellant’s wage-loss compensation and
medical benefits relied on the December 3, 2014 report of Dr. Miller, the impartial medical
examiner, to find that appellant’s accepted conditions had resolved. He, however, did not
address whether lumbosacral spondylosis without myelopathy, thoracic or lumbosacral
neuritis/radiculitis conditions had ceased and that she no longer had any residuals from these
conditions. The Board finds that, based upon the flawed statement of accepted facts, OWCP did
not meet its burden of proof.
The Board finds that OWCP improperly relied on Dr. Miller’s opinion, which was not
based on an accurate statement of accepted facts.
The Board, therefore, finds that OWCP erred in relying on Dr. Miller’s December 3,
2014 report to terminate appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as of January 28, 2015.

9

J.D., Docket No. 15-0305 (issued August 5, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.T., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 13-1815
Issued: March 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2013 appellant filed a timely appeal of a June 13, 2013 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying her claim for a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 17 percent impairment of her right upper
extremity for which she has received a schedule award.
FACTUAL HISTORY
On January 20, 2011 appellant, then a 58-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim alleging that she injured her right shoulder2 and right knee when
1
2

5 U.S.C. § 8101 et seq.

Appellant received a prior schedule award on January 14, 2002 for 17 percent impairment of her right upper
extremity for the period September 17 through December 29, 2001. This award was issued in claim number
xxxxxx739.

she slipped and fell in the performance of duty. She underwent a magnetic resonance imaging
(MRI) scan of her right shoulder on January 20, 2011 which demonstrated degenerative changes
of acromioclavicular joint, and possible partial tears of the infraspinatus and supraspinatus
tendons. OWCP accepted appellant’s claim for partial thickness tear of the right rotator cuff and
right knee sprain on March 9, 2011. On April 29, 2011 it expanded her accepted conditions to
include sprain of the right shoulder or upper arm and aggravation of osteoarthritis of the right
shoulder.
Appellant underwent right shoulder surgery on December 13, 2011 consisting of right
shoulder biceps tenodesis, right shoulder subacromial decompression and right shoulder mini
open rotator cuff repair.
An MRI scan dated May 29, 2012 demonstrated degenerative arthritis of the humeral
head, partial tear of the anterior fibers of the supraspinatus and possible labral tear. Appellant
underwent right shoulder arthroscopy with supraspinatus repair and chondroplasty of the
humeral head and glenoid on August 1, 2012.
On January 22, 2013 appellant received a permanent impairment rating of seven percent
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 Dr. Michael Wiedmer, a Board-certified orthopedic surgeon, found that
appellant had a rotator cuff injury, full-thickness tear under Table 15-5 of the A.M.A., Guides.4
He found that appellant had class 1 impairment with functional history, physical examination and
clinical studies modifiers of 3, 3 and 4 respectively resulting in a net adjustment of plus 2 or
grade E. Dr. Wiedmer concluded that appellant had seven percent impairment of the right upper
extremity.
Appellant requested a schedule award on March 1, 2013. OWCP referred her claim to
OWCP’s medical adviser on March 4, 2013. The medical adviser reviewed appellant’s claim
and agreed with Dr. Wiedmer’s application of the A.M.A., Guides and the impairment rating of
seven percent of the right upper extremity. In a supplemental report dated April 11, 2013, he
noted that appellant’s previous schedule award was for the repair of a partial thickness rotator
cuff tear of the right shoulder and that no additional schedule award was due.
By decision dated June 13, 2013, OWCP denied appellant’s claim for a schedule award
finding that she did not have more than 17 percent impairment of her right upper extremity for
which she had previously received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
3

20 C.F.R. § 10.404. 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).
4

A.M.A., Guides 403, Table 15-5.

5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

2

loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.7
If a claimant who has received a schedule award calculated under a previous edition of
the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated
according to the sixth edition. Should the subsequent calculation result in a percentage of
impairment lower than the original award (as sometimes occurs), a finding should be made that
the claimant has no more than the percentage of impairment originally awarded, that the
evidence does not establish an increased impairment, and that OWCP has no basis for declaring
an overpayment. Similarly, awards made prior to May 1, 2009 (the effective date for use of the
sixth edition) should not be reconsidered merely on the basis that the A.M.A., Guides have
changed. All permanent partial impairment calculations made on or after May 1, 2009 must be
based on the sixth edition.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
ANALYSIS
OWCP accepted appellant’s claim for partial thickness tear of the right rotator cuff and
sprain of the right shoulder or upper arm as well as aggravation of osteoarthritis of the right
shoulder. Appellant’s physician, Dr. Wiedmer, diagnosed a rotator cuff injury, full-thickness
tear under Table 15-5 of the A.M.A., Guides.10 He found that appellant had a class 1 impairment
with functional history, physical examination and clinical studies modifiers of 3, 3 and 4
respectively resulting in a net adjustment of plus 2 or grade E. Dr. Wiedmer concluded that
appellant had seven percent impairment of the right upper extremity. OWCP’s medical adviser
reviewed appellant’s case and agreed with Dr. Wiedmer’s impairment rating of seven percent.
He also noted that appellant had previously received a schedule award for right rotator cuff
injury of 17 percent under a previous edition of the A.M.A., Guides. The medical adviser
concluded that appellant was not entitled to any additional schedule award.

7

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(b)(4) (January 2010)
9

A.M.A., Guides 411.

10

Id. at 403, Table 15-5.

3

The Board finds that the medical evidence of the record establishes that appellant
currently has seven percent impairment of her right upper extremity due to her accepted rotator
cuff injuries. The Board further finds that, as appellant previously received a schedule award
due to a right rotator cuff injury of 17 percent, she is not entitled to any additional schedule
award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 17 percent impairment of her right upper
extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT June 13, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 08-7
Issued: September 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 1, 2007 appellant filed an appeal from merit decisions of the Office of
Workers’ Compensation Programs dated January 13 and June 7, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s actual earnings as a modified city carrier fairly and
reasonably represented her wage-earning capacity.
FACTUAL HISTORY
On March 13, 1997 appellant, then a 47-year-old letter carrier, sustained an employmentrelated injury when she fell backward while being attacked by a dog.1 She returned to inside
1

Under Office file numbers 131127070, 131205019 and 132003119, the Office has accepted the following
conditions: strain/sprain of the neck, bilateral shoulder and arm, thoracic and lumbar regions, acute reaction to
stress, bilateral carpal tunnel syndrome, bilateral rotator cuff syndrome, right radial styloid tenosynovitis and other
shoulder conditions.

work only on May 6, 1997 and to her regular duties in June 1997. The Office accepted several
recurrences and appellant underwent left and right carpal tunnel decompression procedures and
left shoulder surgery. Appellant returned to limited duty for four hours a day on January 30,
2006 and received compensation for four hours a day.
In May 2006, the Office referred appellant to Dr. Bunsri T. Sophon, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In reports dated May 23 and June 22, 2006,
Dr. Sophon noted his review of the statement of accepted facts, medical record and appellant’s
complaints. He provided physical findings and diagnoses and advised that appellant could work
eight hours per day of modified duty with permanent restrictions of no reaching above the
shoulder, four hours of reaching, pushing, pulling and lifting, six hours of sitting, walking and
standing and a weight limitation of 20 pounds.
On August 21, 2006 appellant rejected a modified city carrier job offer, stating that she
could only work four hours daily.2 In an October 13, 2006 report, Dr. William Simpson, an
attending orthopedic surgeon, reviewed Dr. Sophon’s report and disagreed with his conclusion
that appellant could work eight hours a day, advising that she should only work four hours of
light duty daily.
Appellant accepted the offered position on October 20, 2006,3 and began working eight
hours daily on October 21, 2006. On January 19, 2007 the Office ascertained that appellant
continued to work in that position and was informed that her pay rate was $49,219.00 per year,
or $946.52 per week.
By decision dated January 13, 2007, the Office determined that appellant’s actual wages
in the modified city carrier position fairly and reasonably represented her wage-earning capacity,
with a zero percent loss of wage-earning capacity. On February 1, 2007 appellant requested a
review of the written record.4 By decision dated June 7, 2007, an Office hearing representative
affirmed the January 13, 2007 decision.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act5 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by the employee’s actual earnings if the actual earnings fairly and reasonably
represent the employee’s wage-earning capacity.6 Generally, wages actually earned are the best
2

The position was for eight hours a day, and consisted of pick-up and delivery of express mail, case and deliver
within medical limitations, window and retail services including sales, lobby director and passport duties,
accountable mail and other duties within her medical restrictions.
3

By letter dated September 18, 2006, the Office informed appellant that the offered position was suitable.

4

Dr. Simpson continued to advise that appellant should only work eight hours a day. On December 28, 2006 she
requested leave under the Family and Medical Leave Act. There is no indication in the record as to whether this was
approved.
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

2

measure of a wage-earning capacity, and in the absence of showing that they do not fairly and
reasonably represent the injured employee’s wage-earning capacity, must be accepted as such a
measure.7 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,8 has been codified at 20 C.F.R. § 10.403. The
Office calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury job.9 Office procedures
provide that the Office can make a retroactive wage-earning capacity determination if the
claimant worked in the position for at least 60 days, the position fairly and reasonably
represented his or her wage-earning capacity and the work stoppage did not occur because of any
change in his injury-related condition affecting the ability to work.10
ANALYSIS
The Office accepted that appellant sustained multiple employment-related injuries
beginning on March 13, 1997.11 After several periods of total disability, she returned to four
hours of modified duty on January 30, 2006, and continued to receive compensation for four
hours a day. In May 2006, the Office referred her to Dr. Sophon for a second opinion evaluation,
and in reports dated May 23 and June 22, 2006, he provided examination findings and advised
that appellant could return to eight hours of modified duty a day. On October 17, 2006 appellant
accepted a job offer as a modified city carrier for eight hours a day, and began working this
schedule on October 21, 2006. On January 19, 2007 the Office ascertained that appellant
continued to work in that position at a pay rate of $49,219.00 per year, or $946.52 per week.
The Board finds that appellant’s actual earnings as a modified city carrier fairly and
reasonably represent her wage-earning capacity. She returned to full-time work on October 21,
2006 as a modified city carrier and was working in this position on January 19, 2007, the date the
Office issued its wage-earning capacity determination. Appellant worked in the position for
more than 60 days, and there is no evidence that the position was seasonal, temporary or
makeshift work designed for her particular needs and no evidence to show that she was not
working eight hours a day.12 As there is no evidence that her wages in this position did not fairly
and reasonably represent her wage-earning capacity, they must be accepted as the best measure
of her wage-earning capacity.13

7

Lottie M. Williams, 56 ECAB 302 (2005).

8

5 ECAB 376 (1953).

9

20 C.F.R. § 10.403(c).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (July 1997); Selden H. Swartz, 55 ECAB 272 (2004).
11

Supra note 1.

12

J.C., 58 ECAB ____ (Docket No. 07-1165, issued September 21, 2007).

13

See Loni J. Cleveland, supra note 6.

3

As appellant’s actual earnings in the position of modified city carrier fairly and
reasonably represent her wage-earning capacity, the Board must determine whether the Office
properly calculated her wage-earning capacity based on her actual earnings. The Board finds
that the Office properly determined that appellant had no loss of wage-earning capacity based on
her actual earnings. The current weekly earnings of $946.52 per week as a modified city carrier
exceeded the current weekly wages of the date-of-injury position as a letter carrier.14 Appellant
therefore had no loss of wage-earning capacity under the Shadrick formula.15
CONCLUSION
The Board finds that the Office met its burden of proof to establish that appellant’s actual
wages as a modified city carrier fairly and reasonably represented her wage-earning capacity.16
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2007 be affirmed.
Issued: September 4, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
14

Appellant sustained her final recurrence of disability in May 2000, and the Office based her compensation
thereafter on a May 20, 2000 date of injury, at a weekly wage of $766.67.
15

Albert C. Shadrick, supra note 8.

16

The Board notes that appellant submitted evidence subsequent to the June 7, 2007 Office decision and with her
appeal to the Board. The Board cannot consider this evidence, however, as its review of the case is limited to the
evidence of record that was before the Board at the time of its final decision. 20 C.F.R. § 501.2(c); see Sandra D.
Pruitt, 57 ECAB 126 (2005). Appellant also simultaneously requested reconsideration with the Office and appealed
to the Board. The Office and the Board may not have simultaneous jurisdiction over the same issue in the same
case. Following the docketing of an appeal with the Board, the Office does not retain jurisdiction to render a further
decision regarding a case on appeal until after the Board relinquishes its jurisdiction. Linda D. Guerrero, 54 ECAB
556 (2003). Appellant retains the right to request modification of the wage-earning capacity decision with the
Office.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring Hill, FL, Employer
__________________________________________

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Appearances:
William Hackney, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1707
Issued: September 12, 2017

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 August 24, 2016 appellant, through her representative, filed a timely appeal from a
July 7, 2016 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish disability on or
after July 28, 2015 due to her accepted work injuries.

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.

FACTUAL HISTORY
On June 16, 2015 appellant, then a 58-year-old rural clerk, filed a traumatic injury claim
(Form CA-1) alleging that on June 12, 2015 she sustained injury due to separating pages in
reports for shredding while sitting at a table at work. At the time of her claimed injury, she was
working in a modified-duty position due to a prior work injury filed under a separate claim.3 On
May 22, 2015 appellant accepted a modified-duty job offer with restrictions of walking up to two
hours, standing up to two hours, driving up to two hours, lifting up to 10 pounds, and no
squatting, kneeling, or climbing. The duties of the job included handling express mail delivery,
answering telephones, folding boxes, and casing mail.
OWCP accepted appellant’s claim for cervical sprain and aggravation of left shoulder
sprain. Appellant stopped work on June 12, 2015 and received continuation of pay from June 13
to July 27, 2015.
The findings of a June 19, 2015 magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine contained an impression of disc bulge at L2-3 and L3-4. A report of a June 19,
2015 MRI scan of the cervical spine showed mild spondylosis and Chiari malformation and a
June 22, 2015 MRI scan of the left shoulder revealed acromioclavicular joint degenerative
changes.
In a July 21, 2015 report, the employing establishment’s Office of the Inspector General
(OIG) reported that between June 25 and July 2, 2015 appellant was observed engaging in
standing, walking, and bending. Surveillance video evidence obtained by an OIG agent showed
appellant driving, reaching, and bending during this period. Still photographs were also taken of
appellant engaging in such activities.
In a report dated August 5, 2015, Dr. David P. Kahn, an attending osteopath, indicated
that appellant was unable to work.
Appellant filed claims for compensation (Form CA-7) alleging disability for the period
July 28 to August 21, 2015 due to her accepted work injuries.
On August 28, 2015 OWCP advised appellant of the type of medical evidence needed to
support her claim for wage-loss compensation.
In a September 8, 2015 memorandum, an OIG agent noted that surveillance obtained on
August 31, 2015 showed appellant walking her dog, driving to a Walmart store, shopping,
pushing a cart, and loading groceries into her vehicle.
On September 14, 2015 OWCP wrote to Dr. Kahn, enclosing copies of a surveillance
DVD and photographs of appellant taken by OIG agents. It requested that Dr. Kahn review the
materials and then provide an opinion regarding appellant’s ability to work. A copy of the
September 14, 2015 letter was sent to appellant.

3

OWCP accepted, under File No. xxxxxx586, that on May 7, 1994 appellant sustained a concussion, left medial
meniscus tear, left knee chondromalacia, aggravation of left knee osteoarthritis, and cervical strain.

2

In a September 30, 2015 letter, Dr. Kahn’s office stated that he was away and was unable
to see appellant.
In an October 1, 2015 decision, OWCP determined that appellant did not meet her burden
of proof to establish disability on or after July 28, 2015 due to her accepted work injuries. It
found that appellant had not submitted rationalized medical evidence in support of her disability
claim.
Appellant requested a telephone hearing with an OWCP hearing representative.
Prior to the hearing, OWCP received an October 7, 2015 report in which Dr. Kahn noted
that appellant reported she had not seen the surveillance materials. Dr. Kahn posited that the
June 12, 2015 work activity aggravated degenerative conditions of the cervical spine, left
shoulder, left knee, and low back as shown by MRI scan. He indicated that appellant advised
that the activities seen on surveillance constituted everyday activities. Appellant told Dr. Kahn
that each activity was carefully planned as to coincide with the use of pain medication. She
further advised that she used pain medication 24 hours per day. Dr. Kahn provided an opinion
that appellant was unable to work. In an October 14, 2015 report, he noted that appellant was
overweight and had nonwork-related kidney failure and diverticulitis.
On October 19, 2015 appellant wrote to OWCP and requested copies of the surveillance
DVD and photographs. On November 9, 2015 OWCP sent copies of these materials to
appellant.
OWCP referred appellant to Dr. Richard C. Smith, an attending Board-certified
orthopedic surgeon, for a second opinion medical examination and opinion on her work capacity.
It provided Dr. Smith with a statement of accepted facts (SOAF) dated November 12, 2015,
which noted the May 7, 1994 and June 12, 2015 work injuries and listed all the accepted
orthopedic conditions for both injuries.
In a report dated January 7, 2016 and an addendum report dated January 16, 2016,
Dr. Smith discussed appellant’s factual and medical history, including the history of the May 7,
1994 and June 12, 2015 work injuries. He detailed the diagnostic testing of record as well as the
surveillance DVD and photographs. Dr. Smith noted that, upon examination of appellant’s
cervical spine, there was limited range of motion, but no atrophy or tenderness to palpation apart
from the paracervicals. Upper extremity strength was 5/5 and the Tinel’s, Phalen’s, and Spurling
tests were negative. Dr. Smith indicated that examination of appellant’s left shoulder showed no
misalignment, atrophy, or scapular winging. The acromioclavicular prominence was normal,
strength was 5/5, and there was limited range of motion. Dr. Smith noted that tenderness was
present in the cervical spine and left shoulder, but opined that accepted sprains had resolved and
the current symptoms were age related. He indicated that the surveillance images contradicted
the findings of restricted range of motion. Dr. Smith concluded that there were no residuals of
the June 12, 2015 injury and posited that appellant could return to her modified-duty assignment.
In a report dated February 24, 2016, Dr. Kahn diagnosed aggravation of degenerative
conditions of the left shoulder, knee, cervical spine, right upper extremity (rotator cuff
tendinopathy and bursitis), and right lower extremity (radicular pain and phlebitis) referable to
the June 12, 2015 work activity.

3

At the hearing held on May 25, 2016, appellant testified that OWCP had accepted
depression as causally related to the 1994 injury under OWCP File No. xxxxxx586. She
referenced a July 11, 2007 letter under that prior claim indicating that the claim was accepted for
adjustment disorder with depressed mood, and a June 30, 2009 OWCP memorandum to the
district medical adviser also under the prior claim that listed adjustment disorder with depressed
mood as an accepted condition. Appellant contended that the work she performed on June 12,
2015, deconstructing old reports for shredding, was inconsistent with her limited-duty job offer.
She testified she had to use great force to separate the stapled pages in reports of up to 50 pages.
Appellant argued that such repetitive activity exceeded her prescribed work tolerances. She
testified she had to drive 75 miles each way from her home to the job site and asserted that this
travel exceeded her work restrictions. Appellant’s representative argued that OWCP did not
consider either accepted depression or additional orthopedic conditions diagnosed by Dr. Kahn
when assigning appellant to perform the work task conducted on June 12, 2015.
In comments dated June 17, 2016, the employing establishment noted that the modified
job appellant performed on June 12, 2015 was sedentary and involved shredding old documents.
It indicated that this assignment was consistent with restrictions prescribed by the second opinion
physician, Dr. Smith. The employing establishment noted that Dr. Smith did not prescribe a
driving restriction and pointed out that, while appellant testified she could not handle the 75-mile
drive from her home to the Tampa, FL Post Office, she drove herself 97 miles from her home in
Ocala, FL, to a doctor in Tampa, FL.
After the hearing, OWCP received additional medical records. In a report dated
March 30, 2016, Dr. Kahn indicated that he had reviewed Dr. Smith’s reports. He again posited
that the June 12, 2015 work activity aggravated conditions of appellant’s left shoulder, cervical
spine, left knee, and low back. In a report dated May 11, 2016, Dr. Kahn provided a history of
the June 12, 2015 work incident and also diagnosed a consequential injury of
November 21, 2015. He posited that the fall on November 21, 2015 was secondary to low back
and left leg instability referable to June 12, 2015, and that such a consequential fall caused an
avulsion fracture of the left ankle.
In a letter dated May 25, 2016, appellant’s representative asserted that a medical form
dated December 17, 2004 contained a restriction of zero hours driving a motor vehicle.
A Form OWCP-5 dated December 17, 2004 by Dr. V.G. Raghanan contained a
restriction of zero hours driving a motor vehicle. Dr. Raghanan conducted a second opinion
medical examination with regard to the May 7, 1994 injury. In his November 5, 2004 report, he
noted that appellant reported that she developed, subsequent to the May 7, 1994 injury, a
depression condition “which is not part of the claim.” In a narrative report dated December 17,
2004, Dr. Raghanan noted that the driving restriction was prescribed because appellant was then
status post left knee arthroscopic surgery. He also noted on the OWCP-5 form that obesity and
depression were concurrent conditions.
By decision dated July 7, 2016, OWCP’s hearing representative affirmed OWCP’s
October 1, 2015 decision, finding that appellant had not submitted rationalized medical evidence
supporting her disability claim.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, that an injury was sustained in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 In general, the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.6 This meaning, for brevity, is expressed as disability from work.7
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.8
ANALYSIS
OWCP accepted that on June 12, 2015 appellant sustained a cervical sprain and
aggravation of left shoulder sprain. It had previously accepted that on May 7, 1994 she sustained
a concussion, left medial meniscus tear, left knee chondromalacia, aggravation of left knee
osteoarthritis, and cervical strain. Appellant filed CA-7 forms claiming disability for the period
July 28 to August 21, 2015 due her accepted work injuries.
The Board finds that appellant has not met her burden of proof to establish causal
relationship between the accepted work injuries and total disability on or after July 28, 2015.
In several reports, Dr. Kahn, an attending physician, found appellant disabled after
July 28, 2015 due to work-related conditions. In a report dated October 7, 2015, he posited that
the June 12, 2015 work activity aggravated degenerative conditions of the cervical spine, left
shoulder, left knee, and low back as shown by MRI scan. Dr. Kahn provided an opinion that
appellant was unable to work. In a report dated February 24, 2016, he diagnosed aggravation of
degenerative conditions of the left shoulder, knee, cervical spine, right upper extremity (rotator
cuff tendinopathy and bursitis), and right lower extremity (radicular pain and phlebitis) referable
to the June 12, 2015 work activity.

4

Supra note 2.

5

J.F., Docket No. 09-1061 (issued November 17, 2009).

6

See 20 C.F.R. § 10.5(f).

7

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

5

However, Dr. Kahn did not provide a well-rationalized opinion as to causal relationship.
The MRI tests documented degenerative conditions that preexisted June 12, 2015. Dr. Kahn not
explain how the work performed on June 12, 2015, sitting and taking apart bound reports,
aggravated conditions of the neck, upper extremities, lower extremities, or low back. He did not
explain how such work that was performed in a seated position could affect appellant’s low back
or lower extremities. Dr. Kahn submitted other reports finding work-related causes for several of
appellant’s diagnosed conditions, but he did not provide any medical rationale in support of
those opinions. The Board has held that a medical report is of limited probative value on the issue
of causal relationship if it contains a mere conclusion regarding causal relationship which is
unsupported by medical rationale.9
The Board further notes that Dr. Smith, the second opinion physician, provided an opinion
in January 2016 that appellant ceased to have residuals of her work injuries. Dr. Smith indicated
that tenderness was present in the cervical spine and left shoulder, but opined that the accepted
sprains had resolved and the current symptoms were age related.
In addition, the evidence does not support a finding that appellant’s modified-duty job
improperly failed to restrict repetitive activity or driving to or from work. Appellant accepted
the job on May 15, 2015 and while Dr. Raghanan provided a driving restriction in 2004, this
would not be relevant in assessing her restrictions at that time as that opinion was 11 years old on
the date appellant accepted her employment position and more current work restrictions had been
assigned.
On appeal appellant’s representative argues that the modified job did not accommodate
an accepted depression condition. Appellant testified during the hearing that the July 11, 2007
and June 30, 2009 documents from the prior claim, list depression as being employment related.
These two reports while referenced by appellant are not included in the record of evidence.
None of the SOAFs of record list adjustment disorder or any other emotional condition as an
accepted condition.10 Moreover, prior physicians who had evaluated appellant opined that
depression was a nonoccupational condition. Finally, the current accepted conditions relate to
aggravation of left shoulder sprain and cervical sprain. These conditions are not related to any
prior accepted conditions from her prior claim.
On appeal appellant’s representative also argues that providing video surveillance
evidence to Dr. Smith tainted his opinion on disability. OWCP procedures provide that, once a
surveillance video is provided to OWCP with a request that it be used in the management of the
case, it becomes part of the official case record and a copy will be released to the claimant, if he
or she requests it, just like any other portion of the case record. Its procedures make reference to
J.M.,11 a case in which the Board held that, if the claimant requests a copy of surveillance video,
one should be made available and the claimant given a reasonable opportunity to offer any

9

C.M., Docket No. 14-0088 (issued April 18, 2014).

10

OWCP procedures discuss that importance of the SOAF in determining accepted facts. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2(a) (September 2009).
11

58 ECAB 478 (2007).

6

comment or explanation regarding the accuracy of the recording.12 The Board finds that
appellant was provided an opportunity to view the surveillance materials and comment on them
prior to the January 2016 referral examination of Dr. Smith. Appellant requested a copy of the
materials and had them sent to her for inspection in November 2015, well prior to her scheduled
appointment with Dr. Smith.
For the reasons set forth herein, the Board finds that appellant did not meet her burden of
proof to establish disability on or after July 28, 2015 due to her accepted work injuries.
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 did not meet her burden of proof to establish disability on
or after July 28, 2015 due to her accepted work injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 12, 2017
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

12

See Federal (FECA) Procedure Manual, id. at Developing and Evaluating Medical Evidence, Chapter 2.810.9
(September 2010).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PERSONNEL COMMAND, Millington, TN,
Employer
__________________________________________

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

Docket No. 10-796
Issued: October 25, 2010

Case Submitted on the Record

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

JURISDICTION
On February 4, 2010 appellant filed a timely appeal from the September 1, 2009 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the denial of her
schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant is entitled to a schedule award.
FACTUAL HISTORY
On December 13, 2007 appellant, then a 52-year-old human resources assistant
(military), sustained an injury in the performance of duty when she fell while exiting her place of
work. The Office accepted her claim for right shoulder strain and right knee contusion.
Appellant filed a schedule award claim. Her orthopedic surgeon, Dr. Frederick M. Azar,
examined her on September 25, 2008 and found full range of motion in the right shoulder,

negative impingement, no signs of deep vein thrombosis and an intact neurovascular
examination. He released her from his care “with no impairment rating.” Dr. A.H. Manugian, a
consulting orthopedic surgeon, examined appellant on November 7, 2008 and concluded:
“According to the Fifth Edition, A[merican] M[edical] A[ssciation], Guides [to the Evaluation of
Permanent Impairment], I do not feel that she has any significant impairment.”
On February 9, 2009 the Office denied appellant’s schedule award claim. It found that
the medical evidence did not support permanent impairment to a scheduled member or function
of the body.
Appellant requested an oral hearing before an Office hearing representative. During a
telephone hearing on June 24, 2009, his representative asked for the record to be held open for
30 days in order for appellant to obtain medical evidence to support her schedule award claim.
No additional evidence was submitted.
In a decision dated September 1, 2009, the Office hearing representative affirmed the
denial of appellant’s schedule award claim. She noted that, although appellant felt she was
entitled to a schedule award because she could work only modified duty, schedule awards did not
compensate injured employees for wage loss. Further, the hearing representative found no
medical evidence to establish that appellant sustained any permanent impairment to a scheduled
member.
Appellant argues on appeal that she did not receive notice of the telephone hearing. She
noted that she would always have pain in her shoulder because she could not have surgery for the
injury.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.3
A person claiming compensation must show sufficient cause for the Office to proceed with
processing and adjudicating a claim by submitting the essentials of a prima facie case.4

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.2.g., .3.a.
(April 1993). See Donald W. Wenzel, 56 ECAB 390 (2005).

2

ANALYSIS
When appellant filed her schedule award claim, she assumed the burden of establishing
that her December 13, 2007 employment injury caused permanent physical impairment to one of
the scheduled members or functions of the body listed under Section 8107 of the Act and its
regulations. The Office accepted her injury claim for the conditions of right shoulder strain and
right knee contusion; therefore, her burden includes the necessity of submitting medical evidence
showing that the accepted medical conditions caused permanent physical impairment to her right
upper extremity or her right lower extremity.
Appellant submitted no such evidence. The medical evidence currently of record
affirmatively indicates that she is not entitled to a schedule award. Dr. Azar, the attending
orthopedic surgeon, conducted a completely normal examination of the right shoulder on
September 25, 2008. He released appellant “with no impairment rating.” Dr. Manugian, the
consulting orthopedic surgeon, also examined appellant. He reported that she had no significant
impairment under the A.M.A., Guides.
With no medical evidence to support her claim of permanent physical impairment,
appellant has not submitted a prima facie claim for a schedule award. The Board will therefore
affirm the Office hearing representative’s September 1, 2009 decision.
Appellant argues on appeal that she did not receive notice of the telephone hearing but
the record shows that the Office mailed her a properly addressed notice on May 28, 2009, so she
is presumed to have received it.5 The Office also sent this notice to her representative, who did
participate in the telephone hearing. Any question appellant might have regarding her
representation is not before the Board. She noted that she will always have shoulder pain, but to
receive a schedule award for her right upper extremity, she must submit an evaluation from her
doctor showing that her employment injury has left her right upper extremity permanently
impaired under the criteria of the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has not met her burden of proof. Appellant has not
submitted evidence essential to establishing her schedule award claim.

5

George F. Gidicsin, 36 ECAB 175 (1984). See generally Annotation, Proof of Mailing by Evidence of Business
or Office Custom, 45 A.L.R. 4th 476, 481 (1986).

3

ORDER
IT IS HEREBY ORDERED THAT the September 1, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 17-0476
Issued: June 22, 2018

Case Submitted on the Record

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

JURISDICTION
On January 3, 2017 appellant filed a timely appeal from a November 7, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated January 16, 2015 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 9, 2014 appellant, a 46-year-old rural carrier, filed a traumatic injury claim (Form
CA-1) alleging that he sustained a lower back injury on June 28, 2014 as a result of bending into
1

5 U.S.C. § 8101 et seq.

a large hamper and lifting mail trays while in the performance of duty. OWCP accepted the claim
for lumbar sprain.
In an August 19, 2014 duty status report (Form CA-17) Dr. Michael W. Cohen, a Boardcertified occupational medicine specialist, diagnosed lumbar strain and released appellant to
modified duty with the following restrictions: lifting and carrying up to 10 pounds for four hours
per day; sitting, standing, walking, climbing, and kneeling for eight hours per day; no bending or
stooping; twisting for one hour per day; and pulling and pushing up to eight hours per day.
On September 2, 2014 the employing establishment offered appellant a position as a
modified rural carrier with the following restrictions: lifting and carrying up to 10 pounds for four
hours per day; no bending or stooping; and pushing and pulling for one hour per day. Appellant
refused the modified job offer claiming that it violated his medical restrictions.
In a September 9, 2014 duty status report (Form CA-17) Dr. Cohen reiterated his diagnosis
and released appellant to modified duty with the following restrictions: lifting and carrying up to
10 pounds for four hours per day; sitting for 30 minutes per hour for four hours per day; standing
for 15 minutes per hour for two hours per day; walking for 15 minutes per hour for two hours per
day; no climbing; kneeling for one hour per day; no bending or stooping; twisting for one hour per
day; and pulling and pushing for eight hours per day.
On October 1, 2014 appellant filed a claim for total disability for the period commencing
August 9, 2014 and continuing.
In an October 9, 2014 letter, OWCP advised appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted duty status reports (Form CA-17s) dated September 30
through November 25, 2014 from Dr. Cohen which reiterated appellant’s diagnosis and work
restrictions in his September 9, 2014 duty status report.
In a duty status report (Form CA-17) dated December 9, 2014, Dr. Cohen advised that
appellant was capable of returning to work that day with the following restrictions: lifting and
carrying up to 15 pounds; sitting for 45 minutes per hour for six hours per day; standing and
walking for four hour per day; no climbing; kneeling, bending, stooping, and twisting for one hour
per day; pulling and pushing for eight hours per day; and simple grasping for eight hours per day.
By decision dated January 16, 2015, OWCP denied appellant’s claim for disability for the
period August 9, 2014 and continuing finding that the medical evidence of record was insufficient
to support total disability due to the employment injury. It noted that the evidence of record
indicated that he stopped work on August 9, 2014 and had not returned.
In response, appellant submitted reports dated January 6 through July 27, 2015 from
Dr. Cohen diagnosing lumbar strain with worsening symptoms, lumbar disc degeneration, and
lumbar radiculopathy, resolved. He also submitted reports dated October 22, 2015 through
January 11, 2016 from Dr. Dennis Michael Hembd, a Board-certified physiatrist, who diagnosed
sprain of ligaments of lumbar spine and released appellant to work with light-duty restrictions. On
December 18, 2015 Dr. Hembd’s physician assistant advised that appellant had not yet reached
2

maximum medical improvement and provided the following work restrictions: occasional
squatting with a 20-pound lifting maximum; occasional bending and stooping; and pushing and
pulling 10 to 25 pounds.
On May 5, 2016 appellant requested reconsideration of OWCP’s January 16, 2015 decision
and submitted a three-page narrative statement indicating that he was under extreme emotional
distress due to a hostile work environment, which prohibited him from requesting reconsideration
in a timely manner. He further submitted four grievance statements alleging harassment,
retaliation, and discrimination in the workplace.
By decision dated November 7, 2016, OWCP denied appellant’s request for
reconsideration because it was untimely filed and failed to demonstrate clear evidence of error. It
found that he had failed to provide any explanation as to why its decision was improperly decided
and offered no further evidence for consideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).3 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.4 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
2

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.607(a).

5

See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-0575 (issued January 4, 2010).

6

20 C.F.R. § 10.607(b).

7

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-0956 (issued April 15, 2010).

9

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

3

as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that appellant’s May 5, 2016 request for reconsideration was untimely. It
noted that the last merit decision was issued on January 16, 2015 and it received his request for
reconsideration on May 5, 2016. As appellant’s request for reconsideration was not received by
OWCP within the one-year time limitation, pursuant to 20 C.F.R. § 10.607(a), his request for
reconsideration was untimely. OWCP proceeded to deny his request for reconsideration utilizing
the clear evidence of error standard.14
The November 7, 2016 OWCP decision found that the documentation submitted with
appellant’s reconsideration request did not demonstrate clear evidence of error. The Board finds,
however, that OWCP did not make any findings regarding the evidence submitted in support of
the reconsideration request.15
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.16 Its regulations at section 10.126 of
Title 20 of the Code of Federal Regulations provide that the decision of the Director of OWCP
shall contain findings of fact and a statement of reasons.17 Moreover, Federal (FECA) Procedure
Manual provides that the reasoning behind OWCP’s evaluation should be clear enough for the

10

See Leona N. Travis, 43 ECAB 227, 241 (1991).

11

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

14

See Debra McDavid, 57 ECAB 149 (2005).

15

See J.J., Docket No. 11-1958 (issued June 27, 2012); R.C., Docket No. 16-0563 (issued May 4, 2016).

16

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

17

20 C.F.R. § 10.126. M.L., supra note 8; see also O.R., 59 ECAB 432 (2008).

4

reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.18
To determine whether appellant has demonstrated clear evidence of error, OWCP will
review the evidence submitted and arguments raised in support of the request and determine
whether such evidence or argument is sufficient to show error in its prior decision.19 It shall then
issue a decision containing findings of fact and conclusions of law.20 In the instant case, OWCP
did not discuss the new medical evidence submitted by appellant from Drs. Cohen and Hembd. Its
failure to provide factual findings and explain the basis for its conclusion that appellant did not
demonstrate clear evidence of error precludes the Board’s review of the decision.21
The Board, having duly considered the matter, finds that OWCP failed to properly explain
the findings with respect to the issue presented. Thus, OWCP, in its November 7, 2016 decision,
did not discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that appellant could understand the basis for the decision, i.e.,
whether he demonstrated clear evidence that OWCP’s last merit decision was incorrect.
The Board will set aside OWCP’s November 7, 2016 decision and remand the case for an
appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that this case is not in posture for decision.

18
See supra note 15; Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5
(February 2013).
19

See George C. Vernon, 54 ECAB 313 (2003).

20

See supra note 17.

21

See supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the November 7, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent with
this decision of the Board.
Issued: June 22, 2018
Washington, DC

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

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

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

6