United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 13-11
Issued: March 21, 2013

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 October 1, 2012 appellant filed a timely appeal from a July 23, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) determining his loss of wage-earning
capacity. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
February 18, 2012 based on its finding that he had the capacity to work as an insurance clerk.

1
2

5 U.S.C. § 8101 et seq.

In a decision dated July 23, 2012, an OWCP hearing representative administratively terminated an overpayment
as it was less than $200.00. Appellant has not appealed this decision and it is not adverse; consequently, it is not
before the Board. See 20 C.F.R. §§ 501.2(c) and 501.3(a).

FACTUAL HISTORY
On February 16, 1990 appellant, then a 35-year-old rigger, filed a traumatic injury claim
alleging that he sustained low back pain in the performance of duty on that date. He stopped
work on February 16, 1990 and returned to modified employment on March 6, 1990. OWCP
accepted the claim for lumbosacral strain and lumbar disc displacement.
On April 1, 1996 the employing establishment separated appellant due to a reduction-inforce.3 On July 28, 1998 appellant underwent an authorized lumbar laminotomy on the left at
L5-S1 and a lateral recess decompression and discectomy.
In a decision dated November 29, 1999, OWCP reduced appellant’s compensation
effective April 16, 1999 based on its finding that his actual earnings as a courier in private
employment fairly and reasonably represented his wage-earning capacity.
On July 7, 2009 appellant underwent an authorized bilateral lumbar laminectomy at
L5-S1. OWCP paid him compensation for total disability beginning that date.
In a work restriction dated June 4, 2010, Dr. Santi Rao, a Board-certified orthopedic
surgeon, found that appellant could work full time sitting for eight hours per day, walking and
standing up to four hours per day, reaching above the shoulders, bending, squatting and stooping
one to two hours per day and pushing, pulling and lifting no more than 10 to 15 pounds.4 He
advised that appellant could not twist and required 15- to 30-minute breaks every two to three
hours. Dr. Rao indicated that appellant was capable of performing his “usual occupation” as a
real estate salesman.
On September 10, 2010 OWCP referred appellant for vocational rehabilitation. In an
initial evaluation dated September 20, 2010, the rehabilitation counselor noted that appellant had
some community college credits. In a previous attempt at vocational rehabilitation in 1996 and
1997, appellant took a computer repair course. He sold real estate from 2005 through 2008 but
his license was no longer valid. Appellant worked as a courier performing record keeping,
customer service and deliveries from 2003 through 2004. He had basic computer knowledge.
OWCP approved a business training program for appellant from January 31 through
July 18, 2011.
In a report dated June 29, 2011, Dr. Rao diagnosed low back pain after a lumbar fusion.
He related that appellant could return to work full time after his rehabilitation program concluded
with restrictions of no repetitive bending, twisting, climbing and lifting, pushing or pulling over
20 pounds. Dr. Rao further found that appellant should limit overhead work, sit for no more than

3

By decision dated May 20, 1996, OWCP reduced appellant’s compensation based on its finding that his actual
earnings as a modified rigger fairly and reasonably represented his wage-earning capacity. In a decision dated
March 5, 1997, an OWCP hearing representative reversed the May 20, 1996 decision after finding that the offered
position was makeshift.
4

A physician’s assistant signed the work restriction evaluation for Dr. Rao.

2

one hour without changing position for 5 minutes and stand and walk for no more than one hour
before changing position for 10 minutes. He noted that appellant took medication for anxiety.
Appellant completed the training program on July 18, 2011. OWCP approved placement
services from July 19 through October 19, 2011.
On September 20, 2011 the rehabilitation counselor notified OWCP that appellant had
accepted a part-time position as a clerk at a storage facility. In a September 21, 2011 response,
OWCP advised the rehabilitation counselor to continue to assist appellant to find appropriate
full-time employment.5
In a November 10, 2011 job classification, the rehabilitation counselor identified the
position of insurance clerk as within appellant’s capabilities. The job was sedentary with
occasional lifting under 10 pounds. The rehabilitation counselor indicated that appellant met the
specific vocational preparation through vocational training, his community college classes and
his work as a real estate agent. He found that the job was performed in reasonable numbers
based on his own labor market research.
In a final report dated November 14, 2011, the rehabilitation counselor indicated that
10 employers responded to his labor market research and that 3 employers had current openings,
4 employers anticipated hiring in the next year and 3 employers had hired in the past year. He
noted that wages ranged from $360.00 to $480.00 weekly. The rehabilitation counselor found
that the position was reasonably available within appellant’s commuting area.
In a report dated December 5, 2011, an OWCP rehabilitation specialist determined that
appellant’s actual earnings as a part-time clerk did not fairly and reasonably represent his wageearning capacity based on his ability to work full time. He found that the position of insurance
clerk was medically and vocationally suitable and that a labor market survey indicated that the
position was reasonably available at wages of $8.00 to $16.00 per hour.
On December 21, 2011 appellant notified OWCP that he was terminated from his private
employment on December 17, 2011.
By letter dated December 23, 2011, OWCP advised appellant that it proposed to reduce
his compensation based on its finding that he had the capacity to earn wages of $400.00 per week
as an insurance clerk. In a decision dated February 15, 2012, it reduced his compensation
effective February 18, 2012 after determining that he could work as an insurance clerk. OWCP
applied the formula set forth in Albert C. Shadrick6 to calculate appellant’s loss of wage-earning
capacity.
On March 8, 2012 appellant requested an oral hearing. At the telephonic hearing, held on
May 21, 2012, he related that he was terminated from his part-time job because he was unable to
multitask or work quickly. Appellant noted that he was previously hospitalized for a psychiatric
5

In a rehabilitation action report dated October 26, 2011, the rehabilitation counselor related that appellant had
not asked his employer to increase his hours and was satisfied working part time.
6

5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403.

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condition. He maintained that his typing skills were insufficient to perform a clerical position
and that he had difficulty with prolonged sitting.
In a statement dated June 7, 2012, appellant asserted that he was unable to earn $400.00
per week. He indicated that he had a mental condition. Appellant submitted his notice of
termination from the storage company for failure to meet its needs.
In a report dated June 19, 2012, Dr. Rao diagnosed low back pain and provided
unchanged work restrictions.
By decision dated July 23, 2012, an OWCP hearing representative affirmed the
February 15, 2012 decision. He found that the position of insurance clerk was within appellant’s
work restrictions, vocationally suitable and reasonably available.
On appeal, appellant argues that his back pain prevented him from working full time. He
also related that he had difficulty working quickly doing paperwork or performing tasks on the
computer and had a history of mental problems.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.7 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience.9 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick10 will result in the percentage of the employee’s loss of
wage-earning capacity.
7

T.O., 58 ECAB 377 (2007).

8

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

9

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

10

Supra note 6.

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ANALYSIS
OWCP accepted that appellant sustained lumbosacral strain and lumbar disc
displacement as a result of a February 16, 1990 employment injury. Appellant worked modified
duty until April 1, 1996, when he was terminated due to a reduction-in-force. He underwent
back surgery in July 1998 and 2009. OWCP paid appellant compensation for total disability
beginning July 7, 2009. On June 4, 2010 Dr. Rao found that appellant could work full time with
restrictions. The Board finds that OWCP properly referred appellant for vocational rehabilitation
as Dr. Rao’s opinion establishes that he was no longer totally disabled due to residuals of his
employment injury.11
OWCP also properly found that appellant had the capacity to perform the duties of an
insurance clerk. In a report dated June 29, 2011, Dr. Rao found that appellant could work full
time lifting, pushing and pulling up to 20 pounds with no repetitive bending, twisting or
climbing. He further found that appellant should change his position for 5 minutes after sitting
for one hour and change his position for 10 minutes after standing or walking for one hour. The
position of insurance clerk is classified as sedentary work requiring occasional lifting of under
10 pounds, which is within the restrictions set forth by Dr. Rao. Following OWCP’s proposed
reduction of his compensation, appellant submitted a June 19, 2012 report from Dr. Rao, which
contained the same work restrictions. The medical evidence, consequently, establishes that he
has the requisite physical ability to earn wages as an insurance clerk.
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations but also take into account work experience, age, mental capacity
and educational background.12 The rehabilitation counselor determined that appellant had the
skills necessary to perform the position of insurance clerk based on his vocational training,
community college classes and prior real estate work. He further found that the position was
reasonably available within the appropriate geographical area at a wage of $360.00 to $480.00
per week. An OWCP rehabilitation specialist reviewed and concurred with the rehabilitation
counselor’s findings. As the rehabilitation specialist is an expert in the field of vocational
rehabilitation, OWCP may rely of his or her opinion in determining whether the job is
vocationally suitable and reasonably available.13 The Board finds that OWCP considered the
proper factors, including the availability of suitable employment, appellant’s physical limitations
and employment qualifications in determining that he had the capacity to perform the position of
insurance clerk.14 OWCP further properly determined his loss of wage-earning capacity in

11

See N.J., 59 ECAB 171 (2007).

12

Id.

13

Dorothy Jett, 52 ECAB 246 (2001); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.8(b)(2) (December 1993).
14

See N.J., supra note 11.

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accordance with the formula developed in Shadrick and codified at 20 C.F.R. § 10.403.15 It,
therefore, properly found that the position of insurance clerk reflected appellant’s loss of wageearning capacity effective February 18, 2012.
On appeal, appellant argues that his back pain prevented him from working full time and
noted that he also had a history of mental illness. He did not, however, submit any medical
evidence indicating that he could not work eight hours per day.16 Appellant also did not submit
any evidence showing that he had physical restrictions as a result of a mental condition and did
not explain why such condition would prevent him from performing the duties of the selected
position.17
Appellant further asserted that he could not work quickly on the computer or completing
paperwork. An OWCP rehabilitation specialist, however, reviewed the evidence and determined
that he had the vocational capacity to work as an insurance clerk. As noted, OWCP may rely of
the opinion of the rehabilitation specialist in determining whether the job is vocationally
suitable.18
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
February 18, 2012 based on its finding that he had the capacity to work as an insurance clerk.

15

See supra note 6. OWCP divided appellant’s employment capacity to earn wages of $400.00 a week by his
current pay rate for his date-of-injury position, $1,342.92 per week, to find a 30 percent wage-earning capacity. It
multiplied the pay rate at the time disability recurred of $791.20 by the 30 percent wage-earning capacity
percentage. The resulting amount of $237.36 was subtracted from appellant’s recurrent pay rate of $791.20, which
provided a loss of wage-earning capacity of $553.84 per week. OWCP then multiplied this amount by the
appropriate compensation rate of three-fourths, which yielded $415.38 every four weeks before cost-of-living
adjustments.
16

See T.O., 58 ECAB 377 (2007).

17

See Darletha Coleman, 55 ECAB 143 (2003). In determining an employee’s wage-earning capacity based on a
position deemed suitable, but not actually held, OWCP must consider the degree of physical impairment, including
impairments result from both injury-related and preexisting conditions, but not impairments resulting from post
injury or subsequently acquired conditions. See John D. Jackson, 55 ECAB 465 (2004).
18

See supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the July 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, WI, Employer
__________________________________________

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Appearances:
Timothy M. Scheffler, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1429
Issued: July 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 18, 2012 appellant, through her attorney, filed a timely appeal of a December 21,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
termination of her compensation and medical benefits effective April 29, 2011. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s medical and compensation
benefits effective April 29, 2011.
On appeal, appellant’s counsel contends that the evidence was insufficient to terminate
her benefits. He specifically argues that the impartial medical adviser was not fully aware of her
history, that his examination was incomplete and not medically appropriate and that he reached
contradictory positions with regard to her injuries.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2000 appellant, then a 40-year-old clerk, filed a traumatic injury claim
alleging that on May 9, 2000, when bending over to pick up labels from the floor, she pulled a
muscle and strained her back and neck causing severe headaches and upper back and shoulder
pain. OWCP accepted her claim for neck strain and cervical spinal subluxation. It paid medical
and wage-loss compensation. In a decision dated June 14, 2004, OWCP accepted appellant’s
claim for a recurrence on February 6, 2004.
In an October 10, 2007 report, Dr. Norris Breitbach, appellant’s treating chiropractor,
indicated that appellant has been on permanent disability and permanent light duty since
May 9, 2000.2 He opined that she has maintained her ability to perform her work duties on a
limited basis. Dr. Breitbach further noted that since appellant’s injury she has experienced
periods of short-term incapacity due to severe headaches and neck pain which are a direct result
of the original injury. He noted that examinations of her have shown painful and restricted
cervical range of motion as well as a positive Soto Hall test and a positive forminal compression
test. Dr. Breitbach further noted that through the help of chiropractic care appellant has
maintained her ability to work light duty, but has occasional flare-ups of neck pain and severe
headaches which cause her to be absent for brief periods. In a June 15, 2009 report, he
completed an attending physician’s report wherein he listed his findings as lateral listhesis of C1,
kyphosis C6, right rotation TB. Dr. Breitbach’s diagnoses were subluxation C1, C6, T6,
resulting in acute myositis, headaches and radiculitis. He opined that appellant was injured at
work and listed the date of injury as May 9, 2000. Dr. Breitbach noted that his treatment
included adjustment of subluxations, muscle stimulator and trigger point therapy.
On November 23, 2009 OWCP referred appellant to Dr. Kenneth H. Yuska, a Boardcertified orthopedic surgeon, for a second opinion. In a December 7, 2009 report, Dr. Yuska
noted that the objective examination showed normal range of motion of the shoulders, elbows,
wrists and hands. He noted no objective findings of any injury tenderness or neurological
dysfunction or restriction of movement. Dr. Yuska noted that the subjective status of appellant is
that she complains of symmetrical myofascial discomfort over a wide area of the upper
extremities and upper spine in a cape distribution and that the most consistent feature was a
tension headache. He listed her height as five foot three inches and her weight as 171.6 pounds.
Dr. Yuska opined that the May 9, 2000 work-related injury was a minor incident that cannot
explain the nine years of treatment that followed. He opined that there were no conditions or
residuals presently existing that were causally related in any way to the May 9, 2000 claim.
Dr. Yuska noted that there was no permanent aggravation to result in any tissue breakage. He
discussed the physical examinations and objective tests and noted that, due to the lack of
objective findings, there may have been a temporary increase in pain on or about 2000, but this
has long been forgotten. Dr. Yuska opined that there is no evidence of permanent injury and no
aggravation of any preexisting conditions. He opined that there was no precipitation,
2

In a May 9, 2000 radiology report, Dr. Breitbach found subluxations at C5, C6, C7 and T6 levels. In an
April 11, 2001 report, he diagnosed neck strain producing subluxation of C1, C6 and T6 resulting in neck pain,
headaches and myositis in trapezius muscles. Under FECA, a physician includes a chiropractor to the extent that his
or her reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).

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acceleration or aggravation of any underlying conditions. Dr. Yuska opined that there were no
conditions or residuals of the May 9, 2000 work-related claim that persists at this time. He based
this finding on the physical examination, which showed normal movement of all joints of the
upper extremities and no focal pain in the neck or upper thoracic region. Dr. Yuska further
opined that there was no treatment required relative to the injury of May 9, 2000. He opined that
the benefits from chiropractic care have long since been fully achieved and that no further
chiropractic treatments, physical therapy treatment or medication treatments of any kind are
required now or in the future.
On March 2, 2010 OWCP accepted appellant’s claim for a recurrence of the May 9, 2000
injury on January 9, 2010.
In a May 6, 2010 report, Dr. Jerome C. Ebert, a Board-certified physiatrist, evaluated
appellant for her chronic headaches associated with neck pain. He noted that she has a long
history of myofascial pain and these symptoms have not changed and are chronic. Dr. Ebert also
noted that appellant has chronic daily tension-type headaches associated with the myofascial
pain. He stated that there was no evidence of any neurologic involvement. Dr. Ebert noted that
appellant’s examination did not suggest that there is any myelopathic aspect of her symptoms.
He recommended physical therapy, triggers point injections and noted that acupuncture would be
an excellent alternative as well. Dr. Ebert also discussed her pain medication regimen.
On December 1, 2010 OWCP referred appellant to Dr. Stephen E. Barron, a Boardcertified orthopedic surgeon, for an impartial medical examination. After a recitation of the
medical file to date and physical examination, Dr. Barron opined that her diagnosis was healed
sprain of the cervicothoracic spine secondary to the work accident on May 9, 2000. He noted
that appellant had no objective findings on physical examination, had no radicular symptoms and
that her magnetic resonance imaging (MRI) scan was negative. Dr. Barron opined that, at the
time, she had a normal orthopedic examination of her cervical and thoracic spine without
objective findings. He noted appellant’s weight of 270 pounds and a height of five feet four
inches. Dr. Barron concluded that, due to her lack of any objective findings, her current
diagnosis is a healed sprain of the cervical and thoracic spine related to the injury of
May 9, 2000. He indicated that appellant does not have any residuals from this one time
traumatic injury of May 9, 2000. Dr. Barron reasoned that she sustained a soft tissue sprain of
her cervical and thoracic spine on May 9, 2000 and that soft tissue sprains will reach a healing
plateau within three months and require no further treatment. He indicated that appellant’s
cervical and thoracic spine injury resolved as of August 9, 2000. Dr. Barron opined that she was
capable of performing her regular duties as a mail clerk without restrictions.
On March 29, 2010 OWCP proposed to terminate appellant’s compensation and medical
benefits for the reason that the weight of the medical evidence demonstrated that she no longer
had any disability or residuals due to the accepted work-related injuries.
By decision dated April 29, 2011, OWCP terminated appellant’s compensation and
medical benefits effective that date. At the hearing held on October 11, 2011, appellant’s
representative argued that Dr. Barron’s report was insufficient and could not represent the weight
of the medical evidence as it was deficient and not thorough. He argued that Dr. Barron
incorrectly noted that appellant did not report subjective pain or tenderness, that he got details

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such as her weight incorrect, that he did not properly discuss objective test results and that he did
not discuss all the medical evidence. Appellant testified that she continues to see her
chiropractor and physical therapist. She stated that when she gave Dr. Barron her MRI scans he
was barely gone a minute before returning them. Appellant described her interaction with him
and contended that the actual physical examination did not last more than three minutes.
In an October 24, 2011 note, Dr. Breitbach noted that appellant presented with upper
thoracic, cervical and headache pain due to repetition of movement at work. He noted that she
had subluxations at T6, C1 and C6 resulting in cervical and thoracic myositis and radiculitis.
Dr. Breitbach opined that this condition was chronic in nature which will require adjustments of
the subluxations for pain relief. He noted that he has seen appellant less often since she stopped
working, but that her condition persists in the same spinal areas and need to be adjusted for pain
relief and to improve mobility.
In a June 24, 2011 progress note, Dr. Dr. Sheryl Spitzer-Resnick, a Board-certified family
practitioner, listed appellant’s weight as 163 pounds. She discussed appellant’s employment
injury, noting that it was a bad upper back/neck injury that resulted from lifting a heavy bag of
mail on May 9, 2000. Dr. Spitzer-Resnick noted that appellant’s severe cervical and upper back
strain from this injury is likely to have caused permanent weakness and a predisposition to injury
that contributed to her persistent spasm in the shoulders and trapezius.
After the hearing, appellant also submitted several medical reports unrelated to this case
including results of a normal mammogram, results of blood work and other lab work, reports on
consultations with regard to menopause, fatigue and cold intolerance and a physician note
excusing her from work due to the death of her mother-in-law. She also submitted a report from
her physical therapist.
By decision dated December 21, 2011, the hearing representative affirmed the April 29,
2011 decision as she found that appellant no longer had residuals of the May 9, 2000 workrelated injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 To
terminate authorization for medical treatment, it must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.5

3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

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

5

M.D., Docket No. 11-1737 (issued April 3, 2012); Calvin S. Mays, 39 ECAB 993 (1988).

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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.6 When there exist opposing medical reports of virtually equal eight 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.7
ANALYSIS
OWCP accepted appellant’s claim for neck strain and cervical spinal subluxation as a
result of an employment incident that occurred on May 9, 2000 and paid compensation and
medical benefits. Appellant’s treating physicians included Drs. Breitbach, Ebert and SpitzerResnick. Dr. Sptizer-Resnick is a family practitioner who followed appellant’s care. She noted
that appellant received chiropractic and physical therapy treatment for neck, shoulder and back
pain following her work injury. Dr. Sptizer-Resnick opined that appellant’s severe cervical and
upper back strain from this injury is likely to have caused permanent weakness and a
predisposition to injury that contributed her persistent spasm in the shoulders and trapezius.
Dr. Ebert evaluated her for chronic headaches associated with neck pain and recommended
physical therapy, trigger point injections and possibly acupuncture. Appellant received extensive
treatment by Dr. Breitbach, her chiropractor. In his June 15, 2009 report, Dr. Breitbach opined
that she had continuing residuals from her employment injury and noted that her treatment
consisted of adjustments of subluxations, muscle stimulator and trigger point therapy.
OWCP referred appellant to a second opinion physician, Dr. Yuska, who opined that
there was a normal range of motion and that were no conditions or residuals that were causally
related in any way to the May 9, 2000 claim. Due to the conflict in medical opinions between
appellant’s treating physicians and the second opinion physician with regard to whether she had
continuing residuals causally related to her accepted employment injury, OWCP referred her to
Dr. Barron for an impartial medical examination. Dr. Barron concluded that appellant had no
residuals from the accepted employment injury. Based on his opinion, OWCP terminated her
compensation and medical benefits effective April 29, 2011.
When there is conflict in the medical evidence 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.8 Dr. Barron noted that appellant had no objective findings on physical examination, had
no radicular symptoms and that her MRI scan was negative. He concluded that, based on her
normal physical examination, she no longer had any residuals from her one-time traumatic injury
of May 9, 2000.

6

5 U.S.C. § 8123(a).

7

J.M., Docket No. 12-589 (issued September 14, 2012).

8

Id.

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Appellant contends that Dr. Barron’s examination was improper in that he did not
accurately record her complaints of pain, that he did not let her tell him about her recurrences
and other injuries and that her physical examination with him lasted approximately three
minutes. The Board notes that he discussed the previous medical evidence of record, including
the prior MRI scan. Also, despite appellant’s comments that her physical examination lasted
only three minutes, Dr. Barron took measurements with regard to her range of motion and
reflexes. Dr. Barron noted that there were no areas of acute tenderness or evidence of spasm.
He noted that she walked without a limp. These findings indicate a more thorough physical
examination than appellant claims took place.
Appellant also contended that the findings of appellant’s physical therapists with regard
to her range of motion contradicted Dr. Baron’s report. Physical therapists are not considered
physicians under FECA9 and these reports are certainly not sufficient to call into question a
report by the impartial medical examiner.
The Board further rejects appellant’s argument that Dr. Barron’s physical examination
deviated from the medically approved standards for determining impairment found in the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed.
2009) in that range of motion is no longer used as a basis for defining impairment. Dr. Barron
was not assessing degree of impairment under a schedule award case; rather, he was noting
physical examination findings to determine whether she had any residuals from her employment
injury. Accordingly, appellant’s argument is without merit. The Board also rejects her
contention that Dr. Barron’s report contradicts OWCP’s findings that she had recurrences on
February 6, 2004 and January 9, 2010. Although Dr. Barron did note that appellant’s injury had
resolved by August 9, 2000, his opinion is not being used to determine the exact date that the
injury resolved. Rather, it is being used to determine that there were no more residuals as of the
time he examined her on December 16, 2010. Dr. Barron provided a well-rationalized report
based on a proper factual and medical history. He summarized the relevant medical evidence
and provided detailed examination findings and medical rationale supporting his opinion.
Although Dr. Barron incorrectly reported appellant’s weight and height measurements, the Board
finds that this is not sufficient to impact his opinion with regard to her residuals. His opinion
therefore is entitled to special weight.
Accordingly, the Board finds that OWCP properly terminated appellant’s benefits based
on the opinion of Dr. Barron, as it was based on a proper factual background.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s medical and compensation
benefits.

9

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 21 and April 29, 2011 are affirmed.
Issued: July 23, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERVICE, MORGAN GENERAL
MAIL FACILITY, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0166
Issued: February 1, 2018

Case Submitted on the Record

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

JURISDICTION
On November 5, 2015 appellant, through counsel, filed a timely appeal from a May 20,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its May 20, 2015 decision. The Board’s
jurisdiction is limited to the evidence in the case record at the time of OWCP’s final decision. 20 C.F.R.
§ 501.2(c)(1). Therefore, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that a
December 5, 2005 loss of wage-earning capacity determination should be modified.
FACTUAL HISTORY
On January 13, 1989 appellant, then a 39-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on January 12, 1989, after “sweeping rejects,” she
picked up a tray and felt pain in the right side of her abdomen. She was pregnant at the time.4
Appellant stopped work on January 13, 1989.
In February 1989, OWCP accepted the claim for right inguinal hernia and sciatic neuritis.
It paid appellant continuation of pay and wage-loss compensation benefits.
Appellant subsequently underwent a complete lumbar and cervical myelogram and
postmyelogram computerized tomography (CT) scan of cervical and lumbosacral spines on
April 23, 1992. She was released to part-time, light-duty work on June 21, 2001. On March 1,
2002 the employing establishment provided appellant with a limited-duty position as a mail
processor working four hours a day, with a grade level of 5 and an annual salary of $41,679.00
per year. The position was noted to be in strict compliance with her medical restrictions which
included: no lifting over 20 pounds, no reaching overhead, and no repetitive bending. Appellant
accepted the position with the modification that she could change positions and take a fiveminute break every hour.
Appellant returned to work in the modified position on June 3, 2002 for four hours a day.
OWCP paid wage-loss compensation benefits for the hours that she was unable to work.5
On May 23, 2005 OWCP advised appellant that she had been reemployed as a modified
mail processor with wages of $466.87 per week, effective June 3, 2002. It found that the duties
of the new position reflected on her capacity to work as established by the weight of the medical
evidence then of record. Appellant’s training, education, and work experience were also
considered in determining the suitability of the position.
On December 5, 2005 OWCP issued a loss of wage-earning capacity (LWEC)
determination, finding that appellant was reemployed as a modified mail processor, effective
June 3, 2002, with wages of $466.67 per week. It adjusted her compensation benefits, effective
November 27, 2005.
A November 4, 2008 magnetic resonance image (MRI) scan of the lumbar spine, read by
Dr. Jonathan S. Garay, Board-certified in physical medicine and rehabilitation, revealed a partial
visualization of T11 central compression fracture, likely old. He recommended correlation with
4

Appellant had been performing light-duty work at the time of her January 12, 1989 injury.

5

OWCP accepted appellant’s claims for recurrence of total disability on August 13, 2002 for the period until
August 26, 2002 and on March 6, 2004 for the period until March 20, 2004. On January 11, 2006 it denied her
claims for a recurrence of disability on May 2 and June 1, 2005.

2

thoracic spine x-rays and thoracic spine MRI scan. Dr. Garay also found a small old L3 superior
endplate fracture and lumbar spine degenerative changes without central canal stenosis.
Appellant filed a claim for recurrence of total disability (Form CA-2a) on
November 23, 2008. OWCP determined that the claim was a request for modification of the
December 5, 2005 LWEC decision. By decision dated May 1, 2009, it denied modification as
the medical evidence of record did not support appellant’s assertion that she was totally disabled.
In a December 16, 2009 report, Dr. Julian Sosner, Board-certified in physical medicine
and rehabilitation, noted that appellant’s history included that 20 years ago she injured her back
while moving a tray at work. He advised that since that time she had many episodes of on and
off lower back pain radiating to her lower extremity and that she had not worked since
November 2009. Dr. Sosner indicated that an MRI scan of the lumbosacral spine from
November 4, 2008, revealed an L5-S1 broad-based disc bulge with bilateral facet arthropathy
and mild bilateral foraminal stenosis with a small old L3 superior endplate fracture and mild T1
old central compression fracture. He examined appellant, provided findings and diagnosed
lumbago with right L5 radicular pain and degenerative joint disease of the right hip.
On December 28, 2009 appellant claimed a recurrence of disability (Form CA-2a)
commencing November 30, 2009. She indicated that she was working four hours daily with no
lifting, and no repetitive bending, pushing, or pulling more than 10 pounds. Appellant was also
prohibited from overhead reaching. She indicated that she had persistent pain that varied in
intensity on a daily basis. Appellant stopped work on November 30, 2009.
In a March 18, 2010 report, Dr. Garay noted that appellant was under his care since
February 6, 2008 for injuries sustained to her lower back when she lifted a 20-pound tray and felt
a severe pain in her right lower back. He noted that she has another aggravation in
November 30, 2009 and indicated that she was totally disabled as of December 18, 2009.
Dr. Garay diagnosed lumbar radiculopathy and herniated lumbar disc.
By decision dated April 7, 2010, OWCP denied modification of the December 5, 2005
LWEC decision, finding that the medical evidence of record failed to explain how her
employment-related conditions changed, worsened, or were aggravated such that she had a
recurrence of total disability making her unable to perform her modified, limited-duty job
assignments.
In a July 26, 2010 attending physician’s report (Form CA-20), Dr. Garay noted that
appellant had muscle spasm and lumbar sprain, right hemiparesis, chronic L5 radiculopathy and
“CVA [cerebral vascular accident] hemiparesis.” He indicated that she was totally disabled
commencing November 30, 2009. Dr. Garay explained that appellant had an exacerbation of her
low back pain near the end of November 2009 and that she became hypertensive and had an
“EVA and resultant hemiparesis AUE + RLE.”
In an April 30, 2012 report, Dr. Franco Cerabona, a Board-certified orthopedic surgeon,
noted that appellant had low back pain for “many, many years worsening over the last five to
seven years” after she had injured her back in 1989 at work lifting a tray. He indicated that she
suffered a stroke in 2009 and she felt that her low back pain “may have worsened after the

3

stroke.” Dr. Cerabona noted that appellant had residual weakness in the right side of her body
where most of her back pain was located, as well as some radicular-type symptoms with
numbness and paraesthesias coursing to her right thigh. He examined her and provided findings
which included that she walked with a limp and had a trunk list to the right without any assistive
device. In a May 21, 2012 report, Dr. Cerabona noted that appellant returned for review of her
most recent MRI scan, which revealed disc herniation and disc space collapse at the L3-4 level,
with a left greater than right foraminal narrowing and broad-based disc herniation. He also noted
scoliosis and old compression injuries at T11 and T10. Dr. Cerabona recommended a
decompression for laminectomy and facetectomies at L3-4 and L4-5 with stabilization and
instrumentation at the L3 to L5 levels.
In an August 6, 2012 work capacity evaluation (Form OWCP-5c), Dr. Garay requested
authorization for back surgery. He indicated that appellant remained totally disabled.
In a February 11, 2013 report, Dr. Garay noted that appellant was referred for a lumbar
MRI scan examination that revealed an L4-5 disc herniation and a lumbar radiculopathy or
pinched nerve. He explained that she received various treatments, but her pain level was not
controlled and her activity level had decreased. Dr. Garay advised that appellant was unable to
utilize public transportation due to her limited ambulation and that she required Access-a-Ride
services. He related that she was referred to a spine surgeon for her “unremitting back and right
leg pain.” Dr. Garay noted that the spine surgeon recommended spinal surgery. He opined that
her current condition was causally related to the January 12, 1989 accident and requested
authorization for the spinal surgery.
On June 9, 2013 counsel requested reconsideration from the April 7, 2010 decision. He
contended that OWCP had not accepted all of the injuries which were related to the employment
injury on January 12, 1989. Counsel argued that the recurrence of total disability commencing
on November 30, 2009 occurred while appellant was working in a limited-duty position and was
related to her federal employment injury of January 12, 1989. He referred to the February 11,
2013 report of Dr. Garay and argued that the medical evidence of record established “clear
evidence or error” in the denial of an LWEC modification. Counsel argued that there was a clear
change in the nature and extent of appellant’s injuries and disabilities causally related to the
accepted condition and its worsening over time. He argued that OWCP must expand the
accepted conditions to include all conditions in the reconsideration request and thereafter find
that the work stoppage on November 30, 2009 was due to a material worsening of appellant’s
federal employment injuries.
By decision dated June 12, 2013, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. On
December 13, 2013 counsel appealed to the Board. By order dated June 4, 2014, the Board set
aside the June 12, 2013 decision. The Board found the case was not in posture as OWCP should
have considered the criteria for modification of an LWEC determination when the claimant
requested resumption of compensation for total wage loss, as opposed to its determination as to

4

whether appellant had established clear evidence of error. The Board remanded the case for
proper adjudication, followed by an appropriate merit decision.6
By decision dated May 20, 2015, OWCP denied modification of the December 5, 2005
LWEC decision.7 It found that appellant had not met any of the criteria for modifying the formal
LWEC determination, nor had she established that any of the conditions for which she claimed
recurrent disability were causally related to the accepted January 12, 1989 work injury.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.8 Compensation payments are based on the wage-earning capacity determination, and it
remains undisturbed until properly modified.9 Modification of an LWEC determination is
unwarranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.10 The burden of proof is on the party seeking modification of the
wage-earning capacity determination.11
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of an LWEC determination if that light-duty position is a classified
position to which the injured employee has been formally reassigned.12 The position must
conform to the established physical limitations of the injured employee, the employer must have
a written position description outlining the duties and physical requirements, and the position
must correlate to the type of appointment held by the injured employee at the time of injury.13 If
these circumstances are present, a determination may be made that the position constitutes
“regular” federal employment.14
With respect to part-time employment, the Federal (FECA) Procedure Manual provides:
(1) a part-time position may form the basis of an LWEC determination if the employee was a
part-time worker at the time of injury; and (2) for an employee who was a full-time employee on
6

Order Remanding Case, Docket No. 14-0322 (issued June 4, 2014).

7

OWCP also found that the evidence did not support a recurrence of disability on November 30, 2009 causally
related to the January 12, 1989 work injury.
8

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

9

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

10

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

11

Id. at § 10.511.

12

Id. at § 10.510.

13

Id.

14

Id.

5

the date of injury, a part-time position may form the basis of an LWEC determination if the
employee’s stable, established work restrictions limit him or her to part-time work.15 For a parttime position to fairly and reasonably represent the wage-earning capacity of an individual who
was a full-time employee on the date of injury, the position should involve the number of hours
the employee is capable of working as indicated in the current, stable work restrictions.16
As long as there is no work stoppage due to the accepted condition(s), a formal LWEC
determination should be issued following 60 calendar days from the date of return to work.17
ANALYSIS
OWCP determined on December 5, 2005, that appellant’s weekly wages as a part-time,
modified mail processor represented her wage-earning capacity. Appellant seeks modification of
the December 5, 2005 LWEC determination, therefore, she bears the burden of proof.18 Counsel
does not claim that modification is warranted on the basis that appellant has been retrained or
otherwise vocationally rehabilitated. Rather, he argues that OWCP should expand the claim to
include lumbar disc herniation, lumbosacral spondylosis with subsequent gait disorder, and right
hip degenerative joint disease.19 Counsel also argues that appellant’s November 30, 2009 work
stoppage should be compensable because of a material worsening of her employment-related
injuries and conditions.
Modification of an LWEC determination is appropriate where the evidence demonstrates
a material change in the nature and extent of the injury-related condition.20 The current medical
evidence must demonstrate a worsening of the accepted medical condition with no intervening
injury resulting in new or increased work-related disability.21
The Board finds that the medical evidence of record is insufficient to establish a material
change or worsening of the accepted condition(s), such that appellant could not perform the
duties of the modified mail processor position. This is especially important as the only accepted
conditions are right inguinal hernia and sciatic neuritis. The medical evidence of record

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5c(1)(b) (June 2013).
16

Id.

17

Id. at Chapter 2.815.6a.

18

20 C.F.R. § 10.511.

19

Where an employee claims that a condition not accepted or approved by OWCP was due to an employment
injury, she bears the burden of proof to establish that the condition is causally related to the employment injury.
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
20

20 C.F.R. § 10.511.

21
Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.3a(2) (June 2013).

6

indicates that she suffered a new injury, a stroke in 2009, which has not been shown to be work
related, and which may have affected her work ability.22
The medical evidence includes a December 16, 2009 report from Dr. Sosner, who noted
that appellant’s history included that 20 years ago she injured her back while moving a tray at
work. Dr. Sosner noted episodes of on and off lower back pain and related that appellant had not
worked since November 2009. He reviewed diagnostic reports including a lumbosacral MRI
scan of November 4, 2008 and he diagnosed lumbago with right L5 radicular pain and
degenerative joint disease of the right hip. However, these conditions have not been accepted by
OWCP. Dr. Sosner failed to offer an opinion in which he provides medical reasoning to support
that these additional conditions demonstrate a worsening of the accepted medical conditions with
no intervening injury resulting in new or increased work-related disability.23 Medical evidence
that is not based upon a full and complete history is of limited probative value.24 The Board has
also held that medical evidence offering no opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.25
Appellant also submitted reports of Dr. Garay who provided a March 18, 2010 report, in
which he advised that appellant had another aggravation in November 30, 2009 and indicated
that she was found totally disabled on December 18, 2009. Dr. Garay diagnosed lumbar
radiculopathy and a herniated disc. However, he did not explain how the accepted conditions
worsened or why appellant could not perform her modified mail processor position due to her
work injury. Furthermore, in a July 26, 2010 report, Dr. Garay noted that appellant had muscle
spasm and lumbar sprain, right hemiparesis, chronic L5 radiculopathy, and “CVA hemiperesis.”
While he opined that she was totally disabled from November 3, 2009 to the present, he
summarily concluded without explanation that appellant had an exacerbation of her low back
pain near the end of November 2009. Dr. Garay indicated that she became hypertensive and had
an “EVA and resultant hemiparesis AUE + RLE.” However, the only conditions accepted by
OWCP were a right inguinal hernia and sciatic neuritis and Dr. Garay did not provide a
rationalized medical opinion upon which additional conditions could be established as causally
related to the accepted work injury. A mere conclusory opinion provided by a physician without
the necessary rationale explaining how and why the work injury was sufficient to result in the
diagnosed medical condition is insufficient to meet the appellant’s burden of proof to establish
her claim.26 The Board finds that without further rationale to show how the current conditions
and medical restrictions are causally related, the reports of Dr. Garay are insufficient to modify
the LWEC determination. In an April 30, 2012 report, Dr. Cerabona noted that appellant had
low back pain for “many, many years worsening over the last five to seven years,” but also noted
her 2009 stroke. He noted that she had residual weakness in the right side of her body where
22

Id.

23

See supra note 20 at Chapter 2.1501(3)(a)(2) (June 2013).

24

See D.W., Docket No. 17-1151 (issued November 7, 2017).

25

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006); Jaja K. Asaramo, supra note 19.
26

J.D., Docket No. 14-2061 (issued February 27, 2015).

7

most of her back pain was, as well as some radicular-type symptoms with numbness and
paraesthesias coursing to her right thigh. Dr. Cerabona examined appellant, reviewed her
diagnostic test results, and recommended a decompression for laminectomy and facetectomies at
L3-4 and L4-5 with stabilization and instrumentation at the L3 to L5 levels. However, his
reports are of limited probative value as he did not offer any opinion that she had a material
change in the nature and extent of the original injury-related condition such that she could no
longer perform the modified-duty position. This is especially important as the stroke, along with
other degenerative findings noted by the physician have not been accepted as work-related
conditions.27
OWCP received diagnostic reports dating from November 4, 2008 to October 22, 2013.
However, these reports are insufficient because none of the physicians provided an opinion
regarding disability. Therefore, their reports have no probative value in establishing causal
relationship.28
OWCP also received reports from social workers, physical therapists and occupational
therapists. Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.29
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.30
The other evidence of record is insufficient to support either the original LWEC
determination was erroneous or that there had been a material change in the nature and extent of
appellant’s injury-related condition.
Appellant has failed to meet her burden of proof to establish a material change in the
nature and extent of her injury-related condition, that the original determination was in fact
erroneous, or that she was vocationally rehabilitated. Thus, she has failed to establish that the
December 5, 2005 LWEC determination should be modified.
CONCLUSION
Appellant has not met her burden of proof to establish that the December 5, 2005 LWEC
determination should be modified.

27

Supra note 19.

28

See Michael E. Smith, 50 ECAB 313 (1999).

29

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

30

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. E.R., Docket No. 16-1634 (issued May 25, 2017) (occupational therapist is not a physician under FECA);
M.R., Docket No. 17-1388 (issued November 2, 2017) (social workers and physical therapists are not physicians
under FECA). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Peterson, AL, Employer
__________________________________________

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

Docket No. 10-1468
Issued: April 19, 2011

Case Submitted on the Record

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

JURISDICTION
On May 5, 2010 appellant filed a timely appeal from an April 14, 2010 merit decision of
the Office of Workers’ Compensation Programs denying modification of his wage-loss benefits.
Pursuant to the Federal Employees’ Compensation Act1 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 the Office met its burden of proof to modify appellant’s wageearning capacity determination by reducing his compensation benefits to zero and terminating
medical benefits effective May 9, 2010.
FACTUAL HISTORY
On May 5, 1987 appellant, then a 47-year-old maintenance worker, injured his low back
and left leg while lifting timber and crossties in the performance of duty. He stopped work and
returned on May 11, 1987. The Office accepted appellant’s claim for left low back strain on
1

5 U.S.C. § 8101 et seq.

June 11, 1987. Appellant filed a claim on July 7, 1988 alleging that on June 28, 1988 he
sustained a ruptured disc in his low back when a wood guardrail he was helping to move dropped
from a backhoe bucket. He resigned effective July 26, 1988. On August 4, 1988 the Office
accepted chronic low back strain and entered appellant on the periodic rolls. It referred him for
vocational rehabilitation counseling beginning March 12, 1990. By decision dated February 22,
1995, the Office found that appellant’s capacity to perform the duties of a security guard
represented his wage-earning capacity.
On April 10, 2007 the Office referred appellant for a second opinion evaluation to
Dr. Harold H. Alexander, a Board-certified orthopedic surgeon, who examined appellant on
April 30, 2007 and provided a May 1, 2007 report. Dr. Alexander reviewed the statement of
accepted facts and his accepted employment injuries. He found that appellant had limited range
of motion of the back, with ¼ inch atrophy of his left calf with no motor or sensory changes.
Dr. Alexander diagnosed degenerative disc disease of the cervical and lumbosacral spine. He
opined that appellant had no residuals of his accepted chronic low back strain. Dr. Alexander
stated, “Back strain lasts a few month, but the claimant does have continued back and neck pain
based on normal progression of degenerative disc disease seen in his age group.” He advised
that appellant’s prognosis was guarded and recommended an exercise program and over-thecounter anti-inflammatories.
By letter dated September 4, 2009, the Office informed appellant that there was no
current medical evidence of record and requested a narrative medical report within 30 days.
In a letter dated January 29, 2010, the Office proposed to terminate appellant’s medical
benefits and to modify his wage-earning capacity determination to reflect no loss of earning
capacity based on Dr. Alexander’s May 1, 2007 report. In response, by letter dated February 9,
2010, appellant requested a change of physicians. He made a second request for a change of
physicians on February 28, 2010.
By decision dated April 14, 2010, the Office terminated appellant’s medical benefits and
modified his wage-earning capacity determination, reducing his monetary benefits to zero. It
found that Dr. Alexander’s April 30, 2007 report was entitled to the weight of the medical
evidence and established that appellant had no continuing employment-related residuals or
disability.
LEGAL PRECEDENT
Once the Office 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.2
After it has determined that an employee has disability causally related to his or her federal
employment, it may not terminate compensation without establishing that the disability has
ceased or that it is no longer related to the employment.3 The right to medical benefits for an
accepted condition is not limited to the period of entitlement to disability.4 To terminate
2

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

3

David W. Pickett, 54 ECAB 272 (2002).

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

2

authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition which require further medical treatment.5 The
Board has held that the medical evidence upon which the Office relies must provide a detailed
description of appellant’s condition and be of a reasonably current medical evaluation.6
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents the ability to earn wages.7
An injured employee who is either unable to return to the position held when injured or unable to
earn equivalent wages, but who is not totally disabled for all gainful employment, is entitled to
compensation computed on his loss of wage-earning capacity.8 Once the wage-earning capacity
of an injured employee is determined, modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was
erroneous.9 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.10
ANALYSIS
Appellant’s claim was accepted for two low back injuries on May 4, 1987 when lifting
timber and crossties and on June 28, 1988 while moving a wooden guardrail. He received
compensation benefits under a February 22, 1995 wage-earning capacity determination.
In modifying the 1995 determination and terminating medical benefits, the Office relied
on the May 1, 2007 report of Dr. Alexander. The Board finds that this report is not sufficiently
detailed or current to support modification of appellant’s 1995 wage-earning capacity and
terminate his medical benefits.
Dr. Alexander examined appellant on April 30, 2007. His report provided a review of
appellant’s history of injury and findings on physical examination, including limitation of back
motion in flexion, extension, side bending and rotation. Dr. Alexander also noted atrophy of the
left calf. In explaining the diagnosis, he attributed appellant’s orthopedic condition to
degenerative disc disease of the lumbosacral spine. As to causal relation, Dr. Alexander noted
only that he did not believe appellant continued to have residuals of the accepted injuries. He
attributed appellant’s back pain to normal progression of degenerative disease seen in his age
group. The Board finds that Dr. Alexander did not provide a fully rationalized medical opinion
on causal relation. Dr. Alexander’s opinion consists of brief responses to the questions posed by
5

Carol S. Madsen, 54 ECAB 331 (2003).

6

John D. Jackson, 55 ECAB 465 (2004). Compare Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old
evaluation found reasonably current for purposes of wage-earning capacity determination) with Anthony Pestana, 39
ECAB 980 (1988) (three-year-old medical evaluation not reasonably current for wage-earning capacity
determination).
7

5 U.S.C. § 8115(a); Lee R. Sires, 23 ECAB 12, 14 (1971).

8

See Lawrence D. Price, 54 ECAB 734 (2003).

9

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

10

Selden H. Swartz, 55 ECAB 272, 278 (2004); Gary L. Moreland, 54 ECAB 638 (2003).

3

the Office and is of a speculative and equivocal character.11 To be of probative value, a
physician’s opinion on causal relationship should be one of reasonable medical certainty.12
The Board finds that Dr. Alexander’s report is of diminished probative value and does
not clearly establish that appellant’s accepted condition resolved without disability or medical
residuals. The 2007 opinion of the referral physician is not sufficiently detailed or rationalized to
support the Office’s modification of wage loss or termination of medical benefits. As noted, the
evaluation of appellant on April 30, 2007 is not reasonably current to the April 14, 2010
decision. For these reasons, the Board will reverse.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to modify appellant’s
wage-loss benefits to zero or terminate his medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Michael R. Shaffer, 55 ECAB 339 (2004).

12

See Beverly R. Jones, 55 ECAB 411 (2004).

4


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

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

Docket No. 07-1852
Issued: December 12, 2007

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 July 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 23, 2007 denying an additional schedule
award. 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 has more than a 10 percent left arm permanent
impairment, for which he received a schedule award.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 The Board found that appellant had
established a left arm condition resulting from a November 29, 1989 incident involving an
explosion and fire caused by a short circuit. It was noted that appellant submitted a May 7, 1997
report from Dr. Ronald Potash, a surgeon, opining that he had a 27 percent left arm permanent
1

Docket No. 00-1795 (issued October 12, 2001).

impairment. The case was remanded for further development with respect to a schedule award
for the left arm.2
Appellant was referred to Dr. Richard Bennett, a neurologist, for a second opinion
examination. In a report dated December 17, 2001, Dr. Bennett opined that there was no
evidence of a peripheral neuropathy in the left arm and no evidence of any permanent
impairment. By decision dated December 13, 2002, an Office hearing representative set aside a
January 18, 2002 Office decision and remanded the case for resolution of a conflict between
Dr. Potash and Dr. Bennett.
The Office initially referred appellant to Dr. Edgar Kenton, a Board-certified neurologist.
Based on Dr. Kenton’s reports dated May 23 and December 15, 2003 and the review of an Office
medical adviser, a schedule award was issued on April 7, 2004 for a 10 percent permanent
impairment to the left arm. The period of the award was 31.20 weeks from December 15, 2003.
By decision dated November 5, 2004, an Office hearing representative remanded the case
on the grounds that Dr. Kenton had not properly resolved the conflict. The hearing
representative indicated that the conflict was to be resolved by the referee physician, not the
Office medical adviser.
The record indicates that the Office was unable to secure a supplemental report from
Dr. Kenton. Dr. Tim Lachman, a Board-certified neurologist, was then selected as a referee
examiner. In a report dated February 22, 2006, he provided a history and results on examination.
With respect to permanent impairment, Dr. Lachman found a five percent impairment based on
“strength left arm,” identifying page 510 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment and Table 16-11. In addition, Dr. Lachman reported a four
percent impairment based on “sensation left index finger” and he referred to page 448 and Table
16-7 of the A.M.A., Guides. He concluded that appellant had a nine percent left arm impairment
or a five percent whole person impairment.
An Office medical adviser reviewed the evidence in a July 16, 2006 report. He noted that
page 510 of the A.M.A., Guides is Table 16-35 and “Dr. Lachman selected five percent which is
appropriate for this chart.” The medical adviser also noted that Dr. Lachman interpreted
Table 16-7 to find a four percent left arm impairment.
By decision dated July 31, 2006, the Office determined that appellant was not entitled to
an additional schedule award for the left arm. It found that the weight of the evidence was
represented by Dr. Lachman.
Appellant requested an oral hearing before an Office hearing representative which was
held on December 11, 2006. In a decision dated February 23, 2007, the hearing representative
affirmed the July 31, 2006 decision.

2

The Board also affirmed a November 24, 1997 schedule award decision for a 19 percent permanent impairment
to the right arm.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.3 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.4
ANALYSIS
The Office found that Dr. Lachman, the physician selected as a referee physician to
resolve a conflict under section 8123(a) of the Act,5 provided a rationalized medical opinion that
represented the weight of the evidence. Dr. Lachman, however, provided no explanation as to
how he applied the referenced tables in the A.M.A., Guides.
The referee physician cited page 510 and Table 16-11 with respect to a strength
impairment. Table 16-11 is found at page 484 and provides a grading classification based on the
identification of the affected nerves and the maximum impairment under Tables 16-13
through 16-15.6 The Table on page 510 is Table 16-35, which provides arm impairments for
strength deficits “from musculoskeletal disorders based on manual muscle testing of individual
units of motion of the shoulder and elbow.”7 As the A.M.A., Guides explains, the impairment
ratings are derived by multiplying the maximum relative value of each unit of motion by the
percentage of severity of strength deficit found by manual muscle testing. To apply the table the
physician must identify the shoulder or the elbow, the motion involved and then determine the
impairment based on the severity of the deficit, either 5 to 25 percent or 30 to 50 percent. To the
extent that Dr. Lachman was applying Table 16-35, he provided no explanation as to how the
table was applied. While the Office medical adviser briefly stated five percent was “appropriate”
under Table 16-35, Dr. Lachman did not indicate whether he was using the shoulder or the
elbow, what motion was involved or the severity of the deficit. The Board finds that
Dr. Lachman did not provide an adequate explanation as to how he determined a strength deficit
impairment.
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

5 U.S.C. § 8123(a) provides that, when there is a disagreement between the physician making the examination
for the United States and the physician of the employee, a third physician shall be appointed to make an examination
to resolve the conflict. There was a disagreement in this case between Dr. Bennett and Dr. Potash regarding a left
arm permanent impairment.
6

A.M.A., Guides 484, Table 16-11.

7

Id. at 510, Table 16-35. The table indicates that the severity of the deficit is derived from the same principles
used in Table 16-11.

3

With respect to sensory deficit in the left index finger, Dr. Lachman referred to Table 167, which provides digit impairments for sensory losses in the index, middle and ring fingers.8
Again, he did not provide any explanation as to how the table was applied. It is, as noted, a table
that provides impairment ratings for the finger and, therefore, Tables 16-1 and 16-2 would have
to be used to convert the impairment to an upper extremity impairment.9 Table 16-7 requires the
physician to identify whether the sensory loss is transverse or longitudinal, total or partial,
involves the ulnar or radial nerves (or both) and the percent of digit length affected.
Dr. Lachman did not provide any relevant explanation as to application of Table 16-7.
The Board finds that Dr. Lachman did not provide a rationalized medical opinion that
properly resolves the issue as to the degree of impairment to appellant’s left arm. When the
Office obtains an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration,
the Office must secure a supplemental report from the specialist to correct the defect in his
original report.10 The case will be remanded to the Office to secure a rationalized opinion on the
issue presented. After such further development as the Office deems necessary, it should issue
an appropriate decision.
CONCLUSION
The medical evidence from Dr. Lachman is of diminished probative value on the issue
presented and is not sufficient to resolve the conflict in the medical evidence.

8

Id. at 448, Table 16-7.

9

Id. at 438, 439.

10

Raymond A. Fondots, 53 ECAB 637 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 23, 2007 and July 31, 2006 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: December 12, 2007
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

5