United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bradford, PA, Employer
__________________________________________

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Appearances:
Anthony V. Clarke, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2281
Issued: September 21, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 20091 appellant, through counsel, filed a timely appeal from a
March 12, 2009 merit decision of the Office of Workers’ Compensation Programs determining
his wage-earning capacity. 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 the Office properly determined that appellant’s actual earnings as a
modified rural carrier associate fairly and reasonably represented his wage-earning capacity
effective February 23, 2008.
On appeal counsel contends that the Office hearing representative’s March 12, 2009
decision contained several errors. The employing establishment did not offer appellant a rural
carrier associate position with weekly wages of $464.00. Rather, he worked only two days per
1

This is the date of the postmark of appellant’s appeal to the Board which renders the appeal timely filed
pursuant to 20 C.F.R. § 501.3(f)(1).

month as a substitute rural carrier with fluctuating wages based on the employing
establishment’s demand for work. Moreover, a magnetic resonance imaging (MRI) scan of
appellant’s cervical spine was not relevant to his accepted employment-related right knee injury
and should not have been considered by the Office.
FACTUAL HISTORY
On April 7, 2004 appellant, a 47-year-old casual city carrier, sustained a right knee injury
while walking up stairs. He stopped work that day. On May 13, 2004 the Office accepted his
claim for a partial tear of the anterior cruciate ligament and sprain of the medial collateral
ligament of the right knee. Appellant received wage-loss compensation for total disability.
On February 19, 2008 the employing establishment offered appellant a full-time modified
rural carrier associate position with an hourly rate of $17.98. The position was based on a
February 12, 2008 report from Dr. David H. Johe, an attending orthopedic surgeon, who advised
that appellant, could return to work with restrictions. Appellant accepted the job offer and
returned to work on February 23, 2008.
On June 26, 2008 the employing establishment advised the Office that appellant did not
work 40 hours a week. Appellant worked an average of 27.93 hours a week during the year prior
to his April 7, 2004 injury. Since December 2005 he worked 15 hours a week at an hourly rate
of $17.98.
Appellant’s date-of-injury position also paid $17.98 an hour effective
November 24, 2007. As a modified rural carrier associate, he worked more than 40 hours per
week for several weeks and received compensation benefits on the periodic rolls. Appellant
worked 34 hours from March 8 to 14, 2008, 40.83 hours from May 17 to 23, 2008, 43.84 hours
from June 7 to 13, 2008 and 49.09 hours from June 14 to 20, 2008. He was scheduled to work
more than 40 hours a week from June 30 to at least July 31, 2008. Appellant covered two
different routes on a full-time basis from June 7 to July 31, 2008. One route was evaluated at
48.5 hours and the other route was evaluated at 37.32 hours.
On June 30, 2008 the employing establishment advised the Office that appellant was a
dual employee on the date of injury. It submitted the number of hours he worked since
February 23, 2008.
By decision dated August 12, 2008, the Office reduced appellant’s compensation benefits
based on its finding that his actual earnings as a modified rural carrier associate fairly and
reasonably represented his wage-earning capacity. It found that he demonstrated the ability to
perform the duties of this position for two months or more. The Office determined that the
position was suitable to appellant’s partially disabled condition and his compensation was
reduced according to the provisions of 5 U.S.C. §§ 8106 and 8115. It determined that his
compensation would be reduced to $49.00 every four weeks. The Office advised that appellant’s
salary as a dual employee on the date-of-injury was $419.99 per week effective April 7, 2004;
that the current adjusted pay rate for his job on the date-of-injury was $482.35 effective
November 24, 2007 and that he was capable of earning $464.60 a week, the rate of the modified
rural carrier associate. It determined that he had a 96 percent wage-earning capacity, which
resulted in an adjusted wage-earning capacity of $403.19 or a loss of wage-earning capacity of

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$16.80. Based on a 66 and 2/3 percent satisfactory rate, his compensation was $11.20 a week,
adjusted by cost-of-living adjustments to $12.25.
On August 14, 2008 appellant requested a telephonic oral hearing with an Office hearing
representative. In letters dated August 14 and 18, 2008, he contended that he was not a regular
rural carrier. Appellant worked as a substitute rural carrier, a position he held for years. He
contended that the number of work hours relied upon by the Office to calculate his loss of wageearning capacity was temporary in nature and he no longer worked these hours. Currently,
appellant only worked two Saturdays per month. His recent increase in wages as a substitute
rural carrier was due to his frequent substitution for regular carriers. Appellant contended that
his substitute rural carrier position was not related to the workers’ compensation benefits he
received for lost wages as a substitute causal city carrier because he had not been cleared to
return to work in this position by an attending physician.
At the December 12, 2008 hearing, appellant reiterated that he never worked as a fulltime rural route carrier and worked as a substitute rural route carrier or substitute casual city
carrier which resulted in frequent variation of income. In February 2008, he worked quite a few
hours because he filled in for a regular carrier, who had undergone surgery and another regular
carrier who was on vacation. Subsequently, appellant’s work hours dropped off. He was
scheduled to work every other Saturday and any other days he was needed. Appellant testified
that on the date-of-injury, he was working as a substitute causal city carrier. He contended that
his weekly pay rate was based on artificially inflated earnings for a short period of time.
Following the December 12, 2008 hearing, appellant submitted a November 4, 2008 MRI scan of
his cervical spine.
By decision dated March 12, 2009, an Office hearing representative affirmed the
August 12, 2008 wage-earning capacity determination. She found that the November 4, 2008
MRI scan failed to establish that appellant remained totally disabled or unable to perform the
duties of the modified rural carrier position. The hearing representative further found that the
Office properly calculated his loss of wage-earning capacity in this position.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act2 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by actual earnings if actual earnings fairly and reasonably represent the wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.3
The Office’s procedure manual states that when an employee cannot return to the
date-of-injury job because of disability due to a work-related injury or disease, but does return to
alternative employment, the claims examiner must determine whether the earnings in the
2

5 U.S.C. §§ 8101-8193, § 8115(a).

3

Selden H. Swartz, 55 ECAB 272, 278 (2004).

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alternative employment fairly and reasonably represent the employee’s wage-earning capacity.4
The procedure manual provides that the Office can make a retroactive wage-earning capacity
determination if appellant worked in the position for at least 60 days, the position fairly and
reasonably represented his wage-earning capacity and the work stoppage did not occur because
of any change in his injury-related condition affecting the ability to work.5
The formula for determining loss of wage-earning capacity based on actual earnings,6
which developed in Albert C. Shadrick,7 has been codified by regulation at 20 C.F.R. § 10.403.8
Subsection (d) of these regulations provide that the employee’s wage-earning capacity in terms
of percentage is obtained by dividing the employee’s actual earnings by the current pay rate for
the job held at the time of injury.9
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.10
ANALYSIS
The Board finds that the Office improperly determined that the position of modified rural
carrier fairly and reasonably reflected appellant’s wage-earning capacity. The record indicates
that on the date-of-injury appellant worked as a dual employee. He was a substitute rural carrier
and a substitute causal city carrier. Appellant returned to work as a modified rural carrier on
February 23, 2008 at $17.98 per week, based on the medical opinion of Dr. Johe, an attending
physician. Based on this evidence, the Office concluded that his wages of $464.40 a week fairly
and reasonably represented his wage-earning capacity. Appellant contended that the earnings
relied upon by the Office in calculating his wage-earning capacity, were temporary in nature as
worked as a substitute rural carrier and not as a regular rural carrier when he returned to work on
February 23, 2008. He stated that the number of hours he worked varied from week to week
which caused his wages to vary. Appellant contended that he earned increased wages when he
substituted for two employees who were on leave during the period of the loss of wage-earning
capacity determination. He stated that he currently only worked two Saturdays per month.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).
5

Id. at Chapter 2.814.7.e (July 1997).

6

Hayden C. Ross, 55 ECAB 455, 460 (2004).

7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403.

9

Id. at § 10.403(d).

10

Harley Sims, Jr., 56 ECAB 320, 323-24 (2005).

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As noted, wages earned are generally the best measure of wage-earning capacity.11 In
concluding that the position of modified rural carrier represented appellant’s wage-earning
capacity, the Office neglected to consider that his earnings in this position were sporadic or
intermittent in nature. Office procedures indicate that earnings of a sporadic or intermittent
nature which do not fairly and reasonably represent the claimant’s loss of wage-earning capacity
should be deducted from continuing compensation payments using the formula in Albert C.
Shadrick with past earnings being declared an overpayment.12 Sporadic or intermittent earnings
should not be used as the basis for a loss of wage-earning capacity determination, but may be
used to help establish the kind of work the claimant can perform.13 The procedures state that any
worksheet used to calculate the deduction of sporadic earnings should be marked clearly with the
words “actual earnings calculation, not a loss of wage-earning capacity determination.”14 The
Board notes that an informal reduction of benefits utilizing the Shadrick formula is proper rather
than a formal loss of wage-earning capacity determination only for the period appellant had
actual sporadic and intermittent earnings.15 Because the Office’s wage-earning capacity
determination in this case is inconsistent with its procedures, the Board concludes that the Office
erred in determining his wage-earning capacity based on his actual wages as a sporadic dual
employee.16
CONCLUSION
The Board finds that, as the Office improperly determined appellant’s wage-earning
capacity based on his actual earnings as a modified rural carrier, it did not meet its burden of
proof to establish appellant’s wage-earning capacity position.

11

Selden H. Swartz, supra note 3.

12

5 ECAB 376 (1953).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(d)(3 ) (June 1996); L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008).
14

Id.

15

See L.S., supra note 13; Lawrence D. Price, 47 ECAB 120 (1995).

16

Cheryl Dicavitch, 50 ECAB 397 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-2084
Issued: April 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 9, 2009 appellant filed a timely appeal of a July 24, 2009 decision of the
Office of Workers’ Compensation Programs, denying his request for a review of the written
record by an Office hearing representative. Since more than 180 days has elapsed between the
last merit decision on December 4, 2008 and the filing of this appeal, the Board lacks jurisdiction
to review the merits of the claim pursuant to 20 C.F.R. §§ 501.3(e) and 501.3(g).
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record.
FACTUAL HISTORY
On September 9, 2008 appellant filed an occupational disease or illness claim (Form
CA-2) alleging that he aggravated a left wrist condition as a result of his federal employment as a
letter carrier. By decision dated December 4, 2008, the Office denied the claim for
compensation. In a letter dated December 8, 2008 and received by the Office on December 11,
2008, appellant stated that he was “going to resubmit my claim.” He indicated that he was trying

to gather relevant information from the Veterans Administration.1 On February 10, 2009
appellant submitted medical evidence from his treating physicians. By undated letter received by
the Office on June 4, 2009, he requested the return of materials in his case file so he could appeal
the Office’s decision.
In an appeal request form postmarked July 13, 2009, appellant sought a review of the
written record. In an accompanying letter, he stated that his claim was denied because he was
waiting for a letter from the military, and it took time to gather the necessary information.
By decision dated July 24, 2009, the Office found that appellant’s request for a review of
the written record was untimely filed. It further denied the request on the grounds that the issue
could equally well be addressed by requesting reconsideration and submitting new and relevant
evidence.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”2 The regulations implementing this section of the Act
at 20 C.F.R. § 10.615 provide that a claimant shall be afforded a choice of an oral hearing or a
review of the written record.3 The 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.”4
ANALYSIS
The Office’s merit decision was dated December 4, 2008. On December 11, 2008
appellant submitted a December 8, 2008 letter indicating that he was attempting to secure
additional evidence regarding his claim and he intended to “resubmit” his claim. He did not
request a review of the written record or an oral hearing. The December 4, 2008 Office decision
provided four specific avenues of appeal: an oral hearing, review of the written record,
reconsideration or appeal to the Board. Appellant’s letter did not identify any of the specific
appeal rights.
It was not until a letter postmarked July 13, 2009 that appellant requested a review of the
written record. Since this was submitted more than 30 days after the December 4, 2008 Office
decision, appellant is not entitled to a review of the written record as a matter of right. Although
his request for a review of the written record was untimely, the Office has discretionary authority
with respect to granting the request and the Office must exercise such discretion.5 In this case
1

The Office had advised appellant to submit military medical records regarding a left wrist injury.

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

See Cora L. Falcon, 43 ECAB 915 (1992).

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the Office advised appellant that the issue could be addressed through the reconsideration
process and the submission of new evidence. This is considered a proper exercise of the Office’s
discretionary authority.6
On appeal, appellant noted that he had been trying to obtain paperwork from the Veterans
Administration, and he had advised the Office that it would take time to receive this evidence.
He stated that he did not understand why his request was denied as untimely, but the timeliness
issue with respect to a request for a review of the written record is determined by the provisions
of the Act and its implementing regulations. 20 C.F.R. § 10.616(a) requires that a claimant
postmark a request for a review of the written record within 30 days of the Office’s final
decision. As noted, appellant did not send his request within 30 days of December 4, 2008.
Therefore, it is untimely.
CONCLUSION
The Board finds that appellant’s request for a review of the written record was untimely
filed and the Office properly exercised its discretionary authority in denying the request.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2009 is affirmed.
Issued: April 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, BLACKFEET INDIAN
AGENCY, Browning, MT, Employer
__________________________________________

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

Docket No. 14-2026
Issued: June 1, 2015

Case Submitted on the Record

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

JURISDICTION
On September 23, 2014 appellant filed a timely appeal of an August 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits, effective September 23, 2012, based on his capacity to earn wages in the constructed
position of cashier.
On appeal appellant contends that OWCP did not consider the documents he submitted to
show that he could not obtain employment in the private sector. He argued that no business

1

5 U.S.C. § 8101 et seq.

would hire a cashier with his limitations and further contended that all cashier positions in his
commuting area were limited to 32 hours a week.
FACTUAL HISTORY
On March 30, 2004 appellant, then a 59-year-old Foreman II, filed a traumatic injury
claim alleging that on March 29, 2004 he was a passenger involved in an employment-related
automobile accident in which he struck his head and shoulder on the door and window. On
May 18, 2004 OWCP accepted appellant’s claim for low back strain and right hand strain. It
later accepted appellant’s claim for aggravation of right shoulder impingement syndrome,
aggravation of right acromioclavicular (AC) joint arthritis, aggravation of cervicalgia, right
cubital tunnel syndrome, and bilateral ulnar mononeuritis.2
OWCP paid appropriate
compensation benefits.
In an August 25, 2008 report, Dr. Randy Webb, appellant’s treating family practitioner,3
noted that appellant has chronic right shoulder pain and dysfunction due to an employmentrelated injury. He noted that appellant underwent surgery of the right shoulder without
significant improvement and was now unable to work due to this injury. Dr. Webb noted that
appellant has limited range of motion with pain on abduction, internal and external rotation of
the right shoulder, and decreased strength in the right arm. He noted that appellant was tender in
the trapezium and supraspinatus muscles around the right scapula. Dr. Webb noted that his work
injury effect persists and that his prognosis is poor for recovery. He noted that appellant was
unable to use his right arm for his previous occupation. Dr. Webb did not believe that appellant
will be able to return to work and did not believe that work hardening would be of benefit,
although he did note that retraining for a job not requiring use of his right upper extremity would
be acceptable.
On July 28, 2009 OWCP referred appellant to Dr. Aimee V. Hachigian-Gould, a Boardcertified orthopedic surgeon, for a second opinion. In an opinion dated September 24, 2009,
Dr. Hachigian-Gould listed impressions of status post right subacromial decompression and
distal clavicle resection with residual rotator cuff tendinitis, probable right cubital tunnel
syndrome with ulnar neuropathy in right upper extremity, rule out diabetic neuropathy,
multilevel cervical degenerative disc disease, depression by history, and possible mild adhesive
capsulitis right shoulder. She opined that appellant should avoid any work that required the right
upper extremity to be in a position above chest level. Dr. Hachigian-Gould noted that appellant
should avoid pushing and pulling more than 5 pounds with the right upper extremity and should
not do any lifting of more than 5 to 10 pounds with the right upper extremity. She also noted
that he should avoid activities that require repetitive gripping with the right upper extremity,
along with fingering of small objects such as coins or nails and screws. Dr. Hachigian-Gould
also recommended that appellant avoid sitting in a head-forward position for more than 30
minutes at a time without a position change due to strain on the trapezius muscle of the right
2

OWCP previously accepted appellant’s claim for an April 1, 1992 injury while operating equipment in his
capacity as an equipment operator that resulted in right median and ulnar nerve entrapment. OWCP File No.
xxxxxx100.
3

Dr. Webb is not Board-certified.

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shoulder. She further indicated that appellant should have a 15-minute break every 2 hours and
limit operating a motor vehicle to 30 minutes at a time. On January 6, 2010 Dr. HachigianGould reviewed electromyogram of the bilateral upper extremities and noted that it was an
abnormal study consistent with bilateral nonlocalizing ulnar mononeuropathy and additionally
mild-to-moderate axonal sensory polyneuropathy. She opined that appellant suffered from a
bilateral nonlocalizing ulnar mononeuropathy, which is more likely than not a combination of his
April 1, 1992 occupational injury and also the disease of life. Dr. Hachigian-Gould also noted
that, given the fact that appellant has been required to perform repetitive motions with the
bilateral upper extremities, there may also be an element of cumulative trauma injury in the
bilateral upper extremities in addition to his specific occupational injuries. Additionally, she
noted that, given the fact that appellant had a polyneuropathy of the bilateral ulnar nerves and the
left radial and left median sensory nerves, he in all likelihood has a component of diabetic
neuropathy present. She recommended that appellant be evaluated by a neurologist.
In order to resolve the conflict in the medical opinion evidence between Drs. Webb and
Hachigian-Gould, on January 19, 2010 OWCP referred appellant to Dr. Catherine Capps, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a February 1, 2010
report, Dr. Capps listed the following diagnoses: (1) adult onset diabetes mellitus, with likely
concurrent diabetic neuropathy; (2) status post right shoulder decompression and distal clavicle
excision, with ongoing painful loss of range of motion and ongoing weakness, cannot rule out
subsequent rotator cuff tear versus cuff tendinitis; (3) no evidence of cubital tunnel syndrome or
carpal tunnel syndrome on multiple nerve conduction velocity tests; and (4) multilevel
degenerative disc disease of the cervical spine, age related. She noted that appellant did not wish
to return to work unless he can perform his prior job as foreman, and that he indicated that he
was not physically capable of performing that job. Dr. Capps noted that appellant should not
perform any above shoulder reaching or lifting with his right upper extremity. She noted that he
can lift, push and pull 10 pounds occasionally and 5 pounds frequently with both arms together,
but is limited to lifting of 5 pounds below shoulder level with the right upper extremity.
Dr. Capps indicated that appellant can work an eight-hour day with these restrictions at a
sedentary job.
In reports dated July 20, 2010 and July 22, 2011, Dr. Webb continued to opine that
appellant was unable to work due to his employment injury. He noted that appellant has limited
range of motion with pain on abduction, internal and external rotation of the right shoulder, and
decreased strength in the right arm. Dr. Webb also noted tenderness in lower cervical spine and
scalene muscles on the left side as well as decrease grip strength on the right side. He noted that
the effects of the employment injury persist unabated. Dr. Webb opined that appellant was
unable to use his right arm for his previous occupation. He also noted that appellant had limited
range of motion in his neck. Dr. Webb noted that appellant would be unable to use his right
upper extremity for any kind of work and that he was on chronic medication and intermittent
physical therapy. In the July 22, 2011 report, he opined that appellant was currently unable to
return to work part time or limited duty, but that a vocational rehabilitation evaluation would be
suitable, with a workplace evaluation by a qualified occupational therapist to assist in
determining his work capacity and job elements required.
On August 23, 2011 OWCP referred appellant for vocational rehabilitation services. The
vocational rehabilitation counselor found that appellant was able to work as a cashier. He noted

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that according to the Department of Labor’s Dictionary of Occupational Titles (DOT), the duties
of a cashier are as follows:
“Receives cash from customer or employees for payment of goods or service and
records amount of money received. Operates cash register with peripheral data
processing equipment by passing individual price coded items across scanner to
record price and display cost of customer purchase, tax, and rebates on monitor
screen. Sells candy, gum, cigarettes, and gift certificates, etc.
“Within the occupation of Cashier there are a sub-set of Cashier positions that
exist that are Sedentary Positions requiring (occasional lift/carry up to 10
[pounds].)”
The vocational rehabilitation counselor found numerous cashier positions in appellant’s
commuting area. In an April 30, 2012 report, the vocational counselor indicated that, based on
the market contacts he completed for cashiers in the Shelby, Cut Bank, and Browning, Montana
area, it was his professional opinion that this occupation is sedentary work requiring occasional
lifting/carrying up to 10 pounds. He also listed positions at self-service gas station cashiers and a
casino. The vocational rehabilitation counselor opined that appellant’s age of 67 years old would
not be a barrier in his ability to be employed as a cashier. He further stated that it was his
professional opinion that the labor market contacts determined that cashier positions exist, in
significant numbers, within the injured employees’ commuting area, and that it is reasonable to
expect a person with appellant’s age, level of education, and permanent residual physical
capabilities to have reasonable prospects for employment as a cashier. The vocational
rehabilitation counselor indicated that cashier positions were available in part-time and full-time
assignments. He noted that appellant had obtained part-time work but had been unable to obtain
a full-time position. The vocational rehabilitation counselor opined that appellant’s part-time job
cannot be accepted as a fair and reasonable representation of his earning capacity. He indicated
that appellant’s wages as a full-time cashier would be $355.60 per week, which represented entry
level wages.
On August 2, 2012 OWCP proposed reduction of appellant’s compensation benefits to
reflect appellant’s ability to earn entry level wages as a cashier in a sedentary position which
required occasional lifting/carrying up to 10 pounds. It determined that the physical
requirements of this position did not exceed appellant’s accepted work tolerance limitations and
that appellant was capable of earning $355.60 per week as a cashier. OWCP recommended
reduction of compensation for the reason that the position of cashier is medically and
vocationally suitable for appellant, and fairly and reasonably represented his wage-earning
capacity. Appellant was given 30 days to submit evidence contesting the proposed benefits
reduction.
In a response dated August 10, 2012, appellant contended that cashiers in his area only
hire for a 32-hour week or less, that the vocational rehabilitation counselor based his wage
calculations on larger cities and not where appellant lives where they pay minimum wage, that
cashiers in his area have to stock shelves and perform other jobs that require lifting and reaching
beyond his medical restrictions, and that he did two work searches without success because he

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could not meet the physical requirements of the job. He noted that the employment accident was
not his fault as he was a passenger. Appellant noted that he was still in physical therapy.
In an August 23, 2012 letter, appellant further argued that he attempted to find
employment as a cashier, but was unsuccessful. He also noted that Dr. Hachigian-Gould
indicated that he could not perform activities that require repetitive gripping with the right upper
extremities, along with finger small objects, and that this would include coins.
In support of his objections, appellant submitted an August 6, 2012 response wherein
Dr. Webb noted that he last examined appellant on July 20, 2010, reiterated that appellant had
chronic right shoulder pain and dysfunction due to an employment-related injury, and opined that
appellant was unable to work due to that injury. He indicated that a work hardening program
would not be helpful.
By decision dated September 19, 2012, OWCP finalized the proposed reduction of
benefits effective September 23, 2012.
On September 27, 2012 appellant requested review of the written record by an OWCP
hearing representative. By letter dated October 24, 2012, he indicated that he would like to
rescind his request for a review of the written record and instead ask for an oral hearing. By
letter dated April 7, 2014, appellant indicated that he had not received a reply about his request
for a hearing.
Appellant submitted several notes from employers in his area in support of his contention
that he was able to work as a cashier in his commuting area. For example, in a June 19, 2014
note, Elaine Peterson, the manager at Lucky Lil’s, indicated that the lifting limit for a cashier
was about 25 to 30 pounds to be carried over an eight-hour shift. In a November 7, 2012 note,
Tanner Drabbels, an assistant store director for Albertsons’ in Cut Bank, Montana, indicated that
Albertson’s requires the cashier position to be able to lift up to 40 pounds, bend and stoop, and
stand for long periods of time. Le Coe, a manager of Cut Bank Super 8, indicated that workers
are often required to perform substantial lifting tasks. Anita Allderdice, an employee from the
Palace Casino, indicated that an employee must be able to lift more than 20 pounds when
needed. Roberta Burtness, a manager at Crossroads Inn, stated that employees were often
required to perform substantial lifting tasks, and it was not prudent to hire individuals with
known limits on lifting capacities. Tammy Salois, a manager for an unnamed place, indicated
that the job required a floor runner to be able to lift 30 to 40 pounds. A cage cashier job
description for Glacier Peaks Casino indicated that the applicant must be able to lift and carry 50
pounds.
By decision dated August 20, 2014, an OWCP hearing representative affirmed the
September 19, 2012 OWCP decision after conducting a review of the written record.
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 proving that the
disability has ceased or lessened in order to justify termination or modification of compensation

5

benefits.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on proper factual and medical background.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if an employee has no actual earnings, his or her wage-earning capacity is determined
with due regards to the nature of the injury, his or her degree of physical impairment, his or her
usual employment, his or her age, his or her qualifications for other employment, the availability
of suitable employment and other factors, and circumstances which may affect his or her wageearning capacity in his or her disabled condition.6
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence relied upon must provide a detailed description of the condition.7
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.8
OWCP procedure instructs that, in cases where a claimant has undergone vocational
rehabilitation, the vocational rehabilitation specialist will submit a final summarizing why
vocational rehabilitation was unsuccessful and listing two or three jobs which are medically and
vocationally suitable for the claimant. Where no vocational rehabilitation services were
provided, the vocational rehabilitation specialist will have provided the report. Included will be
the corresponding job numbers from DOT (or OWCP specified equivalent) and pay ranges in the
relevant geographical area.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 employee
service or other applicable service. Finally, application of the principles set forth in the Albert C.
Shadrick,10 decision will result in the percentage of the employee’s loss of wage-earning
capacity.
In determining an employee’s wage-earning capacity based on a position defined suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently acquired conditions. Any incapacity to perform the
4

Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984).

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988).

7

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

8

John D. Jackson, 55 ECAB 465 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4a. (June 2013).
10

5 ECAB 376 (1953).

6

duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation.11 Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.12
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s monetary
compensation based on his capacity to earn wages as an entry level cashier.
The Board finds that the medical evidence establishes that the physical demands of the
constructed position were within appellant’s medical restrictions. Dr. Webb, appellant’s treating
physician, noted, in an August 25, 2008 report, that he did not believe that appellant would be
able to return to work, but noted that retraining for a job not requiring the use of appellant’s right
arm would be acceptable. Dr. Hachigian-Gould, the second opinion physician, opined that
appellant should avoid lifting more than 5 to 10 pounds with the right arm and should avoid
repetitive gripping with that arm. In order to resolve the conflict between the opinions of
Dr. Webb and Dr. Hachigian-Gould, OWCP properly referred appellant to Dr. Capps for an
impartial medical examination, pursuant to 5 U.S.C. § 8123(a).
Dr. Capps opined that appellant should not perform any above-shoulder reaching should
be limited to lifting, pushing and pulling 10 pounds occasionally and 5 pounds frequently, and
was limited to lifting of 5 pounds with his right arm. She indicated that appellant could work
eight hours a day with these restrictions. When there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.13 As Dr. Capps
submitted a well-rationalized medical report, OWCP properly gave special weight to her report.
The vocational rehabilitation counselor indicated that there was a subset of cashier
positions that allow the cashier to lift or carry no more than 10 pounds. Appellant was capable
of performing these cashier positions. The vocational rehabilitation counselor conducted a
search and determined that the selected job was reasonably available for appellant in his
commuting area and that the weekly salary for an entry level position was $355.60 per week.14

11

James Henderson, Jr., 51 ECAB 619 (2000).

12

Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982).

13

Y.M., Docket Nos. 14-1050 and 14-1193 (issued December 24, 2014).

14

Rehabilitation counselors are experts in the field of vocational rehabilitation and OWCP may rely on his or her
opinion as to whether a job is reasonably available and vocationally suitable. See W.B., Docket No. 14-1452 (issued
December 4, 2014); Lawrence D. Price, 54 ECAB 590 (2003); Federal (FECA) Procedure Manual, supra note 9 at
Chapter 2.816.6b (June 2013).

7

Appellant alleged that he was unable to secure employment as a cashier due to his lifting
restriction, and submitted statements in support of his contention that cashier positions in his
commuting area were beyond his lifting restrictions. The Board is not persuaded by appellant’s
submissions of statements from potential employers indicating that positions with their
respective companies required lifting greater than 10 pounds. The positions as a hotel clerk are
irrelevant because appellant’s wage-earning capacity was based on the position of cashier, rather
than a hotel clerk. The Board also notes that most of the statements from potential employers are
not submitted on company letterhead, and are therefore of questionable validity. Nevertheless,
even had appellant been unable to secure these positions, the fact that appellant was unable to
obtain a cashier position does not establish that the work is not reasonably available in his
commuting area.15 The Board gives great weight to the vocational specialist’s expert opinion.16
The vocational counselor found that full-time positions were, in fact, available within appellant’s
commuting area within his restrictions.
The Board finds that OWCP considered the proper factors, such as availability of suitable
work and appellant’s physical limitations, usual employment and age, and employment
qualifications in determining that the position of cashier represented his wage-earning capacity.17
OWCP used the vocational rehabilitation counselor’s information about wage rate for a cashier
and established that jobs were reasonably available in the general labor market in the geographic
commuting area where the employee lived. The weight of the evidence of record establishes that
appellant had the requisite physical ability, skills, and experience to perform the position of
cashier and the position was reasonably available within the general labor market of appellant’s
commuting area. OWCP, therefore, properly determined that the position of cashier reflected
appellant’s wage-earning capacity and using the Shadrick formula properly reduced appellant’s
compensation effective September 23, 2012.18 The vocational counselor is an expert and the
Board credits his statements with regard to the applicable wage-earning capacity and the fact that
appellant could work in this position full time.
Appellant may request a modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits, effective September 23, 2012, based on his capacity to earn wages in the constructed
position of cashier.

15

See Leo A. Chartier, 32 ECAB 652, 657 (1981); Federal (FECA) Procedure Manual, supra note 9 at Chapter
2.816.6c (June 2013).
16

D.N., Docket No. 13-38 (issued August 28, 2013).

17

D.W., Docket No. 14-347 (issued June 4, 2014).

18

See supra note 10; see also 20 C.F.R. § 10.403(e).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 20, 2014 is affirmed.
Issued: June 1, 2015
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., claiming as representative of the estate of
T.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1548
Issued: April 7, 2017

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 July 27, 2016 appellant, through counsel, filed a timely appeal from a May 26, 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 the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant may make a posthumous claim for a schedule award.
FACTUAL HISTORY
This case was previously before the Board. The facts of the case as set forth in the
Board’s prior order are incorporated herein by reference.
On April 27, 2009 the employee, a 61-year-old mechanical engineering technician, filed
an occupational disease claim (Form CA-2) alleging that he sustained renal cancer due to
exposures to acetone, asbestos, asbestos, cadmium, dusts, epoxy paint fumes, Freon, silver
brazing flux, and weld smoke while in the performance of duty. The employee explained that his
exposures to these substances was most acute when he worked as a pipefitter at the employing
establishment from October 1, 1974 to March 24, 1978, but that they continued for years
afterward.
A position description confirmed that the employee’s duties exposed him to radiation,
chemicals, dusts, and fumes. A December 18, 1989 industrial hygiene survey confirmed that the
employee was exposed to airborne asbestos fibers.
Dr. Thomas R. Hefty, an attending Board-certified urologist, diagnosed a cancerous
tumor of the left kidney on April 8, 2009. On May 5, 2009 Dr. Hefty performed a left radical
nephrectomy with left adrenalectomy and major periaortic and intra-aortocaval lymph node
dissection.
By decision dated July 1, 2009, OWCP accepted that the employee was exposed to
hazardous substances as alleged, but denied the claim as the medical evidence of record did not
establish causal relationship.
The employee disagreed, and requested an oral hearing, held before an OWCP hearing
representative on October 29, 2009. He submitted a July 10, 2009 report from Dr. Diana
Velikova, an attending physician Board-certified in internal medicine, opining that toxic
exposures while working as a pipefitter contributed to the development of the employee’s renal
cancer.
By decision dated January 14, 2010, an OWCP hearing representative vacated OWCP’s
July 1, 2009 decision and remanded the case to obtain a second opinion regarding the etiology of
the employee’s renal cancer. On remand of the case the employing establishment verified that
the employee was exposed to cadmium in the course of his federal employment. Instead of
obtaining a second opinion, OWCP referred the case to an OWCP medical adviser, who opined
that the medical evidence submitted was insufficient to establish causal relationship. The
employee passed away on April 4, 2010.
By decision dated April 29, 2010, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish causal relationship. Appellant subsequently
appealed to the Board.

2

By order dated May 12, 2011,3 the Board set aside OWCP’s April 29, 2010 decision and
remanded the case to obtain a second opinion as directed by OWCP’s hearing representative in
the January 14, 2010 decision. On remand of the case OWCP obtained a second opinion review
of the medical record from Dr. Paul L. Weiden, a Board-certified internist and oncologist, who
provided an October 27, 2014 report supporting that the employee’s hazardous exposures in the
course of his federal employment accelerated his renal cancer.
On October 30, 2014 OWCP accepted that the employee sustained an acceleration of a
malignant neoplasm of the left kidney due to toxic exposures at work. Appellant received
survivor benefits.4
On May 20, 2015 appellant, the employee’s widow, claimed a schedule award (Form
CA-7). In a June 2, 2015 letter, OWCP advised appellant of the additional evidence needed to
establish her claim. In response, counsel provided a June 15, 2015 letter, contending that
appellant was entitled to a schedule award for 100 percent loss of the employee’s left kidney.
By decision dated July 24, 2015, OWCP denied appellant’s schedule award claim,
finding that the employee had not claimed a schedule award during his lifetime.
Appellant disagreed, and on July 31, 2015 requested an oral hearing, held on
March 16, 2016. At the hearing, counsel contended that appellant’s continuation of the
employee’s occupational disease claim after his death should be construed as a valid schedule
award claim.
By decision dated May 26, 2016, an OWCP hearing representative affirmed OWCP’s
July 24, 2015 decision, finding that, as the employee did not claim a schedule award during his
lifetime, appellant did not have the right to claim a schedule award after his death.
LEGAL PRECEDENT
Section 8109 of FECA provides for the payment of compensation under schedule awards
unpaid at death to beneficiaries and lists an order of precedence for identifying eligible
beneficiaries. The statue provides, in pertinent part:
“(a) If an individual -(1) has sustained disability compensable under section 8107(a) [providing
for schedule awards] of this title;
(2) has filed a valid claim in his lifetime; and

3

Docket No. 10-1555, Order Remanding Case, (issued May 12, 2011).

4

By notice dated July 23, 2015 and finalized September 18, 2015, OWCP found a $24,822.73 overpayment of
compensation as appellant had received concurrent Federal Employees’ Retirement System (FERS) benefits and
FECA compensation beginning March 1, 2013. Appellant was not at fault in the creation of the overpayment. The
overpayment issue is not before the Board on the present appeal.

3

(3) dies from a cause other than the injury before the end of the period
specified by the schedule;
“the compensation specified by the schedule that is unpaid at his death, whether
or not accrued or due at his death, shall be paid -- [to specified beneficiaries].”5
The Board has held the intent of this statutory language is clear, for a beneficiary to be
entitled to payment of a schedule award, upon death of an injured employee, such claim must
have been filed within the employee’s lifetime.6 If a claim has been filed during the employee’s
lifetime and the claim was under development, the employee’s estate may be entitled to schedule
award benefits if entitlement is established by the medical evidence.7
ANALYSIS
The employee filed a claim for compensation on April 27, 2009. He died on
April 4, 2010. OWCP accepted the claim on October 20, 2014. The record does not contain a
Form CA-7 requesting a schedule award, or other written request for a schedule award, executed
during the employee’s life. Counsel has acknowledged that the employee did not file a schedule
award as OWCP did not accept the occupational disease claim until after the employee’s death
on April 4, 2010. Appellant requested a schedule award on May 20, 2015, after the employee’s
death.
There is no entitlement to a posthumous schedule award if the schedule award claim is
not filed during the lifetime of the injured employee.8 The Board has held that a schedule award
claim must be filed by an injured employee or someone acting on his or her behalf during the
employee’s lifetime to establish a valid claim for compensation under section 8107.9
Additionally, OWCP’s implementing regulations provide that “the right to claim compensation
for disability other than medical expenses ceases and does not survive [the death of the
employee].”10
In the instant case, neither appellant, on the employee’s behalf, nor the employee filed a
schedule award claim before the employee’s death on April 4, 2010. There is no writing from
the employee of record regarding a schedule award claim.

5

5 U.S.C. § 8109(a). Carol T. Collins (Harold Turner), 54 ECAB 417 (2003); P.G., (T.G.), Docket No. 08-2183
(issued June 23, 2009).
6

Id.

7

See Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (2003).

8

V.M. (M.M.), Docket No. 10-1732 (issued April 11, 2011); Carol T. Collins (Harold Turner), supra note 5;
Mary Marie Young (David E. Young), 30 ECAB 94 (1978); P.G., (T.G.) supra note 5.
9

Id.

10

See 20 C.F.R. § 10.105(d); see also V.M. (M.M.), supra note 8.

4

As no valid schedule award claim was filed within the employee’s lifetime, the Board
finds that a posthumous claim for schedule award compensation may not be filed by appellant on
behalf of the employee’s estate.11 Therefore, OWCP’s May 26, 2016 decision is proper under
the law and facts of this case.
On appeal counsel contends that appellant should not be denied a schedule award due to
OWCP’s delay in accepting the occupational disease claim. As set forth above, as the employee
did not claim a schedule award during his lifetime, appellant is not entitled to one after the
employee’s death.
CONCLUSION
The Board finds that appellant may not make a posthumous claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2017
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

11

V.M. (M.M.), supra note 8; P.G. (T.G.), supra note 5. See also Sandra J. Henley, Docket No. 00-1619 (issued
April 4, 2002). Neither the Board nor OWCP has the authority to enlarge the terms of FECA as specified in the
statute. See, e.g., Mary C. Anderson-Paine (Robert O. Anderson), 47 ECAB 148, 152 (1995).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE POST
OFFICE, Evansville, WI, Employer
__________________________________________

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

A.M.A., Guides (6 th ed. 2009).

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

FECA Bulletin No. 17-06 (issued May 8, 2017).

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

6

rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0232
Issued: October 2, 2018

Case Submitted on the Record

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

JURISDICTION
On November 13, 2017 appellant filed a timely appeal from two July 21, 2017 merit
decisions and a September 26, 2017 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has established that the acceptance of her claim
should be expanded to include the conditions of traumatic cervical syndrome, cervical
radiculopathy, and post-traumatic stress disorder (PTSD) as causally related to the March 8, 2017
employment injury; (2) whether appellant has established total disability commencing April 23,
2017 causally related to the March 8, 2017 employment injury; and (3) whether OWCP’s Branch
of Hearings and Review properly denied appellant’s request for review of the written record under
5 U.S.C. § 8124 as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 8, 2017 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she sustained a cut above her left eye when a co-employee
struck her as they were passing each other. She stopped work on March 9, 2017.
On a form report signed on March 8, 2017, Dr. Chidubem Iloabachie a Board-certified
emergency room physician, stated that he treated appellant for a puncture wound to her left eyelid
related to an incident at work on that date. He treated and released appellant to return to regular
work as of March 9, 2017. In a duty status report (Form CA-17) of the same date, Dr. Iloabachie
indicated that appellant was prohibited from driving a vehicle, climbing, or kneeling.
In April 3, 2017 notes, Dr. Marjorie R. Levitan, a Board-certified internist, indicated that
appellant would be off work from April 9 through 30, 2017 due to a trauma on her left eye and
blurred vision. She stated that appellant could return to work on May 1, 2017.
By development letter dated April 5, 2017, OWCP advised appellant of the type of factual
and medical evidence needed to establish her claim. It afforded her 30 days to submit the necessary
evidence.
In a statement dated April 28, 2017, appellant indicated that about 1:40 a.m. on March 8,
2017, as she was walking to the loading side of machinery, as directed by her supervisor, she was
hit with a metal pole by a co-employee. She indicated that she was hit in the side of her face,
causing a puncture wound to her left eyelid. Appellant noted that she felt pain and noticed bleeding
and swelling. She completed a claim form and was escorted to the emergency room by a manager
of distribution operations.
OWCP accepted appellant’s claim for puncture wound of left eyelid.
In an April 13, 2017 report, Dr. Larry M. Neuman, a family practitioner, noted that
appellant presented for a follow up visit complaining of headaches, neck pain, anxiety, and sleep
disturbance for approximately six weeks’ duration. After conducting a physical examination, he
listed his clinical impressions as: (1) post-concussion syndrome with a contusion of the left orbit;
(2) traumatic cervical syndrome; and (3) PTSD. In an April 27, 2017 note, Dr. Neuman stated that
appellant remained disabled due to multiple injuries sustained in a work-related accident.
In an attending physician’s report (Form CA-20) signed on May 4, 2017, Dr. Levitan noted
that appellant was struck by a metal pole. She indicated by checking a box marked “yes” that
appellant had orbital trauma and PTSD, which she believed was caused or aggravated by her
employment incident. Dr. Levitan noted that she first examined appellant on March 30, 2017 and
that appellant had been totally disabled since March 9, 2017.
By letter dated June 2, 2017, the employing establishment requested that appellant’s claim
be fully developed. A Health and Resource Management specialist noted that appellant was treated
at the emergency department only for a puncture wound on her left eyelid. She noted that during
a predisciplinary interview of December 29, 2016, appellant stated that she has a chronic condition
and would file for leave under the Family and Medical Leave Act. The specialist also noted that

2

appellant had informed her supervisor that she had a serious (terminal) condition. She further
contended that fact of injury and causal relationship had not been established.
On June 9, 2017 appellant filed a claim for compensation (Form CA-7) for total disability
commencing April 23, 2017.
In a May 18, 2017 report, Dr. Vikas Varma, a Board-certified orthopedic surgeon,
conducted a physical examination and noted that his findings were suggestive of blunt trauma to
the head and neck area predominantly on the left side, left orbital trauma, and blunt concussion of
the left side of the cranium. He also diagnosed orbital trauma with medial displacement of the
medial wall of the maxillary antrum with edema and blood products in the maxillary and nasal
sinuses with narrowing of the frontoethmoidal recess. Dr. Varma further found possible edema
along the pterygoid muscles, progressive on and off headaches, and intermittent dizziness. He
explained that these episodes were accompanied with no significant tonic-clonic activity, but were
accompanied with complete loss of consciousness. Dr. Varma listed the differential diagnosis as
vertebrobasilar syndrome and vertical strabismus.
For causal relationship, he stated:
“March 8, 2017.”
On April 27, 2017 Dr. Neuman performed a functional capacity evaluation (FCE) and
offered a permanent impairment rating. In a May 18, 2017 report, he noted that appellant came in
for a follow-up and complained about chronic headaches, neck pain, anxiety, depression and sleep
disturbances for over two months duration. Dr. Neuman diagnosed appellant with post-concussion
syndrome with traumatic cervical syndrome and PTSD. In a June 5, 2017 report, he noted that he
first saw appellant on March 30, 2017. Dr. Neuman listed her chief complaints as headaches, neck
pain, and anxiety and depression with manifestations including sleep disturbances. He listed his
clinical impressions as post-concussion syndrome, traumatic cervical syndrome, and PTSD.
By decision dated July 21, 2017, OWCP denied expansion of the acceptance of appellant’s
claim to include traumatic cervical syndrome with cervical radiculopathy and PTSD. It determined
that the evidence of record did not establish that these conditions were caused or aggravated by
the accepted work-related injury of March 8, 2017. In a separate decision of even date, OWCP
denied wage-loss compensation as appellant did not provide medical evidence of causal
relationship between the accepted employment injury and her alleged disability.
On an appeal request form dated August 25, 2017, received by OWCP on August 30, 2017,
appellant requested review of the written record by a representative of OWCP’s Branch of
Hearings and Review. The request was sent with a Priority Mail stamp of August 25, 2017.
In an August 18, 2017 report, Dr. Varma listed appellant’s diagnoses as vertebrobasilar
syndrome and vertebral strabismus. Appellant was told to avoid lifting, pulling, and pushing heavy
things. Dr. Varma opined that appellant was totally disabled from work at this time due to head
and neck injury sustained with this work-related accident.
In a September 26, 2017 decision, OWCP’s hearing representative denied appellant’s
request for a review of the written record as it was not filed within 30 days after the issuance of
OWCP’s final decision. She also reviewed appellant’s request at her discretion and determined
that the issue in the case could be equally well considered by requesting reconsideration and

3

submitting evidence not previously considered which established that the injuries of appellant’s
traumatic cervical syndrome, cervical radiculopathy, and PTSD are due to her federal employment
injury of March 8, 2017. The hearing representative noted that appellant must also provide
medical evidence establishing that she was entitled to disability compensation for the period
April 23, 2017 and continuing due to the March 8, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.2 To establish causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence.3 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.4
The weight of medical evidence is determined by its reliability, its probative value, its conflicting
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.5
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record is insufficient to establish that the conditions
of traumatic cervical syndrome, cervical radiculopathy, and PTSD were causally related to the
accepted employment injury.
The first mention in the medical evidence of a potential injury to any part of her body other
than her eye was in the April 13, 2017 report of Dr. Neuman, wherein he noted that appellant was
complaining of headaches and neck pain of five weeks duration associated with anxiety and sleep
disturbances. Dr. Neuman diagnosed post-concussion syndrome with contusion of the left orbit,
traumatic cervical syndrome, and PTSD. However, Dr. Neuman failed to address appellant’s
employment injury or causal relationship in his April 13, 2017 report. There is also no discussion
of causal relationship in the FCE performed on April 27, 2017. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value.6
In a brief April 27, 2017 note, Dr. Neuman indicated that appellant remained disabled due
to multiple injuries sustained in a work-related accident. However, he did not describe the
2

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

3

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

4

See John W. Montoya, 54 ECAB 306 (2003).

5

See M.B., Docket No. 17-1773 (issued May 24, 2018).

6

S.E., Docket No. 08-2214 (issued May 6, 2009); see also C.B., Docket No. 09-2027 (issued May 12, 2010).

4

employment incident or provide any reason for his conclusion. In a June 5, 2017 report,
Dr. Neuman noted that appellant was injured in a work-related accident on March 8, 2017 when
she was struck by a metal pole in her left orbit causing her to sustain injuries to her head and neck.
He also described her treatment in the emergency room. Although Dr. Neuman provided a brief
description of the work injury and noted that appellant was injured in that accident, he did not
explain how the diagnosed conditions of post-concussion syndrome, traumatic cervical syndrome,
and PTSD were causally related to the employment injury. A mere conclusory opinion provided
by a physician without the necessary rationale explaining how and why the incident or work factors
were sufficient to result in the diagnosed medical condition is insufficient to meet a claimant’s
burden of proof to establish claim.7
Dr. Levitan first saw appellant on March 30, 2017 and treated appellant for a trauma to her
left eye and blurred vision. She also noted in a May 4, 2017 report that appellant suffered from
orbital trauma and PTSD that was caused or aggravated by the employment injury of
March 8, 2017. However, Dr. Levitan failed to explain her conclusion. The Board has held that a
physician’s opinion that consists of checking a box marked “yes” on a form report, without
supporting medical rationale, is of diminished probative value in establishing causal relationship.8
Accordingly, her opinions were also insufficient to expand the claimed conditions.
Dr. Varma, in a May 18, 2017 report, described the history of appellant’s employment
injury and reviewed the findings from his physical examination. He diagnosed blunt trauma to the
head and neck area predominantly on the left side, left orbital trauma, and blunt concussion of the
left side of the cranium. Dr. Varma also noted orbital trauma with medial displacement of the
medial wall of the maxillary atrium, possible edema along the pterygoid muscle, progressive on
and off headaches, and intermittent dizziness. He noted symptoms accompanied with nausea and
vomiting suggesting peripheral vision most likely secondary to concussive vestibulopathy.
Dr. Varma listed differential diagnoses as vertebrobasilar syndrome and vertical strabismus. With
regard to causal relationship, he simply stated: “March 8, 2017.” Dr. Varma never provided any
rationalized medical explanation for this conclusion. He did not explain how physiologically
appellant’s employment injury caused or contributed to these diagnosed conditions. Dr. Varma’s
opinion is therefore of limited probative value.9
Finally, Dr. Iloabachie, the emergency room physician, who treated appellant on the date
of the March 8, 2017 injury, only discussed appellant’s injury to her left eyelid. No other injuries
were noted. The Board notes that the claim was accepted for puncture wound of the left eyelid.
A medical opinion not fortified by medical rationale is of diminished probative value.10
None of the medical evidence provided sufficient rationale explaining how the March 8, 2017

7

L.A., Docket No. 17-0842 (issued May 16, 2018).

8

C.P., Docket No. 18-0178 (issued May 23, 2018). See also Calvin E. King, 51 ECAB 394 (2000).

9

See K.K., Docket No. 17-1061 (issued July 25, 2018).

10

C.H., Docket No. 17-0488 (issued September 12, 2017); W.W., Docket No. 09-1619 (issued June 2, 2017).

5

employment injury caused or aggravated appellant’s traumatic cervical syndrome, cervical
radiculopathy, and PTSD.
Accordingly, the Board finds that appellant has not submitted sufficient rationale medical
evidence supporting causal relationship between any of the additional claimed conditions and the
March 9, 2017 employment injury.11
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA12 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.13 For each period of disability
claimed, the employee has the burden of proof to establish that she was disabled from work as a
result of the accepted employment injury.14 Whether a particular injury causes an employee to
become disabled from work, and the duration of the disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.15
Under FECA, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.16 When the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his employment, she is entitled to
compensation for any loss of wages.17
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish total disability
beginning April 23, 2017 causally related to the accepted puncture of her left eyelid.

11

Id.

12

Supra note 1.

13

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 47 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
14

Id.

15

See Edward H. Horton, 41 ECAB 301 (1989).

16

S.M., 58 ECAB 166 (2008); Bobbie F. Cowart, 55 ECAB 746 (2004).

17

Merle J. Marceau, 53 ECAB 197 (2001).

18

Fereidoon Kharabi, 52 ECAB 291 (2001); see also K.A., Docket No. 17-1718 (issued February 12, 2018).

6

The issue of disability from work can only be resolved by competent medical evidence.19
Dr. Iloabachie, who initially treated appellant for a left eye injury in the emergency room on the
date of the March 8, 2017 employment accident, released appellant to regular work as of
March 9, 2017. Therefore, Dr. Iloabachie did not conclude that appellant was disabled.
On April 3, 2017 Dr. Levitan opined that appellant was out of work due to trauma to her
left eye and blurred vision, and could return to work on May 1, 2017. As he did not explain how
appellant’s blurred vision was due to the accepted eyelid puncture, he did not provide any
rationalized medical explanation regarding appellant’s disability.20 On May 4, 2017 Dr. Levitan
listed appellant’s period of total disability as March 9, 2017 until present, but again he did not
explain his conclusion.
Dr. Varma related in his August 18, 2017 report that appellant was totally disabled due to
head and neck conditions, however, OWCP has only accepted puncture wound of the left eyelid
as causally related to the accepted employment injury. He did not relate appellant’s disability to
the accepted condition. Dr. Varma’s report is of limited probative value as it does not establish
that residuals of the accepted condition caused total disability.21
Dr. Neuman did not provide an opinion on disability in his April 13, 2017 report. He did
provide a functional evaluation report on April 27, 2017, but did not explain why appellant would
have any disability from her job. Dr. Neuman also did not address disability in his June 5, 2017
report. Because he did not address the issue of appellant’s inability to work, the Board finds that
these medical reports were of limited probative value.22
Appellant has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence causal relationship between her claimed disability and the accepted condition
of puncture wound of left eyelid.23 The Board finds that appellant has not submitted sufficient
medical evidence to establish employment-related disability for the period claimed due to her
accepted medical condition.24
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.

19

R.E., Docket No. 16-1916 (issued March 8, 2018).

20

Supra note 15.

21

Supra note 17.

22

See B.C., Docket No. 17-0589 (issued November 15, 2017).

23

Id.

24

Alfredo Rodriguez, 47 ECAB 437 (1996).

7

LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary … is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”25 Section 10.615 of OWCP’s federal regulations,
implementing this section of FECA provides that a claimant who requests a hearing can choose
between two formats, either an oral hearing or a review of the written record by an OWCP hearing
representative.26 As section 8124(b)(1) is unequivocal in setting forth the time limitation for
requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless the request
is made within the requisite 30 days.27 The date of filing is fixed by postmark or other carrier’s
date marking.28
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing29 when the request is made after the 30-day period for requesting a
hearing,30 when the request is for a second hearing on the same issue,31 and when the request is
made after a reconsideration request was previously submitted.32 In these instances, OWCP will
determine whether a discretionary hearing should be granted, and if not, will so advise the claimant
with reasons.33
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed.
OWCP’s regulations provide that the request for a hearing or review of the written record
must be sent within 30 days of the date of the decision for which a hearing is sought. Because
25

5 U.S.C. § 8124(b)(1).

26

See 20 C.F.R. § 10.615.

27

Henry Moreno, 39 ECAB 475, 482 (1988).

28

Rudolph Bermann, 28 ECAB 354, 360 (1975).

29

Herbert C. Holley, 33 ECAB 140, 142 (1981).

30

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

31

R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).
Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).
32

See supra note 27.

33

See supra note 30.

8

appellant’s mailed request was postmarked August 25, 2017, more than 30 days after the July 21,
2017 decisions, it was untimely and she was not entitled to a hearing as a matter of right.
Although appellant’s request for a review of the written record was untimely, OWCP has
discretionary authority to grant the request and it must exercise such discretion.34 OWCP’s hearing
representative exercised her discretion and denied appellant’s hearing request as she determined
that the issues could equally well be addressed by a request for reconsideration before OWCP.
The Board finds that the hearing representative properly exercised her discretionary
authority in denying appellant’s request for a hearing.35 The only limitation on OWCP’s authority
is reasonableness. An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logical and
probable deduction from established facts.36 In this case, the evidence of record does not establish
that OWCP abused its discretion in denying appellant’s request for a hearing. Accordingly, the
Board finds that OWCP properly denied appellant’s hearing request.
On appeal appellant contends that she did not receive the July 21, 2017 decision until
July 29, 2017. However, the record reflects that OWCP mailed the decision to appellant’s address
of record and there is no indication that the decision was returned as undeliverable.37 Accordingly,
appellant’s argument on appeal is without merit.
CONCLUSION
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include the conditions of traumatic cervical syndrome, cervical radiculopathy, and
PTSD. Appellant has also not established total disability commencing April 23, 2017 causally
related to the accepted March 8, 2017 employment injury. Finally, the Board finds that OWCP’s
Branch of Hearings and Review properly denied appellant’s request for review of the written
record under 5 U.S.C. § 8124 as untimely filed.

34

F.M., Docket No. 18-0161 (issued May 18, 2018); R.V., Docket No. 17-1286 (issued December 5, 2017).

35

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise or judgment, or actions taken which are contrary to both logical and probable
deductions from the facts. See André Thyratron, 54 ECAB 257, 261 (2002).
36

Samuel R. Johnson, 51 ECAB 612 (2000).

37
Under the mailbox rule, it is presumed, absent evidence to the contrary, that a notice mailed to an individual in
the ordinary course of business was received by that individual. See A.C. Clyburn, 47 ECAB 153 (1995).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 26 and July 21, 2017 are affirmed.
Issued: October 2, 2018
Washington, DC

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

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

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

10