United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, FRIENDSHIP
STATION, Washington, DC, Employer
__________________________________________

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

Docket No. 07-357
Issued: August 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 21, 2006 appellant filed a timely appeal of a June 16, 2006 merit decision
of the Office of Workers’ Compensation Programs finding that she did not sustain an injury in
the performance of duty on October 4, 2005 and an August 18, 2006 nonmerit decision, denying
her request for a review of the written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction of the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained an injury in the
performance of duty on October 4, 2005; and (2) whether the Office properly denied her request
for a review of the written record on the grounds that it was untimely filed.
FACTUAL HISTORY
On October 6, 2005 appellant, then a 57-year-old clerk, filed a traumatic injury claim,
alleging that on October 4, 2005 she hurt her neck, back, arms, shoulder and wrist when she fell
at work. She explained that her foot became caught in a plastic tie that had come off a bundle of

mail and that she fell forward holding out her hands to break the fall. An employing
establishment medical form signed by appellant in October 2005 indicated that she chose not to
receive medical care or file a traumatic injury claim at that time. On appellant’s claim form, the
employing establishment controverted the claim.
By letter dated May 4, 2006, the Office advised appellant that the evidence submitted was
insufficient to establish her claim. It addressed the factual and medical evidence she needed to
submit to establish her claim.
In a May 20, 2006 letter, appellant stated that immediately following the October 4, 2005
incident, her supervisor, Toussaint Person, and a coworker, Ms. Skinner, who witnessed the
incident, helped her off the floor. She went home and soaked in a tub of hot water and put heat
on her back, neck and shoulder. Appellant delayed seeking medical treatment because she was
not in a lot of pain until October 6, 2005 when she awoke aching and sore. She stated that her
work duties caused pain in her shoulder and numbness in her hand. Appellant was first
examined by Dr. Peter S. Trent, an attending Board-certified orthopedic surgeon, on
April 17, 2006. She stated that she could not obtain an appointment with him until that day. At
that time the pain in her shoulder was waking her up in the middle of the night and she
experienced increased numbness and tingling in her hand.
An undated form report which contained a physician’s illegible signature provided a
history that, while at work on October 4, 2005, appellant’s feet became caught in a plastic tie that
came off a bundle of mail and she fell forward with her hands out to break the fall.
In an April 18, 2006 narrative report, Dr. Trent noted appellant’s complaint of pain in her
left elbow and shoulder. He reported essentially normal findings on physical examination with
the exception of mild tenderness over the trapeziums and supraspinatus muscles on the left side.
Dr. Trent ordered a magnetic resonance imaging (MRI) scan of appellant’s left shoulder. His
April 18, 2006 x-ray report found that her left elbow was normal with no evidence of a fracture.
Appellant’s left shoulder had some mild degenerative changes consistent with her age.
Dr. Trent, however, stated that the x-rays did not explain the source of appellant’s pain or its
continuation for more than five months.
By decision dated June 16, 2006, the Office found the evidence of record sufficient to
establish that the October 4, 2005 incident occurred at the time, place and in the manner alleged,
but insufficient to establish that appellant sustained an injury causally related to the accepted
employment incident.
On June 26, 2006 the Office received Dr. Trent’s June 15, 2006 report which stated that
appellant had clinical signs of carpal tunnel syndrome of the left upper extremity. In a July 17,
2006 report, Dr. Trent opined that appellant remained symptomatic from an axial compression
injury due to the accepted employment incident. He diagnosed rotator cuff syndrome with an
associated acromioclavicular joint injury. Dr. Trent concluded that appellant’s current symptoms
were a direct result of the October 2005 employment incident. His July 17, 2006 x-ray found no
evidence of a fracture.

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In an undated request, postmarked July 29, 2006 and received by the Office on August 2,
2006, appellant requested a review of the written record by an Office hearing representative
regarding the Office’s June 16, 2006 decision.
By decision dated August 18, 2006, the Office’s Branch of Hearings and Review denied
appellant’s request for a review of the written record. It exercised its discretion and further
denied her request on the basis that the issue in the case could be addressed by requesting
reconsideration and submitting additional evidence establishing that she sustained an injury
while in the performance of duty.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael I. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).

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identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.8
ANALYSIS -- ISSUE 1
The record supports that on October 4, 2005 appellant fell at work when her foot became
caught in a plastic tie that had come off a bundle of mail. The Board finds, however, that the
medical evidence of record is insufficient to establish that the accepted employment incident
caused neck, back, arm, shoulder and wrist conditions.
The undated form report revealed a history of the October 4, 2005 employment incident.
However, it did not provide a diagnosis causally related to the accepted employment incident.
Dr. Trent’s April 18, 2006 narrative report revealed essentially normal findings on
physical examination with the exception of mild tenderness over the trapezius and supraspinatus
muscles on the left side. His April 18, 2006 x-ray report found that appellant’s left elbow was
normal and that her left shoulder had mild degenerative changes consistent with her age.
However, Dr. Trent’s findings are insufficient to establish that appellant sustained an injury
causally related to the October 4, 2005 employment incident as he stated that the x-rays did not
explain the source of appellant’s pain and or its continuation for more than five months.
Moreover, he neither attributed the mild tenderness over the trapezius and supraspinatus muscles
on the left side to the accepted employment incident, nor explained the nexus. A physician’s
mere diagnosis of pain does not constitute a basis for payment of compensation.9
Appellant did not submit any additional medical evidence establishing a causal
relationship between her neck, back, arm, shoulder and wrist conditions and the accepted
October 4, 2005 employment incident. The Board finds that there is insufficient rationalized
medical evidence of record to establish that appellant sustained an injury in the performance of
duty on October 4, 2005. Therefore, she failed to meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the 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 her claim before a representative of the Secretary.10
Sections 10.615, 10.617 and 10.618 of the federal regulations implementing this section of the
Act provides that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.11
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Charles E. Evans, 48 ECAB 692 (1997).

9

Robert Broome, 55 ECAB 0493 (2004).

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. §§ 10.615, 10.616, 10.617.

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Section 10.616(a) of the federal regulation provides that a request for a review of the
written record or an oral hearing must be sent within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision, for which a hearing is sought.12
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, the Office may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.13 The Office’s procedures concerning
untimely requests for hearings and review of the written record are found in the Federal (FECA)
Procedure Manual, which provides:
“If the claimant is not entitled to a hearing or review (i.e., the request was
untimely, the claim was previously reconsidered, etc.), [Hearings and Review]
will determine whether a discretionary hearing or review should be granted and, if
not, will so advise the claimant, explaining the reasons.”14
ANALYSIS -- ISSUE 2
By decision dated August 18, 2006, the Office denied appellant’s request for a review of
the written record on the grounds that it was not timely filed. The Office properly found that
appellant was not, as a matter of right, entitled to a record review since her undated request was
postmarked July 29, 2006 had not been made within 30 days of the June 16, 2006 decision.
The Office also has the discretionary power to grant a request for a written record review
when a claimant is not entitled to such as a matter of right. In the August 18, 2006 decision, the
Office properly exercised its discretion by noting that it had considered the matter in relation to
the issue involved and denied appellant’s request for a review of the written record on the basis
that the issue of whether she sustained an injury in the performance of duty on October 4, 2005
could be addressed through a reconsideration application.15
CONCLUSION
The Board finds that appellant did not provide the necessary medical evidence to
establish that she sustained an injury caused by the October 4, 2005 employment incident. The
Board further finds that the Office properly denied appellant’s request for a review of the written
record on the grounds that it was untimely filed.
12

Id. at § 10.616(a).

13

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4 (b)(3) (October 1992).
15

On appeal, appellant contends for the first time that her request for a review of the written record was timely
filed. She asserts that the envelope containing the Office’s June 16, 2006 decision was postmarked July 3, 2006 and
received by her on July 5, 2006. Appellant thus, contends that she had 30 days from July 5, 2006 to submit a request
for review of the written record. She concluded that, as the Office determined that her request was postmarked
July 29, 2006, her request was made within 30 days of the June 16, 2006 decision and, therefore, timely filed. This
contention was not raised before or adjudicated by the Office and cannot be considered for the first time on appeal.
See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the August 18 and June 16, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
RESEARCH LABORATORY, Patuxent, MD,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1327
Issued: January 8, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 17, 2013 appellant filed a timely appeal from the November 20, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a
loss of wage-earning capacity decision. The Board assigned Docket No. 13-259.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision and must be remanded for further development. This case has been before the
Board previously. In a decision dated June 7, 2012,1 the Board found that OWCP improperly
reviewed appellant’s request for modification of his loss of wage-earning capacity determination
under 5 U.S.C. § 8128(a) and section 10.6062 of OWCP’s regulations. The Board remanded the
case for OWCP to evaluate appellant’s claim under the standards for modifying a loss of wageearning capacity determination.
In a decision dated November 20, 2012, OWCP denied appellant’s claim on the grounds
that he failed to provide probative evidence to support total disability for the claimed period of
1

Docket No. 12-8 (issued June 7, 2012).

2

20 C.F.R. § 10.606.

August 4, 2002 through October 16, 2009. It stated, “As the claimant failed to provide rationale
for total temporary disability, the claim for wage loss for total disability cannot be paid.”
The Board has clearly held that modification of a standing loss of wage-earning capacity
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was erroneous.3 OWCP’s procedures provide that, if a formal loss
of wage-earning capacity decision has been issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss. In this instance, the claims
examiner will need to evaluate the request according to the customary criteria for modifying a
formal loss of wage-earning capacity.4 The burden of proof is on the party attempting to show a
modification of the loss of wage-earning capacity determination.5
In this case, the Board is unable to determine if OWCP applied the customary criteria in
denying modification of appellant’s wage-earning capacity determination.
Section 8124(a) of Federal Employees’ Compensation Act provides: OWCP shall
determine and make a finding of fact and make an award for or against payment of
compensation....6 Section 10.126 of Title 20 of the Code of Federal Regulations provides: The
decision shall contain findings of fact and a statement of reasons.7 Moreover, OWCP’s
procedures provide: The reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.8
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding whether appellant has met his burden of proof under
the customary standards to establish modification of his wage-earning capacity determination.
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.

3

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

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
5

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

6

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

7

20 C.F.R. § 10.126. See O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); Tonja R. Hiebert,
55 ECAB 706 (2004) (it is a well-established principle that OWCP must make proper findings of fact and a
statement of reasons in its final decisions).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for action consistent with
this order of the Board.
Issued: January 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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

Docket No. 14-1161
Issued: September 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 23, 2014 appellant filed a timely appeal from the March 5, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective March 9, 2014 on the grounds that she had no disability due to her
accepted work injuries after that date.
FACTUAL HISTORY
On May 28, 2010 OWCP accepted that appellant, then a 31-year-old letter carrier,
sustained major depression (single episode) and generalized anxiety disorder due to her work. It
1

5 U.S.C. §§ 8101-8193.

accepted that her conditions were caused by three wrongful disciplinary actions: a
September 17, 2009 notice of disciplinary action for absence without leave; a November 9, 2009
notice of disciplinary action for failing to follow instructions and unsatisfactory performance;
and a November 19, 2009 notice of disciplinary action for failing to follow instructions and
unsatisfactory performance. Appellant stopped work on November 19, 2009. She received
disability compensation on the periodic rolls.
Effective November 22, 2011, OWCP terminated appellant’s wage-loss compensation
and medical benefits based on the opinion of an OWCP referral physician that she ceased to have
work-related residuals as of that date. In a June 14, 2012 decision, an OWCP hearing
representative reversed the termination determination on the grounds that the opinion of
OWCP’s referral physician was not based on a complete and accurate statement of accepted
facts. Appellant’s compensation was restored and she was placed on the periodic rolls.
On January 23, 2012 appellant returned to limited-duty work at the employing
establishment for four hours a day. She eventually worked her way up to six hours a day.
Appellant received partial wage-loss compensation for the portion of each eight-hour day that
she did not work. She stopped work on June 28, 2012 and received total disability
compensation.
In a June 28, 2012 report, David Aycock, Ph.D., an attending clinical psychologist,
advised that he had treated appellant on a regular basis. He stated, “Due to the recent events at
her workplace, her stress levels have elevated significantly and [appellant] is unable to discharge
her work duties at present. It is undetermined when she will be capable of returning to her work
responsibilities.”
In June 2012, OWCP referred appellant to Dr. Kenneth E. Goolsby, a Board-certified
second opinion psychiatrist, for an examination and opinion on her work-related residuals. In a
June 19, 2012 report, Dr. Goolsby discussed appellant’s medical history, including the accepted
conditions of major depression (single episode) and generalized anxiety disorder. He noted that
the statement of accepted facts showed that these conditions were accepted as being caused by
three wrongful disciplinary actions dated September 17, November 9 and 19, 2009. Dr. Goolsby
reported the findings of his examination and diagnosed major depression (single episode without
psychotic features) and generalized anxiety disorder. He found that there continued to be
multiple objective findings to support the diagnosis of major depressive disorder, including
depressed mood, decreased energy, prolonged depressed mood, decreased energy, decreased
concentration, anhedonia, feeling of hopelessness and helplessness and fleeting suicidal
thoughts. Dr. Goolsby noted that appellant also met many of the criteria for generalized anxiety
disorder, including experiencing excessive anxiety, difficulty controlling worrying, restlessness,
fatigue, difficulty concentration, irritability and sleep disturbance. He stated that it was his
“impression that these conditions were caused by the compensable factors of employment as
described in the statement of accepted facts” and that appellant’s “psychiatric condition has not
resolved as evidenced by her continued diagnosis of major depressive disorder and generalized
anxiety disorder.” Dr. Goolsby determined that appellant’s major depressive disorder and
generalized anxiety disorder had not resolved due to a lack of an aggressive
psychopharmaceutical management program for her depressive symptoms. He stated that

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appellant was currently unable to work in any capacity due to her recurrent major depressive
disorder and generalized anxiety disorder.
In an October 9, 2012 report, Dr. Aycock stated that appellant’s diagnoses were
depressive disorder and anxiety disorder and noted that these conditions were still medically
present, unresolved and disabling. He noted that these conditions were not aggravations of any
preexisting conditions and that appellant’s functioning had not returned to her preinjury status.
Appellant currently was disabled from all employment settings. He noted that she attempted to
return to work from January to June 2012, but that her symptom complex returned in force.
In treatment reports dated March 5 to November 19, 2013, Dr. Aycock reiterated that
appellant’s diagnoses were depressive disorder and anxiety disorder. He noted that these
conditions were still medically present, unresolved and disabling.
In August 2013, OWCP again referred appellant to Dr. Goolsby, for an examination and
opinion on her work-related residuals.2 In an August 19, 2013 report, Dr. Goolsby provided
findings that were similar to those in his June 19, 2012 report. He diagnosed major depression
(single episode without psychotic features) and generalized anxiety disorder and stated the
conditions were caused by the 2009 disciplinary actions mentioned in the statement of accepted
facts. Dr. Goolsby again advised that the conditions had not resolved due to a lack of an
aggressive psychopharmaceutical management program for appellant’s depressive symptoms.
He stated that appellant was currently unable to work in any capacity due to her recurrent major
depressive disorder and generalized anxiety disorder.
In a January 24, 2014 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation on the grounds that she ceased to have disability due to the accepted
work conditions.3 It stated that the proposed termination action was supported by the June 28,
2012 report of Dr. Aycock and the June 19, 2012 report of Dr. Goolsby. OWCP suggested that
appellant sustained a new work-related emotional condition by indicating that “the events
leading up to the [June 28, 2012] work stoppage were associated with her new work factors not
associated with the [November 9, 2009] work events.” It provided her 30 days to submit
evidence or argument challenging the proposed termination action.4
In a March 5, 2014 decision, OWCP terminated appellant’s compensation effective
March 9, 2014. It found that she had no disability due to her accepted work injuries after that
date. It indicated that the June 28, 2012 report of Dr. Aycock and the June 19, 2012 report of
Dr. Goolsby supported this action.

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It is unclear why OWCP undertook a second referral to Dr. Goolsby without asking him to clarify his June 19,
2012 report.
3

OWCP did not provide any indication that it would terminate appellant’s medical benefits.

4

OWCP stated that a formal wage-earning capacity determination was issued on July 25, 2012. However, there
is no indication that such a determination has been made. The record contains a July 25, 2012 instructional letter
explaining appellant’s compensation rate, but this does not constitute a formal wage-earning capacity determination.

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LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
ANALYSIS
On May 28, 2010 OWCP accepted that appellant sustained major depression (single
episode) and generalized anxiety disorder due to her work due to three wrongful disciplinary
actions dated September 17, November 9 and 19, 2009.
Appellant stopped work on
November 19, 2009 and received disability compensation on the periodic rolls. On January 23,
2012 appellant returned to limited-duty work for the employing establishment for four hours per
day and she eventually worked her way up to six hours per day. She stopped work on June 28,
2013 and began to receive total disability compensation.
OWCP terminated appellant’s wage-loss compensation effective March 9, 2014 on the
grounds that she had no disability due to her accepted work injuries after that date. It based its
termination action on a June 28, 2012 report of Dr. David Aycock, an attending clinical
psychologist, and a June 19, 2012 report of Dr. Goolsby, a Board-certified psychiatrist serving as
an OWCP referral physician.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective March 9, 2014. The June 28, 2012 report of Dr. Aycock and
the June 19, 2012 report of Dr. Goolsby do not establish that appellant’s accepted work
conditions no longer caused disability.
In a June 28, 2012 report, Dr. Aycock stated, “Due to the recent events at her workplace,
her stress levels have elevated significantly and [appellant] is unable to discharge her work duties
at present. It is undetermined when she will be capable of returning to her work
responsibilities.” The Board finds that this report does not support the termination of appellant’s
wage-loss compensation. Dr. Aycock did not provide an opinion that appellant’s accepted
conditions of major depression (single episode) and generalized anxiety disorder were no longer
causing disability. OWCP suggested that the June 28, 2012 report established that appellant
sustained a new emotional condition due to work factors encountered when she returned to parttime work in early 2012. However, Dr. Aycock’s did not provide a clear opinion on this matter.
Moreover, he explicitly stated in numerous treatment reports of record that appellant continued
to have disability due to her accepted work conditions. In an October 9, 2012 report, Dr. Aycock
stated that appellant’s diagnoses were depressive disorder and anxiety disorder and noted that the
5

V.C., 59 ECAB 490 (2008); Charles E. Minniss, 40 ECAB 708, 716 (1989).

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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conditions were still medically present, unresolved and disabling. He stated that appellant’s
functioning had not returned to preinjury status and she currently was disabled from all
employment settings.
OWCP also determined that Dr. Goolsby’s June 19, 2012 report supported its termination
action. The Board notes that the physician provided an opinion that appellant’s accepted work
conditions had not resolved. Dr. Goolsby discussed the accepted conditions of major depression
(single episode) and generalized anxiety disorder and noted that the statement of accepted facts
provided that the conditions were accepted as being caused by three wrongful disciplinary
actions from 2009. He diagnosed major depression (single episode without psychotic features)
and generalized anxiety disorder and posited that these conditions had not resolved due to a lack
of an aggressive psychopharmaceutical management program for appellant’s depressive
symptoms.8 Dr. Goolsby stated that appellant was currently unable to work in any capacity due
to her recurrent major depressive disorder and generalized anxiety disorder.
For these reasons, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation effective March 9, 2014.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective March 9, 2014 on the grounds that she had no disability due to
her accepted work injuries after that date.

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Dr. Goolsby stated that it was his “impression that these conditions were caused by the compensable factors of
employment as described in the statement of accepted facts” and that appellant’s “psychiatric condition has not
resolved as evidenced by her continued diagnosis of major depressive disorder and generalized anxiety disorder.”
He also produced an August 19, 2013 report in which he provided findings that were similar to those contained in
his June 19, 2012 report.

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
P.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
FEDERAL CONTRACT COMPLIANCE
PROGRAMS, San Francisco, CA, Employer
__________________________________________

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

Docket No. 15-1873
Issued: January 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 10, 2015 appellant filed a timely appeal from a March 20, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days has elapsed since the most recent merit decision dated December 20, 2013 and the filing of
this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3,2 the Board lacks jurisdiction to review the merits of appellant’s case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
On appeal, appellant argues the merits of her claim.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 20, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 20, 2013 appellant, a 58-year-old equal employment opportunity
specialist, filed an occupational disease claim (Form CA-2) alleging that she developed trigger
finger due to factors of her federal employment. On the claim form, the employing
establishment indicated that she had been out of work since April 2013, that the medical
evidence she provided was more than a year old, and that she had intervening bilateral carpal
tunnel surgery.
In a September 24, 2013 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted an October 15, 2013 narrative statement indicating that she met with
her doctor on October 11, 2013 and was awaiting his medical report.
By decision dated December 20, 2013, OWCP denied the claim finding that appellant
had failed to establish fact of injury. It found that the evidence was insufficient to establish a
medical diagnosis causally related to a compensable factor of employment.
Appellant requested reconsideration on an appeal request form dated December 18, 2014
and received by OWCP on December 23, 2014. She submitted the first page of an occupational
disease claim (Form CA-2) indicating that her federal duties included continuous computer
typing, lifting, and carrying work-related equipment and materials. Appellant also submitted a
June 23, 2006 letter from the employing establishment stating that she was “required to keyboard
and has carried materials, including laptops” during the course of her federal employment. She
further submitted pages one and six of an incomplete October 17, 2012 second opinion report
from Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, who indicated that appellant had
an accepted claim for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx231 and
found that she had “trigger fingers in both little fingers,” as well as triggering of the right ring
finger and mild triggering of the left ring finger. In a December 19, 2014 report Dr. Maury
Harwood, a Board-certified orthopedic surgeon, opined that appellant’s carpal tunnel syndrome
contributed to the development of trigger fingers and that her condition was a direct result of her
severe bilateral carpal tunnel syndrome. He concluded that trigger fingers should be included in
appellant’s bilateral carpal tunnel syndrome claim under File No. xxxxxx231.
By decision dated March 20, 2015, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of OWCP’s decision for which

3

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

4

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

2

review is sought.5 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the OWCP decision.13 The Board makes
an independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to establish clear evidence of error.

5

20 C.F.R. § 10.607(a).

6

See F.R., Docket No. 09-575 (issued January 4, 2010).

7

20 C.F.R. § 10.607(b).

8

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

9

See M.L., Docket No. 09-956 (issued April 15, 2010).

10

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

11

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

12

See Jimmy L. Day, 48 ECAB 652 (1997).

13

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

14

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

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The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations15 and procedures16 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.
The most recent merit decision was OWCP’s December 20, 2013 decision. Appellant had one
year from the date of this decision to make a timely request for reconsideration. Since OWCP
did not receive her request until December 23, 2014, it was filed outside the one-year time
period.17 As appellant’s December 23, 2014 request for reconsideration was submitted more
than one year after the December 20, 2013 merit decision, it was untimely filed. Consequently,
she must demonstrate clear evidence of error by OWCP in the denial of her claim.18
In its December 20, 2013 decision, OWCP originally denied appellant’s occupational
disease claim because she had failed to establish fact of injury. It found that the evidence was
insufficient to establish a diagnosis causally related to a compensable factor of employment. An
incomplete October 17, 2012 second opinion report from Dr. Swartz relating to conditions from
another claim cannot establish error in the December 20, 2013 OWCP decision. Dr. Swartz did
not address the present claim and matters pertaining to OWCP File No. xxxxxx231 are not
presently before the Board. This report does not establish clear evidence of error, nor does it
raise a substantial question as to the correctness of OWCP’s decision.
In Dr. Harwood’s December 19, 2014 report, the trigger finger conditions were said to be
related to appellant’s carpal tunnel syndrome. Dr. Harwood failed to address the present claim.
His report does not establish clear evidence of error, nor does it raise a substantial question as to
the correctness of OWCP’s decision.
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.19 None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.

15

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011); see
supra note 13.
17

OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provide
that the date of the reconsideration request for timeliness purposes was changed from the date the request was
mailed to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011). Therefore, OWCP utilized
the new regulations and found that as OWCP received appellant’s request for reconsideration on December 23,
2014, or over one year after the December 20, 2013 decision, appellant’s request was untimely filed.
18

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011); see
Dean D. Beets, supra note 8.

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On appeal, appellant argues the merits of her claim. The Board noted above that it only
has jurisdiction over OWCP’s March 20, 2015 nonmerit decision which denied her request for
reconsideration and, therefore, is precluded from conducting a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF DEFENSE, NAVAL AIR
STATION, Alameda, CA, Employer
__________________________________________

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

Docket No. 09-1887
Issued: June 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2009 appellant filed a timely appeal of a February 10, 2009 decision of the
Office of Workers’ Compensation Programs denying modification of his wage-earning capacity
determination.1 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 denied modification of appellant’s February 1,
2000 wage-earning capacity determination.
On appeal, appellant contends that there were errors in the Office’s determination of his
wage-earning capacity and that he should have been permitted to pursue self-employment.

1

On June 3, 2009 an Office hearing representative found that appellant’s claim for augmented compensation was
not in posture for a decision and remanded the case to the Office for further development. The Board has no
jurisdiction to consider this issue as it is an interlocutory matter before the Office. See 20 C.F.R. § 501.2(c). See also
Scott R. Walsh, 56 ECAB 353 (2005).

FACTUAL HISTORY
This case has previously been before the Board. On March 21, 2008 the Board set aside
the Office’s September 10, 2007 nonmerit decision denying appellant’s request for reconsideration
as untimely and failing to show clear evidence of error.2 The case was remanded for a
determination as to whether the evidence established that modification of a February 1, 2000
wage-earning capacity determination was warranted.
On July 20, 1993 appellant filed a traumatic injury claim alleging a neck injury when he
fell on the front steps of the employing establishment. His claim was accepted for neck contusion,
cervical sprain and disc dislocation/bulge at C5-6 and he was placed on the periodic rolls.
In an April 29, 1994 report, Dr. Eugene Mar, an attending physician, stated that appellant’s
condition was permanent and stationary. He diagnosed C5-6 central and right paracentral disc
protrusion encroaching on the right lateral recess and right lateral foramen at that level. Dr. Mar
found no evidence of cervical radiculopathy. Motor, sensory and reflexes of the upper extremity
were within normal limits. In a May 6, 1994 work capacity evaluation, Dr. Mar found that
appellant was able to work eight hours a day; however, he was permanently restricted from sitting
for prolonged periods of time driving a truck and from driving a vehicle for more than 30 minutes
at a time. He noted that appellant was a candidate for vocational rehabilitation. On June 21, 1994
appellant was referred for vocational rehabilitation counseling and placement.
In January 1996, appellant notified the Office that his cervical condition had worsened as
he was experiencing severe pain in his neck and right shoulder. As Dr. Mar had moved to an
unknown location, appellant sought approval for treatment by another physician. On January 25,
1996 the Office advised him that he had the right to choose his own physician.
In an April 5, 1996 report, Dr. S. Weisner, a treating physician with Kaiser Permanente,
listed findings on examination. Cervical range of motion was decreased by 50 percent in all
directions. Appellant had mild pain with palpation to the posterior cervical area. Spurling’s
maneuver caused pain in the base of the neck bilaterally. Dr. Weisner diagnosed cervical
dysfunction.
In a May 1, 1996 report, Dr. Joseph M. Grant, a Board-certified orthopedic surgeon,
provided a history of injury and treatment and findings on examination. He noted that appellant
had experienced increased shoulder and neck pain over the previous several months. On
examination, Dr. Grant found restriction in cervical range of motion mildly to the right causing
some right trapezius pain. There was painful arc of motion of the right shoulder above 120
degrees of forward flexion and limitation of internal and external rotation. Dr. Grant diagnosed
cervical spondylosis with mild radicular pain and right shoulder impingement syndrome. He
recommended physical therapy for strengthening and range of motion of the shoulder as well as
cervical spine stabilization. On June 5, 1996 Dr. Grant stated that appellant’s neck condition
precluded heavy work and repetitive overhead lifting.

2

Docket No. 08-73 (issued March 21, 2008).

2

Pursuant to vocational rehabilitation services appellant received funds to obtain his
bachelor’s degree, which was projected to be completed within three semesters. An Office
rehabilitation specialist reported on May 10, 1999 that, after 18 months, appellant had not
completed his degree and it was uncertain as to what was needed to graduate. The Office directed
the rehabilitation counselor to begin placement services in June 1998. Although appellant
received more than 90 days of placement assistance, he failed to secure employment.
The rehabilitation specialist identified the position of assistant manager -- truck terminal
(Department of Labor’s Dictionary of Occupational Titles No. 184.1670110) as vocationally
suitable and reasonably available in appellant’s commuting area, based upon a local labor market
survey. The counselor found the job vocationally suitable in light of appellant’s educational
background and more than 10 years of trucking industry experience. He stated that the position,
which was classified as sedentary, appeared to be suitable and medically based upon Dr. Mar’s
May 1994 report. The counselor noted that there did not appear to be any current medical
evidence of record and that it was unclear whether appellant was still under active medical
treatment. With respect to the salary of the selected position, the rehabilitation specialist noted
entry level wages in the area and found that appellant was capable of earning $576.92 a week in
the position.
By letter dated August 9, 1999, the Office notified appellant that it proposed to reduce his
compensation on the grounds that he was capable of earning $576.92 a week as an assistant
manager -- truck terminal. It based its determination of his physical capacity to perform the duties
of the position on Dr. Mar’s March 14, 1994 report.
In a February 1, 2000 decision, the Office reduced appellant’s compensation to reflect his
wage-earning capacity as an assistant manager -- truck terminal with wages of $576.92 a week. It
found that the constructed position represented his wage-earning capacity and was physically
suitable based on Dr. Mar’s May 1994 restrictions.
In an undated letter received on May 3, 2007, appellant noted that his circumstances had
proven that he was virtually unemployable due to his worsened physical condition. In an undated
letter received by the Office on June 12, 2007, he requested reconsideration of the February 1,
2000 wage-earning capacity decision. Appellant argued that the original decision was in error and
that he was not capable of work as his accepted cervical condition had significantly worsened. He
submitted medical reports dated July 25 and August 22, 2003 and March 7 and June 13, 2007 from
Dr. Grant, which addressed his cervical and shoulder conditions.
In a June 5, 2008 decision, the Office denied modification of the February 1, 2000 wageearning capacity determination on the grounds that the evidence failed to establish that the original
rating was in error or that appellant’s medical condition had worsened such that he was incapable
of performing the duties of the selected position.
On June 23, 2008 appellant requested an oral hearing. In an April 30, 2008 report,
Dr. James H. Rhee, a Board-certified physiatrist, noted that he had limited involvement with
appellant and was unable to make any recommendations regarding the type of suitable
employment.

3

On February 10, 2009 an Office hearing representative affirmed the June 5, 2008 decision
finding that a modification of the February 1, 2000 wage-earning capacity was not warranted.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
Section 8115(a) of the Federal Employees’ Compensation Act4 provides that, if actual
earnings of the employee do not fairly and reasonably represent his or her wage-earning capacity
or if the employee has no actual earnings, the wage-earning capacity as appears reasonable under
the circumstances is determined with due regard to: (1) the nature of the injury; (2) the degree of
physical impairment; (3) his or her usual employment; (4) age; (5) his or her qualifications for
other employment; (6) the availability of suitable employment; and (7) other factors or
circumstances which may affect wage-earning capacity in his or her disabled condition.5
The Office’s procedure manual provides that, “[i]f a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests resumption
of compensation for total wage loss. In this instance the [claims examiner] will need to evaluate
the request according to the customary criteria for modifying a formal loss of wage-earning
capacity.”6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
Board has stated that the medical evidence upon which the Office relies must provide a detailed

3

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

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
7

Stanley B. Plotkin, 51 ECAB 700 (2000).

8

Id.

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description of appellant’s condition.9 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.10
ANALYSIS
Appellant has the burden of proof to establish that modification of the February 1, 2000
wage-earning capacity determination was warranted.11 The Board finds error in the 2000
determination that the Office failed to obtain reasonably current medical evaluation to determining
whether the constructed position of assistant manager -- truck terminal was medically suitable to
appellant’s limitations.
The Office determined that the selected position was medically suitable on the grounds that
the required duties of the position were within the restrictions provided by Dr. Mar in a May 6,
1994 report. It is well established that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.12 Dr. Mar’s report addressing appellant’s work restrictions
was issued nearly six years prior to the Office’s February 1, 2000 decision. It does not constitute
probative medical opinions that the selected position of assistant manager -- truck terminal was
suitable to appellant’s physical capacity to perform the duties of the job. In January 1996,
appellant notified the Office that his cervical condition had worsened and he sought approval for
treatment by another physician as Dr. Mar had moved to an unknown location. He provided 1996
reports from Dr. Grant, who addressed appellant’s complaints of increasing cervical and shoulder
pain and recommended restrictions. The report of the rehabilitation counselor who selected the
position noted the absence of any current medical report. The Office relied on the 1994 report of
Dr. Mar in making its wage-earning capacity determination. As it failed to secure a current
medical opinion on appellant’s capacity to perform the duties of the selected position, the Board
finds that the Office did not discharge its burden of proof to reduce his wage-loss compensation.
The Board will reverse the Office hearing representative’s February 10, 2009 decision.13
9

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo,
28 ECAB 43 (1976).
10

See M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008). See Carl C. Green, Jr., 47 ECAB 737,
746 (1996) (six-month-old medical reports are reasonably current for purposes of wage-earning capacity
determination); Cf. Keith Hanselman, 42 ECAB 680 (1991) (two-year-old medical report and year-old work
restriction evaluation form were not reasonably current for wage-earning capacity determination); Anthony Pestana,
39 ECAB 980 (1988) (three-year-old medical evaluation is not reasonably current for wage-earning capacity
determination).
11

See Stanley B. Plotkin, supra note 7.

12

See supra note 10.

13

This case can be distinguished from M.A., 59 ECAB ___ (2008), where the Board found that the Office properly
determined the employee’s wage-earning capacity effective April 17, 2005 based on medical restrictions dated
May 1, 2000. In M.A., the employee’s attending physician continued to treat him and submitted periodic reports
through February 12, 2004 reaffirming the May 1, 2000 restrictions. In the instant case, there is no evidence that
Dr. Mar examined appellant after his May 6, 1994, when he provided the recommended restrictions upon which the
original February 1, 2000 wage-earning capacity determination was based nor did he reaffirm his original restrictions.
In fact, the record reflects that Dr. Mar moved his practice and appellant was unsuccessful in his attempts to locate
him for further treatment.

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CONCLUSION
The Board finds that the Office improperly denied modification of the February 1, 2000
wage-earning capacity determination, as the original decision was erroneous. The Board finds that
the Office did not meet its burden of proof in reducing appellant’s compensation benefits, because
it relied on outdated medical evidence to establish that he had the capacity to perform the selected
position of assistant manager -- truck terminal.14
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 10, 2009 is reversed.
Issued: June 23, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

The Board notes that the issue raised by appellant on appeal regarding his entitlement to reimbursement for his
last semester at college pursuant to the vocational rehabilitation plan is not before the Board.

6


United States Department of Labor
Employees, Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
MILITARY SEALIFT COMMAND,
Norfolk, VA, Employer
__________________________________________

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

Docket No. 15-0689
Issued: April 26, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2015 appellant, through counsel, filed a timely appeal from a
December 2, 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 this claim.
ISSUE
The issue is whether appellant has established a recurrence of disability, commencing
May 22, 2014 due to her accepted work injuries.
FACTUAL HISTORY
On May 3, 2013 appellant, then a 57-year-old utility worker, filed a traumatic injury
claim (Form CA-1) alleging that on May 1, 2013 she sustained a strain of the left hip adductor
1

5 U.S.C. § 8101 et seq.

muscle when she was using a buffer to shine the floor. She first received medical care on the
date of injury.
In a June 10, 2013 medical report, Dr. Leila Rhodes, Board-certified in internal medicine,
reported that she had previously treated appellant on May 6 and 28, 2013 for her condition which
commenced around April 29, 2013. She noted a history of groin strain in July 2012 and
diagnosed strain of left hip adductor muscle. Dr. Rhodes further stated that appellant was
incapacitated from April 29 through August 31, 2013.
By decision dated June 27, 2013, OWCP accepted the claim for iliofemoral sprain of hip
and sprain of hip and thigh unspecified.
Following the acceptance of her claim, appellant submitted a June 20, 2013 diagnostic
report from Dr. Greg Anderson, a Board-certified diagnostic radiologist, who reported that a
magnetic resonance imaging (MRI) scan of the left hip revealed bilateral parasymphyseal bone
marrow edema suggestive of osteitis pubis.
In a July 30, 2013 medical report, Dr. Rhodes noted review of the June 20, 2013 MRI
scan and diagnosed iliofemoral sprain of hip, unspecified sprain of thigh, and osteitis pubis.
In a December 9, 2013 medical report, Dr. L. Randall Mohler, a Board-certified
orthopedic surgeon, reported a history of groin pain in June 2012 which caused appellant to stop
work. Appellant returned to work in January 2013, but her symptoms were aggravated in
May 2013 causing her to again stop work. Dr. Mohler noted that appellant developed pain in her
groin and left hip while working and her symptoms were primarily aggravated by heavy lifting.
He noted review of the June 20, 2013 MRI scan and diagnosed osteitis pubis. Dr. Mohler stated
that appellant was not working, but would be ultimately released with unrestricted activity.
Appellant filed claims for compensation (Forms CA-7) for the period beginning June 16,
2013 and continuing. She received wage-loss compensation from June 16, 2013 through
January 29, 2014. On January 30, 2014 appellant returned to full-time regular-duty work with no
restrictions.
On June 12, 2014 appellant filed a notice of recurrence (Form CA-2a) alleging a
return/increase of disability as of May 22, 2014. She sought medical treatment on May 22, 2014
and stopped work on May 27, 2014. Appellant also filed CA-7 claims forms for compensation
beginning June 15, 2014 and continuing.
In a June 18, 2014 medical report, Dr. Hai-Yan Li, Board-certified in pain medicine,
reported that appellant complained of left hip and groin pain with a history of left groin
pain/strain and osteitis pubis. She diagnosed osteitis pubis and trochanteric bursitis.
In a June 20, 2014 attending physician’s report (Form CA-20), Dr. Li reported that
appellant’s pain began approximately two years ago when performing her job which entailed
lifting and pulling. She stated that physical examination was consistent with left trochanteric
bursitis and osteitis pubis. Dr. Li diagnosed osteitis pubis and noted the date of injury as
May 22, 2014. She checked the box marked “Yes” when asked if she believed that the condition
was caused or aggravated by the employment activity, stating that pain was caused by lifting and
2

repetitive pulling. Dr. Li restricted appellant from working and provided pubic symphysis and
trochanteric bursa injections.
By letter dated July 15, 2014, OWCP informed appellant that the evidence of record was
insufficient to support her recurrence claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
In medical reports dated May 14 to October 21, 2014, Dr. Li reported that appellant
sought treatment for chronic pain in the left lateral hip, bilateral groin, and pubic symphysis area.
The history and physical examination findings were most consistent with left trochanteric
bursitis and osteitis pubis. Appellant reported that complaints of pain began approximately two
years ago and she believed that the pain was caused by a job-related injury from lifting and
pulling. She further stated that the pain was aggravated by standing, sitting, and walking. Dr. Li
noted review of the June 20, 2013 MRI scan, which demonstrated bilateral parasymphyseal bone
marrow edema. She diagnosed left trochanteric bursitis, osteitis pubis, and adductor tendinitis.
Dr. Li restricted appellant from returning to work and provided her with multiple injections for
pain management.
In an undated letter, Dr. Li reported that appellant’s history and physical examination
findings were most consistent with left trochanteric bursitis and osteitis pubis which were
supported by diagnostic studies. She diagnosed osteitis pubis and trochanteric bursitis, which
she opined were sustained by performing job-related functions. Despite receiving physical
therapy and injections, appellant was unable to resume employment.
By decision dated December 2, 2014, OWCP denied appellant’s recurrence claim finding
that the medical evidence failed to establish that her alleged disability beginning June 15, 2014
was due to a material change/worsening of her accepted May 1, 2013 work-related conditions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.2 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force.3
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
3

Id.

3

injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.4
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that a claimant furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that, for each period of disability claimed, the disabling condition is causally related to the
employment injury, and supports that conclusion with medical reasoning.5 Where no such
rationale is present, the medical evidence is of diminished probative value.6
ANALYSIS
OWCP accepted appellant’s claim for iliofemoral hip sprain and sprain of hip and thigh
unspecified. Appellant stopped work on May 1, 2013 and returned to full duty without
restrictions on January 30, 2014. The issue is whether she has established a recurrence of
disability on or after May 22, 2014 causally related to her accepted May 1, 2013 injuries.
In her recurrence claim, appellant alleged that she became totally disabled on
May 22, 2014. A different question is presented, of course, where the triggering activity is itself
rash in light of claimant’s knowledge of his or her condition.7
In alleging a recurrence of disability, appellant has not alleged a change in her light-duty
job requirements. Instead, she attributed her inability to work to a change in the nature and
extent of her employment-related hip conditions. Appellant, therefore, has the burden of proof to
provide medical evidence to establish that she was disabled due to a worsening of her accepted
work-related conditions.8 However, she has failed to provide probative medical evidence
demonstrating total disability for this period of time due to her accepted conditions and failed to
provide a sufficiently rationalized medical opinion explaining a causal relationship between her
current conditions and her May 1, 2013 injury. The Board finds that appellant has not met her
burden of proof to establish her claim.
In medical reports dated May 14 to October 21, 2014, Dr. Li reported that appellant’s
pain began approximately two years ago when performing her job which entailed lifting and
pulling. She noted appellant’s treatment for chronic pain in the left lateral hip, bilateral groin,
and pubic symphysis area whose history and physical examination findings were most consistent
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
5

Ronald A. Eldridge, 53 ECAB 218 (2001).

6

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

7

Id. at § 13.11(a); see also John B. Knox, 42 ECAB 193 (1990).

8

D.L., Docket No. 13-1653 (issued November 22, 2013).

4

with left trochanteric bursitis and osteitis pubis. Based on physical examination and diagnostic
studies, Dr. Li diagnosed osteitis pubis and trochanteric bursitis, which she opined were
sustained by performing job related functions. Despite receiving physical therapy and injections,
appellant was unable to resume employment.
The Board finds that the opinion of Dr. Li is not well rationalized. Her reports fail to
provide sufficient medical rationale to establish total disability due to a recurrence. Appellant’s
claim was accepted for iliofemoral sprain of hip and sprain of hip and thigh unspecified. The
diagnoses of left trochanteric bursitis and osteitis pubis, however, have not been accepted as
compensable conditions. The Board notes that Dr. Li’s opinion does not support a spontaneous
recurrence of a hip sprain, but rather seems to suggest that appellant’s claim should be expanded
to include additional conditions. In any event, this opinion is insufficiently rationalized to
establish appellant’s claim.9 While Dr. Li diagnosed left trochanteric bursitis and osteitis pubis,
she failed to provide a sufficient explanation as to how these conditions were causally related to
the accepted May 1, 2013 employment injury. Nor did she provide adequate bridging evidence
to show a spontaneous worsening of the accepted conditions. Rather, Dr. Li correlated in general
terms that appellant’s conditions were caused by her job-related functions.10 She did not provide
a rationalized explanation as to why appellant could not work for the claimed periods as a result
of the May 1, 2013 employment injury. The Board has held that a medical opinion that is not
fortified by rationale is of diminished probative value.11
Dr. Li’s June 20, 2014 Form CA-20 provided a diagnosis of osteitis pubis as of
May 22, 2014. She checked the box marked “Yes” when asked if she believed that the condition
was caused or aggravated by the employment activity, stating that pain was caused by lifting and
repetitive pulling. The Board has held that an opinion on causal relationship which consists only
of a physician checking “Yes” on a medical form report without further explanation or rationale
is of diminished probative value. Moreover, it appears that Dr. Li is attributing appellant’s
medical conditions to an occupational injury produced by her work environment over a period
longer than a single workday or shift as she stated that pain was caused by lifting and repetitive
pulling.12 Her report does not provide support for a recurrence of disability.
While Dr. Li opined that appellant was off work during the specific dates claimed, she
failed to provide a fully rationalized explanation as to why appellant was disabled on those dates
due to her accepted conditions. As she fails to attribute disability to the accepted conditions of
iliofemoral sprain of hip and sprain of hip and thigh unspecified for the period beginning
June 15, 2014, her reports are insufficient to meet appellant’s burden of proof.13
9

L.G., Docket No. 11-142 (issued August 12, 2011).

10

J.H., Docket No. 14-775 (issues July 14, 2014).

11

Cecilia M. Corley, 56 ECAB 662 (2005).

12

A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
13

R.A., Docket No. 14-1327 (issued October 10, 2014).

5

The remaining medical evidence is also insufficient to establish appellant’s recurrence
claim. While Dr. Mohler’s December 9, 2013 report diagnosed osteitis pubis and noted that,
symptoms were primarily aggravated by heavy lifting, he failed to provide any opinion that this
condition was causally related to the May 1, 2013 employment injury.14 Dr. Anderson’s June 20,
2013 MRI scan provided diagnostic findings related to osteitis pubis yet failed to discuss
appellant’s employment and medical history with no opinion regarding the cause of her
conditions. The reports of Dr. Rhodes are also insufficient to meet appellant’s burden of proof as
the physician provided no opinion on causation pertaining to osteitis pubis. The Board has held
that medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.15 Thus, the reports are insufficient to meet appellant’s
burden of proof.16
Appellant did not submit any medical reports from a physician, which on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled as of
June 15, 2014 due to her accepted injury. She has failed to establish by the weight of the
reliable, probative, and substantial evidence, a change in the nature and extent of the injuryrelated condition resulting in her inability to perform her employment duties. As appellant has
not submitted any medical evidence showing that she sustained a recurrence of disability due to
her accepted employment injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to the OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability on or after May 22, 2014, causally related to her accepted employment injuries.

14

D.H., Docket No. 11-1739 (issued April 18, 2012).

15

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

16

W.P., Docket No. 13-1992 (issued September 10, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.17
Issued: April 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

17

James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, AMADOR RANGER STATION,
Pioneer, CA, Employer
__________________________________________

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

Docket No. 08-1392
Issued: January 13, 2009

Case Submitted on the Record

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

JURISDICTION
On April 11, 2008 appellant filed a timely appeal from a schedule award decision of the
Office of Workers’ Compensation Programs dated January 8, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination in this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has greater
than a 21 percent right lower extremity impairment for which he received a schedule award.

FACTUAL HISTORY
On September 18, 1988 appellant, then a 42-year-old forester/firefighter, sustained a right
knee injury in the course of his federal duties. He underwent multiple surgical procedures.1 On
February 15, 2007 he filed a schedule award claim. By letter dated March 13, 2007, the Office
asked that he provide a current medical report that contained a description of his permanent
impairment in accordance with the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2
On April 9, 2007 Dr. David Char, an attending Board-certified physiatrist, noted
appellant’s medical history and complaints of frequent right knee pain. He provided findings on
physical examination and diagnosed chronic right knee pain related to moderate to severe
tricompartmental arthritis, status post multiple arthroscopic surgeries with residual chronic pain,
poor tolerance/endurance for standing, weight bearing, and ambulation; chronic pain to the
tarsometatarsal joints, mostly related to arthritis and degenerative joint disease; and bilateral
neuropathy and decreased sensation to the foot, unknown etiology. In an attached impairment
evaluation, Dr. Char concluded that appellant had a 19 percent whole person impairment based
on his right knee findings.
In a June 5, 2007 report, an Office medical adviser reviewed Dr. Char’s report and
recommended that additional information be obtained. In a supplemental report dated October 4,
2004, Dr. Char again concluded that appellant had a 19 percent whole person impairment due to
his right knee condition.
On November 1, 2007 the Office referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a November 21, 2007 report,
Dr. Swartz noted his review of the medical record. He agreed with the diagnosis found in the
statement of accepted facts, right knee internal derangement, and advised that, on examination of
the right lower extremity, appellant had laxity of the cruciate ligament with mild instability and
crepitus and atrophy of one centimeter in the right thigh and right calf. Dr. Swartz advised that
maximum medical improvement had been reached and that appellant would eventually require a
total knee arthroplasty. By report dated December 18, 2007, an Office medical adviser reviewed
the medical record and concluded that appellant had a 21 percent impairment of the right lower
extremity.
By decision dated January 8, 2008, appellant was granted a schedule award for a 21
percent impairment of the right lower extremity, for a total of 60.48 weeks, to run from April 9,
2007 to June 5, 2008.

1

These included procedures on September 20 and October 3, 1988 to repair torn medial and anterior collateral
ligaments, a February 27, 1990 flexion contracture repair, a February 18, 2001 debridement and a February 28, 2006
removal of loose bodies with abrasion chondroplasty of the patellofemoral joint and the medial femoral condyle.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulations,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the Office and the Board has concurred in such adoption, as
an appropriate standard for evaluating schedule losses.5 Chapter 17 provides the framework for
assessing lower extremity impairments.6
Office procedures provide that the attending physician should make the evaluation of
permanent impairment whenever possible and that the Office may choose to request an opinion
from a second opinion specialist when the existing medical evidence, including that obtained
from an attending physician, is inadequate, and a detailed, comprehensive report and opinion is
needed from a specialist in the appropriate field.7 The procedures contemplate that, after
obtaining all necessary medical evidence, the file should be routed to an Office medical adviser
for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment
specified, especially when there is more than one evaluation of the impairment present.8
ANALYSIS
The Board finds that appellant is entitled to a schedule award for a 22 percent right lower
extremity impairment. Section 17.2j of the A.M.A., Guides provides that the evaluating
physician must determine whether diagnostic or examination criteria best describes the
impairment of a specific individual and should, in general, use only one approach for each
anatomic part, taking into consideration the exceptions found in Figure 17-2. The A.M.A.,
Guides further provides that the clinician may assess the impairment using Table 17-33.9
Dr. Char, an attending physiatrist, advised that appellant had a 19 percent whole person
impairment due to his employment-related knee injury. However, his opinion did not conform
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

A.M.A., Guides, supra note 2 at 523-64.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c) (August 2004); Jennifer A. Guillary, 57 ECAB 485 (2005).
8

Federal (FECA) Procedure Manual, id. at Chapter 2.808.6(d); Frantz Ghassan, 57 ECAB 349 (2006).

9

A.M.A., Guides, supra note 2 at 526, 548; see Tara L. Hein, 56 ECAB 431 (2005).

3

with the A.M.A., Guides. A schedule award is not payable for an impairment of the whole
person.10 Although Dr. Char made some general reference to the A.M.A., Guides in his
April 10, 2007 report, he did explain how he reached his impairment rating under the protocols
of Chapter 17. Thus, it is unclear how he arrived at his impairment rating. For this reason, it is
of diminished probative value.11
Dr. Swartz, an orthopedic surgeon who provided a second opinion evaluation for the
Office, did not provide an impairment rating. The Office properly referred the medical record to
an Office medical adviser for an opinion on the percentage of impairment in accordance with the
A.M.A., Guides.12 In a December 18, 2007 report, the Office medical adviser determined that
appellant would be entitled to a greater lower extremity impairment rating using the diagnosisbased method described in Table 17-33 of the A.M.A., Guides. He found that appellant had 10
percent impairment based on his partial medial and lateral meniscectomy procedures.13 The
Office medical adviser further found that, based on the medical examination evidence, appellant
also had laxity of his right knee and awarded an additional seven percent.14 Table 17-2 of the
A.M.A., Guides provides that impairments found under Table 17-33 can be combined with
peripheral nerve injuries.15 In this case, following review of the medical evidence, the Office
medical adviser rated appellant’s pain impairment under Table 16-10 as Grade 2 or 80 percent,
identified the femoral nerve under Table 17-37 which provides a maximum of a 7 percent
impairment, and properly multiplied the two to find a 5.6 percent impairment which, when
rounded up, equaled a 6 percent peripheral nerve impairment.16 The Office medical adviser
concluded that, under the Combined Values Chart of the A.M.A., Guides, appellant had 21
percent right upper extremity impairment. There is no evidence of greater impairment.
CONCLUSION
The Board finds that appellant has no more than 21 percent right lower extremity
impairment.17

10

Brent A. Barnes, 56 ECAB 336 (2005).

11

Linda Beale, 57 ECAB 429 (2006).

12

Frantz Ghassan, supra note 8.

13

A.M.A., Guides, supra note 2 at 546.

14

Id.

15

Id. at 526.

16

Id. at 482, 552.

17

A claimant retains the right to file a claim for an increased schedule award based on new exposure or on
medical evidence indicating that the progression of an employment-related condition, without new exposure to
employment factors, has resulted in a greater permanent impairment than previously calculated. Tommy R. Martin,
56 ECAB 273 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2008 be affirmed.
Issued: January 13, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHA VETERANS
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1979
Issued: June 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 22, 2013 appellant, through his attorney, filed a timely appeal from an
August 8, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
bilateral knee osteoarthritis due to factors of his federal employment.

1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

5 U.S.C. § 8101 et seq.

On appeal, counsel contents that the impartial medical examiner found that appellant’s
employment activities contributed to his diagnosed condition and was employment related.
FACTUAL HISTORY
This case has previously been before the Board. On January 29, 2000 appellant, then a
50-year-old housekeeper aid, filed an occupational disease claim alleging that he developed
bilateral aggravation of degenerative joint disease and torn menisci in his knees due to his
employment activities.
In an April 8, 2013 decision,3 the Board found an unresolved conflict of medical opinion
evidence between appellant’s physician, Dr. Richard Zamarin, a Board-certified orthopedic
surgeon, and Dr. Bong S. Lee, a second opinion physician and Board-certified orthopedic
surgeon. They disagreed as to whether appellant’s knee condition was causally related to his
accepted employment activities. Dr. Zamarin advised that appellant’s condition was aggravated
by his work activities as a house keeping aide while Dr. Lee attributed his condition to the aging
process and not to work factors. The Board remanded for OWCP to refer the case to an impartial
medical examiner. The facts of the case as set forth in the Board’s prior decision are adopted
herein by reference.
On July 11, 2013 OWCP referred appellant, a statement of accepted facts and a list of
questions to Dr. Andrew J. Collier, a Board-certified orthopedic surgeon, for an impartial
medical examination. It asked Dr. Collier to provide all the diagnoses found, any work-related
factors of disability, any preexisting disability and his prognosis and recommendations for
medical treatment. OWCP also asked that he describe any work limitations or any restrictions
attributable to preexisting conditions. It provided Dr. Collier with a statement noting that
Dr. Lee found that appellant’s bilateral knee arthritis was not the result of any job activities while
Dr. Zamarin opined that appellant’s degenerative joint disease in both knees was aggravated by
his work activities such as constant standing and lifting.
Dr. Collier examined appellant on July 24, 2013 and reviewed his work history,
employment duties and history of knee pain. Appellant described his current condition and
treatment with over-the-counter medication. Dr. Collier noted that appellant had marked
bilateral genu varum with slight hyperextension on the left. He stated that both knees
demonstrated minimal synovitis, no effusion, erythema or warmth with limited range of motion.
Dr. Collier found marked varus, medial osteophytes, medial collapse, negative McMurray’s,
Lachman and Drawer signs. He stated that appellant had a waddling gait with his cane.
Dr. Collier diagnosed severe degenerative arthritis in both knees. He stated:
“[Appellant] had no work-related injuries, traumas, etc., to cause this condition.
The most likely cause of his symptomatology is his weight and obesity. Every
step [appellant] takes of his life does contribute to his arthritis. Hence, his
work-related activities would add to his condition but are not the sole cause of his
condition. It does play a minor role. [Appellant] does have severe degenerative
3

Docket No. 13-206 (issued April 8, 2013).

2

arthritis in both knees, again not caused by his work or work activities. This is
not industrial.”
Dr. Collier recommended bilateral total knee replacements and stated that appellant had
significant restrictions due to his degenerative arthritis.
By decision dated August 8, 2013, OWCP denied appellant’s claim, finding that
Dr. Collier determined that appellant’s severe degenerative arthritis in both knees was due to his
weight and not his work activities.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”4 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.5
Questions to physicians should address all unresolved medical issues and the claims
examiner should provide the physician with OWCP’s definition of direct causation and
aggravation.6 The aggravation of a preexisting condition is as compensable as an original or new
injury and the resulting disability is compensable regardless of the degree of such aggravation.7
If the referee specialist submits an opinion which is equivocal, lacks rationale or fails to address

4

20 C.F.R. § 10.5(q).

5

Lourdes Harris, 45 ECAB 545, 547 (1994).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development Claims, Chapter 2.800.8.c(4)
(November 2004). Aggravation occurs if a preexisting condition is worsened, either temporarily or permanently, by
an injury arising in the course of employment. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2b (January 2013).
7

J.O., Docket No. 10-785 (issued September 21, 2011); P.M., Docket No. 06-1813 (issued February 28, 2007);
John D. Ayers, 48 ECAB 440 (1997); Henry Klaus, 9 ECAB 333 (1957); Charles A. Duffy, 6 ECAB 470,
471 (1954).

3

the specified medical issues or conflict, the claims examiner should seek clarification or further
rationale from that physician.8
ANALYSIS
The Board previously found that there was a conflict of medical opinion regarding
whether appellant’s employment activities caused or aggravated his underlying bilateral knee
osteoarthritis. OWCP referred him for an impartial medical examination to Dr. Collier.
In a July 24, 2013 report, Dr. Collier provided a proper history of injury and listed
findings on examination. He diagnosed severe degenerative arthritis in both knees. Dr. Collier
stated:
“Every step [appellant] takes of his life does contribute to his arthritis. Hence, his
work-related activities would add to his condition but are not the sole cause of his
condition. It does play a minor role.”
The Board finds that Dr. Collier’s opinion on causal relationship does not resolve the
underlying conflict of whether appellant’s employment aggravated his preexisting condition.
OWCP did not provide him with the definition of an aggravation or contribution. It did not ask
that Dr. Collier address any aggravation of an underlying condition in the questions provided
him. As a result of this deficiency, Dr. Collier did not adequately address Dr. Zarmarin’s
conclusions that appellant’s bilateral knee condition was aggravated by his work activities as a
housekeeping aide. Dr. Bong related the condition to aging without contribution by work
factors.
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. Unless this procedure is
carried out by OWCP, the intent of section 8123(a) of FECA will be circumvented when the
impartial specialist’s medical report is insufficient to resolve the conflict of medical evidence.9
OWCP should request clarification from Dr. Collier on whether appellant sustained an
employment-related aggravation of his preexisting osteoarthritis and, if so, whether any
aggravation was temporary or permanent. It should provide the physician with the definitions
for aggravation and contribution for his reference. The Board will set aside the August 8, 2013
decision and remand the case for further medical development to be followed by a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11.e (October 2010).
9

Patricia E. McNally, Docket No. 05-338 (issued May 5, 2005).

4

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.10
Issued: June 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

10

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May 16, 2014.

5