United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 18-1585
Issued: March 22, 2019

Case Submitted on the Record

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

JURISDICTION
On August 14, 2018 appellant, through counsel, filed a timely appeal from a July 24, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his peripheral
polyneuropathy was causally related to, or aggravated by, the accepted factors of his federal
employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 4, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced pain and difficulty when walking as a result of
repetitively standing, climbing, driving, and walking a minimum of eight hours a day while in the
performance of duty. He noted that he first became aware of his claimed condition on October 8,
2013 and realized it resulted from his federal employment duties on April 23, 2015. Appellant did
not stop work.
Appellant received medical treatment from Dr. David E. Hoffman, a Board-certified
neurologist. In an October 8, 2013 report, Dr. Hoffman indicated that he was treating appellant
for paresthesia in both feet. He noted that appellant worked as a mail carrier and reported abnormal
neurological examination of appellant’s bilateral lower extremities. Dr. Hoffman diagnosed
peripheral polyneuropathy and opined that it was aggravated by being on his feet virtually eight
hours a day, five days a week.” He further reported that walking had been an aggravating factor
regarding the symptomatic polyneuropathy.
Dr. Hoffman continued to treat appellant. In reports dated October 13, 2014 to July 7,
2015, he noted that electrodiagnostic testing had confirmed that appellant had a length-dependent,
predominantly axonal, sensorimotor polyneuropathy.4 Dr. Hoffman clarified that appellant’s
polyneuropathy was not caused by his employment, but his work duties significantly aggravated
symptoms related to this preexisting condition.
In a June 18, 2015 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested information.
Appellant subsequently submitted a copy of the October 8, 2013 EMG/NCV study referred
to by Dr. Hoffman, a July 7, 2015 letter from Dr. Hoffman, and a copy of Dr. Hoffman’s
October 13, 2014 report.

3

Docket No. 17-0091 (issued July 25, 2017).

4
An October 8, 2013 electromyography (EMG) and nerve conductive velocity (NCV) study showed abnormal
findings and demonstrated evidence of a length-dependent, predominantly axonal sensorimotor polyneuropathy.

2

By decision dated August 5, 2015, OWCP denied appellant’s claim. It accepted as factual
his duties as a letter carrier and a diagnosis of peripheral neuropathy, but denied his claim because
the medical evidence of record was insufficient to establish that appellant’s medical condition had
been caused or aggravated by factors of his federal employment.
On September 29, 2015 appellant requested reconsideration and submitted additional
medical evidence. In a September 9, 2015 letter, Dr. Hoffman reiterated that walking had not
caused appellant’s neurological condition, but that prolonged walking was more painful due to his
neurological condition. By decision dated December 23, 2015, OWCP denied modification of its
August 5, 2015 decision.
On May 23, 2016 appellant, through counsel, requested reconsideration.
Appellant subsequently submitted a January 26, 2016 letter, wherein Dr. Hoffman related
that appellant’s disability from his neuropathy was significantly contributed to by the imperative
of having to be on his feet several hours a day delivering mail. Dr. Hoffman again reiterated, in a
June 27, 2016 letter, that the repetitive walking by appellant on his postal route aggravated his
preexisting condition, from a symptomatic point of view only.
By decision dated August 19, 2016, OWCP denied modification of its December 23, 2015
decision.
Appellant appealed to the Board. By decision dated July 25, 2017, the Board affirmed the
August 19, 2016 decision. The Board held that the medical evidence then of record was
insufficient to establish that appellant’s federal employment duties had caused or contributed to
his diagnosed peripheral polyneuropathy. The Board noted that Dr. Hoffman’s reports lacked
medical rationale sufficient to explain how appellant’s employment duties physiologically caused
or contributed to his polyneuropathy condition.
On May 8, 2018 appellant, through counsel, requested reconsideration.
In an April 24, 2018 report, Dr. Neil Allen, Board-certified in internal medicine and
neurology, indicated that he reviewed appellant’s medical records and contacted him for a
statement to determine whether causal relationship existed between appellant’s bilateral foot
injuries and his work-related trauma. He described that appellant worked as a letter carrier and
related appellant’s complaints of gradually worsening pain, numbness, and tingling in both his
feet. Dr. Allen noted that an October 8, 2013 EMG study of the bilateral lower extremity revealed
evidence of sensorimotor polyneuropathy. He opined that appellant’s bilateral foot condition had
been directly aggravated by the physical demands of his position. Dr. Allen explained that, as a
letter carrier, appellant was required to stand and walk for eight or more hours per day and operate
a vehicle daily. He referenced The Merck Manual (13th Edition, p. 1385), which related that direct
pressure and cold temperatures were an “exacerbating [aggravating] factor in polyneuropathy.”
Dr. Allen explained “that touching an area affected by polyneuropathy with the force equal to
one’s body weight, hundreds if not thousands of times per day, to walk the route of letter carrier
would, logically, aggravate the symptoms related to a polyneuropathy.” He opined that appellant’s
accepted duties in the position of a letter carrier required him to place pressure on his lower
extremity thousands of times per day in, at times, frigid conditions and that these exposures led to

3

the aggravation of his polyneuropathy. Dr. Allen concluded that the daily prolonged standing and
walking required on a day-to-day basis by appellant’s letter carrier position led to the aggravation
of polyneuropathy.
By decision dated July 24, 2018, OWCP denied modification.5 It found that Dr. Allen’s
April 24, 2018 report did not contain a well-rationalized medical opinion explaining how
appellant’s federal employment aggravated his bilateral lower extremity condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the

5
Although the July 24, 2018 OWCP decision denied modification of the Board’s July 25, 2017 decision, OWCP is
not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject matter
appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
Although the July 25, 2017 Board decision was the last merit decision, OWCP’s August 19, 2016 decision is the
appropriate subject of possible modification by OWCP
6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

10

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

relationship between the diagnosed condition and the specific employment factors identified by
the employee.11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 19, 2016 decision because the Board
has already considered this evidence in its July 25, 2017 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.12
In support of his May 8, 2018 reconsideration request appellant subsequently submitted an
April 24, 2018 report by Dr. Allen who opined that the daily prolonged standing and walking
required by the accepted duties, on a day-to-day basis, by appellant’s letter carrier position led to
the aggravation of polyneuropathy. Dr. Allen noted that his report was prepared to provide a
rationalized medical opinion in order to establish whether causal relationship exists between
appellant’s bilateral foot injuries and work-related trauma sustained on and prior to
October 8, 2013. In preparation of the report, he reviewed appellant’s medical records and
contacted him for a statement regarding his employment duties. Dr. Allen reviewed appellant’s
medical records and noted that his treating physicians had diagnosed bilateral polyneuropathy,
which had been confirmed by electrodiagnostic studies he had also reviewed. He also noted that
appellant’s medical records were consistent with his physical complaints at the time he prepared
his report and that his treating physician, Dr. Hoffman, had also noted that he related that cold
temperatures and excessive walking caused an increase in symptomatology. Dr. Allen opined that
touching an area affected by polyneuropathy with the force equal to one’s body weight, hundreds
if not thousands of times per day, to walk the route of letter carrier would aggravate the symptoms
related to a polyneuropathy. He explained that appellant’s accepted duties in the position of a
letter carrier required him to place pressure on his lower extremity thousands of times per day in,
at times, frigid conditions and that these exposures led to the aggravation of his polyneuropathy.
While the April 24, 2018 report from Dr. Allen is not completely rationalized, it is
consistent in finding that appellant’s accepted duties of a letter carrier, which included prolonged
standing and walking, often in frigid conditions, were sufficient to have aggravated his preexisting
condition of polyneuropathy and now provides an explanation of the process by which the accepted
employment duties can aggravate the condition of polyneuropathy. The Board thus finds that the
medical opinion of Dr. Allen is based upon a complete factual history and medical background of
appellant, is provided with reasonable medical certainty, and provides a sufficient level of medical
rationale explaining the nature of the relationship between the diagnosed condition and the
accepted employment factors.13 The Board further finds that the medical opinion of Dr. Allen is
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

See K.K., Docket No. 17-1061 (issued July 25, 2018). The Board will, therefore, not review the evidence
addressed in the prior appeal.
13

See E.C., Docket No. 17-1765 (issued January 24, 2018).

5

accurately premised upon the physical examinations conducted by Dr. Hoffman and that, under
the facts as set forth in this case, a physical examination is unnecessary for the limited purpose of
providing a physiologic explanation of whether the accepted employment factors were sufficient
to have aggravated appellant’s diagnosed medical condition.14 Finally, the evidence of record is
supportive of causal relationship and is not contradicted by any substantial medical or factual
evidence of record.
It is well established that proceedings under FECA are not adversarial in nature and, while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15 Thus, while
Dr. Allen’s report is insufficient to meet appellant’s burden of proof to establish this claim, it raises
an inference of causal relationship between the accepted factors of employment and the diagnosed
condition and is sufficient to require further development of the medical record.16
On remand OWCP shall develop the claim by referring appellant and the medical evidence
of record to an appropriate specialist to obtain a rationalized opinion regarding whether his
condition of polyneuropathy has been aggravated by the accepted factors of his federal
employment.17 After such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See W.C., Docket No. 18-1386 (issued January 22, 2019); Sherry Shreiber, Docket No. 04-1966 (issued
January 24, 2005); Melvina Jackson, 38 ECAB 443, 447-52 (1987) (finding that in a situation where the diagnosis is
clearly established and the issue is whether factors of employment caused or aggravated the diagnosed condition, a
physical examination would add little probative value to a medical opinion on causal relationship.)
15

See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

16

See W.W., Docket No. 15-1130 (issued August 7, 2015); Phillip L. Barnes, 55 ECAB 426 (2004); John J.
Carlone, 41 ECAB 354 (1989).
17

M.K., Docket No. 17-1140 (issued October 18, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 22, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 17-1260
Issued: August 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 19, 2017 appellant, through counsel, filed a timely appeal from a March 21, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.3

1

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

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP issued its March 21, 2107 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish that modification of
OWCP’s July 25, 2016 loss of wage-earning capacity (LWEC) determination is warranted.
FACTUAL HISTORY
On April 29, 2005 appellant, then a 55-year-old flat sorter clerk, filed a traumatic injury
claim (Form CA-1) alleging that, on April 26, 2005, she felt pain in her left knee as she turned
after picking up a tub of mail in the performance of duty. She stopped work on April 29, 2005 and
returned to work the next day on April 30, 2005. OWCP accepted the claim for left knee strain,
posterior horn left medial meniscus tear, and osteoarthritis of the left knee and paid appellant
intermittent compensation benefits on the supplemental rolls as of July 29, 2005.
Appellant underwent an OWCP-authorized left knee arthroscopy on June 21, 2005 and
arthroscopy of the left knee and partial posterior horn medial meniscectomy on July 26, 2006,
which were performed by Dr. Thomas M. Matelic, a Board-certified orthopedic surgeon. On
September 5, 2006 Dr. Matelic performed a left total knee arthroplasty and on January 4, 2007 he
performed a left knee manipulation under anesthesia.
Appellant returned to limited-duty work for six hours per day on February 14, 2007.
Effective March 18, 2007, she began performing sedentary work on a full-time basis. Effective
July 21, 2007, appellant performed limited-duty work as a modified flat sorting machine operator.
By decision dated October 12, 2007, OWCP determined that the modified flat sorting machine
operator position appellant had performed since July 21, 2007 reasonably and fairly represented
her wage-earning capacity and she had no loss of wage-earning capacity.
In a January 22, 2010 report and work capacity evaluation, Dr. Michael E. Holda, a Boardcertified orthopedic surgeon and OWCP referral physician,4 related that appellant was permanently
restricted to sedentary work.
Appellant continued to perform limited-duty work until June 26, 2010, when she stopped
work as the employing establishment no longer had work available within her restrictions.
In an August 2, 2010 letter, OWCP requested that Dr. Gregory J. Golladay, appellant’s
attending physician and a Board-certified orthopedic surgeon, review the statement of accepted
facts and provide an opinion as to whether appellant had any residuals from her accepted
conditions. Dr. Golladay was also asked whether she was capable of performing the full duties of
her date-of-injury position as a flat sorter clerk with or without restrictions.
In a September 20, 2010 progress note, Dr. Golladay opined that appellant had to work in
a sedentary capacity. He further indicated that this restriction had been consistent over the last
couple of years. In his September 20, 2010 duty status report, Dr. Golladay noted that appellant
had permanent sedentary restrictions as of May 1, 2007.

4

Dr. Holda performed an impairment evaluation of appellant’s left knee

2

In a February 12, 2011 report, Dr. Emmanuel N. Obianwu, a Board-certified orthopedic
surgeon, opined that appellant was permanently restricted to sedentary tasks with a lifting
restriction.5
On February 24, 2011 OWCP referred appellant to vocational rehabilitation services to
assist her in returning to work. It noted that she was capable of performing sedentary work.
On March 1, 2011 vocational rehabilitation services were initiated by a vocational
rehabilitation counselor. In his March 11, 2011 initial vocational assessment, the vocational
rehabilitation counselor noted appellant’s employment history and determined that she had
transferable skills in sales, customer service, telephone work, and bench work type of positions.
He noted that she did not have a high school diploma or specific vocational skills, which translated
to a specific, existing career opportunity.
On April 21, 2011 OWCP advised appellant that the employing establishment was unable
to identify a job which met her restrictions.
Appellant was scheduled for vocational testing with Dr. Barbara Homrich, PhD, a licensed
clinical psychologist. Dr. Homrich evaluated appellant on May 20 and 21, 2011 for psychological,
neuropsychological, and vocational testing. In her May 21, 2011 report, she opined that
appellant’s current emotional state was a manifestation of compounded grief and loss issues related
to the loss of her employment of 20 plus years in the employing establishment and the consequent
physical inabilities affecting her otherwise socially active lifestyle. Dr. Homrich indicated that
appellant was within an average range of intelligence. However, a deeper look at appellant’s
general academic achievement abilities indicated marked deficiencies. Dr. Homrich noted that
learning disabilities involved difficulties in developing skills in reading (most commonly), writing,
listening, speaking, reasoning, spelling, and math. She indicated that, consistent with the literature,
appellant appeared to perform best on tasks requiring holistic, right brain, simultaneous processing,
and worse on those requiring sequential processing, which was expressed in difficulties with
planning, reading, and numerical ability. Essentially, this indicated a poorly functioning executive
ability in which appellant experienced difficulty attending to stimuli while simultaneously
performing other mental tasks. Dr. Homrich indicated that appellant demonstrated the capacity to
learn new skills, and a genuine willingness to adapt within a new working environment. She
further indicated that appellant’s elevated symptoms of depression and anxiety would likely remit
with increased social involvement, meaningful employment, and regained feelings of self-worth
and productivity.
In a July 30, 2011 report, the vocational rehabilitation counselor summarized the results of
Dr. Homrich’s report. He also administered a wide range achievement test in response to
appellant’s report of longstanding problems with short-term memory and learning. The vocational
rehabilitation counselor indicated that a simple repetitive job with only a few different tasks would
be appellant’s most successful job choice. Various testing, including a Career Assessment
Inventory, Weschler’s Adult Intelligence Scales, and Sheeban Disability Scale, were also

5
Dr. Obainwu was selected to resolve a conflict in medical opinion regarding the permanent partial impairment of
appellant’s left lower extremity.

3

performed. The vocational rehabilitation counselor also noted that Dr. Obianwu had provided
work restrictions which indicated that appellant could work eight hours a day in a sedentary job.
In March 2012, the vocational rehabilitation counselor completed a job classification form
(OWCP-66) for the position of ticket sales and mail clerk (private industry) from the Department
of Labor’s Dictionary of Occupational Titles. The positions were listed as sedentary and within
appellant’s vocational and physical abilities.
On April 13, 2012 appellant indicated that her disability retirement had been approved. On
June 28, 2012 she retroactively elected FECA benefits, effective April 26, 2005.
In an October 8, 2012 report, Dr. Golladay advised that appellant could return to work with
permanent sedentary restrictions up to eight hours a day. She was restricted to lifting no more than
50 pounds and she should avoid kneeling, stooping, ladders, and stairs.
In an October 9, 2012 report, Dr. Thomas G. Akre, an osteopath and OWCP referral
physician, indicated that appellant had a failed left total knee replacement with ankyloses and
secondary complex regional pain syndrome and possible malrotation of knee replacement. He
indicated that revision knee replacement was indicated. Dr. Akre opined that appellant could
continue with permanent sedentary work restrictions with occasional walking and a 10-pound
weight limit.
In a January 2, 2013 report, Dr. Golladay agreed with Dr. Akre’s permanent work
restrictions of a sit-down job with occasional walking and a 10-pound weight limit. He opined,
however, that appellant did not require a revision knee replacement as her knee could be rotated.
In a March 21, 2013 letter, OWCP advised appellant that the position of ticket seller or a
similar position was suitable to her medical and vocational limitations. She was further advised
that she would receive 90 days of placement assistance to help her locate work in this position.
OWPC indicated that appellant’s wage-loss compensation benefits would be reduced based upon
the salary of a ticket seller or similar job at the end of the 90-day placement assistance period.
Following the 90-day placement assistance period, vocational rehabilitation services were
extended until the conclusion on April 14, 2015. While appellant underwent on-the-job training
as a ticket seller, she was unable to secure work during the placement assistance period.
An updated labor market survey dated April 21, 2015 identified the positions of
receptionist, customer service representative, and cashier as being medically and vocationally
appropriate for appellant’s accepted work-related conditions. The positions were also noted to be
reasonably available within appellant’s commuting area.
In May 11, 2015 and June 6, 2016 reports, Dr. Thomas M. Matelic, a Board-certified
orthopedic surgeon, reported that appellant’s continued problems with her left knee were related
to the total knee arthroplasty which was a result of and directly related to work injury that she
sustained. He noted that no further surgery was indicated. In a June 10, 2016 note, Dr. Matelic
advised that appellant had permanent restrictions of sedentary work only with lifting no greater
than 10 pounds.

4

Updated CA-66 forms for the targeted positions of customer service representative and
cashier were provided. The customer service representative position, DOT # 239.362-014, was
noted as having alternative titles of adjustment clerk, application clerk, order clerk, outside contact
clerk, and service representative. The job description indicated that a customer service
representative would interview applicants and record interview information into a computer for
water, gas, electric, telephone, or cable television system service; talk with customers by telephone
or in person and receive orders for installation, turn-on, discontinuance, or change in service; fill
out contract forms, determine charges for service requested, collect deposits, prepare change of
address records, and issue discontinuance orders, using computer; may solicit sale of new or
additional services; may adjust complaints concerning billing or service rendered, refer complaints
of service failures to designated departments for investigation; may visit customers at their place
of residence to investigate conditions preventing completion of service-connection orders and to
obtain contract and deposit when service is being used without contract; and may discuss cable
television equipment operation with customer over telephone to explain equipment usage and to
troubleshoot equipment problems. The physical requirements of the customer service
representative was noted as sedentary work with no lifting greater than 10 pounds, no climbing,
balancing, stooping, kneeling, crouching, crawling, occasional reaching, handling, frequent
fingering, no feeling, constant talking, and hearing. The vocational rehabilitation counselor
indicated that the specific vocational preparation of 6 to 12 months was met based on appellant’s
past experience as a grocery clerk/cashier and a residential property manager prior to joining the
employing establishment. The position paid a weekly wage of $340.00 and was found to be
performed in sufficient numbers to make it reasonably available to appellant within her commuting
area.
On June 22, 2016 OWCP informed appellant of its proposed notice of reduction of her
compensation benefits based on her capacity to earn wages as a customer service representative,
DOT # 239.362-014, at the rate of $340.00 per week. Appellant was afforded 30 days to submit
any evidence or argument for any disagreement with the proposed reduction notice.
In a July 25, 2016 report, Dr. Matelic continued to opine that appellant had permanent
restrictions of sedentary work only with lifting no greater than 10 pounds.
By decision dated July 25, 2016, OWCP reduced appellant’s compensation, effective
July 26, 2016, after determining that she had the capacity to earn wages of $340.00 per week as a
customer service representative. It applied the formula set forth in Albert C. Shadrick6 in
calculating her wage-earning capacity.
On August 1, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The telephonic hearing took place on February 17, 2017. Counsel
argued that appellant’s life-long learning disability was not detected when a transferable skills
analysis was done. Accordingly, counsel argued that the customer service representative position,
which involved dealing with customers and resolving problems, was not suitable for appellant.
Evidence received included a February 28, 2017 cover letter from appellant’s counsel and
a duplicative copy of Dr. Homrich’s May 21, 2011psychological evaluation.

6

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

5

In an August 9, 2016 report Dr. Matelic continued to opine that appellant’s condition had
not changed and no further surgery was indicated. He indicated that appellant had the same
permanent restrictions.
By decision dated March 21, 2017, an OWCP hearing representative denied modification
of the July 25, 2016 wage-earning capacity determination. He found that an evaluation of
Dr. Homrich’s report did not establish a lack of appellant’s vocational ability to be gainfully
employed as a customer service representative. Thus, there was no error in the original
determination. There was also no evidence which indicated that the selected position was not
vocationally or medically suitable to appellant.
LEGAL PRECEDENT
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, his or her wage-earning capacity is determined with due
regard to the nature of her injury, degree of physical impairment, usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect their wage-earning capacity in their disabled condition.7 Wageearning capacity is a measure of the employee’s ability to earn wages in the open labor market
under normal employment conditions.8 The job selected for determining wage-earning capacity
must be a job reasonably available in the general labor market in the commuting area in which the
employee lives.9
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.10 The burden of proof is on the
party attempting to show a modification of the loss of wage-earning capacity determination.11
ANALYSIS
The Board finds this case is not in posture for decision.
Appellant has not alleged a change in the nature and extent of her injury-related condition
or that she had been retrained or otherwise vocationally rehabilitated. Instead, through counsel,

7

E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a).

8

Albert L. Poe, 37 ECAB 684, 690 (1986).

9

Id.

10

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

11

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

6

she contended that Dr. Homrich’s May 21, 2011 report established that the selected position of
customer service representative was not suitable.
In her May 21, 2011 report, Dr. Homrich opined, in pertinent part, that appellant’s learning
disabilities involved difficulties in reading, writing, listening, speaking, reasoning, spelling, and
math. Essentially, this related to appellant having a poorly functioning executive ability to attend
to stimuli while simultaneously performing other mental tasks. Dr. Homrich indicated that
appellant appeared to perform best on tasks which required holistic, right brain, simultaneous
processing, and worse on those tasks which required sequential processing, such as planning,
reading, and numerical ability. Appellant also demonstrated the capacity to learn new skills and a
willingness to adapt within a new working environment. The vocational rehabilitation counselor
found that the specific vocational preparation of 6 to12 months of the selected customer service
representative position was satisfied and the position was vocationally suitable based on
appellant’s prior work experience as a grocery clerk/cashier and as a residential proper manager
prior to working for the employing establishment.
The position description of the selected customer service representative position indicates
that appellant not only would not only interview applicants and record information into a computer,
but would also determine charges for service requested, collect deposits, prepare change of address
records, and issue discontinuance orders, using a computer. Additionally, appellant may be
involved in other duties which involved sales, complaints concerning billing or service rendered,
investigation into conditions which prevented completion of service-connection orders, and having
to obtain contract and deposit when service was being used without contract. She may also have
to discuss and explain equipment usage and to troubleshoot equipment problems. Dr. Homrich
specifically opined that appellant had a poorly functioning executive ability to attend to stimuli
while simultaneously performing other mental tasks. She also did not do well on tasks which
required sequential processing, such as planning, reading, and numerical ability.
OWCP procedures provide that in assessing an employee’s ability to perform in a
constructed position, if the evidence is unclear, equivocal, or if the evidence is old enough to be
considered stale (generally greater than eighteen months old), the claims examiner should seek
clarification from the attending physician, second opinion, or referee specialist as appropriate.12
Dr. Homrich’s 2011 report required clarification as to whether appellant could actually perform
the duties of the constructed customer service position, given her learning disabilities and mental
status. Dr. Homrich was never specifically asked whether appellant could perform the duties of
this position. Thus, the question of whether the duties involved in the constructed position would
require appellant to simultaneously perform mental tasks which require sequential processing,
such as planning, reading, and numerical ability, must be addressed by Dr. Homrich before it can
be determined whether the selected position is vocationally suitable for appellant. Furthermore,
the Board notes that Dr. Homrich’s 2011 report was stale by the time OWCP made its LWEC
determination on July 25, 2016.

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4(d) (June 2013).

7

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While appellant has the responsibility to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice is
done.14 Accordingly, once OWCP undertakes to develop the medical evidence, it has the
responsibility to do so in the proper manner.15 As it undertook development of the medical
evidence by referring appellant to Dr. Homrich, it had an obligation to secure an opinion
adequately addressing the relevant issues.16 For this reason, the Board finds that the case is not in
posture for decision as a supplemental opinion is required. The case will be remanded to OWCP
for a supplemental report. After such further development as OWCP deems necessary, an
appropriate decision should be issued regarding this matter.
13

CONCLUSION
The Board finds that this case is not in posture for decision.

13

Vanessa Young, 55 ECAB 575 (2004).

14

Richard E. Simpson, 55 ECAB 490 (2004).

15

Melvin James, 55 ECAB 406 (2004).

16
Mae Z. Hackett, 34 ECAB 1421 (1983) wherein the Board has held that, once OWCP begins to develop the
medical evidence, it has the responsibility to obtain an evaluation which will resolve the issue involved in the case.

8

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 1, 2018
Washington, DC

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

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

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

9


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

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

Docket No. 17-1414
Issued: August 22, 2018

Case Submitted on the Record

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

JURISDICTION
On June 13, 2017 appellant filed a timely appeal from March 15 and May 9, 2017 nonmerit
decisions of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from OWCP’s last merit decision, dated November 15, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 29, 2015 appellant, a 50-year-old sales services and distribution associate, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a left shoulder strain at work on that
1

5 U.S.C. § 8101 et seq.

date as a result of lifting a parcel. By decision dated March 21, 2016, OWCP accepted appellant’s
claim for left rotator cuff tear.
Appellant submitted claims for wage-loss compensation (CA-7 forms) for the period
January 4 to April 22, 2016.
In a February 23, 2016 report, Dr. Angela Tomaschko, a Board-certified orthopedic
surgeon, noted that appellant sustained a work-related injury on June 29, 2015 while lifting a box.
Dr. Tomaschko advised that he went through a course of steroid injection and physical therapy
with no relief of symptoms starting in August 2015 and continuing until appellant’s rotator cuff
surgery on February 4, 2016. She advised that appellant was currently in physical therapy and was
limited to no lifting and limited active motion.
By decision dated April 25, 2016, OWCP denied appellant’s claim for compensation for
the period January 4 to April 22, 2016, finding that the medical evidence of record was insufficient
to establish total disability due to the accepted employment injury.
On June 27, 2016 appellant requested reconsideration and submitted a February 4, 2016
surgical report indicating that he underwent left shoulder rotator cuff repair and biceps tenodesis
performed by Dr. Tomaschko. He also submitted progress reports dated February 17, March 15,
and May 31, 2016 from Dr. Tomaschko who noted that appellant was participating in physical
therapy and had been released to work without limitations. Dr. Tomaschko reported that appellant
was going to Ghana to visit his father on March 15, 2016, but would be back from his visit by his
appointment on May 31, 2016.
In a May 31, 2016 report, Dr. Tomaschko released appellant to limited-duty work with a
15-pound lifting restriction.
OWCP referred appellant for a second opinion examination by Dr. D. Burke Haskins, a
Board-certified orthopedic surgeon, who found that appellant was not totally disabled.
Dr. Haskins opined that appellant was capable of returning to modified-duty work, effective
July 26, 2016, with a 10-pound lifting restriction and no reaching with the left shoulder.
By decision dated August 26, 2016, OWCP modified its prior decision, finding that the
medical evidence of record was sufficient to establish total disability for the period February 4 to
March 15, 2016 due to appellant’s surgery. It further found, however, that the evidence was
insufficient to modify the entire decision because the medical evidence of record failed to establish
total disability for the periods January 4 to 12, 2016 and March 16 to April 22, 2016.
On June 24 and July 1, 2016 appellant submitted claims for wage-loss compensation for
the period June 17 to July 1, 2016.
By decision dated August 31, 2016, OWCP denied appellant’s claim for disability for the
period June 17 to July 1, 2016 because the medical evidence of record failed to establish total
disability due to the accepted employment injury.
On October 24, 2016 appellant requested reconsideration and submitted an October 22,
2016 narrative statement indicating that he had not been released to work by his physician on
2

March 15, 2016. He stated that he had a family emergency in Ghana and he left on that date and
then returned at the end of May 2016. Appellant indicated that he returned to work on July 2, 2016
with limitations while attending physical therapy until August 16, 2016. He also submitted an
October 20, 2016 report from Dr. Tomaschko who noted that appellant had work limitations since
his February 4, 2016 surgery and had been released to work on May 31, 2016 with a 15-pound
lifting restriction. Dr. Tomaschko explained that the notation on the bottom of her reports stating
“released w/o limitation” was a template portion for active duty military members and not
applicable to retirees and dependents and should not be used regarding a working limitation status
for appellant.
By decision dated November 15, 2016, OWCP vacated its prior decision and found that
appellant was entitled to wage-loss compensation for the period June 17 to July 1, 2016.
On December 15, 2016 appellant requested reconsideration of OWCP’s August 26, 2016
decision and submitted a narrative statement arguing that he was entitled to wage-loss
compensation for disability for the period March 16 to April 22, 2016. He also resubmitted his
February 4, 2016 surgical report.
By decision dated March 15, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim, finding that he failed to advance a relevant legal argument or submit any
relevant and pertinent new evidence. It determined that the evidence submitted was irrelevant or
immaterial because it did not contain medical evidence supporting disability for the period
March 16 to April 22, 2016.
On April 21, 2017 appellant again requested reconsideration and argued that he was
entitled to disability compensation for the period March 16 to May 31, 2016 because he had a
family emergency in Ghana and attended physical therapy in Ghana during the period claimed.
He further submitted an April 21, 2017 report from Dr. Albert Prempeh, a healthcare provider at
Boakye Dankaw Memorial Hospital, who indicated that appellant underwent physiotherapy on his
left shoulder rotator cuff for the period March 17 to May 26, 2016.
By decision dated May 9, 2017, OWCP denied appellant’s request for reconsideration of
the merits of his claim, finding that he did not advance a relevant legal argument or submit any
relevant and pertinent new evidence. It determined that the evidence submitted on reconsideration
was immaterial because it did not contain medical evidence supporting disability for the periods
January 4 to 12, 2016 and March 16 to April 22, 2016. OWCP further found that appellant’s
argument was irrelevant to the issue before OWCP because it failed to address the periods of
disability previously denied.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain

2
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).

3

limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s December 12, 2016 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. His April 21,
2017 request for reconsideration argued that he was entitled to disability compensation for the
period March 16 to May 31, 2016. The Board finds, however, that this argument is irrelevant
because OWCP’s August 26, 2016 decision denied disability compensation for the periods
January 4 to 12, 2016 and March 16 to April 22, 2016. As he failed to address the periods of
disability previously denied by OWCP, appellant’s argument is irrelevant and immaterial.7
Consequently, appellant is not entitled to further review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. He resubmitted a February 4, 2016 surgical report in support of his
December 12, 2016 reconsideration request. The Board finds that the submission of this evidence
did not require reopening appellant’s case for merit review because appellant had submitted the
same evidence, which was previously reviewed by OWCP in its August 26, 2016 decision. As the
report repeats evidence already in the case record, it is duplicative and does not constitute relevant
and pertinent new evidence.8 Appellant also submitted with his April 21, 2017 request an April 21,
3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7

The submission of argument and/or evidence which does not address the particular issue involved does not
constitute a basis for reopening a case. See A.D., Docket No. 18-0497 (issued July 25, 2018); Edward Matthew
Diekemper, 31 ECAB 224, 225 (1979).
8

See D.K., 59 ECAB 141 (2007).

4

2017 report from Dr. Prempeh who indicated that he underwent physiotherapy on his left shoulder
rotator cuff for the period March 17 to May 26, 2016 at Boakye Dankaw Memorial Hospital in
Ghana. The Board finds that submission of this evidence did not require reopening appellant’s
case for merit review because it did not provide medical rationale supporting disability for the
periods January 4 to 12, 2016 and March 16 to April 22, 2016 due to the accepted work injury.9
Therefore, this report does not constitute relevant and pertinent new evidence and is insufficient
to require OWCP to reopen appellant’s claim for consideration of the merits in accordance with
the third above-noted requirement under section 10.606(b)(3).
The Board finds that OWCP properly determined that appellant was not entitled to further
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied his request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 9 and March 15, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
9

See 5 U.S.C. § 8101(2). See also Paul Foster, 56 ECAB 208, 212 n.12 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
SECRET SERVICE, New York, NY, Employer
__________________________________________

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

Docket No. 17-0945
Issued: June 26, 2017

Case Submitted on the Record

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

JURISDICTION
On March 28, 2017 appellant filed a timely appeal from a March 17, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of the
left upper extremity for which he previously received a schedule award.
FACTUAL HISTORY
On October 19, 2015 appellant, then a 43-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that on September 21, 2015 he dislocated his left shoulder, tore his
labrum, and fractured his shoulder participating in required physical fitness training. OWCP
accepted the claim for a superior glenoid labrum lesion of the left shoulder and an anterior
1

5 U.S.C. § 8101 et seq.

dislocation of the left humerus. On October 22, 2015 appellant underwent a left shoulder
arthroscopy with Bankart repair.
Appellant, on May 17, 2016, filed a claim for a schedule award (Form CA-7). By letter
dated June 2, 2016, OWCP requested that he submit an impairment evaluation from his attending
physician addressing the extent of any employment-related impairment in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
Appellant advised OWCP on August 30, 2016 that his physician did not provide
impairment ratings.
On December 29, 2016 OWCP referred appellant to Dr. Surya Raguthu, a Board-certified
physiatrist, for a second opinion examination. In a report dated January 5, 2017, Dr. Raguthu
noted that appellant complained of weakness and pain in the left shoulder. On examination of
the left shoulder he found tenderness at the biceps and range of motion “grossly within normal
limits.” Dr. Raguthu diagnosed a left shoulder superior glenoid labrum lesion and anterior
dislocation of the left humerus. He found that appellant obtained maximum medical
improvement on January 5, 2017. Using the shoulder regional grid set forth at Table 15-5 on
page 404 of the sixth edition of the A.M.A., Guides, Dr. Raguthu identified the diagnosis as a
class 1 anterior dislocation of the left humerus and SLAP (superior labral tear from anterior to
posterior) lesion, which yielded a default value of three percent. He applied grade modifiers of
one for functional history and physical examination and a grade modifier of two for clinical
studies to find an adjustment of one from the default value, or four percent permanent
impairment of the left upper extremity.
An OWCP medical adviser reviewed the evidence on March 2, 2017. He found that
Dr. Raguthu erred in applying a grade modifier for clinical studies as it was used to identify the
diagnosis in the diagnosis-based impairment (DBI) grid. The medical adviser determined that
appellant had three percent permanent impairment of the left upper extremity due to his superior
glenoid labrum lesions using Table 15-5 on page 404 of the A.M.A., Guides.
By decision dated March 17, 2017, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity. The period of the award ran for 9.36
weeks from January 5 to March 11, 2017.
On appeal appellant contends that the opinion of Dr. Raguthu is entitled to more weight
than that of OWCP’s medical adviser as he performed an examination. He further maintains that
he does not have normal motion of the shoulder.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.2 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
2

See 20 C.F.R. §§ 1.1-1.4.

2

use of specified members, functions, and organs of the body.3 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.4
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.6
ANALYSIS
The issue on appeal is whether appellant has more than three percent permanent
impairment of the left upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the range of
motion (ROM) methodology when assessing the extent of permanent impairment for schedule
award purposes.7 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.8 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and ROM
3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
6

Isidoro Rivera, 12 ECAB 348 (1961).

7

T.H., Docket No. 14-0943 (issued November 25, 2016).

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

3

methodologies interchangeably without any consistent basis. Furthermore, the Board observed
that physicians interchangeably cite to language in the first printing or the second printing when
justifying use of either ROM or DBI methodology. Because OWCP’s own physicians are
inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.9
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 17, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 26, 2017
Washington, DC

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

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

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

9

Supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Philadelphia,
PA, Employer
__________________________________________

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Appearances:
Appellant, pro se

Docket No. 13-1849
Issued: December 19, 2013

Case Submitted on the Record

Office of Solicitor, for the Director

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

JURISDICTION
On August 6, 2013 appellant filed a timely appeal from a May 23, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the date of OWCP’s last merit decision on August 2, 2012 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that the evidence of record supports her claim for
compensation.
FACTUAL HISTORY
On April 25, 2012 appellant, then a 40-year-old contact representative, filed a traumatic
injury claim alleging that on March 23, 2012 she sustained de Quervain tenosynovitis in her left
wrist due to repetitive motion overuse of hand motions. The employing establishment noted that
she stopped work on March 26, 2012 and did not report the injury. It received notice of injury
on June 13, 2012 and that the claim should be reported as an occupational claim as opposed to a
traumatic injury claim. No documentation was submitted with the claim form.
In a June 26, 2012 letter, OWCP advised appellant of the deficiencies in her claim. It
requested additional evidence pertaining to both the factual and medical aspects of her claim.
Appellant was accorded 30 days within which to submit the requested evidence.
In a July 12, 2012 response to OWCP’s questionnaire, appellant indicated that she first
noticed her pain in her arm while typing on the computer on March 22, 2012. She sought
medical care on March 26, 2012. After reviewing the definitions of a traumatic injury and an
occupational injury, appellant advised that she was claiming a traumatic injury rather than an
occupational disease. She also provided medical notes for the time period March 26 through
June 21, 2012.
The employing establishment controverted appellant’s claim. In a July 10, 2012
statement, Christine Hellman, a manager, stated that on March 23, 2012 appellant requested to
see the nurse because her hand was hurting. Appellant denied injuring it and did not file a claim
after returning from the nurse. On April 10, 2012 she informed Ms. Hellman that her problem
was work related. Ms. Hellman provided workers’ compensation information to appellant.
In a July 12, 2012 statement, Ms. Hellman wrote to Tammy S. Payne, a human resource
specialist, that in January 2012 appellant submitted an outside employment or business activity
request, which was approved for the “home care” business. There had not been any request to
have the outside employment removed due to lack of employment. In September 2009, an
investigation revealed that appellant was also self-employed as a photographer. While appellant
did not submit request for that business, she acknowledged such employment. Ms. Hellman
requested that appellant’s two outside employment situations be considered.
By decision dated August 2, 2012, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It found that the evidence was not sufficient to establish that
the March 23, 2012 incident occurred as alleged. The evidence was inconsistent as to appellant’s
factual history to the employing establishment and her physicians. OWCP also found that there
was no firm diagnosed condition established as causally related to the work incident.
In a December 21, 2012 letter, received by OWCP December 26, 2012, appellant
requested reconsideration. She reiterated that her injury occurred on March 23, 2012. Appellant
submitted physical therapy reports dated May 10 to August 2, 2012; October 3, 2012 diagnostic
testing; reports dated August 13 to December 10, 2012 from Dr. Ghassem Kalani, a Board-

2

certified physiatrist, and an October 25, 2012 report from Dr. Thomas Gillon, a Board-certified
orthopedic surgeon.
By decision dated May 23, 2013, OWCP denied appellant’s request for reconsideration
finding that the submitted medical evidence was not relevant. As the factual component of her
claim had not been accepted.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of OWCP’s decision as a
matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation. OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
When reviewing an OWCP decision denying a merit review, the function of the Board is
to determine whether OWCP properly applied the standards set forth at section 10.606(b)(2) to
the claimant’s application for reconsideration and any evidence submitted in support thereof.6
ANALYSIS
OWCP denied appellant’s traumatic injury claim by decision dated August 2, 2012. It
found that fact of injury was not established as she had failed to establish the March 23, 2012
incident of repetitive hand motions at work.
In her December 21, 2012 application for reconsideration, appellant did not contend that
OWCP erroneously applied or interpreted a specific point of law. She did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
2

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). See Annette Louise, 54 ECAB
783, 789-90 (2003).
3

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Supra note 3.

3

new and relevant legal argument. She reiterated that her injury occurred on March 23, 2012, but
she did not submit any factual evidence relevant to establishing the incident occurred at work as
alleged. While appellant submitted new medical evidence, this evidence is irrelevant to establish
the factual component of her claim that the claimed injury happened in the manner alleged. The
Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.7
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2013
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

4


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

)
)
)
)
)
)
)
)

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

Docket No. 11-831
Issued: November 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 15, 2011 appellant, through her representative, filed a timely appeal from
the December 16, 2010 merit decision of the Office of Workers’ Compensation Programs
(OWCP) denying modification of an OWCP wage-earning capacity determination. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to modify OWCP’s August 6,
2009 wage-earning capacity determination.
FACTUAL HISTORY
On September 10, 2002 appellant, then a 41-year-old mail handler, filed a traumatic
injury claim alleging that she sustained bilateral carpal tunnel syndrome and possible nerve
1

20 C.F.R. § 8101 et seq.

damage to her right hand due to the constant pushing, pulling and lifting required by her job.
OWCP accepted that she sustained bilateral carpal tunnel syndrome, right articular cartilage
disorder, right wrist sprain and left ulnar nerve lesion. On August 27, 2003 appellant underwent
right wrist arthroscopy surgery and, on July 19, 2006, she underwent left wrist arthroscopy
surgery. Both procedures were authorized by OWCP.
Appellant had intermittent periods of disability after her right wrist surgery. On
November 6, 2006 Dr. Robert S. Ferretti, a Board-certified orthopedic surgeon serving as an
OWCP referral physician, found that she continued to have residuals of her work injuries but that
she was able to work up to six hours a day with limited duties. On January 5, 2007 Dr. Jerald R.
Gerst, an attending Board-certified internist, provided work restrictions. He found that appellant
would be able to work up to six hours a day in three to six months and would be able to work
eight hours a day in approximately one year.
In February 2007 appellant was referred to an OWCP-sponsored vocational rehabilitation
program, but the program was interrupted in June 2007 due to several outstanding medical
issues. On June 19, 2007 Dr. Gerst provided new work restrictions which limited appellant to
working for five hours a day, five days a week. In August 2007 appellant was again referred to a
vocational rehabilitation program. She was provided with at least three 30-day extensions in
addition to the initial 90 days of placement services.
In an October 13, 2008 report, Dr. Gerst determined that appellant was restricted from
lifting more than 25 pounds and that she should avoid very repetitive gripping or very forceful
sustained gripping. He noted that she was able to work eight hours a day.
On November 19, 2008 OWCP was advised that appellant’s former employer was willing
and able to offer her light-duty work within her work restrictions. Appellant accepted and
returned to work on November 22, 2008 as a modified mail handler on a full-time basis with the
employer in Richmond, CA. The light-duty job required lifting up to 25 pounds but did not
require forceful or sustained gripping.2
In a March 4, 2009 report, Dr. Gerst stated that appellant had reached maximum medical
improvement and that her work restrictions were permanent. These restrictions included lifting
no more than 25 pounds and avoiding repetitive or very forceful sustained gripping. Dr. Gerst
noted that appellant was able to work eight hours a day within these restrictions.
In an August 6, 2009 decision, OWCP adjusted appellant’s compensation based on its
determination that the light-duty mail handler position fairly and reasonably represented her
wage-earning capacity. It indicated that the rating decision was based on the fact that she
worked for more than 60 days in a modified position as a mail handler with the employer and her
treating physician stated that her work restrictions were permanent and not likely to change.
Because appellant’s wages as a modified mail handler were less than her date-of-injury earnings,
she received compensation to supplement her wage loss.

2

Appellant’s set work schedule was 6:00 a.m. to 2:30 p.m., Saturday through Wednesday.

2

Following appellant’s formal rating decision, the employing establishment initiated the
National Reassessment Process. The District Assessment Team was unable to identify any
available necessary tasks within appellant’s medical restrictions and sent her home on
November 17, 2009.
Appellant filed a Form CA-7 for claimed total disability beginning November 17, 2009
and continuing because her employer sent her home due to no work being available. In a
November 23, 2009 letter, OWCP advised her that, 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. The burden of proof is on the party attempting to show a modification of the wageearning capacity award.
To assist in developing appellant’s claim for compensation, OWCP sent a letter to
Dr. Gerst on November 23, 2009 requesting his medical opinion on appellant’s work restrictions
based on objective findings. It asked him to discuss whether there had been a material change in
the nature and extent of appellant’s condition. Dr. Gerst was provided a description of the
modified mail handler position and was provided 30 days to submit a response.
In a December 9, 2009 report, Dr. Gerst stated that since appellant returned to work she
had experienced a progressive increase in bilateral upper extremity pain, stiffness and weakness.
He wrote that the character of her pain remained the same. Appellant reported that the pain in
her right arm was located at the base of the thumb and on her left arm it was located along the
ulnar aspect of her left forearm and left hand. Dr. Gerst performed range of motion testing and
noted limitations upon flexion, extension, ulnar deviation and radial deviation. He provided a
rating impairment examination under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001). Dr. Gerst opined that
appellant’s work restrictions limited her to lifting 15 pounds on an occasional basis with frequent
lifting of 5 to 8 pounds. Appellant was to avoid repetitive forceful and/or sustained gripping
with both hands. Dr. Gerst wrote, “I think that she can, at present, work only a [five]-hour day.”
He also wrote that appellant’s condition materially worsened such that she was no longer able to
perform the job duties of the modified mail handler position.
In a January 22, 2010 telephone call, the employer advised OWCP that the duties of the
modified mail handler position appellant performed until November 2009 allowed her to increase
or decrease the amount of weight required to drag and sort mail.
In a January 22, 2010 letter, OWCP advised appellant that Dr. Gerst’s December 9, 2009
report did not justify modification of its wage-earning capacity determination because he did not
discuss why she was unable to perform her modified duties. Appellant was provided 30 days to
submit additional evidence and argument.
In a February 8, 2010 letter, appellant discussed the specific duties of her modified
position. She stated that she would set up the work area by getting all equipment needed to do
the job and that she had to push a hamper over to a machine, place the machine on lifts and then
turn the machine on. Appellant noted that she did not recall being required to pull unwheeled

3

carts because there were tug drivers that towed the mail away. She indicated that she did not
drag plastic or glass hampers across the floor but that she did dump loose mail onto a belt with
the assistance of a machine. Appellant asserted that she was required to lift tubs onto the belt
and cut or pull away the tape that kept them closed. She stated that she performed these duties
for eight hours a day, five days a week.
In a December 22, 2009 letter, counsel argued that appellant was given a job that does not
exist. He asserted that her job was not classified and could not be bid on. Counsel stated that the
law was very clear that a make-work job was not a real job and that therefore, if the job was
withdrawn, the claimant would receive compensation. He asserted that OWCP should pay
appellant for total disability and suggested that its wage-earning capacity determination should
be modified.
In a May 13, 2010 decision, OWCP denied appellant’s claim for modification of its
August 6, 2009 wage-earning capacity determination noting that she had not shown there was a
material change in the nature and extent of the injury-related condition, that she had been
retrained or otherwise vocationally rehabilitated or that the original determination was, in fact,
erroneous.
Appellant disagreed with the decision and requested an oral hearing before an OWCP
hearing representative. At the hearing held on August 10, 2010, she was not present but was
represented by counsel who presented argument asserting that the employing establishment
withdrew the light-duty job. Counsel further claimed that the position was not a permanent job
offer and the original rating was erroneous.
Appellant submitted treatment notes from Dr. Gerst, dated between July 2009 and
June 2010. The medical records received indicate that she continued to suffer injury-related
residuals.
In a December 16, 2010 decision, OWCP’s hearing representative affirmed its May 13,
2010 decision.
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 OWCP’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.”4
3

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

4

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

4

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.5 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.6
In addition, Chapter 2.814.11 of the procedure manual contains provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provides that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.7
Section 8115(a) of FECA provides that the “wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.”8 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”9 Wage-earning capacity may not be based on an odd-lot or make-shift
position designed for an employee’s particular needs or a position that is seasonal in an area
where year-round employment is available.10 OWCP procedures direct that a wage-earning
capacity determination based on actual wages be made following 60 days of employment.11
5

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

6

Id.

7

See supra note 4 at Chapter 2.814.11 (June 1996).

8

5 U.S.C. § 8115(a).

9

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” 20 C.F.R. § 10.5(f). Once it is determined that the actual
wages of a given position represent a employee’s wage-earning capacity, OWCP applies the principles enunciated in
Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the employee’s compensation.
10

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment and Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997). In Jeffery T. Hunter, 52
ECAB 503 (2001), the Board found that the duties of “regular” employment are covered by a specific job
classification and such duties would have been performed by another employee if the employee did not perform
them. The test is not whether the tasks that the employee performs would have been done by someone else, but
instead whether she occupied a regular position that would have been performed by another employee. Id. In
determining whether a given job is makeshift, the Board has looked to such factors as whether the job has detailed
work duties and a set schedule. See A.J., Docket No. 10-619 (issued June 29, 2010).
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7c (December 1993).

5

Determining Wage-Earning

OWCP procedure provides that when the employing establishment has withdrawn a lightduty assignment, which accommodated the appellant’s work restrictions and a formal wageearning capacity decision has been issued, the decision will remain in place, unless one of the
three accepted reasons for modification applies.12
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, right articular
cartilage disorder, right wrist sprain and left ulnar nerve lesion due to her repetitive work duties.
On August 27, 2003 appellant underwent right wrist arthroscopy surgery and, on July 19, 2006,
she underwent left wrist arthroscopy surgery. Both procedures were authorized by OWCP.
In an August 6, 2009 decision, OWCP adjusted appellant’s compensation based on its
determination that her actual earnings as a modified mail handler beginning November 22, 2008
fairly and reasonably represented her wage-earning capacity. Appellant later claimed that this
wage-earning capacity determination should be modified.
The Board finds that OWCP’s August 6, 2009 determination was consistent with section
8115(a) of FECA which provides that the wage-earning capacity of an employee is determined
by her actual earnings if her actual earnings fairly and reasonably represent her wage-earning
capacity.13 OWCP properly noted that appellant had received actual earnings as a modified mail
handler for more than 60 days in that she had been working in the position since November 22,
2008 when it issued its August 6, 2009 decision. There is no evidence that appellant’s earnings
in the modified mail handler position did not fairly and reasonably represent her wage-earning
capacity.
Counsel asserted that the modified mail handler position on which appellant’s wageearning capacity was based was unclassified and constituted make-shift work. However, the job
falls under the classification of “mail handler” and appellant was provided with a position
description which included the physical requirements of the position. Appellant performed the
duties of the position under a set schedule. The evidence does not support the argument that the
mail handler position on which the rating decision was based was not classified and was makeshift in nature.14
The evidence does not show that appellant’s actual earnings as a modified mail handler
did not fairly and reasonably represent her wage-earning capacity and OWCP properly adjusted
her compensation based on this wage-earning capacity determination.15 For these reasons,
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(5) (October 2005).

13

See supra notes 8 and 9.

14

Counsel argued that the withdrawal of appellant’s job in November 2007 warranted a modification of OWCP’s
wage-earning capacity determination, but the relevant precedent does not support that such a withdrawal would
automatically trigger a need for such modification. See supra note 12.
15

OWCP properly applied the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to
calculate the adjustment in appellant’s compensation.

6

appellant has not shown that OWCP’s original determination with regards to her wage-earning
capacity was erroneous.
Appellant alleged that there was a material change in the nature and extent of her
employment-related condition. However, the evidence does not contain a rationalized medical
opinion explaining why an employment-related condition prevented her from performing the
mail handler position or otherwise establish that OWCP improperly determined her wageearning capacity.16
In a December 9, 2009 report, Dr. Gerst, an attending Board-certified internist, provided
new work restrictions and indicated that appellant could only work five hours a day. He opined
that she could only lift 15 pounds on an occasional basis and 5 to 8 pounds on a frequent basis.17
However, Dr. Gerst did not clearly explain how objective findings on physical examination and
diagnostic testing showed that appellant had a material change in her injury-related condition.
The examination findings he reported were similar to those reported before the time that
appellant claimed that modification of OWCP’s wage-earning capacity was warranted.
Dr. Gerst’s report is of diminished probative value because he stated on March 4, 2009 that
appellant’s medical restrictions were permanent, but on December 9, 2009, about six months
later, he provided new restrictions without adequately addressing the specific nature of any
change in appellant’s medical condition. He did not provide adequate medical rationale
supporting a material change in appellant’s injury-related condition.
The record also contains treatment notes from Dr. Gerst which were produced between
July 2009 and June 2010. The medical records indicated that appellant continued to have injuryrelated residuals. However, the reports did not contain a rationalized medical opinion
demonstrating that appellant’s injury-related medical condition worsened such that she was
precluded from performing the duties of the modified mail handler position.
Therefore, the medical evidence does not show that appellant experienced a material
worsening of her injury-related condition which prevented her from being able to perform the
duties of the modified mail handler position in which she was rated. In addition, appellant did
not present evidence that she vocationally rehabilitated herself such that she now had a higher
wage-earning capacity than was previously established. For these reasons, she did not show that
OWCP’s August 6, 2009 wage-earning capacity determination should be modified.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to modify OWCP’s
August 6, 2009 wage-earning capacity determination.

16

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

17

Dr. Gerst had previously indicated that appellant could lift up to 25 pounds and work eight hours a day.

7

ORDER
IT IS HEREBY ORDERED THAT the December 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8