United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 12-118
Issued: May 7, 2012

Case Submitted on the Record

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

JURISDICTION
On October 26, 2011 appellant filed a timely appeal from an August 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. 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 met his burden of proof to establish that he sustained right
shoulder impingement and acromioclavicular (AC) arthrosis in the performance of duty on
September 5, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 12, 2011 appellant, then a 42-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on September 5, 2010 he sustained a pinched
nerve and pulled his shoulder muscle when he was assisting to move an obese patient from a
stretcher to a bed. The employing establishment controverted the claim stating that his position
did not include assistance with patient care.
By letter dated April 20, 2011, OWCP requested additional evidence from appellant and
asked that he respond to the provided questions within 30 days. By letter of the same date, it
requested additional information from the employing establishment.
By decision dated June 1, 2011, OWCP denied appellant’s claim for fact of injury on the
grounds that there was no medical evidence that contained a medical diagnosis in connection to
the September 5, 2010 incident.
On June 8, 2011 appellant requested reconsideration of OWCP’s decision. In a narrative
statement, he reported that, on September 5, 2010, an obese patient was brought into his
department on a stretcher and he was asked to help transfer him to a bed. Upon lifting the
patient, appellant pulled a muscle in his right shoulder. He reported that he sought treatment at
an emergency room and reported his injury to management but did not file a claim until his
injury got worse.
In a May 16, 2011 medical report, Dr. Andrew D. Cooper, Board-certified in orthopedic
surgery, reported that he had been treating appellant for shoulder problems since September 2010
when he got injured. He diagnosed right shoulder impingement and AC arthrosis. Dr. Cooper
noted that appellant complained of severe pain and recommended a right shoulder arthroscopy,
subacromial decompression and distal clavicle resection.
By letter dated May 23, 2011, the employing establishment controverted the claim stating
that appellant was not performing his assigned duties at the time of the injury and that there were
no witnesses to the incident. In support of its allegation, the employing establishment submitted
a position description for a medical support assistant.
By decision dated August 19, 2011, OWCP modified its June 1, 2011 decision finding
that the evidence was sufficient to establish fact of injury. It denied appellant’s claim, however,
on the grounds that the evidence of record failed to establish that the diagnosed medical
condition was causally related to the accepted September 5, 2010 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the

2

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 or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP 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 which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that the September 5, 2010 incident occurred as alleged. The issue is
whether appellant established that the incident caused his right shoulder impingement and AC
arthrosis. The Board finds that appellant did not submit sufficient medical evidence to support
that his right shoulder impingement and AC arthrosis is causally related to the September 5, 2010
employment incident.7
In a May 16, 2011 medical report, Dr. Cooper reported that he had been treating appellant
for shoulder problems since September 2010 when he was injured. He diagnosed right shoulder
impingement and AC arthrosis. Dr. Cooper noted that appellant complained of severe pain and
recommended a right shoulder arthroscopy, subacromial decompression and distal clavicle
resection.
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

3

The Board finds that the opinion of Dr. Cooper is not of sufficient probative value to
establish appellant’s claim. Dr. Cooper failed to address appellant’s medical history and only
briefly noted that appellant was having shoulder problems since September 2010. He made no
mention of the September 5, 2010 employment incident and failed to provide an opinion on the
cause of appellant’s injury. While Dr. Cooper diagnosed appellant’s right shoulder impingement
and AC arthrosis, he did not explain whether or how the accepted September 5, 2010 incident
caused or contributed to any shoulder injury. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.8 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.9 Dr. Cooper’s report does not meet that standard and is
insufficient to meet appellant’s burden of proof.
Appellant’s honest belief that work caused his shoulder condition is not in question. But
that belief, however sincerely held, does not constitute the medical evidence necessary to
establish causal relationship. In the instant case, the record lacks rationalized medical evidence
establishing a causal relationship between the September 5, 2010 employment incident and
appellant’s right shoulder impingement and AC arthrosis. Thus, appellant has failed to meet his
burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his right
shoulder impingement and AC arthrosis is causally related to the September 5, 2010 employment
incident, as alleged.

8

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

9

See Lee R. Haywood, 48 ECAB 145 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 18-0490
Issued: October 24, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2018 appellant filed a timely appeal from a December 19, 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 19, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation and
medical benefits, pursuant to 5 U.S.C. § 8123(d), due to her failure to attend a scheduled medical
examination.
FACTUAL HISTORY
On September 27, 2016 appellant, then a 35-year-old city carrier assistant 2, filed a
traumatic injury claim (Form CA-1) alleging that on September 26, 2016 she injured her lower
back unloading totes from her vehicle while in the performance of duty. She stopped work on
September 26, 2016. On January 6, 2017 OWCP accepted appellant’s claim for neck joint and
ligament, cervical spine, and lumbar spine sprains. By decision dated January 18, 2017, it denied
expansion of the acceptance of her claim to include the additional conditions of cervical, thoracic,
and lumbar radiculopathy. Appellant received continuation of pay through November 10, 2016,
and thereafter, OWCP paid her wage-loss compensation on the supplemental rolls.
On June 16, 2017 appellant returned to work as a part-time (six hours/day), modified city
carrier assistant.
In a June 27, 2017 note, Dr. Marina Neystat, Board-certified in internal medicine and
neurology, diagnosed cervical and lumbar sprains and advised that appellant was unable to work
more than eight hours per day or to lift more than 15 pounds.
On July 5, 2017 appellant accepted a full-time position as a modified city carrier assistant.
In an August 1, 2017 follow-up report, Dr. Neystat continued to diagnose cervical and
lumbar sprains and indicated that appellant remained partially disabled. He noted that she had
returned to work in a modified-duty capacity.
On September 25, 2017 OWCP notified appellant that she was being referred for an
additional second opinion examination on November 8, 2017 with Dr. Mark Kramer, a Boardcertified orthopedic surgeon. It advised her that it should be contacted by telephone if this
appointment needed to be rescheduled or if she was unable to attend as scheduled and they would
review the request to reschedule her appointment. OWCP explained that only legitimate ,
documented emergencies would be considered a basis for not keeping the appointment. It also
advised appellant of her responsibility to attend the appointment and that, if she failed to do so
without an acceptable reason, her compensation benefits could be suspended in accordance with
section 5 U.S.C. § 8123(d).
Appellant had another follow-up examination with Dr. Neystat on September 27, 2017.
Her diagnosis and work status remained unchanged.
On November 13, 2017 OWCP learned that appellant had not attended the November 8,
2017 examination with Dr. Kramer, as scheduled.
In a letter dated November 14, 2017, OWCP proposed to suspend appellant’s wage-loss
compensation and medical benefits as she failed to attend the medical examination scheduled for
2

November 8, 2017. It afforded her 14 days to respond, in writing with supporting evidence, for
her failure to attend the scheduled examination. OWCP advised that, if appellant did not show
good cause, her FECA benefits would be suspended pursuant to 5 U.S.C. § 8123(d) until she
attended and fully cooperated with the examination. Appellant was instructed to contact OWCP
immediately if she intended to report to a rescheduled examination with Dr. Kramer.
In a November 14, 2017 note, Dr. Neystat indicated that she saw appellant on that same
date. She further indicated that appellant was currently under her medical care and supervision
and was diagnosed with cervical and lumbar sprains.
By decision dated December 19, 2017, OWCP suspended appellant’s wage-loss
compensation and medical benefits, effective December 20, 2017, finding that she failed to attend
the medical examination scheduled for November 8, 2017 and had not provided written evidence
justifying her failure to attend or cooperate with the examination.
LEGAL PRECEDENT
Section 8123(a) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary. 3 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP. 4
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.5 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction stops. 6
OWCP’s procedures provide that, before it may invoke these provisions, the employee is
to be provided a period of 14 days within which to present, in writing, his or her reasons for the
refusal or obstruction. 7 If good cause for the refusal or obstruction is not established, entitlement
to compensation is suspended in accordance with section 8123(d) of FECA until the date on which
the claimant agrees to attend the examination. Such agreement may be expressed in writing or by
telephone (documented on Form CA-110). When the claimant actually reports for examination,

3

5 U.S.C. § 8123(a).

4
See M.T., Docket No. 18-1675 (issued March 8, 2019); L.B., Docket No. 17-1891 (issued December 11, 2018);
J.T., 59 ECAB 293 (2008).
5

20 C.F.R. § 10.320.

6

Supra note 3; id. at § 10.323; D.K., Docket No. 18-0217 (issued June 27, 2018).

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).

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payment retroactive to the date on which the claimant agreed to attend the examination may be
made.8
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation and
medical benefits, pursuant to 5 U.S.C. § 8123(d), due to her failure to attend a scheduled medical
examination.
On September 25, 2017 OWCP notified appellant of her rights and responsibilities with
respect to the November 8, 2017 scheduled medical examination. The notice properly contained
a warning that benefits may be suspended pursuant to section 8123(d) of FECA for failure to report
for the scheduled examination. OWCP explained that the physician was selected to obtain
additional expert medical opinion. It properly determined that it required an assessment of
appellant’s continuing employment-related disability. The Board notes that OWCP also properly
advised her by letter that she had an appointment with Dr. Kramer on November 8, 2017.
However, appellant did not attend the scheduled medical examination.
On November 14, 2017 OWCP issued a notice of proposed suspension and afforded
appellant a 14-day period within which to provide an explanation for her failure to attend the
previously scheduled medical examination. It further explained that, if she failed to demonstrate
good cause for her failure to attend the scheduled examination, her wage-loss compensation and
medical benefits would be suspended until she attended and fully cooperated with the examination.
OWCP subsequently received additional medical evidence from Dr. Dr. Neystat, but
appellant did not otherwise explain her failure to attend the November 8, 2017 scheduled
examination with Dr. Kramer. Accordingly, the Board finds that appellant has not established
good cause for her failure to report to the scheduled appointment. The Board further finds that
OWCP’s September 25 and November 14, 2017 notices advised her of her rights and
responsibilities pursuant to 5 U.S.C. § 8123(d). Because appellant failed to attend the
November 8, 2017 medical examination, and because she has not provided good cause for the
failure to attend within 14 days of OWCP’s November 14, 2017 notice of proposed suspension,
the Board finds that OWCP properly suspended her wage-loss compensation and medical
benefits.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation and
medical benefits, pursuant to 5 U.S.C. § 8123(d), due to her failure to attend a schedule medical
examination.

8

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

9

See M.T., supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 10-323
Issued: September 2, 2010

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 November 9, 2009 appellant filed a timely appeal from the May 12, 2009 decision of
the Office of Workers’ Compensation Programs denying her request for further review of the
merits of her claim as untimely filed and failing to establish clear evidence of error. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision.1 The
last merit decision of record was the March 21, 2006 Office decision wherein it denied
modification of the December 2, 2004 decision denying appellant’s claim for a recurrence of
disability. Because more than one year has elapsed between the issuance of the last merit

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued May 12, 2009, the 180-day computation begins May 13, 2009. One hundred and eighty days
from May 13, 2009 was Monday, November 9, 2009. Since using November 18, 2009, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service’s postmark is November 9, 2009 which renders the appeal
timely filed. See 20 C.F.R. § 501.3(f)(1).

decision on March 21, 2006 and the filing of this appeal on November 9, 2009, the Board lacks
jurisdiction to review the merits of the case.2
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
On appeal, appellant contends that she has permanent injury to her left arm and is still
receiving medical treatment.
FACTUAL HISTORY
On October 28, 1992 appellant, then a 37-year-old clerk, injured the fingers of her left
hand when she dropped a tray on the line. The Office accepted her claim for left ulnar nerve
neuropathy with surgical repair, tear of the tendon in the left fourth finger and left-sided thoracic
outlet syndrome. Appellant received wage-loss compensation and medical benefits.
By decision dated October 24, 1995, the Office denied all claims for wage-loss
compensation beginning November 10, 1994 as the evidence failed to establish that appellant’s
disability for work after that date was due to the employment injury of October 18, 1992.3 This
decision did not affect her continuing entitlement to medical benefits. This decision was
affirmed by a hearing representative on April 12, 1997. On June 8, 1998 the Office issued a
schedule award for 53 percent impairment of the left upper extremity.
On August 17, 2004 appellant filed a claim alleging a recurrence of disability,
commencing April 14, 2004, causally related to the October 28, 1992 accepted injury. She
alleged that repetitive work gradually affected the condition in her arm. By decision dated
December 2, 2004, the Office denied appellant’s recurrence claim and also found no
employment-related condition. On October 4, 2005 appellant requested reconsideration. By
decision dated March 21, 2006, the Office reviewed the merits of appellant’s case but denied
modification of the prior decision.
By letter dated March 5, 2009, appellant requested reconsideration. She noted that she
was addressing the prior recurrence denial contending a worsening condition. Appellant
submitted a statement summarizing her treatment, referencing reports previously of record and
reviewed by the Office, her medical treatment and vocational rehabilitation.
By decision dated May 12, 2009, the Office denied appellant’s request for
reconsideration finding that it was untimely filed and did not show clear evidence of error.
2

For final Office decisions issued prior to November 19, 2008, claimants had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2) (2008). For final Office decisions issued on and after November 19, 2008,
claimants have 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e) (2009).
3

The Office found that appellant’s termination from the employing establishment was unrelated to her workrelated condition.

2

LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.4 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.5
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.6 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’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 the Office 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 the Office.12 To show 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

4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona D. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.13
ANALYSIS
The Board notes that the most recent merit decision is the March 21, 2006 decision
denying appellant’s claim for a recurrence of disability causally related to her accepted injury of
October 28, 1992. Appellant filed her request for reconsideration by letter dated March 5, 2009.
Accordingly, this request was filed over one year after the issuance of the March 21, 2006
decision. It was not timely filed.
The Office properly reviewed appellant’s request under the clear evidence of error
standard and determined that appellant has not established clear evidence of error. Appellant did
not submit any evidence with her request for reconsideration rather she submitted her summation
of her case and argued that she had sustained a recurrence. To establish clear evidence of error,
appellant must submit evidence or argument that is positive, precise and explicit and must
manifest on its face that the Office committed an error.14 The term clear evidence of error is
intended to represent a difficult standard.15 Appellant’s request would have to establish on its
face that the Office’s denial of her claim was erroneous. It cannot be a matter of opinion; it must
be a matter of proof. Appellant did not submit such evidence. She provided a summary of her
case and referred to evidence previously of record and reviewed by the Office. Appellant’s
arguments regarding permanent impairment are not relevant to the issue of a recurrence of
disability commencing April 14, 2004.16 As the Board has held, to establish clear evidence of
error, a claimant must submit evidence relevant to the issue decided by the Office and such
evidence must manifest on its face that the Office committed an error.17
Because appellant’s request for reconsideration failed to demonstrate clear evidence of
error in the Office’s most recent merit decision, the Board finds that the Office properly refused
to reopen appellant’s case for review on the merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

13

Leon D. Faidley, Jr., supra note 5.

14

Robert F. Stone, 57 ECAB 292 (2005).

15

D.L., 60 ECAB ____ (Docket No. 08-1057, issued June 23, 2009).

16

As the Office did not issue a final decision with regard to whether appellant sustained an increased permanent
impairment, the issue is not before the Board in this appeal. 20 C.F.R. § 501.2(c).
17

Supra notes 8, 9.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 12, 2009 is affirmed.
Issued: September 2, 2010
Washington, D.C.

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
__________________________________________
J.I., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
RESEARCH LABORATORY, Washington, DC,
Employer
__________________________________________

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

Docket No. 15-0516
Issued: September 21, 2015

Case Submitted on the Record

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

JURISDICTION
On January 3, 2015 appellant filed a timely appeal from a July 7, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of a November 22, 2000 loss
of wage-earning capacity determination.

1

Appellant timely requested oral argument before the Board. By order dated July 10, 2015, the Board denied the
request as the issue on appeal could be adequately addressed based on a review of the case record. Thus, the Board
concluded that an oral argument would serve no useful purpose. See Order Denying Request for Oral Argument,
Docket No. 15-0516 (issued July 10, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has been before the Board on two prior appeals. OWCP accepted that appellant
sustained a lumbar strain, herniated nucleus pulposus L4-5, and L5 nerve root damage, causally
related to lifting at work on July 11, 1989. By decision dated November 22, 2000, it reduced his
compensation finding he had the capacity to earn wages in the selected position of taxicab
starter/dispatcher. The Board affirmed the loss of wage-earning capacity (LWEC) determination
by decision dated July 23, 2002.3
The second appeal to the Board was resolved by an order remanding case dated
April 4, 2014.4 The appeal is discussed later in this decision.
Appellant continued to receive compensation based on his loss of wage-earning capacity.
In a report dated June 9, 2010, Dr. Daniel Ignacio, a Board-certified physiatrist, reported that an
electromyogram (EMG) showed chronic denervation in selected muscles of the legs. He
diagnosed chronic bilateral L5, left S1 radiculopathy. In a report dated November 22, 2010,
Dr. Ignacio noted that appellant had worked as a taxicab driver, which involved prolonged
sitting, as well as lifting and bending while carrying luggage, and this had aggravated appellant’s
back condition. He provided results on examination and he opined that appellant was totally and
permanent disabled due to his work condition.
In a report dated January 5, 2011, Dr. Ignacio opined that appellant was totally disabled
for work. He noted that appellant had continuing chronic back pain since July 11, 1989.
Dr. Ignacio provided results on examination, and he diagnosed chronic lumbar disc syndrome
with chronic lumbar radiculopathy, post-traumatic lumbar spinal stenosis, bilateral hip bursitis,
and complex regional pain syndrome (CRPS).
By letter dated February 3, 2011, OWCP advised appellant that he was being referred for
a second opinion examination. According to a statement of accepted facts (SOAF) dated
February 3, 2011, appellant had worked as a taxi driver from 2004 to 2006, and as a pizza
delivery driver from 2006 to 2010. OWCP also confirmed in the SOAF that he had an accepted
bilateral carpal tunnel syndrome (CTS) from another claim.
The second opinion physician, Dr. Robert Smith, a Board-certified orthopedic surgeon,
provided a report dated March 29, 2011. He provided a history and results on examination.
Dr. Smith noted that the back examination showed no spasm, atrophy, trigger points, or
deformity, with no objective evidence of radiculopathy. He found that based on his examination,
and review of magnetic resonance imaging (MRI) scan dated June 30, 2010, it did not appear
that appellant had any continuing employment-related residuals. Dr. Smith reported that there
was no evidence of an L4-5 herniated disc on the MRI scan, and the scan indicated that appellant
had degenerative changes consistent with his age. He also reported that there was no evidence of
carpal tunnel syndrome. Dr. Smith opined that appellant could perform the position of taxicab
starter/dispatcher.
3

Docket No. 02-179 (issued July 23, 2002).

4

Docket No. 13-1414 (issued April 4, 2014).

2

OWCP found that there was a conflict in the medical evidence between Dr. Ignacio and
Dr. Smith. It selected Dr. Mark Levitsky, a Board-certified orthopedic surgeon, as a referee
physician to resolve the conflict. In a report dated June 1, 2011, Dr. Levitsky provided a history
and results on physical examination. He reviewed medical evidence of record, noting that
appellant had a June 30, 2010 MRI scan and June 9, 2010 electromyogram (EMG), and nerve
conduction velocity (NCV) studies performed by Dr. Ignacio. Dr. Levitsky opined that appellant
did have residuals of the July 11, 1989 injury. He stated that appellant had pain that had
progressively worsened over the years and the MRI scan showed significant deterioration of the
spine. Dr. Levitsky noted the examination for CTS was negative. According to Dr. Levitsky,
appellant’s current treatment of physical therapy and injections was related more to the
degenerative condition than the original injury. Dr. Levitsky concluded that appellant was
capable of performing the taxicab dispatcher position, but he would not be able to drive taxis for
any prolonged period.
By decision dated July 12, 2011, OWCP denied modification of the November 22, 2000
LWEC determination. It found the medical evidence was represented by Dr. Levitsky and not
sufficient to warrant modification.
On August 24, 2011 appellant submitted a request for reconsideration. He submitted an
August 3, 2011 report from Dr. Ignacio providing results on examination. Dr. Ignacio noted that
he had been shown a letter stating that “the patient’s taxicab starter-dispatcher” position
represented his wage-earning capacity, and this was an incorrect decision. He stated that
appellant had performed the taxicab starter-dispatcher position and this would aggravate his
condition. According to Dr. Ignacio, “I believe forcing [appellant] to continue to perform his job
does aggravate his medical conditions and have contributed to the progressions of the lumbar
spinal stenosis.” He noted that appellant’s condition was not only degenerative, but related to
the employment injury and going back to work would aggravate his condition.
Appellant also submitted an August 17, 2011 report from Dr. Ignacio, which noted, after
an examination, that appellant continued to have chronic back pain and was disabled for work.
By decision dated September 29, 2011, OWCP denied modification of the November 22,
2000 LWEC determination. It found that the evidence was insufficient to warrant modification.
The appeal rights to the decision indicated that appellant could request reconsideration or review
by the Board.
Appellant continued to submit reports from Dr. Ignacio. In a report dated November 2,
2011, Dr. Ignacio provided results on examination. He noted that he disagreed with
Dr. Levitsky’s opinion that appellant’s condition was more related to the degenerative condition.
Dr. Ignacio reported that he agreed with Dr. Levitsky that appellant could not drive for
prolonged periods, and he opined that appellant was totally disabled.
By reports dated December 21, 2011, January 18 and February 22, 2012, Dr. Ignacio
provided results on examination and found that appellant remained totally disabled. By report
dated April 9, 2012, he diagnosed chronic progressive lumbar disc syndrome with radiculopathy,
post-traumatic lumbar spinal stenosis, chronic hip bursitis, and chronic pain syndrome.
Dr. Ignacio noted that appellant’s spinal injury was getting worse, appellant had significant

3

neurosurgical dysfunction, and he may need surgery. In a report dated June 18, 2012, he
specifically reported that appellant may need spinal compression surgery. Dr. Ignacio opined
that appellant’s lumbar conditions and the spinal injury were all casually related to the July 11,
1989 work injury. By report dated September 5 and 20, and November 1, 2012, Dr. Ignacio
again noted that appellant continued to have an employment-related condition and was disabled.
On November 20, 2012 appellant requested a hearing before an OWCP hearing
representative. By decision dated November 30, 2012, OWCP denied the request for a hearing.
It stated that since appellant had previously requested reconsideration, he was not entitled to a
hearing as a matter of right.
In a report dated July 7, 2013, Dr. Leonid Selya, a Board-certified orthopedic surgeon,
provided a history and results on examination. He diagnosed bilateral hip arthritis, end-stage
disease on the right, flexion contracture, low back pain, bilateral L5 pars defect with instability,
and chronic low back pain with intermittent radiculopathies. Dr. Selya opined that appellant’s
condition “is due to injury sustained at work on July 11, 1989, which resulted in aggravation of
previously irrelevant pars defect at L5 and aggravation of irrelevant at that time degenerative hip
arthritis which progressed to the end-stage disease.” He opined that appellant was disabled and
could benefit from hip surgery and lumbosacral fusion.
The Board reviewed the November 30, 2012 OWCP decision and issued an order
remanding the case on April 4, 2014.5 The Board found that the September 29, 2011 decision
denying modification of the LWEC determination should have provided full appeal rights,
including the right to request a hearing. It was not a request for reconsideration of the July 12,
2011 OWCP decision, but a request for modification of the November 22, 2000 LWEC
determination. The case was remanded to properly issue a decision with full appeal rights.
Dr. Ignacio prepared a report dated January 22, 2014 and opined that appellant continued
to have chronic back pain, severe right hip pain, and advanced degenerative joint disease.
OWCP referred appellant for a second opinion examination by Dr. Willie Thompson, a
Board-certified orthopedic surgeon. In a report dated June 11, 2014, Dr. Thompson provided a
history and results on examination. He noted that a May 1, 2013 MRI scan showed degenerative
changes. Dr. Thompson opined that appellant could not perform heavy lifting or fine
manipulation. As to the selected position, he opined that appellant was capable of performing
the taxicab dispatcher position, a sedentary position with no more than 10 pounds lifting.
By decision dated July 7, 2014, OWCP denied modification of the LWEC determination.
It found the evidence was insufficient to warrant modification.
LEGAL PRECEDENT
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
5

Id.

4

rehabilitated, or the original determination was, in fact, erroneous.6 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.7
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by medical
rationale explaining the basis for the opinion.8 Medical rationale is a medically sound
explanation for the opinion offered.9
ANALYSIS
In the present case, OWCP issued a LWEC determination on November 22, 2000, finding
that the selected position of taxicab starter/dispatcher fairly and reasonably represented
appellant’s wage-earning capacity. The position was sedentary with no lifting of more than 10
pounds. The Board affirmed the LWEC determination by decision dated July 23, 2002.
Appellant seeks to modify the LWEC determination. As noted above, a modification
may be established by a material change in the nature and extent of the employment-related
condition. In reviewing the medical evidence, however, the Board finds appellant has failed to
provide sufficient evidence to establish that a modification is warranted.
The attending physician, Dr. Ignacio, opined in a January 5, 2011 report that appellant
was totally disabled. A second opinion physician, Dr. Smith, opined that appellant could still
perform the selected position in a March 29, 2011 report. OWCP selected Dr. Levitsky as a
referee physician under 5 U.S.C. § 8123(a) to resolve a conflict on the issue.10 Dr. Levitsky
provided an unequivocal opinion in a June 1, 2011 report that appellant could perform the
selected position. This report resolved the conflict and does not support modification of a
LWEC determination as of June 1, 2011.11

6

Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Id.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
10

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321.
11

It is well established that when a case is referred to an impartial medical specialist for the purpose of resolving
a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight. Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

5

The current medical evidence discussing appellant’s ability to perform the duties of the
selected position of taxicab starter/dispatcher was provided by a second opinion physician,
Dr. Thompson. In a report dated June 11, 2014, Dr. Thompson opined that appellant was
capable of performing the duties of the selected position. He provided a complete report and an
unequivocal opinion on the issue presented. The June 11, 2014 report does not support
appellant’s claim that a modification of the November 22, 2000 LWEC determination was
warranted.
With respect to evidence from appellant’s attending physicians, appellant submitted
reports from Dr. Ignacio. These reports are of diminished probative value on the specific issue
of whether there was a material change in an employment-related condition that rendered
appellant unable to perform the duties of the selected position of taxicab starter/dispatcher. In an
August 3, 2011 report, Dr. Ignacio asserts an opinion that the taxicab starter/dispatcher position
did not represent appellant’s wage-earning capacity. His rationale for his opinion was that
appellant had performed the position and it had aggravated his condition. The record indicated
that appellant had worked as a taxicab driver, and a pizza delivery driver, not as a taxicab
starter/dispatcher. The selected position for the LWEC determination was not a position that
involved prolonged periods of driving or lifting luggage. Dr. Ignacio did not demonstrate an
understanding of the actual duties of the selected position. In his November 2, 2011 report, he
noted that he agreed with Dr. Levitsky that appellant could not drive for prolonged periods.
Again, this is not the issue with respect to modification of the existing LWEC determination in
this case.
The continuing reports from Dr. Ignacio do not establish a material worsening of an
employment-related condition. In his April 9, 2012 report, Dr. Ignacio refers to appellant’s
spinal injury as getting worse. He does not clearly explain how the condition has worsened or
why he believes it is related to the July 11, 1989 employment injury. Dr. Ignacio does not
discuss the actual duties of the selected position and explain why appellant was unable to
perform the position due to an employment injury. Furthermore, Dr. Ignacio was on one side of
the conflict in medical opinion that Dr. Levitsky resolved and the continuing reports of
Dr. Ignacio are insufficient to overcome the special weight accorded the impartial specialist or to
create a new medical conflict.12
Dr. Selya provided a number of diagnoses in his July 7, 2013 report, including bilateral
hip arthritis, bilateral L5 pars defect with instability and chronic low back pain with intermittent
radiculopathies. He stated that all of these conditions were related to the July 11, 1989 injury,
without providing a sound medical explanation as to causal relationship. OWCP has not
accepted a hip condition or L5 pars defect, and Dr. Selya would have to provide a clear medical
explanation, based on an accurate factual and medical background, as to how the conditions were
causally related to lifting on July 11, 1989 at work. Simply stating that it aggravated an
underlying condition does not constitute a sound medical explanation. Moreover, Dr. Selya does
not discuss the selected position or establish a material worsening in an employment-related
condition that precluded appellant from performing the selected position.

12

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

6

It is, as noted above, appellant’s burden of proof to establish a modification of the wageearning capacity determination. The medical evidence of record is not sufficient to meet
appellant’s burden of proof in this case.
On appeal, appellant states that he disagrees with OWCP’s decision and that OWCP
failed to properly consider Dr. Ignacio’s reports. He stated that he still needs medical treatment
and surgery, and he resubmitted medical evidence. The issue in the case is whether the medical
evidence is sufficient to warrant a modification of the November 22, 2000 LWEC determination.
The Board has reviewed the evidence of record and finds, for the reasons noted above, that
appellant did not meet his burden of proof in this case.
Appellant may request modification of the November 22, 2000 loss of wage-earning
capacity determination, supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that a modification of the
November 22, 2000 wage-earning capacity determination was warranted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2014 is affirmed.
Issued: September 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-2
Issued: February 27, 2015

Case Submitted on the Record

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

JURISDICTION
On October 1, 2014 appellant, through her attorney, filed a timely appeal from a June 9,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that her claim should be expanded to
include additional consequential conditions arising out of a February 2, 2005 employment injury.

1

The record also contains a September 24, 2014 decision rescinding authorization to change attending physicians.
Appellant has not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. §§ 501.2(c)
and 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2005 appellant, then a 50-year-old bulk mail technician, filed a
traumatic injury claim alleging that, on February 2, 2005, she twisted her left knee when she
stood up to move away from a stool. OWCP accepted the claim for a sprain/strain of the lateral
collateral ligament of the left knee.3 On November 8, 2005 appellant underwent a partial medial
and lateral menisectomy and chondroplasty of the left knee.
By decision dated June 19, 2006, OWCP terminated appellant’s wage-loss compensation
effective that date.4 It found that she had no further disability due to her February 2, 2005
employment injury.
On January 28, 2011 OWCP expanded acceptance of appellant’s claim to include a left
lateral collateral ligament tear, a tear of the left medial meniscus and an aggravation of left knee
osteoarthritis. On February 8, 2011 it authorized a left total knee arthroplasty, which was
performed on May 3, 2011. OWCP paid appellant compensation for total disability beginning
April 26, 2011. On June 22, 2011 it expanded acceptance of her claim to include chronic pain
syndrome.
In a decision dated February 9, 2012, OWCP terminated appellant’s compensation
effective February 12, 2012 after finding that she had no further disability due to her February 2,
2005 work injury.5
In a report dated October 12, 2012, Dr. Daniel R. Orcutt, a Board-certified orthopedic
surgeon, discussed appellant’s history of a total knee replacement after a work injury. He
evaluated her for pain in her lumbar spine and left hip “due to a fall caused by weakness in her
[l]eft knee” and pain in the fifth metatarsal. Dr. Orcutt diagnosed joint pain and a closed fracture
of the tarsal and metatarsal bones. In a visit status report form dated October 12, 2012, he found
that appellant was unable to work.6
On October 18, 2012 OWCP expanded acceptance of appellant’s claim to include
trochanteric bursitis of the left hip and an aggravation of lumbar sprain.7 On October 24, 2012
3

In decisions dated October 28, 2005 and January 13, 2006, OWCP denied appellant’s claim for a left ankle
fracture due to her February 2, 2005 injury. On June 9, 2006 it denied her request to change attending physicians.
In a decision dated June 29, 2006, OWCP granted appellant a schedule award for a 10 percent permanent
impairment of the left leg.
4

By decision dated January 19, 2007, OWCP denied appellant’s claim for compensation from May 6 to 10, 2005.
On April 25, 2007 it denied her request for reconsideration of its June 29, 2006 decision as insufficient to warrant
reopening the case for further merit review under 5 U.S.C. § 8128.
5

By decision dated March 19, 2012, OWCP granted appellant a schedule award for an additional 15 percent
permanent impairment of the left leg, for a total 25 percent impairment. The period of the award ran from
February 12 to December 12, 2012.
6

In a progress report dated October 31, 2012, Dr. Orcutt diagnosed an improving closed fracture of the tarsal and
metatarsal.
7

OWCP accepted these injures as a consequence of appellant’s October 2012 fall.

2

appellant advised OWCP that she fell on October 10, 2012 because her left knee buckled. On
November 26, 2012 she requested disability compensation benefits from OWCP instead of
retirement benefits from the Office of Personnel Management.
In a progress report dated November 28, 2012, Dr. Orcutt discussed appellant’s
complaints of tenderness in the left lateral femoral condyle and lateral collateral ligament and
fifth metatarsal of the foot. He diagnosed a fracture of the metatarsal and pain in the joint of the
lower leg.
On December 11, 2012 OWCP accepted that appellant sustained a closed fracture of the
left metatarsal as a consequence of her February 2, 2005 employment injury.
In a report dated December 19, 2012, Dr. G. Kevin Perdue, an osteopath and Boardcertified orthopedic surgeon, evaluated appellant for low back pain that began in 2005 after a fall
at work. On examination he found tenderness at L5 on the right and left and tenderness of both
hips. Dr. Perdue diagnosed lumbar spinal stenosis without claudication, degeneration of the
lumbar intervertebral discs, nonallopathic sacral lesions, and a disturbance of skin sensation.
On January 4, 2013 appellant filed a claim for compensation beginning July 27, 2012.
The employing establishment noted that she had retired on disability.
A magnetic resonance imaging (MRI) scan study of the lumbar spine, performed on
January 8, 2013, revealed facet joint arthropathy at L5-S1 bilaterally, a disc bulge at L4-5, and
degenerative end plate edema at T11.
On January 16, 2013 Dr. Perdue discussed appellant’s complaints of muscle pain, muscle
weakness, joint pain, and back pain. He diagnosed nonallopathic lesions of the sacral region,
lumbar spinal stenosis without neurogenic claudication, degeneration of the lumbar intervertebral
disc, disturbance of skin sensation, and other musculoskeletal symptoms. Dr. Perdue submitted
progress reports containing findings on examination and discussing his treatment of appellant
from February through March 2013.
By letter dated March 7, 2013, OWCP advised appellant that it had not accepted the
conditions for which she was currently undergoing treatment, specifically nonallopathic lesions
of the sacral region, spinal stenosis of the lumbar region without neurogenic claudication, and
degeneration of a lumbar or thoracic intervertebral disc. It requested that she explain why she
believed that she sustained a back condition as a consequence of her knee condition. OWCP
further requested that she submit a reasoned medical report addressing whether her back
condition was causally related to her knee injury.
In a report dated March 21, 2013, Dr. Orcutt related that he began treating appellant in
July 2012 for swelling, instability, and pain in the left knee due to a February 2, 2005 work
injury. In May 2011 appellant had a total knee replacement. Dr. Orcutt stated, “In Oct[ober]
2012 [appellant] fell due to weakness in her left knee. This fall caused her to aggravate
preexisting arthritis in her back. [Appellant] fell again due to weakness in [her] knee causing
injury to her 5th metatarsal.” He related that her metatarsal fracture had healed but that she had
pain in her lumbar spine and left hip due to her 2012 fall. In a visit status report, Dr. Orcutt

3

found that appellant was unable to work. He noted that her knee was unstable and recommended
additional physical therapy.
On March 21, 2013 Dr. Perdue stated, “It is reported that in Oct[ober] 2012 [appellant]
fell due to weakness in her left knee. This fall caused her to aggravate preexisting arthritis in her
back.” He noted that she had recently undergone sacroiliac joint injections and indicated that he
was treating her for her accepted conditions. Dr. Perdue advised that appellant was unable to
work due to back pain.
In a work capacity evaluation dated March 27, 2013, Dr. Orcutt found that appellant was
unable to work due to left knee instability. In a work capacity evaluation dated March 28, 2013,
Dr. Perdue opined that she could not work due to back pain.
By decision dated April 9, 2013, OWCP denied appellant’s request to expand acceptance
of her claim to include any additional consequential injuries to her lumbar spine. It thus found
that she was not entitled to compensation for disability.
Electrodiagnostic studies performed January 9, 2013, received by OWCP on April 15,
2013, revealed evidence of L5-S1 radiculopathy.
On May 5, 2013 appellant requested reconsideration. By decision dated May 8, 2013,
OWCP denied her request for reconsideration after finding that she had not raised an argument
or submitted evidence sufficient to warrant reopening her case for further merit review under
5 U.S.C. § 8128.
In a letter dated July 17, 2013, appellant related that she aggravated her low back and hip
when she fell and broke her left foot. She further indicated that she sustained an injury to her
upper back, shoulders, neck, and head as a consequence of her October 2012 fall. On August 6,
2013 appellant again requested reconsideration.8 On September 8, 2013 she requested that
OWCP expand her claim to include injuries to her shoulders, head, neck and upper lumbar spine
as a consequence of her fall. In a September 18, 2013 response, OWCP advised appellant that it
had denied all additional consequential injuries in its April 9, 2013 decision and to follow her
appeal rights.
In a report dated September 24, 2013, a physician assistant related that appellant injured
her neck and back due to a fall that occurred when her left leg gave out. She noted that appellant
indicated that she had an occupational injury to her knee in 2005.
On April 7, 2014 appellant, through her attorney, requested reconsideration of the
April 9, 2013 decision. In support of her request, she submitted a January 21, 2014 report from
Dr. Lee A. Kelley, a Board-certified orthopedic surgeon, who related that he was treating her for
“neck pain which she relates to an injury of October 10, 2012.” Dr. Kelley diagnosed cervical
strain and a cervical disc protrusion. He stated, “According to [appellant’s] history, she was

8

The record contains progress reports and disability certificates from Dr. Perdue and Dr. Orcutt dated April
through August 2013.

4

stepping out of a tow truck and fell backward and hit her head and sustained injury to her neck.
Based on [her] history, her neck injury is work related….”
In a report dated April 2, 2014, Dr. Kenneth J. Lazarus, a Board-certified neurologist,
discussed appellant’s February 2, 2005 injury when she twisted her knee and right foot. He
noted that in June 2011 her left knee buckled and she fell, hitting her head. In August 2011
appellant’s left knee again buckled and she fell, injuring her left hip and her back. In
October 2012 she struck her head on a truck platform when her left knee buckled and she fell. A
physician diagnosed a fractured metatarsal. Dr. Lazarus stated, “Throughout this period of time,
as a result of the falls and the gait abnormalities which were caused by her various orthopedic
injuries, [she] has progressive low back pain radiating to both hips and legs, worse on the left
side. To this point, the back injury has not been accepted as a compensable related injury.” He
noted that an evaluation of appellant’s headaches and problems with memory revealed an
intracranial aneurysm. Appellant also experienced urinary incontinence due to her head and
back injuries. Dr. Lazarus reviewed the medical records and listed findings on examination. He
diagnosed probable fibromyalgia predating the 2005 work injury, a left medial meniscus tear and
exacerbation of left knee osteoarthritis, postconcussive headaches, status post intracranial
aneurysm repair, postconcussive syndrome, lumbar degenerative disc disease exacerbated by
“postural stresses imposed by [her] left knee injury of 2005, multiple traumas due to gait
instability, and adjustment disorder with anxiety and depression. Dr. Lazarus stated:
“This case is very complicated. [Appellant] appears to have had a preexisting
chronic pain condition somewhat consistent with fibromyalgia syndrome. She
had a significant on-the-job injury likely causing a medial meniscus tear and
likely increasing her significant, widespread pain problems. It is clear that the onthe-job injury, its subsequent treatment, and the falls and various injuries
associated with her knee instability have caused an overall exacerbation of her
chronic pain issues including her back pain. It is likely they have contributed to
increased structural degeneration of the lumbar spine.”
Dr. Lazarus related that it was “difficult to sort out the contributions of any single,
specific, traumatic event to the development or progression of chronic pain in a patient with
fibromyalgia syndrome.”
By decision dated April 18, 2014, OWCP denied appellant’s request for reconsideration
after finding that it was untimely filed and did not establish clear evidence of error. On May 27,
2014 appellant’s attorney asserted that he timely requested reconsideration on April 7, 2014.9 By
letter dated June 6, 2014, OWCP advised that it had issued the April 18, 2014 decision in error
and would vacate the decision.
By decision dated June 9, 2014, OWCP denied modification of its April 9, 2013 decision.

9

Appellant appealed to the Board but subsequently requested that the Board dismiss her appeal.
Dismissing Appeal, Docket No. 14-1366 (issued July 24, 2014).

5

Order

LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.10
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.11
ANALYSIS
OWCP accepted that appellant sustained a sprain of the lateral collateral ligament of the
left knee, a left medial meniscus tear, an aggravation of osteoarthritis of the left lower leg,
chronic pain syndrome, trochanteric bursitis of the left hip, and an aggravation of lumbar sprain
causally related to a February 2, 2005 work injury. It further accepted that she sustained a closed
fracture of the left metatarsal due to a consequential injury on October 10, 2012.
Appellant alleged that she also aggravated her upper back, neck, shoulders, and head
when she fell on October 10, 2012. She requested disability compensation from OWCP in lieu
of retirement benefits. As discussed, appellant has the burden of proof to establish a claim for a
consequential injury by submitting reasoned medical evidence.12
On October 12, 2012 Dr. Orcutt noted that appellant underwent a total knee replacement
as the result of a work injury. He found that she sustained lumbar spine, left hip, and metatarsal
pain after she fell due to weakness in her left knee. Dr. Orcutt diagnosed joint pain and a closed
fracture of the tarsal and metatarsal bones. He determined that appellant was disabled from
employment. In a progress report dated November 28, 2012, Dr. Orcutt diagnosed a fracture of
the metatarsal and pain in the joint of the lower leg. While he noted that appellant sustained pain
in her left hip and lumbar spine, he did not directly relate any diagnosed conditions of the spine
or hip to her fall, and thus his opinion is insufficient to meet her burden of proof. Regarding
disability, Dr. Orcutt indicated that appellant was disabled from work due to her metatarsal
10

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

11

Charles W. Downey, 54 ECAB 421 (2003).

12

William C. Thomas, 45 ECAB 591 (1994).

6

fracture. He did not, however, evidence any knowledge of her work duties in finding her
disabled.13 Additionally, appellant has not filed a specific claim for compensation for disability
as a result of her accepted metatarsal fracture.
On March 21, 2013 Dr. Orcutt indicated that he treated appellant starting in July 2012 for
left knee pain, instability, and swelling as the result of a February 2, 2005 employment injury.
He related that in October 2012 she fell as a result of left knee weakness and aggravated
preexisting back arthritis. Appellant fell again and hurt her fifth metatarsal. Dr. Orcutt opined
that appellant’s metatarsal fractured had healed but that she continued to experience pain in her
left hip and lumbar spine as a result of her 2012 fall. He did not, however, provide any rationale
for his conclusion that she aggravated preexisting back arthritis. In a March 27, 2013 form
report, Dr. Orcutt found that appellant was unable to work due to left knee instability. He did
not, however, provide rationale for his opinion. Consequently, Dr. Orcutt’s reports are of
diminished probative value as they do not contain sufficient medical rationale to demonstrate
that the conclusion reached was sound, logical, and rationale.14
In a report dated December 19, 2012, Dr. Perdue, an osteopath, evaluated appellant for
low back pain that he indicated started after a 2005 fall at work. He diagnosed lumbar spinal
stenosis without claudication, degeneration of the lumbar intervertebral discs, nonallopathic
sacral lesions, and a disturbance of skin sensation. On January 16, 2013 Dr. Perdue diagnosed
nonallopathic lesions of the sacral region, lumbar spinal stenosis without neurogenic
claudication, degeneration of the lumbar intervertebral disc, disturbance of skin sensation, and
other musculoskeletal symptoms. He submitted progress reports containing findings on
examination and discussing his treatment of appellant from February through March 2013. In
his reports, Dr. Perdue did not address causation other than to note that she experienced low back
pain after a 2005 employment injury. As he did not address the relevant issue of whether
appellant’s claim should be expanded to include additional conditions due to her October 2012
consequential injury, his report is of diminished probative value.
On March 21, 2013 Dr. Perdue indicated that appellant related that she fell in
October 2012 as the result of weakness in her left knee. He opined that the fall aggravated
preexisting back arthritis. On March 28, 2013 Dr. Perdue advised that appellant was disabled
due to back pain. He did not, however, provide any rationale for his opinion. A mere conclusion
without the necessary rationale explaining how and why the physician believes that a claimant’s
accepted exposure could result in a diagnosed condition is not sufficient to meet a claimant’s
burden of proof.15
In a report dated January 21, 2014, Dr. Kelley diagnosed cervical strain and a cervical
disc protrusion. He related that he was treating appellant for neck pain which she attributed to an
October 10, 2012 injury. Dr. Kelley stated, “According to [appellant’s] history, she was stepping
13

Roger Dingess, 47 ECAB 123 (1995) (to establish causal relationship, a physician’s opinion must be based on a
complete and accurate factual and medical background and must be supported by medical rationale).
14

K.W., 59 ECAB 271 (2007).

15

See Beverly A. Spencer, 55 ECAB 501 (2004).

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out of a tow truck and fell backward and hit her head and sustained injury to her neck. Based on
[her] history, her neck injury is work related….” While Dr. Kelley indicated that appellant
related a history of hitting her head and injuring her neck due to a work injury, he did not provide
an independent opinion linking a diagnosed neck condition to the October 2012 fall. A
physician’s report is of little probative value when it is based on a claimant’s belief rather than
the doctor’s independent judgment.16
On April 2, 2014 Dr. Lazarus reviewed appellant’s history of a 2005 employment injury
to her left knee and subsequent falls in June and August 2011 and October 2012. He indicated
that at the time of her fall in October 2012 she struck her head. Dr. Lazarus diagnosed probable
fibromyalgia syndrome preexisting her employment injury in 2005. He further found that
appellant had degenerative disc disease of the lumbar spine aggravated by postural stresses from
her 2005 knee injury and trauma caused by gait instability. Dr. Lazarus advised that appellant’s
knee injury and subsequent falls worsened her chronic pain and also “likely contributed to
increased structural degeneration of the lumbar spine.” He related that it was “difficult to sort
out the contributions of any single specific traumatic event to the development or progression of
chronic pain in patient with fibromyalgia syndrome.” Dr. Lazarus’ finding, however, that her
knee injury and falls “likely” caused a lumbar degenerative condition is speculative in nature and
thus of diminished probative value.17 He further did not provide any rationale for his finding that
appellant sustained an exacerbation of her pain syndrome due to falls arising from her knee
injury.
As discussed, appellant has the burden to establish a claim for a consequential injury
through the submission of rationalized medical opinion evidence. She has not submitted
evidence from a physician who, based on an accurate factual history, found that she had
additional conditions as a consequence of her February 2, 2005 work injury and supports his or
her opinion with medical reasoning. Consequently, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that her claim should be expanded to
include additional consequential conditions arising out of a February 2, 2005 employment injury.

16

Earl David Seale, 49 ECAB 152 (1997).

17

D.D., 57 ECAB 710 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the June 9, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 27, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
GENERAL SERVICES ADMINISTRATION,
CENTRAL OFFICE -- FEDERAL
ACQUISITION SERVICE, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 18-0211
Issued: June 11, 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 November 7, 2017 appellant, through counsel, filed a timely appeal from a
September 29, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision, dated October 17, 2016, to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of the claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 23, 2015 appellant, then a 49-year-old program analyst, filed a traumatic injury
claim (Form CA-1) alleging that, on March 18, 2015, he sustained left shoulder, hand, and arm
injuries when he slipped in a washroom stall. He stopped work on March 18, 2015 and returned
on March 23, 2015.
Accompanying appellant’s claim was an unsigned March 18, 2015 emergency room note
indicating that appellant was evaluated and treated for left upper arm pain that day. Based on a
physical examination, appellant was diagnosed with a muscle strain.
On August 6, 2015 appellant filed a claim for intermittent wage-loss compensation (Form
CA-7) for the period June 1 to 12, 2015.
By development letter dated August 10, 2015, OWCP notified appellant that his claim was
initially administratively handled to allow medical payments, as his claim appeared to involve a
minor injury resulting in minimal or no lost time from work. However, the merits of appellant’s
claim had not been formally considered and his claim had been reopened for consideration of the
merits because a claim for wage loss had been filed. OWCP informed appellant that the evidence
of record was insufficient to establish his traumatic injury claim. OWCP advised appellant of the
type of medical and factual evidence needed and afforded him 30 days to submit the additional
evidence.
In response to OWCP’s request, appellant submitted additional factual and medical
evidence.
A March 23, 2015 progress note by Else Takle, a registered nurse noted that appellant was
seen for complaints of left arm and bicep pain.
In an April 17, 2015 report, Dr. Kenneth Edwards, a treating Board-certified orthopedic
surgeon, diagnosed shoulder impingement syndrome, which included acute supraspinatus
tendinitis and chronic left bicep long head rupture. Appellant had related that he had left shoulder
pain since he fell while on business travel. A physical examination revealed restricted left shoulder
range of motion due to pain.
By decision dated September 15, 2015, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record failed to establish causal relationship between the diagnosed
condition and the accepted March 18, 2015 incident.
On October 20, 2015 appellant requested reconsideration. In support of his claim, he
submitted medical evidence relevant to a left shoulder condition.

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A March 18, 2015 emergency room progress note with discharge instructions signed by
Dr. Lawrence Enweze, an orthopedic surgeon, diagnosed left upper extremity muscle strain.
Appellant also submitted medical evidence from Dr. James Gendernalik, a treating osteopath, and
Dr. Daniel Stephens, a Board-certified general surgeon, concerning his hernia condition.
In emergency room progress notes dated March 23, 2015, Dr. Richard Max, an examining
physician, noted that appellant was seen for left shoulder pain.
In emergency room progress notes signed on March 23, 2015, Dr. Esteban A. Marquez, an
examining Board-certified internist, reported that appellant was seen for discomfort following a
fall on March 18, 2015. Diagnoses included left shoulder pain.
In an October 19, 2015 report, Dr. Edwards detailed appellant’s history of injury, as well
as his past medical treatment. He noted appellant’s examination findings, which included
improved left upper extremity range of motion. Dr. Edwards expressed concern that appellant
may have a possible rotator cuff tear.
An October 25, 2015 magnetic resonance imaging (MRI) scan revealed left rotator cuff
sprain.
By decision dated February 4, 2016, OWCP denied modification of its prior decision. It
found that appellant failed to submit a rationalized medical opinion explaining how the diagnosed
condition was causally related to the accepted March 18, 2015 incident.
On February 24, 2016 appellant requested reconsideration and submitted additional
evidence.
In a February 10, 2016 report, Dr. Michael Drewno, a treating Board-certified internist,
opined that appellant’s shoulder impingement syndrome, chronic bicep long head rupture, and
inguinal hernia had been caused or aggravated by the March 18, 2015 fall at work.
By decision dated May 27, 2016, OWCP denied modification of its prior decision. It found
that appellant failed to submit a rationalized medical opinion explaining how or why the accepted
March 18, 2015 incident caused or aggravated the diagnosed conditions.
On September 27, 2016 appellant requested reconsideration and submitted additional
evidence.
In a September 26, 2016 report, Dr. Edwards diagnosed left shoulder impingement
syndrome. Examination findings and history of injury were detailed. A review of an x-ray
interpretation showed no evidence of left shoulder fracture or dislocation. Dr. Edwards also
reviewed a left shoulder MRI scan, which showed a left bicep tendon rupture and
acromioclavicular degenerative joint disease.
By decision dated October 27, 2016, OWCP denied modification of its prior decision,
finding that appellant had failed to submit rationalized medical opinion evidence explaining how
the diagnosed conditions were caused or aggravated by the accepted March 18, 2015 work injury.

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On September 22, 2017 appellant, through counsel, requested reconsideration. In support
of his request, appellant resubmitted Dr. Drewno’s February 10, 2016 report.
By decision dated September 29, 2017, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that 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.4 To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
a claimant’s application for review must be received by OWCP within one year of the date of that
decision.5 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.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not to show that OWCP erroneously applied or interpreted a specific point
of law, nor did he advance a relevant legal argument not previously considered by OWCP.7
Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether appellant submitted
rationalized medical evidence establishing causal relationship between the diagnosed left shoulder
condition and the accepted March 18, 2015 employment incident. In support of his request for
reconsideration, appellant resubmitted a February 10, 2016 report by Dr. Drewno already of
record. Evidence which is duplicative, cumulative, or repetitive in nature is insufficient to warrant
reopening a claim for merit review.8

3

Supra note 1. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

Id. at 10.607(a).

6

Id. at § 10.608(b). See Y.S., Docket No. 08-0440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

See J.F., Docket No. 16-1233 (issued November 23, 2016).

8

See D.G., Docket No. 17-1251 (issued October 23, 2017); Denis M. Dupor, 51 ECAB 482 (2000).

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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 submit pertinent
new and relevant evidence not previously considered. The Board accordingly finds that he has not
met the requirements of 20 C.F.R. § 10.606(b)(3). Accordingly, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.9
On appeal counsel provides several arguments regarding the merits of the case. The
arguments include that there is an unresolved conflict in the medical opinion evidence that OWCP
failed to properly adjudicate the claim with respect to the standard of causation, and that OWCP
failed to give deference to the treating physician’s opinion. In addition, counsel requests that the
Board address the deficiency in the medical opinion evidence found to have insufficient rationale.
As noted above, the Board lacks jurisdiction to review the merits of the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 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

See D.G., id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Beckley, WV, Employer
__________________________________________

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

Docket No. 07-480
Issued: May 7, 2007

Case Submitted on the Record

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

JURISDICTION
On December 12, 2006 appellant filed a timely appeal from a March 14, 2006 merit
decision of the Office of Workers’ Compensation Programs reducing her wage-loss benefits
based on her actual earnings. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has
jurisdiction over the merits of this wage-loss case.
ISSUE
The issue is whether the Office properly determined that appellant’s actual earnings as an
information receptionist fairly and reasonably represent her wage-earning capacity as of
March 14, 2006.
FACTUAL HISTORY
On March 17, 2004 appellant, then a 55-year-old nurse, filed a traumatic injury claim
alleging that from 2000 through 2003 she realized that her lumbar bulging disc with nerve
impingement and spinal stenosis had been aggravated by her employment duties. She also filed

an occupational disease claim on March 17, 2004 alleging that on May 15, 2003 she first realized
that her back condition and fibromyalgia were employment related. Appellant stopped work on
July 11, 2003 due to retirement and returned to work in September 2001 working predominantly
days. The Office accepted the claim for lumbar strain/sprain, aggravation of facet arthropathy,
aggravation of degenerative joint disease/osteoarthritis and aggravation of lumbar spinal
stenosis.
Appellant received intermittent wage loss for the period July 11, 2003 through
August 31, 2005. On July 5, 2005 she elected to receive benefits effective May 25, 2003 under
the Federal Employees’ Compensation Act instead of benefits issued by the Office of Personnel
Management.
On May 23, 2005 Dr. Harry H. Fathy, a second opinion Board-certified orthopedic
surgeon, diagnosed generalized degenerative joint disease, facet arthropathy, spinal stenosis and
chronic lumbosacral strain, which he opined had been permanently aggravated by her
employment. He also diagnosed fibromyalgia, which was not employment related. Dr. Fathy
concluded that appellant would be capable of performing secretarial duties four to six hours per
day. In an attached functional capacity evaluation form (OWCP-5c), he indicated that appellant
had permanent restrictions, but was capable of working six to eight hours per day. The
restrictions included sitting, walking, standing, twisting, pulling, pushing, lifting, kneeling,
squatting and climbing. Dr. Fathy also stated that appellant required 10-minute breaks every two
hours.
Appellant returned to work as an information receptionist on October 17, 2005 working
six hours per day with weekly wages of $462.70.
On November 1, 2005 the Office reduced appellant’s wage-loss compensation effective
October 17, 2005 based on her ability to earn wages as an information receptionist working 30
hours per week at a weekly pay rate of $462.00. On November 3, 2005 the Office adjusted
appellant’s loss of wage-earning capacity effective November 2, 2005 to reflect that she was
working four hours per day.
In a decision dated March 14, 2006, the Office found that appellant had been earning
wages as an information receptionist at the employing establishment working four hours per day
effective October 31, 2005 and that, as she had this position for more than two months, the
position fairly and reasonably represented her wage-earning capacity and was considered
suitable. The Office noted that appellant’s pay rate when her disability began was $1,013.15,
that the current pay rate for the job and step when injured was $1,206.40, that appellant had
actual earnings of $316.77 per week, that dividing $316.77 by $1,206.40 resulted in a loss of
wage-earning capacity of 26 percent and that when $1,013.15 was multiplied by 26 percent
appellant had a wage-earning capacity of $263.42. The Office then subtracted $263.42 from
appellant’s pay rate when disability began, $1,013.15 and determined that appellant had a loss of
wage-earning capacity of $749.33. Multiplied by appellant’s compensation rate of 75 percent,
this resulted in a new compensation amount of $562.30 per week. Using cost-of-living
adjustments, the Office found that appellant’s compensation amount was $581.50.

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LEGAL PRECEDENT
Under section 8115(a) of the Act,1 wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.2 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Board’s
decision in Albert C. Shadrick,3 has been codified by regulation at 20 C.F.R. § 10.403. Office
procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given
position for more than 60 days.4 The amount of compensation paid is based on the wage-earning
capacity determination and it remains undisturbed until properly modified.5
ANALYSIS
The Office accepted that appellant sustained lumbar strain/sprain, aggravation of facet
arthropathy, aggravation of degenerative joint disease/osteoarthritis and aggravation of lumbar
spinal stenosis. Following a period of total disability, she returned to work on October 17, 2005
in an information receptionist position. Initially appellant worked six hours per day, which was
reduced to four hours per day effective November 2, 2005. She performed this position without
incident.
On November 1, 2005 the Office informed appellant that it was reducing her wage-loss
compensation effective October 17, 2005 based on her ability to earn wages as an information
receptionist working 6 hours per day or 30 hours per week at a weekly pay rate of $462.00. On
November 3, 2005 the Office adjusted appellant’s loss of wage-earning capacity effective
November 2, 2005 to reflect that she was working four hours per day instead of six hours per
day.
The Board finds that appellant’s performance of this position in excess of 60 days is
persuasive evidence that the position represents her wage-earning capacity.6 Moreover, there is

1

5 U.S.C. § 8115(a).

2

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

3

5 ECAB 376 (1953).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
5

See Sharon C. Clement, 55 ECAB 552 (2004).

6

Office procedures provide that a determination regarding whether actual earnings fairly and reasonably represent
wage-earning capacity should be made after an employee has been working in a given position for more than 60
days. See supra note 4.

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no evidence that the position was seasonal, temporary or make-shift work designed for her
particular needs.7
The Board finds that the Office properly applied the Shadrick formula in determining her
loss of wage-earning capacity. The Office noted that the pay rate for appellant’s current position
was based on a weekly pay rate of $316.77 for 20 hours. The Office then took appellant’s
weekly pay rate when injured and determined that appellant made $1,013.15 per week when
injured and that the current pay rate for the job and step when injured was $1,206.40. The Office
then divided these earnings by her current pay rate of $316.77 and determined that appellant had
a 26 percent wage-earning capacity. The Office then multiplied the pay rate at the time of the
injury, $1,013.15, by the 26 percent wage-earning capacity. The resulting amount of $263.42
was then subtracted from appellant’s date-of-injury pay rate of $1,013.15, which provided a loss
of wage-earning capacity of $749.73 per week. The Office then multiplied this amount by the
appropriate compensation rate of three-fourths, to yield $562.30. The Office found that cost-ofliving adjustments increased this amount to $581.50. The Board finds that the Office properly
determined that appellant’s actual earnings fairly and reasonably represent her wage-earning
capacity and the Office properly reduced appellant’s compensation in accordance with the
Shadrick formula.
As there was no evidence to show that appellant’s actual earnings as an information
receptionist did not fairly and reasonably represent her wage-earning capacity, the Office
properly accepted these earnings as the best measure of her wage-earning capacity.8
CONCLUSION
The Board hereby finds that the Office properly determined appellant’s wage-earning
capacity based on her actual earnings as an information receptionist.

7

Elbert Hicks, 49 ECAB 283 (1998).

8

On appeal, appellant submitted an informational letter from the Office requesting medical evidence as it pertains
to her claim for a schedule award. As the Office has not issued a final decision on her request for a schedule award,
the issue is not before the Board in this appeal. See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2006 is affirmed.
Issued: May 7, 2007
Washington, DC

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

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

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

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