United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES, Pearl City, HI, Employer
__________________________________________

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

Docket No. 18-1632
Issued: June 1, 2020

Case Submitted on the Record

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

JURISDICTION
On August 28, 2018 appellant filed a timely appeal from a July 23, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

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

5 U.S.C. § 8101 et seq.

The Board notes that following the July 23, 2018 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 appellant has met his burden of proof to expand acceptance of his
claim to include the additional conditions of herniated nucleus pulposus (HNP) and adjustment
disorder as causally related to the accepted September 2, 2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision and order are incorporated herein by reference. The
relevant facts are as follows.
On September 9, 2014 appellant, then a 40-year-old waste-water treatment plant operator,
filed a traumatic injury claim (Form CA-1) alleging that on September 2, 2014 he felt sharp pain
in his lower back when moving a metal locker onto a truck while in the performance of duty. He
stopped work that day, and received continuation of pay through October 17, 2014.
An October 20, 2014 lumbar spine x-ray revealed mild degenerative disc disease and no
acute osseous abnormality.
On November 4, 2014 OWCP accepted appellant’s claim for lumbar sprain. Appellant
returned to modified duty on November 18, 2014.
By decision dated September 11, 2015, OWCP denied appellant’s claim for a recurrence
of disability beginning July 10, 2015.
An October 20, 2015 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated mild degenerative changes including a focal right central disc protrusion at T12-L1
causing narrowing of the right lateral recess.
On January 4, 2016 appellant requested reconsideration of the September 11, 2015
decision.
By decision dated March 31, 2016, OWCP denied modification of its September 11, 2015
decision.
On September 15, 2016 appellant filed a timely appeal with the Board. By decision dated
June 2, 2017, the Board affirmed the March 31, 2016 decision. The Board found that the medical
evidence submitted failed to establish causation between appellant’s accepted September 2, 2014
employment injury and the conditions of lumbar radiculopathy and right T12-L1 disc herniation
that disabled him from work.5
Evidence submitted subsequent to OWCP’s March 31, 2016 decision includes a June 28,
2016 report in which Dr. Scott J. Miscovich, a family and occupational medicine practitioner,
recounted a history that while at work on September 2, 2014, appellant pushed a metal locker onto
4

Docket No. 16-1824 (issued June 2, 2017).

5

Id.

2

a truck which became stuck and appellant felt a stabbing pain. A back examination demonstrated
tenderness on palpation, muscle spasms, and lumbosacral pain elicited by motion. Dr. Miscovich
diagnosed an HNP and advised that appellant should not work.
In treatment notes dated July 5 and 21, 2016, Dr. Miscovich noted continued lumbar
spasms and pain. He reiterated his diagnosis of HNP and continued to advise that appellant was
“off work.” On July 21, 2016 Dr. Miscovich additionally diagnosed adjustment disorder.
By letter dated August 4, 2016, Dr. Miscovich repeated appellant’s history of the
employment injury. He indicated that appellant’s physical examination revealed positive findings
for a herniated disc at T12-L1 where muscle spasms were present and ongoing. Dr. Miscovich
noted that he had reviewed the October 20, 2015 MRI scan report which confirmed the T12-L1
disc herniation. He diagnosed an HNP at the T12-L1 level and adjustment disorder. Dr. Miscovich
related that, when appellant attempted to slide the heavy metal tool locker further into a work truck,
he used the upper force of his mid-body, and applied most of his thoracic muscle in an attempt to
push the locker, which snagged halfway through the push, and this broke the momentum, at which
time appellant felt a sharp pain radiating from his mid-back. He indicated that appellant’s
description of the incident was consistent with his HNP at T12-L1 and opined that this was the
direct result of the September 2, 2014 employment injury.
Dr. Miscovich continued to treat appellant. In reports dated August 19, 2016 to April 27,
2017, he described examination findings, reiterated his diagnoses, and advised that appellant
should not work.
On February 23, 2017 Dr. Miscovich reported that appellant had a new subjective
complaint of dislocation of the T1-2 thoracic vertebra. He described physical examination findings
and diagnosed an HNP, dislocation of the T1-2 thoracic vertebra, a complete lesion of the L1 level
of the lumbar spinal cord, and adjustment disorder. Dr. Miscovich continued to advise that
appellant remain off work and continue physical therapy and acupuncture. In follow-up reports
dated March 28, 2017 to January 19, 2018, Dr. Miscovich described examination findings and
reiterated his findings and conclusions.
By report dated September 15, 2017, Daniel Lev, Ph.D., a clinical psychologist, noted that
appellant suffered low back pain due to a bulging disc, and that there had been three years of no
resolution in his workers’ compensation case. He referred appellant to a chronic pain program and
began training him in clinical meditation. Dr. Lev diagnosed adjustment disorder with mixed
anxiety and depressed mood.
In a February 2, 2018 letter, Dr. Miscovich noted that he began treating appellant on
June 28, 2016. He reported that on September 2, 2014, while lifting a 400-pound metal tool locker
onto a work truck with four coworkers, appellant used the upper force of his mid-body and applied
most of his thoracic muscle in an attempt to push the locker, but that halfway through his push, the
locker snagged on something in the truck and this broke his momentum. Dr. Miscovich related
that appellant instantly felt a sharp pain radiating from his mid-back. He opined that appellant’s
HNP at T12-L1 was a direct result of this incident. Dr. Miscovich also observed that appellant
had positive findings for a herniated disc at T12-L1, noting that muscle spasms were present and
were consistent with the October 20, 2015 lumbar MRI scan. He further indicated that appellant’s

3

adjustment disorder was due to difficulty adjusting to life with a severe back injury. Dr. Miscovich
concluded that appellant could not work due to pain.
By letter dated March 1, 2018, OWCP notified appellant that the evidence of record was
insufficient to support that the diagnosed conditions of HNP and adjustment disorder were causally
related to the accepted September 2, 2014 employment injury. It advised him of the medical
evidence needed and afforded him 30 days to submit the requested evidence.
On March 26, 2018 Dr. Miscovich reiterated his opinion that appellant’s HNP at T12-L1
was the direct result of this incident, as confirmed by the October 20, 2015 MRI scan report. He
maintained that prior to the September 2, 2014 incident, appellant had no preexisting back injury,
muscle spasms, or back pain.
By decision dated April 3, 2018, OWCP denied expansion of the acceptance of appellant’s
claim to include HNP and adjustment disorder. It noted that appellant’s claim remained accepted
for lumbar back sprain.
In an April 16, 2018 letter, Dr. Miscovich opined that, in his medical judgment, appellant’s
HNP was caused on September 2, 2014 when he lifted a heavy locker onto a truck, noting that
when the locker snagged on something and stopped, this caused a change in the momentum that
was exerted by appellant. He described that, due to the stoppage, the physics of the force of the
heavy locker were then transmitted through appellant’s body into his angulated and tilted spinal
column which was in an awkward position, and this transmitted force then caused the disc and
spinal column to shift which resulted in a herniated disc at T12 and L1. Dr. Miscovich noted that
he could not explain why the condition was not diagnosed earlier, other than to opine that the
previous physicians did not engage in a thorough evaluation at the time of injury. He advised that
appellant’s physical examination findings and symptoms of constant radicular pain in the midback with radiation to the T12 and L1 dermatomes, and with weakness to the musculature around
these dermatomes had always been consistent with a herniated disc at this region. Dr. Miscovich
indicated that on physical examination appellant had atrophy that resulted from his injury, which
was supported by an MRI scan report. He further opined that appellant’s adjustment disorder was
due to the lack of response from OWCP and due to being injured and in pain for years, observing
that 80 percent of people in chronic pain from an injury for more than six months would have a
mood disorder.
On July 16, 2018 appellant, through counsel, requested reconsideration of OWCP’s
April 3, 2018 decision.
By decision dated July 23, 2018, OWCP denied modification of its April 3, 2018 decision.
It found that Dr. Miscovich did not provide sufficient rationale to support his opinion that
appellant’s claimed additional conditions were causally related to the accepted September 2, 2014
employment injury. OWCP concluded that the evidence presented was insufficient to meet
appellant’s burden of proof.

4

LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence.7 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.8 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.9
While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence and to see that justice is done.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand acceptance of his
claim to include adjustment disorder as a result of the accepted September 2, 2014 employment
injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 31, 2016 merit decision. The Board
considered evidence in its June 2, 2017 decision and found that it was insufficient to establish a
recurrence of disability commencing July 10, 2015 causally related to the accepted September 2,
2014 employment injury. Findings made in prior Board decisions are res judicata absent any
further review by OWCP under section 8128 of FECA.11
In support of the request to expand the acceptance of his claim to include adjustment
disorder, appellant submitted the September 15, 2017 report of Dr. Lev, a clinical psychologist,
who noted that appellant suffered low back pain due to a bulging disc, and that there had been
three years of no resolution in his workers’ compensation case. Dr. Lev diagnosed adjustment
6

S.S., Docket No. 19-1803 (issued April 1, 2020); see T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).
7

G.V., Docket No. 20-0055 (issued April 21, 2020); John D. Jackson, 55 ECAB 465 (2004).

8
See K.T., Docket No. 19-1718 (issued April 7, 2020); P.M., Docket No. 18-0287 (issued October 11, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
9

R.K., Docket No. 20-0049 (issued April 10, 2020); James Mack, 43 ECAB 321 (1991).

10

C.H., Docket No. 19-1315 (issued March 16, 2020); J.S., Docket No. 16-0777 (issued January 3, 2017);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34
ECAB 1233, 1237 (1983).
11

See I.S., Docket No. 19-1461 (issued April 30, 2020).

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disorder with mixed anxiety and depressed mood, but failed to provide an opinion on the issue of
causal relationship. The Board has held that a report is of no probative value regarding causal
relationship if it does not contain and opinion as to how the accepted employment incident relates
to the diagnosed conditions.12 As such, Dr. Lev’s opinion is insufficient to meet appellant’s burden
of proof on this matter.
Appellant also submitted reports in which Dr. Miscovich diagnosed adjustment disorder.
In his April 16, 2018 letter, Dr. Miscovich indicated that appellant’s adjustment disorder was due
to the lack of response from OWCP and from being injured and in pain for years. He maintained
that 80 percent of people in chronic pain from an injury for more than 6 months would have a
mood disorder. While Dr. Miscovich provided affirmative opinions that supported causal
relationship, he did not offer a rationalized medical explanation in any of his reports to support his
opinion. His noted statistics are of general application and are not determinative of whether the
specifically claimed adjustment disorder is related to the accepted September 2, 2014 employment
injury.13 Moreover, medical evidence that provides a conclusion, but does not offer a rationalized
medical explanation regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.14 Thus, Dr. Miscovich’s opinion is insufficient to meet
appellant’s burden of proof. As such, appellant has not submitted sufficient well-rationalized
medical evidence to support expansion of acceptance of his claim to include adjustment disorder.
The Board further finds that the issue of expansion of the acceptance of appellant’s claim
to include the additional condition of an HNP is not in posture for decision.
Dr. Miscovich began treating appellant on June 28, 2016 and consistently submitted reports
advising that the September 2, 2014 employment injury caused the HNP seen on the October 20,
2015 MRI scan. The October 20, 2015 lumbar MRI scan demonstrated mild degenerative changes
of the lumbar spine, including a focal right central disc protrusion at T12-L1 that caused narrowing
of the right lateral recess. In his April 16, 2018 correspondence, Dr. Miscovich stated that in his
medical judgment, the HNP was caused on September 2, 2014 when lifting a heavy locker onto a
truck. He explained how the herniated disc was caused by the incident in biomechanical terms,
writing that appellant’s herniated disc was caused on September 2, 2014 when he lifted a heavy
locker onto a truck, noting that when the locker snagged on something and stopped moving, this
caused a change in the momentum that was exerted by appellant and that, due to the stoppage, the
physics of the force of the heavy locker were then transmitted through appellant’s body into his
angulated and tilted spinal column which was in an awkward position, and this transmitted force
then caused the disc and spinal column to shift which resulted in a herniated disc at T12 and L1.
The Board notes that, while none of Dr. Miscovich’s reports are sufficiently rationalized
to meet appellant’s burden of proof to establish expansion of the acceptance of the claim to include
a herniated disc, they are sufficient to require further development of the case by OWCP.15 His
12

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

See S.J., Docket No. 20-0157 (issued April 1, 2020); Dominic E. Coppo, 44 ECAB 484 (1993).

14

M.B., Docket No. 19-1655 (issued April 7, 2020); A.D., 58 ECAB 149 (2006).

15
J.P., Docket No. 19-1206 (issued February 11, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne,
29 ECAB 820 (1978).

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opinion was supportive, was bolstered by objective findings, and was based on a firm diagnosis
and accurate history.16 It is well established that proceedings under FECA are not adversarial in
nature, and while the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence.17 OWCP has the obligation to
see that justice is done.18
Accordingly, the Board finds that the case must be remanded to OWCP. On remand,
OWCP should prepare a statement of accepted facts and refer appellant to an appropriate medical
specialist. Upon referral, the physician shall conduct a physical evaluation and provide a
rationalized opinion as to whether appellant’s diagnosed HNP was caused or aggravated by the
accepted September 2, 2014 employment injury. Following this and any other further development
as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include the additional condition of adjustment
disorder as causally related to the accepted September 2, 2014 employment injury. The Board
further finds that the case is not in posture for decision regarding whether acceptance of his claim
should be expanded to include the condition of an HNP.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded to
OWCP for further proceedings consistent with this decision of the Board.
Issued: June 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

See S.T., Docket No. 18-1119 (issued March 6, 2019).

17

J.P., supra note 15; Phillip L. Barnes, 55 ECAB 426 (2004); Dorothy L. Sidwell, 36 ECAB 699 (1985).

18

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, J.T. WEEKER
INTERNATIONAL SERVICE CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-2546
Issued: May 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 4, 2008 appellant timely appealed a June 25, 2008 Office of Workers’
Compensation Programs’ merit decision denying modification of a July 5, 2007 merit decision,
and an April 15, 2008 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on April 28, 2003.
FACTUAL HISTORY
On May 16, 2003 appellant, a 46-year-old flat sorter machine (FSM) operator filed a
traumatic injury claim (Form CA-1). She alleged that she strained her back on April 28, 2003
while loading a FSM machine. Appellant filed a notice of recurrence (Form CA-2a) on May 15,

2007, alleging that her limited, light-duty federal employment caused a recurrence of her back
condition.
By letter dated May 23, 2007, the Office notified appellant that it had not developed her
original traumatic injury claim because it appeared that the injury alleged was minor and no time
was lost from work. It stated that it would process her traumatic injury claim, but that the
evidence currently of record was insufficient to support her claim and requested that she submit
comprehensive medical evidence.1
Appellant submitted no further evidence in support of her claim, and by decision dated
July 5, 2007, the Office denied her claim, concluding that the evidence of record was insufficient
to establish that she sustained an injury in the performance of duty on April 28, 2003.
Appellant disagreed, and on April 8, 2008, she requested reconsideration.
Appellant submitted no new evidence and did not raise a new legal question. By decision
dated April 15, 2008, the Office denied reconsideration.
Appellant again disagreed with the Office’s decision and requested reconsideration on
May 23, 2008.
In support of this request for reconsideration, appellant submitted a December 16, 2003
report signed by a physician whose name is illegible. This report proffered a diagnosis of lumbar
strain. In a May 29, 2006 report, Dr. Alison Pryce, a Board-certified diagnostic radiologist,
reported findings from an MRI scan of appellant’s pelvis. She asserted that the MRI scan
revealed no abnormalities. Appellant underwent an MRI scan examination of the lumbar spine
on June 1, 2006. Dr. Ajay C. Mehta, a Board-certified radiologist, reported that appellant had
mild to moderate disc bulge/protrusion at L5-S1, which was unchanged from the previous study
of March 21, 2004 but had significant change at L4-5. Appellant now had a large focally
extruded fragment which was affecting the thecal sac and the exiting nerve root. She submitted a
June 2, 2006 medical report from Dr. Javaid Iqbal, a Board-certified neurologist, reported that
nerve conduction studies of both legs revealed no abnormality. Dr. Iqbal reported that appellant
probably has left-sided upper lumbar plexopathy leading to weakness involving the left iliopsoas
and quadriceps muscles. The Office also received a February 26, 2007 report from Jason
Gorska, a physical therapist, who noted that appellant had been seen for eight visits beginning
January 11, 2007 for low back pain.
By decision dated June 25, 2008, the Office denied modification of its prior decision
because the evidence of record was insufficient to establish that appellant sustained a traumatic
injury in the performance of duty on the date alleged.

1

The Board notes that appellant submitted leave analysis documents. As they were illegible, they are of no
probative value.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.5 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9

2

5 U.S.C. §§ 8101-8193.

3

Anthony P. Silva, 55 ECAB 179 (2003).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

6

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

ANALYSIS
While the Office accepted that the employment-related event occurred as alleged, that is
that she did load an FSM machine on April 28, 2003, the Board finds that appellant failed to
meet her burden of proof in establishing that she sustained a compensable employment-related
injury in the performance of duty on April 28, 2003. The record reflects that appellant submitted
a collection of medical reports from several physicians which substantiate that as of June 2006
appellant had disc herniation at L4-5 and diffuse disc bulge/protrusion at L5-S1, as well as leftsided upper lumbar plexopathy. However, these reports are of limited probative value as none of
the reports contains an opinion concerning the causal relationship.10
To establish a causal relationship, a claimant must submit a physician’s report in which
the physician reviews the employment factors identified as causing the claimed condition and,
taking these factors into consideration as well as findings upon examination, explain whether the
employment injury caused or aggravated the diagnosed condition and presents a medical rational
in support of his or her opinion.11
Furthermore, the Board has held that the mere fact that a condition manifests itself during
a period of employment does not raise an inference or presumption that there is a causal
relationship between the two.12 Neither the fact that the condition became apparent during a
period of federal employment nor the belief that the condition was caused or aggravated by an
employment incident or factor(s) is sufficient to establish causal relationship.13 Causal
relationship must be substantiated by reasoned medical opinion evidence, which is appellant’s
responsibility to submit.14
The report from Mr. Gorska, a physical therapist, is of no probative value as a physical
therapist is not a “physician” within the meaning of section 8101(2) and cannot render a medical
opinion.15
None of the medical reports of record state a history, findings upon examination or
express an opinion as to the causal link between this diagnosed condition and factors of
appellant’s federal employment and as such are insufficient to satisfy appellant’s burden.

10

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value). Jimmie H. Duckett, 52 ECAB 332 (2001).
11

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); J.M., 58 ECAB ___ (Docket No. 06-2094,
issued January 30, 2007).
12

Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

14

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations did not constitute evidence of a sufficiently substantial nature); Samuel Buchanan, 7 ECAB 441 (1955).
15

Vicky C. Randall, 51 ECAB 357 (2000).

4

Appellant failed to submit such evidence and the Office therefore properly denied her
claim for compensation.
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury in
the performance of duty on April 28, 2003.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Brooklyn, NY, Employer
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___________________________________________ )
G.R., Appellant

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

Docket No. 17-1620
Issued: October 10, 2018

Case submitted on the record

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

JURISDICTION
On July 21, 2017 appellant filed a timely appeal from February 7 and July 7, 2017 nonmerit
decisions of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from July 15, 2016, the date of OWCP’s most recent merit decision, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 20, 2014 appellant then a 58-year-old auto clerk, filed a traumatic injury claim
(Form CA-1) alleging that on March 7, 2014 she injured her arm when pulling a heavy postal
1

5 U.S.C. § 8101 et seq.

container while in the performance of duty. The employing establishment controverted the claim
and indicated that she did not report the incident until March 20, 2014.
OWCP received a March 21, 2014 duty status report (Form CA-17) noting a March 7, 2014
date of injury, which indicated that appellant was moving postal containers and sprained her right
shoulder and arm.2 It also received a March 21, 2014 attending physician’s report (Form CA-20),
advising that on March 7, 2014 she was pulling postal containers and sprained her right shoulder
and arm. Additionally, OWCP received a March 24, 2014 duty status report, from an internist
whose signature is illegible, which also contained a March 7, 2014 date of injury. It received
attending physician’s reports and duty status reports dated April 2, 9, and 16, 2014 from an
internist, whose signature is illegible, who placed appellant on limited duty for her right shoulder
sprain/strain.
In a March 20, 2014 statement, appellant indicated that, on March 7, 2014, a Thursday
through Friday night shift, she pulled a postal container that was full of heavy items. She related
that she did not know that she had injured her arm until she tried to pull a rack and felt pain.
Appellant explained that she told an employing establishment official and her union representative
what happened, and that she would see her physician on March 26, 2014.
In a March 21, 2014 treatment note, Dr. Manuel Ceja, an internist, indicated that appellant
presented with pain in the right shoulder, which she reported occurred on March 7, 2014. He noted
that, at that time, she was working as a mail clerk and pulled a heavy postal container filled with
mail and felt a slight pain in her right shoulder. Dr. Ceja explained that appellant’s next shift was
on March 9, 2014 and she again pulled a heavy postal container and felt the same pain in her right
shoulder. He related that she reported that she informed several supervisors and initially wanted
to see her own physician, with an appointment scheduled for March 26, 2014, but the physician
changed the appointment. Dr. Ceja noted that the prior evening appellant again attempted to lift
mail from a postal container and her pain worsened. He explained that she could not wait for her
physician and was now presenting for evaluation. Dr. Ceja diagnosed sprain and strain of the right
shoulder and arm. He also saw appellant on March 24 and April 9 and 16, 2014.
By development letter dated May 5, 2014, OWCP advised appellant that when her claim
was first opened it appeared to be a minor injury that resulted in minimal or no lost time from work
and the employing establishment did not controvert continuation of pay. However, appellant’s
claim was now being reopened because it had received an indication that she had not returned to
work in a full-time capacity. OWCP advised her to submit additional factual information and
respond to questions posed in the attached questionnaire with regard to the alleged incident. It
afforded appellant 30 days to provide the additional information.
OWCP received additional attending physician’s reports and copies previously submitted
reports dated April 9, 10, 16, and 30, 2014. Appellant was continued on partial disability.
By decision dated June 5, 2014, OWCP denied appellant’s claim, finding that she had not
established that the claimed incident occurred as alleged. It noted that she had not responded to
the factual development questionnaire. Furthermore, as the employing establishment contended
2

The physician’s signature was illegible.

2

appellant did not report the incident until March 20, 2014, OWCP had advised her to clarify the
date. However, no response was received.
On June 18, 2014 appellant requested a hearing, which was held before an OWCP hearing
representative on November 24, 2014. She also provided responses to the factual development
questionnaire and explained what happened on the evening of March 20, 2014. Appellant noted
that she also submitted a statement from her coworker, R.H., who was her partner on
March 20, 2014. She explained that the March 7, 2014 incident, felt like a shoulder “stinger” and
that she notified the employing establishment. Appellant further explained that she continued her
duties without concerns or issues until March 20, 2014. She noted that she initially took Tylenol
for the pain until she could see a physician. Appellant denied any similar or prior symptoms. She
indicated that she reported the March 7, 2014 injury on March 9, 2014, most importantly to show
the state of the equipment, she was working with. Appellant denied seeking treatment for the
March 20, 2014 incident.
In a separate June 16, 2014 statement, appellant indicated that on March 7, 2014 she was
working and moved a postal container to her assignment. She explained that, in the process of
moving the mail, the wheels locked and froze, causing the equipment to come to an immediate
stop, while she was pulling it. Appellant explained that she felt pain, but the pain subsided and
she continued to work. She also indicated that she notified her supervisor on March 9, 2014.
Additionally, appellant noted that she had no problems between March 7 to 19, 2014 in regard to
her shoulder. On March 20, 2014 she explained that she was working her normal assignment,
when she attempted to move mail from the postal container to the feeder ledge of the machine.
Appellant indicated that, when she tried to lift the ledge, she felt an excruciating pain and weakness
radiating down her right arm to her right shoulder. She also promptly reported to her manager,
and when she went to the medical unit, she was deemed totally disabled with a diagnosis of
shoulder sprain/strain.
Appellant’s coworker, R.H., provided a June 9, 2014 statement advising that on March 20,
2014 appellant was working on the postal container when he witnessed her lifting the postal
container ledge and in doing so, she sustained an injury to her right shoulder.
OWCP received a copy of Dr. Ceja’s April 16 and 30, 2014 reports and what appears to be
physical therapy notes dated October 27, 2014. It also received an unsigned August 27, 2014
report.
OWCP also received new reports from Dr. Ceja dated May 14, June 27, and
September 24, 2014. Dr. Ceja examined appellant and repeated his findings and diagnoses.
In an October 22, 2014 note, Dr. Ceja indicated that the original injury was actually
March 20, 2014. He also noted that appellant had a previous right shoulder injury in 2012.
Dr. Ceja continued to keep her on restricted duties.
By decision dated January 21, 2015, OWCP’s hearing representative modified the June 5,
2014 decision to find that appellant clarified through her hearing testimony that no injury occurred
on March 7, 2014. Rather, appellant alleged that she injured her right arm on March 20, 2014,
while lifting the feeder edge on a Delivery Bar Code Sorter (DBCS) machine. However, the claim

3

remained denied as the evidence of record was insufficient to establish causal relationship between
the accepted work incident and her diagnosed conditions. The hearing representative found that
the medical evidence of record was insufficient to establish that such activity caused a right
shoulder condition, as the physicians of record inaccurately reported a March 7, 2014 injury.
On April 22, 2015 appellant requested reconsideration. She explained that on March 20,
2014 she tried to lift the steel shelving of the postal container to gain access to the mail at the
bottom half of the equipment. When appellant lifted the lid on the ledge, she felt an excruciating
pain and weakness radiating down her right arm from her right shoulder. She also noted that she
notified her manager of her injury. Appellant also explained that the March 7, 2017 date, was an
error caused by the employing establishment, and that she worked full duty until she was injured
on March 20, 2014.
OWCP received a copy of a December 1, 2014 report from Dr. Ceja.
In a January 16, 2015 report, Dr. Ceja related that March 20, 2014 was the date of injury.
He diagnosed sprain and strain of unspecified site of the shoulder and upper arm. Dr. Ceja saw
appellant on February 27, 2015 and repeated his findings and noted that she was currently working
light duty.
In an April 3, 2015 report, Dr. Ceja noted that it was a follow-up evaluation. He also
discussed the date of injury and noted that there had been some confusion about her original date
of injury and therefore the magnetic resonance imaging (MRI) scan was on hold. Dr. Ceja related
that appellant indicated that her injury was on March 20, 2014, and not March 7, 2014 as had been
originally reported. He also related that she indicated that she was “pushing up” on a postal
container with her right arm as the cause of injury and not “pulling” the postal container. Dr. Ceja
explained that, on her initial forms, appellant had written “[March 7, 2014] at 11:00 pm” as the
original date of injury and that she was “pulling” the postal container, not pushing up on it. He
noted that she produced a report from OWCP and he related that the issue was that she had not
reported her injury on March 20, 2014, as she alleged and all initial paperwork for the claimed
injury had a date of injury of March 7, 2014. Dr. Ceja also noted that it was not until October 22,
2014, that appellant requested an amendment to the date of injury and subsequent to that her
follow-up examination dates noted her date of injury as March 20, 2014, and not March 7, 2014.
He opined that it was “unclear as to why she noted it on our registration forms and not March 20,
2014 as she now claims. Appellant states that, on March 20, 2014, when she injured herself, she
did inform a supervisor who did fill out initial paperwork, but somehow it was never submitted.”
Dr. Ceja repeated his diagnosis of sprain and strain of other specified sites of the right shoulder
and arm.
In an April 3, 2015 attending physician’s report, Dr. Ceja noted that appellant was pushing
a heavy postal container with her right arm, when she felt pain in the shoulder. He checked a box
marked “yes” in response to whether she had a previous history of concurrent or preexisting injury
or disease and filled in right shoulder rotator cuff injury in 2012. Dr. Ceja advised that appellant
currently had pain in the right shoulder and diagnosed right shoulder strain/sprain. He indicated
that the first examination was March 21, 2014. Dr. Ceja advised that appellant resumed light work
on April 6, 2014. He also completed a duty status report on that date and recommended that she
could return to work with restrictions on April 2, 2014.

4

OWCP received unsigned notes that appear to be physical therapy reports dated
February 4, March 11, 13, 16, 18, 23, 27, and 30, and April 6 and 22, 2015.
By decision dated July 17, 2015, OWCP denied modification of its January 12, 2015
decision. It specifically noted that the medical and factual evidence of record did not provide a
consistent or clear explanation of how or when her injury occurred.
On April 18, 2016 appellant requested reconsideration. She explained that she worked
from March 7 through 20, 2014, which was supported by her time and attendance reports, which
she submitted at her hearing. Appellant explained that the employing establishment alleged that
the date of injury occurred on March 7, 2014, but they had firsthand knowledge that she was
performing her duties from March 7 through 20, 2014. She noted that their documentation
contradicted their argument that she sustained an on-the-job injury on March 7, 2014. Appellant
also noted that she was submitting a right shoulder MRI scan report dated January 9, 2016, which
established that she suffered a diagnosed work-related injury on March 20, 2014.
A January 9, 2016 MRI scan, which contained a March 31, 2016 addendum, was read by
Dr. John O’Donnell, a radiologist. In the addendum, he noted that appellant had pain and weakness
since March of 2014. Dr. O’Donnell found: moderate tendinosis of the supraspinatus and
infraspinatus tendon with foci of interstitial tearing at the insertion of the anterior fibers of the
infraspinatus tendon and junctional insertional fibers of the supraspinatus/infraspinatus tendons;
mild subacromial/subdeltoid bursitis; and moderate-to-severe acromioclavicular joint arthrosis
with osteophyte formation contacting the supraspinatus myotendinous junction.
By decision dated July 15, 2016, OWCP denied modification of its July 17, 2015 decision.
It found that the evidence of record was sufficient to establish that the employment incident of
March 20, 2014 occurred as alleged and that appellant was in the performance of duty. OWCP
also found that she was diagnosed with a right shoulder sprain in connection with the employment
incident of March 20, 2014. However, the claim remained denied as the evidence was insufficient
to establish causal relationship between the diagnosed condition and the accepted employment
incident.
On January 3, 2017 appellant requested reconsideration. She argued that her manager
improperly listed March 7, 2014 as the date of injury on her paperwork and then she had to prove
that he put the wrong information on the paperwork. Appellant indicated that she was sending a
copy of her MRI scan again, and hoped that OWCP would reconsider her claim.
By decision dated February 7, 2017, OWCP denied appellant’s request for reconsideration,
finding that it did not include relevant new evidence or legal argument and was therefore
insufficient to further merit warrant review.
Appellant again requested reconsideration on April 11, 2017.
OWCP received a copy of an OSHA complaint related to ergonomic hazards at the
employing establishment and a March 25, 2009 letter from the union to local presidents related to
hazards of working with the DBCS machines.

5

OWCP also received a copy of appellant’s March 20, 2014 traumatic injury claim form
with the first page completed with a March 20, 2014 date of injury.
In a June 29, 2017 statement, appellant indicated that she injured her rotator cuff on
March 20, 2014 while working on the DBCS machine. She also indicated that she was injured on
the DBCS machine in 2012 and had a right shoulder rotator cuff tear. Appellant explained that
she was fine and returned to full duty in 2013.
OWCP received a copy of the January 9, 2016 MRI scan, which contained a March 31,
2016 addendum.
By decision dated July 7, 2017, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was irrelevant or immaterial and insufficient to warrant review
of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written application
for reconsideration, including all supporting documents, sets forth arguments and contains
evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.5
ANALYSIS
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a). On January 3, 2017 appellant requested
reconsideration of the July 15, 2016 merit decision. She argued that her manager improperly listed
the wrong date of injury on her paperwork and then she had to prove that he put the wrong
information on the paperwork. The Board notes that this argument is irrelevant to the underlying
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

6

issue of causal relationship because OWCP already accepted March 20, 2016 as the date of the
employment incident.
Appellant also argued that she was sending a copy of her MRI scan again, and hoped that
OWCP would reconsider her claim. The Board notes that the January 9, 2016 MRI scan, which
contained a March 31, 2016 addendum, was previously submitted and considered by OWCP in its
July 15, 2016 decision. The Board has held that evidence which repeats or duplicates evidence
already of record does not constitute a basis for reopening a case.6 Furthermore, diagnostic studies
are of no probative value on the issue of causation as they do not address whether the employment
incident caused any of the diagnosed conditions.7
OWCP also received a copy of a letter dated September 27, 2016, in which appellant asked
an individual for assistance with her claim. This would not be relevant or pertinent new evidence
as the underlying merit issue in the case is medical in nature.8
Appellant again requested reconsideration of the July 15, 2016 merit decision on
April 7, 2017. She provided a copy of an OSHA complaint related to ergonomic hazards at the
employing establishment and a March 25, 2009 letter from the union to local presidents related to
hazards of working with the DBCS machines. Additionally, appellant provided a copy of her
March 20, 2014 traumatic injury claim form with the first page completed with a March 20, 2014
date of injury. Furthermore, she provided a June 29, 2017 statement in which she indicated that
she injured her rotator cuff on March 20, 2014 while working on the DBCS machine. Appellant
also indicated that she was injured on the DBCS machine in 2012 and had a right shoulder rotator
cuff tear. She explained that she was fine and returned to full duty in 2013. However, the claimed
incident of March 20, 2014, has been accepted by OWCP as having occurred as alleged. The
Board notes that the claim remained denied on the issue of causal relationship and medical
evidence is needed to establish appellant’s claim. Therefore, this evidence does not constitute
relevant and pertinent new evidence on the issue of whether she established a traumatic injury
causally related to the accepted March 20, 2014 employment incident.9
Appellant’s requests for reconsideration therefore 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 constituted pertinent new and relevant evidence not previously
considered. As she did not meet any of the necessary regulatory requirements, she is not entitled
to further merit review.

6

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

7

See J.S., Docket No. 17-1039 (issued October 6, 2017).

8

See supra note 4.

9

Id.

7

CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 7 and February 7, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 10, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Kaneohe Bay, HI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1757
Issued: April 19, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant filed a timely appeal from a March 20, 2018 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.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 20, 2018, the date of OWCP’s most recent decision, was
September 16, 2018. As this fell on a Sunday, appellant had until the next business day, Monday, September 17,
2018, to file the appeal. 20 C.F.R. § 501.3(f)(2). As the appeal was received by the Clerk of the Appellate Boards on
September 17, 2018, it was timely filed.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than eight
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 20, 2009 appellant, then a 54-year-old high voltage electrician, filed an
occupational disease claim (Form CA-2) alleging that he sustained injury to his left thumb joint,
right elbow, bilateral shoulders, and his neck due to factors of his federal employment. He noted
that he first became aware of his alleged injury on May 20, 2009 and first realized its relation to
his federal employment on June 17, 2009. OWCP accepted appellant’s claim for right shoulder
rotator cuff syndrome; right shoulder superior labrum, anterior to posterior (SLAP) tear; right
shoulder rotator cuff tendon tear; and right shoulder tendinitis. On October 6, 2011 appellant
underwent OWCP-approved right shoulder arthroscopic surgery.4 Effective August 31, 2012, he
voluntarily retired from federal service.
On August 18, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a June 14, 2016 report, Dr. Neelesh B. Fernandes, a Board-certified physiatrist and
OWCP second opinion examiner, assigned 10 percent right upper extremity permanent impairment
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 He rated appellant based on decreased right shoulder
range of motion (ROM) under Table 15-34.6
In a June 30, 2016 report, Dr. David H. Garelick, Board-certified in orthopedic surgery and
sports medicine serving as an OWCP district medical adviser (DMA), noted his disagreement with
Dr. Fernandes’ June 14, 2016 second opinion report because the impairment rating was based on
right shoulder loss of ROM. He explained that according to Table 15-5, Shoulder Regional Grid,

3

Docket No. 17-1551 (issued December 4, 2017).

4

Dr. Gary Y. Okamura, a Board-certified orthopedic surgeon, performed a right shoulder rotator cuff repair, right
shoulder anterior inferior capsulorraphy repair, and right shoulder SLAP repair, and right shoulder decompression.
5

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

6

Dr. Fernandes determined that appellant had 3 percent impairment for flexion to 130 degrees, 0 percent
impairment for extension to 60 degrees, 3 percent impairment for abduction to 140 degrees, 0 percent impairment for
adduction to 60 degrees, 2 percent impairment for internal rotation to 60 degrees, and 2 percent impairment for external
rotation to 50 degrees, for a total of 10 percent right upper extremity impairment. He assigned grade modifiers of 1
for functional history (GMFH) due to appellant’s QuickDASH score of 30, which resulted in zero net adjustment.

2

appellant had five percent right upper extremity permanent impairment, utilizing the diagnosisbased impairment (DBI) methodology, for a diagnosis of right shoulder rotator cuff tear.7
By decision dated February 24, 2017, OWCP granted appellant a schedule award for five
percent permanent impairment of the right upper extremity, based on Dr. Garelick’s June 30, 2016
report. The period of the award ran for 15.6 weeks from June 10 to September 27, 2013.
On July 7, 2017 appellant appealed to the Board.
OWCP subsequently received a March 13, 2017 progress note by Dr. Okamura. Upon
right shoulder examination appellant observed pain with movement and negative impingement
signs. Dr. Okamura diagnosed right shoulder pain secondary to SLAP tear, status post
arthroscopy. He noted that Dr. Garelick determined that appellant had five percent right upper
extremity permanent impairment for his right shoulder rotator cuff tendon tear. Dr. Okamura
disagreed with Dr. Garelick’s rating and explained that appellant also had permanent impairment
due to residuals from his right shoulder SLAP tear. He opined that appellant was entitled to an
additional five percent permanent impairment due to residuals of his right shoulder SLAP tear.
By decision dated December 4, 2017, the Board set aside the February 24, 2017 decision.8
The Board found that OWCP had inconsistently applied Chapter 15 of the A.M.A., Guides
regarding the proper use of either the ROM or DBI method in assessing the extent of permanent
impairment. The Board remanded the case for OWCP to issue a de novo decision after
development of a consistent method for calculating permanent impairment of the upper
extremities.
Following remand, on January 10, 2018, OWCP referred appellant’s claim back to
Dr. Garelick. In a report dated January 11, 2018, Dr. Garelick reviewed the record, including the
statement of accepted facts, the Board’s recent December 4, 2017 decision, and FECA Bulletin
No. 17-06.9 He referenced his June 30, 2016 report for an explanation as to why appellant had
five percent right upper extremity impairment based on the DBI method. Dr. Garelick further
reported that the ROM method was applicable in this case, but explained that he could not evaluate
appellant’s permanent impairment utilizing the ROM method based on Dr. Fernandes’
examination findings. He noted that three independent measurements of appellant’s right shoulder
ROM was required to use the ROM method, but Dr. Fernandes had only provided one set of
measurements.
On January 16, 2018 OWCP referred appellant back to Dr. Fernandes for a supplemental
report and examination in order to provide a rating of permanent impairment of appellant’s right
upper extremity in accordance with the A.M.A., Guides and FECA Bulletin No. 17-06. In a
February 24, 2018 report, Dr. Fernandes reviewed appellant’s history and indicated that appellant
underwent right shoulder arthroscopy with SLAP repair, anterior-inferior capsular repair,
decompression, and rotator cuff repair surgery. He noted a QuickDASH score of 25 and related
7

A.M.A., Guides 403, Table 15-5.

8

Supra note 3.

9

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

3

that appellant currently complained of right lateral shoulder pain. Upon examination of appellant’s
right shoulder, Dr. Fernandes observed tenderness to palpation at the right supraspinatus and
infraspinatus tendons. Neurological examination showed grossly intact light touch sensation.
O’Brien’s, Scarf, and Hawkins’ tests were positive. Dr. Fernandes provided ROM findings and
indicated that he performed ROM testing three times after an initial warm-up.
Dr. Fernandes reported a diagnosis of right shoulder pain secondary to SLAP tear and high
grade partial rotator cuff tear, status post right shoulder arthroscopy. He noted a date of maximum
medical improvement (MMI) of June 10, 2013. First, Dr. Fernandes utilized the DBI method to
determine the degree of appellant’s permanent impairment. Utilizing Table 15-5, Shoulder
Regional Grid, page 404, of the sixth edition of the A.M.A., Guides, he indicated that a condition
of SLAP tear, residual symptoms, equated to a class 1 impairment with a default value of three
percent upper extremity impairment.10 Utilizing Table 15-7, page 406, Dr. Fernandes assigned a
GMFH of 1 due to a QuickDASH score of 25.11 He assigned a grade modifier of 1 for physical
examination (GMPE) under Table 15-8, page 408, due to a mild decrease in ROM.12
Dr. Fernandes referenced Table 15-9, page 410, and assigned a grade modifier of 4 for clinical
studies (GMCS) due to MRI scan.13 Applying the net adjustment formula, he calculated an
adjustment of +3,14 which moved the default value up to five percent permanent impairment.
Dr. Fernandes also utilized the ROM method to determine the degree of appellant’s
permanent impairment. He explained that, utilizing Table 15-34, Shoulder Range of Motion, page
475, appellant had a total of eight percent right upper extremity impairment due to decreased ROM
of the right shoulder.15 Utilizing Table 15-36, page 477, Dr. Fernandes assigned a GMFH of 1 due
to a QuickDASH score of 25.16 He also assigned a GMPE of 1 for under Table 15-35, page 477,
for ROM grade modifiers.17 Dr. Fernandes noted zero net adjustment. He concluded that the eight
percent right upper extremity permanent impairment based on ROM method was the higher
impairment.
In a March 16, 2018 report, Dr. Garelick indicated that he reviewed appellant’s medical
records, including Dr. Fernandes’ February 24, 2018 report. He related that he agreed with
Dr. Okamura’s impairment evaluation for three percent right upper extremity permanent
impairment under Table 15-5, page 404, of the A.M.A., Guides due to a diagnosis of SLAP tear.
Dr. Garelick indicated that, after applying the net adjustment formula, Dr. Okamura adjusted the
10

A.M.A., Guides 411, Table 15-5.

11

Id. at 406, Table 15-7.

12

Id. at 408, Table 15-8.

13

Id. at 410, Table 15-9.

14

Infra note 27.

15

A.M.A., Guides 475, Table 15-34.

16

Id. at 477, Table 15-36.

17

Id. at 477, Table 15-35.

4

award two places to the right for an overall award of five percent right upper extremity impairment.
He explained that, although he recommended an award based on a separate diagnosis, he had no
issue with Dr. Okamura’s recommendation.
Dr. Garelick also utilized the ROM method for rating permanent impairment. He noted
that Dr. Fernandes had measured appellant’s shoulder ROM three times, and thus, the ROM
method could be used. Utilizing Table 15-34, Shoulder Range of Motion, page 475, of the A.M.A.,
Guides,18 Dr. Garelick reported that appellant had three percent permanent impairment for flexion
to 130 degrees, zero percent permanent impairment for extension to 50 degrees, three percent
permanent impairment for abduction to 140 degrees, zero percent permanent impairment for
adduction to 60 degrees, two percent permanent impairment for internal rotation to 60 degrees,
and zero percent permanent impairment for external rotation to 60 degrees for a total of eight
percent right upper extremity impairment. He concluded that, because the ROM method provided
a schedule award greater than the DBI method, appellant was entitled to eight percent permanent
impairment of the right upper extremity. Dr. Garelick explained that, because appellant had
previously been awarded five percent right upper extremity impairment, appellant was owed an
additional three percent based upon the extent of his right upper extremity permanent impairment.
He noted a date of MMI of February 24, 2018, the date of Dr. Fernandes’ impairment rating.
On March 20, 2018 OWCP granted appellant a schedule award for an additional three
percent permanent impairment of the right upper extremity, totaling eight percent permanent
impairment. The period of the award ran for 9.36 weeks from February 17 to March 3, 2018.
LEGAL PRECEDENT
A claimant seeking compensation under FECA19 has the burden of proof to establish the
essential elements of his or her claim.20 With respect to a schedule award, it is the claimant’s
burden of proof to establish permanent impairment of the scheduled member or function of the
body as a result of an employment injury.21
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.22 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of
specified members, functions, and organs of the body.23 FECA, however, does not specify the
manner in which the percentage of loss of a member shall be determined. For consistent results and
18

Supra note 15.

19

Supra note 2.

20

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

21

J.M., Docket No. 18-1469 (issued March 1, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
22

See 20 C.F.R. §§ 1.1-1.4.

23

5 U.S.C. § 8107(c).

5

to ensure equal justice, the Board has authorized the use of a single set of tables so that there may
be uniform standards applicable to all claimants. Through its implementing regulations, OWCP
adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses and the
Board has concurred in such adoption.24 For schedule awards after May 1, 2009, the impairment
is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.25
In addressing impairment of the upper extremities, the sixth edition of the A.M.A., Guides
requires identifying the impairment for the class of diagnosis (CDX), which is then adjusted by
grade modifiers based on functional history (GMFH), physical examination (GMPE), and clinical
studies (GMCS).26 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS
- CDX).27
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity evaluation, the DMA should
identify (1) the methodology used by the rating physician (i.e., the DBI or ROM)
and (2) whether the applicable table in Chapter 15 of the [A.M.A.,] Guides identify
a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] Guides allow
for the use of both the DBI and ROM methods to calculate an impairment rating
for the diagnosis in question, the method producing the higher rating should be
used.” (Emphasis in the original).28
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A,] Guides allows for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”29

24

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.806.6.6a (March 2017); id., at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
26

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

27

Id. at 411.

28

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

29

Id.

6

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than eight
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s February 24, 2017 decision because the
Board has already considered this evidence in its December 4, 2017 decision. Findings made in
prior Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.30
Following the Board’s remand decision, OWCP referred appellant’s schedule award claim
back to Dr. Fernandes for examination and to provide a permanent impairment of appellant’s right
upper extremity in accordance with the A.M.A., Guides and FECA Bulletin No. 17-06. In a
February 24, 2018 report, Dr. Fernandes reviewed appellant’s history and conducted an
examination. He indicated that he performed ROM testing three times after warm-up.
Dr. Fernandes reported a diagnosis of right shoulder pain secondary to SLAP tear and high-grade
partial rotator cuff tear, status post right shoulder arthroscopy.
OWCP’s DMA, Dr. Garelick, indicated that he rereviewed appellant’s medical records and
reviewed Dr. Fernandes’s most recent report. In a report dated March 16, 2018, he first calculated
appellant’s impairment rating under the DBI rating method. Dr. Garelick related that he agreed
with Dr. Okamura’s impairment rating of five percent right upper extremity impairment due to a
diagnosis of right shoulder SLAP tear.
Second, Dr. Garelick applied Dr. Fernandes’ ROM findings from his February 24, 2018
evaluation in order to calculate permanent impairment based on the ROM rating method. Utilizing
Table 15-34, Shoulder Range of Motion, page 475, of the A.M.A., Guides,31 he reported that
appellant had three percent permanent impairment for flexion to 130 degrees, zero percent
permanent impairment for extension to 50 degrees, three percent permanent impairment for
abduction to 140 degrees, zero percent permanent impairment for adduction to 60 degrees, two
percent permanent impairment for internal rotation to 60 degrees, and zero percent permanent
impairment for external rotation to 60 degrees for a total of eight percent right upper extremity
impairment. Dr. Garelick agreed with Dr. Fernandes that, pursuant to FECA Bulletin No. 17-06,
appellant was entitled to eight percent right upper extremity permanent impairment as the
impairment rating based on the ROM rating method was the higher impairment.
The Board finds that the DMA properly utilized examination findings and correlated them
to specific provisions in the A.M.A., Guides. First, he calculated permanent impairment based on
DBI and determined that appellant had five percent right upper extremity permanent impairment

30

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

31

A.M.A., Guides 475, Table 15-34.

7

due to a diagnosis of right shoulder SLAP tear.32 Second, the DMA applied Dr. Fernandes’ ROM
findings from his February 24, 2018 evaluation in order to calculate permanent impairment based
on the ROM rating method. He determined that appellant had a total of eight percent right upper
extremity permanent impairment. The DMA agreed with Dr. Fernandes that, pursuant to FECA
Bulletin No. 17-06, appellant was entitled to eight percent right upper extremity permanent
impairment as the impairment rating based on the ROM rating method was the higher impairment.
Accordingly, OWCP properly found that appellant was entitled to eight percent permanent
impairment of the right upper extremity based on the March 16, 2018 DMA report.33
On appeal, appellant alleges that he did not receive an impairment rating for his arthritis.
As noted above, however, it is his burden of proof to establish permanent impairment with respect
to a schedule award.34 Appellant has not submitted such medical evidence in support of an
increased schedule award based on arthritis. The Board finds that there is no current medical
evidence of record supporting an impairment rating greater than the eight percent right upper
extremity permanent impairment previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than eight
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.

32

Dr. Garelick, the DMA, noted that he previously recommended a DBI rating based on a different diagnosis
(full-thickness rotator cuff tear). However, he was prepared to defer to Dr. Fernandes’ and Dr. Okamura’s rating
based on a diagnosis of SLAP tear because the award amount was the same (five percent) under Table 15-5.
33

See L.T., Docket No. 18-1031 (issued March 5, 2019).

34

Supra note 21.

8

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
White River Junction, VT, Employer
)
__________________________________________ )
P.B., Appellant

Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-799
Issued: December 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 28, 2012 appellant, through her attorney, filed an appeal of a November 14,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying
modification of the May 5, 1998 wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that OWCP’s May 5, 1998 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
On April 25, 1995 appellant, then a 35-year-old clerk, filed an occupational disease claim
alleging that her right wrist condition was due to factors of her federal employment. OWCP
1

5 U.S.C. §§ 8101-8193.

accepted her claim for an aggravation of right Keinbock’s disease. On November 20, 1995
appellant underwent a right proximal row carpectomy and, on August 1, 1996, she underwent a
resection of the radical styloid and pisiform right wrist. OWCP authorized the surgeries.
Appellant returned to work on March 5, 1997 and worked several limited-duty positions.2
On October 16, 1997 appellant started a limited-duty position as a clerk for eight hours
per day. The position provided that she verify trays, answer telephone and perform letter case
distribution for 20 minutes only every two hours. Appellant was medically restricted to a
10-pound weight limit with no keyboarding and no constant repetitive use of upper extremities.
By decision dated May 5, 1998, OWCP determined that appellant’s actual earnings in her
job as a clerk fairly and reasonably represented her wage-earning capacity and reduced her
compensation to zero.
On June 18, 1998 appellant accepted a June 4, 1998 limited-duty clerk position, which
was the same as that offered in the October 1997 job but also included additional tasks as
needed. On August 4, 1998 she received a schedule award for 23 percent permanent impairment
to the right arm.
On November 5, 1999 appellant accepted a modified transportation clerk position, which
constituted a reassignment under the employing establishment rehabilitation program. She
worked as a modified transportation clerk until injured in a work-related motor vehicle accident
on October 14, 2005.3 Appellant returned to work on January 23, 2006 in a different modified
position for four hours per day and received wage-loss compensation based on partial disability
under the October 14, 2005 injury claim. Following her recovery from her October 14, 2005
work-related motor vehicle accident, she intermittently performed general clerical work.4
Appellant also filed Forms CA-7, claims for compensation, for the period July 10 through
August 25, 2006, claiming four hours per day wage loss. OWCP adjudicated the claim as a
modification of the May 5, 1998 loss of wage-earning capacity (LWEC) and denied the claim in
decisions dated June 14, 2007, May 15, 2008 and August 12, 2009.
The employing establishment continued to offer appellant several positions, which she
either refused or her physician rejected. On October 24, 2007 appellant was separated from the
employing establishment as it could no longer accommodate her medical restrictions due to her
accepted work-related injury.

2

Appellant’s first limited-duty position of March 5, 1997 was for four hours per day, a second limited-duty
position of May 6, 1997 was for four hours per day and a third limited-duty position of August 4, 1997 was for six
hours per day.
3

The October 14, 2005 injury, assigned case number xxxxxx511, was accepted for multiple contusions, neck
sprain, right elbow sprain, right hand sprain and torn ulnar collateral ligament of the right hand, for which appellant
underwent surgical repair on November 4, 2005. Appellant eventually recovered from these injuries.
4

On August 28, 2006 appellant started a two-week full-time job performing general clerk work within her
medical restrictions. In an August 31, 2006 letter, MDO Raymond Fields noted the job was temporary until they
could come up with another job offer for duties that met appellant’s medical restrictions.

2

On February 19, 2008 appellant filed a claim of recurrence, which covered the period of
work stoppage effective October 24, 2007. In an April 17, 2009 letter, John T. Godlewski, Jr.,
human resources manager, advised that the limited-duty job offer of October 16, 1997, which the
LWEC was based on, was a modified position uniquely created to meet appellant’s medical
limitations. He noted the title of modified clerk was created in order to designate appellant’s
craft affiliation and the duties listed in the limited-duty job was gathered from other employee
tasks as well as within the administrative duties that a supervisor would normally perform.
Mr. Godlewski noted that appellant was given a new offer on October 25, 1999 as a modified
transportation clerk, meeting the same criteria indicated above, due to medical documentation
from her physician stating that she could not perform part of the work assigned on the
October 16, 1997 offer. He further stated that the employing establishment withdrew the
October 25, 1999 position under the National Reassessment Process (NRP). Mr. Godlewski
stated that it was the employing establishment position that the action taken as part of NRP met
the definition of a valid recurrence claim under OWCP’s procedures.
No action was taken on the recurrence claim until 2010. On June 1, 2010 appellant
reinformed OWCP of her recurrence claim filed on February 19, 2008. She contended that the
May 5, 1996 LWEC decision was in error.
In a November 10, 2010 letter, OWCP noted that appellant’s recurrence claim revolved
around the withdrawal of her light-duty assignment effective October 24, 2007 as part of NRP
process. It informed her that her wage-loss claim must be treated as a claim for modification of
the previously established LWEC decision and that the evidence of file did not establish that the
LWEC determination was improperly issued. Appellant was provided 30 days to submit
additional evidence and argument.
In a January 3, 201l letter, appellant’s attorney argued the May 5, 1998 decision was
issued in error based on the fact that she had not been working in a regular clerk’s position for
over 90 days.
By decision dated March 25, 2011, OWCP denied modification of its May 5, 1998
LWEC decision.
On April 8, 2011 appellant requested an oral hearing, which was held telephonically on
August 12, 2011. She testified regarding her modified employment duties as a transportation
clerk and stated that the job was created under the employing establishment’s NRP process and
that she was sent home as a result. Appellant stated that she had been involved in a work-related
motor vehicle accident and that, when she returned to work, she was told no work was available.
She stated that she had recovered from the motor vehicle accident and that her restrictions had
not changed. Appellant stated that she was released to full duty in January 2011 and that she
returned to full-duty work on June 4, 2011. She indicated that she had part-time employment
during the period 2007 to June 2011.
In a September 10, 2011 post-hearing brief, appellant’s attorney contended that
appellant’s limited-duty job was withdrawn on October 24, 2007 and that she was seeking wage
loss only until her return to full duty. Appellant noted that she had worked two part-time jobs
during the period in question and made substantially less money than her federal employment.

3

She argued that the modified job was tailored specifically for her and was changed from a
general clerk to a transportation clerk. Appellant also argued that the position was make-shift.
Copies of her W-2 forms for the period in question were submitted.
By decision dated November 14, 2011, an OWCP hearing representative affirmed the
March 25, 2011 decision finding that appellant had not met the criteria for modifying the LWEC
decision. It found that the employing establishment’s withdrawal of her limited duty on
October 24, 2007 was immaterial and the position upon which the wage-earning capacity
decision was based was not makeshift.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.6
Once wage-earning capacity is determined, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was, in fact, erroneous. These are the customary criteria for modification and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.7
FECA Bulletin No. 09-05, however, outlines OWCP’s procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.8
ANALYSIS
After OWCP issued its formal wage-earning capacity decision, the employing
establishment reassessed appellant’s rated position under NRP, resulting in a withdrawal of
limited duty and a claim for wage-loss compensation beginning October 24, 2007. It analyzed
the case under the customary criteria for modifying a wage-earning capacity determination, but
did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined therein
for claims, such as this, in which limited-duty positions are withdrawn pursuant to NRP.
5

5 U.S.C. § 8102(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
7

Daniel J. Boesen, 38 ECAB 556 (1987).

8

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

When a wage-earning capacity decision has been issued, FECA Bulletin No. 09-05
requires OWCP to develop the evidence to determine whether a modification of the decision is
appropriate. To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.
Counsel for appellant has argued before OWCP and on appeal that the wage-earning
capacity determination should be modified as the position was withdrawn in October 2007 as an
early part of NRP and the original determination was erroneous as it was based on a temporary,
limited-duty position consisting of ad hoc clerical duties, as needed, within her restrictions and
not available on the open market. Counsel added that the case is analogous to the Board’s
decision in A.J., Docket No. 10-619 (issued June 29, 2010). Counsel also noted that appellant
denied any significant change in symptoms. The Board notes that OWCP analyzed the case
under the customary criteria for modifying a wage-earning capacity determination, but did not
acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for
claims, such as this, in which limited-duty positions are withdrawn pursuant to NRP. In view of
the Board’s findings, the issue of whether the wage-earning capacity decision was erroneous will
not be addressed.
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the November 14, 2011 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning
October 24, 2007.9
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s May 5, 1998 wage-earning capacity determination is appropriate. Further action by
OWCP is warranted.

9

M.A., Docket No. 12-316 (issued July 24, 2012); see M.E., Docket No. 11-1416 (issued May 17, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 14, 2011 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: December 11, 2012
Washington, DC

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

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

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

6