United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0089
Issued: June 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 13, 2019 appellant, through her representative, filed a timely appeal from a
July 24, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days has elapsed from OWCP’s last merit decision, dated July 10, 2018, 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.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 24, 2019 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 denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 23, 2013 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 19, 2013 she sustained injuries to both arms, both
legs, lower back, and right shoulder as a result of performing her work duties, specifically sorting,
handling, and moving mail before and during her route, while in the performance of duty. She
stopped work on February 20, 2013. OWCP accepted appellant’s claim for aggravation of
preexisting cervical disc syndrome, aggravation of preexisting lumbar disc syndrome, aggravation
of preexisting bilateral derangement of the knees, and aggravation of preexisting bilateral
derangement of the shoulders. It paid wage-loss compensation on the periodic rolls, effective
May 5, 2013. Appellant subsequently retired on disability effective March 27, 2014.
On March 26, 2017 OWCP referred appellant, along with an updated statement of accepted
facts (SOAF), a copy of the case record, and a series of questions, to Dr. Gilbert Beauperthuy, a
Board-certified orthopedist, for a second-opinion evaluation regarding the status of her accepted
February 19, 2013 employment-related conditions. In an April 25, 2014 report, Dr. Beauperthuy
accurately described the February 19, 2013 employment injury and related appellant’s current
complaints for bilateral knee and low back pain. He provided examination findings and diagnosed
degenerative arthropathy to the right and left knee that was not work related, chronic lumbar
degenerative disc disease that was not work related, and bilateral rotator cuff disease that was not
work related. Dr. Beauperthuy opined that appellant’s accepted aggravation of her medical
conditions had resolved and that her ongoing symptoms were due to her preexisting degenerative
conditions and old age. He indicated that she did not have any disability due to her work-related
injury.
In reports dated May 13, June 26, and July 22, 2014, Dr. Richard Blecha, a Board-certified
orthopedic surgeon, noted his disagreement with the Dr. Beauperthuy’s April 25, 2014 report. He
provided examination findings and diagnosed lumbar spinal stenosis, multiple cervical disc
herniations, internal derangement of the right and left knee joints, degenerative tear of the medial
meniscus of the right knee, partial oblique tear within the posterior horn of the medial meniscus of
the left knee, acromioclavicular arthritis and impingement syndrome of both shoulders, right
shoulder impingement syndrome, and internal derangement of the right and left shoulders.
Dr. Blecha reported that appellant had preexisting disease affecting all these areas, but she
aggravated all of these areas on February 19, 2013 and continued to experience symptoms from
the aggravation. He related that she remained disabled from work.
OWCP determined that a conflict in the medical evidence existed between Dr. Blecha,
appellant’s treating physician, and Dr. Beauperthuy, OWCP’s second opinion physician, with
respect to the status of her employment-related conditions and disability. It referred her, along
with a SOAF and a copy of the record, to Dr. Richard S. Glosser, a Board-certified orthopedic
surgeon, for an impartial medical evaluation in order to resolve the conflict.
In a December 3, 2014 report, Dr. Glosser related that he had reviewed the record,
including the SOAF and medical reports, and noted that appellant’s claim was accepted for
2

aggravation of preexisting cervical disc syndrome, aggravation of preexisting lumbar disc
syndrome, aggravation of preexisting bilateral derangement of bilateral knees, and aggravation of
preexisting bilateral derangement of the bilateral shoulders. Upon examination of appellant’s
cervical spine, he observed some cervical tenderness to palpation and noted range of motion
findings. Examination of appellant’s lumbar spine revealed some complaints of discomfort, but
no spasm. Dr. Glosser indicated that range of motion of her right shoulder was flexion to about
160 degrees and abduction to about 150 degrees. Range of motion of appellant’s left shoulder was
full. Dr. Glosser reported that examination of her knees revealed pain about the medial joint line
and crepitation with range of motion. He related that he agreed with Dr. Beauperthuy’s opinion
that appellant had no work-related conditions causing her objective symptoms and that her
objective symptoms were a result of a significant, preexisting degenerative process. Dr. Glosser
reported that she could not return to her date-of-injury position, but explained that her work
restrictions were related to her preexisting conditions. He completed a work capacity evaluation
form (OWCP-5c) with appellant’s specific work restrictions.
On February 11, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits because her February 19, 2013 work-related injury had resolved based on
Dr. Glosser’s December 3, 2014 medical report. It afforded her 30 days to submit additional
evidence or argument, in writing, if she disagreed with the proposed termination.
Appellant submitted a February 5, 2015 duty status report by Dr. Samy Bishai, an
orthopedic surgeon, who indicated that appellant was unable to work.
By decision dated March 23, 2015, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective March 23, 2015. It found that the special weight
of the medical evidence rested with Dr. Glosser, OWCP’s impartial medical examiner, who
concluded in his December 3, 2014 medical report that she had no residuals or disability due to
her accepted February 19, 2013 work-related conditions.
On April 16, 2015 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review, which was held on December 8, 2015. In a February 19, 2016 decision,
an OWCP hearing representative affirmed the March 23, 2015 termination decision.
OWCP subsequently received a June 16, 2016 report by Dr. Bishai who recounted
appellant’s complaints of continuing pain in both knees, both shoulders, neck, and back.
Dr. Bishai provided examination findings and diagnosed lumbar, cervical, bilateral knee, and
bilateral shoulder conditions.
On February 14, 2017 appellant, through her representative, requested reconsideration. In
a February 12, 2017 letter, she asserted that Dr. Glosser did not sufficiently explain how appellant
sustained only a temporary aggravation of her preexisting conditions on February 19, 2013.
Appellant’s representative noted that both Dr. Beauperthuy and Dr. Glosser had reported that
appellant could not return to her date-of-injury position.
Appellant submitted reports dated June 22, 2016 to February 3, 2017 by Dr. Jeremy
Johnson, who specializes in family medicine. Dr. Johnson indicated that appellant was seen for
complaints of left knee pain. He conducted an examination and diagnosed left knee osteoarthritis.
In the February 3, 2017 report, Dr. Johnson related that appellant was seen for follow-up of partial
medial meniscectomy of the left knee, which occurred on December 14, 2016.
3

By decision dated April 6, 2017, OWCP denied modification of the February 19, 2016
decision.
On April 4, 2018 appellant, through her representative, requested reconsideration. She
alleged that Dr. Glosser failed to address whether appellant’s previously accepted neck sprain and
myalgia conditions had resolved. Appellant’s representative also pointed out that both
Dr. Beauperthuy and Dr. Glosser agreed that appellant continued to be disabled and was unable to
return to her city letter carrier position.
Appellant submitted physical therapy treatment notes dated January 11 to September 20,
2017 regarding her treatment for neck pain, cervicalgia, neck stiffness, and neck weakness.
In a July 10, 2018 decision, OWCP denied modification of the April 6, 2017 decision.
On July 9, 2019 appellant, through her representative, requested reconsideration. She
argued that Dr. Glosser did not provide a well-rationalized medical opinion that appellant’s
aggravation of her preexisting injuries on February 19, 2013 was temporary, not permanent. The
representative asserted that Dr. Beauperthuy and Dr. Glosser failed to provide sufficient rationale
explaining why appellant’s continuing residuals from her accepted conditions had ceased even
though she could not return to her date of injury job as a letter carrier.
Appellant submitted physical therapy treatment notes dated September 17 and October 16,
2018 co-signed by Dr. Jeffrey Knapp, a Board-certified orthopedic surgeon. Dr. Knapp noted
physical examination findings of moderate tenderness in the lumbosacral area and provided range
of motion findings. He diagnosed lumbar spondylolisthesis, low back pain, weakness of trunk
musculature and both lower extremities, and difficulty walking.
By decision dated July 24, 2019, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA4 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6

4

Supra note 2.

5

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

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A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant disagreed with the July 10, 2018 decision and timely requested reconsideration
on July 9, 2019. The underlying issue in this case is whether OWCP properly terminated her
compensation benefits as she no longer had continuing residuals or disability causally related to
her February 19, 2013 employment injury. This is a medical question. Thus, the Board must
determine if appellant presented sufficient evidence or argument regarding appellant’s continuing
disability or need for treatment to warrant a merit review pursuant to 5 U.S.C. § 8128(a).10
In her July 9, 2019 reconsideration request, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law and did not advance a new and relevant legal argument
not previously considered. In her statement, appellant’s representative argued that Dr. Glosser did
not provide a well-rationalized medical opinion establishing that appellant sustained a temporary
aggravation of her preexisting injuries. However, the Board notes that appellant’s representative
had previously made a similar argument in her February 14, 2017 reconsideration request. As
appellant’s representative did not provide a new and relevant legal argument and did not show
legal error by OWCP, appellant was not entitled to a review of the merits based on the first and
second above-noted requirements under section 10.606(b)(3).11
With her July 9, 2019 reconsideration request, appellant also submitted physical therapy
treatment notes dated September 17 and October 16, 2018 co-signed by Dr. Knapp. He provided
examination findings and diagnosed lumbar spondylolisthesis, low back pain, weakness of trunk
musculature and both lower extremities, and difficulty walking. The Board finds that Dr. Knapp’s
reports did not include any discussion regarding whether appellant was disabled from work or
continued to require medical treatment due to her February 19, 2013 employment injury. The
Board notes that the submission of evidence that does not address the particular issue involved
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

L.B., Docket No. 19-1380 (issued February 11, 2020).

11

Supra note 8; T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued
December 9, 2008).

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does not constitute a basis for reopening a case.12 Accordingly, appellant was not entitled to a
review of the merits based on the third above-noted requirement under section 10.606(b)(3).13
On appeal appellant’s representative asserted that OWCP erroneously relied on the
impartial medical report of Dr. Glosser as he failed to provide sufficient rationale to explain why
appellant’s current bilateral knee, bilateral shoulder, lumbar, and cervical spine problems were due
only to her preexisting degenerative disease. As noted above, however, OWCP has previously
considered this argument by appellant’s representative. Appellant has not advanced a relevant
legal argument not previously considered by OWCP.
Accordingly, the Board finds that appellant has not met any of the requirements
enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied her request for reconsideration without reopening the case for review on the merits.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

D.C., Docket No. 19-0873 (issued January 27, 2020).

13

Supra note 8.

14

See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Eureka, CA, Employer
__________________________________________

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

Docket No. 19-0678
Issued: October 25, 2019

Case Submitted on the Record

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

JURISDICTION
On February 4, 2019 appellant filed a timely appeal from a December 20, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective May 9, 2018, based on her capacity to earn wages in the
constructed position of information clerk for 20 hours per week.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 13, 2000 appellant, then a 53-year-old temporary recruiting assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained neck and shoulder injuries due
to factors of her federal employment. She stopped work on June 30, 2000.3 OWCP initially
accepted the claim for left shoulder and neck strains, and subsequently expanded acceptance of the
claim to include degeneration of cervical intervertebral disc, and unspecified inflammatory
spondylopathy of the cervical region. It paid appellant wage-loss compensation beginning July 1,
2000 on the supplemental rolls and on the periodic compensation rolls commencing
February 23, 2003. Appellant returned to work in April 2010, but OWCP resumed payment of
temporary total disability wage-loss compensation on the periodic rolls as of July 3, 2011.
In October 2016, OWCP referred appellant to Dr. Charles Xeller, Board-certified in
orthopedic surgery, for a second-opinion evaluation regarding her disability status. In a
November 8, 2016 report, Dr. Xeller noted the accepted conditions, and her complaints of neck
pain and limited neck motion. He reviewed the medical record including a September 20, 2011
magnetic resonance imaging (MRI) scan of appellant’s cervical spine that demonstrated multileve l
cervical degenerative disc disease. Dr. Xeller described his physical examination findings and
diagnosed cervical spondyloarthropathy with an element of spinal stenosis and no myelopathy,
and mild bilateral carpal tunnel syndrome. He advised that appellant’s cervical arthritis condition
was permanently aggravated by extensive driving required by her employment duties, and that
minor activity caused increased symptoms. Dr. Xeller advised that she could perform sedentary
desk work with light filing and answering telephones for four hours per day. He advised that
appellant could sit for three hours and stand for one hour with altering sitting and standing every
30 minutes, and no overhead lifting, squatting, kneeling, or climbing. Appellant was restricted
from driving while at work and her driving to and from work was limited to 30 minutes or less.
Pushing, pulling, and lifting were limited to 10 pounds.
OWCP referred appellant for vocational rehabilitation services in December 2016. The
vocational rehabilitation counselor performed a transferable skills assessment, noting that
appellant had a B.A. degree in business management. The employing establishment indicated that
a return to work offer would not be made. The rehabilitation counselor completed labor market
surveys for the position of information clerk and receptionist, and appellant signed an individua l
rehabilitation placement plan and job search plan and agreement on May 3, 2017. This noted a
job goal of receptionist or information clerk within appellant’s commuting area. Copies of the job
classification forms for the two positions, signed by the rehabilitation counselor on May 3, 2017,
were based on a Tri-County Vocational Services labor market survey dated May 2, 2017. The
2

Docket No. 11-2085 (issued May 10, 2012). The Board’s prior decision concerned an issue regarding an
overpayment of compensation.
3
The employing establishment indicated that this was the last day of appellant’s temporary assignment. Appellant
was terminated by the employing establishment effective July 9, 2000.

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forms indicated that both proposed positions were sedentary in nature and were available for fulltime and/or part-time positions in appellant’s commuting area.
On a prescription slip, Dr. Larry Pyle, a family medicine practitioner, noted on May 3,
2017 that appellant was unable to work due to medical “reasons.”
By letter dated May 11, 2017, OWCP informed appellant that the positions of information
clerk and receptionist were within the physical limitations as outlined by Dr. Xeller and advised
her that she was expected to cooperate fully with the vocational rehabilitation process.
Appellant began an online computer training course on June 14, 2017.
In a prescription note dated June 20, 2017, Dr. Pyle indicated that appellant was unable to
work due to pulmonary hypertension and extreme shortness of breath on minimal activity, and that
she also experienced sleep deprivation.
Appellant completed computer training on December 16, 2017. In a December 28, 2017
report, the rehabilitation counselor noted that on December 27, 2017 appellant had contacted the
rehabilitation counselor and indicated that she was unwilling to participate in the placement
process. Vocational rehabilitation services were closed.
On March 28, 2018 OWCP proposed to reduce appellant’s wage-loss compensation
benefits because she was no longer totally disabled, and that the position of information clerk was
medically and vocationally suitable for her and represented her wage-earning capacity. It noted
that the diagnosed condition of pulmonary hypertension manifested after the employment injury.
OWCP allotted appellant 30 days to respond to the proposed reduction. It attached the job
classification for the information clerk position completed by the vocational rehabilitation
counselor on May 3, 2017. The physical demands indicated that the strength level was sedentary
with no climbing, balancing, stooping, kneeling, crouching, crawling, fingering, and no
requirement for feeling, smelling, far acuity, depth perception, accommodation, color vision, or
field of vision. It required occasional reaching and handling, and frequent talking and hearing,
and required near acuity. A sedentary position limited lifting to no more than 10 pounds
occasionally.4
By letter dated April 16, 2018, appellant disagreed with the proposed reduction. She
asserted that Dr. Xeller relied on an old MRI scan and had not physically examined her to her
satisfaction. Appellant also noted that he indicated that she could only work 20 hours per week.
Appellant submitted a January 31, 2018 report in which Dr. Kimberly A. Page, a Boardcertified neurosurgeon, noted appellant’s complaint of cervical pain that had persisted for 17 years,
4

The job description for the information clerk position, Dictionary of Occupational Titles (DOT) 237.067.022, is
as follows: Answers inquiries from persons entering establishment; provides information regarding activities
conducted at establishment, and location of departments, offices, and employees within the organization; informs
customer of location of store merchandise in retail establishment; provides information concerning services, such as
laundry and valet services in hotel; receives and answers requests for information from company officials and
employees; may call employees or officials to information desk to answer inquiries; may keep record of questions
asked.

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dating back to the employment injury. She reported that a cervical spine MRI scan dated
November 30, 2017 demonstrated a progression from the 2011 study with severe bilateral
foraminal narrowing. Dr. Page described full range of motion and no tenderness on examination
of the neck. She diagnosed cervical spondylosis with myelopathy, bilateral carpal tunnel
syndrome, and noted that cervical surgery was a treatment option.
By decision dated May 9, 2018, OWCP reduced appellant’s wage-loss compensation in
accordance with section 8113(b) of FECA to reflect her loss of wage-earning capacity (LWEC)
had she continued to participate in vocational rehabilitation efforts. It determined that she had
failed, without good cause, to undergo vocational rehabilitation as directed. OWCP further found
that, if appellant had participated in good faith in vocational rehabilitation, she would have been
able to perform the constructed position of information clerk for 20 hours a week and reduced her
compensation accordingly.
In correspondence postmarked June 5, 2018, appellant requested a hearing before an
OWCP hearing representative. She maintained that Dr. Xeller had not physically examined her,
that Dr. Pyle opined that her neck injury contributed to her total disability, and that the
November 30, 2017 MRI scan, together with Dr. Page’s report, indicated that her cervical
condition prohibited work. Appellant submitted a copy of the November 30, 2017 cervical spine
MRI scan report. This demonstrated multilevel cervical canal stenosis and foraminal narrowing
which was slightly worse when compared to the September 20, 2011 scan. The study was negative
for disc extrusion.
On October 4, 2018 appellant submitted questions to Dr. Pyle. Dr. Pyle answered “yes” to
her questions as to whether the 2011 cervical MRI scan was outdated, and whether he had referred
her to Dr. Page based on the findings of the November 2017 MRI scan. As to whether appellant
could perform the physical requirements of the information clerk position for four hours daily, five
days a week, Dr. Pyle wrote that he recommended a physical assessment.
At the telephonic hearing held on October 22, 2018 appellant testified that, based on
Dr. Xeller’s report, she could not perform the information clerk position. She explained that
Dr. Xeller advised that she could not drive more than 30 minutes and that the two nearest towns,
Red Bluff and Redding, were more than 30 minutes away. Appellant also noted that she had
serious limitations on endurance and that the November 2017 MRI scan and Dr. Page’s report
indicated that her accepted cervical condition had progressed.
In a November 15, 2018 letter, an employing establishment workers’ compensation
specialist advised that the driving time to Red Bluff and Redding was less than 30 minutes. The
specialist attached documents from Google Maps verifying travel from appellant’s home to these
locations and also indicated that other types of transportation could be available.
By decision dated December 20, 2018, an OWCP hearing representative affirmed the
May 9, 2018 decision. He found that OWCP properly accorded weight to Dr. Xeller’s opinion,
finding that the information clerk position complied with his restrictions regarding appellant’s
ability to work for 20 hours a week. The hearing representative indicated that the
subsequently-acquired conditions were not to be considered, and noted that the rehabilitation
counselor determined that appellant had relevant work experience and that appellant had

4

completed computer training. He found that the information clerk position complied with the
restrictions prescribed by Dr. Xeller, that it was suitable and available in appellant’s commuting
area within prescribed driving restrictions. The hearing representative concluded that OWCP
properly determined appellant’s LWEC by applying “the Shadrick formula.”
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits. 5
OWCP’s procedures provide that noncooperation with vocational rehabilitation during the
placement stage does not generally result in a sanction decision under section 8113(b) of FECA.
Rather, if noncooperation occurs during placement, OWCP should request that the rehabilitation
counselor submit a final report and list the jobs for which placement was being attempted (i.e.,
provide updated labor market surveys, if necessary, including current pay information).
Continuing placement services for the full 90-day period is not required if the claimant has not
cooperated. Upon receipt of this information, the claims examiner should prepare a prereduction
notice determining the injured workers’ LWEC prospectively pursuant to section 8115 of FECA,
not section 8113(b), based on one of the selected positions. After considering any response to the
prereduction notice, the claims examiner should issue a final decision, if appropriate. 6
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on LWEC. 7
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.8 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition. 9
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions. The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives. The fact that an employee has been unsuccessful in obtaining work in

5

Z.W., Docket No. 18-1000 (issued June 24, 2019).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(d)
(February 2011).
7

C.H., Docket No. 19-0136 (issued May 23, 2019).

8

5 U.S.C. § 8115(a).

9

C.M., Docket No. 18-1326 (issued January 4, 2019).

5

the selected position does not establish that the work is not reasonably available in his or her
commuting area.10
OWCP must initially determine an employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the employee’s medical
condition.11 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation. 12
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently-acquired conditions.13 Any incapacity to perform the
duties of the selected position resulting from subsequently-acquired conditions is immaterial to the
LWEC that can be attributed to the accepted employment injury and for which the claimant may
receive compensation. 14
When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his or her physical limitations, education, age, and prior
experience. Once this selection is made, a determination of wage rate and availability in the open
labor market should be made through contact with the state employment service, local Chamber
of Commerce, employing establishment contacts, and actual job postings. 15 Lastly, OWCP applies
the principles set forth in Albert C. Shadrick, 16 as codified in section 10.403 of OWCP
regulations,17 to determine the percentage of the employee’s LWEC.18

10

Id.

11

J.H., Docket No. 18-1319 (issued June 26, 2019).

12

Id.

13

G.E., Docket No. 18-0663 (issued December 21, 2018).

14

Id.

15

Supra note 9; supra note 6 at Chapter 2.813.19d (November 2011).

16

5 ECAB 376 (1953).

17

20 C.F.R. § 10.403.

18

Supra note 9.

6

ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective May 9, 2018, based on her capacity to earn wages in the
constructed position of information clerk for 20 hours per week.
As noted, OWCP procedures provide that, when an employee fails to cooperate during
placement, it should follow specific procedures, including preparing a prereduction notice in which
it determines the injured workers’ LWEC prospectively pursuant to section 8115 of FECA based
on one of the positions selected by the rehabilitation counselor, to be followed by an appropriate
final LWEC decision.19
Dr. Xeller, an OWCP referral physician, opined in a comprehensive report dated
November 8, 2016 that appellant could return to part-time modified duty. He noted the accepted
conditions, and her complaints of neck pain and limited neck motion, reviewed the medical record,
and described his physical examination findings.
Dr. Xeller diagnosed cervical
spondyloarthropathy with elements of spinal stenosis with no myelopathy noted, and mild bilateral
carpal tunnel syndrome. He advised that appellant could perform sedentary desk work with light
filing and answering telephones for four hours a day. Dr. Xeller limited sitting to three hours and
standing to one hour with altering sitting and standing every 30 minutes, and no overhead lifting,
squatting, kneeling or climbing, and no driving at work. Driving to and from work limited was
limited to 30 minutes or less. Pushing, pulling, and lifting were limited to 10 pounds. OWCP
thereafter properly referred appellant for vocational rehabilitation in December 2016 as the
medical evidence established that she was no longer totally disabled due to residuals of her
employment injury.
OWCP determined that appellant had the physical capacity to perform the duties of an
information clerk for 20 hours a week. The position is classified as sedentary employment
requiring occasional lifting up to 10 pounds. Dr. Xeller’s restrictions fall within this requirement.
The vocational rehabilitation counselor noted that position of information clerk allowed for a
variety of duties, none of which exceeded Dr. Xeller’s restrictions.20 The Board finds that weight
of the medical evidence rests with the opinion of Dr. Xeller who provided a well-rationalized
report. Dr. Page did not comment on appellant’s work capacity. Dr. Pyle merely advised that
appellant could not work due to a subsequently-acquired condition and later recommended that
she have a physical assessment. Any incapacity to perform the duties of the selected position
resulting from subsequently-acquired conditions is immaterial to an LWEC,21 and he did not
indicate that she could not work due to the accepted conditions. The Board, therefore, finds that
the weight the medical evidence establishes that appellant had the physical capacity to perform the
duties of the selected position. 22

19

Supra note 6.

20

Supra note 4.

21

Supra note 13.

22

Supra note 7.

7

In assessing the employee’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also consider work experience, age, mental capacity, and
educational background. 23 In her May 3, 2017 report, the rehabilitation counselor described
appellant’s transferable skills and completed labor market surveys for the positions of information
clerk and receptionist, and appellant signed an individual rehabilitation placement plan and job
search plan and agreement on May 3, 2017. This noted a job goal of receptionist and information
clerk within appellant’s commuting area. Copies of the job classification forms for the two
positions were signed by the rehabilitation counselor on May 3, 2017, and were based on TriCounty Vocational Services labor market survey dated May 2, 2017. The forms indicated that the
positions were sedentary in nature, and were available for full-time and/or part-time positions in
appellant’s commuting area. As the rehabilitation counselor is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion in determining whether a job is vocationally
suitable and reasonably available. 24
The Board finds that OWCP considered the proper factors, including the availability of
suitable employment, appellant’s physical limitations, and employment qualifications in
determining that she had the capacity to perform the position of information clerk. 25 OWCP
properly applied the Shadrick formula, as codified in section 10.403 of its regulations,26 in
determining her LWEC.
On appeal appellant asserts that her work capacity should be based upon the opinion of
Dr. Page, that Dr. Xeller’s opinion was based upon a limited examination, and that she was unable
to drive to and from work with the restrictions assigned by Dr. Xeller. The Board has found,
however, that Dr. Page has not provided an opinion on her work capacity, that Dr. Xeller has
provided a rationalized medical opinion, and that the restrictions of Dr. Xeller as to driving are
consistent with her ability to commute to the location of available employment positions.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective May 9, 2018, based on her capacity to earn wages in the
constructed position of information clerk for 20 hours a week.

23

Supra note 9.

24

Supra note 7; supra note 6 at Chapter 2.816.6(b) (June 2013).

25

T.B., Docket No. 17-1777 (issued January 16, 2019).

26

Supra note 16.

8

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Memphis, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1053
Issued: November 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2009 appellant timely appealed the February 25, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On September 26, 2006 appellant, then a 53-year-old modified mail handler, filed a claim
for injuries to her back, legs and knees, which reportedly arose on or about May 5, 2006.1 She
1

Appellant has an accepted claim for left foot osteoarthritis, which arose on or about August 8, 2001.
Additionally, the Office had previously accepted a December 10, 1996 left foot bunion (hallux valgus-acquired).
The current claim was originally filed as a recurrence of appellant’s 1996 injury. However, based on appellant’s
description of the alleged cause of her injury, the Office advised that her claim would be treated as a new
occupational disease claim.

attributed her condition to her then-current duties as a flat sorting machine operator.2 Appellant,
however, did not initially submit any medical evidence in support of her claim. In a decision
dated January 22, 2007, the Office denied her occupational disease claim.
The same day the claim was denied, the Office received a November 8, 2005 return to
work certificate from appellant’s podiatrist, Dr. Frank A. Ognibene. Although Dr. Ognibene did
not provide a specific diagnosis, he indicated that appellant was excused from work during the
period October 24 to November 8, 2005. He also noted that appellant was able to perform lightduty work beginning November 9, 2005, with limited walking and standing.
On January 29, 2007 appellant requested a review of the written record. By decision
dated May 7, 2007, the Office hearing representative affirmed the January 22, 2007 Office
decision.
On November 11, 2007 appellant requested reconsideration. She submitted, among other
things, several reports from Dr. F. Oliver Hardy, a family practitioner and general surgeon. In a
January 27, 2007 report, Dr. Hardy diagnosed patella-femoral dysfunction and lower back pain.
Appellant reported that while lifting trays of magazines weighing 15 pounds or more she
experienced severe pain in her back and right knee, particularly with ambulation while carrying
the trays. In an addendum, Dr. Hardy reported that she initially sustained an injury on her job
when she was hit from the rear with a forklift and her right knee also hit a lowboy. He
recommended physical therapy for appellant’s back and right knee.
In a February 9, 2007 letter to the Office, Dr. Hardy indicated that appellant continued to
have pain and discomfort and that physical therapy and a transcutaneous electrical nerve
stimulation unit was recommended.
Dr. Hardy reexamined appellant on February 10, 2007 and reported that she had been
attending physical therapy for her lower back and right knee patella-femoral dysfunction.
Despite ongoing therapy, appellant continued to experience pain and discomfort in her knee and
lumbosacral spine. Dr. Hardy diagnosed right patella-femoral dysfunction, lower back pain,
hypertension, hypertensive cardiovascular disease, hyperlipidemia, chronic sinusitis and seasonal
allergy. He recommended continued physical therapy and magnetic resonance imaging (MRI)
scans for the knee and lumbosacral spine.
A February 21, 2007 right knee MRI scan revealed mild knee joint effusion,
osteoarthritis, a horizontal medial meniscal tear, chondromalacia patellae and a Baker’s cyst.
In an August 7, 2007 report, Dr. Hardy diagnosed a number of conditions, including
hypertension, hypertensive cardiovascular disease, hyperlipidemia, reflux esophagitis, gastritis,
history of on-the-job injury with low back pain, status post hallux valgus surgery of the left toe,
and osteoarthritis of the foot.
Appellant also submitted December 3, 2007 physical therapy treatment records for right
knee and low back pain.

2

Appellant explained that lifting and moving 25-pound trays of mail on and off conveyor lines on a daily basis
caused stress and strain on her lower back and right knee, which resulted in excruciating pain.

2

The Office did not respond to appellant’s November 11, 2007 request for reconsideration,
and, therefore, she filed a second request dated December 3, 2008.
In a February 25, 2009 decision, the Office denied modification of the hearing
representative’s May 7, 2007 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.5
ANALYSIS
Appellant’s claim for an employment-related low back and right knee injury is not
supported by the medical evidence of record. First, Dr. Ognibene’s November 8, 2005 back to
work certificate is unrelated to the current claim for a low back and right knee injury. His
November 8, 2005 note predated the claimed low back and right knee injuries by six months and
did not include a diagnosis. Second, the February 21, 2007 right knee MRI scan is primarily a
diagnostic tool. The MRI scan did not address what, if any, relationship existed between
appellant’s employment duties and the numerous right knee abnormalities the scan revealed.
Third, the December 3, 2007 physical therapy records do not constitute competent medical
opinion evidence.6 Lastly, the several reports authored by Dr. Hardy do not specifically relate
appellant’s flat sorting machine duties to her low back and right knee complaints. His
January 27, 2007 report was the only one to mention appellant’s complaints of right knee and
back pain while working with 15-pound trays of magazines. However, even in that particular
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2009); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
5

Victor J. Woodhams, supra note 4.

6

A physical therapist is not considered a “physician,” as that term is defined under 5 U.S.C. § 8101(2). See, e.g.,
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

3

report, Dr. Hardy did not specifically attribute appellant’s low back and right knee complaints to
her then-current employment duties.7 Based on the evidence of record, the Board finds that
appellant failed to establish that her claimed low back and right knee conditions are employment
related. Appellant notes in her appeal that she has had difficulty obtaining medical evidence
from her physician on a timely basis. Under the statute, however, appellant has the burden of
establishing her claim.
CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Dr. Hardy’s addendum to the January 27, 2007 report indicated that appellant initially sustained an on-the-job
injury when she was hit from behind with a forklift and her right knee also hit a lowboy. However, he did not
identify the date of this particular injury.

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF TRANSPORTATION,
)
MARITIME ADMINISTRATION,
)
Washington, DC, Employer
)
___________________________________________ )
T.O., Appellant

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

Docket No. 08-1390
Issued: November 5, 2008

Case Submitted on the Record

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

JURISDICTION
On April 11, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated February 14, 2008 which denied appellant’s claim
for an occupational disease. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether appellant has met his burden of proof in establishing that
he developed eye strain and numbness of the right arm in the performance of duty.
FACTUAL HISTORY
On May 7, 2007 appellant, then a 64-year-old senior transportation industry analyst, filed
an occupational disease claim alleging that he developed eye strain and numbness of the right
arm as a result of working at a computer. He became aware of his condition on May 15, 2007

and the relationship of his condition to his work duties on April 30, 2007. Appellant did not stop
work.
Appellant submitted a May 1, 2007 prescription note from Dr. Linda Dressler, a Boardcertified ophthalmologist, who prescribed special computer progressive eyeglasses to treat eye
strain and numbness of the right arm. Dr. Dressler noted that head “mal-positioning” may
aggravate a neck condition.
By letter dated October 11, 2007, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors.
Appellant submitted a statement dated October 18, 2007 describing his work duties from
1990 to 2007, which included performing detailed computer programming, calculating guideline
freight rates and using various software programs to complete administrative office work. He
indicated that his vision worsened, which required him to wear prescription computer
progressive eyeglasses. Appellant’s job duties required him to move his head up and down
which contributed to his right arm numbness. He noted that since wearing the prescription
glasses his eye strain has disappeared and his right arm numbness has decreased. Appellant
advised that he was seeking reimbursement for the prescription glasses. He further noted that
Dr. Dressler sent a letter to the Office on October 24, 2007 describing the cause of his eye
condition. No additional evidence was received by the Office.
In a decision dated February 14, 2008, the Office denied appellant’s claim for
compensation. It found that the work factors occurred as alleged, however, the medical evidence
of record did not support that his eye or right arm conditions were causally related to those
factors. The Office found that the prescription note from Dr. Dressler did not provide a reasoned
medical explanation as to how appellant’s conditions were related to the factors of his
employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 timely filed within the applicable time limitation period of the Act, that the injury was
sustained 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. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
1

Gary J. Watling, 52 ECAB 357 (2001).

2

or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized 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.2
ANALYSIS
It is not disputed that appellant’s duties as a senior transportation industry analyst
included extensive work that involved viewing a computer monitor and moving his head.
However, he has not submitted sufficient medical evidence to support that his claimed eye strain
or numbness to the right arm was caused by the employment duties.
On October 11, 2007 the Office advised appellant of the medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated his
claimed condition. The only medical evidence submitted is a prescription note from Dr. Dressler
dated May 1, 2007. Dr. Dressler merely prescribed computer progressive eyeglasses for eye
strain and numbness of the right arm. She opined that head “mal-positioning” may aggravate a
neck condition. However, these notes do not provide a history of injury3 or address whether
appellant’s employment work activities caused or aggravated the diagnosed medical conditions.4
Appellant’s burden of proof includes the submission of rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
his employment and any diagnosed condition. Consequently, this note does not establish
appellant’s occupational illness claim.
The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how and why his eye strain and right arm numbness is
employment related, he has not met his burden of proof.
Appellant, on appeal, asks to be compensated for the expense of his eyeglasses. Office
procedures note that eye glasses for the correction of refractive error will be furnished only when
2

Solomon Polen, 51 ECAB 341 (2000).

3

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
4

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

3

there is an accepted eye condition necessitating eye glasses.5 The medical evidence, as noted, is
insufficient to establish that appellant’s eye condition is causally related to his federal
employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.6 Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board therefore finds that, as none of the medical reports provided an opinion that
appellant sustained an employment-related injury in the performance of duty, appellant failed to
meet his burden of proof.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(1)
(October 1995).
6

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER U.S. PACIFIC FLEETSHIPYARDS, Bremerton, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0660
Issued: August 13, 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 January 2, 2019 appellant, through counsel, filed a timely appeal from a July 19, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated May 13, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 20-0660 (issued May 13, 2020).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish that modification of
a March 18, 2008 loss of wage-earning capacity (LWEC) determination was warranted.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On November 12, 1997 appellant, then a 52-year-old welder, filed a traumatic injury claim
(Form CA-1) alleging that on October 28, 1997 he sustained injury to his right knee when he
stepped off a rail car and jammed his knee while in the performance of duty.6 He did not stop
work. OWCP accepted the claim for right knee lateral collateral ligament sprain and right knee
lateral meniscus tear and authorized a right knee lateral arthroscopic meniscectomy, which
occurred on March 30, 1998.7 The March 30, 1998 operative record indicated right knee findings
of lateral compartment chondrocalcinosis of the lateral meniscus, tear of the lateral meniscus, and
degenerative changes on the lateral and medical plateau. OWCP paid appellant wage-loss
compensation on the periodic rolls as of November 8, 1998.
In a report dated July 17, 1998, Dr. David L. Schenkar, a Board-certified orthopedic
surgeon, acting as an OWCP second opinion physician, diagnosed ongoing knee wear with
degenerative and or traumatic-type injury. He opined that although appellant’s condition “will
improve a bit,” he was stable and his right knee was permanently impaired. Dr. Schenkar noted
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the July 19, 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.
5

Order Granting Remand, Docket No. 17-1816 (issued January 17, 2018); Docket No. 12-0626 (issued
September 20, 2012).
6

OWCP assigned OWCP File No. xxxxxx255. On October 30, 1995 appellant filed a traumatic injury claim
alleging that on October 23, 1995 he injured his right knee when he tripped and fell on a stud on a deck. OWCP
assigned OWCP File No. xxxxxx248 and accepted the claim for right knee contusion and right leg cellulitis. On
December 29, 1997 OWCP combined OWCP File No. xxxxxx248 with the instant case, OWCP File No. xxxxxx255,
the latter which serves as the master file. The record also reflects that appellant filed a claim on November 17, 2008
under OWCP File No. xxxxxx356 for shoulder and arm conditions due to use of power tools at work. Appellant
alleged that he became aware of these conditions on August 8, 1995. OWCP denied this claim as untimely filed.
7

OWCP noted concurrent conditions of heart attack, coronary artery disease, depression, and right knee
chondrocalcinosis. The record also contains evidence of preexisting bilateral lower extremity severe venous
insufficiency.

2

that appellant had a documented history in his chart, as far back as 1995, of bouts of cellulitis and
chronic edema in the leg as a complication of chronic varicose veins.
Appellant was terminated from his position as a welder at the employing establishment as
the employing establishment found appellant medically unable to perform the full range of
functions required in his position effective March 7, 2003.
In a November 13, 2005 report, the vocational rehabilitation counselor determined that
appellant was capable of working as an electronics worker assembling manufactured parts and that
the position was available in sufficient numbers in his commuting area.
In an October 2, 2006 report, Dr. Michael S. McManus, a Board-certified occupational
medicine physician, noted that appellant had permanent work restrictions due to the accepted
employment injury. He reported that appellant’s right knee work restrictions remained unchanged.
Dr. McManus indicated that appellant was capable of performing the duties of an electronics
worker. He was advised by appellant that he suffered upper extremity impairments, however, he
was unsure how such permanent impairment would preclude him from the electronics worker
position. In an attached work capacity evaluation form (Form OWCP-5c), Dr. McManus indicated
that appellant had permanent work restrictions as of August 25, 1998. The restrictions included
up to 40 minutes of sitting at a time up to 4 hours per day, up to 10 minutes of walking and standing
at a time, up to 2 hours of bending/stooping, up to 2 hours of squatting, no lifting more than 40
pounds, no kneeling, climbing, running, or jumping and no pulling or pushing more than 50
pounds.
In a December 21, 2007 report, the vocational rehabilitation counselor noted that the
position of electronics worker was currently available in sufficient numbers in appellant’s labor
market. He noted that appellant lives in Belfair, Washington and that there were sufficient jobs
available in his labor market, which included King, Pierce, and Kitsap counties. Under physical
demands, the vocational counselor noted the job required occasional exertion of up to 20 pounds
of force, occasional-to-frequent exertion of up to 10 pounds, and generally provided the ability to
alternate between sitting and standing.
By decision dated March 18, 2008, OWCP reduced appellant’s wage-loss compensation,
effective that day, as it found that he had the capacity to earn wages in the constructed position of
an electronics worker.
On March 27, 2008 appellant requested a hearing before an OWCP hearing representative.
By decision dated September 29, 2008, an OWCP hearing representative affirmed the March 18,
2008 LWEC determination.
Appellant requested reconsideration. By decision dated August 26, 2009, OWCP denied
modification of the March 18, 2008 LWEC determination.
On November 13, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming
disability beginning December 5, 2009 due to his accepted October 28, 1997 employment injury.

3

By decision dated March 14, 2011, OWCP denied appellant’s recurrence claim. On
August 17, 2011 an OWCP hearing representative affirmed the March 14, 2011 decision denying
appellant’s recurrence claim.
On January 26, 2012 appellant, through counsel, filed an appeal with the Board. By
decision dated September 20, 2012, the Board set aside OWCP’s hearing representative’s
August 17, 2011 decision affirming the March 14, 2011 decision denying appellant’s claim for a
recurrence of disability.8 The Board found that appellant’s claim for wage-loss compensation
raised the issue of whether the March 18, 2008 LWEC determination should be modified and the
Board remanded the case for adjudication on the issue of modification.
In a report dated March 30, 2012, Dr. McManus opined that appellant had aggravated his
right knee condition while walking.
On April 11, 2012 counsel requested reconsideration, asserting that a March 30, 2012
medical report established that walking aggravated his right knee condition.
In reports dated November 5 and 14, 2012, Dr. McManus diagnosed right lateral meniscus
knee tear, right knee pain, and right chondrocalcinosis. He found appellant totally disabled from
work.
By decision dated January 22, 2013, OWCP denied modification of the March 18, 2008
LWEC determination beginning December 5, 2009.
On January 29, 2013 appellant requested an oral hearing before an OWCP hearing
representative, which was held on June 19, 2013.
By decision dated September 10, 2013, an OWCP hearing representative affirmed the
January 22, 2013 decision denying modification of the March 18, 2008 LWEC determination.
Dr. McManus, in an October 15, 2013 report, diagnosed recurrent right knee lateral
meniscal tear, which he attributed to the October 28, 1997 employment injury.
On November 22, 2013 appellant, through counsel, requested reconsideration.
By decision dated January 17, 2014, OWCP denied modification of the March 18, 2008
LWEC determination.
On February 4, 2014 OWCP expanded acceptance of appellant’s claim to include recurrent
right knee lateral meniscus tear.
In a February 11, 2014 report, Dr. McManus diagnosed recurrent right lateral meniscus
tear, right knee chondrocalcinosis, and right knee post-traumatic osteoarthritis. He found
appellant’s work restrictions remained unchanged.

8

Supra note 5.

4

In reports dated February 26 and March 19, 2014, Dr. Nels Sampatacos, a Board-certified
orthopedic surgeon, based on physical examination findings and review of diagnostic testing,
diagnosed chondrocalcinosis and knee/patella/tibia/fibula arthralgia.
Dr. McManus, in an April 21, 2014 progress note, diagnosed recurrent right knee lateral
meniscus tear with chronic pain, early osteoarthritis, and chondrocalcinosis.
By decision dated June 9, 2015, OWCP found the evidence insufficient to warrant
modification of the March 18, 2008 LWEC determination. On January 28, 2016 an OWCP
hearing representative affirmed the June 9, 2015 decision.
In a January 20, 2016 report, Dr. McManus diagnosed chronic pain due to osteoarthritis,
right knee chondrocalcinosis, and status post two arthroscopic meniscectomies. He advised that
appellant requires the use of narcotics to control his pain, which was a contraindication for driving
and he advised that appellant was restricted from operating a motor vehicle.
On July 22, 2016 counsel requested reconsideration. He asserted that the LWEC
determination should be modified based on the driving restriction from Dr. McManus.
Dr. McManus, in a January 25, 2017 report, summarized appellant’s history and diagnostic
tests and detailed examination findings. He diagnosed osteoarthritis and chondrocalcinosis
secondary to right knee status post arthroscopic partial medial meniscectomy and arthroscopic
partial medial and lateral meniscectomies. Dr. McManus reported no change in appellant’s
permanent work restrictions. He instructed appellant to continue using walking sticks or single
point cane as necessary and his current medications of hydrocodone and acetaminophen.
By decision dated March 6, 2017, OWCP denied appellant’s request, finding that it was
untimely and failed to demonstrate clear evidence of error.
Dr. McManus, in a May 22, 2017 report, provided examination findings and diagnosed
osteoarthritis and chondrocalcinosis secondary to right knee status post arthroscopic partial medial
meniscectomy and arthroscopic partial medial and lateral meniscectomies. He reported no change
in appellant’s permanent work restrictions. Dr. McManus instructed appellant to continue using
walking sticks or single point cane as necessary and with his current medications of hydrocodone
and acetaminophen.
On August 24, 2017 counsel filed an appeal with the Board. On January 17, 2018 the
Board issued an order granting the Director’s motion to remand the case for a merit decision as
appellant’s July 22, 2016 request for reconsideration was timely filed.9 The Board remanded the
case to OWCP to apply the correct standard of review.
An October 12, 2017 report from Dr. McManus was unchanged from prior reports.
In a February 7, 2018 report, Dr. McManus diagnosed right knee osteoarthritis, chronic
pain, and right knee chondrocalcinosis. He reported no change in appellant’s condition since his
9

Supra note 5.

5

last visit on October 12, 2017. Appellant complained of night pain, start-up pain, stiffness, and
limited range of motion. Physical examination findings included bilateral pretibial edema,
bilateral lower extremity stasis dermatitis, and diffuse soft tissue swelling greater on the right.
Negative Lachman’s, positive Apley’s compression test. Dr. McManus reported no change in
appellant’s permanent work restrictions and he recommended that appellant continue using
walking sticks or single point cane, as necessary, and that he continue with his current medications
of hydrocodone and acetaminophen.
By decision dated May 4, 2018, OWCP denied modification of the March 18, 2008 LWEC
determination.
On June 25, 2018 appellant requested reconsideration and submitted evidence in support
of his request.
Appellant, in a statement, asserted that his medication prohibited him from driving and
there was no direct bus line where he lived. The nearest bus station is a three-mile walk, which is
beyond his physical ability. In addition, the commute was a four-hour trip one way.
In progress notes dated April 11, 2018, Dr. Derek Edward Costa, a Board-certified family
medicine physician, detailed appellant’s prescriptions including hydrocodone, opioid,
acetaminophen, and insulin. In a June 4, 2018 note, he advised that appellant takes two
medications which increases the need for restroom breaks.
Dr. McManus, in progress notes dated June 6, 2018, provided examination findings. He
reported no change in appellant’s permanent work restrictions and that appellant should continue
using walking sticks or single point cane, as necessary, and that he continue with his current
medications.
On July 2, 2018 OWCP received a reconsideration request dated June 20, 2018 from
appellant’s counsel. Counsel asserted that the electronics worker position was not suitable as
appellant cannot use public transportation or drive to a worksite within his commuting area. A
copy of a bus schedule and map was attached in support of appellant’s contention that he could
not use public transportation in his commuting area to go to work. Counsel further asserted that
the bus stop was located three miles from appellant’s house and only went to Bremerton,
Washington.
By decision dated July 19, 2018, OWCP denied modification of the March 18, 2008 LWEC
determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

6

wages.10 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.11
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.12 OWCP’s
procedures at Chapter 2.1501 contain provisions regarding the modification of a formal LWEC.13
The relevant part provides that a formal LWEC will be modified when: (1) the original rating was
in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated.14
The burden of proof is on the party attempting to show a modification of the LWEC
determination.15 There is no time limit for appellant to submit a request for modification of a
wage-earning capacity determination.16
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant has
established that OWCP’s March 18, 2008 LWEC determination should be modified.
As was noted above, an LWEC determination can be modified if it was issued in error.17
The Board finds that the current record does not establish that appellant’s preexisting conditions
were considered when determining that the constructed position was suitable. In finding that
appellant was capable of performing the duties of an electronics worker, Dr. McManus only
considered the accepted right knee conditions and provided restrictions limiting his sitting and
standing. The record however establishes that OWCP had accepted appellant’s October 1995
traumatic injury claim for right leg cellulitis. Furthermore, OWCP’s second opinion physician,
Dr. Schenkar, reported on July 17, 1998 that appellant had a documented history in his chart, as
far back as 1995 of bouts of cellulitis and chronic edema in the leg as a complication of chronic
varicose veins.
The Board also notes that Dr. McManus, in an October 2, 2006 report, reviewed and opined
that appellant was capable of performing the duties of the constructed electronics worker position
10

5 U.S.C. § 8115(a); O.H., Docket No. 17-0255 (issued January 23, 2018).

11

O.H., id.; Katherine T. Kreger, 55 ECAB 633 (2004).

12

B.G., Docket No. 17-0477 (issued September 20, 2017); Sue A. Sedgwick, 45 ECAB 211 (1993).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013). See J.M., Docket No. 18-0196 (issued July 12, 2018).
14

Id. at Chapter 2.1501.3(a).

15

C.S., Docket No. 18-1610 (issued April 25, 2019); Jennifer Atkerson, 55 ECAB 317 (2004).

16

S.S., Docket No. 18-0397 (issued January 15, 2019); W.W., Docket No. 09-1934 (issued February 24, 2010);
Gary L. Moreland, 54 ECAB 638 (2003).
17

Supra note 14.

7

based on his permanent right knee restrictions. However, Dr. McManus also indicated that
appellant informed him of some permanent impairment of his upper extremities, but he was unsure
what restrictions appellant may have due to these impairing conditions or its affect on-the-job
duties. In this regard, appellant had indicated on his claim form under OWCP File No. xxxxxx356
that he had been aware of shoulder and arm conditions since August 8, 1995.
OWCP did not request clarification from Dr. McManus as to whether appellant’s upper
extremity conditions were preexisting and, if so, whether they caused any further work restrictions.
It also did not clarify whether appellant had any restrictions due to his other lower extremity
preexisting conditions.
Any preexisting condition must be considered in determining an LWEC. This principle is
evident in OWCP’s procedures which instruct that the claims examiner is responsible for
determining whether the medical evidence establishes that the claimant is able to perform the
selected jobs, taking into consideration medical conditions due to the accepted work-related injury
or disease (including those accepted under other claims which may or may not have been
doubled/combined with the instant case file), and any preexisting medical conditions.18
The Board finds that OWCP has not properly evaluated appellant’s preexisting conditions
and whether these conditions affected his ability to perform the constructed duties of electronics
work. This case must therefore be remanded to OWCP for further findings. After such further
development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

See supra note 13 at Chapter 2.816.4(b) (June 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 19, 2018 is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 13, 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

9