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

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Appearances:
Brett Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-684
Issued: November 1, 2010

Case Submitted on the Record

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

JURISDICTION
On January 13, 2010 appellant filed a timely appeal from a December 14, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined appellant’s wage-earning capacity
based on the selected position of information clerk.
FACTUAL HISTORY
On December 20, 1989 appellant filed an occupational disease claim alleging a right knee
injury causally related to his federal employment as a letter carrier. The Office accepted the
claim for a right knee chondromalacia. The record indicates that appellant also had a 1993 claim

for a right arm condition, accepted for right ulnar nerve entrapment.1 Appellant returned to work
in a light-duty position.
In a duty status report (Form CA-17) dated April 16, 2007, Dr. Jerome Bernhoft, an
orthopedic surgeon, treated appellant’s knee condition. He diagnosed chondromalacia and
provided work restrictions. Dr. Bernhoft indicated that appellant was limited to two hours a day
of walking, pushing, simple grasping and reaching above shoulder, with frequent breaks for fine
manipulation. Appellant stopped working in May 2007 and was referred for vocational
rehabilitation services.
In a work capacity evaluation (OWCP-5c) dated April 30, 2008, Dr. Bernhoft provided
limitations that included two hours of intermittent reaching and reaching above shoulder. With
respect to repetitive movements of the arm and elbow, he stated that appellant should follow
“Dr. [Jeffrey] Riopelle, [a family practitioner’s], restrictions.”
A vocational rehabilitation specialist identified the position of information clerk
Department of Labor’s (Dictionary of Occupational Titles, (DOT) No. 237.367-022). The job
classification (Form CA-66) indicated that it was a sedentary position (10 pounds lifting) with
“occasional” reaching, handling and fingering.2 The wages were reported as $400.00 per week
and the rehabilitation specialist indicated that the job was reasonably available.
By letter dated March 26, 2009, the Office advised appellant that it proposed to reduce
his compensation on the grounds that he had the capacity to earn wages as an information clerk
at $400.00 per week. It stated that work restrictions in the April 16, 2007 form report from
Dr. Bernhoft were the best representation of appellant’s work capacity.
In a decision dated May 21, 2009, the Office reduced appellant’s compensation based on
a current weekly pay rate of $899.47 for the date-of-injury job and earnings of $400.00 per week.
Appellant requested a telephonic hearing with an Office hearing representative, which was held
on September 29, 2009. He submitted a September 9, 2009 report from Dr. Riopelle, with
results on examination. Dr. Riopelle provided restrictions that included no squatting, kneeling,
repetitive grasping, pushing, pulling or fine manipulation, and not repetitive motion greater than
10 minutes. In a report dated October 28, 2009, he stated that appellant had a long history of
carpal tunnel syndrome and nerve entrapment. Dr. Riopelle opined that appellant could not
perform the information clerk position as the duties required repetitive motion that exacerbated
appellant’s symptoms. Appellant also submitted information from a Department of Labor
handbook regarding the duties of receptionists and information clerks.
By decision dated December 14, 2009, the hearing representative affirmed the reduction
of compensation. The hearing representative found the evidence sufficient to establish the
selected position as appropriate.

1

OWCP File No. xxxxxx796.

2

The form defines “occasional” as up to one third of the time.

2

LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.3
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity, or if the employee has no actual earnings, his wage-earning
capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.4
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s 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 labor market should be made through contact with the state employment
service or other applicable service.5 Finally, application of the principles set forth in Albert C.
Shadrick will result in the percentage of the employee’s loss of wage-earning capacity.6
With respect to whether the selected position is within the claimant’s work restrictions,
Office procedures state: “If the medical evidence is not clear and unequivocal, the CE [claims
examiner] will seek medical advice from the DMA [district medical adviser], treating physician
or second opinion specialist as appropriate.”7 In addition, the Board has held that the Office
cannot properly determine appellant’s wage-earning capacity without a detailed current
description of his condition and ability to perform work.8
ANALYSIS
In the present case, the Office found that the selected position of information clerk was
medically suitable based on appellant’s work restrictions. As noted, unless the evidence is clear
and unequivocal, the Office should send the job description to a physician and secure an opinion
3

Carla Letcher, 46 ECAB 452 (1995).

4

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

5

See Dennis D. Owen, 44 ECAB 475 (1993).

6

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995).
8

See Anthony Pestana, 39 ECAB 980 (1988); Samuel J. Russo, 28 ECAB 43 (1976).

3

that the position is suitable. The Board finds that the evidence was not clear and unequivocal
and the Office failed to follow its procedures.
It is noted that at the time of the March 26, 2009 proposed reduction, the most current
report was an OWCP-5c from Dr. Bernhoft dated April 30, 2008. While the Office referred to an
earlier duty status report dated April 16, 2007, the OWCP-5c represented a more current medical
report. In the April 30, 2008 OWCP-5c report, Dr. Bernhoft limited appellant to two hours per
day of reaching. The Form CA-66 job description indicated occasional reaching of up to one
third of the day, which therefore would exceed Dr. Bernhoft’s restrictions. Moreover,
Dr. Bernhoft specifically referred to additional restrictions by Dr. Riopelle for repetitive arm
movements. It is not clear what current restrictions Dr. Riopelle had imposed as no relevant
evidence had been submitted.9 There is no indication that the Office sought to clarify from
Dr. Riopelle the current work restrictions or secure his opinion as to whether appellant could
perform the selected position. The opinion provided by Dr. Riopelle in his October 28, 2009
report was that appellant could not perform the selected position.
As noted above, it is the Office’s burden of proof to reduce compensation. The medical
evidence as to work restrictions was not detailed and complete, and the limitation for reaching by
Dr. Bernhoft appeared to be exceeded by the potential reaching required of the selected position.
The only medical opinion of record as to the actual selected position was that appellant was
unable to perform the job. The Board accordingly finds that the medical evidence was not
sufficient to meet the Office’s burden of proof in this case.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to reduce compensation
based on the selected position of information clerk.

9

The hearing representative stated he reviewed the 1993 claim case file and he reported that Dr. Riopelle had
provided “restrictions” over a period from 2000 to 2007.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 14, 2009 is reversed.
Issued: November 1, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 11-896
Issued: October 17, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from a September 30, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for an oral hearing as untimely. Since more than 180 days elapsed since the most recent
merit decision of July 26, 2010 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of the claim pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of its decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
On April 28, 2010 appellant, then a 57-year-old distribution and window clerk, filed an
occupational disease claim alleging that she sustained a knee sprain as a result of prolonged
periods of standing. She first became aware of and realized her condition resulted from her
employment on April 21, 2010. Appellant stopped work on April 19, 2010 and returned on
April 27, 2010. She submitted various leave analysis reports, medical reports and personal
statements.
In a decision dated July 26, 2010, OWCP denied appellant’s occupational disease claim
finding that she failed to submit sufficient medical evidence establishing that her knee condition
was causally related to her employment activities.
In an appeal request form dated August 30, 2010 and postmarked August 31, 2010,
appellant requested an oral hearing before OWCP’s hearing representative.
By decision dated September 30, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was untimely. It exercised its
discretion and denied her request finding that the issue in her case could equally well be
addressed by requesting reconsideration from OWCP and submitting evidence not previously
considered which established that her knee condition resulted from her employment activities.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation who is not
satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision and before review under section 8128(a), to a hearing on her
claim before a representative of the Secretary.3
OWCP regulations further provide that a claimant can choose between two types of
hearings: an oral hearing or a review of the written record.4 The hearing request must be sent
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.5 The Board has held that section 8124(b)(1) is
unequivocal in setting forth the time limitation for requesting hearings or reviews of the written
record.6 A claimant is entitled to a hearing or review of the written record as a matter of right
only if the request is filed within the requisite 30 days and before the claimant has requested
reconsideration.7 However, if the request is not timely filed or when reconsideration has
previously been requested, OWCP must exercise its discretion to grant or deny a request that is

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Claudio Vazquez, 52 ECAB 496, 499 (2001).

7

Martha A. McConnell, 50 ECAB 129, 130 (1998).

2

made after this 30-day period.8 In such a case, it will determine whether to grant a discretionary
hearing and, if not, will so advise the claimant with reasons.9
ANALYSIS
OWCP denied appellant’s occupational disease claim on July 26, 2010. Appellant’s
request for an oral hearing before OWCP’s hearing representative was postmarked on
August 31, 2010. The date of her hearing request is determined by the date of the postmark.10
As appellant’s August 31, 2010 hearing request was made more than 30 days after the date of
OWCP’s July 26, 2010 decision, she was not entitled to a hearing as a matter of right.
OWCP, however, has the discretionary authority to grant a hearing if the request was not
timely filed. In its September 30, 2010 decision, it considered the issue involved and properly
exercised its discretion when it denied appellant’s hearing request and determined that she could
equally well address the issue of causal relationship by requesting reconsideration and submitting
new evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.11 In the present case, OWCP did not abuse its discretion in
denying a discretionary hearing and properly denied appellant’s request for an oral hearing under
section 8124 of FECA.12
On appeal, appellant alleged that she was requesting reconsideration of her claim and
submitted a new orthopedic medical report that was not previously considered. The Board’s
jurisdiction, however, is limited to evidence that was before OWCP at the time it issued its final
decision. Thus, the Board may not consider this evidence for the first time on appeal.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely.

8

Herbert C. Holley, 33 ECAB 140 (1981); G.W., Docket No. 10-782 (issued April 23, 2010).

9

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

10

20 C.F.R. § 10.616(a); N.M., 59 ECAB 511 (2008).

11

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

12

See D.F., Docket No. 11-42 (issued August 1, 2011); Hubert Jones, Jr., 57 ECAB 467 (2006).

13

See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the September 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 10-2304
Issued: August 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 13, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated August 19, 2010 which denied her claim
for a schedule award. She also appealed a September 3, 2010 decision which denied her
reconsideration request. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained permanent impairment of a scheduled
member; and (2) whether OWCP properly denied her request for reconsideration pursuant to
5 U.S.C. § 8128(9).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 29, 2010 appellant, then a 45-year-old clerk, filed a traumatic injury claim
alleging that on March 18, 2010 she was pushing mail carts up a ramp and felt a pull in her back.
OWCP accepted the claim for sprain of the low back lumbar region. Appellant did not stop
work.
Appellant came under the care of Dr. Scott Thomas, a family practitioner, from March 31
to May 19, 2010. Dr. Thomas’ treatment records noted appellant’s case for her lumbar condition
and defined her work restrictions. On April 14, 2010 appellant presented with findings of
muscle and back pain with numbness, tingling and weakness. Dr. Thomas noted good flexion,
extension and strength of the paraspinous muscles. He diagnosed low back strain and continued
physical therapy and her work restrictions. Dr. Thomas treated appellant on May 5, 2010 for
lumbar pain and noted thoracic paraspinous muscle flexion of 60 degrees. He released appellant
to work full-time regular duty. On May 19, 2010 Dr. Thomas diagnosed lower back strain and
released appellant from his care. Appellant also submitted physical therapy notes.
On July 29, 2010 appellant filed a claim for a schedule award.
In a decision dated August 19, 2010, OWCP denied appellant’s claim for a schedule
award. It noted that the medical evidence of record did not establish any permanent impairment
of a scheduled body member caused by the accepted back condition.
On August 24, 2010 appellant requested reconsideration. In an August 19, 2010
statement, she indicated that OWCP improperly referenced a report from Dr. Ranjitha Gampala,2
when she was treated mainly by Dr. Thomas. Appellant noted that she did not submit an
impairment rating because Dr. Thomas left the practice. She submitted reports previously of
record.
In a September 3, 2010 decision, OWCP denied appellant’s reconsideration request
finding that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent

2

Dr. Gampala, an associate of Dr. Thomas, treated appellant on April 7, 2010.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

Impairment,5 has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.6
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.7 As neither FECA nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.8 The Board notes that section
8101(19) specifically excludes the back from the definition of “organ.”9 However, a claimant
may be entitled to a schedule award for permanent impairment to an upper or lower extremity
even though the cause of the impairment originated in the neck, shoulders or spine.10
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.11 The Board notes that, before applying the A.M.A, Guides, OWCP must
determine whether the claimed impairment of a scheduled member is causally related to the
accepted work injury.12 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.13
ANALYSIS -- ISSUE 1
Appellant claimed a schedule award based on a work injury which was accepted for a
lumbar sprain. As noted, FECA does not provide a schedule award based on impairment to the
back or spine. Appellant may receive a schedule award for impairment to the lower extremities
if such impairment is established as being due to her accepted lumbar spine condition.
The Board finds that appellant failed to submit medical evidence to establish that she
sustained permanent impairment of either lower extremity based on her accepted lumbar sprain.
The record contains reports from Dr. Thomas who noted findings on examination, offered
diagnoses and set forth work restrictions; however, Dr. Thomas did not offer any opinion on
whether her accepted lumbar sprain caused permanent impairment to her legs, moreover, he did
not address whether she had reached maximum medical improvement.14 As noted, not all
5

A.M.A., Guides (6th ed. 2008).

6

See supra note 4.

7

Thomas J. Engelhart, 50 ECAB 319 (1999).

8

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

5 U.S.C. § 8101(19).

10

Thomas J. Engelhart, supra note 7.

11

Thomas P. Lavin, 57 ECAB 353 (2006).

12

Michael S. Mina, 57 ECAB 379, 385 (2006).

13

Veronica Williams, 56 ECAB 367 (2005).

14

Permanent impairment is premised on the employee having reached maximum medical improvement. See
Patricia J. Penny-Guzman, 55 ECAB 757 (2004).

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medical conditions accepted by OWCP result in permanent impairment to a scheduled member.
Appellant has the burden of proving that her low back condition resulted in impairment. There is
no medical evidence of record that specifically addresses how her accepted lumbar sprain caused
permanent impairment to a scheduled body member. Without reasoned medical opinion
evidence establishing that appellant sustained permanent impairment causally related to her
accepted lumbar sprain, she failed to meet her burden of proof.15
On appeal, appellant asserts that she is entitled to a schedule award and that the medical
evidence of record was not properly reviewed. The medical reports from Dr. Thomas do not
address how the accepted lumbar sprain caused permanent impairment to her legs under the
A.M.A., Guides. Therefore, the medical evidence is insufficient to establish that appellant
sustained any permanent impairment as a result of his accepted condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,16 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”17
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.18

15

The record also contains physical therapy records but these are insufficient to establish entitlement to a
schedule award as a physical therapist is not a physician under FECA. See 5 U.S.C. § 8101(2); David P. Sawchuk,
57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA).
16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.608(b).

4

ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for a schedule award on August 19, 2010 because she
did not submit medical evidence which established a permanent impairment of a scheduled body
member caused by the accepted condition. It denied her August 24, 2010 reconsideration
request, without a merit review and she appealed this decision to the Board. The issue presented
on appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2),
requiring OWCP to reopen the case for review of the merits of the claim.
In her August 24, 2010 application for reconsideration and an undated statement,
appellant did not show that OWCP erroneously applied or interpreted a specific point of law.
She did not identify a specific point of law or show that it was erroneously applied or interpreted.
Appellant did not advance a new and relevant legal argument. She asserted that OWCP
improperly based the schedule award decision on a report from Dr. Gampala when she was
treated by Dr. Thomas. Appellant noted that Dr. Thomas did not submit an impairment rating
because the physician left the practice. Although OWCP referenced Dr. Gampala, appellant’s
assertion has no color of validity as the record, as previously explained, reflects that all of the
medical evidence was deficient.19 The underlying issue in this case was whether appellant
sustained permanent impairment to the upper or lower extremities causally related to her
accepted work injury. That is a medical issue which must be addressed by relevant medical
evidence.20 A claimant may be entitled to a merit review by submitting new and relevant
evidence, but appellant did not submit any new and relevant medical evidence in this case.
Appellant submitted reports from Dr. Thomas dated April 7 to May 19, 2010; however, these
reports are not relevant because they were previously of record and previously considered by
OWCP.21 Therefore, OWCP properly determined that this evidence did not constitute a basis for
reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award. The
Board further finds that OWCP properly denied her request for reconsideration.

19

See Jennifer A. Guillary, 57 ECAB 485 (2006) (while a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity).
20

See Bobbie F. Cowart, 55 ECAB 746 (2004).

21

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

5

ORDER
IT IS HEREBY ORDERED THAT the September 3 and August 19, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 1, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 17-0648
Issued: August 15, 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 February 1, 2017 appellant, through counsel, filed a timely appeal from a January 10,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
commencing October 29, 2013 causally related to her accepted July 16, 2013 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts follow.
On January 3, 2014 OWCP accepted that appellant, then a 53-year-old city letter carrier,
sustained right knee contusion, right knee sprain, right elbow contusion, and right elbow strain
when she fell due to syncope while delivering mail on July 16, 2013.4 Appellant stopped work on
October 29, 2013.
Appellant subsequently submitted a December 31, 2013 attending physician’s report
(Form CA-20) from Dr. Charles May, an osteopath and family practitioner. Dr. May advised that
the history of injury included that her right leg gave out and she fell hitting her right knee and right
elbow and noted that appellant had a preexisting history of “2009 work injury to [her right] knee.”
He provided findings and diagnosed: right knee sprain and contusion; right elbow sprain and
contusion; and aggravation of degenerative joint disease of the right knee. Dr. May checked the
box marked “yes” in response to whether he believed the condition was caused or aggravated by
appellant’s employment activity. He also noted that appellant was totally disabled from work for
the period October 29, 2013 to March 31, 2014.
On January 8, 2014 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for disability from October 19 to December 27, 2013. However, the
attached time analysis form (Form CA-7a) indicated that appellant was not claiming compensation
until October 29, 2013, the date that she stopped work completely.
By development letter dated January 17, 2014, OWCP noted that appellant was claiming
compensation effective October 19, 2013 and continuing and that she had stopped work on
October 29, 2013 and had not returned. It also indicated that it appeared that appellant was
claiming a disability due to a material change or worsening of her accepted work-related
conditions. OWCP therefore provided the definition of a recurrence. It explained that to be
entitled to compensation for wage loss as a result of her current disability, she must provide factual
and medical evidence to substantiate the recurrent disability. OWCP noted the present evidence
did not substantiate disability for the requested period and requested that appellant submit medical
evidence to establish that she was disabled for work during the entire period claimed. It found that
there was not a physician’s opinion supported by objective findings as to the relationship between
3

Order Remanding Case, Docket No. 15-0737 (issued August 3, 2015).

4

OWCP assigned the present claim OWCP File No. xxxxxx096. Appellant has a prior traumatic injury claim of
February 25, 2009 which OWCP accepted for lumbar sprain, bilateral knee sprains and contusions. It assigned OWCP
File No. xxxxxx601. OWCP File Nos. xxxxxx096 and xxxxxx601 have been administratively combined, with OWCP
File No. xxxxxx096 serving as the master file.

2

her disability and the original injury and or illness. OWCP afforded appellant 30 days to submit
the requested evidence.
Appellant continued to submit Form CA-7 claims for wage-loss compensation for
continuing disability.
OWCP subsequently received a series of additional reports from Dr. May. In a January 29,
2014 attending physician’s report, Dr. May explained that appellant’s right lower extremity gave
out, and she fell, hitting her right knee and right elbow. He indicated that there was evidence of
concurrent or preexisting history of a “2009 work injury to [appellant’s right] knee.” Dr. May
provided findings and diagnosed right knee sprain strain and right elbow strain and sprain. He
checked the box marked “yes” in response to whether he believed that appellant’s conditions were
caused or aggravated by her employment activity. Dr. May advised that the period of disability
ran from October 29, 2013 to April 29, 2014.
A January 29, 2014 duty status report (Form CA-17) from Dr. May noted various physical
restrictions due to appellant’s accepted conditions, but when asked whether she was advised to
resume work, he checked the box marked “no.”
In a report dated February 4, 2014, Dr. May noted that appellant had difficulty walking,
standing, or climbing stairs because of her worsening right knee pain and worsening right hip pain.
He opined that “[i]n my medical opinion, appellant has been unable to work all the duties of her
job as a postal carrier since we first examined her on October 29, 2013. He opined that she had
difficulty standing, walking, and climbing mainly because of her right knee injury which has yet
to be fully diagnosed.”
By decision dated February 26, 2014, OWCP denied appellant’s claim for compensation
for the period October 19, 2013 and continuing because the evidence of record was insufficient to
establish that she was totally disabled from work due to her accepted work-related conditions. It
explained that the evidence submitted did not establish that she had a return or increase of disability
due to a change or worsening of her accepted work-related conditions because it did not contain a
well-rationalized physician’s opinion supported by objective findings as to the relationship
between her claimed disability and her original work injury. OWCP found that appellant did
initially not stop work following the July 16, 2013 employment injury. Rather, appellant continued
to work the regular duties of her job until she stopped work on October 29, 2013. OWCP explained
that while Dr. May advised in his February 4, 2014 report that she was unable to perform all of the
duties of her position, he did not support total disability from all work. It explained that an opinion
was needed from a treating physician explaining why and how the work injury prevented her from
all work, especially given that she was working without apparent difficulty from July 17 to
October 19, 2013, ultimately stopping work on October 29, 2013.
OWCP subsequently received a February 25, 2014 report wherein Dr. May advised that,
since his last report of February 4, 2014, a magnetic resonance imaging (MRI) scan of appellant’s
right knee was obtained. Dr. May explained that the scan revealed tricompartmental degenerative
joint disease of the right knee as well as a tear of both medial and lateral menisci of the right knee.
He advised that these findings were certainly consistent with appellant’s complaints and physical
findings. Dr. May opined that appellant substantially aggravated her preexisting tricompartmental

3

degenerative joint disease of the right knee as a direct and proximate result of her work injury
occurring on July 16, 2013. He also opined that appellant developed a medial and lateral meniscal
tear as a direct and proximate result of her July 16, 2013 work injury.
On March 6, 2014 appellant requested a telephonic hearing, which was held before an
OWCP hearing representative on September 9, 2014. She also continued to submit additional
Form CA-7 claims for compensation.
In a March 10, 2014 report, Dr. May advised that he reexamined appellant on
March 10, 2014. He related that appellant complained of worsening right knee pain and advised
that she did not have much mobility. Dr. May recommended an evaluation by an orthopedic
specialist.
In a March 24, 2014 report, Dr. Jeremy R. Mathis, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and treatment and conducted an examination. He diagnosed
degenerative joint disease of the right knee. Dr. Mathis provided several options for appellant’s
ongoing knee condition. He noted that appellant wanted to consider right knee arthroplasty.
Dr. Mathis advised that this would be appropriate for her findings and indicated that he would
submit a request for authorization for a total knee arthroplasty.5
In a May 12, 2014 report, Dr. Mark E. Gittins, a Board-certified orthopedic surgeon and
osteopath, noted appellant’s history of injury and treatment. He diagnosed right knee pain,
osteoarthritis of the right knee, medial and lateral meniscal tears, elevated body mass index, and
tobacco abuse. Dr. Gittins explained that they discussed various treatment options with her, both
operative and nonoperative. He noted that appellant wished to proceed with the right total knee
arthroplasty.
In a September 10, 2014 report, Dr. May noted appellant’s history of injury and treatment
and addressed her claim for continuing disability commencing October 19, 2013. He explained
that following her employment injury they were unable to proceed with treatment for her because
her claim had not been adjudicated. Dr. May also explained that on January 21, 2014 they were
notified that appellant’s claim was finally allowed. He indicated that at that point, they proceeded
with some therapy for her knee and she did not improve. Dr. May noted that she then saw the
orthopedic specialist who wanted to perform a total right knee arthroplasty. He opined that because
of her right knee injury, appellant was unable to work from the date that he first saw her on
October 29, 2013 and she remained disabled from her job as a letter carrier for the employing
establishment as a result of this injury until more definitive treatment was approved and completed.
Dr. May explained that, with the pathology in her right knee, it was obvious that she could not
perform the duties required of a letter carrier.

5

OWCP also received his March 24, 2014 notes.

4

By decision dated November 25, 2014, OWCP’s hearing representative affirmed the
February 26, 2014 decision.6
OWCP subsequently received an April 18, 2015 attending physician’s report, wherein
Dr. May advised that the history of injury included that appellant’s right leg gave out and she fell
while working. Dr. May noted that she had fallen on her right knee and her right elbow on
July 16, 2013. He noted that the date of his first examination was October 29, 2013 and that
appellant continued to receive treatment to the present. Dr. May advised that appellant was totally
disabled from work commencing November 29, 2014.7
In reports dated May 27 and June 8, 2015, Dr. May opined that appellant had reached
maximum medical improvement and noted that she could return to work effective that date with
several physical restrictions.
On June 15, 2015 the employing establishment provided appellant with an offer of
modified assignment (limited duty) as a city carrier. Appellant accepted that offer on
June 15, 2015.
In a June 30, 2015 duty status report, Dr. May noted that appellant was currently working
and had continued right knee pain and that her knee throbbed at night after working. He related
that she indicated that she was taking more nonsteroids because of her pain and throbbing, but
denied any specific injury to right knee. By decision dated September 22, 2015, OWCP issued a
de novo decision denying appellant’s claim for compensation commencing October 19, 2013. It
found that she had not submitted rationalized medical evidence sufficient to establish that the
claimed disability was causally related to her accepted work-related condition.
On September 28, 2015 counsel requested a telephonic hearing, which was held on
May 19, 2016.
During the hearing, appellant indicated that she was off work from October 2013 through
June 2015. She explained that she then returned to work with limitations. Appellant noted that
she stopped work after a new injury to a different part of the body in January 2016. She advised
that she underwent a total knee replacement in October 2014. Appellant stated that she worked
from the injury in July 2013 until she stopped work in October 2013, and that her symptoms kept
her from continuing to work. She explained that the employing establishment was pressuring her
because she was not keeping up with her time.
By decision dated August 2, 2016, OWCP’s hearing representative affirmed the
September 22, 2015 decision. She found that appellant had not established that her claimed
6
Appellant appealed the hearing representative’s decision to the Board. By decision dated August 3, 2015, the
Board set aside the November 25, 2014 decision and remanded the case, for OWCP to administratively combine File
Nos. xxxxxx096 and xxxxxx601 to be followed by an appropriate merit decision. OWCP administratively combined
the files on August 14, 2015, with File No. xxxxxx096 serving as the master file.
7
The Board notes that this appears to have been a typographical error as the record reflects that appellant stopped
work on October 29, 2013.

5

disability was causally related to her accepted knee condition. The hearing representative noted
that she had delayed seeking medical treatment and that she did not stop work until
October 29, 2013. She also noted that appellant had a preexisting claim for which she had actively
sought treatment for both knees. The hearing representative concluded that none of the medical
records submitted supported an ongoing period of disability commencing October 29, 2013 as they
were either speculative or failed to provide a rationalized opinion supporting the claimed disability.
OWCP subsequently received a series of medical reports dated October 18, 2016 in which
Dr. May noted that appellant’s leg gave out and she fell hitting her right knee and elbow. Dr. May
explained that appellant was first seen on October 29, 2013 and she was rendered totally disabled
from work for the period November 29, 2014 to June 8, 2015.8 In an October 18, 2016 Form CA17 duty status report, he advised that appellant was advised to resume work as of June 8, 2015
with restrictions.
On November 16, 2016 appellant, through counsel, requested reconsideration and
submitted new medical evidence.
In a November 1, 2016 report, Dr. May explained that appellant was a patient for several
years, but due to financial matters he stopped seeing her in 2009. He advised that he again began
seeing appellant in 2013 in relation to a work injury to the right knee which occurred on
July 16, 2013. Dr. May also noted that in 2009 appellant saw Dr. Joseph Wilcox, a Board-certified
orthopedic surgeon. He advised that appellant received steroid injections. Dr. May advised that
in a follow-up examination by Dr. Wilcox on August 12, 2013, Dr. Wilcox recommended a return
to work without restriction. Dr. May explained that these treatment notes were important because
they revealed that appellant received treatment following the injury. He noted that this was in
contrast to OWCP’s finding that appellant did not receive any treatment after the July 2013 injury.
Dr. May opined that appellant was having problems with both knees and received a steroid
injection five days before the injury with an excellent result. He further explained that, although
appellant had an intervening injury on July 16, 2013, the injection helped her right knee which
remained fairly asymptomatic until she saw him on October 29, 2013. By the time Dr. May saw
appellant on October 29, 2013, the effects of the injection had worn off and appellant was suffering
from pain in the right knee. He found that the right knee was much worse in October 2013
compared to the initial evaluation five days prior to the injury. Dr. May posited that the preexisting
degenerative joint disease was aggravated by the fall on July 16, 2013. He opined that the right
knee became worse following the July 16, 2013 work injury and had progressed to the point that
appellant needed to undergo a total knee arthroplasty. Dr. May noted that this was proof that the
work injury aggravated the preexisting arthritis. He opined that appellant’s disability was a direct
result of the July 16, 2013 work injury.
OWCP received July 11, 2013 treatment notes from a physician assistant, who indicated
that appellant was seen for complaints of bilateral knee pain and diagnosed symptomatic
degenerative joint disease. The physician assistant recommended cortisone injections to the
bilateral knees and noted that she tolerated the procedure well without complications.

8

Id.

6

In August 12, 2013 treatment notes, Dr. Wilcox noted that appellant came in and indicated
that both her knees were feeling better as the injections “definitely helped from the last visit.” He
diagnosed bilateral knees with symptomatic degenerative joint disease-improved with cortisone
injection. Dr. Wilcox advised that appellant was doing well and could go back to “full activities
unrestricted.”
In a January 4, 2017 report, Dr. May noted that appellant was reexamined as appellant
related that in the past 24 to 48 hours, she developed severe right knee pain and swelling. He
advised that appellant continued working restricted duty, but was still delivering mail. Dr. May
advised that it seemed to be worse with the recent onset of cold weather. He explained that there
was no direct trauma to the right knee and she was status post total knee arthroplasty. Dr. May’s
examination findings of the right knee included: an arthroplasty scar anteriorly; large effusion;
generalized tenderness and restricted range of motion. He noted that gait was antalgic without
ambulatory aids. Dr. May also x-rayed the right knee and advised that he could not find any
loosening of the prosthetic portions of the knee replacement. He advised that he was going to
restrict appellant further as to her standing, walking, and climbing. Dr. May also indicated that he
would request authorization for consultation with an orthopedic specialist.
By decision dated January 10, 2017, OWCP denied modification of the August 2, 2016
hearing representative decision. It found the medical evidence of record was insufficient to
establish disability for the period October 29, 2013 and continuing, causally related to her July 16,
2013 work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.10 For each period of disability
claimed, the employee has the burden of proof to establish that she was disabled for work as a
result of the accepted employment injury.11 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.12
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.13 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.14 An employee who has a physical impairment causally related to his or her federal
9

Supra note 2.

10

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

11

See Amelia S. Jefferson, id.

12

See Edward H. Horton, 41 ECAB 301 (1989).

13

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

14

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

employment, but who nonetheless has the capacity to earn the wages that she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.15 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
October 29, 2013 and continuing causally related to her accepted July 16, 2013 employment
injury.
In support of her claim, appellant submitted numerous reports from her treating physician,
Dr. May in support of her claimed period of disability. However, Dr. May did not provide a
rationalized opinion, explaining how or why appellant was totally disabled from work
commencing October 29, 2013, causally related to her July 16, 2013 employment injury. For
example, in a December 31, 2013 attending physician’s report, he advised that the history of injury
included that her right leg gave out and she fell hitting her right knee and right elbow. Dr. May
noted that the period of disability ran from October 29, 2013 to March 31, 2014. In a January 29,
2014 attending physician’s report, Dr. May explained that appellant’s right lower extremity gave
out, and she fell, hitting her right knee and right elbow. He advised the period of disability ran
from October 29, 2013 to April 29, 2014. In an April 18, 2015 attending physician’s report,
Dr. May advised that the history of injury included that appellant’s right leg gave out and she fell
while working on her right knee and her right elbow on July 16, 2013. He advised that appellant
was totally disabled from work from October 29, 2014. The Board finds that these reports from
Dr. May conclude that appellant was totally disabled during the claimed period due to the July 16,
2013 employment injury. However, they fail to provide sufficient rationale explaining the causal
relationship between the claimed disability and the accepted injury.17 The Board has found that
medical opinions unsupported by rationale regarding the period of disability claimed are of little
probative value.18 Thus, the reports of Dr. May are insufficient to establish the claim.
The record also contains a July 11, 2013 treatment note from a physician assistant. Certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and

15

Merle J. Marceau, 53 ECAB 197 (2001).

16

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

17

See S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

18
M.P., Docket No. 14-1289 (issued September 26, 2014); F.T., Docket No. 09-0919 (issued December 7,
2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

8

social workers are not considered “physician[s]” as defined under FECA.19 Consequently, the
physician assistant’s July 11, 2013 treatment notes are of no probative value and are insufficient
to meet appellant’s burden of proof.
Other records, including August 12, 2013 treatment notes from Dr. Wilcox, a March 24,
2014 report from Dr. Mathis, and May 12, 2014 report from Dr. Gittins did not specifically address
the dates of disability claimed or provide medical rationale explaining whether and why she was
disabled from October 10, 2013 and continuing. As such, those reports are also insufficient to
establish the claim.
As noted, appellant must submit reasoned medical evidence directly addressing the specific
dates of disability for work for which she claims compensation.20 She did not provide medical
evidence containing a rationalized opinion supporting that she was totally disabled from work from
October 29, 2013 and continuing due to her accepted conditions. Thus, the Board finds that she
has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established total disability commencing October 29,
2013 causally related to her July 16, 2013 employment injury.

19

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
20

See K.A., Docket No. 16-0592 (issued October 26, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VA MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0026
Issued: August 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 3, 2019 appellant filed a timely appeal from a September 5, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 5, 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
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent
disability for the period April 18 to June 4, 2019 causally related to her accepted employment
conditions.
FACTUAL HISTORY
On October 5, 2004 appellant, then a 58-year-old electrocardiogram technician, filed a
traumatic injury claim (Form CA-1) alleging that on September 30, 2004 she sustained head and
right shoulder injuries in the performance of duty when a tray fell and struck her while she was in
the canteen.3 On November 17, 2004 OWCP accepted a right shoulder contusion and a neck
contusion (right side).
On April 27, 2006 appellant filed a notice of recurrence (Form CA-2a). OWCP converted
the recurrence claim to a claim for a new traumatic injury, and assigned File No. xxxxxx800. On
July 11, 2006 it accepted the claim in OWCP File No. xxxxxx800 for neck sprain and a sprain of
the right shoulder and upper arm at an unspecified site. OWCP administratively combined File
No. xxxxxx861 and File No. xxxxxx800, with the latter designated as the master file.
In an April 18, 2019 unsigned state workers’ compensation medical report, Dr. Pamela
Law, Board-certified in physical medicine and rehabilitation, indicated that appellant complained
of right neck and shoulder pain. She noted appellant’s date of injury as April 17, 2006, reviewed
appellant’s history of medical treatment, conducted a physical examination, diagnosed a right
shoulder impingement and right trapezius strain, and indicated that appellant could return to work
with restrictions.
In an April 22, 2019 prescription note, Dr. Law noted that appellant had a previous
arthroscopic shoulder surgery and a diagnosis of right shoulder impingement syndrome and right
trapezius strain. She prescribed physical therapy twice a week for three weeks and acupuncture
twice a week for three weeks.
Dr. Law, in a June 3, 2019 report, noted that appellant presented with improved neck and
shoulder pain. She reported appellant’s date of injury and history of treatment, and conducted a
physical examination. Dr. Law diagnosed a right shoulder impingement and right trapezius strain,
and she indicated that appellant could return to work with restrictions.
On June 25, 2019 appellant filed a wage-loss compensation claim (Form CA-7) for
disability from work for the period April 18 to June 4, 2019. On the reverse side of the claim form,
the employing establishment indicated that she had returned to modified-duty work on
April 19, 2019.
On June 25, 2019 OWCP received a time analysis form (Form CA-7a), signed by appellant
on June 4, 2019, for the period April 18 to June 4, 2019. Appellant requested compensation for
leave without pay (LWOP) as follows: four hours on April 18, 2019 due to a doctor’s appointment;
3

OWCP assigned File No. xxxxxx861 to the traumatic injury claim.

2

four hours on April 30, 2019 due to therapy; four hours on May 3, 2019 due to a magnetic
resonance imaging (MRI) scan; four hours on May 7, 2019 due to therapy; four hours on May 14,
2019 due to therapy; four hours on May 20, 2019 due to an orthopedic doctor’s appointment; four
hours on May 23, 2019 due to therapy; four hours on May 30, 2019 due to therapy; four hours on
June 3, 2019 due to therapy and a doctor’s appointment; and four hours on June 4, 2019 due to
therapy.
In a June 28, 2019 development letter, OWCP informed appellant that the documentation
received to date was insufficient to establish her claim for FECA wage-loss compensation. It
advised her of the type of medical evidence necessary to establish her disability claim and afforded
her 30 days to submit the necessary evidence.
April 30, 2019 acupuncture treatment notes containing an illegible signature indicated that
appellant presented with right shoulder pain that radiated into her neck. The note provided her
history of right shoulder treatment and surgery in 2006 and diagnosed right shoulder impingement.
A May 3, 2019 right shoulder MRI scan, interpreted by Dr. Joon Dokko, a Board-certified
radiologist, displayed mild degenerative changes.
Additional acupuncture notes dated May 7, 14, 23, and 30, and June 4, 2019 with an
illegible signature noted appellant’s right shoulder impingement diagnosis and indicated that she
underwent acupuncture treatments.
In a May 20, 2019 state workers’ compensation orthopedic consultation report, Dr. Joseph
Faustgen, a Board-certified orthopedic surgeon, indicated that appellant presented with chronic
right shoulder pain, right shoulder weakness and pain, and weakness in her periscapular muscles
and neck. He noted that she appeared to have adhesive capsulitis. Dr. Faustgen also noted that
appellant underwent a right rotator cuff repair 10 years prior and she had continued issues with
that area. He conducted a physical examination, reviewed her right shoulder MRI scan, and
diagnosed a neck strain, back sprain, right trapezius strain, right impingement syndrome, and
lumbar spondylosis. Dr. Faustgen placed appellant off of work for the date of May 20, 2019 and
indicated that she could return to full duty on May 21, 2019.
In July 10, 2019 summary of a telephone call (Form CA-110), OWCP indicated that it did
not have all of the medical reports for the month of May which appellant claimed to have
submitted.
Subsequently, a July 22, 2019 CA-110 note indicated that OWCP informed appellant that
while it had received her May report which contained an impingement diagnosis, the report did
not provide the diagnosis due to her accepted employment injury.
By decision dated September 5, 2019, OWCP denied appellant’s wage-loss compensation
claim finding that the evidence of record was insufficient to establish that she was disabled for
work for the period April 18 to June 4, 2019 due to her accepted conditions.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.4 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.7
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.8 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.9 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable.10 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.11 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage loss should be considered on a case-by-case basis.12
ANALYSIS
The Board finds that this case is not in posture for decision.

4

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

5

Id.

6

20 C.F.R. § 10.5(f); B.O., supra note 4; N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
9

Id. at Chapter 2.901.19.a.

10

Id. at Chapter 2.901.19.a(2).

11

Id. at Chapter 2.901.19.a(3).

12

Id. at Chapter 2.901.19.c.

4

OWCP’s September 5, 2019 decision denied appellant’s wage-loss compensation claim
because the evidence of record was insufficient to establish that she was disabled for work for the
period April 18 to June 4, 2019. It also noted that she had stopped work on April 18, 2019 and
had not returned. However, appellant’s supervisor certified on June 25, 2019 that appellant had
returned to work on April 19, 2019 and her June 4, 2019 time analysis form (Form CA-7a) listed
specific dates and number of hours for which she was requesting compensation, in addition to the
specific reasons for taking leave for each date mentioned, primarily for medical appointments.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.13 Section 10.126 of FECA’s
implementing regulations provides that a decision shall contain findings of fact and a statement of
reasons and a statement of reasons.14 As well, OWCP’s procedures provide that the reasoning
behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect
of the claim and the kind of evidence which would overcome it.15
OWCP did not determine whether appellant was entitled to up to four hours of
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location during the claimed period. The Board will
therefore set aside OWCP’s September 5, 2019 decision. On remand OWCP shall make findings
of fact and a provide a statement of reasons as to whether appellant is entitled to any intermittent
wage-loss compensation due to her attendance for medical examinations or treatment to be
followed by a de novo decision regarding appellant’s claim for disability compensation.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

5 U.S.C. § 8124(a).

14

20 C.F.R. § 10.126.

15
Id.; See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5
(February 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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)

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

Docket No. 09-566
Issued: September 9, 2009

Case Submitted on the Record

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

JURISDICTION
On December 19, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated July 11 and October 17, 2008 finding that she
had not established an injury causally related to her federal employment. 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 has met her burden of proof in establishing that she
developed a right shoulder condition due to her employment duties.
FACTUAL HISTORY
On April 10, 2008 appellant, then a 44-year-old rural mail carrier, filed an occupational
disease claim alleging that she developed right shoulder pain due to the repetitive activities of
casing, delivering and lifting mail. She first became aware of her condition on March 13, 2008
and first attributed the condition to her employment on March 14, 2008. In a narrative statement,
appellant alleged that her right shoulder pain began during casing mail and that the ache

intensified throughout the day. She stated that her right shoulder pain was in the joint area and
that the pain radiated with a tingling sensation down her right fifth finger.
Dr. Shafaq Hussain, a Board-certified internist, completed a note on March 17, 2008 and
reported that appellant had a gradual onset of right shoulder pain over the prior four days which
was progressively worsening with lifting. She diagnosed rotator cuff tendinitis of the right
shoulder. On April 10, 2008 Dr. Hussain noted that appellant’s right shoulder pain had
decreased but not completely resolved. She diagnosed shoulder tendinitis.
In a letter dated April 26, 2008, the Office requested additional factual and medical
evidence from appellant and allowed 30 days for a response. Appellant responded on May 12,
2008 and described her activities outside of work. In a duty status report dated May 9, 2008,
Dr. Hussain diagnosed right shoulder tendinitis. She indicated with a checkmark “yes” that
appellant provided a history of casing mail, lifting parcels and tubs and delivering mail.
Dr. Hussain released appellant to return to full duty on March 20, 2008.
By decision dated July 11, 2008, the Office denied appellant’s claim finding that
Dr. Hussain failed to provide the necessary medical opinion evidence to establish a causal
relationship between appellant’s diagnosed condition and her implicated employment duties.
Appellant requested reconsideration on July 30, 2008. She asserted her belief that her
right shoulder condition was caused by her work duties of lifting. In a report dated July 30,
2008, Dr. Hussain stated that appellant’s right shoulder pain started while performing her daily
job duties of casing, sorting, loading and delivering mail. She stated, “All of which contributed
to her symptoms….” Dr. Hussain diagnosed rotator cuff tendinitis with impingement syndrome
caused by a work-related injury.
By decision dated October 17, 2008, the Office denied modification of its July 11, 2008
decision finding that Dr. Hussain did not provide sufficient medical reasoning to establish
appellant’s claim.1
On appeal to the Board, appellant contends that the medical evidence is sufficient to
establish her claim.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 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 a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
1

Following the Office’s October 17, 2008 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
2

20 C.F.R. § 10.5(q).

2

(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion 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.3
ANALYSIS
Appellant attributed her right shoulder tendinitis to her job duties of casing, delivering
and lifting mail. In support of her claim, she submitted a series of reports from Dr. Hussain, a
Board-certified internist, diagnosing right shoulder tendinitis. Appellant has submitted the
medical evidence necessary to establish the presence of a condition and a factual statement
identifying the employment factors which she believed caused or contributed to that condition.
Dr. Hussain submitted a duty status report dated May 9, 2008 diagnosing right shoulder
tendinitis and indicated with a checkmark “yes” that appellant provided a history of casing mail,
lifting parcels and tubs and delivering mail. This report is not sufficient to meet appellant’s
burden of proof. Dr. Hussain did not explain how these activities caused or contributed to
appellant’s right shoulder tendinitis. It is well established that a physician’s opinion on causal
relationship that consists of checking “yes” to a form question is of diminished probative value.4
In a report dated July 30, 2008, Dr. Hussain stated that appellant’s right shoulder pain
started while performing her daily job duties of casing, sorting, loading and delivering mail. She
stated, “All of which contributed to her symptoms….” Dr. Hussain diagnosed rotator cuff
tendinitis with impingement syndrome caused by a work-related injury. While she generally
opined that appellant’s employment duties contributed to her right shoulder symptoms and
diagnosis of rotator cuff tendinitis, she did not offer any medical reasoning explaining why and
how she believed this to be true. Dr. Hussain did not explain the processes by which appellant’s
job duties of casing, sorting, loading and delivering mail would result in or contribute to right
shoulder tendinitis. Her report provided only a minimal description of any physical examination
and did not contain any discussion of diagnostic testing to support the diagnosis. Without
rationalized medical opinion evidence explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified, appellant has failed to meet
her burden of proof.
CONCLUSION
The Board finds that appellant did not establish a causal relationship between her
diagnosed right shoulder tendinitis and her federal employment.

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

See Cecelia M. Corley, 56 ECAB 662 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT October 17 and July 11, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 10-1193
Issued: February 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 26, 2010 appellant, through counsel, filed a timely appeal from the October 8,
2009 and February 25, 2010 merit decisions of the Office of Workers’ Compensation Programs
reducing his wage-loss compensation benefits based on the constructed position of light truck
driver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation for wage loss
to zero based on a capacity to earn wages in the constructed position of light truck driver.
FACTUAL HISTORY
On April 6, 2006 appellant, then a 49-year-old part-time postmaster relief supervisor,
filed a traumatic injury claim alleging that on March 25, 2006 he sustained a slipped lumbar disc
while sorting mail and off loading the cage. The Office accepted the claim for left L5 vertebra
subluxation and lumbar disc protrusion at L4-5. It approved lumbar fusion surgery which was

performed on April 25, 2007.1 By letter dated March 8, 2007, the Office placed appellant on the
periodic rolls for temporary total disability.
In an October 8, 2007 functional capacity evaluation (FCE) report, Troy Herrich, a
physical therapist, stated that appellant was capable of performing medium work. Appellant was
found capable of occasional lifting/carrying of 50 pounds, frequent lifting/carrying of 20 pounds,
constant carrying/lifting of 20 pounds, constant sitting with lumbar support, no more than
60 steps every 15 minutes and one hour of standing rotating with sitting of 5 to 10 minutes. The
record contains an undated and unsigned work capacity form, with a notation that restrictions
were noted “per FCE.” On January 8, 2008 Dr. Grant H. Shumaker, a treating Board-certified
neurosurgeon, reviewed the October 8, 2007 FCE. He concurred that appellant was capable of
working at a medium capacity and stated that appellant “will be released to return to work with
permanent restrictions.” In an attached work restriction form, Dr. Shumaker noted medium
restrictions which included occasional lifting of up to 50 pounds, frequent lifting of up to
25 pounds and constant lifting of up to 10 pounds.
On February 1, 2008 the Office referred appellant to a rehabilitation counselor for
vocational rehabilitation. In March 4 and May, 2008 reports, the rehabilitation counselor noted
that appellant received his General Educational Certificate or General Education Diploma in
1990 and had prior experience as truck driver or forklift driver. He identified light truck driver
or forklift driver as possible employment positions.
On August 28, 2008 the rehabilitation counselor identified the position of light truck
driver and forklift driver as within appellant’s physical demands and vocational abilities. He
noted that the Department of Labor, Dictionary of Occupational Titles job classification for both
positions were within appellant’s physical restrictions. Rehabilitation counselor further found
that these positions were reasonably available within the commuting area.
On September 4, 2008 the Office notified appellant that it proposed to reduce his
compensation for wage loss on the grounds that the medical and factual evidence established that
he was no longer totally disabled for work, but rather was capable of earning wages as an
assembler at $502.00 a week as a light truck driver. It allowed him 30 days to submit additional
evidence or argument regarding his capacity to earn wages in the described position.
In a decision dated October 6, 2008, the Office reduced appellant’s compensation for
wage loss to zero effective October 6, 2008. It found that the position of light-duty truck driver
was medically and vocationally suitable and represented his capacity to earn wages.
In an October 26, 2008 letter, appellant’s counsel requested a telephonic hearing before
an Office hearing representative, which was held on February 24, 2009.
By decision dated May 20, 2009, the Office hearing representative reversed the
October 6, 2008 loss of wage-earning capacity decision. She remanded the case to provide
Dr. Shumaker with a copy of the constructed position and obtain an opinion as to whether
1

The employing establishment terminated appellant’s employment due to a drug charge arrest effective
January 12, 2007.

2

appellant was capable of the performing this position. The Office was also instructed to obtain
an updated work capacity form.
Following the Office hearing representative’s decision, the Office placed appellant on the
periodic rolls for temporary total disability and requested clarification from the vocational
rehabilitation counselor as to whether the constructed position required a license. It also
provided a copy of the job description and physical restrictions for a light-duty truck driver for
review by Dr. Shumaker.
In a June 2, 2009 memorandum, the vocational rehabilitation specialist stated that a
commercial driver’s license was not required for all light-duty truck drivers and that light-duty
trucks were available within both manual or automatic transmission.
In response to the Office’s June 4, 2009 request, Dr. Shumaker noted “per FCE or PT
[physical therapy] eval[uation]” under the request for him to review the duties of the constructed
position and provide an opinion as to whether appellant was capable of the performing the
position. He advised that he had not seen appellant since January 9, 2008. In an attached work
capacity evaluation form, Dr. Shumaker wrote “suggest [PT] to eval[uate] FCE [and] job
description.”
In an August 25, 2009 report, the rehabilitation counselor identified light truck driver and
forklift driver positions, which were within appellant’s restrictions and reasonably available
within the commuting area. The weekly salary for a light truck driver was $502.00 and the
weekly salary for the forklift driver was $485.60.
On September 8, 2009 the Office notified appellant that it proposed to reduce his
compensation for wage loss on the grounds that the medical and factual evidence established that
he was no longer totally disabled for work, but rather was capable of earning wages as an
assembler at $502.00 a week as a light truck driver. It allowed him 30 days to submit additional
evidence or argument regarding his capacity to earn wages in the described position.
By decision dated October 8, 2009, the Office reduced appellant’s compensation for
wage loss to zero effective October 6, 2008. It found that the position of light-duty truck driver
was medically and vocationally suitable and represented his capacity to earn wages.
In an October 18, 2009 letter, appellant’s counsel requested a telephonic hearing before
an Office hearing representative, which was held on January 12, 2010.
By decision dated February 25, 2010, Office hearing representative affirmed the
October 8, 2009 loss of wage-earning capacity decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 An injured employee who is either unable to return to
2

T.F., 58 ECAB 128 (2006).

3

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 loss of wageearning capacity.3
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee, if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent the employee’s wage-earning capacity or if the employee has no actual
wages, the wage-earning capacity is determined with due regard to the nature of the injury, the
degree of physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his wage-earning capacity in his disabled condition.4
The Office must determine appellant’s medical condition and work restrictions before
selecting an appropriate position that reflects his vocational wage-earning capacity. The Board
has stated that the medical evidence upon which the Office relies must provide a detailed
description of his condition.5 Additionally, the Board has held that a wage-earning capacity
determination must be based on a reasonably current medical evaluation.6
ANALYSIS
The Office accepted that appellant sustained left L5 vertebra subluxation and lumbar disc
protrusion at L4-5 due to a March 25, 2006 employment injury and approved lumbar fusion
surgery, which was performed on April 25, 2007.7 By letter dated March 8, 2007, it placed him
on the periodic rolls for temporary total disability and reduced his compensation to zero effective
October 8, 2009 based on its finding that he had the capacity to earn wages in the selected
position of light truck driver.
On January 8, 2008 Dr. Shumaker, a treating Board-certified neurosurgeon, concurred
with the October 8, 2007 FCE and released appellant to work within permanent specified
restrictions. A work capacity evaluation form noted restrictions. The vocational rehabilitation
expert found that the position of light truck driver was suitable to appellant’s medical
restrictions. The Office hearing representative subsequently instructed the Office to provide
Dr. Shumaker with a copy of the constructed position and obtain an opinion as to whether
appellant was capable of the performing this position. In response to the Office’s June 4, 2009
request regarding appellant’s ability to perform the duties of the constructed position,
Dr. Shumaker wrote “per FCE or PT eval” but stated that he had not seen appellant since
3

20 C.F.R. §§ 10.402, 10.403.

4

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
5

See William H. Woods, 51 ECAB 619 (2000).

6

Carl C. Green, Jr., 47 ECAB 737 (1996).

7

The employing establishment terminated appellant’s employment due to a drug charge arrest effective
January 12, 2007.

4

January 9, 2008. In an attached work capacity evaluation form, he wrote “suggest [PT] to
eval[uate] FCE [and] job description.” The rehabilitation counselor again identified light truck
driver and forklift driver as within appellant’s restrictions and that they were reasonably
available within the commuting area.
The Board finds that the medical evidence of record does not establish the Office failed
to establish that appellant was capable of performing the duties of the selected position. Once
the Office undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.8 It relied upon the opinion of
Dr. Shumaker to determine appellant’s capacity to perform the physical requirements and duties
of the selected position. The response provided by Dr. Shumaker is not adequate to determine
appellant’s capacity for such work. His response to the inquiry is ambiguous. It is not clear
whether Dr. Shumaker was making reference to the 2007 FCE or recommending further
evaluation of appellant. As it is unclear from the record whether he found the position of light
truck driver within appellant’s restrictions, the Office should have further developed the
evidence by requesting clarification from him or seeking an opinion from another physician to
resolve the issue. The Board finds that the Office did not establish that appellant had the
capacity to perform the constructed position of a light truck driver.
Accordingly, the case will be remanded to the Office for further evidentiary development
regarding the extent and degree of any injury-related disability and the status of his employmentrelated conditions. After such development of the case record as the Office deems necessary, an
appropriate decision shall be issued.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in reducing appellant’s
wage-loss compensation benefits effective October 8, 2009.

8

Richard F. Williams, 55 ECAB 343 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 25, 2010 and October 8, 2009 are reversed.
Issued: February 23, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Suffolk, VA, Employer
__________________________________________

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

Docket No. 15-1346
Issued: November 17, 2015

Case Submitted on the Record

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

JURISDICTION
On June 2, 2015 appellant filed a timely appeal from the May 11, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
from the last merit decision, dated November 12, 2014, and 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 the claim.2
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for
review of the written record.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. By order dated October 16, 2015, the Board denied her
request as her arguments could be adequately addressed in a decision based on a review of the case record. Order
Denying Request for Oral Argument, Docket No. 15-1346 (issued October 16, 2015).

FACTUAL HISTORY
On December 2, 2013 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on September 9, 2013 she first became aware that her
right rotator cuff tear was employment related.
In support of her claim, appellant submitted disability notes covering the period
September 25 to November 27, 2013 from Dr. Manish A. Patel, a treating Board-certified
orthopedic surgeon; a September 25, 2014 magnetic resonance imaging (MRI) scan; disability
and referral notes dated September 11 and 18, 2013 by Stefan Brecke, a physician assistant, who
diagnosed right shoulder acute muscle sprain; and a September 12, 2013 disability note with a
diagnosis of right shoulder strain by James Rhee, a physician assistant.
By correspondence dated December 24, 2013, OWCP informed appellant that the
evidence of record was insufficient to support her claim. Appellant was advised as to the
medical and factual evidence required to support her claim and given 30 days to provide the
requested information.
In response to OWCP’s request for additional evidence, appellant submitted a
December 11, 2013 Certification of Health Care Provider for Employee’s Serious Health
Condition form, physical therapy notes, an October 16, 2013 surgery report, a January 3, 2012
narrative statement,3 and the medical evidence set forth below.
In an undated report, Dr. Patel noted treatment dates and that right shoulder arthroscopic
and rotator cuff repair surgery had been performed on October 16, 2013. He noted that
appellant’s symptoms and that a review of her MRI scan revealed complete supraspinatus tendon
tear, which he opined had caused a complete rotator cuff rupture. In concluding, Dr. Patel
opined that her condition could have been aggravated by her work activity.
In reports dated September 10 and 25 and October 25, 2013, Dr. Patel reported that
appellant had been seen on September 10, 2013 after she heard her shoulder pop while
navigating her automobile through a parking lot. Physical examination findings were provided.
Dr. Patel diagnosed a complete right shoulder rotator cuff rupture and tear. An October 3, 2013
right shoulder arthrogram showed right shoulder rotator cuff tear.
Dr. Patel, in a November 27, 2013 report, noted that appellant was seen following her
right shoulder arthroscopic surgery and provided physical examination findings. He diagnosed a
complete rotator cuff rupture.
By decision dated April 15, 2014, OWCP denied appellant’s claim as it found that the
medical evidence of record was insufficient to establish causal relationship between the
diagnosed right shoulder rotator cuff rupture and her employment.

3

The date on the statement appears to be a typographical error as the date is January 3, 2013 and appellant refers
to work events beginning on September 2, 2013.

2

In a form dated May 7, 2014, appellant requested a review of the written record by an
OWCP hearing representative.
By decision dated November 12, 2014, an OWCP hearing representative affirmed the
denial of appellant’s claim.
On April 16, 2015 OWCP received appellant’s April 10, 2015 form requesting review of
the written record by an OWCP hearing representative. The postmark on the attached envelope
was April 13, 2015.
By decision dated May 11, 2015, OWCP denied appellant’s request for review of the
written record as it found that appellant had already requested a review of the written record and
that a decision on review of the written record was issued on November 12, 2014. As such,
appellant was not entitled to another review of the written record on the same issue as a matter of
right. OWCP exercised its discretion and denied her second request for a review of the written
record as it found that the issue involved in the case could be addresed equally well on
reconsideration by submitting medical evidence establishing that the claimed medical condition
was causally related to her employment.
LEGAL PRECEDENT
Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for
either an oral hearing or a review of the written record.4 A request for a hearing or review on the
written record must be submitted, in writing, within 30 days of the date of the decision for which
a hearing is sought.5 If the request is not made within 30 days, a claimant is not entitled to a
hearing or a review of the written record as a matter of right. OWCP regulations further provide
that the claimant must have not previously submitted a reconsideration request (whether or not it
was granted) on the same decision.6 Although a claimant who has previously sought
reconsideration is not, as a matter of right, entitled to a hearing or review of the written record,
the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing
following reconsideration.7 Similarly, the Branch of Hearings and Review may exercise its
discretion to conduct a hearing or review the written record where a claimant requests a second
hearing or review on the written record on the same issue.8
ANALYSIS
By decision dated April 15, 2014, OWCP found that appellant failed to establish that the
diagnosed medical condition was causally related to her employment duties. On a form dated
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

5

Id. at 10.616(a).

6

Id.

7

D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).

8

Supra note 5.

3

May 7, 2014, appellant requested a review of the written record using the appeal request form
that accompanied OWCP’s April 15, 2014 merit decision. By decision dated November 12,
2014, an OWCP hearing representative affirmed the denial of her claim.
On April 16, 2015 OWCP received a form dated April 10, 2015, postmarked April 13,
2015, requesting a review of the written record of the November 12, 2014 decision. By decision
dated May 11, 2015, it denied appellant’s request for a review of the written record as she had
previously requested and received a review of the written record. Thus, OWCP found that she
was not entitled to a review of the written record as a matter of right. The Board agrees that
appellant was not entitled to a review of the written record as a matter of right as she had
previously requested and received a review of the written record by an OWCP hearing
representative.9
The Board finds that OWCP properly exercised its discretion in denying appellant’s
request for another review of the written record by determining that the issue in the case could be
addressed equally well by requesting reconsideration and submitting new evidence relevant to
the issue at hand.10 The Board has held that the only limitation on OWCP’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to logic
and probable deduction from established facts.11 There is no evidence in the current case that
OWCP abused its discretion in denying appellant’s request for a review of the written record
under these circumstances. The Board finds that OWCP acted properly in denying appellant’s
April 10, 2015 request for review of the written record.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the written
record.

9

20 C.F.R. § 10.616(a). See also D.E., supra note 7.

10

Hubert Jones, Jr., supra note 7; Sandra F. Powell, 45 ECAB 877 (1994).

11

See M.C., Docket No. 09-2314 (issued August 20, 2010); Claudia Vazquez, 52 ECAB 496 (2001); Daniel J.
Perea, 42 ECAB 214 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2015
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

5