United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
GARRISON, Fort Shafter, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0712
Issued: June 23, 2016

Case Submitted on the Record

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

JURISDICTION
On January 28, 2015 appellant filed a timely appeal from an August 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, in order for OWCP to review the merits of a case an appeal must be filed
within 180 days from the date of the most recent merit decision of OWCP. An appeal is considered filed upon
receipt by the Clerk of the Appellate Boards. The Board notes that 180 days from August 5, 2014, the date of the
OWCP merit decision, was Sunday, February 1, 2015, so the appeal was due on February 2, 2015. Since using
February 3, 2015, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered he date of filing. The date of the U.S. Postal Service postmark
is January 28, 2015, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to justify the reduction of appellant’s
compensation to zero for failing to cooperate with the early stages of vocational rehabilitation.
On appeal, appellant generally contends that OWCP improperly weighed the medical
evidence, that the medical evidence was sufficient to reestablish benefits, that the burden to
terminate benefits was not met, that OWCP’s decision was untimely, that certain statements in
the decision were incorrect, and that the Social Security Administration (SSA) found appellant
disabled.
FACTUAL HISTORY
This case has previously been before the Board. The facts set forth in the Board’s prior
decision are incorporated herein by reference.3 On October 19, 1987 appellant, then a 36-yearold maintenance worker, filed a traumatic injury claim (Form CA-1) alleging that on October 15,
1987 he was using his ram set nail gun to fasten a 2x4 piece of wood onto a concrete wall when
he felt a tingling sensation in his left arm and fingers. OWCP accepted his claim for cervical
strain with radiculopathy, and disc protrusions and osteophytes at C4-5 and C5-6.4
In an April 25, 2013 report, Dr. Jose C. De Leon, appellant’s treating Board-certified
internist, noted that appellant was suffering from left-sided neck pain with radiation to the left
hand and fingers as tingling pain and numbness. He opined that the basis of these symptoms was
due to neck sprain and cervical disc disease with radiculitis. Dr. De Leon noted that appellant
has suffered from the same neck pain with radiation to the left arm since the injury of
October 15, 1987, and that it should logically be considered permanent. He further noted that
degenerative cervical disc disease has a natural course of being stable or getting worse, but that
appellant will never again be unimpaired. Dr. De Leon further opined that appellant was not
capable of working any job due to his chronic, daily severe pain. He found that “vocational
rehabilitation will relieve his pain temporarily and thus will be useless.” Dr. De Leon further
opined that appellant’s symptoms were permanent and that he should be considered permanently
disabled. He also noted that Medicare has granted him permanent disability due to these
symptoms. Dr. De Leon anticipated no further improvement.
On June 6, 2013 OWCP referred appellant to Dr. Kenneth T. Kaan, a Board-certified
orthopedic surgeon, for a second opinion. It asked Dr. Kaan to discuss the current status of
appellant’s neck strain, herniated cervical disc, brachial neuritis, and aggravation of cervical disc
disease, whether any of appellant’s accepted conditions still persist, whether appellant is able to
work, how many hours a day appellant is able to work, whether appellant is able to participate in
3

Docket No. 99-1194 (issued March 22, 2001) (the Board vacated OWCP decisions and remanded the case for
further development of the medical evidence with regard to whether appellant suffered a recurrence of disability on
November 19, 1987).
4

Appellant also filed a claim alleging that on July 3, 1986, while changing a fluorescent light fixture, he reached
overhead and felt pain in his neck and left shoulder (OWCP File No. xxxxxx099). He was initially treated at the
occupational health clinic where he was diagnosed with a neck strain. Appellant returned to light duty, and this
claim was never formally adjudicated.

2

vocational rehabilitation training, and describe appellant’s limitations. In a July 18, 2013
opinion, Dr. Kaan noted that appellant’s diagnoses were C5 and C6 radiculopathy, secondary to
C4-5 left disc herniation, and C5-6 left foraminal stenosis. He explained that a neck sprain/strain
usually resolves in about six weeks to three months after the onset of symptoms. Dr. Kaan
opined that appellant had multiple small episodes that exacerbated his cervical disc disease
leading to axial-type neck symptoms and sometimes right upper extremity pain. He found that
appellant’s herniated disc at C4-5 could have been caused by an acute injury at work. Dr. Kaan
noted that appellant’s neurological examination was inconsistent due to the fact that appellant
had “give away weakness” and was unable to cooperate with the neurological examination. He
opined that the diffuse weakness in the C6-T1 levels was more likely psychological in nature and
not related to the original work exposure. Dr. Kaan further noted that, although appellant was
still complaining of cervical pain, the cervical strain/sprain should have healed by now, but
cervical disc disease was still present and it is his chronic pain syndrome which is primarily
responsible for his current symptomatology. He noted that appellant still has cervical disc
disease and cervical radiculopathy. In a subsequent October 2, 2013 work capacity evaluation,
Dr. Kaan opined that appellant was able to work eight hours a day with a lifting restriction of 10
pounds, and pushing pulling limited to 20 pounds.
On November 5, 2013 OWCP referred appellant’s case for vocational rehabilitation
services. In a November 15, 2013 letter, it advised him that as Dr. Kaan opined that appellant
was capable of resuming gainful employment within imposed restrictions, his case was being
referred for appropriate vocational rehabilitation. OWCP informed appellant that he would be
contacted by a vocational rehabilitation counselor, and that he was expected to cooperate fully
with the rehabilitation and reemployment effort.
In a November 25, 2013 letter to appellant, the vocational rehabilitation counselor
indicated that she had not been able to contact appellant by telephone, so she was informing him
by letter that he has an appointment with her on December 6, 2013 at 10:00 a.m. She informed
him that if he was unable to attend, he should contact her and provide possible dates and times
that he would be available.
In a November 26, 2013 letter, appellant stated that he was unable to pursue a return to
work status as vocational rehabilitation might aggravate his work-related injury and that pursuant
to the opinion of his treating physician, Dr. De Leon, vocational rehabilitation would be useless.
In a December 6, 2013 response to appellant’s November 26, 2013 letter, OWCP noted
that the weight of the medical evidence has been given to the evaluation conducted by Dr. Kaan,
and that therefore, it has accepted that appellant was capable of working eight hours a day in a
sedentary capacity. It had not accepted Dr. De Leon’s April 25, 2013 opinion that appellant was
totally disabled from work.
In a December 9, 2013 letter to appellant, OWCP indicated that it had been informed by
the rehabilitation specialist of appellant’s unwillingness to participate in a possible rehabilitation
effort because he believed that he was too severely disabled to work. It noted that appellant did
not keep his rehabilitation appointment. OWCP indicated that the medical evidence of record
showed that he was not totally disabled. It afforded appellant 30 days to make a good faith effort
to participate in rehabilitation and noted that if, at the expiration of the 30-day period, he has not

3

complied or provided a good reason for not participating in the effort, the rehabilitation effort
would be terminated and action would be taken to reduce his compensation under the provisions
of section 8113(b) of FECA and section 10.519 of the regulations.
In a statement dated November 23, 2013, but received by OWCP on December 10, 2013,
appellant discussed his treatment from Dr. De Leon and his conclusion that appellant was unable
to work any job due to his chronic daily severe pain. He noted various concerns with Dr. Kaan
including that he was an hour late to his office which backed up all his appointments and that the
medical records he reviewed were incomplete. Appellant argued that his injury was accepted by
OWCP 12 years ago and that there was no medical evidence that “may help me return back to
work.” He noted that he was unable to accept the offer to pursue a return to work status.
In a December 20, 2013 vocational rehabilitation report, the vocational rehabilitation
counselor noted her attempts to reach appellant and indicated that appellant did not show up for
his December 13, 2013 appointment nor did he call. She noted that he had not been agreeable to
meeting for an initial vocational evaluation. The counselor also forwarded a copy of a
December 12, 2013 letter wherein appellant informed her, “I will not be attending your last
minute schedule appointments, due to other obligations. I will give you a call in regards of a
rescheduled appointment.”
Appellant sent OWCP a letter dated December 24, 2013, wherein he forwarded March 22
and April 2, 2001 multiple impairment questionnaires completed by Dr. De Leon, and a copy of
a July 19, 2001 fully favorable decision by SSA. He contended that this evidence justified his
disability and outweighs Dr. Kaan’s opinion.
In a January 13, 2014 decision, OWCP notified appellant that his compensation was
being reduced to zero due to his refusal to participate in vocational rehabilitation, and that the
reduction will continue until he, in good faith, undergoes the directed vocational testing or
showed good cause for not complying with rehabilitation.
On January 29, 2014 appellant requested a review of the written record. He argued that
he sent documents that justified his disability and that he was ordered by his primary physician to
not return to work. Appellant noted that he declined to participate in the rehabilitation program
for good cause. He contended that removing his benefits after all this time was unfair treatment,
and would constitute double jeopardy as his claim had already been accepted. Appellant again
argued that SSA’s decision was fully favorable to him. In support thereof, he resubmitted
multiple documents by Dr. De Leon, including 2001 questionnaire responses and medical reports
dated October 25, 2003; March 20, 2007; May 21, 2010; and April 25, 2013. Appellant also
submitted prior correspondence and decisions from OWCP and another copy of the fully
favorable decision by SSA.
In a decision dated August 5, 2014, the hearing representative affirmed the January 13,
2014 decision of OWCP.

4

LEGAL PRECEDENT
FECA provides that the Secretary of Labor may direct a permanently disabled individual
whose disability is compensable to undergo vocational rehabilitation.5 According to 5 U.S.C.
§ 8113(b) if an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under 5 U.S.C. § 8104, OWCP may, after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, reduce prospectively the monetary compensation of the individual. The
reduction of compensation is performed in accordance with what would probably have been his
wage-earning capacity in the absence of the failure, until the individual in good faith complies
with the direction to undergo vocational rehabilitation. It is OWCP’s burden of proof with
respect to any reduction of compensation, including the reduction of compensation pursuant to
5 U.S.C. § 8113(b).6
Section 10.519 of OWCP’s regulations provides:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows:
(b) Where a suitable job has not been identified, because the failure
or refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, interviews, testing, counseling,
functional capacity evaluations, and work evaluations) OWCP
cannot determine what would have been the employee’s wageearning capacity.
(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will
assume that the vocational rehabilitation effort would have resulted
in a return to work with no loss of wage-earning capacity, and
OWCP will reduce the employee’s monetary compensation
accordingly (that is, to zero). This reduction will remain in effect
until such time as the employee acts in good faith to comply with
the direction of OWCP.7

5

5 U.S.C. § 8104(a).

6

See D.A., Docket No. 14-375 (issued May 28, 2014).

7

20 C.F.R. § 10.519.

5

ANALYSIS
Once OWCP has made a determination that an employee is totally disabled as a result of
an employment injury and pays compensation, it has the burden of justifying a subsequent
reduction of benefits.8 It reduced appellant’s compensation based on his failure to participate in
vocational rehabilitation.
In reaching its conclusion with regard to appellant’s ability to work, OWCP must initially
determine the employee’s medical condition and work restrictions.9 When it referred appellant
to vocational rehabilitation, it determined that the weight of the evidence was represented by the
opinion of the Dr. Kaan, the second opinion physician. Dr. Kaan determined that appellant was
capable of returning to work eight hours a day with a lifting restriction of 10 pounds and pushing
and pulling limited to 20 pounds. His opinion differed from appellant’s treating physician,
Dr. De Leon, who opined that appellant was not capable of working any job due to chronic daily
severe pain. Dr. De Leon further opined that vocational rehabilitation would be useless.
It is well established that when there are opposing medical reports of virtually equal
probative value between an attending physician and a second opinion physician, 5 U.S.C.
§ 8123(a) requires OWCP refer the case to a referee physician to resolve the conflict.10 The
Board finds that the medical reports of Dr. De Leon and Dr. Kaan are in equipoise on the issue of
whether appellant is capable of returning to work and are thus in conflict. The hearing
representative found Dr. De Leon’s medical opinion was of diminished probative value as he
was not an appropriate specialist and he did not provide sufficient medical rationale to support
his opinion of total disability. The Board disagrees as Dr. De Leon is an attending physician
with Board certification in internal medicine who has provided long-standing medical care for
the accepted conditions in this claim and has set forth his medical opinion on the relevant issue
with equal rationale and clarity as the opinion of the second opinion physician, Dr. Kaan. As the
opposing medical reports are of virtually equal weight and rationale, the Board finds that there is
an unresolved conflict between Dr. De Leon and Dr. Kaan with regard to appellant’s ability to
return to work and participate in vocational rehabilitation efforts.
As there remains an unresolved conflict of medical opinion as to whether appellant is
physically capable of participating in vocational rehabilitation, OWCP has not met its burden of
proof to justify termination of appellant’s compensation benefits for failure to participate in
vocational rehabilitation efforts.11

8

M.A., 59 ECAB 624, 631 (2008).

9

L.C., Docket No. 12-972 (issued November 9, 2012).

10

William C. Bush, 40 ECAB 1064 (1989).

11

Supra note 9.

6

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify the reduction of
appellant’s compensation to zero for failure to cooperate with the early stages of vocational
rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 23, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Rapid City, SD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 12-833
Issued: May 24, 2012

Case Submitted on the Record

ORDER GRANTING REMAND
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 5, 2012 appellant filed a timely appeal from a December 8, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP). By that decision, OWCP denied
appellant’s request for reconsideration of the merits of its October 25, 2011 decision.1 OWCP
found that appellant had not provided “clear evidence that [it] erred in issuing the prior decision
dated October 25, 2011.”
On April 10, 2012 the Director filed a motion requesting the Board to set aside the
December 8, 2011 decision and remand the case for further specified development. He
acknowledged that appellant timely filed a request for reconsideration of OWCP’s October 25,
2011 decision and, as such, OWCP should have reviewed said request “with regard to standards
set forth … in 20 C.F.R. § 10.606(b)(2).”2 However, the Director further acknowledged that,
instead, OWCP’s claims examiner mentioned “the standard reserved for untimely requests,
1

Appellant alleged that he injured his left knee in the performance of duty as a forestry technician. OWCP
denied his claim on October 25, 2011 on the grounds that, although the August 3, 2011 incident occurred as alleged,
he failed to establish that he sustained a medical condition resulting from the accepted incident.
2

20 C.F.R. § 10.606(b)(2)(i)-(iii) of OWCP’s regulations provides that an application for reconsideration must be
in writing and set forth arguments and contain evidence that either: “(i) Shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) Advances a relevant legal argument not previously considered by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not previously considered by OWCP.”

namely, whether appellant’s application presented clear evidence of error in OWCP’s prior
decision.”3 He concluded that “this higher standard of review is not warranted” under the
circumstances in this case. On remand, the Director stated that OWCP will review appellant’s
request for reconsideration under the proper standard of review for timely reconsideration
requests. Following this and any necessary further development, he stated that OWCP will issue
a “merit reconsideration decision pursuant to 20 C.F.R. § 10.606.”
The Clerk of the Board served appellant with a copy of the Director’s motion to remand.
On April 17, 2012 appellant advised the Board, inter alia, that he wished to pursue
reconsideration before OWCP at this time and did not want his appeal processed.
The Board has duly considered the matter and concludes that, as the Director has
acknowledged that OWCP applied the incorrect standard for review to appellant’s timely
reconsideration request and as on remand OWCP will apply the proper standard for review and
issue a merit reconsideration decision following any necessary further development, the
Director’s motion to remand should be granted. Accordingly,
IT IS HEREBY ORDERED THAT the motion to remand filed by the Director of the
Office of Workers’ Compensation Programs is granted. The decision of OWCP dated
December 18, 2011 is set aside; the case is remanded for further proceedings consistent with this
order.
Issued: May 24, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

See 20 C.F.R. § 10.607(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1024
Issued: December 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 2, 2015 appellant filed a timely appeal of a January 2, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty.

1

Appellant filed a timely request for oral argument. By order dated October 6, 2015, the Board denied his
request on the grounds that his arguments could be adequately addressed in a decision based on a review of the case
record. Order Denying Request for Oral Argument, Docket No. 15-1024 (issued October 6, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 3, 2014 appellant then a 53-year-old program analyst, filed a traumatic
injury claim (Form CA-1), alleging that on September 2, 2014 while working in the library he
attempted to carry and move a cardboard box full of archive materials and pulled his neck and
back, causing pain and loss of feeling. He did not stop work.
Appellant submitted a magnetic resonance imaging (MRI) scan report dated
September 16, 2014 which revealed an irregular central herniation superimposed upon spurring
to the left extending into the foramen at C3-4, irregular spurring across the disc margin at C4-5,
spurring to the left at C5-8 and disc bulge at C6-7. In an undated attending physician’s report,
Dr. Gary Raab, an osteopath, noted that appellant reported carrying a box and injuring his neck
and shoulder. He diagnosed acute cervical spasm and cervical radiculitis and noted with a
checkmark in the box marked “yes” that the condition was caused or aggravated by an
employment activity. Dr. Raab advised that appellant did not miss work.
Appellant was treated by Dr. Jeffrey D. Polcer, an osteopath and Board-certified
anesthesiologist, who, in prescription slips dated September 22 and 23, 2014, recommended
physical therapy and an electromyogram (EMG). In reports dated September 23 and October 7,
2014, Dr. Polcer noted that appellant presented with right neck pain radiating down the right
arm. Appellant reported a work-related neck injury on September 2, 2014 when he lifted a box
off of a pallet. Dr. Polcer noted an EMG revealed an acute right C7 radiculopathy. He noted
findings on examination of symmetrical reflexes of the biceps and triceps. Dr. Polcer diagnosed
cervicalgia and cervical radiculopathy and recommended cervical epidural steroid injections and
physical therapy. He returned appellant to work without restrictions. On October 24, 2014
Dr. Polcer administered a cervical epidural steroid injection and epidurography, and diagnosed
cervical radiculopathy.
On October 2, 2014 appellant was treated by Dr. Salvatore Russomano, a Board-certified
physiatrist, who noted that appellant reported a work-related injury approximately one month
earlier while pulling a heavy stack of books. Dr. Russomano noted appellant’s symptoms of
progressive right-sided neck discomfort with radiation down his right upper extremity and
numbness involving the second and third digits of his right hand. Manual muscle testing
revealed significant weakness of the triceps on the right, sensory examination was diminished
over his second and third digits of his right hand, and reflexes revealed a diminished triceps
response on the right. The electrodiagnostic testing revealed electrical evidence of an acute right
C7 radiculopathy with axon loss.
Appellant was treated by Dr. Fernando Delasotta, a Board-certified neurosurgeon, on
November 18, 2014, for pain in the base of the neck, right shoulder into the right arm with
associated numbness of the wrist, second and third digits of the right hand with subjective
weakness. Dr. Delasotta noted that a November 12, 2014 cervical myelogram revealed minimal
degenerative spurring to the left at C3-4 and mildly narrowing the left neural foramen. On
examination, appellant ambulated without assistance, was able to walk on tip toes and heels, had
no gross motor or sensory deficit, and had restricted range of motion of the neck. Dr. Delasotta
diagnosed cervical radiculopathy and recommended that appellant continue working full time.

2

Appellant also submitted a nurse’s note dated November 18, 2014 diagnosing cervical
radiculopathy and recommending physical therapy.
By letter dated December 1, 2014, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It indicated that appellant’s claim had been administratively handled to allow medical payments
up to $1,500.00 without formal adjudication of the merits of the claim. OWCP advised that,
because the medical bills exceeded $1,500.00, his claim would be formally adjudicated. It
requested that appellant submit additional information including a comprehensive medical report
from his treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by appellant had contributed to his claimed right arm injury.
Appellant submitted a November 18, 2014 report from Dr. Polcer who treated him for
radiating neck and arm pain. He reported sustaining a work-related neck injury on September 2,
2014 while lifting a box off a pallet. Dr. Polcer diagnosed cervicalgia and cervical radiculopathy
and returned appellant to work without restrictions.
In a January 2, 2015 decision, OWCP denied the claim because the medical evidence
failed to establish that the diagnosed medical conditions were causally related to the established
work-related events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

3

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

4

T.H., 59 ECAB 388 (2008).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
It is undisputed that on September 2, 2014 appellant was attempting to carry and move a
cardboard box full of archive materials from the library. It is also undisputed that appellant was
diagnosed with cervicalgia and cervical radiculopathy. However, appellant has not submitted
sufficient medical evidence to establish that these diagnosed conditions were caused or
aggravated by this incident. On December 1, 2014 OWCP advised appellant of the type of
medical evidence needed to establish his claim. Appellant has not submitted sufficient medical
evidence to establish that the diagnosed conditions are causally related to work factors.
Appellant was treated by Dr. Polcer who, in reports dated September 23, October 7, and
November 18, 2014, noted that appellant presented with radiating right neck and arm pain.
Appellant reported injuring his neck on September 2, 2014 while lifting a box off a pallet.
Dr. Polcer diagnosed cervicalgia and cervical radiculopathy. He provided cervical epidural
steroid injections on October 24, 2014 and returned appellant to work without restrictions.
Dr. Polcer did not provide medical rationale explaining the basis of his opinion regarding the
causal relationship between appellant’s diagnosed conditions and the September 2, 2014 work
incident. He did not explain how work activities on September 2, 2014 could have caused or
aggravated the diagnosed conditions.
Appellant was treated by Dr. Russomano on October 2, 2014, for progressive right-sided
neck discomfort with radiation down his right arm and numbness involving the second and third
digits of his right hand. He reported being involved in a work-related injury approximately one
month prior while pulling a heavy stack of books. An EMG revealed electrical evidence of an
acute right C7 radiculopathy with axon loss. However, Dr. Russomano appears merely to be
repeating the history of injury as reported by appellant without providing his own opinion
regarding whether appellant’s condition was work related. To the extent that Dr. Russomano is
providing his own opinion, he did not provide a rationalized opinion regarding the causal
relationship between appellant’s right C7 radiculopathy and the factors of employment believed
to have caused or contributed to such condition.6 Therefore, this report is insufficient to meet
appellant’s burden of proof.
In an undated attending physician’s report, Dr. Raab diagnosed acute cervical spasm and
cervical radiculitis. He noted with a checkmark “yes” that the condition was caused or
aggravated by an employment activity. The Board has held that when a physician’s opinion on
causal relationship consists only of checking a box marked “yes” to a form question, without
explanation or rationale, that opinion is of diminished probative value and is insufficient to
establish a claim.7

5

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

6

Id.

7

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).

4

Dr. Delasotta treated appellant on November 18, 2014, for neck, right shoulder, and arm
pain with associated numbness to the wrist and fingers. He noted findings, offered a diagnosis,
and recommended that appellant continue working full time. This report is of limited probative
value as Dr. Delasotta did not provide a history of injury8 or specifically address whether
appellant’s employment activities had caused or aggravated a diagnosed medical condition.9
Likewise, the remainder of the medical evidence, including diagnostic test reports, fails
to provide an opinion on the causal relationship between appellant’s job and his diagnosed
conditions. For this reason, this evidence is insufficient to meet appellant’s burden of proof.10
Also submitted was a nursing note. The Board has held that treatment notes signed by a
nurse are not considered medical evidence as these providers are not considered physicians under
FECA.11
On appeal appellant disagreed with OWCP’s decision denying his claim for
compensation and noted that he submitted sufficient evidence to establish his claim as work
related. He sought payment of the medical expenses incurred as a result of his work-related
condition. As noted above, the medical evidence does not establish that appellant’s diagnosed
conditions were causally related to his employment. Reports from appellant’s physician’s failed
to provide sufficient medical rationale explaining the reasons why appellant’s diagnosed medical
conditions were caused or aggravated by particular work duties on September 2, 2014.
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(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty.

8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
10

Id.

11

See 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); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).

5

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 14, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, LENOX HILL
STATION, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0685
Issued: June 8, 2017

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 2, 2017 appellant filed a timely appeal from a November 2, 2016 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
ISSUE
The issue is whether appellant has met her burden of proof to establish left elbow and
back injuries causally related to a September 6, 2016 employment incident.
On appeal, appellant contends that she sustained a work-related injury.
1
2

5 U.S.C. § 8101 et seq.

Following the issuance of OWCP’s November 2, 2016 decision and while on appeal to the Board, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at
the time of its final decision. Thus, the Board is unable to review this evidence for the first time on appeal. See 20
C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 6, 2016 appellant, then a 47-year-old city carrier assistant, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left elbow, torso,
right side of her back, and right buttock when she slipped and fell on a wet floor at work while in
the performance of her duties. She stopped work on the date of injury and has not returned.
Appellant submitted September 6, 2016 discharge instructions from New York
Presbyterian Hospital which contained the printed name of Marilou Salvatierra, a nurse. The
discharge instructions indicated that x-rays of the chest and pelvis had been performed and were
negative and advised that medication had been prescribed.
In a September 26, 2016 letter, OWCP advised appellant that her claim initially appeared
to be a minor injury that resulted in minimal or no lost time from work and, based on these
criteria and because the employing establishment did not controvert continuation of pay or
challenge the case, payment of a limited amount of medical expenses was administratively
approved. It noted that it had reopened the claim for consideration because she had not returned
to work. OWCP informed appellant of the type of evidence needed to support her claim and
requested that she submit such evidence within 30 days.
In response, OWCP received a September 20, 2016 medical report from Dr. Jamil M.
Abraham, a family physician Board-certified in pediatrics. Dr. Abraham noted a history that on
September 6, 2016 appellant was boxing up mail when she slipped on a puddle of water and fell
on her back. He described her medical treatment, current complaints of pain in her low back and
left elbow, and social background. Dr. Abraham discussed findings on physical examination of
the lumbar spine and left elbow. He diagnosed low back derangement, lumbar radiculopathy,
and traumatic arthropathy of the elbow joint. In a certificate of illness dated September 21,
2016, Dr. Abraham noted that appellant had been ill from September 7, 2016 to the present. He
indicated that she had backache and traumatic arthropathy of the left elbow. Dr. Abraham
advised that appellant could return to work on September 28, 2016 with no restrictions.
By decision dated November 2, 2016, OWCP accepted that the September 6, 2016 work
incident occurred as alleged. However, it denied appellant’s claim and determined that the
medical evidence of record was insufficient to establish a medical condition causally related to
the accepted employment incident.
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 weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury caused by the September 6, 2016 employment incident. Appellant
failed to submit sufficient medical evidence to establish that her left elbow and back injuries
were causally related to the accepted employment incident.
Dr. Abraham’s September 20, 2016 report noted a history of the September 6, 2016
employment incident and diagnosed low back derangement, lumbar radiculopathy, and traumatic
arthropathy of the elbow joint. However, he did not offer an opinion of whether appellant’s
conditions were caused or aggravated by the accepted work incident.10 In a September 21, 2016
certificate of illness, Dr. Abraham indicated that appellant was ill from September 7, 2016
through the present due to backache and traumatic arthropathy of the left elbow. He released her
to return to work on September 28, 2016 with no restrictions. However, Dr. Abraham again
failed to offer a medical opinion on whether appellant’s conditions and prior disability from
work were caused or aggravated by the accepted employment incident.11 Thus, the Board finds
that his reports are insufficient to meet appellant’s burden of proof.

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

John J. Carlone, 41 ECAB 354 (1989); see supra note 2 at § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
11

Id.

3

The September 6, 2016 hospital discharge instructions completed by Nurse Salvatierra
are insufficient to establish appellant’s claim. This evidence has no probative medical value as
nurses are not considered physicians as defined under FECA.12
The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish that her diagnosed left elbow and back injuries were causally related to the
accepted September 6, 2016 employment incident. Appellant, therefore, did not meet her burden
of proof.
On appeal, appellant contends that she sustained a work-related injury. For the reasons
set forth above, the Board finds that the medical evidence is insufficient to establish that she
sustained left elbow and back conditions causally related to the accepted September 6, 2016
work incident.
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(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish left
elbow and back injuries causally related to a September 6, 2016 employment incident.

12

5 U.S.C. § 8101(2); see M.B., Docket No. 16-1188 (issued January 10, 2017) (nurses are not considered
physicians as defined by FECA).

4

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2017
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS POSTAL FACILITY, Kearny, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1159
Issued: January 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2009 appellant filed a timely appeal of the August 28, 2008 and
February 24, 2009 merit decisions of the Office of Workers’ Compensation Programs denying
modification of a wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that her February 22, 2008 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
On March 14, 2002 appellant, then a 35-year-old mail processor clerk, filed an
occupational disease claim. On February 17, 2002 she first became aware of her left carpal
tunnel syndrome and realized that her condition was caused by her repetitive work duties. On

July 8, 2002 the Office accepted appellant’s claim for mild bilateral carpal tunnel syndrome.
Appellant stopped work on March 28, 2007.1
By letter dated October 16, 2007, the Office accepted appellant’s claim for left C5-6
radiculopathy.
On December 15, 2007 appellant returned to work as a limited-duty mail processing clerk
at the employing establishment at her regular salary. By decision dated February 22, 2008, the
Office reduced her wage loss to zero pursuant to 5 U.S.C. §§ 8106 and 8115. It determined that
appellant’s actual wages as a mail processing clerk fairly and reasonably represented her wageearning capacity. Appellant had demonstrated her ability to perform the duties of the position
satisfactorily and her actual earnings were equal to the current pay of her date-of-injury position.
By letter dated June 8, 2008, the Office accepted appellant’s claim for left shoulder
impingement.
In a report dated June 25, 2008, Dr. Mark A.P. Filippone, an attending Board-certified
physiatrist, advised that appellant sustained cervical radiculopathy and carpal tunnel syndrome.
He indicated with an affirmative mark that the diagnosed conditions were caused by her accepted
employment-related injuries.
Dr. Filippone opined that appellant was totally disabled
commencing June 25, 2008.
On June 27, 2008 appellant filed a Form CA-2a claim alleging that she sustained a
recurrence of total disability on June 25, 2008. She experienced massive spasms on the left side
of her neck and sharp pains on the left side of her head. Appellant also experienced involuntary
movements of her upper and lower left arm due to nerve damage on the left side of her neck.
She sustained left side cervical radiculopathy, a pinched nerve in the left shoulder and bilateral
carpal tunnel syndrome.
By letter dated July 11, 2008, the Office advised appellant of the criteria necessary to
modify a formal loss of wage-earning capacity decision. It requested that she submit such
evidence within 30 days. The Office stated that the evidence of record was insufficient to
establish a material worsening of her accepted employment-related conditions.
In reports dated June 25 to August 20, 2008, Dr. Filippone reiterated his diagnoses of
cervical radiculopathy and carpal tunnel syndrome. He advised that appellant required cervical
epidural steroid injections which were directly and solely a result of her accepted employmentrelated injuries.
By decision dated August 28, 2008, the Office denied modification of the February 22,
2008 loss of wage-earning capacity decision. It found that appellant failed to submit sufficient
rationalized medical evidence to establish a material worsening of her accepted employmentrelated conditions.

1

By decision dated July 5, 2007, the Office accepted that appellant sustained a recurrence of total disability on
March 28, 2007 causally related to her accepted employment-related injuries.

2

In a September 3, 2008 letter, appellant, through her attorney, requested an oral hearing
before an Office hearing representative.
In medical records dated August 20, 2008 to January 13, 2009, Dr. Filippone noted
appellant’s continuing bilateral hand symptoms. He advised that her left shoulder rotator cuff
impingement, disc herniation at C4-5 and bulging disc at C5-6 were causally related to her
accepted employment-related injuries. Dr. Filippone stated that appellant was only 41 years old
and any abnormalities would not be part of any aging process. He recommended cervical
surgery. Dr. Filippone found that appellant remained totally disabled.
By decision dated February 24, 2009, an Office hearing representative affirmed the
August 28, 2008 decision. He found that appellant had not submitted sufficient evidence to
establish that there was a material change in the nature and extent of her employment-related
conditions, that she had been vocationally rehabilitated or that the original loss of wage-earning
capacity determination was erroneous.2
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.4 The procedure manual further indicates that
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

2

By letter dated February 4, 2009, the Office accepted that appellant sustained a recurrence of total disability on
October 31, 2008 causally related to her accepted employment-related injuries. It authorized left shoulder surgery.
Also, on February 4, 2009 the Office issued a decision modifying its February 22, 2008 loss of wage-earning
capacity determination. It found the evidence sufficient to establish that appellant’s employment-related conditions
had worsened as of October 31, 2008 and warranted surgery.
3

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

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
5

Id.

3

rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
The Office accepted that appellant sustained mild bilateral carpal tunnel syndrome, left
C5-6 radiculopathy and left shoulder impingement while in the performance of duty. On
February 22, 2008 it determined that her actual earnings as a mail processing clerk fairly and
reasonably represented her wage-earning capacity. Appellant filed a claim for total disability
commencing June 25, 2008 due to her accepted employment-related conditions. The Board finds
that appellant has not shown that there was a material change in the nature and extent of her
employment-related conditions such that the Office’s February 22, 2008 wage-earning capacity
determination should be modified.
Dr. Filippone opined that appellant sustained cervical radiculopathy, bilateral carpal
tunnel syndrome, left shoulder rotator cuff impingement, disc herniation at C4-5 and a bulging
disc at C5-6 due to her accepted employment-related conditions. He found that she was totally
disabled commencing June 25, 2008. However, the Office has not accepted appellant’s claim for
disc herniation at C4-5 or a bulging disc at C5-6.8 Dr. Filippone did not provide adequate
medical rationale explaining how or why appellant became totally disabled commencing
June 25, 2008 due to the worsening of her accepted employment-related conditions. The Board
notes that his conclusions are of limited probative value. The record reflects that appellant return
to modified duty on December 15, 2007 and worked until June 25, 2008. Dr. Filippone did not
explain how appellant’s condition had changed such that she was unable to continue at modified
duty. The Board finds that the medical evidence is insufficient to establish that she sustained a
material change in the nature and extent of the accepted conditions commencing June 25, 2008
that would warrant modification of the February 22, 2008 wage-earning capacity determination.
Appellant has not claimed or otherwise shown that the February 22, 2008 wage-earning
capacity determination was erroneous.
The Office based her wage-earning capacity
determination that her actual earnings as a limited-duty mail processing clerk beginning on
December 15, 2007 represented her wage-earning capacity.9 There is no evidence that her actual
earnings as a limited-duty mail processing clerk did not fairly and reasonably represent her
wage-earning capacity and the Office properly adjusted her compensation based on this wage6

M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008); Harley Sims, Jr., 56 ECAB 320 (2005); Sue A.
Sedgwick, 45 ECAB 211 (1993).
7

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007); Sherman Preston, 56 ECAB
607 (2005).
8

For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).
9

Disability is defined in the implementing federal regulations as the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury. 20 C.F.R. § 10.5(f). The Office applied the
principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in appellant’s
compensation.

4

earning capacity determination.10 The position was not an odd-lot or makeshift position
designed for appellant’s particular needs; nor was it seasonal in nature.11 For these reasons,
appellant has not shown that the Office’s original wage-earning capacity determination was
erroneous. She also has not alleged or otherwise shown that she was retrained or otherwise
vocationally rehabilitated.
On appeal, appellant contended that the May 2, 2008 x-ray and magnetic resonance
imaging scan reports of Dr. Stephen J. Conte, a Board-certified radiologist, establish that she
sustained a material change in the nature and extent of her employment-related cervical
condition. Although Dr. Conte noted that she had several cervical conditions including a disc
herniation at C4-5 and a bulging disc at C5-6, these conditions have not been accepted by the
Office.12 Further, his reports predate the alleged period of total disability. Dr. Conte did not
provide an opinion stating that she was totally disabled as of June 25, 2008 due to a worsening of
her accepted employment-related conditions.13 The Board finds, therefore, that his reports are
insufficient to establish that appellant’s total disability as of June 25, 2008 was caused by a
worsening of her employment-related conditions.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her
wage-earning capacity determination should be modified.

10

See Clarence D. Ross, 42 ECAB 556, 561-62 (1991).

11

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, supra note 4,
Chapter 2.814.7 (July 1997).
12

Alice J. Tysinger, supra note 8.

13

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

5

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2009 and August 28, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lincoln, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-304
Issued: September 8, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) September 14, 2010 nonmerit decision denying her request
for reconsideration. 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 nonmerit decision. The last
merit decision of OWCP was its September 22, 2009 decision denying appellant’s occupational
disease claim. The Board lacks jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On July 27, 2009 appellant, then a 71-year-old clerk, filed an occupational disease claim
alleging that she sustained a left knee injury as a result of employment activities for 29 years.
She stated that both her job as a city carrier for 17 years and her position as a modified clerk for
the past 5 years, required repetitive turning, twisting, walking and pivoting that caused and
contributed to her left knee condition. Appellant had a right knee replacement surgery five years
earlier as a result of the same alleged employment activities.
The employing establishment controverted appellant’s claim, noting that she had been
working with restrictions since her April 4, 1994 injury in File No. xxxxxx492. Pursuant to
appellant’s limited-duty job, she was not required to twist, turn, pivot or walk excessively or to
lift more than 15 pounds. Further, most of her duties as a modified clerk during the most recent
five-year period were performed in a sitting position. At no time did appellant stand for hours or
do considerable walking, as alleged. Supervisor Fleming acknowledged that appellant worked
overtime, but stated her restrictions pursuant to a 1998 claim for a shoulder injury included only
intermittent walking and standing and lifting no more than 20 pounds.
Appellant was treated by Dr. Ronald O. Schwab, a Board-certified orthopedic surgeon,
for left knee pain. On July 10, 2009 Dr. Schwab noted her report that prolonged standing, lifting,
kneeling and squatting at work over the previous several years had produced and aggravated her
left knee condition. He diagnosed progressive osteoarthritis of the left knee. On September 3,
2009 Dr. Schwab stated that appellant’s activities as a carrier included considerable walking,
lifting, kneeling, squatting, stair climbing in inclement weather, all of which contributed to the
development of osteoarthritis of the left knee.
In an undated statement, appellant advised that her job as a letter carrier for 17 years
required her to stand and case mail for three to four hours a day, pivoting from side to side,
twisting and turning her knees. She lifted trays of flats and letters, weighing 65 to 70 pounds,
and bent to place them on gurneys. Delivering mail five to six hours each day in all kinds of
adverse weather conditions gradually aggravated his left knee condition. The previous five years
as a clerk required filling pouches with mail, which in turn required pivoting, twisting and
turning six to eight hours each evening.
In a September 22, 2009 decision, OWCP denied appellant’s claim on the grounds that
the evidence failed to establish that the work events occurred as alleged.
On July 14, 2010 appellant requested reconsideration. In an accompanying letter, she
stated that she had additional evidence that would establish her claim. Appellant contended that
the 537.37 hours of overtime during the year of 2006 and 305.94 hours of overtime during the
year 2007, in addition to her full-time 40-hour work week, constituted a “considerable amount of
walking.” She stated that she was enclosing a copy of her restrictions during that period, and a
statement from Dr. Schwab.3 Appellant contended that her left knee condition was exacerbated
by her reliance on the left knee while she awaited right knee surgery. In 2006 her restrictions
were modified and she was approved for overtime. On October 16, 2006 appellant was allegedly
3

The above-referenced restrictions and note from Dr. Schwab were not included in the record.

2

released to full duty and worked overtime two to four hours a day. Her work reportedly included
a considerable amount of standing and walking. Appellant reiterated that her duties as a
modified clerk included walking or standing at least six to eight hours a day, as well as pivoting,
squatting and twisting and contended that her left knee condition was directly related to the
repetitive wear doing the requirements of my job, just as her right knee damage was.
By decision dated September 14, 2010, OWCP denied appellant’s request for
reconsideration, finding that the evidence presented was insufficient to warrant a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or
(3) constitute relevant and pertinent new evidence not previously considered by
OWCP.5
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.6 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.7 The Board
has held that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.8
ANALYSIS
In its September 22, 2009 decision, OWCP denied appellant’s claim on the grounds that
the evidence failed to establish that the events occurred, as alleged, namely that she had engaged
in repetitive employment activities that included prolonged standing and repetitive twisting,
pivoting and turning. On July 14, 2010 appellant requested reconsideration of the September 22,
2009 decision. The Board finds that OWCP properly denied appellant’s request for further merit
review.

4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.SC. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

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

3

As noted above, the Board does not have jurisdiction over the merits of the
September 22, 2009 decision. 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. In her July 14, 2010 application for reconsideration, 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 merely reiterated her contention that significant overtime worked,
in addition to her repetitive employment activities, caused her left knee condition. Appellant
recounted the alleged progression of her job restrictions and her left knee problems, contending
that OWCP based its decision on inaccurate information. Her letter merely repeats information
contained in documents previously received and considered by OWCP and is, therefore,
cumulative and duplicative in nature.9
A claimant may be entitled to a merit review by submitting new and relevant evidence.
Appellant did not, however, submit any new and relevant medical evidence in support of her
reconsideration request. The Board notes that she represented in her July 14, 2010 letter that she
was enclosing a copy of her work restrictions, and a statement from Dr. Schwab. The record,
however, does not contain either a copy of the restrictions or a note from Dr. Schwab.
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 it, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant reiterated her general contentions that her employment duties
included significant amounts of walking and standing, which caused her left knee condition and
that she worked substantial amounts of overtime during 2006 and 2007, thereby exacerbating the
left knee condition. These contentions were considered below. Appellant argues that OWCP
based its decision on inaccurate information provided by the employing establishment. As
noted, the Board finds that the evidence submitted in support of appellant’s request for
reconsideration is insufficient to warrant further merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

9

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the September 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1602
Issued: April 11, 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 June 1, 2010 appellant filed a timely appeal from the March 31, 2010 merit decision
of the Office of Workers’ Compensation Programs denying a request for modification of a wageearning capacity determination and denying a recurrence of disability claim. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to modify the Office’s July 24,
1995 wage-earning capacity determination or to establish that he sustained a recurrence of
disability on September 7, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on October 25, 1988 appellant, then a 27-year-old shipyard
worker, sustained a lumbosacral strain, degenerative disc at L5-S1 and bilateral L5 spondylolysis
due to lifting a portion of a concrete sidewalk. Appellant was totally disabled from work for a
period and received disability compensation from the Office. He began participating in an
Office-sponsored vocational rehabilitation program designed to help return him to work.
On July 28, 1994 a functional capacity evaluation (FCE) was performed. The results of
the FCE indicated that appellant should pursue vocational opportunities within a light/light
medium physical demand range on a full-time basis with restrictions of lifting up to 40 pounds
occasionally.2 On December 19, 1994 appellant began working as a fabric worker with a private
employer, for 40 hours a week.3 The position did not require lifting more than 40 pounds,
carrying more than 30 pounds or engaging in repetitive trunk bending. Appellant was allowed to
switch between standing and sitting as needed.4
In a July 24, 1995 decision, the Office adjusted appellant’s compensation to reflect his
ability to earn actual wages as a fabric worker.5
On December 3, 1996 Dr. Bruce I. Tetalman, an attending Board-certified physiatrist,
noted that appellant reported that he was able to work without missing time. He diagnosed
spondylolitic radiculitis, medically stable and resolved and lumbar disc disease.
The evidence of record does not contain any indication that appellant received regular
medical treatment for his back condition between early 1997 and mid 2008.6 In a report dated
October 13, 2008, Dr. Hansen discussed the diagnostic testing of record indicating that computed
tomography scanning from March 24, 1992 showed spondylosis at L5 and facet degenerative
disease at L5-S1 with spondylolisthesis of L5 on S1.7 He stated that appellant complained of
low back pain in the midline area which moved into his upper buttocks and posterolateral thighs.
The pain was aggravated by activity and lifting. Dr. Hansen indicated that appellant’s
examination was notable for decreased range of motion upon lumbar flexion. Appellant had
2

Appellant received treatment for his back problems from Dr. Robert B. Hansen, a Board-certified neurologist,
and Dr. David M. Biondi, an osteopath and Board-certified neurologist.
3

Appellant started working for Atlantic Enterprises and later became a fabric worker at another private employer,
B & B Manufacturing Company, due to the financial instability of Atlantic Enterprises.
4

Appellant had more than 10 years of sewing experience prior to starting work as fabric worker. He worked for
B & B Manufacturing Company until July 1997.
5

The wages at B & B Manufacturing Company were lower than those at Atlantic Enterprises and the Office
based its wage-earning capacity determination on those lower wages.
6

The only record of a back examination by a physician during this period is dated November 8, 2002. Appellant
reported that he had low back pain but that he did not regularly take medication except for Motrin. In an October 8,
2002 work capacity evaluation form, Dr. Hansen indicated that appellant could occasionally lift up to 40 pounds and
frequently lift up to 30 pounds.
7

Dr. Hansen indicated that appellant had not undergone diagnostic testing of his back for 15 years.

2

good strength and reflexes in his legs and tenderness to palpation of his lumbosacral paraspinal
muscles, sacroiliac joints bilaterally and trochanteric bursae. Dr. Hansen noted that appellant
continued working despite experiencing low back pain related to his work-related conditions. He
recommended that appellant participate in a pain management program and undergo sacroiliac
joint injection.
The findings of October 23, 2008 magnetic resonance imaging (MRI) scan testing of
appellant’s low back showed grade I spondylolisthesis at L5-S1 due to bilateral L5 spondylolysis
and foraminal stenoses most prominent at L5-S1 with no critical central canal stenosis.
Dr. Hansen continued to periodically examine appellant and noted that he reported having low
back pain which was aggravated by activity.
On September 11, 2009 Dr. Hansen noted that appellant reported experiencing much
more pain than before with pain shooting from his low back down into his right buttock and right
foot. The pain was worse with sleeping and prolonged sitting. On examination appellant
exhibited limited flexion. Dr. Hansen diagnosed low back pain, sciatica, lumbar spondylosis and
unspecified neuritis/neuralgia. On October 5, 2009 he noted that appellant reported that he still
had “terrible pain” in his low back that radiated down into both legs along with numbness and
tingling.
The findings of October 15, 2009 MRI scan testing showed minimal disc desiccation and
foraminal stenosis at L3-4, minimal broad-based disc protrusion and mild foraminal stenosis
(without significant central canal stenosis) at L4-5 and Grade 1 anterolisthesis and moderate
foraminal stenosis (without spondylolysis) at L5-S1. The thecal sac was abutted at L5-S1 but not
effaced. A January 14, 2010 electromyogram (EMG) and nerve conduction velocity testing
showed a chronic, bilateral L5-S1 radiculopathy. Appellant continued to undergo periodic
sacroiliac joint injections to treat his back pain.
In late 2009, appellant was working as a shop foreperson for Doug’s Machine Shop.8 In
a claim for compensation (Form CA-7) signed on February 5, 2010, he alleged that he was
unable to perform any work from September 7 to October 20, 2009. In a claim for recurrence of
disability (Form CA-2a) signed on February 5, 2010, appellant claimed that he sustained a
recurrence of disability on September 7, 2009 due to his October 25, 1988 employment injury.9
In work certificates from September and October 2009, several attending physicians with
illegible signatures indicated that he was disabled from work for periods between September 7
and October 20, 2009.
In a February 25, 2010 letter, the Office advised appellant of the standards for modifying
a wage-earning capacity determination and for establishing a recurrence of disability. It
requested that he submit additional factual and medical evidence in support of his claim. In an
8

On September 26, 2001 appellant began working as a machinist for Doug’s Machine Shop.

9

Regarding how the recurrence of disability started, appellant stated, “The recurrence of disability happened over
a three-week period. I believe that it was due to the increase of work, which increased the speed of work to keep up
with demands.” It appears that beginning October 20, 2009 appellant started working 20 hours a week (rather than
40 hours a week) at Doug’s Machine Shop.

3

undated letter received on March 19, 2010, appellant described his back and leg symptoms and
detailed his job duties at Doug’s Machine Shop, including answering telephone calls, writing
reports and operating grinding and milling machines (for one-hour at a time). He submitted a job
description indicating that the work at the machine shop did not require lifting more than 10
pounds, reaching above shoulder level, twisting, bending or stooping.
In a March 15, 2010 report, Dr. Hansen stated that appellant had reported chronic back
pain since his October 25, 1988 employment injury but had generally been able to return to work
on a full-time basis. He noted that appellant remained out of work from September 7 to 19, 2009
and stated, “Over several weeks, however, he underwent an acceleration of pain, such that he had
to be taken out of work in September of this year. There was no particular inciting incident.
There was not a reinjury per se.” Dr. Hansen indicated that he regarded this work stoppage more
as “an exacerbation of a previously existing injury” and noted that appellant’s return to work has
been at a reduced level of four hours a day. He felt that this [was] medically appropriate given
the fact that [appellant] has proven unable to tolerate an eight-hour day.”
Dr. Hansen further stated that the findings of January 14, 2010 EMG and NVC testing
showed chronic bilateral L5-S1 radiculopathies and an October 15, 2009 MRI scan of the back
showed a disc protrusion at L4-5. At L5-S1 there was additional degenerative change and that
there was loss of disc height and protrusion of the disc, such that it abutted the thecal sac.10 A
previous lumbar MRI scan performed on October 23, 2008 showed similar findings along with
facet arthritis. Dr. Hansen provided a diagnosis of chronic low back pain relating to
degenerative lumbar spine disease noting that facet arthritis, lumbar degenerative disc disease
and lumbar region pain were specifically identified on MRI scanning. He stated that appellant
displayed evidence for these conditions over several years on serial MRI scanning and indicated
that, symptomatically, he had exacerbations of chronic low back that flowed from these changes.
Dr. Hansen noted that appellant had not sustained a reherniation of a lumbar disc. He did not
believe that appellant was a candidate for surgery, but rather he was a candidate for ongoing
conservative care and appropriate work modification. Dr. Hansen indicated that the nature of
appellant’s back injury was such that he was expected to continue to have problems and noted
that he had been engaged in physical therapy with an intent to provide strengthening of the core
muscles and to develop a sustainable therapeutic exercise program. He recommended that
appellant transitioned from supervised physical therapy to a sustainable, self-directed program
that could continue at a facility such as the YMCA. Dr. Hansen stated:
“In my opinion, [appellant’s] ongoing difficulties with his back relate to the initial
injury that occurred in 1988. He has been entirely consistent with his presentation
to this clinic. As mentioned above, we have seen [appellant] over the span of
better than a decade. There has been no reason to suspect that he is anything
other than faithfully representing his difficulties. I think it is to [appellant’s]
credit that he does attempt ongoing efforts at work. The aggregate of his back
pain is such that he is currently unable to tolerate any more than a four-hour day.
We have imposed additional work restrictions. [Appellant] should not work in a

10

Dr. Hansen indicated that grade I anterolisthesis was also observed.

4

stooped or bent position. He should not be engaged in heavy lifting. There is a
weight limitation of 10 pounds.”11
In a March 31, 2010 decision, the Office denied appellant’s request for modification of
the July 24, 1995 wage-earning capacity determination and denied his claim for a recurrence of
disability.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.12 The burden of proof is on the
party attempting to show the award should be modified.13
Section 8115(a) of the Act provides that the “wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.”14 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”15 However, wage-earning capacity may not be based on an odd-lot or makeshift position designed for an employee’s particular needs or a position that is seasonal in an area
where year-round employment is available.16 Office procedures direct that a wage-earning
capacity determination based on actual wages be made following 60 days of employment.17
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
11

Dr. Hansen completed a work capacity form on March 15, 2010 which further detailed these recommended
work restrictions.
12

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

13

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

14

5 U.S.C. § 8115(a).

15

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent a employee’s wage-earning capacity, the Office
applies the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in
the employee’s compensation.
16

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
17

Id. at Part 2 -- Claims, Reemployment:
(December 1993).

Determining Wage-Earning Capacity, Chapter 2.814.7c

5

establishes that he can perform the light-duty position, the employee has the burden to establish by
the weight of the reliable, probative, and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.18
ANALYSIS
The Office accepted that on October 25, 1988 appellant sustained a lumbosacral strain,
degenerative disc at L5-S1 and bilateral L5 spondylolysis. In a July 24, 1995 decision, it
adjusted his compensation to reflect his ability to earn actual wages as a fabric worker. In late
2009, appellant was working as a shop foreperson for Doug’s Machine Shop. In a February 5,
2010 Form CA-7, he alleged that he was unable to perform any work from September 7 to
October 19, 2009. In a February 5, 2010 Form CA-2a, appellant claimed that he sustained a
recurrence of disability on September 7, 2009 due to his October 25, 1988 employment injury.19
The Board finds that appellant did not meet his burden of proof to modify the Office’s
July 24, 1995 wage-earning capacity determination. Appellant has not argued or otherwise
shown that the July 24, 1995 wage-earning capacity determination was erroneous. This wageearning capacity determination was properly based on his actual wages as a full-time fabric
worker for a private employer.20
Appellant also has not shown that there was a material change in the nature and extent of
his employment-related condition. He submitted a March 15, 2010 report in which Dr. Hansen,
an attending Board-certified neurologist, reported appellant’s complaints of increased symptoms,
but this report does not contain a well-rationalized opinion showing that there was a material
change in his employment-related condition.
Dr. Hansen stated that appellant had reported chronic back pain since his October 25,
1988 employment injury but had complained of increased symptoms beginning in
September 2009.21 He stated that the findings of January 14, 2010 EMG testing showed chronic
18

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986). 20 C.F.R. § 10.5(x)
provides, “Recurrence of disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
19

It appears that beginning October 20, 2009 appellant started working 20 hours a week (rather than 40 hours a
week) at Doug’s Machine Shop.
20

There is no indication that the fabric worker position was an odd-lot or make-shift position designed for
appellant’s particular needs. See supra note 16.
21

In September 11, 2009 report, Dr. Hansen noted that appellant reported experiencing much more pain than
before with pain shooting from his low back down into his right buttock and right foot. The report does not contain
any notable objective findings.

6

bilateral L5-S1 radiculopathies and that an October 15, 2009 MRI scan of the back showed
degenerative changes and disc protrusions at L4-5 and L5-S1. Dr. Hansen noted, however, that
there had been no lumbar disc reherniation relative to earlier diagnostic studies. He provided a
diagnosis of chronic low back pain relating to degenerative lumbar spine disease noting that facet
arthritis, lumbar degenerative disc disease and lumbar region pain were specifically identified on
MRI scanning.22
The Board notes that Dr. Hansen’s reported findings beginning in
September 2009 are not notably different than those that had been observed since appellant
sustained his employment injury on October 25, 1988. Appellant’s claim was accepted for
degenerative disc at L5-S1 and bilateral L5 spondylolysis and he consistently complained of
radiculopathies in his legs since October 1988. Dr. Hansen’s assertion that appellant could not
work for the period September 7 to 19, 2009 and could only work four hours a week beginning
September 20, 2009 appears to have been based on appellant’s self-reported symptoms rather
than any objectively-measured material change in his employment condition.
Moreover, Dr. Hansen provided an equivocal opinion on the cause of the current signs
and symptoms he observed.23 In a portion of his report, he stated that appellant’s condition was
related to the October 1988 injury and noted, “Over several weeks, however, he underwent an
acceleration of pain, such that he had to be taken out of work in September of this year. There
was no particular inciting incident. There was not a reinjury per se.” However, in another
portion of his report, Dr. Hansen indicated that he regarded appellant’s work stoppage in
September 2009 as “an exacerbation of a previously existing injury.” Therefore, it is unclear
whether he was attributing appellant’s current condition to the October 25, 1988 employment
injury or some later injury that occurred while working for a private employer. Dr. Hansen did
not provide medical rationale to explain the connection between the October 1988 injury and
appellant’s condition in late 2009. Such medical rationale is especially necessary as the evidence
of record contains limited indications of medical treatment of appellant’s back condition between
early 1997 and mid 2008.24
The Board notes that appellant also did not show that he had been retrained or otherwise
vocationally rehabilitated such that a modification of the Office’s July 24, 1995 wage-earning
capacity determination would be justified. For these reasons, appellant has not met his burden of
proof to modify the Office’s July 24, 1995 wage-earning capacity determination.

22

Dr. Hansen did not believe that appellant was a candidate for surgery, but rather he was a candidate for ongoing
conservative care and appropriate work modification.
23

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956) (finding that an
opinion which is equivocal or speculative is of limited probative value regarding the issue of causal relationship).
24

On appeal appellant argued that his claim was established by the fact that Dr. Hansen had provided an opinion
that his degenerative disc disease would worsen over time. However, for the reasons explained above, Dr. Hansen’s
reports do not show that appellant suffered a material change in his injury-related condition. In work certificates
from September and October 2009, several attending physicians with illegible signatures indicated that appellant
was disabled from work for periods between September 7 and October 20, 2009. However, these physicians did not
provide any opinion on the cause of this disability or otherwise provide an opinion that his injury-related condition
had materially changed.

7

The Board further finds that appellant has not established that he sustained a recurrence
of disability on or after September 7, 2009. Although Dr. Hansen asserted that appellant could
not work for the period September 7 to 19, 2009 and could only work four hours a week
beginning September 20, 2009, he did not provide adequate medical rationale in support of this
opinion. He did not describe the October 25, 1988 employment injury in any detail or explain
how it could have been competent to cause increased disability on the alleged dates. Dr. Hansen
did not describe appellant’s limited-duty work or explain how a work-related condition caused
him to have total disability from September 7 to 19, 2009 or increased partial disability
beginning September 20, 2009. Moreover, it is unclear whether Dr. Hansen was attributing
appellant’s condition beginning in September 2009 to the October 25, 1988 employment injury
or some later injury that occurred while working for a private employer. As noted above, the
work certificates from several attending physicians with illegible signatures recommending
disability for dates between September and October 2009 did not provide any opinion on the
cause of this disability. For these reasons, the Office properly denied appellant’s claim for a
recurrence of disability beginning September 7, 2009.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to modify the Office’s
July 24, 1995 wage-earning capacity determination or to establish that he sustained a recurrence
of disability on September 7, 2009.

8

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 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

9