United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Eatontown, NJ, Employer 

__________________________________________ 

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Docket No. 14-1712 

Issued: June 9, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 26, 2014 appellant, through counsel, filed a timely appeal from May 9 and 

July 15, 2014 merit decisions 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. 

ISSUES 

The issues are: (1) whether appellant met her burden of proof to establish that she 

sustained an aggravation of her left elbow condition causally related to factors of her federal 

employment between June 10 and 13, 2013; and (2) whether OWCP properly terminated 

appellant’s wage-loss compensation under 5 U.S.C. § 8106(c) for abandonment of suitable work. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 4, 2011 appellant, then a 40-year-old rural carrier, filed a recurrence claim 

(Form CA-2a) alleging that upon returning to work she experienced slight pain, tightness, 

numbness, and swelling in and around her elbow after picking up trays at the end of her route on 

April 5, 2011. By letter dated May 23, 2011, OWCP informed appellant that it had 

administratively converted this claim for recurrence to a claim for a new traumatic injury 

because the circumstances described on her claim form indicated that she had experienced a new 

injury, rather than a spontaneous worsening of her work-related condition without new injury or 

exposure to work factors. The new claim was opened under file number xxxxxx726. Appellant 

stopped work on April 6, 2011. OWCP accepted her claim for left lateral epicondylitis on 

July 1, 2011. She underwent a left lateral epicondyle release surgical procedure on 

January 27, 2012. 

In a functional capacity evaluation dated November 2, 2011, physical therapists 

recommended that appellant had the ability to perform light work, including occasional lifting 

and working up to 20 pounds, with precautions on activities involving her left upper extremity. 

Additional recommended restrictions included no reaching above shoulder level; allowed 

changes to her duties involving her left upper extremity during prolonged or repetitive activities 

for durations longer than 10 minutes including pushing/pulling, lifting, gripping/grasping, 

reaching, typing, and pinching; and use of a step stool to keep her work load at shoulder level or 

below. 

In reports dated August 28, 2012, Dr. Franklin Chen, a Board-certified orthopedist, stated 

that appellant could return to work with permanent light-duty restrictions as outlined in the 

functional capacity evaluation of November 2, 2011. 

On April 4, 2013 the employing establishment made an offer of modified assignment 

(limited duty) for a position as a modified clerk. The duties of the assignment were described as 

“duties of a sales and service associate” (or “window job”) for 8 hours per day. The physical 

requirements of the modified assignment were standing for up to eight hours daily; lifting 20 

pounds occasionally for up to 2.6 hours daily; pushing, pulling, and gripping occasionally on the 

left for up to 2.6 hours daily; and reaching occasionally to shoulder level on the left side for up to 

2.6 hours daily. Appellant accepted this modified job offer on April 30, 2013. She resumed fulltime, limited duty on May 28, 2013. 

In a report dated June 17, 2013, a vocational rehabilitation counselor noted that, on 

June 11, 2013, appellant informed her she had been sent home after 3.5 hours because her 

manager had not issued a notification of personnel action form indicating a change in craft, and 

that she could therefore not work the “window job.” The form still had not been issued as of 

June 13, 2013. On June 14, 2013 appellant reported that her supervisor had asked her to work 

outside of her restrictions. The counselor contacted this supervisor on the same date, who 

contended that she had not asked appellant to work outside of her restrictions, that she was trying 

to accommodate appellant, and that she advised appellant to go home if she could not work. The 

rehabilitation counselor advised appellant to report for work on her next scheduled workday and 

to show her supervisor her job offer if she is asked to do anything outside of her restrictions. 
3

In an attending physician’s report dated June 18, 2013, Dr. Chen noted that appellant was 

currently unable to perform the modified duty activities of her position. He recommended an 

independent medical examination. In a narrative report of the same date, Dr. Chen noted that 

appellant came to visit for a follow up of “left elbow lateral epicondylitis s/p release on 

January 27, 2012” and that “the patient reports since returning to work with the light-duty 

restrictions she has had increased left elbow pain with recurring swelling. She was performing 

repetitive activities at work. The patient describes her pain as aching with associated spasms to 

the left upper arm which is worse with her work activities.” He opined that appellant was unable 

to perform modified duty and that “it is within medical probability that the current orthopedic 

complaints are causally related to the patient’s work injury.” 

By letter dated June 25, 2013, Dr. Chen noted that “Based on the exam[ination] of the 

patient, there is no objective finding that would [necessarily] prohibit her from working with the 

outlined restrictions. She has subjective complaints of spasm, fatigue and pain with those 

activities which she feels makes it unable for her to perform such activities. I received her 

[impartial medical examination] for a second opinion and I have no other treatment 

recommendations and feel that she is at [m]aximum medical improvement.” 

In a record of a telephone conversation dated July 11, 2013, the employing establishment 

confirmed that appellant’s modified job offer was still available. 

By letter dated July 11, 2013, OWCP stated that it had reviewed the modified job offer of 

April 4, 2013 and found it suitable in accordance with her medical limitations based on the report 

of Dr. Chen dated August 28, 2012. It noted that she returned to work on May 28, 2013, but 

stopped on June 19, 2013, and that Dr. Chen had advised by letter dated June 25, 2013 that there 

was no objective finding that would prohibit her from working the limited-duty position. OWCP 

afforded appellant 30 days either to submit a statement explaining why she had stopped work or 

to return to work. 

In reports dated July 9, 2013, Dr. Mark A. Filippone, Board-certified in physical 

medicine and rehabilitation, noted that appellant was totally disabled beginning June 13, 2013. 

He diagnosed her with a status post fracture of the left proximal radius at the elbow; suspect 

reflex sympathetic dystrophy of the left upper extremity; and internal derangement of the left 

shoulder. Dr. Filippone examined her, noting pain on palpation over the medial more than the 

lateral left humeral epicondyle; diminished pinprick sensations; no definite motor deficits of the 

abductor pollicis brevis, ulnar nerve intrinsics, extensor indicis proprius, or extensor halluces 

longus; and pain on reaching from above and behind from below with her left arm. He stated 

that his diagnoses were directly and solely the result of a slip and fall accident at work. 

In a report dated July 25, 2013, Dr. Filippone examined the results of an 

electromyography/nerve conduction velocity (EMG/NCV) study, and diagnosed appellant with 

left C5-6 cervical radiculopathy and bilateral carpal tunnel syndrome, worse on the left. He 

noted that these diagnoses were directly and solely the result of injuries sustained while working 

for the employing establishment. 

On July 31, 2013 appellant filed a recurrence claim (Form CA-2a) alleging that on 

June 13, 2013, she was filling boxes with mail in the post office box section for approximately 2 
4

hours when sharp pains began to radiate up and down her left arm. She noted that after returning 

to work following the original injury of April 5, 2011, she was put on permanent restrictions and 

then moved to the position of a modified window clerk. A supervisor noted that the duty alleged 

to have caused her injury was within her restrictions. 

By letter dated August 1, 2013, OWCP informed appellant that it had administratively 

converted this claim for recurrence to a claim for traumatic injury because the circumstances 

described on her claim form indicated that she had experienced a new injury, rather than a 

spontaneous worsening of her work-related condition without new injury or exposure to work 

factors. The new claim was opened under file number xxxxxx401. 

By letter dated August 12, 2013, OWCP informed appellant that the evidence of record 

was insufficient to support her claim for compensation under file number xxxxxx401. It 

requested that she respond to a questionnaire and afforded her 30 days to submit additional 

evidence. 

The employing establishment challenged appellant’s claim by letter dated 

August 23, 2013. It stated that appellant was assigned to duties within her limitations and that 

she was given mainly post office box duties. The employing establishment noted that the duties 

in that capacity were to case letters and flats, which were ounces in weight. It contended that 

these duties would not have caused her to have the type of injury that she claims, and stated that 

she only worked minimal hours per day. The employing establishment also noted that her injury 

occurred over a period of time, from May 28 through June 13, 2013. 

On August 28, 2013 appellant responded to OWCP’s inquiries. She stated that on 

June 13, 2013, she was working in the post office box section of the employing establishment 

when she noticed her left arm starting to swell and then experienced sharp shooting pains from 

her elbow radiating up to her shoulder and down to her fingertips. Appellant noted that before 

this injury, she had a slip and fall on the job while delivering mail on January 4, 2011, which 

resulted in a fractured radius and constant pain of her left arm and shoulder. She noted that she 

returned to work on March 26, 2011, which was diagnosed by Dr. Chen as lateral epicondylitis. 

Appellant stated that on April 4, 2013 she was given a modified job offer as a sales and service 

associate, and that she began window training on May 28, 2013. She noted that up until the date 

of injury she continued to have pain, swelling, numbness, and tingling of her left arm. Appellant 

stated that she was claiming a traumatic injury due to the stress and strain of the job functions 

she performed. 

In a narrative report dated August 30, 2013, Dr. Filippone reported that appellant 

informed him that on April 5, 2011 she slipped and fell landing on her flexed left elbow and 

fractured her proximal left radial bone, requiring surgery on January 27, 2012. He noted that she 

continued to be symptomatic for left lateral humeral epicondylitis. Dr. Filippone examined 

appellant but did not make findings on examination regarding her left upper extremity. He 

concluded that she was totally disabled. Dr. Filippone diagnosed appellant with left 

epicondylitis, status post fracture of the left proximal radius at the elbow, and internal 

derangement of the left shoulder. He opined that all of appellant’s abnormalities were directly 

and solely the result of the injury of April 5, 2011. 
5

In a decision dated September 17, 2013, OWCP denied appellant’s claim for 

compensation for traumatic injury under file number xxxxxx401. It reviewed evidence under 

both this file number and file number xxxxxx726 in the adjudication of her claim. OWCP found 

that appellant had not submitted a diagnosis in connection with the event of June 13, 2013, 

noting that her physicians did not describe this incident and did not indicate that her diagnosis of 

lateral epicondylitis had been caused or aggravated by this incident, but instead indicated that it 

had been caused by the injuries of January 4 and April 5, 2011. OWCP accepted that appellant 

was a federal civilian employee who filed a timely claim and that the evidence supported that the 

incident occurred as described. 

In a decision dated September 17, 2013, OWCP determined that appellant’s reasons for 

abandonment of her position were not valid. It afforded her a period of 15 additional days to 

report to her position. 

On September 23, 2013 appellant, through counsel, requested a hearing before an OWCP 

hearing representative on the issue of her claim for a June 13, 2013 traumatic injury. 

In an attending physician’s report dated September 27, 2013, Dr. Filippone noted that 

appellant continued to be totally disabled and that she needed a magnetic resonance imaging 

(MRI) scan of her left shoulder. 

By decision dated November 1, 2013, OWCP terminated appellant’s wage-loss and 

schedule award benefits as she abandoned suitable employment upon her failure to report to 

duty. 

On November 8, 2013 appellant, through counsel, requested a hearing before an OWCP 

hearing representative on the issue of her abandonment of suitable work. 

By letter dated November 11, 2013, OWCP referred appellant to Dr. Kenneth Heist, a 

Board-certified orthopedic surgeon, for a second opinion evaluation. It requested an opinion on 

whether appellant continued to suffer disability as a result of her injury of April 5, 2011, whether 

appellant was capable of returning to her job, and any recommended work restrictions. 

In a report dated November 25, 2013, Dr. Heist noted that appellant began training in 

May 2013 to be a window clerk, but that occupation was not available, and so she was “casing 

mail” when her symptoms reoccurred. He examined appellant and found that her “current 

restrictions, or disability, are directly related to the job injury of April 5, 2011.” Dr. Heist noted 

that appellant had tenderness over the elbow joint and restriction of motion of the left elbow, and 

that due to her symptoms she was unable to perform repetitive tasks or lift heavy articles. He 

noted that appellant was not capable of performing her job as a letter carrier, but that she was 

capable of working a full day in a less strenuous position such as a light-duty window clerk. 

Dr. Heist reviewed a functional capacity evaluation dated January 7, 2014, and noted that its 

conclusion that appellant was capable of performing light-duty work was congruent with his 

evaluation.2

 He recommended work restrictions of no more than two hours per day of pushing, 

 2

 While Dr. Heist stated that his report was signed on November 25, 2013, the evaluation of a January 7, 2014 

functional capacity evaluation in the body of the report reveals that Dr. Heist composed the report at a later date. 
6

pulling, or lifting per day of over 20 pounds; no more than two hours per day of repetitive 

movements involving the wrists; no more than one hour per day of repetitive movements 

involving the elbow; and breaks of five minutes every hour. 

In a functional capacity evaluation dated January 7, 2014, a physical therapist found that 

appellant was capable of working a full eight-hour workday on light duty. 

On February 4, 2014 Dr. Filippone noted that he had discussed the events of June 10 

through 13, 2013 with appellant. Appellant told him that on June 10, 2013, her supervisor 

advised appellant that because there was no Notification of Personnel Action form showing her 

new position she could not give her a cash drawer or have her work the front window. She was 

brought to the post office box section of the office and told to fill the boxes with mail and flyers. 

After two hours of performing this duty, she felt sharp shooting pains along with numbness and 

tingling about her left arm and fingers. Appellant was given a short break to rest and sent home. 

She reported to duty the next day, where she once again filled post office boxes and felt pain in 

her left arm with swelling. Appellant stated that she was then sent to the parcel area, where she 

lifted and placed parcels to scan and placed them in a hamper, then was sent home after about an 

hour. On June 12, 2013 she worked the post office box section, and after about an hour and a 

half, her arm swelled and began to throb. Appellant stated that she told her supervisor, who gave 

her a short break and sent her home. On June 13, 2013 she worked the post office box section 

and her arm began to swell again, causing pain significant enough to bring her to tears. 

Appellant reported to her supervisor and was advised to go home and contact her physician. 

Dr. Filippone noted that he found that these work duties would aggravate her preexisting left 

elbow injury. He noted subjective complaints of constant pain in the radial aspect of her left 

forearm; pain in the left fingers; burning sensations in the left hand, shoulder, and neck; and 

numbness and tingling in the thumb, index, and middle fingers of both hands. 

In an attending physician’s report dated February 4, 2014, Dr. Filippone noted that 

appellant continued to be totally disabled. 

A hearing before an OWCP hearing representative on the issue of appellant’s claim for 

traumatic injury based upon a traumatic incident of June 13, 2013 was held on 

February 18, 2014. At the hearing, appellant stated that she began working for the employing 

establishment in August 1995. She noted that on January 4, 2011 she injured herself when she 

slipped on black ice, and that OWCP accepted her claim for fracture of the left radius neck, 

closed. Appellant returned to work in March 2011 and later stopped work in April 2011 due to 

an elbow injury, which was accepted for left lateral epicondylitis. She returned to work again on 

May 28, 2013 for training after being offered a modified clerk position. Appellant stated that on 

June 10, 2013 she returned to work thinking that she would be performing a modified clerk job, 

but that on that day a supervisor told her that her paperwork was not finished, and so she was 

stuck in the post office box section. She noted that this position involving taking mail out of 

buckets and trays and putting them in post office boxes, which was a repetitive task involving 

reaching, twisting, and lifting. Appellant stated that she never had to reach above her shoulder in 

this position. On June 10, 2013 she began experiencing pain and swelling in her left elbow that 

radiated from her shoulders to her fingers. Appellant continued performing these duties until 

June 13, 2013, at which point the pain made her unable to move her arm. She noted that 

Dr. Chen thought her injury was a recurrence of her prior elbow injury, and he told her that he 
7

thought this because she had been performing repetitive activities. Appellant stated that she had 

“maxed out” her visits with Dr. Chen, so he released her that day to see another physician for a 

second opinion. She explained that, because OWCP denied payment to check her shoulder, 

Dr. Chen told her that there was nothing more he could do for her, and referred her to 

Dr. Filippone. Appellant had been out of work since that time under Dr. Filippone’s care. 

Appellant’s counsel contended that appellant’s claim under file number xxxxxx401 was an 

aggravation of her previous work injury of left epicondylitis due to new exposure from June 10 

through 13, 2013. 

A hearing before an OWCP hearing representative on the issue of appellant’s 

abandonment of suitable work was held on April 28, 2014. Appellant’s counsel contended that 

upon appellant’s return to work on June 10, 2013, her work restrictions of occasional left-sided 

pushing, pulling, and gripping were not honored when she was put to work in the post office box 

section. He noted that Dr. Chen had noted in his report of June 18, 2013 that appellant was 

doing repetitive activities at work. Counsel contended that appellant was not performing the 

duties outlined in the April 4, 2013 modified job offer when she returned to work, but instead she 

was working in the post office box area, and that as such, Dr. Chen’s June 25, 2013 opinion that 

there were no objective findings that would prohibit her from working with the outlined 

restrictions was irrelevant. He stated that Dr. Filippone’s opinion regarding appellant’s disability 

outweighed that of Dr. Chen due to these deficiencies, and that at the very least, there was a 

conflict of medical opinion between the two physicians of equal weight, requiring referral to an 

impartial medical examiner. Counsel noted that appellant suffered a new traumatic injury on 

June 13, 2013 as a result of the post office box duties, and that as such, the issue of appellant’s 

abandonment of suitable work was not in posture for decision. 

In an attending physician’s report dated May 6, 2014, Dr. Filippone again noted that 

appellant continued to be totally disabled. 

By decision dated May 9, 2014, the hearing representative affirmed OWCP’s decision of 

September 17, 2013. She found that the factual evidence did not support that appellant sustained 

a traumatic injury, noting that she attributed her elbow condition to duties over the course of 

three days, and as such, analyzed appellant’s claim as an occupational disease. The hearing 

representative further found that Dr. Chen, in his June 18, 2013 report, noted that appellant 

reported increased pain upon a return to work, but also noted that there were no objective 

findings on examination to support that appellant could not perform her modified duties. She 

found that Dr. Filippone’s reports were of diminished probative value because he failed to 

provide a specific diagnosis or well-reasoned medical opinion on the relationship between her 

conditions and the events of June 13, 2013. 

By decision dated July 15, 2014, the hearing representative affirmed OWCP’s decision of 

November 1, 2013 finding that appellant had abandoned suitable work. She noted that Dr. Chen 

had indicated that appellant could work within certain medical restrictions, and that the 

employing establishment had offered a position within those restrictions, which OWCP found 

suitable. The hearing representative found that the medical records received subsequent to 

Dr. Chen’s June 25, 2013 report were not sufficient to shift the weight of the medical evidence or 

to require further development of the claim. 
8

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA; that the claim was filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.3 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.4

 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The claimant has the burden of establishing by the weight of reliable, probative, and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.5

 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere 

fact that a disease or condition manifests itself during a period of employment nor the belief that 

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish a causal relationship.6

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.8

 The weight of 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

 3 Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

4 Michael E. Smith, 50 ECAB 313, 315 (1999). 

5 Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996). 

6 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

7 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005). 

8 Leslie C. Moore, 52 ECAB 132, 134 (2000). 
9

care of analysis manifested and the medical rationale expressed in support of the physician’s 

opinion.9

ANALYSIS -- ISSUE 1 

Appellant alleged that between June 10 and 13, 2013, she aggravated an injury to her 

elbow in the performance of duty while working in the post office box section of the employing 

establishment.10 OWCP accepted that the employment factors alleged, that of taking mail out of 

buckets and trays and putting them in post office boxes, occurred as described. The issue, 

consequently, is whether the medical evidence establishes that she sustained an injury as a result 

of these factors. The Board finds that appellant has established the existence of the condition 

claimed, but has not met her burden of proof to establish a causal relationship between factors of 

her federal employment and her diagnosed conditions. 

In reports dated July 9, 2013, Dr. Filippone noted that appellant was totally disabled 

beginning June 13, 2013. He diagnosed her with a status post fracture of the left proximal radius 

at the elbow; suspect reflex sympathetic dystrophy of the left upper extremity; and internal 

derangement of the left shoulder. Dr. Filippone examined her, noting pain on palpation over the 

medial more than the lateral left humeral epicondyle; diminished pinprick sensations; no definite 

motor deficits of the abductor pollicis brevis, ulnar nerve intrinsics, extensor indicis proprius, or 

extensor halluces longus; and pain on reaching from above and behind from below with her left 

arm. He opined that his diagnoses were directly and solely the result of a slip and fall accident at 

work. 

In a report dated July 25, 2013, Dr. Filippone examined the results of an 

electromyography/nerve conduction study, and diagnosed appellant with left C5-6 cervical 

radiculopathy and bilateral carpal tunnel syndrome, worse on the left. He again opined that these 

diagnoses were directly and solely the result of injuries sustained while working for the 

employing establishment. 

On February 4, 2014 Dr. Filippone noted that he had discussed the events of June 10 

through 13, 2013 with appellant. After reviewing the events of those dates, he determined that 

he found that these events would aggravate her preexisting left elbow injury. Dr. Filippone 

noted subjective complaints of constant pain in the radial aspect of her left forearm; pain in the 

left fingers; burning sensations in the left hand, shoulder, and neck; and numbness and tingling in 

the thumb, index, and middle fingers of both hands. 

 9

 Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959). 

10 The Board notes that in her initial filing of a Form CA-2a for recurrence and in her reply to OWCP’s inquiries, 

appellant stated that her injury occurred on June 13, 2013. OWCP’s regulations define a traumatic injury as a 

condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday 

or shift. 20 C.F.R. § 10.5(ee). These regulations define an occupational disease or illness as a condition produced 

by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). However, at the 

February 14, 2013 hearing, appellant alleged that her injury occurred as a result of duties of her federal employment 

between June 10 and 13, 2013. Hence, initially, OWCP properly converted appellant’s claim for recurrence to a 

traumatic injury claim rather than an occupational disease claim. Subsequently, based upon appellant’s new 

testimony, the hearing representative properly analyzed appellant’s injury as an occupational disease. 
10

The Board finds that Dr. Filippone’s reports are sufficient to establish the medical 

component of fact of injury, as he diagnosed her with a status post fracture of the left proximal 

radius at the elbow. However, his reports are not sufficiently rationalized to establish a causal 

relationship between factors of appellant’s federal employment and her diagnosed conditions. 

Dr. Filippone noted that the events of June 10 through 13, 2013 would aggravate her preexisting 

left elbow injury. However, he did not provide a pathophysiological explanation as to how the 

duties she performed on these dates would result in or aggravate her elbow conditions, nor did he 

explain how appellant’s similar conditions prior to June 10, 2013 were aggravated by this 

incident. Thus, Dr. Filippone’s opinion on causal relationship was of diminished probative 

value, and as such, his reports are insufficient to establish appellant’s claim. 

Dr. Chen’s June 18, 2013 report indicates that appellant came to visit for a follow up of 

“left elbow lateral epicondylitis s/p release on January 27, 2012” and that “the patient reports 

since returning to work with the light-duty restrictions she has had increased left elbow pain with 

recurring swelling. She was doing repetitive activities at work. The patient describes her pain as 

aching with associated spasms to the left upper arm which is worse with her work activities.” He 

noted that appellant was currently unable to perform modified duty and that “it is within medical 

probability that the current orthopedic complaints are causally related to the patient’s work 

injury.” As Dr. Chen’s report does not specify which work injury he referred to, and as he did 

not provide a detailed pathophysiological explanation as to how the duties she performed 

between June 10 and 13, 2013 would result in or aggravate her elbow conditions, his report is 

also of diminished probative value and is insufficient to establish appellant’s claim. The 

remaining medical evidence of record is similarly deficient. 

As such, the Board finds that there is insufficient rationalized medical evidence of record 

to establish an aggravation of appellant’s elbow condition as a result of factors of her federal 

employment. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who 

(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”11 

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept 

suitable work or neglecting to perform suitable work.12 The implementing regulations provide 

that an employee who refuses or neglects to work after suitable work has been offered or secured 

for the employee has the burden of showing that such refusal or failure to work was reasonable 

or justified and shall be provided with the opportunity to make such a showing before 

entitlement to compensation is terminated.13 To justify termination, OWCP must show that the 

 11 5 U.S.C. § 8106(c). 

12 Joyce M. Doll, 53 ECAB 790 (2002). 

13 20 C.F.R. § 10.517(a). 
11

work offered was suitable and that appellant was informed of the consequences of her refusal to 

accept such employment.14 In determining what constitutes suitable work for a particular 

disabled employee, OWCP considers the employee’s current physical limitations, whether the 

work is available within the employee’s demonstrated commuting area, the employee’s 

qualifications to perform such work and other relevant factors.15 Once OWCP establishes that 

offered work is suitable, the burden of proof shifts to appellant to show that her abandonment of 

the position was reasonable or justified.16 Section 8106(c) will be narrowly construed as it 

serves as a penalty provision which may bar an employee’s entitlement to compensation based 

on a refusal to accept a suitable offer of employment.17

ANALYSIS -- ISSUE 2 

OWCP terminated appellant’s wage-loss and schedule award compensation effective 

November 1, 2013 finding that she abandoned suitable work. It found that the weight of medical 

evidence established that the modified clerk position was within the physical restrictions set forth 

by Dr. Chen in his report dated August 28, 2012. The restrictions were incorporated into the 

April 4, 2013 job offer, noting physical requirements of lifting less than 20 pounds no more than 

2.6 hours per day; pushing, pulling, and gripping occasionally with the left side for no more than 

2.6 hours per day; and reaching occasionally to shoulder level with the left side for no more than 

2.6 hours per day. The duties of the position were described as “duties of a sales and service 

associate.” OWCP determined, based on the medical evidence of record, that the job offered to 

appellant on April 4, 2013 was suitable and within her physical capabilities. Appellant accepted 

this job offer on April 30, 2013. 

On appeal, appellant asserted that the position she worked upon returning to the 

employing establishment on June 10, 2013 was not the one detailed in the April 4, 2013 job 

offer, in that she was supposed to be working as a window clerk or sales and service associate 

according to the job offer, but was assigned to put mail into post office boxes instead. The job 

offer of April 4, 2013 stated that the duties of her modified assignment were the “duties of a 

sales and service associate” for eight hours per day, and appellant was supposed to be working in 

this position as of June 13, 2013. Pursuant to OWCP’s procedures, an acceptable reason for 

refusing to perform in a position offered as suitable work is that the offered position has been 

withdrawn.18

The suitable work position offered to appellant was a modified clerk position with the 

“duties of a sales and service associate.” Appellant returned to work on May 28, 2013, but 

 14 Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 

818 (1992). 

15 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004). 

16 M.S., Docket No. 06-797 (issued January 31, 2007). 

17 Gloria G. Godfrey, 52 ECAB 486 (2001). 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal, 

Chapter 2.814.5.a (June 2013). 
12

stopped work on June 19, 2013 for an alleged recurrence of disability, after working in the box 

section, filling boxes with mail. The employing establishment confirmed by letter on August 23, 

2013 that at the time of appellant’s recurrence of disability she was given mainly post office box 

duties, which required that she case letters and flats which were light in weight. It posited that 

this type of work would not have caused her to suffer the injury claimed. 

The Board finds that OWCP failed to meet its burden of proof to establish that the job 

offer was suitable. The job offer of April 4, 2013 did not contain a description of the duties to be 

performed as required by OWCP’s procedures;19 the case record did not contain a job description 

for the “sales and service associate” position; and the Department of Labor’s Dictionary of 

Occupational Titles does not contain a description of the duties of a “sales and service 

associate.” The Board has explained that it is impossible for the Board to make an informed 

decision as to the suitability of a position without knowing the nature of the duties.20 The Board 

finds that the reference to “duties of a sales and service associate” was not sufficient, without 

additional information of record, to meet its burden of proof to show that the position offered to 

appellant was suitable, because the record did not contain an actual description of the duties to be 

performed. Without such a description of the actual duties to be performed in the job offer, the 

Board is unable to determine whether the duties appellant was performing at the time she 

allegedly abandoned work, i.e., putting mail into post office boxes and casing mail would fall 

within the scope of duties for a sales and service associate. 

For these reasons, OWCP did not establish the suitability of the modified clerk position 

on which the offer of suitable work was based. Therefore, it improperly terminated her 

compensation effective November 1, 2013. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that she 

sustained an aggravation of a left elbow condition causally related to factors of her federal 

employment between June 10 and 13, 2013. The Board further finds that OWCP did not meet its 

burden of proof to terminate appellant’s wage-loss compensation effective November 1, 2013 on 

the ground that she abandoned suitable work. 

 19 Id. at Chapter 2.814.4.a.1.a (June 2013). 

20 See L.C., Docket No. 11-422 (issued October 5, 2011). 
13

ORDER 

IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed and the July 15, 2014 decision of OWCP is reversed. 

Issued: June 9, 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