United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Elizabeth City, NC, Employer 

__________________________________________ 

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Docket No. 14-2014 

Issued: February 26, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 18, 2014 appellant, through her attorney, filed a timely appeal from a 

September 5, 2014 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 the claim. 

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation effective 

June 16, 2014 based on its determination that the constructed position of secretary represented 

her wage-earning capacity. 

On appeal appellant’s counsel contends that OWCP erroneously applied the mailbox rule 

in deeming the proposed reduction of compensation letter properly delivered as it was sent 

without a zip code and was never received in his office. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On May 23, 2011 appellant, then a 40-year-old temporary employee, filed an 

occupational disease claim alleging a stress fracture to her right heel due to excessive walking. 

She reported her right foot began hurting approximately five/six months ago. Appellant related 

that the stress fracture resulted from walking on the right side of her foot to keep pressure off the 

heel. OWCP accepted the claim for a right medial malleolus fracture and right plantar 

fibromatosis and paid compensation benefits. Appellant stopped working on October 3, 2011 

and was eventually placed on the periodic compensation rolls for total disability resulting from 

this injury. 

Appellant was initially treated by Dr. Mark Knable, an orthopedic surgeon, on May 20, 

2011 and Dr. David Cho, a podiatrist, since October 10, 2011. On August 28, 2012 Dr. Cho 

performed right plantar fasciotomy. In his December 28, 2012 report, he found appellant had 

reached maximum medical improvement and provided sedentary work restrictions with 

limitations on walking, standing, and climbing to one hour a day, and no lifting more than 10 

pounds. 

In October 2012 appellant was referred for vocational rehabilitation services. On 

May 17, 2013 the vocational rehabilitation counselor reported that, based on appellant’s 

restrictions, transferable skills, and educational accomplishments, she would be a candidate for 

direct placement as the employing establishment did not have a sedentary job that met her 

restriction. 

Dr. Cho advised on July 12, 2013 that appellant could not push, lift, pull, or carry 

anything above five pounds, she was not able to walk or stand for more than 30 minutes each 

shift, and she was to elevate her foot as needed. 

On July 21, 2013 the rehabilitation counselor identified the positions of secretary, 

Department of Labor, Dictionary of Occupational Titles (DOT) No. 201.362.030 and 

receptionist, DOT No. 237.367.038 as being medically and vocationally suitable for appellant. 

He further indicated that the positions were reasonably available in her commuting area. The 

secretary position was described as sedentary, which was defined as lifting 10 pounds 

occasionally, sitting majority of the time with occasional walking and standing and negligible 

amount of force required to lift, carry, push, pull, or otherwise move objects. 

In a July 24, 2013 letter, OWCP advised appellant that the positions of secretary and 

receptionist were suitable to her restrictions. Appellant was advised that she would receive 90 

days of placement assistance to help her locate work in the position, provided that she cooperated 

with such effort. Further she was advised that her wage-loss compensation benefits would be 

reduced based upon the salary of the selected position at the end of the 90-day placement 

assistance period. 

On October 3, 2013 OWCP referred appellant to Dr. Edward W. Gold, a Board-certified 

orthopedic surgeon, for a second opinion examination and a determination as to the nature and 

extent of her injury-related disability. In an October 21, 2013 report, Dr. Gold noted the history 

of injury, appellant’s prior medical treatment, and that she had not worked since October 2011. 
3

He provided examination findings, including discomfort and tenderness to palpation at the 

posterior aspect of the medial instep with no deformity or swelling in the foot. Dr. Gold 

indicated that appellant had adequate range of motion in the right ankle and toes, no pain or 

laxity to stress of the ankle, and normal sensation with good pedal pulses, and capillary refill. 

An impression of stress fracture right calcaneus, plantar fasciotomy right foot and chronic plantar 

heel pain was provided. Dr. Gold opined that appellant was able to return to work as a letter 

carrier with restrictions of no standing or walking more than three hours a day with lifting no 

more than 25 pounds. 

In a November 5, 2013 memorandum, a claims examiner determined that Dr. Gold’s 

second opinion represented the weight of the medical evidence with regard to work tolerance 

limitations. 

On November 7, 2013 OWCP indicated that vocational rehabilitation assistance would 

resume for 90 days beginning November 15, 2013. It noted that, prior to appellant’s clarification 

of her work tolerance limitations, a viable rehabilitation plan was approved for placement in 

employment as a receptionist (DOT No. 237.367-038 and secretary (DOT No. 201.362-030). 

OWCP advised that those goals remained within the work tolerance limitations as indicated by 

Dr. Gold, whose opinion bears the weight of the medical evidence with regard to work tolerance 

limitations. OWCP requested that the vocational rehabilitation counselor develop a plan for 

reemployment in those positions during a 90-day period. 

In a December 14, 2013 report, the vocational rehabilitation counselor noted that OWCP 

accepted the restrictions provided by Dr. Gold. 

Dr. Cho continued to submit treatment reports indicating appellant was to avoid walking 

barefoot and to continue daily stretching exercises. He noted that appellant had developed 

chronic pain syndrome and was referred to pain management for evaluation and treatment. 

In letters dated November 14, 2013 and January 15, 2014, appellant’s attorney advised 

that his office was not notified of appellant’s second opinion examination with Dr. Gold on 

October 21, 2013. He contended that she has been denied statutory rights and OWCP could not 

rely on this report to determine work tolerance limitations and deny benefits. Counsel requested, 

in his November 14, 2013 letter, that a copy of all correspondence to and from the second 

opinion physician, the statement of accepted facts, all medical documentation provided to 

Dr. Gold, the list of questions to be resolved, a copy of the doctor’s report and a copy of the 

November 16, 2013 memorandum be sent to him. OWCP noted, in a December 23, 2013 letter, 

that he was copied, using his correct mail address, on the second opinion letter addressed to 

appellant. In his January 15, 2014 letter, appellant’s attorney noted that his zip code was 27624, 

not 27627, and that some mail gets redirected to the correct address while other mail does not. 

He reiterated that he did not receive notice of the second opinion examination and, thus, OWCP 

could not rely on Dr. Gold’s October 21, 2013 report for vocational rehabilitation purposes or to 

deny benefits. 

A March 26, 2014 report from Comprehensive Rehabilitation and Pain Specialists, signed 

by a certified nurse practitioner, was provided. Chronic pain syndrome was diagnosed. An 

April 1, 2014 three-phase bone scintigraphy was also received. 
4

In an April 23, 2014 report, the vocational rehabilitation counselor reported activities 

from April 17 through 23, 2014 and recommended the file for vocational rehabilitation be closed 

as it was beyond 90 days of job search with minimal participation from appellant. In an 

April 30, 2014 report, the vocational rehabilitation counselor noted placement services began on 

December 20, 2013 and ended on April 23, 2014. He reported that the position of receptionist 

and secretary remained vocationally and medically appropriate in relation to appellant’s age, 

education, and experience. The vocational rehabilitation counselor further stated that the 

selected positions were considered to be in the sedentary category of work and were within the 

established work restrictions for the weight of the medical evidence of record. He also noted that 

based on the initial Labor Market Survey dated May 17, 2013 and supported by additional labor 

market research documented in his reports dated December 2013 through April 24, 2014, both 

targeted positions exist in sufficient numbers within appellant’s commuting area. Range of 

salary from Labor Market Survey was $9.50 to $12.50, with entry pay at $380.00 per week. 

OWCP closed vocational rehabilitation services on April 30, 2014, noting suitable 

positions had been selected, but appellant was not placed. All targeted positions remained 

vocationally and medically appropriate and reasonably available in appellant’s commuting area. 

On May 2, 2014 OWCP issued a notice of proposed reduction of compensation finding 

that appellant was no longer totally disabled and had the capacity to earn the wages of a secretary 

at the rate of $380.00 per week. It noted that the physical requirements of the selected position 

did not exceed the work restrictions as provided by Dr. Gold. Thus, OWCP concluded that the 

position was medically suitable. It further noted that in his April 23, 2014 report appellant’s 

vocational rehabilitation counselor documented that the positon remained vocationally suitable 

and was reasonably available in her commuting area. Thus, OWCP found that the position was 

vocationally suitable and fairly and reasonably represented her wage-earning capacity. It 

determined that appellant’s compensation would be reduced to $1,378.00 every four weeks. 

Appellant was provided 30 days to submit additional evidence or argument in support of any 

objection to the proposed reduction. 

Following the proposed reduction, OWCP received physical therapy reports dated 

April 28 and May 14, 2014 and a previously submitted a March 26, 2014 report from Dr. Cho, 

which diagnosed chronic pain syndrome. 

By decision dated June 16, 2014, OWCP finalized the reduction of appellant’s 

compensation benefits effective that date in accordance with the May 2, 2014 proposed notice of 

proposed reduction of compensation. It found that she was physically and vocationally capable 

of earning the wages of a secretary and the position was reasonably available in her commuting 

area. 

In a letter dated June 19, 2014, which OWCP received the same day, appellant’s attorney 

argued that the proposed reduction notice dated May 2, 2014 was not properly addressed as it 

was sent without a zip code and he did not receive notice of the proposed determination. He 

contended that appellant was deprived of her rights and the termination decision must be vacated 

and OWCP must reissue the proposed LWEC decision properly addressed to his office. Counsel 

referenced his January 15, 2014 letter previously of record and stated that his assertion regarding 

the second opinion examination had not been addressed in either the proposed or final decision.
5

Additional evidence received included a July 16, 2014 laboratory report; physical therapy 

reports dated May 22 through July 10, 2014; encounter reports from Comprehensive 

Rehabilitation and Pain Specialists from Jessica Gore, D.O., an osteopath, dated April 23, 

May 21, June 4 and July 15, 2014 and an undated OWCP-5c completed by Dr. Gore noting 

appellant was new to the practice and unable to stand or walk for more than 30 minutes and 

could push, pull, lift, squat, kneel, or climb no more than five pounds in one hour. It further 

noted that appellant was on medications, which may cause drowsiness. 

By decision dated September 5, 2014, OWCP denied modification of its June 16, 2014 

decision. It noted that while the attorney’s zip code was missing on the May 2, 2014 proposed 

reduction notice, there was no evidence that mail was returned and, thus, OWCP would presume 

receipt under the mailbox rule. 

LEGAL PRECEDENT 

Section 8123(a) of FECA2 states, in pertinent part: 

An employee shall submit to examination by a medical officer of the United 

States, or by a physician designated or approved by the Secretary of Labor, after 

the injury and as frequently and at the times and places as may be reasonably 

required. The employee may have a physician designated and paid by him 

present to participate in the examination. 

OWCP procedures provide: 

Information Sent to Claimant and the Properly Authorized Designated 

Representative. Once the appointment has been scheduled, the claimant/ 

representative should be notified. See Donald J. Knight, 47 ECAB 706 (1996) 

(where ECAB held that OWCP’s failure to notify appellant’s authorized 

representative of the referral to a second opinion physician effectively denied 

appellant’s statutory right to have a physician designated and paid by him to be 

present and participate in the examination pursuant to 5 U.S.C. § 8123). This may 

be done by OWCP, or by the contractor on OWCP’s behalf. The claimant and his 

or her designated representative should be provided with the following 

information: 

(1) The name and address of the physician to whom he or she is being 

referred, as well as the date and time of the appointment. 

(2) The claimant’s right, under section 5 U.S.C. § 8123 of FECA, to have 

a physician paid by him or her present during a second opinion 

examination. 20 C.F.R. § 10.320; Esther Velasquez, 45 ECAB 249 (1993) 

(ECAB held that by misinforming the claimant of the purpose of the 

medical referral, OWCP effectively denied her the right granted by FECA, 

and that OWCP was precluded from relying on the resulting medical 

 2

 5 U.S.C. § 8123(a). 
6

report “before affording appellant the opportunity to exercise this statutory 

right.”) 

Because a claimant has a right under the statute to have such a physician 

attend a second opinion examination, OWCP may not re-characterize an 

impartial examination as a second opinion examination in the event it 

determines there was no conflict in the medical evidence; however, the 

report need not be excluded and may be considered for its intrinsic value. 

(3) A warning that benefits may be suspended pursuant to 5 U.S.C. 

8123(d) for failure to report for examination. 

(4) Information on how to claim travel expenses.3

OWCP regulations provide that a properly appointed representative who is recognized by 

OWCP may make a request or give direction to OWCP regarding the claims process, including a 

hearing. This authority includes presenting or eliciting evidence, making arguments on the facts 

or the law and obtaining information from the case file, to the same extent as the claimant.4 Any 

notice requirement contained in the regulations or FECA is fully satisfied if served on the 

representative and has the same force and effect as if sent to the claimant.5 The Board has held 

that decisions under FECA are not deemed to have been properly issued unless both appellant 

and the authorized representative have been sent copies of the decision.6

ANALYSIS 

OWCP accepted appellant’s claim for right medial malleolus fracture and right plantar 

fibromatosis and paid appropriate benefits. Appellant was placed on the periodic compensation 

rolls for total disability resulting from this injury and eventually referred for vocational 

rehabilitation services and direct placement as the employing establishment did not have a 

position available within her restrictions. OWCP reviewed the medical evidence and determined 

that a second opinion was necessary for a determination as to the nature and extent of her injuryrelated disability. Consequently, OWCP referred appellant to Dr. Gold, a Board-certified 

orthopedic surgeon, and accepted the restrictions rendered by Dr. Gold in determining that the 

constructed position of secretary represented her wage-earning capacity. It reduced appellant’s 

compensation effective June 16, 2014 based on its determination that the constructed position of 

secretary represented her wage-earning capacity. 

 3

 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.3(d) (July 2011). 

4

 20 C.F.R. § 10.700(c). 

5 See also Sara K. Pearce, 51 ECAB 517 (2000). 

6 See Travis L. Chambers, 55 ECAB 138 (2003). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Communications, Chapter 2.300.4(e) (February 2000). 
7

On appeal and before OWCP, appellant’s counsel contends that he did not receive notice 

of Dr. Golds’ second opinion referral or notice of OWCP’s May 2, 2014 proposed notice of 

reduction of compensation. He further argues that OWCP erroneously utilized the mailbox rule 

in determining that he received such letters. 

Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a 

notice properly mailed to an individual in the ordinary course of business was received by that 

individual. This presumption arises where it appears from the record that the notice was properly 

addressed and duly mailed. The presumption of receipt does not apply where a notice is sent to 

an incorrect address.7

With regard to receipt of the letter notifying appellant that a second opinion evaluation 

was needed, counsel argued that it was addressed to the wrong zip code. He asserted that his zip 

code was 27624, not 27627 as noted in OWCP’s letter, and he never received notification that a 

second opinion evaluation was needed in his office. As the wrong zip code was utilized, counsel 

was not properly notified of the second opinion examination.8

 

The Board has previously noted that if a representative had actual knowledge of a 

scheduled examination, lack of proper notification is harmless error.9 Dr. Gold conducted a 

second opinion evaluation on October 21, 2013. By letter dated November 14, 2013, counsel 

requested additional information pertaining to appellant’s October 21, 2013 medical 

examination. His request included the demand that copies of all correspondence to and from 

Dr. Gold, the statement of accepted facts, all medical documentation provided to Dr. Gold, the 

list of questions to be resolved, and a copy of Dr. Gold’s report be provided to him. This request 

for information shows that counsel was not actually aware of the second opinion examination, 

prior to the examination, nor did he have access to the details regarding the nature of the 

examination or the questions posed to the doctor. The Board thus finds that appellant was denied 

the opportunity for counsel’s assistance in exercising her rights, including the rights provided 

under section 10.320 of OWCP’s regulations.10 The Board finds that OWCP’s failure to provide 

proper notice of the October 21, 2013 second opinion examination constitutes error. 

OWCP’s referral of appellant to Dr. Gold was improper as counsel never received notice 

of such referral. It is therefore precluded from relying on the opinion of Dr. Gold. The case will 

be remanded to OWCP for referral of appellant for another second opinion examination with 

 7 See M.U., Docket No. 09-526 (issued September 14, 2009). 

8 See Donald J. Knight, 47 ECAB 706 (1996); Henry J. Smith, Jr., 43 ECAB 524 (1992), reaff d on recon., 43 

ECAB 892 (1992). 

9 See David Alan Patrick, 46 ECAB 1020 (1995). 

10 Section 10.320 provides that an employee may have a qualified physician, paid by him or her, present at a 

second opinion examination. 20 C.F.R. § 10.320. 
8

appropriate notification to appellant and her counsel, consistent with OWCP procedures, which 

will afford her the opportunity to have her physician participate in the examination.11

CONCLUSION 

The Board finds that this case is not in posture for decision regarding whether appellant 

properly reduced appellant’s compensation effective June 16, 2014 based on its determination 

that the constructed position of secretary represented her wage-earning capacity. 

ORDER 

IT IS HEREBY ORDERED THAT the September 5, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further proceedings 

consistent with this decision. 

Issued: February 26, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 See Donald J. Knight, 47 ECAB 706 (1996) (where the Board found that OWCP failed to notify appellant’s 

authorized representative of the referral to a second opinion physician effectively denied appellant’s statutory right 

to have a physician designated and paid by him to be present and participate in the examination pursuant to 5 U.S.C. 

§ 8123).