United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Providence, RI, Employer

__________________________________________

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Docket No. 17-1247

Issued: April 12, 2018

Appearances: Case Submitted on the Record

Sheilah F. McCarthy, Esq., for the appellant1

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 May 15, 2017 appellant, through counsel, filed a timely appeal from a November 16, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from November 16, 2016, the date of OWCP s last decision, was 

May 15, 2017. Since using May 16, 2017, 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 the date of filing. The date of the U.S. 

Postal Service postmark is May 15, 2017 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of the case.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective May 29, 2016, as she 

refused an offer of suitable work under 5 U.S.C. § 8106(c)(2); (2) whether OWCP properly denied 

appellant’s request for the issuance of a subpoena.

On appeal counsel contends that the medical evidence was insufficient to terminate benefits 

as it did not consider all the reasons for refusing the offered position.

FACTUAL HISTORY

On October 27, 1992 appellant, then a 32-year-old clerk, filed an occupational disease

claim (Form CA-2) alleging that she developed left carpal tunnel syndrome due to turning over 

bundles of mail to read zip codes and pushing them on the belt for sorting. She indicated that she 

performed these actions repetitively while keying the mail. OWCP accepted appellant’s claim for 

de Quervain’s tendinitis of the left wrist on February 26, 1993.

Appellant worked in a series of modified positions. The employing establishment offered 

her a temporary, limited-duty position on April 24, 1997 as a quality checker. Appellant’s 

physician found that this position was safe and consistent with her work restrictions on 

September 9, 1998. The employing establishment offered appellant a light-duty position as a 

modified distribution clerk on August 31, 1998. On April 7, 2003 it provided her a modified job 

offer performing record collection and assisting in throwing parcels weighing less than 20 pounds. 

The employing establishment offered appellant a position as a modified mail processing clerk on 

December 8, 2004 which she accepted on that date. 

In a report dated September 17, 2008, Dr. Steven G. McCloy, an occupational medicine 

physician, noted treating appellant for 10 years and diagnosed de Quervain’s tendinitis and forearm 

tendinitis. He found tenderness in the extensor muscle on the right, good grip strength, and 

negative Finkelstein’s test. Dr. McCloy diagnosed overuse syndrome of both arms secondary to 

her job as well as resolved de Quervain’s tendinitis. He noted that appellant currently required no 

treatment and found that she was capable of performing modified work. Dr. McCloy determined 

that she was at a high risk for recurrence of symptoms if she resumed all the tasks of a mail handler.

On April 20, 2009 the employing establishment offered appellant a limited-duty position 

as a clerk working three hours a day. Appellant filed a recurrence of disability claim (Form CA2a) alleging that on May 1, 2009 she stopped work as there was no light-duty work available for 

four hours a day. She listed her work restrictions as no fine manipulation and no pinching. OWCP 

combined appellant’s injury files noting her accepted conditions of left wrist de Quervain’s and 

tendinitis in File No. xxxxxx577 and left thumb tenosynovitis in File No. xxxxxx412. By decision 

dated September 18, 2009, it denied her recurrence of disability claim. On September 24, 2009 

 

3 5 U.S.C. § 8101 et seq.
3

appellant requested an oral hearing from OWCP’s Branch of Hearings and Review. She noted 

that, prior to April 20, 2009, the employing establishment had provided her with 40 hours a week 

of limited duty. Under the National Reassessment Process (NRP) appellant’s limited-duty position 

was withdrawn as it was unnecessary. She asserted that she was not offered a suitable work 

position. 

By decision dated May 25, 2010, OWCP’s hearing representative reversed OWCP’s 

September 18, 2009 decision. In a decision dated June 22, 2010, OWCP accepted appellant’s 

recurrence of disability claim, effective May 1, 2009. It authorized compensation benefits. On 

June 22, 2011 OWCP entered appellant on the periodic rolls, effective June 5, 2009.

On November 28, 2012 the employing establishment offered appellant a modified mail 

processing clerk position. This position entailed physical requirements of lifting up to 30 pounds, 

simple grasping for 15 minutes per hour, and fine manipulation for 30 minutes per hour. The 

position involved working 8 hours a day with the duties of flat sequencing system operations, 

general expeditor, and waste mail or rewrap. Appellant refused the position on December 11, 2012 

noting that the assignment required repetitive grasping and fine manipulation.

In a letter dated January 10, 2013, OWCP provided Dr. McCloy with the offered position 

description and asked that he provide an opinion of whether appellant was medically able to 

perform the job duties. Dr. McCloy responded on January 16, 2013 and opined that she could not 

perform the offered job, because “every time [appellant] took on tasks with repetitive grasping her 

[d]e Quervain’s tendinitis flared severely.” However, on May 23, 2013 he again reviewed the job 

offer dated November 28, 2012 and found that the job was consistent with the limitations he 

provided. Dr. McCloy noted that he was not clear why appellant had rejected the job offer based 

on his assumption that it was a fair representation of the job.

In a letter dated May 24, 2013, OWCP informed appellant that the December 11, 2012 

position of mail processing clerk was suitable in accordance with her medical limitations as 

provided by Dr. McCloy. It noted that the position was still available for her and afforded her 30 

days to accept the position or offer her reasons for refusal. OWCP informed appellant of the 

penalty provision of 5 U.S.C. § 8106(c)(2) and noted that, if she failed to report to the offered 

position, and failed to demonstrate that her denial of the suitable work position was justified, then 

her right to wage-loss compensation and schedule award benefits would be terminated.

On June 21, 2013 OWCP noted the May 24, 2013 letter and noted that appellant continued 

to refuse to accept or to report to work. It considered her reasons for refusing to accept the offered 

position and found that these reasons were not valid. OWCP noted that the position remained 

available and afforded appellant an addition 15 days to accept and report to the offered position. 

It noted that if she did not accept and report to the position with 15 days of June 21, 2013 her 

entitlement to wage-loss compensation and schedule award benefits would be terminated.

OWCP contacted the employing establishment via e-mail on July 16, 2013 and the 

employing establishment advised that, while the offered position was still available, it was not a 

permanent position.
4

In a note dated July 1, 2014, Dr. McCloy reported his findings and conclusions. He further 

noted that the employing establishment had repeatedly offered appellant’s a job which appeared 

to be an amalgam of her various job restrictions. Dr. McCloy reported, “It is not an actual job in 

[appellant’s] view. I have been asked to certify whether she can or cannot do that ‘job.’” He noted 

that the employing establishment had not been able to provide appellant with a job consistent with 

her restrictions. Dr. McCloy completed a work capacity evaluation (Form OWCP-5) and indicated 

that she could perform full-time work with restrictions. He restricted repetitive movements of 

appellant’s wrists and elbows noting that speed was more relevant than duration. Dr. McCloy 

further restricted her lifting to 20 pounds. He directed that appellant should have limited repetitive 

grasp and pinch with both hands, grasping for 15 minutes per hour, and fine manipulation for 30 

minutes per hour. Dr. McCloy indicated that she should perform “flat-hand activity” for the 

remaining time.

OWCP referred appellant for vocational rehabilitation services on August 1, 2014. The 

vocational rehabilitation counselor selected the positions of receptionist, general office clerk, 

security guard, and animal caretaker as within appellant’s vocational and physical abilities.

On June 11, 2015 the employing establishment offered appellant a permanent, modifiedduty assignment as a modified mail processing clerk. The duties involved flat sequencing systems 

operating the feeder with a toggle switch, clearing jams in the feeder, and containerizing rejects 

into flat tubs for processing. Appellant would also perform automated flat sorting machine 

operation via a toggle switch, clearing jams in the feeder and transport area, sweeping flat tubs 

from the bins, and containerizing flat tubs. The physical requirements were standing, walking, 

reaching, bending, and stooping each intermittently for eight hours a day. Lifting up to 20 pounds 

for 4 hours intermittently, repetitive grasp or pinch for 15 minutes per hour intermittently, and fine 

manipulation for 30 minutes per hour intermittently. Appellant would perform flat hand activity 

as needed.

Dr. McCloy completed a work restriction evaluation (Form OWCP-5) on June 17, 2015 

and indicated that appellant could perform restricted duty eight hours a day. He indicated that she

could perform repetitive grip for a maximum of 15 minutes per hour. Dr. McCloy noted that the 

hand position of grasping could be a risk, and indicated that appellant had limitations on repetitive 

movements of the wrists and elbows. He indicated that she could push, pull, and lift up to 25 

pounds and that her lifting should be occasionally.

In a July 16, 2015 letter, OWCP noted that appellant had been offered a light-duty job as a 

modified mail processing clerk at the employing establishment. It found that the position was 

suitable work based on Dr. McCloy’s June 17, 2015 restrictions. OWCP noted that the position 

remained available, and afforded appellant 30 days to accept the position or provide a written 

explanation of her refusal. It provided appellant with a description of the penalty provisions of 5 

U.S.C. § 8106(c)(2) noting that if she refused a suitable work position she would not be entitled to 

further wage-loss compensation benefits or schedule award benefits.

Appellant responded on August 11, 2015 and refused the offered position asserting that she 

could not accept the position without causing herself further painful physical harm. She alleged 

that the job required repetitive grasping, pulling, and lifting while sweeping the machine and 

containerizing. Appellant further alleged that she would be required to grasp and manipulate with 
5

her fingers, wrist, elbows, and shoulders hundreds of times an hour. She further asserted that the 

buckets weighed between 30 and 35 pounds and had to be lifted shoulder height and above. 

Appellant alleged the position required strong pinching and grasping to constantly pull the jammed 

mail from the rubber belts and pulleys. She further noted fine manipulation required to slot 

hundreds of paper labels on each bucket. Appellant asserted that the job description lacked 

specifics and merely relisted her work restrictions provided by Dr. McCloy.

The vocational rehabilitation counselor performed a job analysis of automated flat sorting 

machine operation and found occasional lifting, defined as up to one third of the shift. She noted 

that lifting buckets was at the clerk’s discretion and that appellant could limit the weight of the 

buckets to 20 to 25 pounds if needed. The same discretion applied to carrying buckets. Handling 

and fingering were both described as occasional or up to 1/3 of the 8-hour shift to operate the 

toggle switch, place labels on buckets, and handle mail and clear mail out of the machine and to 

hold buckets. The job analysis of the flat sequencing system mail processing clerk also required 

occasional handling, fingering, and lifting up to 20 pounds.

In a letter dated April 14, 2016, OWCP found that the offered position was not repetitive 

and that the weight requirement was within appellant’s lifting restrictions. It found that she had 

not offered a valid reason for refusing the offered position. OWCP noted that the position was still 

available and provided appellant with an additional 15 days to accept and report to the position. It

advised her that, if she did not accept and report to the position within the allotted period, her 

entitlement to wage-loss compensation and schedule award benefits would be terminated.

On April 21, 2016 appellant again refused the offered position alleging that she could not 

accept the position without causing herself further painful physical harm. She repeated her prior 

allegations that the offered position was repetitious and submitted a statement from a coworker 

agreeing with this assessment.

By decision dated May 18, 2016, OWCP terminated appellant’s wage-loss compensation 

and entitlement to schedule award benefits effective May 29, 2016 due to her refusal to accept the 

offered position.

On June 3, 2016 appellant requested an oral hearing from OWCP’s Branch of Hearings 

and Review. In a July 25, 2016 letter, she requested a subpoena to obtain all memoranda, reports, 

forms, and faxes regarding the vocational rehabilitation counselor’s visit to the employing 

establishment to develop the job analysis. Appellant explained that a subpoena was necessary as 

the vocational rehabilitation counselor had not responded to her telephone messages. On 

September 8, 2016 OWCP’s Branch of Hearings and Review denied her request for a subpoena 

finding that the documentation was part of the case record and that a subpoena was unnecessary. 

It noted that, if OWCP’s hearing representative’s decision was not in her favor, appellant could 

appeal all issues in the case, including the denial of her request for a subpoena.

Counsel contended that the offered position was not suitable as it was makeshift or odd lot 

work, the position description lacked specificity based on a coworker’s statement, and that the 

offer position exceeded appellant’s work restrictions. In a statement dated September 21, 2016, a 

coworker, J.A., described the duties of a clerk on the flat sorter machine and asserted that the 
6

machine required three clerks who generally rotate every three hours and required repetitive work 

with the hands and wrists.

Appellant testified at the oral hearing on October 11, 2016 before an OWCP hearing 

representative. She stated that in her opinion the offered position was machine driven and could 

not be modified. Appellant asserted that J.A.’s description of his duties, would have been the 

duties that she would have had to perform. She noted that she could not know the weight of the 

buckets. Before the hearing representative, counsel submitted a CD containing documents related 

to the NRP at the employing establishment and appellant’s loss of her position in 2009.

In a report dated October 27, 2016, Dr. McCloy diagnosed right carpal tunnel syndrome 

based on findings from August 31, 2016. He noted his familiarity with the Flat Sorter Machine 

and the Flat Sorter Sequencing Machine and reported concerns regarding the repetitive nature of 

the grabbing, lifting, carrying, and manipulations required by these positions. Dr. McCloy 

indicated that he had concerns that the offered position would aggravate and accelerate appellant’s 

carpal tunnel syndrome symptoms. He opined that the job was unsuitable for appellant.

By decision dated November 16, 2016, OWCP’s hearing representative found that OWCP 

met its burden of proof to terminate appellant’s wage-loss compensation and entitlement to 

schedule award benefits as she refused an offer of suitable work. He found that her arguments did 

not establish that the offered position was not suitable work.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.4 After it has 

determined that an employee has disability causally related to his or her federal employment, 

OWCP may not terminate compensation without establishing that the disability has ceased or that 

it is no longer related to the employment.5 5 U.S.C. § 8106(c) 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.” It is OWCP’s burden of proof to terminate compensation under 

section 8106(c) for refusing to accept suitable work or neglecting to perform suitable work.6 To 

justify such a termination, OWCP must show that the work offered was suitable7and must inform 

appellant of the consequences of refusal to accept such employment.8 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.9 

 

4 G.R., Docket No. 16-0455 (issued December 13, 2016); Mohamed Yunis, 42 ECAB 325, 334 (1991). 

5

Id.

6 D.S., Docket No. 16-1593 (issued December 21, 2016); Henry P. Gilmore, 46 ECAB 709 (1995).

7 D.S., id.; John E. Lemker, 45 ECAB 258 (1993). 

8 G.R., supra note 4. 

9

Id.; Joan F. Burke, 54 ECAB 406 (2003). 
7

According to OWCP’s procedure, a job offer must be in writing and contain a description 

of the duties to be performed and the specific physical requirements of the position.10 OWCP 

regulations provide factors to be considered in determining what constitutes suitable work for a 

particular disabled employee, including 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.11 The issue of whether an employee 

has the physical ability to perform a modified position offered by the employing establishment is 

primarily a medical question that must be resolved by medical evidence. All impairments, whether 

work related or not, must be considered in assessing the suitability of an offered position.12 Section 

10.517(a) of FECA’s implementing regulations provides that an employee who refuses or neglects 

to work after suitable work has been offered or secured by the employee has the burden of proof 

to show that such refusal or failure to work was reasonable or justified.13 Pursuant to section 

10.516, the employee shall be provided with the opportunity to make such a showing before a 

determination is made with respect to termination of entitlement to compensation.14

After termination or modification of benefits clearly warranted on the basis of the evidence, 

the burden for reinstating compensation benefits shifts to appellant.15

ANALYSIS -- ISSUE 1

The Board finds that OWCP met its burden of proof to terminate appellant’s compensation 

and entitlement to schedule award benefits, effective May 29, 2016, as she refused an offer of 

suitable work under 5 U.S.C. § 8106(c)(2).

On June 11, 2015 the employing establishment offered appellant a permanent modifiedduty assignment as a modified mail processing clerk. The duties involved flat sequencing systems 

operation and automated flat sorting machine operation. The employing establishment provided 

the specific duties of the position and the physical requirements. The physical requirements were 

standing, walking, reaching, bending, and stooping each intermittently for eight hours a day. 

Lifting up to 20 pounds for 4 hours intermittently, repetitive grasp or pinch for 15 minutes per hour 

intermittently, and fine manipulation for 30 minutes per hour intermittently. Appellant would 

perform flat hand activity as needed.

The physical requirements of the position as listed by the employing establishment comply

with Dr. McCloy’s work restrictions provided on work capacity evaluations (Form OWCP-5) 

completed in July 2014 and June 17, 2015. The Board finds that the weight of the medical 

 

10 T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

11 J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

12 Id.

13 Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

14 Id. at § 10.516.

15 K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller 47 ECAB 673, 679 (1996); see also George 

Servetas, 43 ECAB 424 (1992).
8

evidence establishes that the offered position was within appellant’s medical restrictions as 

established by Dr. McCloy.16

The vocational rehabilitation counselor performed a job analysis of the two machine 

operations and found that lifting buckets was at the clerk’s discretion and that appellant could limit 

the weight of the buckets to 20 to 25 pounds if needed. Handling and fingering were both described 

as occasional or up to 1/3 of the 8-hour shift to operate the toggle switch, place labels on buckets 

and handle mail and clear mail out of the machine and to hold buckets. 

In a letter dated July 16, 2015, OWCP informed appellant that the light-duty position as a 

modified mail processing clerk was suitable work based on Dr. McCloy’s June 17, 2015 

restrictions and afforded her 30 days to accept the position or provide a written explanation of her 

refusal. Appellant refused the position and disagreed with the vocational rehabilitation counselor’s 

job analysis. In a letter dated April 14, 2016, OWCP found that she had not offered a valid reason 

for refusing the offered position. It provided appellant with an additional 15 days to accept and 

report to the position. OWCP advised her that if she did not accept and report to the position 

within the allotted period, her entitlement to wage-loss compensation and schedule award benefits 

would be terminated. 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

entitlement to schedule award benefits effective May 29, 2016 in the May 18, 2016 decision. 

Where OWCP shows that, an offered limited-duty position was suitable based on the claimant’s 

work restrictions at that time, the burden shifted to appellant to show that her refusal to work in 

that position was justified.17

Before OWCP’s hearing representative, appellant submitted a statement from a coworker 

describing the full-duty work he performed on the two machines. While appellant, in her 

testimony, and her coworker asserted that the offered position requires repetitive work, both the 

employing establishment and the vocational rehabilitation counselor disputed this allegation. She

did not actually return to work in the offered position and her allegations that this limited-duty 

position was beyond her restrictions as the machine dictates the type and amount of motion and 

lifting involved are unsubstantiated by her coworker’s description of his full-duty position on the 

machines in question.

Appellant also submitted a report from Dr. McCloy dated October 27, 2016, diagnosing 

right carpal tunnel syndrome. Dr. McCloy indicated that he had concerns that the offered position 

would aggravate and accelerate her carpal tunnel syndrome symptoms. He opined that the job was 

unsuitable for appellant. 

The Board has long held that OWCP must consider preexisting and subsequently-acquired 

conditions in the evaluation of suitability of an offered position.18 While Dr. McCloy provided 

the diagnosis of an additional condition on October 27, 2016 and indicated that appellant should 

 

16 G.G., Docket No. 16-1081 (issued May 9, 2017).

17 Gloria J. Godfrey, 52 ECAB 421 (2003); Id.

18 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004); G.G., supra note 16. 
9

not perform the job duties of the offered position due to this condition, the Board finds that his 

note is couched in speculative terms. He notes his “concerns” without providing a clear medical 

opinion. Medical opinions which are speculative or equivocal in character have little probative 

value.19 Likewise, a medical opinion not fortified by medical rationale is of little probative value.20 

Dr. McCloy did not provide any medical rationale explaining how or why the limited-duty position 

with 15 minutes of intermittent grasping per hour and 30 minutes of intermittent fine manipulation 

per hour would impact appellant’s subsequently diagnosed condition of right carpal tunnel 

syndrome. The Board concludes that this evidence is of insufficient rationale to establish that she

could not perform the duties of the offered position.

With respect to whether the position was vocationally or otherwise suitable, the Board 

notes that appellant has argued that the offered position was makeshift, but this analysis would be 

appropriate if OWCP had performed a loss of wage-earning capacity determination pursuant to 5 

U.S.C. § 8115(a).21 However, that is not the issue presented. To be suitable, a job offer must be 

in writing and with a proper description of the job duties. It cannot be a temporary position.22 

There is no evidence that the job offer was temporary in nature or otherwise vocationally 

unsuitable in this case.

Therefore, the Board finds that appellant’s reasons for refusing the offered position were 

not acceptable, and OWCP properly terminated her wage-loss compensation and entitlement to 

schedule award benefits based on her refusal to accept a suitable work position.23 Also, as noted 

above, OWCP complied with its procedural requirements in advising her that the position was 

suitable.

LEGAL PRECEDENT -- ISSUE 2

Under 5 U.S.C. § 8126 of FECA, and its implementing regulations (20 C.F.R. § 10.619), 

subpoenas may be issued by the hearing representative for the attendance and testimony of 

witnesses and the production of relevant documents. Subpoenas are issued for documents only if 

they are relevant and cannot be obtained by other means, and for witnesses only where oral 

testimony is the best way to ascertain the facts. A person requesting a subpoena must submit the 

request in writing no later than 60 days after the date of the original hearing request and explain 

why the testimony or evidence is directly relevant to the issues at hand, and why the information 

 

19 G.G., supra note 16.

20 Id.

21 See D.S., Docket No. 16-1594 (issued December 21, 2016); D.B., Docket No. 16-0261 (issued June 9, 2016).

22 D.S., id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9

(June 2013). “There may be occasions when the (employing establishment) is only able to provide a temporary lightduty assignment to the claimant even though the claimant held a permanent job at the time of injury. In these instances, 

the penalty language of section 8106(c) cannot be applied. (Emphasis in the original.) See K.T., Docket No. 16-0975 

(issued June 9, 2017).

23 See Sandra R. Shepherd, 53 ECAB 735 (2002); G.G., supra note 16.
10

cannot be obtained without the use of a subpoena. The decision to grant or deny a subpoena request 

is within the discretion of OWCP’s hearing representative.24

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for the issuance of a 

subpoena. In a July 25, 2016 letter, appellant requested the issuance of a subpoena to produce 

documents regarding the vocational rehabilitation counselor’s visit to the employing establishment 

to observe the machines. 

The Board notes that OWCP’s hearing representative properly determined within her 

discretion that, with respect to documentation requested, this information was part of the case 

record which appellant could request at any time and a subpoena was not necessary.

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 OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to schedule award benefits effective May 29, 2016 as she refused 

an offer of suitable work under 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP

properly denied appellant’s request for the issuance of a subpoena.

 

24 See 5 U.S.C. § 8126; 20 C.F.R. § 10.619; J.M., Docket No 16-1575 (issued May 25, 2017).
11

ORDER

IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 12, 2018

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