United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

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

Docket No. 14-2054
Issued: March 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from an August 29, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
$11,437.62 overpayment of compensation; and (2) whether it properly determined that he was at
fault in creating the overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.

1

The record also contains a June 16, 2014 decision of OWCP concerning a $109.09 overpayment, but appellant
has not appealed this decision to the Board.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 22, 1999 appellant, then a 33-year-old machine operator, filed a timely
notice of injury for a back injury. His claim was accepted for displacement of cervical
intervertebral disc without myelopathy. Appellant filed a claim on July 7, 2001 alleging that on
May 29, 2001 he sustained injury to his right shoulder. This claim was accepted for adhesive
capsulitis of the right shoulder. Appellant received compensation on the daily and periodic rolls.
In EN-1032 forms completed on December 26, 2007, May 10, 2009, April 23, 2010,
April 28, 2011, March 15, 2012, and January 31, 2013, appellant indicated that he was no longer
married but he continued to claim his daughter and/or his son as a dependent.3 Each form
advised him regarding the circumstances when he would be entitled to receive compensation at
an augmented pay rate:
“A claimant who has no eligible dependents is paid compensation at 66 2/3
percent of the applicable pay rate. A claimant who has one or more eligible
dependents is paid compensation at 75 percent of the applicable pay rate. You
must answer the questions below to ensure your compensation is paid at the
correct rate.
“You may claim compensation for a dependent if you have one or more of the
following: (a) a husband or wife who lives with you; (b) an unmarried child,
including an adopted child or stepchild, who lives with you and is under 18 years
of age; (c) an unmarried child who is 18 or over, but who cannot support himself
or herself because of mental or physical disability; (d) an unmarried child under
23 years of age who is a full-time student and has not completed four years of
school beyond the high school level; and (e) a parent who totally depends upon
you for support.”
In a November 19, 2013 letter, OWCP advised appellant that a preliminary determination
had been made that he received an overpayment of compensation in the amount of $11,437.62
for the period November 14, 2007 to February 9, 2013 for the reason that he received
compensation benefits at the 75 percent augmented rate when he no longer had an eligible
dependent. It also made a preliminary determination that he was at fault in the creation of the
overpayment because he accepted a payment he knew or should have known to be incorrect.
OWCP indicated that the record revealed that appellant’s youngest child, his son, turned 18 on
November 14, 2007 and therefore he was not entitled to compensation at the dependent rate of
75 percent for the period November 14, 2007 to February 9, 2013, when his compensation was
reduced to the 66 2/3 percent rate. This resulted in an overpayment in the amount of $11,437.62
for the period November 14, 2007 to February 9, 2013.4 OWCP provided appellant 30 days to
3

Each EN-1032 form covered the 15-month period prior to being completed. The record contains a February 8,
2013 document associated with the EN-1032 form appellant completed on January 31, 2013 in which an official
from Prince George’s Community College indicated that appellant’s daughter was not enrolled for the Spring
Semester (January 22 to May 13, 2013).
4

The record contains worksheets reflecting that, from November 14, 2007 to February 9, 2013, appellant was
paid $121,157.01 at the augmented rate but should have been paid $109,719.39. The difference between these two
figures is $11,437.62. The record contains evidence that appellant’s son was born on November 14, 1989 and that
his daughter was born on September 19, 1988.

2

challenge the proposed overpayment, request a prerecoupment hearing, and to submit financial
information.
On November 5, 2013 OWCP received an overpayment recovery questionnaire form
completed by appellant, which detailed his monthly income, monthly expenses, and assets.5
Appellant indicated that he disagreed with the overpayment noting that his daughter was a fulltime student at the Dudley School of Cosmetology in 2007 and 2008.6
Appellant requested a prerecoupment hearing with an OWCP hearing representative.
During the June 12, 2014 hearing, he indicated that his daughter was a full-time student at the
Dudley School of Cosmetology in Washington, DC, between “August 2006 and 2008” but that
when he tried to contact the institution it was no longer in business for him to get any records.
Appellant advised that his daughter also attended Prince George’s Community College, but
stated that he had not been able to get any affirmative records of her full-time attendance from
that institution. He testified that his son did not continue his education. Appellant stated that he
understood how the overpayment occurred, but indicated that he did not have the means to repay
the debt.
In an August 29, 2014 decision, an OWCP hearing representative finalized the
preliminary determination and found that appellant received an $11,437.62 overpayment. She
also found that he was at fault in the creation of the $11,437.62 overpayment, thereby precluding
waiver of recovery of the overpayment. The hearing representative discussed the financial
information submitted by appellant and found that the overpayment should be repaid through
monthly payments of $200.00.7
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.9
The basic rate of compensation paid under FECA is 66 2/3 percent of the injured
employee’s monthly pay. Section 8110 of FECA provides that a claimant is entitled to
5

Appellant listed his income as coming from the Office of Personnel Management.

6

Appellant indicated that he called OWCP in 2008 after his daughter stopped being a full-time student, but the
record does not appear to contain any documentation of such a telephone call.
7

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB
217 (2002). As appellant was not in receipt of compensation at the time of OWCP’s overpayment determination,
the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See Lorenzo
Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

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augmented compensation to three fourths of the employee’s rate of monthly pay if he or she has
a dependent.10 Section 8110(a)(3) of FECA provides that a child is considered a dependent if he
or she is under 18 years of age, is over 18 but is unmarried and incapable of self-support because
of a physical or mental disability or is an unmarried student, as defined under section 8101(17).11
FECA provides that compensation will continue at the augmented rate if the child has reached 18
years of age and is a student. Section 8101(17) of FECA defines a student as an individual under
23 years of age who has not completed four years of education beyond the high school level and
who is regularly pursuing a full-time course of study or training at a school, college or university
or other educational or training institute, or an additional type of educational or training institute
as defined by the Secretary. The federal regulations provide that an additional type of
educational or training institute means a technical, trade, vocational, business, or professional
school accredited or licensed by the federal or a state government, that provides courses of not
less than three months duration and prepares the individual for a livelihood in a trade, industry,
vocation, or profession.12 If a claimant receives augmented compensation during a period where
he or she has no eligible dependents, the difference between the compensation to which he or she
was entitled at the two-thirds compensation rate and the augmented compensation received at the
three-fourths rate constitutes an overpayment of compensation.13
ANALYSIS -- ISSUE 1
The Board finds that appellant received an $11,437.62 overpayment of compensation
from November 14, 2007 to February 9, 2013. Appellant’s son, born November 14, 1989, turned
18 on November 14, 2007. His daughter, born September 19, 1988, turned 18 on
September 19, 2006. OWCP continued to issue appellant’s compensation at the augmented rate
(75 percent) through February 9, 2013. It later found that his son and daughter had turned 18 and
there was no evidence that either the son or daughter was either incapable of self-support or a
full-time student.
There is no evidence contained in the record to support that appellant’s son or daughter
was enrolled full time as a student. As neither appellant’s son nor his daughter meets the
requirements of an eligible dependent under FECA, an overpayment of compensation was
created commencing November 14, 2007.
OWCP provided a detailed accounting of the amount of compensation appellant should
have received at the statutory 66 2/3 percent rate since there were no qualified dependents. The
worksheets reflect that, from November 14, 2007 to February 9, 2013, appellant was paid
$121,157.01 at the augmented rate but should have been paid $109,719.39. This amounts to an
overpayment amount of $11,437.62. Thus, the Board finds that OWCP’s calculation of an
$11,437.62 overpayment was correct and that OWCP, therefore, properly determined the fact
and amount of the overpayment.

10

Id. at § 8110.

11

Id. at § 8110(a)(3).

12

20 C.F.R. § 10.5(aa)(1).

13

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.14 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”15 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.16
In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….”17
Section 10.433(b) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”18
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the $11,437.62 overpayment
based on the third criterion, that he accepted payments which he knew or should have known to
be incorrect.

14

Id. at § 8129(a).

15

Id. at § 8129(b).

16

L.J., 59 ECAB 264 (2007).

17

20 C.F.R. § 10.433(a).

18

Id. at § 10.433(b).

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The Board finds that appellant was at fault in creating the $11,437.62 overpayment. The
EN-1032 forms provided information notifying him as to the status of dependents for augmented
compensation. Appellant was advised as to the requirements for claiming a child as a dependent
and informed that a claimant with no dependents was paid at the 66 2/3 percent basic rate, not
the 75 percent augmented rate. While he testified that he did not intend to mislead OWCP about
the status of his son and daughter, he knew or reasonably should have known that he was not
entitled to augmented compensation when his son and daughter turned 18 years of age. As noted
above, appellant’s son and daughter did not qualify as full-time students. Additionally, there is
no evidence to support that his son or daughter had a mental or physical disability which created
an inability to provide self-support. Appellant knew or should have known that the payments
made at the augmented rates were incorrect in view of the cautionary language in the EN-1032
forms that he signed.19 For these reasons, he is at fault in creating the $11,437.62 overpayment
and is not eligible for waiver of recovery.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an $11,437.62
overpayment of compensation. The Board further finds that whether OWCP properly
determined that he was at fault in creating the overpayment of compensation and that, therefore,
the overpayment was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
19

Although appellant asserted that he thought his daughter was a full-time student, he acknowledged that he was
unable to obtain any evidence of such full-time student status.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 11-856
Issued: January 3, 2012

Case Submitted on the Record

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

JURISDICTION
On February 17, 2011 appellant, through her attorney, filed a timely appeal from the
January 21, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss benefits effective
June 6, 2010 on the grounds that she no longer had any disability causally related to her accepted
employment-related injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 21, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant’s attorney contends that the January 21, 2011 OWCP decision is
contrary to fact and law.
FACTUAL HISTORY
On November 6, 2008 appellant, then a 62-year-old automation clerk, filed a traumatic
injury claim for sharp left shoulder pain sustained that day while in the performance of duty.
OWCP accepted the claim for left rotator cuff tear and left shoulder impingement syndrome.
On April 16, 2010 OWCP issued a notice to terminate appellant’s wage-loss
compensation and medical benefits based on the opinion of Dr. Fernando A. Moya, a Boardcertified orthopedic surgeon and appellant’s attending physician, who examined appellant on
February 5, 2010. Appellant complained of pain and discomfort to her left shoulder with
pushing and pulling activities. Dr. Moya diagnosed post-traumatic left shoulder impingement
syndrome, rotator cuff tendinosis, subscapularis tear, labral tear and status post arthroscopic
surgery. He reviewed a magnetic resonance imaging (MRI) scan report and x-ray films of the
left shoulder dated February 28, 2009 and reported that appellant underwent left shoulder
arthroscopy. Dr. Moya noted that appellant had some residual discomfort with certain
mechanical movements such as with pushing and pulling activities but concluded that appellant
had reached maximum medical improvement. He opined that she had a six percent whole person
impairment rating which was a direct result of the November 6, 2008 employment injury.
Dr. Moya advised that appellant was able to return to full duty without restrictions or limitations.
OWCP allotted 30 days for the submission of additional evidence.
Appellant submitted a May 5, 2010 narrative statement and additional evidence. In an
April 30, 2010 report, Dr. Moya reiterated the diagnoses and reported that appellant had a steroid
injection. He opined that she could perform light-duty-type work with no heavy lifting, pushing
or pulling. In a May 14, 2010 progress report, Dr. Moya opined that appellant was at maximum
medical improvement as indicated in his February 5, 2010 report. He noted that she was
returned to full duties without restrictions which had not changed.
By decision dated May 25, 2010, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 6, 2010 based on Dr. Moya’s opinion.3
On June 8, 2010 appellant’s attorney requested an oral telephone hearing which was held
before an OWCP hearing representative on October 14, 2010. The record was held open for 30
days to allow for the submission of additional evidence.
Appellant submitted an arthroscopic surgery checklist from Dr. Moya.
In a decision dated January 21, 2011, OWCP’s hearing representative affirmed in part
and reversed in part the May 25, 2010 decision. The medical evidence established that appellant
3

By decision dated June 8, 2010, OWCP granted appellant a schedule award for five percent permanent loss of
use of the left upper extremity. It indicated that a schedule award was payable consecutively but not concurrently
with an award for wage loss for the same injury and therefore the starting date of appellant’s schedule award had
been adjusted to June 6, 2010 as she received compensation for disability on June 5, 2010.

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had no disabling residuals of her accepted employment injuries but that she remained entitled to
medical benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition, on the other hand, is not limited to the period
of entitlement to disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that an employee no longer has residuals of an employment-related
condition which would require further medical treatment.7
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for left rotator cuff tear and left
shoulder impingement syndrome. It based its termination of wage-loss compensation benefits on
a February 5, 2010 report from Dr. Moya, appellant’s attending physician.
Dr. Moya diagnosed post-traumatic left shoulder impingement syndrome, rotator cuff
tendinosis, subscapularis tear, labral tear and status post arthroscopic surgery. He reviewed an
MRI scan report and x-rays of the left shoulder dated February 28, 2009. Dr. Moya indicated
that appellant had some residual discomfort with certain mechanical movements such as with
pushing and pulling activities but concluded that she had reached maximum medical
improvement. He advised that appellant was able to return to full duty without restrictions or
limitations. On April 30, 2010 Dr. Moya reported that appellant had a steroid injection and
opined that she could perform light-duty-type work with no heavy lifting, pushing or pulling.
However, in a May 14, 2010 progress report, he reiterated his medical opinion that appellant was
at maximum medical improvement as indicated in his February 5, 2010 report. Dr. Moya
reiterated that appellant was returned to full duties without restrictions and opined that that had
not changed. Consequently, the Board finds that OWCP properly relied on Dr. Moya’s reports in
terminating appellant’s wage-loss benefits effective June 6, 2010.
The Board finds that the weight of the medical evidence as represented by Dr. Moya’s
opinion establishes that appellant’s employment-related left rotator cuff tear has resolved.
OWCP properly terminated entitlement to wage-loss compensation effective June 6, 2010.
4

See Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001). See also C.B., Docket No.
10-1623 (issued April 11, 2011).
5

See Gewin C. Hawkins, 52 ECAB 242 (2001).

6

See T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

7

See Furman G. Peake, 41 ECAB 361, 364 (1990).
August 11, 2010).

3

See also L.G., Docket No. 09-1692 (issued

Appellant’s attorney contends on appeal that the January 21, 2011 decision was contrary
to fact and law. As noted, OWCP met its burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective June 6, 2010.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tucson, AZ, Employer
__________________________________________

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

Docket No. 14-1293
Issued: February 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 15, 2014 appellant filed a timely appeal from a February 28, 2014 nonmerit
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 lacks
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The last merit decision issued in this case was the Board’s July 29, 2013 review of the claim. The decision
issued by OWCP following the Board’s decision was a nonmerit decision. Therefore the Board’s jurisdiction is
limited to review of only the February 28, 2014 nonmerit decision. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 19, 2012, the
Board affirmed a June 16, 2011 OWCP merit decision finding that the medical evidence of
record failed to establish that appellant’s left ankle and foot injuries were causally related to
factors of her federal employment.3 In a subsequent appeal, by decision dated July 29, 2013, the
Board conducted a merit review and affirmed a February 1, 2013 OWCP decision, finding that
appellant had failed to establish left ankle and bilateral foot injuries causally related to factors of
her federal employment.4 The findings and facts as set forth in the prior decisions are hereby
incorporated by reference. The relevant facts are set forth herein.
On March 18, 2011 appellant, then a 43-year-old customs and border protection (CBP)
officer, filed an occupational disease claim (Form CA-2) alleging that she developed bilateral
tendinitis in her feet as a result of standing due to her federal employment duties. In support of
her claim, she submitted narrative statements and various medical reports.
By decision dated July 29, 2013, the Board conducted a merit review and affirmed
OWCP’s February 1, 2013 decision, finding that appellant failed to establish that she sustained
left ankle and bilateral foot injuries causally related to factors of her federal employment.5
By letter dated December 2, 2013, appellant requested reconsideration. In support of her
claim, she submitted a November 13, 2013 medical report from Dr. Ladislav Kuchar, a
podiatrist.
In his November 13, 2013 report, Dr. Kuchar reported that he first treated appellant on
October 9, 2013 for ankle derangement and peroneus brevis tendinitis of both feet. He noted that
appellant’s employment duties required her to work for long hours (8 to 16 hours daily for up to
10 consecutive days) while standing and/or walking on uneven and hard surfaces, such as
concrete while she worked as a CBP officer from January 1997 through September 2002.
Dr. Kuchar stated that appellant’s job assignment and requirements were not necessarily the
cause of her symptoms and diagnoses. However, long periods of walking and standing,
especially on rigid surfaces which irritated the anatomical structures in question and the resulting
diagnoses, were not inconsistent with the injury. Thus, Dr. Kuchar opined that appellant’s
preexisting conditions were aggravated by her employment duties.6

3

Docket No. 11-1842 (issued April 19, 2012).

4

Docket No. 13-912 (issued July 29, 2013). The Board noted that, although the February 1, 2013 decision
purported to be a nonmerit decision denying reconsideration, OWCP’s analysis of the evidence indicated that it
reviewed the merits of appellant’s claim and thus, the Board exercised jurisdiction over the merits of the case.
5

Id.

6

Dr. Kuchar also stated that appellant was later diagnosed with rheumatoid arthritis. He noted that arthritis
primarily affected the joints. As appellant’s complaints were not related to the joints, her arthritis could be ruled out
as a preexisting condition which did not cause her symptoms. Dr. Kuchar stated that appellant’s chief complaint
focused on the tendons and thus, the true cause of her symptoms resulted from the diagnosed tendinitis condition.

2

By decision dated February 28, 2014, OWCP denied appellant’s reconsideration request
as untimely filed and failing to establish clear evidence of error. It noted that her December 2,
2013 reconsideration request was not made within one year of the last OWCP merit decision on
June 16, 2011. OWCP further noted that the Board’s July 29, 2013 decision was final and not
subject to review.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
The Board has held, however, that OWCP’s procedure manual8 should be interpreted to mean
that a right to reconsideration within one year accompanies any subsequent merit decision on the
issues, including any merit decision by the Board.9
ANALYSIS
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review because appellant’s request for
reconsideration was timely submitted.
An application for reconsideration must be received by OWCP within one year of the
date of a merit review of the claim, including any merit review by the Board.10 The last merit
decision of record was the Board’s July 29, 2013 decision.11 As appellant’s reconsideration
request dated and received on December 2, 2013 was made within one year of the Board’s merit
decision dated July 29, 2013, the Board concludes that the request was timely.12
OWCP’s February 28, 2014 decision erroneously noted the date of the last merit decision
as June 16, 2011. It correctly noted that the Board’s July 29, 2013 merit decision was not subject
to appeal, but failed to acknowledge that appellant had one year from the date of the last merit
decision (July 29, 2013) to file a timely request for reconsideration with OWCP.13 In its
February 28, 2014 decision denying appellant’s reconsideration request, OWCP applied the clear
evidence of error legal standard. This standard is the appropriate standard only for cases in
which a reconsideration request is untimely filed.14 Since OWCP erroneously reviewed the
evidence submitted by appellant in support of her reconsideration request under the clear
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

9

See Mary E. Schipske, 43 ECAB 318 (1991); see also John W. O’Connor, 42 ECAB 797 (1991).

10

Id.

11

Supra note 4.

12

J.N., Docket No. 12-1543 (issued February 12, 2013).

13

Supra note 9.

14

See Donna M. Campbell, 55 ECAB 241 (2004).

3

evidence of error standard, the Board will remand the case to OWCP for application of the
standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R.
§ 10.606(b)(2).
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion.
Issued: February 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISIONS, Petersburg, VA,
Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-236
Issued: March 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 12, 2013 appellant, through his attorney, filed a timely appeal from a
May 15, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his occupational disease claim. 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.
ISSUE
The issue is whether appellant sustained a back condition causally related to factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 19, 2011 appellant, then a 46-year-old landscape supervisor, filed an
occupational disease claim alleging that he sustained lumbar spondylosis and stenosis causally
related to factors of his federal employment. He indicated that he could no longer perform his
work duties of lifting up to 100 pounds, climbing, planting, kneeling, squatting, searching
inmates and responding to emergencies.
In a January 23, 2012 disability certificate, Dr. David S. Geckle, a Board-certified
neurosurgeon, asserted that appellant was totally disabled from January 30 through
April 1, 2012.
By letter dated June 29, 2012, OWCP requested additional factual and medical
information from appellant, including a detailed report from his attending physician addressing
the causal relationship between any diagnosed condition and the work duties to which he
attributed his condition.
In a report dated January 23, 2012, Dr. Geckle related that appellant had a history of
lumbar spondylosis. Over the past few months, he experienced “more leg symptomatology with
radiation of the pain down the posterolateral leg to the knee with burning and tingling sensation
intermittently into the left foot.” Dr. Geckle diagnosed lumbosacral spondylosis. In a progress
report dated March 9, 2012, he provided findings on examination and diagnosed lumbosacral
spondylosis.
On July 6, 2012 Dr. Geckle evaluated appellant for neck pain. He diagnosed cervical
spondylosis. Dr. Geckle noted that appellant currently had no significant radiculopathy due to
lumbar spondylosis and had no work limitations.
In a report dated July 9, 2012, Dr. Geckle indicated that he had treated appellant for a
back condition since 2006. He diagnosed lumbar spondylosis with current symptoms of “low
back pain that radiates into the left paraspinous musculature. There is no significant radiation of
pain to the buttock or down the legs at the present time.” Dr. Geckle related that a magnetic
resonance imaging (MRI) scan study revealed disc degeneration and a disc bulge at L4-5 and
mild degeneration at L5-S1. He indicated that appellant attributed the onset of his symptoms to
lifting a power washer in 2000 while at work. Dr. Geckle related, “[Appellant’s] work injury of
2000 is related to his chronic ongoing low back issues. These have been managed well
medically over a protracted period of time. Appellant suffers occasional exacerbations of
symptoms that require ongoing medical treatments.”
The record reflects that appellant filed a claim for an August 24, 2000 employment
injury.
In response to OWCP’s request for additional information, in a statement dated July 9,
2012, appellant related that his injury initially occurred on August 24, 2000 and that he reinjured
his back on October 9, 2001 and March 8, 2006. He maintained that he had constant discomfort
in his low back that now spread down his left leg. Appellant asserted that operating machinery
while sitting or driving long distances, bending and standing aggravated his condition. He

2

described in detail the work duties that he believed contributed to his condition, including lifting
bags, searching inmates, emergency response, walking, loading machinery, snow removal and
climbing stairs.
By decision dated October 5, 2012, OWCP denied appellant’s claim on the grounds that
he did not establish a medical condition causally related to the accepted factors of employment.
On November 5, 2012 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative. On February 28, 2013 his attorney requested a review of the
written record in lieu of an oral hearing.
In a report dated February 4, 2013, Dr. Geckle indicated that he initially evaluated
appellant for a low back condition he sustained in 2000 lifting a power washer at work. He
diagnosed lumbar spondylosis and noted that it was “a degenerative condition of his spine that
has been progressively worsening over the years since his injury.” Dr. Geckle stated, “It is my
opinion that the lifting of the power washer did significantly impact his lower back structurally
and has contributed to the progressive decline in his functioning due to his degenerative issues.
The lower back injury has left him with chronic problems with lifting and bending.” Dr. Geckle
found that appellant had permanent disability and required some periodic work modifications
when his symptoms increased. He further related that appellant had degenerative changes of the
cervical spine not related to his 2000 injury but causing limitations.
By decision dated May 15, 2013, an OWCP hearing representative affirmed the
October 5, 2012 decision. She found that the medical evidence was insufficient to show that he
sustained a back condition due to the identified work factors. The hearing representative
instructed appellant that if he believed that a work incident in 2000 caused his condition he
should file either an injury claim or a notice of recurrence of disability related to that incident.
On appeal appellant’s attorney contends that OWCP accepted that he had a back
condition as the result of a March 8, 2006 work injury but that the hearing representative did not
discuss this injury in her decision. He further alleges that Dr. Geckle’s February 4, 2013 report
establishes that appellant had an employment-related back condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

5 U.S.C. § 8101 et seq.

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an 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;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing 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.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,8 must be one of reasonable medical certainty9 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.10
ANALYSIS
Appellant attributed his low back condition to the performance of work duties, including
lifting bags, loading equipment, walking, climbing stairs, snow removal and responding to
emergencies in the course of his federal employment. OWCP accepted the occurrence of the
claimed employment factors. The issue, therefore, is whether the medical evidence establishes a
causal relationship between the claimed conditions and the identified employment factors.
In a report dated January 23, 2012, Dr. Geckle discussed his treatment of appellant for
lumbar spondylosis and his complaints of pain over the past few months radiating from the left
leg into the left foot. He diagnosed lumbosacral spondylosis. In a disability certificate dated
January 23, 2012, Dr. Geckle found that appellant was disabled from employment. On March 9,
2012 he discussed examination findings and diagnosed lumbosacral spondylosis. In a report
dated July 6, 2012, Dr. Geckle discussed appellant’s symptoms of neck pain and diagnosed
cervical spondylosis. He found no radiation from the lumbar spondylosis and no work
restrictions. In these reports, however, Dr. Geckle did not address causation. Medical evidence
3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

4

that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.11
On July 9, 2012 Dr. Geckle diagnosed lumbar spondylosis with pain radiating to the left
paraspinous musculature. He noted that appellant asserted that his symptoms began in 2000 after
he lifted a power washer at work. Dr. Geckle found that appellant’s low back problems resulted
from his 2000 injury at work lifting a power washer and indicated that he periodically
experienced exacerbations of symptoms. As he attributed appellant’s condition to lifting a power
washer in 2000 rather than the work duties identified by appellant in his December 2011
occupational disease claim, his opinion is of diminished probative value.
In a report dated February 4, 2013, Dr. Geckle related that he began treating appellant in
2000 after he injured his low back at work lifting a power washer. He diagnosed progressively
worsening lumbar spondylosis. Dr. Geckle found that lifting a power washer caused structural
changes in appellant’s back and “contributed to the progressive decline in his functioning due to
his degenerative issues.” He determined that appellant required intermittent work limitations due
to his symptoms. Again, however, as Dr. Geckle attributed appellant’s condition to a 2000
injury, his opinion is of diminished probative value. In the absence of rationalized medical
evidence relating a diagnosed condition to the work factors identified by appellant as causing his
condition, appellant has not met his burden of proof to establish his December 19, 2011
occupational disease claim.12
On appeal appellant’s attorney asserts that OWCP’s hearing representative should have
discussed appellant’s March 8, 2006 work injury and resulting low back condition. The issue,
however, is whether appellant has established a back condition caused or aggravated by the work
factors identified in his December 2011 occupational disease claim.
Counsel further alleges that Dr. Geckle’s February 4, 2013 report establishes that
appellant had an employment-related back condition. As discussed, however, Dr. Geckle did not
relate a diagnosed condition to the work factors identified by appellant as causing his condition,
and thus his opinion is of diminished probative value.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a back condition
causally related to factors of his federal employment.

11

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

12

See B.E., Docket No. 14-63 (issued December 16, 2013).

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-732
Issued: November 29, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On January 28, 2011 appellant timely appealed the September 15, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which terminated her compensation
benefits. She also timely appealed the December 22, 2010 nonmerit decision denying her
request for a hearing.1 The Board assigned the appeal Docket No. 11-732.
After OWCP terminated appellant’s compensation on September 15, 2010, she submitted
new evidence and requested a hearing before the Branch of Hearings and Review. Appellant’s
request was undated. However, it bears a time stamp indicating that the Branch of Hearings and
Review received the request on November 1, 2010. The imaged record does not include a copy
of the envelope that appellant presumably used to submit her hearing request.
The regulations clearly specify that “[t]he hearing request must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”2 The Branch of Hearings and Review denied the request as untimely based
1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193, and 20 C.F.R.
§§ 501.2(c) and 501.3 (2011), the Board has jurisdiction over the merits of this case. The record forwarded to the
Board includes evidence received after OWCP issued its December 22, 2010 decision. The Board’s appellate
review is limited to evidence that was in the case record at the time OWCP issued its final decision. 20 C.F.R.
§ 501.2(c).
2

20 C.F.R. § 10.616(a).

on the November 1, 2010 date stamp. The applicable regulation does not measure timeliness
based on the date of receipt, but instead based on the postmark. Because the Branch of Hearings
and Review did not retain a copy of the envelope, the Board is unable to determine whether
appellant’s hearing request was timely filed.3 Accordingly, the case will be remanded to the
Branch of Hearings and Review. If the date of the postmark cannot be determined, OWCP
should presume that the request was timely and grant the request for hearing, as it was OWCP’s
responsibility to keep the envelope or otherwise keep evidence of the date of mailing in the case
record.4
IT IS HEREBY ORDERED THAT the December 22, 2010 decision of the Branch of
Hearings and Review is set aside, and the case is remanded for further action consistent with this
order of the Board, to include a de novo decision on the merits.
Issued: November 29, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings & Reviews of the Written Record, Chapter
2.1601.3b (October 1992).
4

Carolyn O’Neal, 53 ECAB 645 (2002).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF AGRICULTURE,
DISTRICT OFFICE, Alameda, CA, Employer
__________________________________________

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

Docket No. 08-1530
Issued: March 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 21, 2008 terminating her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective March 21, 2008.
FACTUAL HISTORY
On February 4, 1998 appellant, then a 54-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injury on that date when she fell from a chair. The
Office accepted this claim for contusions to the back and coccyx. Appellant returned to work at
20 hours per week in a modified position on June 7, 1999. On June 27, 1999 she filed a CA-1

form alleging an injury on June 21, 1999 when she fell while attempting to sit in a chair. This
claim was accepted for neck and lumbosacral sprains. Appellant did not return to work.
The attending physician, Dr. Borina Dramov, a neurologist, continued to report that
appellant was totally disabled for work. The Office referred appellant for a second opinion
examination by Dr. Robert Ferretti, an orthopedic surgeon. By report dated October 2, 2006,
Dr. Ferretti provided a history and results on examination. He stated that he found no objective
evidence that the employment-related conditions were currently active and there were no
objective findings to support continuing complaints from the specific injuries of February 4,
1998 and June 21, 1999. Dr. Ferretti indicated that appellant was unable to work in her previous
position or in a full-time position. He noted that appellant had underlying conditions of arthritis,
hypertension and obesity, stating that the “disability is a combination of work injuries, primarily
the first with underlying conditions. The underlying conditions prevent [appellant] from
returning to her position as a [modified] office clerk…” Dr. Ferretti further stated that, if
appellant “had only residuals of her two work injuries, she would be capable of returning to at
least the modified duties she was performing beginning [June 6, 1999] up until the [June 21,
1999] injury.”
The Office requested clarification from Dr. Ferretti with respect to an employmentrelated disability. In a report dated January 17, 2007, Dr. Ferretti responded that the work
injuries occurred in conjunction with the natural progression of her nonindustrial conditions of
rheumatoid and osteoarthritis, hypertension and obesity. He further stated, “The nonindustrial
conditions are the basic factor in causing her inability to work… [Appellant’s] physical
restrictions are related solely to the effects of her nonindustrial condition.” Dr. Ferretti again
noted there were no objective findings to support continued complaints related to the work
injuries.
In a report dated December 22, 2006, Dr. Dramov diagnosed concussion with
postconcussion syndrome, cervical spondylosis with radiculopathy, lumbar radiculopathy and
left shoulder tendinitis. She opined that all of these conditions were work related and appellant
was totally disabled.
The Office found a conflict in the medical evidence existed and referred appellant to
Dr. Jack Stehr, a Board-certified orthopedic surgeon. In a report dated October 15, 2007,
Dr. Stehr provided a history, results on examination and review of medical records. He stated,
“There is no objective medical evidence that [appellant’s] work[-]related contusion to her coccyx
and low back that occurred on February 4, 1998 and her cervical and lumbosacral sprains that
occurred on June 21, 1999 are currently active and causing objective findings. Her current
symptoms are secondary to significant preexisting degenerative disc disease of her cervical and
lumbosacral spine that are well documented on x-rays.” Dr. Stehr reported no objective findings
to support that appellant’s current condition was related to the work injuries of February 4, 1998
and June 21, 1999. He concluded, “There is no medical disability connected to [appellant’s]
work injuries that would prevent [appellant] from returning to her previous position. Her current
disabilities, however, are secondary to well-established preexisting degenerative arthritis of her
cervical and lumbosacral spine, rheumatoid arthritis and obesity, all of which are not work
related.”

2

In a letter dated January 11, 2008, the Office notified appellant of a proposed termination
of compensation for wage-loss and medical benefits, based on the weight of the medical
evidence as represented by Dr. Stehr. Appellant submitted a report dated January 26, 2008 from
Dr. Dramov, who again opined that appellant was totally disabled due to her employment-related
injuries. Dr. Dramov stated that magnetic resonance imaging (MRI) scan from 1999 showed
cervical disc disease and lumbar herniated discs. She also stated that appellant was working with
rheumatoid arthritis at the time of both her injuries and all residuals and disability were caused
by the employment incidents.
By decision dated March 21, 2008, the Office terminated compensation for wage-loss and
medical benefits. It found the weight of the evidence was represented by Dr. Stehr.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The right to medical
benefits is not limited to the period of entitlement to disability. To terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition that require further medical treatment.3
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make the examination.4 The
implementing regulations state that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.5
It is well established that, when a case is referred to a referee physician for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.6

1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Frederick Justiniano, 45 ECAB 491 (1994).

4

5 U.S.C. § 8123.

5

20 C.F.R. § 10.321 (1999).

6

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

3

ANALYSIS
The accepted conditions in this case were contusions to the back and coccyx, as well as
cervical and lumbosacral sprains. For these conditions, it is the Office’s burden of proof to
terminate compensation. There was a conflict between the attending physician, Dr. Dramov, and
the second opinion physician, Dr. Ferretti, regarding a continuing employment-related disability.
Dr. Dramov opined that appellant was totally disabled as a result of her employment-related
injuries, while Dr. Ferretti indicated that any current work restriction was related to the
underlying, nonemployment-related arthritis, hypertension and obesity.
The Office asked the referee physician, Dr. Stehr, to provide an opinion as to whether the
accepted contusions and sprains were currently active and causing objective findings. Dr. Stehr
provided a rationalized medical opinion on the issues presented. He offered a complete history
and reviewed medical records. Dr. Stehr opined that there was no objective evidence that the
employment injuries were currently active. He found that the current symptoms were secondary
to preexisting arthritis and obesity, which were not employment related.
As noted above, the opinion of a referee physician, when based on a complete
background and supported by medical rationale, is entitled to special weight. The Board finds
that Dr. Stehr’s opinion is entitled to special weight and represents the weight of the medical
evidence in this case. The Office met its burden of proof to terminate compensation for wageloss and medical benefits based on the accepted conditions.
With respect to the diagnoses provided by Dr. Dramov, including postconcussion
syndrome, cervical spondylosis with radiculopathy, lumbar radiculopathy and left shoulder
tendinitis, it is appellant’s burden of proof to establish the diagnosed conditions as employment
related. Once established as employment related, appellant would have to show she had
continuing residuals of the condition or continuing disability after March 21, 2008.7 Dr. Dramov
opined in the December 22, 2006 report that the employment injuries caused damage to the back
involving the L5-S1 nerve root, without providing additional medical rationale or explaining
how appellant’s current condition was causally related to the employment injuries. She stated
the neck symptoms had worsened, without explaining why she felt the condition was causally
related to the employment incidents in 1998 and 1999. That, appellant was working with a
preexisting arthritis at that time does not explain how reported neck or back symptoms in 2008
are employment related. Dr. Dramov does not provide a rationalized medical opinion
establishing an additional employment-related condition with continuing residuals or disability.8
The Board finds appellant did not meet her burden of proof regarding additional diagnosed
conditions.

7

See Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Appellant submitted additional medical evidence after the March 21, 2008

4

CONCLUSION
The Office met its burden of proof to terminate compensation for wage-loss and medical
benefits for the accepted employment injuries as of March 21, 2008. Appellant did not meet her
burden of proof to establish additional employment-related conditions or disability.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2008 is affirmed.
Issued: March 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 10-410
Issued: August 11, 2010

Case Submitted on the Record

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

JURISDICTION
On November 30, 2009 appellant filed a timely appeal from the November 10, 2009
merit decision of the Office of Workers’ Compensation Programs which terminated his
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective November 10, 2009 on the grounds that he had no residuals of
his June 14, 2007 employment injury after that date.

FACTUAL HISTORY
The Office accepted that on June 14, 2007 appellant, then a 44-year-old mail clerk,
sustained a left ankle sprain when it gave way while walking and delivering mail.1 Appellant
stopped work shortly after his injury. In September 2007 he returned to work in a light-duty
position which limited his walking and standing.2 He stopped work for various periods
thereafter and received wage-loss compensation for periods of disability.
In an August 27, 2007 report, Dr. Walter R. Shelton, an attending Board-certified
orthopedic surgeon, evaluated appellant for the first time. He stated that appellant reported that
his left ankle still hurt and noted that he was placed in a boot walker. On physical examination
appellant exhibited an obvious valgus left hindfoot with no clinical instability or loss of range of
motion. He was exquisitely tender over the tip of the fibula and personal tendons. Three view xrays of the left ankle were normal and Dr. Shelton diagnosed valgus hindfoot with loss of arch of
the left foot.
In a September 12, 2007 report, Dr. Willie J. Lewis, an attending podiatrist, stated that
appellant continued to experience left ankle pain. On examination he exhibited decreased left
ankle motion and left ankle pain on palpation. Dr. Lewis diagnosed chronic left ankle sprain and
pes planus on pronation and recommended that appellant be fitted with semirigid orthodox shoes.
The findings of a November 1, 2007 magnetic resonance imaging (MRI) scan of appellant’s left
ankle showed no personal tendon pathology, but did show a possible tear of the anterior
talofibular ligament.
In a November 5, 2007 report, Dr. Shelton stated that testing and physical examination of
appellant’s left anterior talofibular ligament was normal. He had a left valgus foot with loss of
his arch and impingement of his peroneal tendons. Dr. Shelton recommended that appellant
continue with an exercise program. On December 19, 2007 he advised that appellant was treated
conservatively with exercise and orthotic shoes and noted that MRI scan testing showed no
further pathology in his left ankle. Dr. Shelton stated:
“His objective findings are a valgus foot when he stands. He does not have an
ankle sprain. This is really not a work injury, but rather a developmental flatfoot
with valgus hindfoot that causes impingement of the fibula on the talus and os
calcis and peroneal tendon.”
In early January 2008, appellant returned to work as a modified mail clerk with
restrictions on walking and standing. On January 21, 2008 Dr. Shelton stated that appellant’s left
ankle sprain had aggravated his personal impingement problem, but did not cause it. The
problem was more related to a chronic deterioration in the arch of his left foot with a valgus
hindfoot. On October 23, 2008 the Office requested that Dr. Shelton answer certain questions,
1

Appellant initially indicated that the injury occurred on June 26, 2007 but the injury actually occurred on
June 14, 2007.
2

The record makes reference to an incident in 2005 when appellant’s left ankle gave way while he was lifting
boxes at work. It is unclear whether this resulted in an accepted work injury.

2

including whether appellant still had residuals of his June 14, 2007 left ankle sprain. Dr. Shelton
did not respond to this request.
In a March 18, 2009 report, Dr. David C. Collipp, a Board-certified physical medicine
and rehabilitation physician, stated that he was evaluating appellant for the first time. He
indicated that appellant reported breaking his left ankle while in the military in 1983.
Dr. Collipp noted that he sustained a left ankle injury in 2007 when he was walking down the
hall at work.3 Appellant reported left foot symptoms including numbness and tingling in the
foot, particularly in the heel and pain that was aggravated by walking and standing. Dr. Collipp
advised that appellant had congenital flat feet which compromised his left ankle even further.
On examination his cranial nerves were grossly intact and motor power in the lower extremities
was intact without focal neurologic deficits, including upon bilateral hip flexion, abduction and
adduction, knee flexion and extension, ankle dorsiflexion and plantar flexion and great toe
extension. Dr. Collipp found normal tone in appellant’s lower extremities without atrophy or
wasting. Appellant’s gait was grossly normal and his ankle ranges of motion were relatively
symmetrical, lacking about three degrees of eversion on the left compared to the right, but
similar for dorsiflexion and plantar flexion. His left ankle joint was tender to palpation without
significant swelling and his skin was without change. Dr. Collipp diagnosed chronic sprain of
the left ankle and indicated that he had no neurologic change. He stated that appellant was at
maximum medical improvement and recommended that he undergo a functional capacity
evaluation.
In June 2009, the Office referred appellant to Dr. Thomas Jeffcoat, a Board-certified
orthopedic surgeon, for further evaluation of his left ankle condition. On June 18, 2009
Dr. Jeffcoat noted that appellant reported sustaining a foot fracture in 1983 while in the military
and an on-the-job injury in 2005 while working for the employing establishment. He described
the June 14, 2007 injury that appellant sustained when he was delivering mail at work.
Dr. Jeffcoat advised that appellant’s feet were extremely flat and that he had a valgus left
hindfoot. On examination appellant was able to touch his toes easily, straight leg raising caused
some pain in his right calf and femoral stretching was normal bilaterally. When lying in the
prone position and flexing his left knee without touching his left foot and ankle he complained of
left ankle pain. Motor function and range of motion appeared normal in both the upper and
lower extremities. Appellant had no calf atrophy and he walked in a very short and shuffling
gait, which was felt to be secondary to decreased effort. Dr. Jeffcoat stated that examination of
appellant’s left ankle revealed normal range of motion with about 15 degrees of dorsal flexion
and about 60 degrees of plantar flexion bilaterally. Appellant had very supple feet bilaterally and
they did not appear to give way at all. Stress x-rays of his left ankle showed no movement on
stretching the ankle and, therefore, revealed a very stable ankle.
Dr. Jeffcoat found that appellant had very severe flat feet and posited that his flat feet and
valgus left hindfoot were the cause of his instability. He saw no evidence of any ankle injury on
the x-ray or examination and stated that the cause of appellant’s feet problems, which were
congenital, had noting to do with any type of injury he sustained. It was a permanent problem
which prevented him from being on his feet for more than four hours in an eight-hour workday.
3

Dr. Collipp also mentioned a 2005 left ankle twist injury, but did not provide any further details.

3

Dr. Jeffcoat stated that appellant’s June 14, 2007 work injury had resolved and that his feet
problems were not related to the work injury, but rather to the severe bilateral pes planus. He
noted that appellant had no neurological findings and indicated that his need for work restrictions
was not related to any work-related left ankle injury.4
In a September 2, 2009 letter, the Office advised appellant of its proposed termination of
his wage-loss compensation and medical benefits due to the fact that he no longer had residuals
of his June 14, 2007 work injury. It noted that the termination was justified by the June 18, 2009
report of Dr. Jeffcoat and provided appellant 30 days to submit additional evidence to challenge
the proposed termination.5
In a November 10, 2009 decision, the Office terminated appellant’s wage-loss
compensation for disability and medical benefits effective November 10, 2009 finding that he
had no residuals of his June 14, 2007 work injury after that date.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,6 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.7 It may not
terminate wage-loss compensation without establishing that the disability ceased or that it was no
longer related to the employment.8 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.9
ANALYSIS
The Office accepted that on June 14, 2007 appellant sustained a left ankle sprain when
his ankle gave way while walking and delivering mail at work. Appellant stopped work for
various periods thereafter and received wage-loss compensation from the Office for periods of
disability.10 The Office terminated appellant’s wage-loss compensation for disability and
medical benefits effective November 10, 2009 on the grounds that he had no residuals of his
June 14, 2007 employment injury after that date. It based its termination on a June 18, 2009
4

Dr. Jeffcoat also stated that there was no sign of any injury sustained in 2005. Appellant asked about his right
knee having a knot in it and Dr. Jeffcoat indicated that he probably had some degenerative changes in both knees
related to age rather than a work-related cause.
5

Appellant did not submit any evidence within the allotted period.

6

5 U.S.C. §§ 8101-8193.

7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

The record makes reference to an incident in 2005 when appellant’s left ankle gave way while he was lifting
boxes at work. It is unclear whether this resulted in an accepted work injury.

4

report of Dr. Jeffcoat, a Board-certified orthopedic surgeon who served as an Office referral
physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well rationalized opinion of Dr. Jeffcoat. The June 18, 2009 report of Dr. Jeffcoat establishes
that appellant had no residuals of his June 14, 2007 work injury after November 10, 2009.
Dr. Jeffcoat provided a history of appellant’s left ankle and foot problems and described
the June 14, 2007 work injury. On examination appellant was able to touch his toes easily, but
when lying in the prone position and flexing his left knee without touching his left foot and ankle
he complained of left ankle pain. Motor function and range of motion appeared normal in both
the upper and lower extremities. Appellant had no calf atrophy and he walked in a very short
and shuffling gait, which was felt to be secondary to decreased effort. Dr. Jeffcoat indicated that
examination of appellant’s left ankle revealed normal range of motion with about 15 degrees of
dorsal flexion and about 60 degrees of plantar flexion bilaterally. Appellant had very supple feet
bilaterally that did not give way and stress x-rays of his left ankle showed no movement on
stretching the ankle and therefore revealed a very stable ankle. Dr. Jeffcoat concluded that
appellant’s June 14, 2007 left ankle sprain had resolved and that he had no residuals of a workrelated injury.11
The Board has carefully reviewed the opinion of Dr. Jeffcoat and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Jeffcoat’s opinion was based on a proper factual and
medical history and accurately summarized the relevant medical evidence.12 He provided
medical rationale for his opinion by explaining that appellant had very severe congenital flat feet
and a congenital valgus left hindfoot which were the cause of his instability. Dr. Jeffcoat saw no
evidence of any ankle injury on the x-ray or examination and stated that the cause of appellant’s
feet problems had nothing to do with any type of injury he sustained. Appellant had a permanent
problem which prevented him from being on his feet for more than four hours in an eight-hour
workday, but these restrictions were not due to any work-related problem. Dr. Jeffcoat stated
that the June 14, 2007 work injury had resolved and that there was no neurological evidence of
such an injury. Appellant’s feet problems were not related to the work injury, but rather to the
severe bilateral pes planus and valgus left hindfoot.13
In a March 18, 2009 report, Dr. Collipp, an attending Board-certified physical medicine
and rehabilitation physician, diagnosed chronic left ankle sprain. His report is of limited
probative value as he did not provide medical rationale supporting such a diagnosis. Dr. Collipp
reported essentially normal findings on examination of appellant’s left ankle and he failed to

11

Dr. Jeffcoat also stated that there was no sign of any injury sustained in 2005.

12

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

13

The Board notes that further support for the Office’s termination of wage-loss compensation is provided by a
December 19, 2007 report of Dr. Shelton. He stated that appellant did not have a left ankle sprain and noted, “This
is really not a work injury, but rather a developmental flatfoot with valgus hindfoot that causes impingement of the
fibula on the talus and os calcis and peroneal tendon.”

5

explain why his continuing problems were not solely related to his congenital left pes planus and
valgus hindfoot.
For these reasons, the Office properly found that appellant ceased to have residuals of his
June 14, 2007 work injury after November 10, 2009 and it met its burden of proof to terminate
his wage-loss compensation.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation for disability and medical benefits effective November 10, 2009 on the grounds
that there were no residuals of his June 14, 2007 employment injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 10, 2009 decision is affirmed.
Issued: August 11, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, New Cumberland, PA,
Employer
__________________________________________

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

Docket No. 10-734
Issued: December 10, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant, through counsel, filed a timely appeal of the December 9,
2009 merit decision of an Office of Workers’ Compensation Programs terminating her monetary
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s monetary compensation
benefits effective May 15, 2009 for refusing an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c).
FACTUAL HISTORY
The Office accepted that on July 20, 2007 appellant, then a 37-year-old distribution
process worker, sustained a Grade 1 acromioclavicular (ACL) sprain/strain of the right shoulder

when she pulled on a tote filled with boxes. It authorized arthroscopic subacromial
decompression of the right shoulder and repair of a torn rotator cuff on April 30, 2008.
By letter dated November 10, 2008, the Office referred appellant, together with a
statement of accepted facts and the case record, to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon, for a second opinion medical examination. Dr. Draper was asked to address
all medical diagnoses causally related to the accepted July 20, 2007 employment injury,
nonindustrial and preexisting disability, whether she was capable of returning to her usual work
duties and, if so, what physical restrictions were recommended, periods of total and/or partial
disability related to the accepted employment injury and whether she had any continuing
residuals of the injury.
In a November 25, 2008 report, Dr. Draper reviewed a history of appellant’s July 20,
2007 employment injury, medical treatment and social and family background. He described a
full physical examination which included essentially normal findings related to the respiratory,
cardiovascular, gastrointestinal and genitourinary systems. On examination of the cervical spine
and upper extremities, Dr. Draper reported muscle spasm and tenderness and diminished range
of motion and motor function. He diagnosed impingement syndrome of the right shoulder,
adhesive capsulitis or stiff shoulder postoperatively and osteoarthritis of the right ACL joint.
Appellant was status postdiagnostic arthroscopy of the right shoulder, mini open acromioplasty
and open excision of the distal clavicle. Dr. Draper advised that her impingement syndrome
appeared to be directly related to a December 20, 2007 work-related injury.1 He noted that
appellant had preexisting conditions that included degenerative arthritis of the right ACL joint.
Dr. Draper advised that she was unable to perform her regular work duties, but was capable of
performing light-duty work that did not require lifting more than 10 pounds and overhead use of
her right shoulder. He opined that appellant continued to have residuals of her accepted
employment-related injury. Dr. Draper recommended physical therapy, as she had not reached
maximum medical improvement. He stated that appellant should reach maximum medical
improvement on or about March 1, 2009.
By letter dated December 9, 2008, the Office requested that Dr. John R. Frankeny, II, an
attending Board-certified orthopedic surgeon, address Dr. Draper’s report. In a December 15,
2008 report, Dr. Frankeny agreed with Dr. Draper’s opinion that appellant could perform
light-duty work with no reaching above the shoulder and no pushing, pulling or lifting more than
10 pounds.
In letters received by the Office on December 16 and 17, 2008, appellant advised the
Office that she had relocated from Harrisburg, Pennsylvania to Detroit, Michigan as of
December 6, 2008.
On December 19, 2008 the employing establishment offered appellant a modified
distribution process worker position in New Cumberland, Pennsylvania effective December 15,
2008 based on Dr. Frankeny’s physical restrictions. The duties included checking stock numbers
on material in the active item “DP” and “DT” area, which weighed 1 to 25 pounds. This task
1

It appears that Dr. Draper inadvertently stated that the date of injury was December 20, 2007 rather than July 20,
2007 as he accurately described the accepted employment injury.

2

could be successfully performed with one hand or arm. The position also required walking up
and down each aisle in the active item area looking at stock numbers in totes.
By letter dated December 29, 2008, the Office advised appellant that the offered
modified-duty position was available and found suitable to her physical limitations as set forth
by Dr. Draper and Dr. Frankeny. Appellant had 30 days to accept the position or provide an
explanation for her refusal to accept it. The Office informed her that, if she failed to accept the
position or provide a reasonable cause for her refusal, her compensation benefits would be
terminated.
On December 26, 2008 appellant refused the offered position on the grounds that she had
relocated to Michigan due to extreme family circumstances. She was willing to return to work if
suitable work within the restrictions set forth by Dr. Frankeny was available in Michigan.
In a January 7, 2009 report, Dr. Frankeny found that appellant was unable to climb and
she could not engage in repetitive use of her right upper extremity.
Reports from appellant’s physical therapists indicated that her right shoulder conditions
were treated from January 22 to February 3, 2009.
On January 30, 2009 the Office advised appellant that the reasons given for refusing to
accept the offered position were not sufficient. Appellant was given an additional 15 days to
accept. In an undated letter, received by the Office on February 10, 2009, she refused the offered
position stating that her move to Michigan was due to her accepted employment injury.
Following appellant’s injury, she became extremely depressed and could no longer perform her
usual activities without assistance. She had financial problems because she had not been paid
since her injury. Appellant also separated from her husband.
In reports dated January 13 and February 17, 2009, Dr. A. Dianne Obayan, Boardcertified in physical medicine and rehabilitation, listed essentially normal findings on physical
examination of appellant’s right upper extremity. On examination of the neck, she reported pain.
Dr. Obayan also reported diminished sensation in the right arm. Appellant also had diminished
range of motion of the right shoulder. Dr. Obayan advised that appellant was status postrepair of
a right supraspinatus tear. Appellant had right ACL joint partial separation and cervical
radiculopathy in the right C7 distribution. Dr. Obayan opined that appellant was totally disabled
for work.
A January 20, 2009 report, of a physical therapist, certified by Dr. Obayan, addressed the
treatment of appellant’s right shoulder and cervical pain. Reports of other physical therapists
addressed treatment of her right shoulder and cervical pain through March 10, 2009. In an
April 25, 2009 report, Dr. Javier L. Beltran, a radiologist, advised that a magnetic resonance
imaging scan of appellant’s right shoulder demonstrated infraspinatus tendinosis without a tear.
He stated that she was status postsubacromial decompression and acromioplasty and Mumford
procedure with resection of the distal end of the clavicle.
In a May 15, 2009 decision, the Office terminated appellant’s monetary compensation
benefits effective that date on the grounds that she refused an offer of suitable work. It noted
that the position was still available.
3

By letter dated May 18, 2009, appellant, through counsel, requested a telephonic hearing
with an Office hearing representative.2 In a May 20, 2009 report, Dr. Larry H. Reid, an
osteopath, found that she had a right rotator cuff injury, nerve root irritation of the cervical spine,
Grade 1 ACL joint sprain and cervical myocitis. He opined that appellant was totally disabled
from March 31 to July 1, 2009. In a June 5, 2009 report, Dr. Reid diagnosed acute posttraumatic cervical disc syndrome at multiple levels, thoracic arthralgia and right shoulder
radiculopathy. He stated that appellant could return to work on June 22, 2009 with restrictions.
In a July 20, 2009 report, Dr. Richard H. Hallock, a Board-certified orthopedic surgeon, obtained
a history of her July 20, 2007 employment injury. He found that she sustained a right shoulder
injury. Dr. Hallock advised that appellant could perform limited-duty work with restrictions. In
reports dated July 20 and September 1, 2009, Dr. Frankeny advised that she could perform
limited-duty work with the same restrictions previously provided.
In a December 9, 2009 decision, an Office hearing representative affirmed the May 15,
2009 termination decision, finding the evidence sufficient to establish that appellant refused an
offer of suitable work.3
LEGAL PRECEDENT
Section 8106(c) of the Federal Employees’ Compensation Act 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.4 It is the Office’s burden to terminate compensation under
section 8106(c) for refusing to accept suitable work or neglecting to perform suitable work.5 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.6
To support termination, the Office must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.7 In
determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
2

The Board notes that appellant relocated to Harrisburg, PA and returned to work at the employing establishment
on June 22, 2009.
3

The Board notes that it appears that the Office hearing representative inadvertently stated that the Office’s
“January 15, 2004 decision is affirmed in part and reversed in part” rather than the May 15, 2009 decision was
affirmed. The case record does not contain a January 15, 2004 termination decision. Further, the hearing
representative’s decision accurately described and addressed the facts related to the instant claim.
4

5 U.S.C. § 8106(c).

5

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

6

20 C.F.R. § 10.517(a).

7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).

4

demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.8 Office procedures state that acceptable reasons for refusing an offered position
include withdrawal of the offer or medical evidence of inability to do the work or travel to the
job.9 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.10 It is well established under this section of the Act, the Office must consider both
preexisting and subsequently acquired conditions in the evaluation of the suitability of an offered
position.11
ANALYSIS
The Office accepted that on July 20, 2007 appellant sustained Grade 1 ACL sprain/strain
of the right shoulder as a result of pulling a tote filled with boxes while working as a distribution
process worker. It authorized arthroscopic subacromial decompression and repair of a torn
rotator cuff, which she underwent on April 30, 2008. The Office terminated appellant’s
monetary compensation effective May 19, 2009 on the grounds that she refused an offer of
suitable work. The employing establishment offered her a job as a modified distribution process
worker on December 19, 2008 and the Office determined that it was suitable on
December 29, 2008. The position involved checking stock numbers on material in the active
item “DP” and “DT” area, which weighed 1 to 25 pounds and walking up and down each aisle in
the active item area looking in totes at stock numbers. In finding the offered position suitable,
the Office relied on the opinions of Dr. Draper, an Office referral physician, and Dr. Frankeny,
an attending physician.
The Board finds that the medical evidence is sufficient to establish that appellant was
capable of performing the modified distribution process worker position. In a November 25,
2008 report, Dr. Draper advised that she could perform light-duty work with restrictions, which
included no lifting more than 10 pounds and overhead use of her right shoulder. His opinion was
supported by Dr. Frankeny, an attending physician, who agreed in a December 15, 2008 report
that appellant could perform light-duty work. Similarly, Dr. Draper restricted her from lifting
more than 10 pounds and reaching above the shoulder. Dr. Frankeny also restricted appellant
from pushing and pulling more than 10 pounds. Although the December 19, 2008 job offer
indicates that lifting 1 to 25 pounds is required while performing the duties of a modified
distribution process worker, it notes that this requirement is in accordance with the 10-pound
lifting restriction of Dr. Frankeny as the lifting requirement could be successfully performed with
one hand or arm. Thus, the lifting requirement for the offered position does not exceed
appellant’s right shoulder restrictions. The Board finds that the Office established that the
modified distribution process worker position offered by the employing establishment was
suitable.
8

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
10

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

11

Richard P. Cortes, 56 ECAB 200 (2004).

5

Once the Office has established that a particular position is suitable, an employee who
refuses or neglects to work after suitable work has been offered to her has the burden of showing
that such refusal to work was justified. An acceptable reason, if supported by medical evidence,
for refusing an offer of suitable work is inability to travel to work.12 The Office’s procedures
provide that the inability to travel to work is an acceptable reason if the inability is because of
residuals of the employment injury.13 Appellant contended that her relocation to Detroit,
Michigan was a result of her July 20, 2007 employment-related injury as it caused her depression
and financial and marital problems.14 The Board has carefully reviewed the evidence and
arguments submitted by her in support of her refusal of the modified distribution process worker
position and finds that they are not sufficient to show that relocation is contraindicated by her
medical condition. None of the medical evidence provided an opinion finding that she sustained
an emotional condition causally related to the accepted July 20, 2007 employment injury. The
Board notes that the Office has not accepted appellant’s claim for an emotional condition.
The reports of appellant’s physical therapists are of no probative value to support her
refusal of an offer of suitable work as a physical therapist is not a physician as defined under the
Act.15
Dr. Beltran’s diagnostic test results regarding appellant right shoulder condition did not
provide any opinion addressing whether she was capable of performing the modified job. The
Board finds that his report is of limited probative value on the issue of suitable work.
Dr. Obayan’s 2009 reports found that appellant was totally disabled for work. This
evidence is of limited probative value on the issue of suitable work as Dr. Obayan did not
provide any explanation for her conclusion that appellant could not work. She only listed
essentially normal findings on physical examination and diagnosed right ACL joint partial
separation and cervical radiculopathy at C7. Dr. Obayan did not specifically address the
modified-duty job offer.
Dr. Reid’s reports finding that appellant was totally disabled for work from March 31 to
July 1, 2009 are similarly of limited probative value on the issue of suitable work. He did not
provide any explanation for his conclusion that she could not work. Dr. Reid found that
appellant had acute post-traumatic cervical disc syndrome at multiple levels, thoracic arthralgia
and right shoulder radiculopathy. However, he did not present any objective findings to support
his diagnoses and opinion on disability. Further, Dr. Reid did not address the modified job offer.

12

Mary E. Woodard, 57 ECAB 211 (2005).

13

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.814.5(a)(5) (July 1996).

14

An acceptable reason for refusal when a claimant is no longer on the agency’s rolls is the employee has moved
and a medical condition contraindicates return to the area of residence at the time of injury: Id. at Chapter
2.814.5(b)(3). In this case, appellant remained on the agency’s rolls.
15

See 5 U.S.C. § 8101(2). See also James Robinson, Jr., 53 ECAB 417 (2002); Vickey C. Randall, 51 ECAB
357 (2000).

6

Dr. Hallock’s July 20, 2009 report noted appellant’s July 20, 2007 employment-related
right shoulder injury and found that she could perform limited-duty work with restrictions. He
did not address her ability to perform limited-duty work on December 19, 2008. The Board finds
that Dr. Hallock’s report is of limited probative value on the issue of suitable work.
Dr. Frankeny’s July 20 and September 1, 2009 reports found that appellant could perform
limited-duty work with the same restrictions previously provided. He did not change his prior
opinion about the type of work she was capable of performing per day which served as a basis
for the December 19, 2008 modified-duty job offer. The Board finds that Dr. Frankeny’s reports
are not sufficient to justify appellant’s refusal of the position.
For these reasons, the Board finds that appellant did not support the refusal of suitable
work solely because she did not wish to return to New Cumberland, Pennsylvania on
December 19, 2008.
The Board further finds that Office procedures were properly followed in notifying
appellant of the penalties for refusing an offer of suitable work. When appellant refused to
accept the job offer, the Office notified her that her reasons for refusing the position were
unacceptable and gave her an additional 15 days to accept the position or risk having her
compensation benefits terminated. Thus, the Office acted within its discretion in finding that she
refused an offer of suitable work and thereby terminated her compensation.
CONCLUSION
The Board finds that the Office properly terminated appellant’s monetary compensation
benefits effective May 15, 2009 for refusing an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c).

7

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8