United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, ALOHA BRANCH,
Beaverton, OR, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0862
Issued: October 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2018 appellant, through counsel, filed a timely appeal from a December 15,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective January 31, 2017, as he refused an
offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 18, 2014 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on March 12, 2014 he experienced a sharp pain in his right
shoulder while delivering mail. He stopped work that day and returned to work on
March 24, 2014. OWCP accepted the claim for a sprain of the right shoulder and upper arm at the
rotator cuff and right shoulder tendinopathy. It paid appellant intermittent wage-loss compensation
beginning May 9, 2014.
OWCP previously accepted appellant’s March 2004 occupational disease claim (Form
CA-2) for right shoulder bursitis under File No. xxxxxx306, which is the subsidiary file under the
current claim.
In a work status form dated July 16, 2014, Dr. Thomas P. McWeeney, a Board-certified
orthopedic surgeon, found that appellant was capable of performing modified work with
restrictions that included occasional lifting with the right arm under shoulder level of up to 10
pounds. On August 20, 2014 Dr. McWeeney found a mildly positive impingement test and full
strength of the shoulder muscles. He diagnosed right rotator cuff tendinitis and cervical strain, and
noted that appellant’s symptoms may be related to his cervical spine rather than the shoulder.
Dr. McWeeney recommended treatment by a physiatrist. In a work status form, he found
unchanged physical limitations.
On February 20, 2015 Dr. Nels Carlson, a Board-certified physiatrist, noted that appellant
had experienced sudden right shoulder pain while delivering mail on March 12, 2014. He found
that a February 18, 2015 magnetic resonance imaging (MRI) scan study showed a disc protrusion
at C5-6 and severe right neural foraminal stenosis, and that a June 2014 MRI scan study of the
right shoulder revealed supraspinatus tendinopathy and a possible labral tear. Dr. Carlson
diagnosed findings consistent with right shoulder impingement syndrome and a possible labral
tear, paresthesia of the right neck and C5-6 suggesting C5-6 radiculopathy, and severe right C5-6
neural foraminal stenosis.
OWCP, on April 8, 2015, referred appellant to Dr. Mark Weston, a Board-certified
orthopedic surgeon, for a second opinion examination.
Dr. Carlson, in an April 9, 2015 progress report, indicated that a March 2015 arthrogram
of the right shoulder revealed a near circumferential labral tear. He noted that appellant was
currently performing sedentary work. Electrodiagnostic testing performed on April 15, 2015 for
Dr. Carlson revealed chronic right radiculopathy at C6 and right carpal tunnel syndrome.
In a report dated April 23, 2015, Dr. Robert M. Orflay, a Board-certified orthopedic
surgeon, advised that appellant had “right shoulder pain consistent with subacromial
bursitis/rotator cuff tendinitis and degenerative labral tear. His labrum does not seem to be a
significant cause of his shoulder pain.” Dr. Orflay recommended physical therapy.
In a report dated May 11, 2015, Dr. Weston reviewed appellant’s history of injury and
listed findings on examination of full right shoulder strength with no impingement. He diagnosed
chronic myofascial pain of the right shoulder due to his work injury, noting that the right rotator
cuff tear was not symptomatic. Dr. Weston opined that appellant had no objective residuals of his
employment injury and could resume work without restrictions.
2

OWCP determined that a conflict existed between Dr. Weston and Dr. McWeeney
regarding whether appellant had residuals of his work injury and the extent of any disability. It
referred him to Dr. Walter Smith, a Board-certified orthopedic surgeon, for an impartial medical
examination.
Dr. Smith evaluated appellant on September 9, 2015. In a report dated September 16,
2015, he discussed the history of injury and the medical reports of record. On examination
Dr. Smith found a positive Neer impingement test on the right and a positive Tinel’s sign at the
right ulnar distribution. He diagnosed a chronic degenerative right rotator cuff tear and labral
disease unrelated to the employment injury, an employment-related aggravation of chronic
impingement syndrome of the right shoulder secondary to appellant’s degenerative rotator cuff
tear and labral disease, cervical degenerative disc and facet disease unrelated to his injury and
likely causing C7 radiculopathy, and latent right carpal tunnel syndrome unrelated to the work
injury. Dr. Smith noted that he currently worked at a computer terminal and used a mouse with
his left hand and related:
“[Appellant] is not physically capable of work duties above a sedentary work level,
as defined by OWCP as a limitation of 10 pounds of lifting force. He has physical
limitations on reaching above [the] shoulder and lifting above 10 pounds.
[Appellant] is capable of performing duties within [the] limitation of sedentary
work for eight hours per day. His current job meets these qualifications.”
In a September 9, 2015 work capacity evaluation (OWCP-5c), Dr. Smith indicated that
appellant could perform sedentary work with restrictions on reaching and reaching above the
shoulder for eight hours and lifting up to 10 pounds for eight hours per day.
On October 26, 2015 the employing establishment offered appellant a position as a
modified city carrier performing fine manipulation, grasping, and reaching up to eight hours per
day, standing and walking up to three hours per day, sitting up to six and a half hours per day, and
pushing and pulling up to 10 pounds for eight hours per day. The duties consisted of casing and
delivering mail. The employing establishment advised that the assignment would remain within
the physical restrictions of his attending physician.
In a November 5, 2015 duty status report (Form CA-17), Dr. Carlson found that appellant
could drive a vehicle one hour per day and lift up to 10 pounds for two to three hours per day using
only the left upper extremity.
By letter dated November 10, 2015, OWCP notified appellant that the offered position was
suitable and provided him 30 days to accept the position or provide reasons for his refusal. It
informed him that an employee who refused an offer of suitable work was not entitled to
compensation.
Appellant, in a November 17, 2015 response, asserted that Dr. Carlson found that he should
not use his right shoulder and that, consequently, the job offer did not meet the restrictions of his
attending physician.
On December 15, 2015 OWCP advised appellant that his reasons for refusing the position
were invalid and provided him 15 days to accept the position or have his entitlement to wage-loss
compensation benefits terminated.
3

By decision dated January 5, 2016, OWCP terminated appellant’s wage-loss and
entitlement to schedule award compensation as he refused an offer of suitable work.
In a report dated March 28, 2016, Dr. Carlson discussed his treatment of appellant
beginning February 20, 2015 for right shoulder pain originating at work on March 12, 2014. He
opined that appellant was permanently precluded from right shoulder activities that would involve
overhead reaching, or any reaching, lifting, carrying, pushing, or pulling in excess of 10 pounds
on an occasional to frequent basis. Dr. Carlson concurred with Dr. Smith’s opinion that appellant
could perform sedentary work. He found that he was unable to resume his regular employment.
Counsel, on April 18, 2016, requested reconsideration, arguing that the position offered by
the employing establishment failed to constitute sedentary work. On July 7, 2016 OWCP vacated
its January 5, 2016 decision, finding that further clarification from the impartial medical examiner
was needed regarding the suitability of a position that was not sedentary.
By letter dated September 13, 2016, OWCP requested that Dr. Smith clarify appellant’s
work restrictions, noting that sedentary work allowed lifting only up to 10 pounds occasionally,
rather than for eight hours per day.
In an OWCP-5c dated October 3, 2016, Dr. Smith indicated that appellant could perform
medium work reaching and reaching above the shoulder for eight hours per day and lifting up to
10 pounds for eight hours per day.
OWCP, on November 16, 2018, requested that Dr. Smith specify whether appellant could
perform medium work lifting 20 to 50 pounds occasionally and 10 to 25 pounds frequently.
On November 28, 2016 the employing establishment offered appellant a position as a
modified city letter carrier casing and delivering mail by vehicle. The physical requirements
included sitting and driving for six hours, standing for two hours, frequent walking for five hours,
occasional climbing up to two hours, frequent lifting up to 10 pounds for eight hours, occasional
twisting for two hours, frequent reaching at or below shoulder level for five hours, occasional
reaching above the shoulder with the left arm for two hours, pushing and pulling up to 10 pounds
for 30 minutes, and constant simple grasping for eight hours. The employing establishment
advised that the restrictions were within those set forth by Dr. Smith on October 3, 2016, noting
that another employee would deliver parcels over 10 pounds and that appellant could use his left
arm for any overhead reaching.
On December 6, 2016 OWCP informed appellant of its determination that the offered
position was suitable as it was within the limitations provided by Dr. Smith on October 3, 2016.
It notified him that he had 30 days to accept the position or provide reasons for his refusal, and
advised him of the penalties for refusing an offer of suitable work.
OWCP thereafter received a November 30, 2016 progress report from Dr. Carlson, who
noted that appellant had shoulder pain and a labral tear precluding his working as a letter carrier.
Dr. Carlson opined that he could work “in a sedentary occupation, with no right overhead
activities, limiting his pushing and pulling, and no more than occasional lifting with both upper
extremities at [or less than] 10 pounds.”
On January 5, 2017 counsel challenged OWCP’s determination that the offered position
was suitable. She indicated that Dr. Smith had not examined appellant for more than a year prior
4

to completing the October 3, 2016 work restriction evaluation and did not provide any rationale
for his opinion.
OWCP, by letter dated January 11, 2017, informed appellant that his reasons for refusing
the position were not valid and provided him 15 days to accept the position or have his entitlement
to wage-loss compensation benefits terminated. It advised him that the position remained
available.
Counsel, on January 25, 2017, related that the job offer was outside the restrictions set forth
by Dr. Carlson. She further asserted that whether he had the ability to perform the offered position
must be based on current medical evidence.
On January 26, 2017 appellant accepted the modified city letter carrier “within the
restrictions set forth by Dr. Nels Carlson.”
A manager at the employing establishment related that after appellant accepted the offered
modified position she instructed him to deliver mail, but he advised that he could not deliver mail
or use his right arm. He told her that he could “take LWOP [leave without pay] for the remainder
of the day and will be contacting OWCP and his attorney for further guidance on this matter.”
In a January 27, 2017 e-mail, the employing establishment advised OWCP that appellant
had requested sick leave for January 27 and 28, 2017.
By decision dated January 31, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award, effective that date as he refused an offer of
suitable work. It found that he had not accepted the offered position nor resumed work following
its 15-day letter.
OWCP thereafter received a January 25, 2017 report from Dr. Carlson, finding that
appellant could work in a sedentary position occasionally lifting, carrying, pushing, and pulling no
more than 10 pounds.
On February 14, 2017 counsel telephoned OWCP and asserted that he resumed work on
January 25, 2017. On March 1, 2017 OWCP contacted the employing establishment, who advised
that he had not returned to work as he had refused to carry out the duties of the offered position.
On March 15, 2017 Dr. Carlson diagnosed right shoulder pain with a near circumferential
labral tear, right C5-6 paresthesias, and severe neural foraminal stenosis at C5-6. He found that
appellant could perform sedentary employment not lifting overhead with his right arm, and
performing only occasional lifting, carrying, pushing, and pulling up to 10 pounds. In another
report dated March 15, 2017, Dr. Carlson concurred with Dr. Smith’s September 16, 2015 report
finding that appellant could perform full-time sedentary work. He related that he was
“permanently precluded from right shoulder activities that would involve overhead reaching, or
any reaching, lifting, carrying, pushing or pulling in excess of 10 pounds on an occasional to
frequent basis. I feel that he is able to work full time in a sedentary position using the left upper
extremity for his activities.”
Appellant, through counsel, requested reconsideration on July 19, 2017. She asserted that
Dr. Smith had not provided any rationale for his October 3, 2016 work capacity determination,
noting that in his initial report he found that appellant could only perform sedentary employment.
5

Counsel indicated that OWCP requested further clarification of the work restrictions on
November 16, 2016, but had not received a response. She also maintained that appellant would
be unable to perform the duties of the offered position within the set work restrictions.
By decision dated December 15, 2017, OWCP denied modification of its January 31, 2017
decision.3 It found that the evidence from Dr. Smith represented the weight of the evidence.
OWCP found that counsel’s contention that performing the job duties would necessitate exceeding
the set forth work restrictions was “speculative and thus of a diminished value.”
On appeal counsel contends that OWCP erred in terminating appellant’s compensation
benefits after it determined that Dr. Smith’s work restrictions required clarification and requested,
but did not receive, a supplemental report. She notes that he provided new work restrictions on
October 3, 2016, over a year after his initial evaluation. Counsel also asserts that Dr. Smith did
not provide rationale for his opinion that appellant could perform work at a medium level. She
maintains that the November 28, 2016 offered position was not sedentary as it required frequent
rather than occasional lifting and was not primarily a seated position. Counsel also contends that
appellant would not be able to perform the duties of the offered position and stay within the set
forth restrictions, citing Board case law.4
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.5 Section 8106(c)(2) of FECA6 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.7 To justify termination of compensation, it must show
that the work offered was suitable and must inform appellant of the consequences of refusal to
accept such employment.8 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.9
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.10 Section
10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is
suitable and provide 30 days for the employee to accept the job or present any reasons to counter
3
OWCP initially issued a November 16, 2017 decision, but subsequently found that decision superseded by the
December 15, 2017 decision.
4

Counsel cited S.J., Docket No. 07-0469 (issued June 4, 2007) and B.O., Docket No. 07-0103 (issued May 2, 2007).

5

Linda D. Guerrero, 54 ECAB 556 (2003).

6

5 U.S.C. § 8101et seq.

7

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

8

Ronald M. Jones, 52 ECAB 190 (2000).

9

Joan F. Burke, 54 ECAB 406 (2003).

10

20 C.F.R. § 10.517(a); see supra note 8.

6

OWCP’s finding of suitability.11 Thus, before terminating compensation, OWCP must review the
employee’s proffered reasons for refusing or neglecting to work.12 If the employee presents such
reasons and OWCP finds them unacceptable, it will offer the employee an additional 15 days to
accept the job without penalty.13
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.14 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.15 OWCP
procedures state that acceptable reasons for refusing an offered position include medical evidence
of inability to do the work.16
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.17
ANALYSIS
OWCP accepted that appellant sustained right shoulder tendinopathy and a sprain of the
right shoulder and upper arm at the rotator cuff due to a March 12, 2014 employment injury. It
terminated his compensation effective January 31, 2017 as he refused an offer of suitable work.
The initial question is whether OWCP properly determined that the position was suitable.
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.18
Dr. McWeeney, an attending physician, found in a July 16, 2014 work status form that
appellant could perform limited-duty employment with restrictions of occasional lifting of up to
10 pounds on the right side below shoulder level. Dr. Weston, an OWCP referral physician, opined
in a May 11, 2015 report that he had no residuals of his work injury and could return to work with
no limitations.

11

20 C.F.R. § 10.516.

12

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

13

20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003).

14

20 C.F.R. § 10.517(a).

15

Gayle Harris, 52 ECAB 319 (2001).

16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).
17

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

18

See Kathy E. Murray, 55 ECAB 288 (2004).

7

OWCP properly determined that a conflict arose between Dr. McWeeney and Dr. Weston
regarding appellant’s current condition and disability from employment. It referred him to
Dr. Smith, a Board-certified orthopedic surgeon, for an impartial medical examination. Where
OWCP has referred the case to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.19
In a September 16, 2015 report, Dr. Smith diagnosed as employment related an aggravation
of chronic impingement syndrome secondary to a degenerative rotator cuff tear and labral disease.
He further found cervical disc and facet disease unrelated to the work injury causing C7
radiculopathy. Dr. Smith advised that appellant could perform sedentary work lifting up to 10
pounds and that he had limitations on reaching above the shoulder. He completed a September 9,
2016 work capacity evaluation and opined that he had weight restrictions on reaching and reaching
above his shoulder, but indicated that he could perform those activities for eight hours per day.
Dr. Smith further determined that appellant could lift up to 10 pounds for eight hours per day.
Based on Dr. Smith’s report, the employing establishment offered appellant a position as a
modified city carrier, which OWCP determined was suitable and, when he refused the job,
terminated his compensation by decision dated January 5, 2016. It subsequently vacated its
termination and requested clarification from Dr. Smith regarding his work restrictions, noting that
sedentary work allowed lifting up to 10 pounds occasionally rather than for eight hours per day.
On March 28, 2016 Dr. Carlson opined that appellant could reach, lift, carry, push, and pull
up to 10 pounds occasionally to frequently with his right arm, but could not reach overhead. He
advised that he could perform sedentary work predominately using his left upper extremity.
Dr. Smith, on October 3, 2016, indicated in a work capacity evaluation form that appellant
could reach at or below and above his shoulder for eight hours per day and lift up to 10 pounds for
eight hours per day. He indicated by checking a box that he could perform medium work.
Dr. Smith’s October 3, 2016 work capacity evaluation, in conjunction with his September 16, 2015
report, constitutes probative, reasoned evidence based on a proper factual background. The Board
thus finds that Dr. Smith’s opinion, as the impartial medical examiner, represents the special
weight of the evidence and establishes that appellant could work full time with restrictions on
lifting up to 10 pounds for eight hours per day.20
The employing establishment, on November 28, 2016 offered appellant a position as a
modified city letter carrier. The duties involved casing mail, loading his vehicle, and delivering
mail. The position required sitting and driving for six hours, standing for two hours, walking for
five hours frequently, climbing for two hours occasionally, lifting up to 10 pounds for eight hours
frequently, twisting for two hours occasionally, reaching at or below shoulder level for five hours
frequently, reaching above the shoulder with the left arm for two hours occasionally, pushing and
pulling up to 10 pounds for 30 minutes, and performing simple grasping for 8 hours constantly.
The employing establishment indicated that appellant would not deliver parcels over 10 pounds
and could use his left arm to reach overhead. The position was within the restrictions set forth by

19

Gary R. Sieber, 46 ECAB 215, 225 (1994).

20

See C.H., Docket No. 16-1647 (issued September 12, 2017).

8

Dr. Smith, the impartial medical examiner. OWCP therefore properly determined that the offered
position was suitable.21
In accordance with the procedural requirements of section 8106(c), OWCP advised
appellant on December 6, 2016 that it found the position offered by the employing establishment
suitable and provided him the opportunity to accept the position or provide reasons for his refusal
within 30 days. Appellant submitted a November 30, 2016 report from Dr. Carlson, who opined
that appellant could perform sedentary work with no more than occasional lifting of up to 10
pounds. On January 25, 2017 Dr. Carlson found that appellant could work in a sedentary position
occasionally lifting, carrying, pushing, and pulling no more than 10 pounds. He did not, however,
provide any rationale for his disability determination. A medical report is of limited probative
value on a given medical question if it is unsupported by medical rationale.22
By letter dated January 11, 2017, OWCP informed appellant that his reasons for refusing
the position were not acceptable and provided him 15 days to accept the position or have his
compensation terminated. He signed the job offer on January 26, 2017, but qualified the offer
indicating that he was only working within the restrictions provided by Dr. Carlson. Appellant
informed the employing establishment that he could not deliver mail or use his right arm, and left
work on January 26, 2017 advising that he would take LWOP. He requested sick leave on
January 27 and 28, 2017. While counsel advised OWCP on February 14, 2017 that he had returned
to work, the employing establishment informed OWCP on March 1, 2017 that he had not returned
to work and refused to perform the duties of the offered position. There is no evidence that the
employing establishment granted his request for LWOP or sick leave on January 26 to 28, 2017.23
The Board, consequently, finds that OWCP followed established procedures prior to the
termination of compensation pursuant to section 8106(c) of FECA.
After OWCP established that the offered position was suitable, the burden of proof shifted
to appellant to establish that his refusal was reasonable or justified.24 Subsequent to OWCP’s
termination of his wage-loss compensation, he submitted a March 15, 2017 report from
Dr. Carlson, who related that he agreed with Dr. Smith’s finding in his September 16, 2015 report
that appellant could work full time in a sedentary capacity. He opined that he could not reach
overhead with his right shoulder and should limit reaching, lifting, carrying, pushing, and pulling
to no more than 10 pounds. The position offered by the employing establishment does not require
lifting of more than 10 pounds or reaching above the shoulder with the right arm, and thus
Dr. Carlson’s report does not support appellant’s contention that he was unable to perform the
modified position.
On appeal counsel contends that OWCP erred in terminating his compensation benefits
after it determined that Dr. Smith’s work restrictions required clarification and requested, but did
not receive, a supplemental report. OWCP requested that Dr. Smith clarify whether he could lift
only 10 pounds for eight hours or whether he could lift 20 to 50 pounds occasionally and 10 to 25
21

See D.C., Docket No. 16-1665 (issued April 13, 2017).

22

See T.F., 58 ECAB 128 (2006).

When the employing establishment authorizes a claimant’s absence from duty, there is no basis for finding a
refusal or neglect of suitable work. See D.M., Docket No. 17-1235 (issued February 15, 2018).
23

24

See M.S., 58 ECAB 328 (2007).

9

pounds frequently. Dr. Smith did not respond to its request, but the offered position required lifting
of only up to 10 pounds.
Counsel further argues that Dr. Smith provided his work restrictions over a year after his
initial examination. The Board has held that an examination must be reasonably current; however,
Dr. Smith examined appellant on September 9, 2015 and clarified his work restrictions on
October 3, 2016. The employing establishment offered him the modified position of city carrier
on November 28, 2016, a little over a year from the time of Dr. Smith’s initial examination and
less than two months after he provided supplemental work restrictions.25
Counsel asserts that the position offered by the employing establishment on November 28,
2016 was not sedentary. Dr. Smith, however, found that appellant could perform medium-level
work with the exception of lifting no more than 10 pounds frequently.
Citing the Board cases of B.O. and S.J.,26 counsel contends that appellant would not be able
to perform the duties of the offered position and stay within the set forth restriction. In B.O., the
Board found that it was unclear whether the offered position was within the restrictions set forth
by the impartial medical examiner as there was no indication that appellant could take a required
20-minute breaks every two hours or change positions as needed. In S.J., the Board determined
that the modified position offered by the employing establishment was not consistent with the
work restrictions provided by a second opinion physician of lifting 20 pounds occasionally and 10
pounds frequently as the job indicated only a lifting restrictions of 20 pounds. Appellant also
asserted that the modified job offer was substantially the same as her prior position and required
reaching above her shoulder. In this case, however, the employing establishment specifically
indicated that appellant would not be required to reach overhead with his right arm or deliver mail
weighing over 10 pounds.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award effective January 31, 2017 as he refused an
offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

The Board has found a report more than two years old at the time of OWCP’s suitable determination and almost
three years old at the time it terminated a claimant’s compensation was not reasonably current and thus insufficient to
support a termination of compensation. See S.H., Docket No. 10-1531 (issued April 13, 2011).
25

26

See supra note 5.

10

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Francis, OK, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0722
Issued: November 6, 2018

Case Submitted on the Record

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

JURISDICTION
On February 20, 2018 appellant, through counsel, filed a timely appeal from a January 19,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish left shoulder, left
hip, or back conditions causally related to the accepted July 19, 2016 employment incident.
FACTUAL HISTORY
On July 21, 2016 appellant, then a 33-year-old postal support, sales, and distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on July 19, 2016 she injured
her back when she slipped and fell while mopping the floor in the performance of her federal
employment duties. She stopped work on July 20, 2016. In an attached statement, appellant
indicated that she fell backwards, hitting her head on the lobby counter. She advised that she felt
sore, but continued her duties.3
By development letter dated July 27, 2016, OWCP informed appellant that additional
evidence was needed to establish her claim. It advised her that she should submit a medical report
from her physician with an explanation as to how the alleged work incident caused or aggravated
the claimed condition. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant provided an emergency department report dated July 21, 2016, completed by
Luann Evert, a nurse practitioner. Ms. Evert noted that appellant indicated that she fell and landed
on her left elbow complaining of left hip and left shoulder pain. On physical examination
appellant’s musculoskeletal range of motion was normal. Appellant refused an x-ray. Discharge
diagnoses were acute left-sided low back pain without sciatica and muscle spasm of the back.
Ms. Evert completed a duty status report (Form CA-17) on July 21, 2016. She noted clinical
findings of muscle tightness of the back and advised that appellant could return to work with a 10pound lifting restriction.
By decision dated August 31, 2016, OWCP found that the July 19, 2016 employment
incident occurred as alleged, but that the medical evidence of record was insufficient to establish
causal relationship because it only contained diagnoses of pain and spasm, which were considered
symptoms and not a diagnosis of a medical condition.
Appellant requested reconsideration on September 9, 2016. In a handwritten statement
dated August 5, 2016, she described the employment incident and explained that following her fall
she continued mopping the floor and completed her shift. Appellant then went home and rested
during her break before her second shift at a different postal facility.4 She related that she began
to feel worse and called in sick that afternoon and could barely get out of bed the next day, noting
that pain, stiffness, and soreness increased with each day.
In a July 28, 2016 report, Dr. M. Stephen Wilson, an orthopedic surgeon, indicated that he
was seeing appellant for injuries to the thoracic and lumbar spine, left shoulder, and left hip, as a
result of a July 19, 2016 slip and fall at work. He described her complaint of pain and frequent
3

Appellant’s usual work hours were 7:30 a.m. to 11:30 a.m.

4

Appellant indicated that she worked at both the Francis and Ada postal facilities.

2

muscle spasms in her mid-back, exacerbated by brief periods of repetitive bending, stooping,
lifting, or twisting; pain in her low back exacerbated with physical activity involving lifting,
bending, twisting, and sitting or standing in a static position for prolonged periods; pain, weakness,
and loss of range of motion in her left shoulder which were exacerbated with physical activity
involving lifting and attempted overhead or away-from-the-body movement; and left hip pain,
aggravated with any weight-bearing physical activity such as standing or walking for even brief
periods of time. Dr. Wilson noted a history of lumbar fusion at L5-S1. Physical examination of
the thoracic and lumbar spines demonstrated tenderness to palpation with palpable muscle spasms
and multiple trigger points. Range of motion was restricted in all planes, especially in ﬂexion and
extension. Weakness against resistance was demonstrated in the thoracic and lumbar ﬂexors and
extensors and against resisted ﬂexion and extension of the bilateral lower extremities at the hips,
knees, and ankles. Straight leg raising test was negative bilaterally. Left shoulder range of motion
was restricted in all planes, with crepitation and tenderness to palpation over the anterior
subacromial joint, and weakness against resistance in all major muscle groups of the shoulder.
Supraspinatus press test were positive. Appellant’s left hip demonstrated restricted range of
motion and weakness in all planes, with tenderness to palpation over the lateral aspect of the hip.
Patrick’s FABER test was positive. Appellant refused an x-ray during her emergency department
visit on July 21, 2016, and Dr. Wilson did not perform an x-ray of appellant at any time.
Dr. Wilson diagnosed acute traumatic injuries to the thoracic and lumbar spine which
resulted in anatomical abnormalities including sprain with mechanical dysfunction, trigger point
formation, muscle spasm, and intervertebral disc displacement, lumbar region; acute traumatic
injury the left shoulder resulting in anatomical abnormalities including bursitis; and acute
traumatic injury the left hip resulting in anatomical abnormalities including possible left sacroiliitis
and possible trochanteric bursitis. He opined that these injuries were causally connected to the
employment incident, noting that appellant continued to have ongoing pain and weakness in the
thoracic and lumbar areas of her spine, as well as in her left shoulder and left hip, which was
supported by clinical examination. Dr. Wilson recommended physical therapy and prescribed
medication. He provided a work limitation of 25 pounds lifting with no repetitive bending,
stooping, or squatting.5
In reports dated August 4 through November 17, 2016, Dr. Wilson reported the same
physical examination findings and diagnoses. He revised her work restrictions on August 25,
September 22, and October 18, 2016. Dr. Wilson continued to recommend physical therapy.
By decision dated December 7, 2016, OWCP found the medical evidence of record
insufficient to establish the claim because it did not contain a comprehensive medical opinion
establishing that the diagnosed conditions were causally related to the July 19, 2016 employment
incident. It found that there was no rationalized medical opinion of record explaining how
appellant’s accepted employment incident caused, contributed to, or aggravated her medical
conditions.
On July 10, 2017 appellant, through counsel, requested reconsideration. Additional
progress reports from Dr. Wilson dated December 15, 2016 to December 14, 2017 were submitted.
5

The record does not indicate when appellant returned to work.

3

His description of appellant’s physical examination findings and diagnoses remained the same.
On April 20, 2017 Dr. Wilson noted appellant’s complaint of worsening back pain and
radiculopathy in the left lower extremity. He revised her work restrictions on June 22, 2015 and
May 18, 2017. On July 27 and August 24, 2017 Dr. Wilson noted that appellant continued to have
low back pain with intermittent left lower extremity radicular symptoms. He again revised her
work restrictions. On October 26, 2017 Dr. Wilson provided new restrictions. On November 21
and December 14, 2017 he noted appellant’s continued complaints of low back pain with
intermittent radicular symptoms. Dr. Wilson added additional restrictions and continued to
recommend physical therapy.
In a June 15, 2017 report addressed to counsel, Dr. Wilson indicated that, to his knowledge,
the only preexisting injury appellant had suffered was to her lumbar spine for which she underwent
a fusion at the L5-S1 level. He noted that she was working full time with minimal symptoms at
the time of the July 19, 2016 fall. Dr. Wilson opined that the mechanism of any fall could cause
any underlying issues to become very symptomatic and could become progressively worse with
time, especially when no simple treatment, such as therapy, was approved in a timely manner.
By decision dated January 19, 2018, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that the medical evidence of record did not
provide a rationalized medical opinion causally relating her diagnosed conditions to the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
medical evidence, including the fact that the individual is an employee of the United States within
the meaning of FECA, that the claim was timely filed within the applicable time limitation period
of FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determine whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.8

6

Supra note 2.

7

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

8

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

4

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish back, left
shoulder, or left hip conditions causally related to the accepted July 19, 2016 employment incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.12 The Board finds that no physician did so in
this case.
The emergency department report dated July 21, 2016 was completed by a nurse
practitioner. Medical opinions, in general, can only be given by a qualified physician.13 The Board
has held that reports by a nurse practitioner are not considered medical evidence as nurse
practitioners are not considered physicians under FECA.14
Dr. Wilson, an attending orthopedic surgeon, submitted a series of reports from July 28,
2016 to December 14, 2017 on approximately a monthly basis. In his initial July 28, 2016 report,
he described appellant’s slip and fall on July 29, 2016. Of note, the physical examination findings
Dr. Wilson described in that report and each report thereafter over a 17-month period were exactly
the same. His diagnoses also remained the same. While Dr. Wilson diagnosed intervertebral disc
displacement in the thoracic and lumbar regions, there are no diagnostic studies confirming these
diagnoses. In fact, the record indicates that appellant refused an x-ray during her emergency
department visit on July 21, 2016, and Dr. Wilson did not perform an x-ray of appellant at any
9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

D.D., Docket No. 13-1517 (issued April 14, 2014).

13

E.K., Docket No. 09-1827 n.7 (issued April 21, 2010) (citing Charley V.B. Harley, 2 ECAB 208 (1949)); see
5 U.S.C. § 8101(2) (defines the term physician to include surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law).
14

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).

5

time. Moreover, as reported by Dr. Wilson, appellant had a medical history of a preexisting lumbar
spine condition for which she previously had lumbar fusion at L5-S1. The record in the case at
hand contains no evidence regarding this preexisting condition or the surgical fusion. Dr. Wilson
failed to discuss whether appellant’s preexisting injury had progressed beyond what might be
expected from the natural progression of that condition and is therefore of limited probative
value.15
The Board finds that Dr. Wilson did not provide sufficient explanation as to the mechanism
of injury pertaining to the traumatic injury claim, namely, how the slip and fall on July 19, 2016
caused the numerous diagnosed conditions. Dr. Wilson merely indicated, in generalized
terminology, that the diagnosed conditions arose out of, and were causally related to the
employment incident, noting that appellant continued to have ongoing pain and weakness in her
thoracic and lumbar spine, left shoulder, and left hip, which was supported by clinical examination.
In his June 15, 2017 correspondence, he indicated that the mechanism of any fall could cause any
underlying issues to become very symptomatic and could become progressively worse with time,
especially when no simple treatment, such as therapy, was approved in a timely manner. Medical
opinions which are speculative or equivocal in character have little probative value.16 The opinion
of a physician supporting causal relationship must rest on a complete factual and medical
background supported by affirmative evidence, address the specific factual and medical evidence
of record, and provide medical rationale explaining the relationship between the diagnosed
condition and the established incident of employment. Without specifically explaining how
physiologically the July 19, 2016 fall caused or contributed to appellant’s diagnosed condition,
Dr. Wilson’s opinion on causal relationship is equivocal in nature and of limited probative value.17
It is appellant’s burden of proof to establish that a diagnosed condition is causally related
to the accepted July 19, 2016 employment incident. As appellant submitted insufficient evidence
to establish an injury caused by her accepted employment incident, she has failed to meet her
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 appellant has not met her burden of proof to establish left shoulder,
left hip, or back conditions causally related to the accepted July 19, 2016 employment incident.

15

R.E., Docket No. 14-0868 (issued September 24, 2014).

16

T.M., Docket No. 08-975 (issued February 6, 2009).

17

See R.A., Docket No. 17-1472 (issued December 6, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Somerville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-87
Issued: August 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge

JURISDICTION
On October 11, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated September 12, 2006 which affirmed a
September 24, 2005 decision terminating her compensation and a July 14, 2005 decision denying
compensation for a consequential psychiatric condition. Under 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 the Office met its burden to terminate compensation benefits
September 24, 2005; (2) whether appellant sustained a consequential psychiatric condition in the
performance of duty.
FACTUAL HISTORY
On February 26, 2001 appellant, a 41-year-old part-time letter carrier, filed a Form CA-2
claim for benefits, alleging that she developed pain in her right knee, right foot, left knee and left
foot causally related to employment factors. She stated that she became aware that these
conditions were causally related to her employment April 2000. The Office accepted the claim

for right plantar facial fibromatosis, aggravation of torn medial meniscus, aggravation of patella
chondromalacia and fracture of tarsal metatarsal bones. It commenced appropriate compensation
for intermittent periods of total and partial disability compensation.
On November 9, 2004 appellant requested that her claim be expanded to include a
psychiatric condition, major depression/panic disorder anxiety. She alleged that this condition
resulted from her accepted, work-related physical conditions. Appellant was examined by
Dr. Antoine Jean-Pierre, Board-certified in psychiatry and neurology, who summarized his
treatment in a report dated March 23, 2005. Dr. Jean-Pierre stated:
“This is to certify that [appellant] was referred to this office by Dr. R.G. Childress
for her depression, overeating, anxiety, crying spells and [inability] to sleep at
night. [She] is in pain and has trouble dealing with it and wants something to be
done since this puts stresses on her daily living.”
Dr. Jean-Pierre diagnosed major depressive disorder, recurrent episode, moderate. He
recommended treatment consisting of 20 to 30 sessions of individual psychotherapy and
medication management.
In order to determine appellant’s current psychological condition, the Office referred her
for a second opinion examination with Dr. Melvin L. Goldin, Board-certified in psychiatry and
neurology. In a March 22, 2005 report, Dr. Goldin related that appellant developed a major
depressive disorder due to her difficulties dealing with a chronic foot injury, aggravation of
earlier medial meniscal tear and patellar chondromalacia, in addition to fracture of tarsal and
metatarsal bones. Appellant also felt extremely distressed due to her inability to function and
work for eight hours per day, along with the attendant financial pressures. Dr. Goldin noted that
appellant had experienced weight gain, irritability, insomnia, social withdrawal, suicidal ideation
and a decrease in pleasurable activities. His examination indicated a mildly depressed mood
with slightly blunted affect.
Dr. Goldin concluded that appellant had developed a psychological condition as a direct
result of her work-related injuries. He stated that the critical factor regarding her work injuries
was that, due to a series of administrative issues, she could no longer pull her own weight,
resulting in a deterioration of her self-esteem and precipitating the depressive diathesis. With
regard to the specific work factors contributing to the diagnosed work-related psychiatric
condition, Dr. Goldin stated:
“The condition is [appellant’s] minimal paycheck at this point, which I am unable
to ascertain is directly related to the on the job injury; i.e., if the job injury clearly
resulted in her being cut back to working two hour shifts with subsequent
decrease in pay, it does cause and or contribute to her condition.”
In a work capacity evaluation dated March 22, 2005, Dr. Goldin was asked whether
appellant was competent to work eight hours per day. He responded, “Yes, based on psychiatric
issues.”

2

In order to determine whether appellant still experienced residuals from her accepted
physical conditions, the Office referred her to Dr. Carl W. Huff, Board-certified in orthopedic
surgery, who reviewed the statement of accepted facts which indicated:
“[Appellant’s] case was accepted for right plantar fascial fibromatosis,
aggravation of medial meniscus tear, aggravation of patella chondromalacia and
fracture of other tarsal and metatarsal bones (closed).”
In a report dated February 15, 2005, Dr. Huff indicated that these conditions were not due
to her work duties. He stated:
“In my opinion there is no relationship to the work whatsoever of the
chondromalacia of [appellant’s] knees and the torn lateral meniscus. These are
normal degenerative conditions that occur and they were not caused by standing
and walking as a city letter carrier.... As far as the plantar fasciitis is concerned,
this seems to be a condition that is associated more with [appellant’s] per plano
valgus deformity with more stress on the plantar fascia rather than the rigors of
her job. The stress fractures obviously have nothing to do with her work because
at the time they developed [appellant] was not really doing that much walking, so
that this is more of a condition associated with increased fragility of the
metatarsals and perhaps some localized osteopenia.”
Dr. Huff stated several times in his report, that appellant’s accepted conditions were not
caused or aggravated by factors of her employment. He opined that she had no residuals from
her work injuries because appellant had not sustained any work-related injuries. Dr. Huff
concluded that appellant was capable of resuming full duty as a city letter carrier.
In a notice of proposed termination dated July 14, 2005, the Office, based on Dr. Huff’s
referral opinion, found that the weight of the medical evidence demonstrated that appellant was
no longer disabled and no longer had residuals due to her accepted employment conditions. In
addition, the Office denied compensation for a consequential psychiatric condition based on
Dr. Goldin’s March 22, 2005 report.
Appellant submitted an August 3, 2005 report from Dr. Childress who expressed his
disagreement with Dr. Huff’s opinion. He stated:
[Appellant] has clear and documented history of injury and continuing residual
with pain and difficulty with her knee and both of her feet. Please note that she
had had objective testing with magnetic resonance imaging [MRI] scans
documenting the extent of her problems and [appellant] has reason to have
continuing difficulty with the articular cartilage in her knee and with ... not only
tendinitis and fasciitis symptoms in her feet, but the added tendency for
increase[d] problems with the metatarsal stress fracture.
“If she were totally asymptomatic, then consideration of returning to unrestricted
walking, climbing, unrestricted lifting, etc., would be reasonable. However, she

3

has clear continuing documented problems and difficulties where assigning her to
totally unrestricted function would not be in [appellant’s] best health interest or,
in [the employing establishment’s] best use of this employee to work and function
in a safe environment without further injury to herself.”
By decision dated September 23, 2005, the Office terminated appellant’s compensation.
It found that she had no continuing disability or residuals stemming from her accepted
employment conditions based on Dr. Huff’s opinion, which represented the weight of the
medical evidence.
On October 12, 2005 appellant requested an oral hearing which was held on
July 24, 2006. Her attorney argued at the hearing that the Office erred in relying on Dr. Huff’s
referral opinion which was not a sufficient basis upon which to terminate appellant’s
compensation benefits. Counsel stated that Dr. Huff disregarded the statement of accepted facts
by asserting that appellant had no diagnosed or accepted conditions causally related to
employment factors. In addition, he stated that Dr. Childress’s August 3, 2005 report indicating
that appellant had continuing problems and restrictions with her accepted knee and foot
conditions created a conflict in the medical evidence. With regard to the psychiatric claim,
counsel noted that the Office had paid appellant’s bills for psychiatric counseling from Dr. JeanPierre, whom she began seeing on March 23 until August 2004, when Dr. Jean-Pierre
discontinued treatment because the Office stopped reimbursing him for appellant’s visits.
Counsel noted that the Office had referred appellant to Dr. Goldin who diagnosed major
depression, causally related to her work duties, in his March 22, 2005 report. He concluded that,
on the basis of Dr. Goldin’s report, appellant had a psychiatric condition causally related to her
employment.
By decision dated September 12, 2006, an Office hearing representative affirmed the
September 23, 2005 termination decision. He also affirmed the Office’s denial of a claim based
on a psychiatric condition.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.1
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.2
Section 8123(a) of the Federal Employees’ Compensation Act provides that, if there is
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 an
examination.3
1

Mohamed Yunis, 42 ECAB 325, 334 (1991).

2

Id.

3

5 U.S.C. § 8123(a).

4

ANALYSIS -- ISSUE 1
In the present case, there is disagreement between Dr. Huff, the second opinion
physician, and Dr. Childress, appellant’s treating physician, as to whether appellant still has
residual disability stemming from her accepted conditions of right plantar fascial fibromatosis,
aggravation of torn medial meniscus, aggravation of patella chondromalacia and fracture of
tarsal metatarsal bones. Dr. Huff stated in his February 15, 2005 report that appellant did not
have residuals from these conditions, as they were not attributable to her work duties. He opined
that the chondromalacia of her knees and torn lateral meniscus were normal degenerative
conditions and were not caused by standing and walking as a city letter carrier. Dr. Huff further
stated that appellant’s plantar fasciitis was due to her per plano valgus deformity which placed
more stress on the plantar fascia, as opposed to the demands of her job. Regarding her stress
fractures, he opined that they “obviously have nothing to do with appellant’s work because at the
time they developed she was not really doing that much walking.” Dr. Huff advised that this was
a condition associated with increased fragility of the metatarsals and perhaps some localized
osteopenia. He opined that appellant was capable of resuming full duty as a city letter carrier.
In contrast, Dr. Childress stated in his August 3, 2005 report that appellant had a clear,
documented history of injury and continuing residuals. He advised that she continued to
experience pain and difficulty with her knee and both of her feet; these symptoms were
supported by objective testing, including MRI scans which documented the extent of her
problems. Dr. Childress opined that these “clear, continuing, documented problems and
difficulties” precluded her return to full, unrestricted duty.
The conflict of opinion regarding whether appellant has any residual disability causally
related to her accepted conditions of right plantar fascial fibromatosis, aggravation of torn medial
meniscus, aggravation of patella chondromalacia and fracture of tarsal metarsal bones arose prior
to the Office’s termination of compensation on September 24, 2005. The conflict requires a
referral to an impartial medical specialist pursuant to section 8123(a). Because the Office relied
on the opinion of Dr. Huff to terminate appellant’s compensation without having resolved the
existing conflict, it failed to meet its burden of proof in terminating appellant’s benefits.
In addition, Dr. Huff disregarded the statement of accepted facts by opining that appellant
did not sustain any work-related injuries or conditions and that there are no diagnosed conditions
related to employment factors. As he contravened the statement of accepted facts in his
February 2005 report, the Office additionally erred by relying on his referral opinion to terminate
appellant’s compensation. The Board, therefore, reverses the September 12, 2006 Office
decision, terminating appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing that 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 the Act, that the claim
4

5 U.S.C. §§ 8101-8193.

5

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.5 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed cervical condition and her federal
employment. This burden includes providing medical evidence from a physician who concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has failed to submit any medical evidence containing a
rationalized, probative report which establishes that her psychiatric condition is a consequence of
her accepted physical injury. For this reason, appellant has not discharged her burden of proof to
establish her claim that this condition was sustained in the performance of duty.
The record contains psychiatric reports from Dr. Jean-Pierre, appellant’s treating
psychiatrist and Dr. Goldin, the Office referral physician. Dr. Jean-Pierre diagnosed major
depressive disorder, recurrent, noted appellant’s symptoms and stated findings on examination
5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

Id.

8

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

but did not provide an opinion as to whether this condition was causally related to employment
factors.9 The Office referred appellant for a second opinion with Dr. Goldin, who concurred
with Dr. Jean-Pierre’s diagnosis of a major depressive disorder. Dr. Goldin related that appellant
became distressed because she was unable to function and work an eight hour-day which led to
financial pressures. He stated that the critical factor regarding her condition was that, due to a
series of administrative issues, appellant could no longer pull her own weight, resulting in a
deterioration of her self-esteem and precipitating the depressive diathesis. With regard to the
specific work factors contributing to the diagnosed, work-related psychiatric condition,
Dr. Goldin opined that appellant’s primary anxiety was attributable to her decreased work hours
and “minimal paycheck.” He asserted that, if the “job injury” clearly resulted in the reduction of
appellant’s work hours from eight hours to two-hour shifts with subsequent decrease in pay, it
could have caused and or contributed to her psychiatric condition. Dr. Goldin advised, however,
that he was unable to state with certainty whether this anxiety was directly related to appellant’s
accepted work injuries. He indicated in his March 22, 2005 work capacity evaluation that
appellant was capable of working an eight-hour day despite her “psychiatric issues.”
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence. The Office advised appellant of the type of evidence
required to establish her claim; however, she failed to submit such evidence. The Office
properly found that Dr. Goldin’s March 22, 2005 second opinion report represented the weight of
the medical evidence pertaining to this issue. Dr. Goldin’s report was sufficiently thorough,
probative and well rationalized and constituted sufficient medical evidence for the Office to rely
upon in its July 14, 2005 decision. The Board, therefore, affirms the Office’s denial of
compensation for a consequential psychiatric condition.
CONCLUSION
The Board finds that the Office has failed to meet its burden of proof in terminating
appellant’s compensation. The Board finds that appellant has failed to meet her burden of proof
in establishing that her claimed psychiatric condition was sustained in the performance of duty.

9

Dr. Pierre’s report is of limited probative value as it did not contain any medical rationale explaining how or
why appellant’s claimed psychiatric condition is currently affected by or related to factors of employment.
10

See id.

7

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2006 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part, in accordance with
this decision.
Issued: August 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

8


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

Docket No. 16-1820
Issued: March 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 12, 2016 appellant filed a timely appeal from a March 29, 2016 merit
decision and a May 16, 2016 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 has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than 63 percent permanent impairment of
the right lower extremity; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as presented in the Board’s prior decision are incorporated herein by reference. The relevant
facts are as follows.
Appellant, who was then a 45-year-old letter carrier, filed a traumatic injury claim (Form
CA-1) for a right knee injury sustained on February 6, 1993 when he fell from a porch while in
the performance of his duties. OWCP accepted the claim, for right medial meniscus tear, closed
fracture of right clavicle, and right knee osteoarthritis. He underwent a right knee arthroscopy to
repair the torn meniscus in March 1993, had a total right knee replacement on August 1, 1995, a
revision arthroplasty of the right knee on March 20, 2000, and additional revision right knee
surgery on January 15, 2001.
On June 21, 1996 OWCP issued a schedule award for 37 percent right lower extremity
permanent impairment. The period of the award was 106.56 weeks from February 4, 1996.
Appellant requested a hearing before an OWCP hearing representative. By decision
dated July 3, 1997, the hearing representative set aside the June 21, 1996 decision, finding that
further development of the medical evidence was required. The hearing representative noted that
the attending physician, Dr. J. Lorin Mason, a Board-certified orthopedic surgeon, had opined
that appellant had 50 percent right lower extremity permanent impairment.
By decision dated November 25, 1997, OWCP granted an additional 13 percent right
lower extremity permanent impairment, for a combined schedule award total of 50 percent
permanent impairment of the right leg.
In April 2002, appellant was receiving treatment for left knee problems. He received
OWCP approved injections and on May 28, 2002 appellant’s treating physician at that time,
Dr. Nigel Watt, a Board-certified orthopedic surgeon, requested authorization for a total left knee
replacement. By decision dated September 26, 2002, OWCP denied authorization for the
proposed surgery. Appellant requested a hearing before an OWCP hearing representative and,
by decision dated September 12, 2003, the hearing representative affirmed the September 26,
2002 decision. Appellant appealed that decision to the Board.
By decision dated May 26, 2004, the Board found that the evidence of record was
insufficient to establish that the accepted February 6, 1993 employment injury caused or
contributed to the need for a total left knee replacement.
On December 1, 2010 appellant submitted a request for an increased schedule award
(Form CA-7) and included a November 18, 2010 report from Dr. Watt. Dr. Watt opined that
appellant had 63 percent right lower extremity permanent impairment under the fifth edition of
American Medical Association, Guides to the Evaluation of Permanent Impairment. OWCP
referred Dr. Watt’s report to an OWCP medical adviser. In a report dated December 22, 2010,
OWCP’s medical adviser opined that appellant had 63 percent right lower extremity permanent

2

Docket No. 04-0461 (issued May 26, 2004).

2

impairment under the sixth edition of the A.M.A., Guides, based on a poor result from total right
knee replacement surgery.
By decision dated January 7, 2011, OWCP issued a schedule award for an additional 13
percent permanent impairment to the right lower extremity, for a combined total of 63 percent
permanent impairment of the right lower extremity. The period of the award was 37.44 weeks
from July 11, 2004 to March 30, 2005.
The record indicates that on March 20, 2013, Dr. Thomas Gross, a Board-certified
orthopedic surgeon, performed a right knee revision arthroplasty, and complete synovectomy.
On June 30, 2014 appellant requested an increased schedule award (Form CA-7) and
authorization for additional right knee surgery. After review by an OWCP medical adviser,
OWCP approved the right knee revision arthroplasty surgery which was performed by Dr. Gross
on November 21, 2014.
In a report dated November 19, 2015, Dr. Gross provided a history and results on
examination. He diagnosed right knee osteoarthritis.
Appellant again submitted a request for an increased schedule award on
February 1, 2016. By letter dated February 5, 2016, OWCP advised appellant that he must
submit probative medical evidence with respect to further permanent impairment of the right
lower extremity.
By decision dated March 29, 2016, OWCP denied appellant’s claim for an additional
schedule award as there was no medical evidence of record supporting an increased permanent
impairment.
On April 16, 2016 appellant, through his then representative, requested reconsideration.
Appellant submitted a South Carolina Workers’ Compensation Commission form medical report
from Dr. Gross dated April 6, 2016. Dr. Gross opined that appellant had 37 percent permanent
impairment of the right knee pursuant to the A.M.A., Guides. Appellant’s representative argued
that the medical evidence of record showed an increased schedule award based on recent
surgeries to the right knee.
By decision dated May 16, 2016, OWCP denied appellant’s request for reconsideration of
the merits of the claim. It found that although the medical evidence submitted with the April 16,
2016 reconsideration request was new, it was irrelevant or immaterial to the underlying issue of
permanent impairment of the right leg.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

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specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
An employee seeking compensation for a permanent impairment under FECA has the
burden of proof to establish the essential elements of the claim, including that an employment
injury contributed to a permanent impairment of a scheduled member or function of the body.6
The medical evidence necessary to support a schedule award includes a physician’s detailed
report that provides a sufficient description of the impairment.7
ANALYSIS -- ISSUE 1
OWCP accepted right medial meniscus tear, closed fracture of right clavicle, and right
knee osteoarthritis due to appellant’s February 6, 1993 fall in the performance of duty. The
issue before the Board is whether appellant has more than 63 percent permanent impairment of
the right lower extremity.8
As noted above, it is appellant who has the burden of proof to establish permanent
impairment. Prior to the March 29, 2016 merit decision, appellant submitted no new medical
evidence on the issue of increased impairment. The last report from Dr. Gross, dated
November 19, 2015, did not discuss permanent impairment.
On appeal, appellant notes that he has undergone several surgeries to his right knee, and
he could not understand how the surgeries and knee complications did not warrant an additional
schedule award. The issue, however, must be decided by the probative medical evidence of
record. There is no probative medical evidence of record with respect to employment-related
permanent impairment greater than the 63 percent previously awarded. The Board therefore
finds that appellant failed to establish more than 63 percent permanent impairment of the right
lower extremity, warranting an increased schedule award.

4

A. George Lampo, 45 ECAB 441 (1994).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

See A.B., Docket No. 12-1392 (issued January 24, 2013).

7

See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 supra note 5 at Chapter
2.808.5 (February 2013).
8

On June 21, 1996 appellant received an award of 37 percent permanent impairment; on November 27, 1997 he
received an additional 13 percent permanent impairment; and on January 7, 2011 he received an additional 13
percent for a total of 63 percent.

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LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”10 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.11
ANALYSIS -- ISSUE 2
In the present case, appellant requested reconsideration and submitted a form report from
Dr. Gross dated April 6, 2016. The Board finds that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. Moreover, appellant did not advance a
relevant legal argument not previously considered.
The underlying issue on reconsideration was whether appellant had more than 63 percent
permanent impairment of the right lower extremity, for which he previously received a schedule
award, thereby warranting an increased or additional schedule award. Appellant failed to
provide any relevant or pertinent new evidence to substantiate an increased schedule award.
Dr. Gross briefly reports that appellant had 37 percent right lower extremity permanent
impairment, without providing any additional details or explanation, such as an impairment
rating in accordance with the sixth edition of the A.M.A., Guides, and thus are irrelevant to the
issue.12 Evidence that does not address the particular issue involved does not warrant reopening
a case for merit review.13 Appellant had previously received schedule awards for 63 percent
right lower extremity permanent impairment as a result of his February 6, 1993 employment
injury. The Board finds that, since appellant failed to submit any relevant and pertinent new
evidence with respect to an increased permanent impairment, OWCP properly considered
appellant’s submission as an application for reconsideration.14
To require OWCP to reopen the case for a merit review, appellant must meet one of the
requirements of 20 C.F.R. § 10.606(b)(3) as noted above. The Board finds that appellant did not
9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

12

See B.H., Docket No. 16-1411 (issued December 23, 2016).

13

Id.; see also Freddie Mosley, 54 ECAB 255 (2002).

14

See J.M., Docket No.
(issued December 17, 2014).

15-1634

(issued

September 16,

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2016);

R.M.,

Docket

No.

14-0490

show that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant
legal argument not previously considered by OWCP. As noted above, appellant did not submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
meet any of the requirements of 20 C.F.R. § 10.606(b)(3), and therefore OWCP properly denied
the application for reconsideration.
Appellant may request, at any time, a schedule award or increased schedule award based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant had not established more than 63 percent right lower
extremity permanent impairment. The Board further finds that OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16 and March 29, 2016 are affirmed.
Issued: March 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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