United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 18-0713
Issued: September 5, 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 February 15, 2018 appellant filed a timely appeal from a January 5, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its January 5, 2018 decision.
The Board’s jurisdiction is limited to evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On November 22, 2017 appellant, then a 61-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an occupational injury due to “repetitive
motion” while at work. The claim form did not indicate whether appellant stopped work.
In a November 29, 2017 development letter, OWCP acknowledged receipt of appellant’s
claim. It provided appellant a factual questionnaire to complete and return and requested medical
evidence in support of his claim. OWCP afforded him 30 days to submit the requested medical
evidence and factual information. A similar letter was sent to the employing establishment.
On December 11, 2017 OWCP received the employing establishment’s response to its
November 29, 2017 development letter. In a December 5, 2017 e-mail, L.W., appellant’s
postmaster, related that appellant’s daily tasks consisted of casing mail, pulling down mail, loading
parcels, and delivering mail with his right arm. She noted that his work required a lot of repetitive
motion. L.W. explained that he assigned a rural carrier assistant to help appellant on extremely
heavy mail volume and package days. She reported that his physical job requirements required
casing and bundling mail, loading and unloading his vehicle, lifting and carrying mail for a
dismounted delivery, and driving in all weather conditions.
The employing establishment provided a rural carrier position description. It also provided
a duty status report (Form CA-17) indicating that it could provide limited duty to meet most
restrictions.
In a December 12, 2017 report, Dr. Mark J. Isaacson, an orthopedic surgeon and osteopath,
noted appellant’s complaints of right shoulder pain. He indicated that appellant worked for the
employing establishment and had repetitive motion of reaching out of his car hundreds of times a
day. Dr. Isaacson reviewed appellant’s history and provided examination findings. He related
that examination of appellant’s right shoulder showed significant tenderness over the
acromioclavicular (AC) joint, but no erythema, ecchymosis, or skin breakdown. Range of motion
was full, except for pain with forward flexion beyond 95 degrees. Hawkins impingement test was
slightly positive. Dr. Isaacson diagnosed right shoulder pain with rotator cuff tendinitis as well as
AC joint arthritis.
By decision dated January 5, 2018, OWCP denied appellant’s occupational disease claim.
It accepted his employment duties as a rural carrier and a diagnosis of a right shoulder condition,
but denied his claim because the medical evidence submitted was insufficient to establish that his
right shoulder condition was causally related to his federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial

3

Supra note 1.

2

evidence4 including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish causal
relationship between his right shoulder condition and the accepted factors of his federal
employment.
The only medical evidence appellant submitted was a December 12, 2017 report authored
by Dr. Isaacson, who related that appellant experienced right shoulder pain and that his
employment involved repetitive motion of reaching out of his car while delivering mail.
Dr. Isaacson conducted an examination and diagnosed right shoulder pain with rotator cuff
tendinitis as well as AC joint arthritis. He did not, however, provide any opinion regarding the
cause of appellant’s right shoulder condition. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.9 For this reason, this report is insufficient to establish
appellant’s claim.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D.,
58 ECAB 149 (2006).

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Causal relationship is a medical question that must be established by probative medical
opinion from a physician.10 The mere fact that work activities may produce symptoms revelatory
of an underlying condition does not raise an inference of an employment relation. Such a
relationship must be shown by rationalized medical evidence of a causal relation based upon a
specific and accurate history of employment conditions which are alleged to have caused or
exacerbated a disabling condition.11 As appellant has not provided such rationalized medical
evidence showing that his accepted employment duties caused or aggravated his right shoulder
condition, he has not met his burden of proof to establish his claim.
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 his burden of proof to establish a right shoulder
injury causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 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
10

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

11

Patricia J. Bolleter, 40 ECAB 373 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BROCKTON VETERANS ADMINISTRATION
MEDICAL CENTER, Brockton, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1478
Issued: March 16, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 28 2019 appellant filed a timely appeal from a January 7, 2019 merit decision and
a February 20, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 The Clerk of the Appellate Boards assigned Docket No. 19-1478.
On October 16, 2012 appellant, then a 32-year-old psychiatric nursing assistant, filed a
traumatic injury claim (Form CA-1) alleging that on August 12, 2012 she sustained multiple
injuries to her face, neck, chest, and stomach when a patient physically assaulted her while in the
performance of duty. She stopped work on that date. OWCP accepted appellant’s claim for
abrasion of the right face and neck and contusion of the right face. It subsequently expanded
acceptance of her claim to include post-traumatic stress disorder (PTSD). OWCP paid appellant
wage-loss compensation on the supplemental rolls beginning November 19, 2012 and on the
periodic rolls, effective May 5, 2013.

1

Appellant timely requested oral argument before the Board. By order dated July 22, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 19-1478 (issued July 22, 2020).

Appellant continued to receive medical treatment. In a work capacity evaluation (Form
OWCP-5c) dated July 10, 2014, Dr. Marcy Hersh, a Board-certified family physician, noted that
appellant could not return to her date-of-injury job. She noted that appellant could work full-time
with restrictions of no in-patient floor work and no situations that required indefinite exposure to
patients alone.
OWCP subsequently referred appellant to vocational rehabilitation services and she
accepted a job offer for a full-time position as an advanced medical support assistant position as
of December 29, 2014. By decision dated March 16, 2015, it issued a formal loss of wage-earning
capacity (LWEC) determination, based on her actual earnings, finding that the position of
advanced medical support assistant fairly and reasonably represented her wage-earning capacity
as she had been working in the position for over 60 days. OWCP further reduced appellant’s
compensation to $29.18 every 28 days, effective March 8, 2015, based on her ability to earn wages
of $903.84 per week as an advanced medical support assistant.
On July 9 and October 1, 2018 appellant filed a notice of recurrence (Form CA-2a) on each
date claiming that on April 10, 2018 she sustained a recurrence of disability causally related to her
August 12, 2012 employment injury. She indicated that her condition was chronic and that she
was still receiving medical treatment. On the reverse side of the claim form, appellant noted that
she stopped work on April 10, 2018 and returned to work on May 14, 2018.
Appellant submitted a work status note dated May 9, 2018 by Dr. Hersh, who indicated
that appellant was off work from April 10 to May 14, 2018. Dr. Hersh reported that due to an
ongoing chronic health condition, appellant would require a more controlled, reduced stress
environment, such as an office where there was a locked door or a key-entry door with a sliding
window between staff areas and patient waiting areas.
OWCP also received a May 14, 2018 letter by Dr. Lyudmila Rakita, a Board-certified
psychiatrist, who noted that in April 2018, appellant’s PTSD symptoms had increased to severe
levels, which required medication adjustment. Dr. Rakita indicated that after appellant’s anxiety
levels decreased she was able to return to work on May 14, 2018.
By decision dated January 7, 2019, OWCP denied modification of its March 16, 2015
LWEC decision. It found that the evidence of record failed to establish any of the three criteria
for modifying an LWEC determination and, as such, there was no entitlement to additional
compensation.
On January 22, 2019 appellant requested reconsideration. In a February 20, 2019 decision,
OWCP denied her request for reconsideration of the merits of the claim under 5 U.S.C. § 8128(a).
The Board has duly considered the matter and finds that the case is not in posture for
decision.
The record reflects that on March 16, 2015 OWCP issued a formal LWEC determination
and reduced appellant’s wage-loss compensation benefits because it found that the position of
advanced medical support assistant fairly and reasonably represented her wage-earning capacity.
On July 9 and October 1, 2018 appellant subsequently filed recurrence of disability claims alleging
that on April 10, 2018 she sustained a recurrence of her August 12, 2012 employment injury. On
2

the reverse side of the claim form, she noted that she returned to work on May 14, 2018. The
Board notes that OWCP developed and adjudicated the claim as a request for modification of an
LWEC determination. However, the record reflects that appellant has requested wage-loss
compensation for a limited period of disability, due to her accepted August 12, 2012 employment
injury.
The Board has held that OWCP may accept a limited period of disability without
modification of a formal LWEC determination.2 OWCP procedures provides that this occurs when
there is a demonstrated temporary worsening of a medical condition of insufficient duration and
severity to warrant a modification of an LWEC determination.3 This narrow exception is only
applicable for brief periods of medical disability.4 If the claimant is off work for a brief period
due to his or her temporary inability to perform the duties of the rated position, this period of
medical disability can be paid without modification of the LWEC determination.5 However, if a
formal LWEC determination has been issued, and the claimant requests resumption of
compensation for total wage loss, OWCP should evaluate the record according to customary
criteria for modifying a formal LWEC determination.6
In its January 7, 2019 decision, OWCP evaluated the claim without proper consideration
of the standard for a limited period of disability, finding that the evidence of record failed to
establish any of the three criteria for modifying an LWEC determination.
As appellant has submitted evidence documenting a claim for wage-loss compensation and
medical treatment for a limited period, April 10 to May 14, 2018, in accordance with its procedures
OWCP must evaluate the evidence under the standard for a limited period of disability.7 On
remand OWCP shall determine whether appellant has established that her disability for the period
in question was causally related to the accepted August 12, 2012 employment injury. Following
such further development of the case as OWCP deems necessary, it shall issue a de novo decision.

2

D.R., Docket No. 18-1197 (issued April 30, 2020); S.J., Docket No. 16-1195 (issued January 4, 2017);
Katherine T. Kreger, 55 ECAB 633 (2004).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501.10 (June 2013). See Order Remanding Case, G.P., Docket No. 19-1258 (issued July 14, 2020); T.G., Docket
No. 18-1064 (issued April 26, 2019).
4

Id.; L.T., Docket No. 18-0797 (issued March 14, 2019).

5

Supra note 3; see J.M., Docket No. 18-0196 (issued Jul 12, 2018).

6

Supra note 3.

7

G.P., Order Remanding Case, Docket No. 19-1258 (issued July 14, 2020).

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IT IS HEREBY ORDERED THAT the January 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings consistent
with this order of the Board.
Issued: March 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Syracuse, NY, Employer
__________________________________________

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

Docket No. 07-2319
Issued: March 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs dated July 3, 2007, denying modification of a
decision dated February 22, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this decision.
ISSUE
The issue is whether appellant sustained a traumatic injury on January 4, 2007 causally
related to her employment.
FACTUAL HISTORY
On January 10, 2007 appellant, then a 44-year-old nurse, filed a traumatic injury claim
alleging that on January 4, 2007 she sustained a left neck and shoulder condition after she lifted
two patients during her shift.

On January 16, 2007 the Office requested additional factual and medical information
from appellant.
In a January 6, 2007 progress note, Dr. Jeffrey A. Byrne, a chiropractor, noted that
appellant had a new complaint of severe occasional pain on the left side of the neck region. He
diagnosed cervical brachial radicular syndrome and both cervical and thoracic segmental somatic
dysfunction and measured the range of motion of her arms.
In a February 22, 2007 decision, the Office denied appellant’s traumatic injury claim.
The Office found that the claimed incident occurred but there was no evidence that appellant
sustained a diagnosed condition in connection with the incident.
On March 8, 2007 appellant requested a review of the written record. She submitted two
letters, the first dated March 9, 2007 from appellant’s employer to Dr. Byrne informing him that
appellant’s claim was denied. In a March 19, 2007 letter, Dr. Byrne’s office wrote to appellant
explaining the appeal process.
On July 3, 2007 the Office denied modification of the February 22, 2007 decision,
finding that there was no medical evidence of record to demonstrate that appellant sustained a
medical condition due to the lifting incident on January 4, 2007.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 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.2 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.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury.5
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

Elaine Pendleton, supra note 2.

5

John J. Carlone, 41 ECAB 354 (1989).

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Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 To establish causal relationship, appellant must submit a
physician’s report, in which the physician reviews the employment factors identified by
appellant as causing his condition and, taking these factors into consideration as well as findings
upon examination of appellant and his medical history, state whether the employment injury
caused or aggravated appellant’s diagnosed conditions and present medical rationale in support
of his or her opinion.7
Under section 8101(2) of the Act, chiropractors are only considered physicians and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.8 The Office’s regulations at 20 C.F.R. § 10.5(bb) define
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.9
ANALYSIS
Appellant alleged that she sustained a neck and shoulder injury on January 4, 2007 after
lifting two patients during her shift. The Office accepted that the employment incident occurred
as alleged. Therefore the issue is whether the employment incident caused a personal injury.
Appellant has not submitted any medical evidence to establish that she sustained a
diagnosed condition as a result of the employment incident. The only evidence submitted was a
progress report from Dr. Byrne, a chiropractor. In assessing the probative value of chiropractic
evidence, the initial question is whether the chiropractor is a “physician” as defined under
5 U.S.C. § 8101(2). A chiropractor is only considered to be a physician under the Act when a
spinal subluxation, as demonstrated by x-ray, is established to exist.10 As Dr. Byrne did not
diagnose any spinal subluxation based on an x-ray, he is not considered to be a physician under
the Act. A report may not be considered probative medical evidence unless it can be established
that the person completing the report is a physician.11 Consequentially, Dr. Byrne’s report is of
no probative medical value. Appellant has not submitted any medical evidence relating her left
neck and shoulder condition to the accepted incident. Therefore she has not established that she
sustained a personal injury in the performance of duty.

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

Id.

8

5 U.S.C. § 8101(2).

9

20 C.F.R. § 10.5(bb).

10

Mary A. Ceglia, 55 ECAB 626 (2004).

11

Thomas Agee, 56 ECAB 465 (2005).

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CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Wisconsin Rapids, WI, Employer
__________________________________________

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

Docket No. 20-1081
Issued: January 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 27, 2020 appellant, through counsel, filed a timely appeal from a December 16,
2019 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 an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On March 25, 2019 appellant, then a 65-year-old operations supervisor, filed a traumatic
injury claim (Form CA-1) alleging that on March 23, 2018 at 7:10 a.m., she sustained injuries to
her hands, wrists, left elbow, and left shoulder when she tripped on either a mat or a chair and fell
while in the performance of duty. On the reverse side of the claim form, a supervisor with the
employing establishment checked boxes marked “Yes” acknowledging appellant was injured
while in the performance of duty and that the facts about the injury agreed with statements from
appellant or witnesses. Appellant did not stop working.
In a development letter dated April 10, 2019, OWCP informed appellant that it had not
received any evidence in support of her claim. It advised of the deficiencies of her claim and
instructed her as to the type of medical evidence necessary to establish her claim. OWCP requested
that appellant provide a narrative report from her physician, explaining how the reported incident
caused or aggravated her medical condition. It afforded her 30 days to respond.
OWCP received work restrictions notes dated March 28 and April 5, 2019.
In a March 28, 2019 medical report, Dr. James A. Wilkes, a Board-certified orthopedic
surgeon, noted that appellant presented with bilateral shoulder pain after sustaining an injury at
work on March 23, 2019 when her toe got caught on the rug or on the corner of a chair, causing
her to fall forward onto her hand and jam her shoulders. Appellant described her pain as burning,
stabbing, dull, throbbing, aching, and sharp. She indicated that her pain was constant and increased
when sleeping on her shoulder. Dr. Wilkes conducted a physical examination and reviewed
appellant’s bilateral shoulder x-rays, which revealed normal alignment and no fracture. He
diagnosed bilateral shoulder pain.
In his April 5, 2019 medical report, Dr. Wilkes reiterated his diagnosis of bilateral shoulder
pain.
OWCP also received an April 5, 2019 occupational therapy prescription slip from an
unidentifiable healthcare provider.
In an undated authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care for a hand, wrist, and shoulder
injury. The date of injury was listed as March 13, 2019. In an attending physician’s report, Part
B of the Form (CA-16), dated April 26, 2019, Dr. Wilkes advised that appellant caught her foot
on a rug or chair and fell. He diagnosed bilateral shoulder pain. Dr. Wilkes prescribed therapy
and an anti-inflammatory. By decision dated May 9, 2019, OWCP denied appellant’s claim,
finding that the evidence of record was insufficient to establish that the March 23, 2018
employment incident occurred as alleged or that she sustained a diagnosed medical condition. It

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concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
In an undated letter, appellant clarified that her injury actually occurred on March 23, 2019,
not March 23, 2018 as shown in her original Form CA-1. She also resubmitted the first page of
the Form CA-1, which was identical to the original Form CA-1, except that it indicated that
March 23, 2019 was the date of injury.
On October 1, 2019 appellant requested reconsideration. In an attached September 5, 2019
letter, she indicated that her date of injury was incorrectly stated in her initial Form CA-1.
Appellant reiterated that her injury occurred on March 23, 2019 and explained that she did not
have medical evidence at the time of filing her claim because she had not seen a physician.
Appellant’s daughter, in an undated statement, alleged that on the date of injury her mother
informed her that she fell and hurt her arms at work that day. She indicated that appellant had
bruising on her arms and elbows from the fall, and her pain did not improve over the weekend.
Appellant’s daughter explained that her mother had continued to work despite her pain because
her manager was out of the office for an extended period.
Appellant underwent occupational therapy treatments from April 16 through
May 23, 2019. In an April 9, 2019 occupational therapy evaluation report, Kasey L. Fancher, an
occupational therapist, noted that appellant fell at work after tripping over a rug and landed on her
outstretched hands, causing bilateral shoulder pain.
In a May 7, 2019 medical report, Dr. Wilkes indicated that appellant presented with
shoulder pain on the left shoulder joint and noted her date of injury as March 23, 2019. He
diagnosed left shoulder pain and ordered a magnetic resonance imaging (MRI) scan of the left
shoulder.
In a May 15, 2019 witness statement, W.M., appellant’s coworker, asserted that around
7:00 a.m. on March 23, 2019, she and other coworkers heard a sound from the front reception area
of the office. She noted that no one saw what happened, but everyone assumed that appellant was
doing something in the area. W.M. reported that appellant subsequently approached her desk and
notified her that she had taken a bad fall in the reception area. Appellant showed her bruised hands
and wrists to W.M. and other coworkers. She also informed W.M. that she hit her left shoulder
“pretty hard” on the floor. W.M. suggested that appellant seek immediate medical assistance.
A May 28, 2019 MRI scan of the left shoulder revealed high-grade partial thickness tearing
of the supraspinatus and infraspinatus tendons with a suspected full-thickness component of the
distal supraspinatus tendon, atrophy of the teres minor muscle, an anterior labral tear, as well as
glenohumeral joint and subacromial/subdeltoid bursal fluid.
In a May 31, 2019 medical report, Dr. Wilkes indicated that appellant was following up on
left shoulder pain and limited range of motion that she experienced for two months since her fall.
He reviewed the MRI scan of appellant’s left shoulder and diagnosed strain of muscle(s) and
tendon(s) of the rotator cuff of the left shoulder.

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By decision dated December 16, 2019, OWCP denied modification of the May 9, 2019
decision, finding that the evidence of record was insufficient to establish that the employment
incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined 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, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an

3

Supra note 2.

4
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

4

injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.9
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant initially filed a Form CA-1 on March 25, 2019, alleging that she had sustained
injuries on March 23, 2018 when she tripped on a mat or a chair at approximately 7:10 a.m. On
the reverse side of the Form CA-1, a supervisor with the employing establishment indicated, by
checking boxes marked “Yes,” that she was injured while in the performance of duty and that the
facts of the injury were consistent with her and witness statements. Following OWCP’s initial
denial of the claim, appellant, in an undated letter received by OWCP on May 13, 2019, clarified
that her injury actually occurred on March 23, 2019, not March 23, 2018. She resubmitted the first
page of the Form CA-1, which now indicated that March 23, 2019 was the date of injury. In her
request for reconsideration, appellant again clarified her date of injury, explaining that her date of
injury was incorrectly stated in her initial Form CA-1. In a May 15, 2019 witness statement,
appellant’s coworker also attested that appellant notified her on March 23, 2019 that she fell earlier
that day and showed her bruised hands and wrists. She stated that she and other coworkers heard
a sound earlier in the reception area, where appellant allegedly fell.
The Board finds that appellant established that the employment incident occurred as
alleged, on March 23, 2019. The May 15, 2019 witness statement, coupled with Dr. Wilkes’
medical reports dated March 28, and May 7 and 31, 2019, which consistently indicated that
appellant’s date of injury was March 23, 2019, as well as appellant’s subsequent clarification
establish that the alleged incident occurred on March 23, 2019. Moreover, appellant has provided
a single account of the mechanism of injury that has not been refuted by any evidence in the
record.10 As noted above, a claimant’s statement that an injury occurred at a given time and place,
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.11 Furthermore, the Board notes that the employing establishment executed
an Authorization for Medical Treatment (Form CA-16) indicating a date of injury of March 23,
2019 for hand, wrist and shoulder injuries. The Board therefore finds that appellant has established
that the March 23, 2019 employment incident occurred in the performance of duty, as alleged.
As appellant has established that the March 23, 2019 employment incident factually
occurred in the performance of duty, the question becomes whether this incident caused her
diagnosed conditions.12 The Board will therefore remand the case for consideration of the medical
evidence on the issue of causal relationship. Following such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden

9

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

10

B.S., Docket No. 19-0524 (issued August 8, 2019).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See G.G., Docket No. 19-0490 (issued October 3, 2019).

5

of proof to establish an injury causally related to the accepted March 23, 2019 employment
incident.13
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

The Board notes that the employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment
properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an
employment-related injury, it creates a contractual obligation which does not involve the employee directly to pay the
cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300 and 10.304;
R.W., Docket No. 18-0894 (issued December 4, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DELIVERY
PLANT, Kearney, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-3
Issued: July 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2009 appellant filed a timely appeal of a July 6, 2009 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of the
case.1

1

The last merit decision was the February 19, 2009 decision of an Office hearing representative affirming, as
modified, an August 1, 2008 decision denying appellant’s claim. For Office decisions issued prior to November 19,
2008, a claimant had up to one year to file an appeal. As more than one year has elapsed between the Office’s
issuance of its August 1, 2008 decision and appellant’s September 21, 2009 filing of an appeal with the Board, the
Board does not have jurisdiction over this decision. An appeal of Office decisions issued on or after November 19,
2008 must be filed within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008). Appellant’s appeal was untimely
filed from the February 19, 2009 decision as more than 180 days passed between appellant’s September 21, 2009
appeal and the issuance of this decision.

ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
her claim under 5 U.S.C. § 8128.
On appeal appellant, through her attorney, argues that a November 19, 2008 medical
report establishes that appellant’s C5-6 cervical radiculopathy and bilateral carpal tunnel
syndrome is due to the repetitive nature of her work. Counsel further argues that the employing
establishment withdrew a limited-duty work assignment such that appellant established a
recurrence of her 1991 employment injury.
FACTUAL HISTORY
On April 29, 2008 appellant, then a 49-year-old clerk, filed a notice of recurrence of
disability due to a May 14, 1991 employment injury commencing on March 14, 2008, under
Office File No. xxxxxx689.2 Appellant stated that, after treatment for her carpal tunnel
syndrome and back problems, she returned to work with restrictions; however, the employing
establishment sent her home from her limited-duty assignment. The employing establishment
controverted appellant’s claim, stating that the Office had denied her claim and she was no
longer considered a limited-duty case. On April 29, 2008 Edgar R. Brown, from the employing
establishment, further explained the controversion, noting that there were no changes to
appellant’s work assignment nor did she submit medical evidence establishing that her condition
had worsened.
Appellant submitted an April 17, 2008 report from Dr. Mark A.P. Filippone, a Boardcertified physiatrist, who noted that she had bilateral carpal tunnel syndrome and cervical
radiculopathy which appeared to be caused by a work injury of May 4, 1991.
By letter dated June 30, 2008, the Office informed appellant that her recurrence claim
would be adjudicated as a new claim, assigned the current Office file number. It requested that
she submit evidence in support of her claim, noting that the medical evidence did not establish
the factual basis for her claim that her conditions resulted from factors of federal employment.
In an August 1, 2008 decision, the Office denied appellant’s claim for benefits. It
accepted that appellant experienced the claimed incident. However, the Office found that the
medical evidence was insufficient to establish the diagnosis in connection with the claimed
evidence of March 14, 2008, noting that Dr. Filippone never indicated work activities that
appellant was performing on March 14, 2008.
By letter dated August 6, 2008, appellant, through her attorney, requested a hearing. On
December 4, 2008 appellant, through her attorney, submitted an offer of modified assignment
(limited duty) by the employing establishment dated July 11, 2007, which she accepted on
July 21, 2007. Appellant’s attorney argued that although the limited-duty assignment was made
in connection with the claim for appellant’s low back injury on April 12, 2007, he suggested that

2

The Office accepted this claim for right wrist tendinitis.

2

the restrictions were also placed relative to appellant’s prior left wrist injury under Office File
No. xxxxxx689.
At the hearing held on December 2, 2008, appellant testified that she began working with
the employing establishment in 1988, described several claims she filed under the Act, and
described her job duties in various positions with the employing establishment, including her
limited-duty assignments. She was working limited duty on March 14, 2008 when the
employing establishment sent her home.
In a November 14, 2008 report, Dr. Filippone opined that appellant still had clinical
evidence of left C5-6 cervical radiculopathy and bilateral carpal tunnel syndrome which were the
result of injuries sustained while working at the employing establishment. In a November 19,
2008 report, he reiterated that appellant still had clinical evidence of left C5-6 cervical
radiculopathy and bilateral carpal tunnel syndrome, that “within reasonable medical probability”
these conditions resulted from the repetitive nature of her work at the employing establishment
and were sustained while at work since May 1988.
In a February 19, 2009 decision, an Office hearing representative determined that
appellant had not established that an incident or injury occurred on March 14, 2008. He noted
that she was working in a “bid” position from 1997 until 2007, not in a limited-duty assignment.
The hearing representative did not address the medical evidence as she found that appellant had
not established that an employment incident occurred, as alleged.
On April 29, 2009 appellant, through her attorney, requested reconsideration. He
resubmitted Dr. Filippone’s November 19, 2008 report. Counsel contended that appellant had
provided prima facie evidence of an occupational disease claim as she testified that her work for
the employing establishment involved repetitive work.
In a decision dated July 6, 2009, the Office denied appellant’s request for reconsideration
as the arguments and evidence submitted in support of appellant’s request were not sufficient to
warrant review of the prior decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

3

of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
On appeal, appellant’s attorney makes various arguments with regard to the merits of the
case. However, as previously stated, the Board does not have jurisdiction to review the merits of
this case as appellant’s September 21, 2009 filing date for this appeal was more than one year
after the Office issued its August 1, 2008 decision and more than 180 days after the issuance of
the Office hearing representative’s February 19, 2009 decision.7
All of appellant’s arguments set forth on reconsideration with regard to the merits of the
case had previously been made and rejected by the Office. Appellant did not make any new
argument that the Office erroneously applied or interpreted a specific point of law nor did she
advance a relevant legal argument not previously considered by the Office. The medical
evidence, i.e., the November 2008 reports by Dr. Filippone, were in the record at the time of the
Office’s February 19, 2009 decision. The hearing representative’s decision did not contain a
discussion of these reports because appellant’s claim was denied due to the fact that she did not
establish that an incident occurred as alleged, making discussion of the medical evidence
unnecessary.8
The Board therefore finds that appellant did not meet any of the standards of 20 C.F.R.
§ 10.606(b)(2). Accordingly, the Office properly denied the application for reconsideration
without review of the merits of the claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim under 5 U.S.C. § 8128.

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See supra note 1.

8

See S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007) (where a claimant did not establish an
employment incident alleged to have caused his or her injury, it was not necessary to consider the medical
evidence.)

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 6, 2009 is affirmed.
Issued: July 16, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Calexico, CA, Employer
__________________________________________

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

Docket No. 18-0624
Issued: February 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 30, 2018 appellant filed a timely appeal from a November 22, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on September 26, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 22, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 27, 2017 appellant, then a 55-year-old customs and border protection
officer, filed a traumatic injury claim (Form CA-1) alleging that, on September 26, 2017, she
sustained a left shoulder injury while in the performance of duty when, during defensive tactics
training, she pulled/strained her left shoulder muscle near the rotator cuff. She did not stop work.
On the reverse side of the claim form, appellant’s supervisor checked a box marked “Yes”
indicating that appellant had been injured while in the performance of duty as his knowledge of
the facts about the claimed injury agreed with her statement.
In an October 17, 2017 development letter, OWCP advised appellant of the factual and
medical deficiencies in her claim. It informed her of the type of evidence necessary to establish
her claim and provided a questionnaire for her completion regarding the facts and circumstances
of the injury. OWCP afforded appellant 30 days to respond.
In response appellant submitted reports dated September 28 and October 11, 2017 from
Dr. Christopher C. Lai, a Board-certified orthopedic surgeon, who diagnosed strain of muscles and
tendons of the rotator cuff of the left shoulder. Dr. Lai noted that appellant had complained of left
shoulder pain since September 26, 2017 after performing training where she was “attacking and
also being defensive” at work. He further indicated that she was doing a significant amount of
stabbing and defending motions and following those activities she had severe pain of the left
shoulder. The pain was anteriorly and laterally and appellant subsequently had pain with overhead
activities and reaching behind her back. She had no numbness, tingling, or instability. Dr. Lai
opined that her symptoms were due to the injury she sustained on September 26, 2017 while
working as an officer.
On September 27, 2017 the employing establishment executed an authorization for medical
examination and/or treatment (Form CA-16) allowing treatment for left shoulder muscle strain.
An x-ray report dated September 27, 2017 noted a normal left shoulder.
By decision dated November 22, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the September 26, 2017 employment incident
occurred as alleged. It noted that she had not responded to the questionnaire provided with the
October 17, 2017 development letter. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

related to the employment injury.4 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.5
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Fact of injury
consists of two components that must be considered conjunctively. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
that is alleged to have occurred.7 Second, the employee must submit sufficient medical evidence
to establish that the employment incident caused a personal injury.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action. An employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant’s September 27, 2017 Form CA-1 alleged that she sustained a left shoulder
injury during defensive tactics training when she pulled/strained her left shoulder muscle near the
rotator cuff. The employing establishment noted its agreement with the claimed mechanism of
injury. Dr. Lai’s medical reports diagnosed strain of muscles and tendons of the rotator cuff of the
left shoulder and noted that appellant had complained of left shoulder pain since September 26,
2017 after performing training in which she was “attacking and also being defensive” at work. He
further indicated that she was doing a significant amount of “stabbing and defending motions” and
following that she had severe pain of the left shoulder. Appellant’s description of the employment
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

C.B., Docket No. 18-0071 (issued May 13, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine
Pendleton, 40 ECAB 1143 (1989).
8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

10

D.R., Docket No. 19-0072 (issued June 24, 2019).

3

incident is not contradicted by her medical reports or any other evidence of record. Moreover, she
sought medical treatment shortly after her injury, just two days following the employment incident.
Appellant’s account of the alleged incident is consistent with the surrounding facts and
circumstances and her subsequent course of action does not cast doubt on the validity of the claim.
Thus, the Board finds that given the above-referenced evidence, she has alleged with specificity
that the incident occurred at the time, place, and in the manner alleged.11
As appellant has established that the September 26, 2017 employment incident occurred as
alleged, the question becomes whether this incident caused a personal injury.12 Thus, the Board
will set aside OWCP’s November 22, 2017 decision and remand the case for consideration of the
medical evidence. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision addressing whether appellant has met her burden of proof to
establish causal relationship.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

Id.

12

See B.S., Docket No. 19-0524 (issued August 8, 2019); Willie J. Clements, 43 ECAB 244 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 24, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
League City, TX, Employer
__________________________________________

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Appearances:
Kenneth W. Claxton, for the appellant
Office of Solicitor, for the Director

Docket No. 09-2336
Issued: June 22, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant, through his representative, filed a timely appeal from a
July 2, 2009 decision of the Office of Workers’ Compensation Programs, which denied his
reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
May 15, 2008 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).1
ISSUE
The issue on appeal is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

For final Office decisions issued prior to November 19, 2008, a claimant had up to one year from the date of
issuance to file a Board appeal. See 20 C.F.R. § 501.3(d)(2). For final Office decisions issued on or after
November 19, 2008, a claimant has 180 days from the date of issuance to file a Board appeal. See 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On May 14, 2007 appellant, then a 38-year-old mail carrier, filed an occupational disease
claim alleging that his neck, back, knees, ankles, shoulders and hand pain conditions were
employment related. He stated that he first became aware of his condition and that it was not
until April 17, 2007 that he realized it was employment related.
In a letter dated June 8, 2007, the Office informed appellant that the evidence of record
was insufficient to support his claim and advised him of the medical and factual evidence
required to support his claim. Appellant was given 30 days to provide the requested information.
No information was received by the Office within the allotted time.
By decision dated July 12, 2007, the Office denied appellant’s claim on the grounds that
he failed to establish fact of injury in his occupational disease claim.
Subsequent to the decision, the Office received medical and factual information including
an April 25, 2007 magnetic resonance imaging (MRI) scan of his left knee; reports dated
April 18 and May 2, 2007 from Dr. Ian J. Reynolds, an examining Board-certified orthopedic
surgeon; information regarding carrier’s work duties and responsibility; and appellant’s undated
statement attributing his conditions to the repetitive duties of his work. Dr. Reynolds, in an
April 18, 2007 report, diagnosed multiple pains of unknown etiology. In his May 2, 2007 report,
Dr. Reynolds diagnosed degenerative changes as a result of ordinary life and recommended that
appellant remain off work until his left knee surgery was performed.
On July 23, 2007 appellant requested reconsideration. In support of his request, he
submitted a July 19, 2007 report from Dr. Andrew K. Lee, an examining Board-certified
orthopedic surgeon with a subspecialty of hand surgery. Dr. Lee, based on a review of objective
evidence and a physical examination, noted that appellant worked as a mail carrier and
diagnosed bilateral carpal tunnel syndrome, resolving bilateral hand tenosynovitis, bilateral
pronator syndrome, right shoulder impingement syndrome, bilateral wrist degenerative joint
disease and bilateral meniscal knee tears. He concluded that these conditions were due to
appellant’s work activities.
By decision dated September 24, 2007, the Office denied modification of the July 12,
2007 decision.
Following the issuance of the September 24, 2007 decision, the Office received April 24,
2007 MRI scans of the both elbows and lumbar spine; April 23, 2007 MRI scans of the cervical
spine and both shoulders; April 25, 2007 MRI scans of the both wrists and both knees; a July 5,
2007 report from Dr. Joseph Dang, an examining Board-certified physiatrist, diagnosing right
carpal tunnel syndrome; and reports dated July 19 and October 23, 2007 from Dr. Lee. In his
October 23, 2007 report, Dr. Lee noted appellant’s occupation as a mail carrier and diagnosed
bilateral carpal tunnel syndrome, bilateral pronator syndrome, right shoulder impingement
syndrome, bilateral wrist osteoarthritis and right knee lateral and medial meniscal tear. He again
opined that these conditions were employment related.

2

On October 23, 2007 appellant requested reconsideration and submitted an April 30,
2007 bone scan from Dr. Javier Villanueva Meyer, an examining physician, in support of his
request. Dr. Meyer diagnosed mild arthritic changes in the shoulder joints and patellofemoral
knee joints.
By decision dated May 18, 2008, the Office found the medical evidence established the
conditions of bilateral carpal tunnel syndrome and right knee meniscus tear, but insufficient to
establish a causal relationship between the diagnosed conditions and appellant’s employment.
Thus, it modified the denial of the claim to reflect that appellant failed to establish that the
diagnosed conditions were employment related. In an attached statement of appeal rights, the
Office notified appellant that, if he had any additional evidence or legal argument that he
believed would establish his claim, he could request in writing that the Office reconsider its
decision. It advised that any such request must be made within one calendar year of the date of
the decision and must be accompanied by relevant evidence not previously submitted. The
Office attached an appeal request form which instructed appellant how to make an application
for reconsideration and where to send it.
Appellant requested assistance from a Congressman with his compensation claim and
signed an authorization form. In a November 13, 2008 letter, a congressional representative
stated that appellant had contacted his office “concerning his plight with Workers’
Compensation.” He requested the Office to review appellant’s claim “and provide information
that will help resolve his concerns.” In a reply dated November 28, 2008, the Office summarized
appellant’s case history and noted that on May 18, 2008, the Office modified the denial of
appellant’s claim to reflect that causal relationship had not been established. It noted that
appellant would have to exercise the appeal rights mentioned in that decision if he believed that
he had met his burden of proof.
On June 5, 2009 the Office received appellant’s written June 2, 2009 reconsideration
request and a June 27, 2008 report from Dr. Lee, who provided an employment history, physical
findings and noted that he reviewed MRI scans. Dr. Lee diagnosed bilateral carpal tunnel
syndrome and bilateral pronator syndrome. He concluded by stating that it was his opinion that
these conditions were employment related.
By decision dated July 2, 2009, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and that he did not present clear
evidence of error by it.2 It found Dr. Lee’s report was repetitive of his prior reports in that he
merely restated his opinion.

2

The Board notes that, following the July 2, 2009 nonmerit decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); M.B., 60 ECAB __
(Docket No. 09-176, issued September 23, 2009); J.T., 59 ECAB __ (Docket No. 07-1898, issued January 7, 2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.4 To be entitled to a merit review of an Office 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.5 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.6
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.7 The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.8 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.9
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
request for reconsideration. The Office procedures provide that the one-year time limitation
3

5 U.S.C. § 8101 et seq.

4

20 C.F.R. § 10.605.

5

Id. at § 10.607(a).

6

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr., 41
ECAB 104 (1989).
7

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991). See
E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009).
9

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007); Alberta
Dukes, 56 ECAB 247 (2005).

4

period for requesting reconsideration begins on the date of the original Office decision.10
However, a right to reconsideration within one year also accompanies any subsequent merit
decision on the issues.11
The last decision on the merits of appellant’s case was the Office’s May 18, 2008
decision modifying the denial of his claim to reflect that the evidence established the conditions
of bilateral carpal tunnel syndrome and right knee meniscus tear, but was insufficient to establish
causal relationship. Appellant had one year from the date of that decision to request
reconsideration from the Office. The attached statement of appeal rights properly notified him of
this time limitation and, together with the attached appeal request form, instructed appellant how
to prepare an application for reconsideration and where to send it. Appellant did not follow these
instructions. These were the same instructions he successfully followed when he made his
July 23 and October 23, 2007 applications for reconsideration. The Office granted those
applications and reopened his case for a review on the merits, but in the calendar year following
the Office’s May 18, 2008 merit decision, appellant did not complete the appeal request form,
did not send it to the Office at the address given on that form, did not write reconsideration
request on the outside of the envelope and did not submit pertinent new and relevant evidence
not previously submitted. He corresponded instead with his congressional representative. It was
not until June 2, 2009 that appellant sent the Office an application for reconsideration. As he
made this application more than 12 months after the Office’s May 18, 2008 merit decision, the
Board finds that the Office properly found that the application was untimely.
The issue for purposes of establishing clear evidence of error in this case is whether
appellant submitted evidence establishing that there was an error in the Office’s finding that he
did not establish that the diagnosed conditions were causally related to his employment.
Appellant has not established clear evidence of error by the Office in this regard. He did not
submit the type of positive, precise and explicit evidence or argument which manifests on its face
that the Office committed an error.
In support of his request for reconsideration, appellant submitted a June 27, 2008 report
from Dr. Lee, who diagnosed bilateral carpal tunnel syndrome and bilateral pronator syndrome,
which he attributed to appellant’s employment duties. However, this evidence is insufficient to
establish that the Office erred in its denial of appellant’s claim. Dr. Lee did not provide any
medical rationale explaining his conclusion that appellant’s conditions were employment related.
The Board notes that clear evidence of error is intended to represent a difficult standard.
Evidence such as a detailed well-rationalized medical report which, if submitted before the merit
denial might require additional development of the claim, is insufficient to establish clear
evidence of error.12 Dr. Lee’s report does not raise a substantial question as to the correctness of
the Office’s May 15, 2008 merit decision or demonstrate clear evidence of error. The Office
properly found that appellant’s reconsideration does not establish clear evidence of error.
10

20 C.F.R. § 10.607(a); see A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

11

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Robert F. Stone, 57 ECAB 292 (2005).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c)
(January 2004).

5

On appeal appellant contends that the Office failed to consider Dr. Lee’s June 27, 2008
report when it denied his request for reconsideration. He also contends that prior to joining the
employing establishment he had no injuries or medical conditions. Contrary to appellant’s
contention, the Office did consider Dr. Lee’s report in its July 2, 2009 nonmerit decision and
found the report repetitive of his prior reports. Appellant’s contention that he had no medical
condition prior to his work at the employing establishment fails to establish clear evidence of
error. The Board has held the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.13
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 2, 2009 is affirmed.
Issued: June 22, 2010
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

13

Roy L. Humphrey, 57 ECAB 238 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
DEPOT, Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1282
Issued: March 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 20, 2009 appellant filed an appeal of the March 23, 2009 decision of the Office
of Workers’ Compensation Programs that affirmed the termination of wage-loss compensation
on the grounds that he refused an offer of suitable work. 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 compensation benefits
effective February 17, 2008 pursuant to 5 U.S.C. § 8106(a).
On appeal, appellant contends that he is totally disabled.

FACTUAL HISTORY
This case has previously been before the Board. The facts and the law as set forth in the
Board’s prior decision are hereby incorporated by reference.1
The Office accepted appellant’s claim for sprain of the lumbar region; degeneration of
lumbar or lumbosacral intervertebral disc and displacement of a lumbar intervertebral disc
without myelopathy. It paid appropriate compensation and disability benefits.
By letter dated June 11, 2007, the Office referred appellant to Dr. Robert E. Holladay, IV,
a Board-certified orthopedic surgeon, for a second opinion. In a report dated July 5, 2007,
Dr. Holladay listed diagnoses of degenerative disc disease, lumbar spine; strain and sprain,
lumbar spine and protruding disc, lumbar spine. He indicated that appellant would have
difficulty performing his previous work activities. Dr. Holladay recommended restricted
activities particularly with standing and walking activities. He noted that appellant could
perform activities in a sedated position with the use of upper extremities for grasping, fine
manipulation, pushing, pulling and reaching overhead. Dr. Holladay completed a work capacity
evaluation form indicating that appellant was limited to working a four-hour workday. He noted
further restrictions in that appellant was unable to walk more than two hours or stand more than
one hour. Dr. Holladay recommended reaching above the shoulder for less than one hour.
Pushing, pulling and lifting was limited to less than 10 pounds and he was prohibited from lifting
more than one hour a day. Dr. Holladay indicated that appellant could perform no twisting,
bending/stooping, squatting, keeling or climbing.
The Office forwarded the report of Dr. Holladay to appellant’s treating Board-certified
orthopedic surgeon, Dr. J.T. DeHaan, who indicated that he did not concur with Dr. Holladay’s
report. Dr. DeHaan indicated that he did not believe that appellant could walk or stand for three
hours in a four-hour workday because his degenerative disc disease and degenerative joint
disease of the spine were causing spinal stenosis. He also opined that appellant’s medications
would preclude him from returning to work. Dr. DeHaan completed a work capacity evaluation
indicating that appellant could only work 1 to 2 hours a day, and limited sitting to 1 hour at a
time, walking to 100 to 200 yards at a time and standing to 5 to 10 minutes at a time. He
prohibited pushing, pulling and lifting of any weight; prohibited squatting, kneeling, climbing,
twisting and bending/stooping. Dr. DeHaan indicated that appellant could not operate a motor
vehicle due to the medication he was taking. He believed that these restrictions were permanent.
The Office found a conflict in medical opinion between appellant’s treating physician,
Dr. DeHaan, and the second opinion physician, Dr. Holladay, with regard to her capacity for
work. By letter dated October 15, 2007, it referred appellant to Dr. Marco Ochoa, a Boardcertified orthopedic surgeon, for an impartial medical examination.
In an October 30, 2007 report, Dr. Ochoa diagnosed appellant with lumbar discogenic
syndrome. He indicated that the residuals of appellant’s work incident had not resolved in that
appellant was still symptomatic and radiating pain, but noted he was stable. Dr. Ochoa indicated
that appellant was unable to return to his occupation as it required a lot of bending, pushing,
1

Docket No. 99-1907 (issued May 22, 2001).

2

pulling, lifting, carrying and overreaching, etc. He further noted that appellant was also unable
to tolerate a prolonged sitting position and that he could only stand in one position. Dr. Ochoa
indicated that appellant had to change his posture frequently because of complaints of pain. He
completed a work capacity evaluation indicating that appellant could not perform his usual job,
but that he was able to work four hours per day with restrictions. Dr. Ochoa prohibited appellant
from twisting, bending/stooping, operating a motor vehicle, squatting, kneeling and climbing.
He noted that appellant could only sit, walk and stand for 10 minutes at a time. Dr. Ochoa
limited him to pushing, pulling and lifting 10 pounds or less for 10 minutes (upper body only).
He required that appellant have breaks lasting 2 to 3 minutes every 30 minutes.
In a November 7, 2007 medical report, Dr. DeHaan indicated that he last saw appellant
on July 9, 2007. He noted that the effects of appellant’s work injury persist and prevent him
from returning to his usual job. Dr. DeHaan further noted that at this point he cannot perform
any activities which include walking, standing or prolonged sitting.
On November 13, 2007 the employing establishment offered appellant a position as a
clerk. The employing establishment indicated that the position was within the reporting
physician’s limitations. The employing establishment noted that the position was light duty
(primarily sedentary) with no pushing, pulling or lifting over 10 minutes of over 10 pounds. The
position would require appellant to provide general office support and assistance.
By letter dated December 4, 2007, the Office found that the above job offer was suitable
and was in accordance with the medical limitations provided by Dr. Ochoa in his October 30,
2007 report. It noted that the employing establishment confirmed that the position remained
available, and informed appellant that he had 30 days from the date of the letter to accept the
position or provide a written explanation of his reason for refusing the position. The Office
informed appellant that, if he failed to report for the offered position and failed to demonstrate
that his failure to report was justified, his right to compensation and schedule award will be
terminated.
Appellant submitted a statement indicating that he declined the job offer noting that his
“current medical condition continues to degrade from the original injury.” He argued that the
position was not within his medical restrictions. Appellant contended that he feared any attempt
to fulfill such duties would subject him to increased experiences of pain, unreasonable risk of
increased injury/disability, would impair any opportunity to fully heal and would possibly
subject him to disciplinary action for inability to complete or attempt duties due to experiencing
pain or other physical limitations.
By letter dated January 8, 2008, the Office informed appellant that it considered his
reasons for not accepting the position to not be valid. It provided appellant 15 more days to
accept the position, and noted that, if he did not accept the position within this time period, his
entitlement to wage-loss and schedule award benefits will be terminated.
Appellant submitted a January 7, 2008 report by Dr. DeHaan wherein he indicated that
appellant still could not do anything without exacerbations of pain. Dr. DeHaan opined that it
would not be advisable for appellant to return to light-duty work, noting that he was taking
narcotic medications and could put himself and/or other people at harm due to this.

3

By decision dated January 24, 2008, the Office terminated appellant’s wage-loss and
schedule award compensation due to his failure to accept suitable work effective
February 17, 2008.
On December 12, 2008 appellant requested reconsideration. Evidence submitted after the
January 24, 2008 decision included, inter alia, reports from Dr. Thomas A. Hunley, a Boardcertified anesthesiologist, indicating that he gave appellant repeated epidural steroid injections
for treatment of his low back pain, including injections on March 26 and 31, April 10 and
October 8, 2008. Appellant also saw Dr. DeHaan on May 7 and September 15, 2008. In his
September 15, 2008 report, Dr. DeHaan noted treatment for follow up on his chronic lower back
pain with lumbar degenerative arthritis and degenerative disc disease. He noted no change in his
symptoms or status. Appellant also submitted numerous documents that had been in evidence
before the January 24, 2008 decision.
By decision dated March 23, 2009, the Office denied modification of its prior decision.
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.2 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.3 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.4 To justify
termination, the Office must show that the work offered was suitable and that appellant was
informed of the consequences of a refusal to accept such employment.5 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 demonstrated
commuting area, the employee’s qualifications to perform such work and other relevant factors.6
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.7
Section 8106(c) will be narrowly construed as it serves as a penalty provision which may bar an

2

5 U.S.C. § 8106(c)(2).

3

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

4

20 C.F.R. § 10.517(a).

5

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
6

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

7

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).

4

employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.8
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.9 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.10
Section 8123(a) of the 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.11 When 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 on a proper factual background, must be
given special weight.12
ANALYSIS
The Office accepted appellant’s claim for sprain of the back lumbar region, degeneration
of lumbar or lumbosacral intervertebral disc and displacement of lumbar intervertebral disc
without myelopathy as a result of the accepted work incident. The second opinion physician,
Dr. Holladay, opined that appellant could return to work for four hours a day with restrictions
that included pushing/pulling 10 pounds for one hour a day, walking two hours a day and
standing for one hour a day. He noted that appellant could perform a sedentary job and could sit
for four hours. Appellant’s treating physician, Dr. DeHaan disagreed, and indicated that
appellant had more severe limitations, including working only 1 to 2 hours a day, sitting limited
to 1 hour at a time, walking limited to 100 to 200 yards at a time and standing to 5 to 10 minutes
at a time. Due to the difference in medical opinion between appellant’s treating physician and
the second opinion physician with regard to appellant’s limitations, the Office properly referred
appellant for an impartial medical examination. Dr. Ochoa, the impartial medical examiner,
found that appellant could return to work four hours a day with restrictions. His work
restrictions prohibited appellant from twisting, bending/stooping, operating a motor vehicle,
squatting, kneeling and climbing. Dr. Ochoa noted that appellant could only sit, walk and stand
10 minutes at a time. He limited appellant to pushing, pulling and lifting 10 pounds or less for
10 minutes. Dr. Ochoa required appellant to have breaks lasting 2 to 3 minutes every 30
minutes.
On November 27, 2007 the employing establishment offered appellant a position as a
clerk. The Office determined that this position was suitable. However, the Board finds that the
8

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

9

Gayle Harris, 52 ECAB 319 (2001).

10

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

11

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

12

Manuel Gill, 52 ECAB 282 (2001).

5

job description and offer did not sufficiently set forth the physical restrictions for the clerk
position. In the November 27, 2007 letter offering the position to appellant, the employing
establishment stated that the position was “within the limitations given by the reporting
physician.” The employing establishment did not specifically state which physician was the
“reporting physician.” It is not clear whether the position is within the restrictions as set forth by
Dr. Ochoa. The employing establishment noted that the position was light duty, primarily
sedentary, and involved no pushing, pulling and lifting over 10 minutes/pounds. The Board
notes that Dr. Ochoa limited appellant to sitting 10 minutes at a time, and 10 minutes of walking
and standing at a time. The offered job did not list these restrictions. There is no indication that
the prohibitions against twisting, bending/stooping, operating a motor vehicle, squatting,
kneeling and climbing were honored. Furthermore, there is no recognition that appellant was to
be given 2- to 3-minute breaks every 30 minutes, as required by Dr. Ochoa. The Office did not
address how appellant could perform the clerk position in light of these limitations.
The Board finds that the Office did not establish that the clerk position offered by the
employing establishment was suitable based on appellant’s restrictions. The Office did not meet
its burden of proof to terminate appellant’s compensation benefits effective February 17, 2008.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation benefits
effective February 17, 2008 pursuant to 5 U.S.C. § 8106(a).13

13

Appellant submitted additional evidence after the Office’s March 23, 2009 decision. However the Board
cannot consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the
evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 23, 2009 is reversed.
Issued: March 15, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7