United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, CHELSEA CARRIER
ANNEX, Chelsea, MA, Employer
__________________________________________

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Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1112
Issued: August 24, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 6, 2020 appellant, through counsel, filed a timely appeal from a March 9, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, counsel asserted that oral argument should be granted because appellant’s
compensation should not have been suspended for refusal to attend an impartial medical examination as a conflict did
not exist in appellant’s physical examination findings. The Board, in exercising its discretion, denies appellant’s
request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a
review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve
a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s entitlement to compensation
benefits, pursuant to 5 U.S.C. § 8123(d), effective March 9, 2020, due to his failure to attend a
scheduled medical examination.
FACTUAL HISTORY
On May 15, 2017 appellant, then a 54-year-old supervisor, filed an occupational disease
claim (Form CA-2) alleging that his job duties over the years caused or aggravated his right hip
and right knee conditions. He noted that he first became aware of his conditions and realized their
relation to his federal employment on April 7, 2017. OWCP accepted the claim for permanent
aggravation of preexisting right hip osteoarthritis and ongoing aggravation of mild preexisting
osteoarthritis of the right knee.
In an April 7, 2017 report, Dr. Byron V. Hartunian, a sports medicine specialist, noted
appellant’s history of the injury and medical treatment. He related that appellant had undergone a
right total hip replacement on August 22, 2016 with a return to modified work in midOctober 2016 and full-work activities in early November 2016. Dr. Hartunian noted appellant’s
complaints at the right hip and right knee and had him complete an American Academy of
Orthopaedic Surgeons (AAOS) Lower Limb Questionnaire. He also reported detailed physical
examination findings. Dr. Hartunian noted that appellant’s squatting was limited to 50 percent of
normal due to restricted hip motion. Examination of the right hip demonstrated a nontender and
well-healed anterior lateral incision from the total hip replacement surgery. Range of motion4
(ROM) of the right hip demonstrated flexion 103 degrees, extension 10 degrees, internal rotation
14 degrees, external rotation 21 degrees, abduction 22 degrees, and adduction 24 degrees.
Examination of the right knee revealed no palpable effusion or measurable swelling compared to
the left knee. Neurovascular examination of the right lower extremity was normal. Dr. Hartunian
opined that appellant reached maximum medical improvement (MMI) for his right hip in early
November 2016, when he returned to full-duty work.
On February 12, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a January 15, 2018 report, Dr. Hartunian referred to his April 7, 2017 examination
findings and opined that appellant had 41 percent permanent impairment of the right lower
extremity, under the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).5 This rating was comprised of the combined values
of 37 percent permanent impairment of appellant’s right hip and 7 percent permanent impairment
of the right knee under the diagnosis-based impairment (DBI) methodology. For the right hip,
Dr. Hartunian opined that, under Table 16-4, page 515, of the A.M.A., Guides, appellant had class
3

5 U.S.C. § 8101 et seq.

4

All ROM measurements were performed three times in each direction using a goniometer.

5

A.M.A., Guides (6th ed. 2009).

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3 default 37 percent impairment for total hip replacement with mild motion deficit. Regarding
grade modifiers, he opined that the grade modifier for clinical studies (GMCS) was not applicable
as x-rays were used in determining the class. The grade modifier for physical examination
(GMPE) was also not applicable as there were no other pertinent physical examination findings.
For the grade modifier for functional history (GMFH), Dr. Hartunian noted that the grade modifier
was 0 for gait derangement, as appellant ambulated without a limp; however, the GMFH was 2
based on the AAOS Lower Limb Questionnaire. He indicated that on page 515 of the A.M.A.,
Guides it was noted that the higher grade was to be used in the impairment calculation, but he
found the GMFH unreliable as it was 2 or more than the GMCS or GMPE. Dr. Hartunian found
that the net adjustment formula did not apply and concluded that appellant had final class 3, grade
3 default 37 percent permanent impairment of the right hip. For the right knee, he found that,
under Table 16-3, page 511 of the A.M.A., Guides, appellant had a class 1, grade C or seven
percent permanent impairment for primary knee joint arthritis with 3 millimeter cartilage interval
at the medial femorotibial joint. Dr. Hartunian opined that GMCS adjustment was not applicable
as x-rays were used to determine the impairment class. He found GMPE 1 as there were minimal
palpatory findings consistently documented without observed abnormalities. Dr. Hartuniam
excluded GMFH adjustment as it was on the same side as the hip. He found a net adjustment of
zero under the net adjustment formula. Dr. Hartuniam, thus, opined that appellant had class 1,
grade C or seven percent lower extremity impairment of the right knee.
On February 16, 2018 OWCP referred the record to Dr. Jovito Estaris, a Board-certified
occupational medicine specialist serving as OWCP’s district medical adviser (DMA) for review.
In a report dated February 27, 2018, Dr. Estaris reviewed a statement of accepted facts
(SOAF) and the medical record. Using Dr. Hartunian’s April 7, 2017 examination findings,
Dr. Estaris opined that appellant reached MMI on April 7, 2017. Also using Dr. Hartunian’s
April 7, 2017 examination findings, he calculated appellant’s impairment utilizing both the ROM
and DBI methodologies. Under the DBI methodology, Dr. Estaris found 31 percent right lower
extremity impairment of the hip and seven percent right lower extremity impairment of the knee.
Under the ROM methodology, he found 25 percent right lower extremity impairment of the hip
and 0 percent right lower extremity impairment of the knee. Dr. Estaris opined that the DBI
methodology yielded the highest right lower extremity impairment of 36 percent combined right
lower extremity impairment.
Under the DBI methodology, Dr. Estaris concurred with Dr. Hartunian’s 7 percent
impairment rating for the right knee, but found that appellant had 31 percent impairment rating of
the hip. Under Table 16-4, page 515, of the A.M.A., Guides, he found that appellant had class 3
grade C or default 37 percent impairment for total hip replacement with fair result, mild motion
deficits. Under Table 16-6, page 516, of the A.M.A., Guides, Dr. Estaris assigned a GMFH of 2
based on AAOS, moderate deficit. Under Table 16-7, page 517, of the A.M.A, Guides, he assigned
a GMPE of 1 for mild motion deficits. Dr. Estaris found that the GMCS was inapplicable as
appellant’s hip x-ray showed total hip replacement prosthesis in good position and the x-ray was
used in proper placement in the regional grid. He applied the net adjustment formula and found a
net adjustment of -3, which yielded a class 3, grade A or 31 percent impairment. Dr. Estaris
explained that the discrepancy regarding the right hip impairment value was due to Dr. Hartunian’s
misunderstanding of the grade modifiers. He indicated that Dr. Hartunian erroneously found a
GMPE of 0. Dr. Estaris indicated that, since there were mild motion deficits on physical
examination of the right hip, it should be a GMPE of 1. He also indicated that the GMFH was 2
and should not have been excluded as it was not 2 grades higher as Dr. Hartunian had opined.
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Dr. Estaris also indicated that the GMCS was not 0, but was inapplicable as it was used for proper
placement in the DBI grid.
On March 27, 2018 OWCP requested clarification from Dr. Estaris as to the use of the
GMPE as recent decisions from the Board, which specifically related that the GMPE should be
excluded from the net adjustment formula when the nonkey factors were used for primary
placement in the regional grid and appellant had no other objective deficits documented.
In an April 4, 2018 addendum report, Dr. Estaris explained that he assigned a GMPE of 1
due to mild motion deficits from Dr. Hartunian’s examination. This was not a grade modifier 0 as
indicated by Dr. Hartunian. Dr. Estaris also explained that, under Table 16-4, a class 3 for a partial
or total hip replacement required a minimum of two criteria to be considered a fair result under
that class and it was not accurate to assign that class based only on one of the criteria. He indicated
that Dr. Hartunian did not use a GMFH since he found it to be two grades higher than the GMPE
and he used the physical examination for placement in the DBI grid. However, Dr. Hartunian also
incorrectly identified the GMPE as 0, which was not accurate. He explained that the GMPE was
not 0, but 1 due to mild motion deficits. Since the GMPE was 1, the GMFH was not two grades
greater than the GMPE. Using physical examination for placement in a DBI grid did not convert
the grade modifier to 0; rather, it was then not used in the net adjustment process.
On July 31, 2018 OWCP forwarded Dr. Estaris’ April 4, 2018 addendum report to
Dr. Hartunian for review. In a September 9, 2018 letter, Dr. Hartunian advised that the only
disagreement between Dr. Estaris and himself was the application of the functional history grade
modifier, which they both agreed was 2. He advised that the A.M.A., Guides required that the
GMFH be excluded as unreliable if it is two or more than either the GMCS or GMPE, which it
was in this case.
On September 21, 2018 OWCP requested additional comments from the DMA based on
Dr. Hartunian’s September 9, 2018 letter. In an October 3, 2018 report, Dr. Estaris indicated that
Dr. Hartunian’s report did not change or modify his impairment rating calculation. He indicated
that the GMPE and GMCS were not 0, but were both grade 1. Since the GMPE and GMCS were
both 1, the GMFH was not 2 grades above the GMPE and GMCS. Pointing to Dr. Hartunian’s
examination findings, Dr. Estaris indicated that for GMPE, the examination showed limited ROM
of the right hip, which is grade modifier 1 under Table 16-7 of the A.M.A., Guides. For the GMCS,
he explained why there could be no grade modifier 0 under Table 16-8 as the x-ray of the prosthesis
was a relevant finding. Dr. Estaris also explained that the A.M.A., Guides does not indicate that
if the grade modifier was used for placement in the DBI grid, that the grade modifier was
automatically 0. If a grade modifier was not available for adjustment of rating, it does not lose the
assigned grade modifier value.
On February 11, 2019 OWCP again requested clarification from the DMA. It explained
that the GMPE should be excluded because it was used for class placement. The GMCS was not
used for class placement, therefore, the GMCS should be considered. The GMFH should be
considered as there was only a difference of 1 between the GMCS and GMFH, and the
nonapplicable GMPE did not necessitate excluding the GMFH. OWCP requested that the DMA
provide a permanent impairment rating including GMCS.
In a February 2, 2019 amended report, the DMA indicated that Dr. Hartunian used GMPE
and GMCS in the determination of class. Dr. Estaris indicated that as appellant’s physical
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examination showed mild motion deficits, it was used in the determination of class 3 under Table
16-4 and GMPE was excluded from the adjustment process. He indicated that the clinical study,
which was the post operation x-ray of the right hip, showed good and stable position, and did not
meet the criteria for class 3 impairment under Table 16-4. It would have resulted in a class 2
impairment and was, therefore, not used for class placement. Furthermore, the clinical study
indicated that appellant’s prosthesis was in good, stable position was a grade modifier of 1 since
it was a mild pathology. Dr. Estaris explained that since the GMCS was 1, the GMFH could be
used in the grading process since it was only one grade higher than the GMCS. He utilized the
April 7, 2017 examination findings of Dr. Hartunian and again opined that appellant had 31
percent impairment for unilateral right hip arthritis and 7 percent impairment for unilateral arthritis
right knee, for a combined 36 percent permanent impairment of the right lower extremity.
By decision dated March 28, 2019, OWCP granted appellant a schedule award for 36
percent permanent impairment of the right lower extremity. It accorded the weight of the medical
evidence to the reports of Dr. Estaris serving as OWCP’s district medical adviser (DMA), who
utilized Dr. Hartunian’s April 7, 2017 examination findings to arrive at his impairment rating. The
award ran for 103.68 weeks, from April 7, 2017 through April 2, 2019.
On September 20, 2019 appellant, through counsel, requested reconsideration. In a
September 19, 2019 brief, counsel took issue only with the use of grade modifiers, specifically the
GMCS and GMFH, in determining the right hip impairment rating. He alleged that Dr. Estaris
had improperly changed his analysis in his second report to find a GMCS of 1, which effectively
reduced appellant’s net adjustment rating. Counsel also alleged that the Dr. Estaris had not
compared the GMFH to the GMPE and had he done so he would have had to exclude the GMFH
from the net adjustment process as unreliable. He indicated that his allegations of error presented
strictly legal questions of the proper application of the A.M.A., Guides to uncontested medical
findings.
On November 8, 2019 OWCP declared a conflict in medical opinion between
Dr. Hartunian and Dr. Estaris regarding the permanent impairment rating of appellant’s right hip.
In a December 19, 2019 letter, mailed to appellant and counsel at their addresses of record,
OWCP informed appellant that there was a conflict in the medical opinion evidence regarding the
extent of the permanent impairment of his right lower extremity. It referred appellant to Dr. Robert
Pennell, a Board-certified orthopedic surgeon, serving as an impartial medical specialist to
evaluate appellant and to determine the permanent impairment of appellant’s right lower extremity.
The appointment with Dr. Pennell was scheduled for January 21, 2020 at 1:00 p.m. OWCP
advised appellant that, if he failed to provide an acceptable reason for not appearing for the
examination or obstructed the examination, his benefits would be suspended in accordance with
section 8123(d) of FECA (5 U.S.C. § 8123(d)).
In a January 16, 2020 letter, counsel indicated that appellant would not be attending the
scheduled impartial medical examination with Dr. Pennell on January 21, 2020. He contended
that the declaration of a conflict in medical opinion was not necessary and was contrary to 5 U.S.C.
§ 8123(a), as Dr. Estaris was not an examining physician.
Appellant did not attend the January 21, 2020 appointment with Dr. Pennell.

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On January 23, 2020 OWCP provided notice to appellant that it proposed to suspend his
wage-loss compensation and medical benefits, pursuant to 5 U.S.C. § 8123(d), based upon his
failure to attend the scheduled January 21, 2020 impartial medical examination with Dr. Pennell.
It advised him that he had 14 days to provide a written explanation of his reasons, with substantive
corroborating evidence, for failing to attend the scheduled examination. OWCP explained that an
employee’s right to compensation under FECA shall be suspended during the period of a refusal
or obstruction of an examination by a physician. No response was received.
By decision dated March 9, 2020, OWCP finalized its proposed suspension of wage-loss
compensation and medical benefits, effective that date. It noted that it had directed appellant to
report for the examination scheduled on January 21, 2020 with Dr. Pennell, but that he had not
attended the examination or shown good cause for his failure to attend the examination. OWCP
indicated that appellant had failed to establish good cause for his failure to attend the scheduled
examination and, therefore, pursuant to 5 U.S.C. § 8123(d), his compensation and medical benefits
were suspended, effective March 9, 2020. It advised appellant that his benefits would be reinstated
only after verification that he attended and fully cooperated with the directed examination.
LEGAL PRECEDENT
Section 8123(d) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary. 6 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.7
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary. 8 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction ceases.9 OWCP’s procedures provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.10 If good cause for the refusal or obstruction is
not established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA.11

6

5 U.S.C. § 8123(d).

7

G.E., Docket No. 19-1949 (issued October 26, 2020); L.B., Docket No. 17-1891 (issued December 11, 2018);
J.T., 59 ECAB 293 (2008).
8

20 C.F.R. § 10.320.

9

Supra note 6 and id. at § 10.323, respectively; see also G.E., supra note 7.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
11

Id.

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ANALYSIS
The Board finds that OWCP properly suspended appellant’s entitlement to compensation
benefits pursuant to 5 U.S.C. § 8123(d), effective March 9, 2020, due to his failure to attend a
scheduled medical examination.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo
a medical examination, is that of reasonableness.12 The Board has interpreted the plain meaning
of section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues unless appellant can establish good cause for failing to report at the
scheduled time.13
In a November 8, 2019 letter, OWCP found a conflict in medical opinion evidence between
appellant’s attending physician, Dr. Hartunian, and its DMA, Dr. Estaris, regarding the permanent
impairment rating of appellant’s right hip. Dr. Hartunian opined that appellant had 37 percent
permanent impairment while Dr. Estaris opined that appellant had 31 percent permanent
impairment. OWCP referred appellant for an impartial medical examination with Dr. Pennell and
was advised of the need for the examination and the time and place for the scheduled appointment.
He failed to attend the scheduled January 21, 2020 appointment. OWCP subsequently allowed
appellant 14 days to provide reasons for failing to appear.
Counsel argued that there was no conflict in the physical examination findings regarding
appellant’s right hip and, therefore, no need for an impartial medical examination as the conflict
in question only concerned a legal interpretation regarding how grade modifiers should be used in
the net adjustment formula of the A.M.A., Guides. As noted, the only limitation on OWCP’s
authority, with regard to instructing a claimant to undergo a medical examination, is one of
reasonableness.14 Appellant must provide a sufficient reason for failure to attend a scheduled
medical examination.15 The fact that counsel alleged that the difference in the impairment rating
of appellant’s right hip was due solely to a difference of legal interpretation of the A.M.A., Guides
is not a sufficient reason for appellant’s failure to attend the scheduled January 21, 2020 medical
examination. OWCP properly referred appellant for an impartial medical examination to
determine a final impairment rating of appellant’s right hip as a conflict in medical opinion as to
the extent of appellant’s right hip impairment existed. Appellant has not otherwise explained why
he did not attend the scheduled examination.
Thus, the Board finds that OWCP properly suspended appellant’s entitlement to
compensation in accordance with 5 U.S.C. § 8123(d) until the date on which he agrees to attend

12

B.W., Docket No. 17-0847 (issued July 18, 2017); Lynn C. Huber, 54 ECAB 281 (2002).

13
G.E., supra note 7; B.C., Docket No. 19-1058 (issued November 15, 2019); T.W., Docket No. 16-1524 (issued
February 6, 2017).
14

B.W., supra note 12; T.W., Docket No. 16-1524 (issued February 6, 2017).

15

See D.K., Docket No. 18-0217 (issued June 27, 2018).

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the examination. When appellant actually reports for examination, payment retroactive to the date
on which he agreed to attend the examination may be made.16
CONCLUSION
The Board finds that OWCP properly suspended appellant’s entitlement to compensation
benefits pursuant to 5 U.S.C. § 8123(d), effective March 9, 2020, due to his failure to attend a
scheduled medical examination.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 24, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

16

B.W., supra note 12; C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Montrose, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1566
Issued: February 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 21, 2011 appellant, through her attorney, filed a timely appeal from a
January 25, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) affirming
the termination of her compensation benefits on the basis that she refused an offer of suitable
work. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective July 18, 2009 on the grounds that she refused an offer of suitable
work, pursuant to 5 U.S.C. § 8106(c)(2).
On appeal, appellant’s attorney contends that the location of the offered position renders
it unsuitable as a matter of law as it is approximately 230 miles away from appellant’s home.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 23, 2007 appellant, then a 57-year-old registered nurse, filed a traumatic
injury claim, Form CA-1, alleging that she turned and caught her foot on a call-bell cord and fell
and hit her head on the foot board of the bed, hit her right knee on the floor and landed on her
back while administering medicine to a patient. On February 20, 2008 OWCP accepted her
claim for a concussion without loss of consciousness and headache, noting that her preexisting
conditions of Sjogren’s syndrome, chronic back pain and arthritic conditions were not accepted
as arising out of the employment incident. On March 5, 2008 it expanded appellant’s claim to
include displacement of cervical intervertebral disc without myelopathy and brachial neuritis or
radiculitis, noting that the following preexisting conditions had not been accepted degeneration
of cervical intervertebral disc, degeneration of lumbar or lumbosacral intervertebral disc and
spinal stenosis in cervical region. Effective February 8, 2008, appellant was placed on the
periodic compensation rolls for temporary total disability.
In a July 31, 2008 work capacity evaluation, Dr. Rajan Gulati, a Board-certified internist,
indicated that appellant was unable to perform her usual job.
OWCP referred appellant to Dr. Ira Neustadt, a Board-certified neurologist, for a second
opinion examination. In a July 11, 2008 report, Dr. Neustadt noted that appellant complained of
increased pain in her neck that spread to the upper shoulder, leg pain and constant headaches.
He performed a physical examination and diagnosed low back trauma and mild head trauma.
Upon neurological examination, Dr. Neustadt diagnosed subjective sensory finding suggesting
symptom embellishment and functional overlay. Upon musculoskeletal examination, he
diagnosed residual myofascial-type pain and residual cervical, shoulder girdle and lumbosacral
strain patterns of pain. Dr. Neustadt noted that appellant had a longstanding history of chronic
low-back pain and rheumatological conditions and was stated to have Sjogren’s syndrome. He
opined that, although the accepted conditions had not totally resolved, she was not totally
disabled from work and could resume light duty as a registered nurse. Dr. Neustadt noted that
the job should be sedentary, without heavy duties, such as repetitive bending, lifting more than
10 to 15 pounds or extensive walking.
On October 24, 2008 appellant, through counsel, informed OWCP that she had moved to
Painted Post, New York. By letter dated November 24, 2008 OWCP acknowledged receipt of
her change of address request which it received on October 27, 2008.
On February 4, 2009 the employing establishment offered appellant a modified-duty
position as a modified registered nurse in Castle Point, New York beginning March 2, 2009.
Appellant would work part time, Monday through Friday from 12:00 a.m. to 4:00 p.m. The
physical requirements of the position conformed to the limitations provided in Dr. Neustadt’s
July 11, 2008 report, including mostly sedentary activities, sitting no more than one hour at a
time, intermittent walking no more than 20 minutes at a time and intermittent standing no more
than 20 minutes at a time.
In a report dated December 18, 2008, Dr. Ibrahim Y. Al-Sinjari, a Board-certified
orthopedic surgeon, indicated that appellant did not have objective findings of brachial neuritis
or radiculitis at all. Appellant did not have objective findings of displacement of cervical

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intervertebral disc without myelopathy and no signs of a headache or concussion with no loss of
consciousness. Dr. Al-Sinjari opined that she was not able to perform her regular duties, but was
able to work light-duty sedentary work which did not require any overhead work, lifting more
than 5 to 10 pounds, heavy pushing or long time standing.
On February 16, 2009 appellant declined the modified registered nurse position. She
indicated that her physician advised her that she was unable to fulfill the physical requirements
of the position offered.
By letter dated February 20, 2009, OWCP advised appellant that the modified registered
nurse position had been found to be suitable and conformed to the work limitations provided by
Dr. Neustadt in his July 11, 2008 report. The employing establishment confirmed that the
position remained available. OWCP allowed appellant 30 days to accept the position or provide
her reasons for refusal. It noted that she was reevaluated on December 18, 2008 by
Dr. Al-Sinjari who made the opinion that she was able to do sedentary work with restrictions.
OWCP advised that, pursuant to 5 U.S.C. § 8106(c)(2), an employee who refuses an offer of
suitable work without reasonable cause is not entitled to compensation.
In a February 13, 2009 report, Dr. Gulati opined that appellant was totally disabled from
work. On February 27, 2009 he reiterated his opinion that she was totally disabled for work,
indicating that she could not sit, walk or stand for more than five minutes at a time.
By letter dated March 20, 2009, OWCP advised appellant that her reasons for refusing
the offered position were not determined to be reasonable. It advised that her wage-loss and
schedule award benefits would be terminated if she did not accept the position within 15 days.
On April 6, 2009 the employing establishment notified OWCP that appellant did not
report to duty as stipulated in the March 20, 2009 letter and requested termination of her wageloss compensation.
In an April 6, 2009 report, Dr. Gulati reiterated his medical opinion that appellant
remained totally and permanently disabled as a result of the injury sustained on
October 23, 2007. He indicated that she was unable to turn her head without restriction or
exacerbation of the left-sided cervical radicular symptoms including tingling in the hand, she
could not drive, lift, push, pull or carry nor walk, sit or stand for extended periods.
On April 7, 2009 OWCP found a conflict in medical opinion between Dr. Gulati and
Drs. Neustadt and Al-Sinjari on the issues of diagnosis and whether appellant had continuing
disability due to the accepted employment injury. It referred appellant to Dr. Peter Remec, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict.
In an April 22, 2009 report, Dr. Remec reviewed the statement of accepted facts and
appellant’s medical records and diagnosed chronic neck and upper back pain and indicated that it
appeared to be a permanent condition. He opined that she was not able to perform her full
registered nurse duties and based on his evaluation would not be able to return to those activities.
Dr. Remec opined that appellant was able to perform a light to sedentary level of work activity
based on the orthopedic evaluation which would include no repetitive lifting more than 5 pounds,

3

lifting 10 pounds maximum, no repetitive overhead work and ability to change position
frequently at work.
On May 20, 2009 the employing establishment offered appellant a modified-duty position
as a modified registered nurse in Castle Point, New York beginning June 8, 2009. Appellant
would work part time, Monday through Friday from 12:00 a.m. to 4:00 p.m. The physical
requirements of the position conformed to the limitations provided in Dr. Remec’s April 22,
2009 report.
By letter dated May 22, 2009, OWCP advised appellant that the modified registered
nurse position had been found to be suitable and conformed to the work limitations provided by
Dr. Remec in his April 22, 2009 report. It allowed her 30 days to accept the position or provide
her reasons for refusal. OWCP advised that, pursuant to 5 U.S.C. § 8106(c)(2), an employee
who refuses an offer of suitable work without reasonable cause is not entitled to compensation.
It indicated that the modified-duty position was located in Montrose, New York.
In a May 29, 2009 report, Dr. Gulati reiterated his opinion that appellant was unable to
fulfill the requirements of the modified registered nurse position and was totally and permanently
disabled for work.
By letter dated June 24, 2009, OWCP advised appellant that her reasons for refusing the
offered position were not determined to be reasonable. It advised that her wage-loss and
schedule award benefits would be terminated if she did not accept the position within 15 days.
On July 5, 2009 appellant, through counsel, explained that her reason for refusing the
modified registered nurse position was based on Dr. Gulati’s medical opinion that she was totally
disabled for work and unable to perform the duties of the offered position.
By decision dated July 13, 2009, OWCP terminated appellant’s entitlement to wage-loss
compensation, effective July 18, 2009, on the basis that she refused an offer of suitable work.
On July 5, 2010 appellant, through counsel, requested reconsideration. Counsel argued
that the distance of approximately 230 miles between the claimant’s home in Painted Post, New
York and the offered position in Castle Point, New York rendered the position unsuitable as a
matter of law. Appellant submitted copies of a map between Castle Point and Painted Post
indicating a distance of 221 or 235 miles, depending on the route and approximately four hours
in driving time.
By letter dated January 7, 2011, OWCP confirmed that appellant was separated from the
employing establishment on August 20, 2009 when she was placed on Office of Personnel
Management (OPM) disability retirement.
By decision dated January 20, 2011, OWCP denied modification of the July 13, 2009
termination decision. It found that the job offer was not improper as it was appellant’s choice to
move from her residence in Middletown, New York. OWCP indicated that she was separated
from the employing establishment effective August 20, 2009 when she began receiving disability
retirement benefits from OPM. Appellant was still on the employing establishment’s rolls at the
time the termination decision was issued on July 13, 2009. OWCP stated that the offered
4

position was only 30.91 miles from her residence at the time the injury occurred. While she did
not refuse the offer of employment on the basis that it was too far from her new residence,
OWCP found that appellant’s move away from the area in which the employing establishment
was located was not considered an acceptable reason for refusal of the job offer.
By decision dated January 25, 2011, OWCP vacated its January 20, 2011 decision on the
grounds that it contained a typographical error and issued a new decision with the typographical
error corrected, containing the same findings and conclusions.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of justifying termination or modification
of compensation benefits.2 This includes cases in which OWCP terminates compensation under
section 8106(c)(2) of FECA for refusal to accept suitable work.
Section 8106(c)(2) of FECA3 states that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him is not entitled to compensation.4 OWCP has authority under this section to
terminate compensation for any partially disabled employee who refuses or neglects suitable
work when offered. Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.5 In other words, to justify termination of compensation under 5 U.S.C. § 8106(c)(2),
which is a penalty provision, OWCP has the burden of showing that the work offered to and
refused or neglected by the employee was suitable.6
With regards to relocation, OWCP regulations provide that the employer, if possible,
should offer suitable reemployment in the location where the employee currently resides. If this
is not practical, the employer may offer suitable reemployment at the employee’s former duty
station or other location.7
ANALYSIS
In this case, the employing establishment offered appellant a sedentary position in Castle
Point, New York, which accommodated the work restrictions given by Dr. Remec, the impartial
medical specialist. OWCP reviewed the position and found it to be suitable for appellant. It
2

See Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8106(c)(2).

5

See M.L., 57 ECAB 746, 750 (2006). See also Frank J. Sell, Jr., 34 ECAB 547, 552 (1983).

6

Id. See also Albert Pineiro, 51 ECAB 310, 312 (2000).

7

20 C.F.R. § 10.508. See also Sharon L. Dean, 56 ECAB 175 (2004).

5

terminated appellant’s wage-loss compensation on the grounds that she refused the employing
establishment’s May 20, 2009 job offer of a modified registered nurse position in Castle Point,
New York. On appeal, counsel contends that the location of the offered position renders it
unsuitable as a matter of law as it is approximately 230 miles away from appellant’s home in
Painted Post.
To properly terminate compensation under 5 U.S.C. § 8106(c), OWCP must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.8 By letter dated May 22, 2009, it advised
her that the position was suitable and provided her 30 days to accept the position or provide
reasons for her refusal. OWCP further notified appellant that the position remained open, that
she would be paid for any difference in pay between the offered position and her date-of-injury
job, that she could still accept without penalty and that a partially disabled employee who refused
suitable work was not entitled to compensation.
The record reflects that on October 24, 2008 appellant informed OWCP that she had
moved to Painted Post, New York. By letter dated May 22, 2009, OWCP advised appellant that
the modified registered nurse position had been found to be suitable and in accordance with her
medical restrictions, indicating that the position was located in Montrose, New York. The Board
notes that contrary to OWCP’s statement the job was located in Castle Point. By decision dated
January 20, 2011, OWCP found that appellant’s move away from the area in which the
employing establishment was located was not considered an acceptable reason for refusal of the
job offer as it was her choice to move from her residence in Middletown to Painted Post. It
stated that the offered position in Castle Point was only 30.91 miles from her residence at the
time the injury occurred, which was in Middletown.
However, the Board notes that OWCP did not make any attempt to determine whether
suitable employment was possible in or around Painted Post, New York, where appellant resided
at the time of the job offer, which is approximately 230 miles from the location of the offered
position in Castle Point. OWCP should have developed this aspect of the case before finding the
offer suitable. Its regulations state that the employer should offer suitable reemployment where
the employee currently resides, if possible.9 The Board has previously held in Sharon L. Dean10
that it is reversible error for OWCP to terminate appellant’s compensation benefits without
positive evidence showing that such an offer was not possible or practical. Because OWCP
found that the modified registered nurse position in Castle Point was suitable, without taking into
consideration whether there was suitable reemployment available in the location where appellant
resided, it did not meet its burden of proof in terminating her compensation for refusing suitable
work. The Board finds that it erred in terminating appellant’s compensation benefits without
positive evidence showing that such an offer was not possible or practical. Under the
8

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

9

20 C.F.R. § 10.508. See Sharon L. Dean, supra note 7.

10

Sharon L. Dean, supra note 7. Cf. T.T., 58 ECAB 296 (2007) (where the Board found that OWCP met its
burden of proof to terminate appellant’s compensation benefits for refusing a suitable job offer on the basis that she
did not relocate until after a suitable position was offered to her and her compensation benefits were terminated).

6

circumstances of this case, OWCP did not properly find that appellant refused suitable work.
Thus, the Board will reverse OWCP’s January 25, 2011 decision.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
wage-loss compensation benefits effective July 18, 2009 on the grounds that she refused an offer
of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 8, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 07-1795
Issued: January 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 25, 2007 appellant filed a timely appeal of a March 30, 2007 merit decision of
the Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective November 30, 2005 on the grounds that she no longer had any residuals or disability
causally related to her employment-related May 22, 1997 injury; and (2) whether she had any
continuing employment-related residuals or disability after November 30, 2005.
FACTUAL HISTORY
On May 24, 1997 appellant, then a 43-year-old manual clerk, filed a traumatic injury
claim assigned file number 10-0467641 alleging that on May 22, 1997 she hurt her lower back as

a result of lifting a tray from a u-cart.1 She was performing limited-duty work at the time of the
injury. By letter dated August 13, 1997, the Office accepted appellant’s claim for lumbosacral
strain.
Appellant began performing limited-duty work four hours per day effective January 8,
2003 based on the medical opinion and restrictions set forth by Dr. John R. Kearns, an attending
Board-certified orthopedic surgeon, who opined that appellant had continuing residuals of her
employment-related back injury. Dr. Kearns stated that she could only work four hours per day
with restrictions due to this injury. Appellant was restricted from lifting over 10 pounds,
performing repetitive activities using her back, neck or upper extremities, casing mail and sitting
or standing for a prolonged period. She was required to use a chair with back support and should
be allowed the freedom to move around and to work during the daytime.
On February 20, 2003 appellant filed a claim for wage-loss compensation for the period
beginning January 8, 2003 due to her May 22, 1997 employment injury. The Office paid
appropriate compensation.
By letter dated October 22, 2003, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Edward H. Kelly,
a Board-certified orthopedic surgeon, for a second opinion medical examination. He was asked
to determine whether she had any employment-related residuals or disability, whether she could
return to her regular work duties and whether she could work eight hours per day.
In a November 12, 2003 medical report, Dr. Kelly reviewed a history of appellant’s
May 22, 1997 and March 28, 1988 employment injuries and medical treatment. He reported his
normal findings on physical examination. Dr. Kelly found that appellant suffered from low
back, neck and right shoulder pain. He opined that she had no disability or residuals causally
related to the May 22, 1997 employment injury. Dr. Kelly stated that appellant had continuing
residuals of the March 28, 1988 employment injury. Appellant could not return to her regular
work duties but she could work eight hours per day with restrictions due to this injury.
By letter dated December 18, 2003, the Office requested that Dr. Kearns review the
findings of Dr. Kelly and determine whether appellant was capable of increasing her light-duty
work hours from four to eight hours per day. In a December 28, 2003 letter, Dr. Kearns referred
the Office to his previous work restrictions and recommendations regarding appellant’s ability to
work.
On January 6, 2004 the Office found a conflict in the medical opinion evidence between
Dr. Kearns and Dr. Kelly as to whether appellant had continuing residuals or disability causally
related to her May 22, 1997 employment injury and whether she could work eight hours per day.
By letter dated March 1, 2004, it referred appellant, together with a statement of accepted facts,
1

Prior to the instant claim, appellant filed a claim assigned File No. 10-0372892 alleging that she sustained a
back injury on March 28, 1988 at work. The Office accepted the claim for lumbosacal strain. Additionally,
appellant’s claim for a recurrence of disability was accepted by the Office as new claim assigned File No.
10-0383994 for cervical and right shoulder strain and permanent aggravation of cervical degenerative disc disease
sustained on February 3, 1989.

2

the case record and a list of questions to be addressed, to Dr. H. William Park, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In an April 12, 2004 report, Dr. Park stated that appellant was examined on April 2, 2004.
He noted a history of her May 22, 1987 employment injury and medical background. Dr. Park
provided a detailed review of appellant’s medical records and his essentially normal findings on
physical examination. He stated that she had ongoing degenerative disc problems dating back to
1988 through 1989. Dr. Park opined that appellant sustained a temporary aggravation of this
preexisting condition on May 22, 1997 that had since resolved. He noted a 1998 finding of
Dr. Thomas C. Jetzer, Board-certified in occupational medicine, that appellant’s low back
symptoms were improving to the point where her low back problem was resolving. Dr. Park
stated that this was consistent with her ongoing problems related to degenerative disc disease in
the lower lumbar spine which was demonstrated by a computerized tomography (CT) scan and
caused mechanical low back pain which preexisted the May 22, 1997 employment injury. He
stated that there was no permanent structural injury and no objective findings of neurological
involvement in the lower extremities as a result of the May 1997 employment injury. Dr. Park
noted a negative straight leg raising since the May 22, 1997 employment injury. He opined that
appellant was capable of working 40 hours per week. Appellant was restricted from repetitive
bending and lifting and prolonged sitting for more than two to three hours at a time. Dr. Park
stated that appellant should be allowed to get up and walk around on an as needed basis. Lastly,
she should avoid heavy lifting based on the CT scan findings of degenerative disc disease with a
bulging disc at L5-S1. Dr. Park concluded that the stated restrictions were due to appellant’s
preexisting condition and not the May 22, 1997 employment injury.
By letter dated May 10, 2004, the Office issued a notice of proposed termination of
compensation based on Dr. Park’s medical opinion. It provided 30 days in which appellant
could respond. She did not respond within the allotted time period.
In a decision issued on June 15, 2004, the Office terminated appellant’s compensation
benefits.
On June 30, 2004 she requested an oral hearing before an Office hearing representative.
By decision dated March 29, 2005, a hearing representative reversed the June 15, 2004
decision. He found that the Office did not meet its burden of proof in terminating appellant’s
compensation based on Dr. Park’s April 12, 2004 opinion. The hearing representative found that
the opinion was of diminished probative value because it was not based on a proper factual
background. The statement of accepted facts reviewed by Dr. Park did not contain information
regarding the March 28, 1988 employment injury. The hearing representative stated that this
information may be relevant to Dr. Park’s opinion as he referred to appellant’s symptoms of
degenerative disc disease dating back to 1988 through 1998. He directed the Office to reinstate
her compensation retroactive to the termination date. The hearing representative also directed
the Office to obtain appellant’s case file for the March 28, 1998 employment injury and combine
it with the case record for the instant claim. The Office was instructed to prepare a new
statement of facts and refer appellant back to Dr. Park for an examination and opinion as to
whether her current back problems were caused or aggravated by the March 28, 1988 or May 22,
1997 employment injuries.

3

By letter dated July 22, 2005, the Office requested that Dr. Park submit a supplemental
report which addressed whether appellant had any disability causally related to the March 28,
1988 or May 22, 1997 employment injuries.
In a September 2, 2005 supplemental report, Dr. Park stated that based on the history
provided by appellant on that date, she had continuing symptoms of intermittent mechanical low
back pain from 1988 to 1997, his opinion regarding the May 22, 1997 temporary aggravation had
not changed since his April 2, 2004 examination. He reiterated his prior findings and rationale
regarding the lack of a causal relationship between appellant’s current back problems and the
May 22, 1997 employment injury and her ability to perform full-time limited-duty work.
Dr. Park opined that the May 22, 1997 employment injury aggravated appellant’s underlying
degenerative disc disease and that this aggravation ceased in April 1998. He stated that she
never had any back problems prior to 1988 and that she started having symptoms of low back
pain of a mechanical nature. Dr. Park opined that appellant’s current degenerative disc disease
symptoms in the neck and low back were due to the significant aggravation of the underlying
degenerative disc disease dating back to the March 28, 1988 employment injury, as well as the
natural progression of the disease.
By letter dated October 26, 2005, the Office issued a notice of proposed termination of
compensation based on Dr. Park’s September 2, 2005 medical opinion. It provided 30 days in
which appellant could respond. In a November 22, 2005 letter, appellant requested that the
Office grant her an extension as she was waiting on her physicians so that she could submit
additional information. She did not submit any additional evidence.
By decision dated November 30, 2005, the Office terminated appellant’s compensation
effective that date. It determined that Dr. Park’s medical opinion as an impartial medical
specialist constituted the weight of the medical evidence in finding that appellant no longer had
any residuals or disability causally related to her May 22, 1997 employment injury.
The Office received Dr. Kearns’ September 15, 2005 treatment note which addressed
appellant’s neck and proximal shoulder pain. He prescribed physical therapy and excused her
from work for at least a week. In a November 25, 2005 treatment note, Dr. Kearns stated that
appellant continued to experience intermittent back problems. He opined that these problems
resulted from the 1988 work-related injury.
On December 20, 2005 appellant requested an oral hearing.
The Office received Dr. Kearns’ November 7, 2005 treatment note which addressed
appellant’s neck and back symptoms.
At the February 7, 2007 hearing, appellant submitted Dr. Kearns’ January 22, 2007
report. He noted a history that he had been treating appellant since February 1989,
approximately 11 months following a work-related injury involving her back and neck.
Dr. Kearns stated that this was a significant injury that left her with permanent residual
symptoms that were recognized as work related by the employing establishment. He further
stated that, since then, appellant has had a number of work-related back injuries. Dr. Kearns
related that she sustained significant injury in May 1997 that increased her back symptoms and

4

continued to play a role in her current symptoms. He opined that appellant’s current back and
neck problems were related to the 1988 work injury and that the May 1997 employment injury
was a permanent aggravation of the previous injury.
By decision dated March 30, 2007, a hearing representative affirmed the November 30,
2005 decision. She accorded special weight to Dr. Park’s medical opinion as an impartial
medical specialist in finding that appellant no longer had any residuals or disability causally
related to her May 22, 1997 employment injury.2
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that, an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
Section 8123 of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.5 When there exist opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that there was a conflict in the
medical opinion evidence between Dr. Kearns, an attending physician, and Dr. Kelly, an Office
referral physician, as to whether appellant had any continuing residuals or disability causally
2

In the March 30, 2007 decision, the hearing representative also found that the claim for the March 28, 1988
employment injury was currently in a denied and closed status. She noted that in May 2005 appellant requested that
the claim be reopened. The Office developed the request as a recurrence of disability claim but took no further
action after receiving appellant’s responses to its June 1 and September 28, 2006 developmental letters. The hearing
representative instructed the Office to complete adjudication of the recurrence of disability claim for payment of
medical compensation benefits since both Dr. Kearns and Dr .Park opined that appellant had continuing residuals of
the March 28, 1998 employment injury. This claim is not currently on appeal to this Board.
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

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

5

5 U.S.C. § 8123.

6

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

related to her accepted employment-related back injury and ability to perform limited-duty work
eight hours per day. Dr. Kearns opined that appellant had continuing residuals of her accepted
employment injury and that she could only work four hours per day with restrictions. Dr. Kelly
opined that appellant had no residuals or disability causally related to her employment-related
back injury and that she could perform limited-duty work eight hours per day with restrictions.
The Office referred appellant to Dr. Park, selected as the impartial medical specialist. In
an April 12, 2004 report and a September 2, 2005 supplemental report,7 he listed no objective
findings of residuals relative to the accepted May 22, 1997 employment-related lumbosacral
strain. After reviewing appellant’s medical records and reporting essentially normal findings on
physical examination, Dr. Park opined that the May 22, 1997 employment injury aggravated
appellant’s preexisting degenerative disc disease but that this aggravation had resolved as of
April 1998. He explained that Dr. Jetzer’s 1998 finding indicated that appellant’s low back
symptoms were improving to the point where her low back problem was resolving. Dr. Park
stated that this was consistent with the findings of a CT scan and that her preexisting
degenerative disc disease caused mechanical low back pain prior to the May 22, 1997
employment injury. He further stated that appellant’s preexisting condition dated back to 1988
through 1989. Dr. Park found no permanent structural injury and there were no objective
findings of neurological involvement in the lower extremities as a result of the May 1997
employment injury. He noted a negative straight leg raising since this injury occurred. Dr. Park
opined that appellant could work 40 hours per week with restrictions that were due to her
preexisting degenerative disc disease.
The Board finds that Dr. Park’s opinion is based on a proper factual and medical
background and is entitled to special weight. He found that appellant no longer had any
residuals or disability due to the accepted May 22, 1997 employment-related lumbosacral strain
and that she could perform full-time limited-duty work with restrictions. For this reason, his
reports constitute the special weight of the medical opinion evidence afforded an impartial
medical specialist.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.8 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.9 Causal relationship is a medical issue and the medical evidence required to
7

The Board notes that it was proper for the Office to seek clarification from Dr. Park as the Board has held that,
when the Office secures an opinion from an impartial medical specialist for the purpose of resolving a conflict in the
medical evidence and the opinion from the specialist requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the specialist. See Phillip H. Conte, 56 ECAB ___ (Docket No.
04-1524, issued December 22, 2004).
8

See Manuel Gill, 52 ECAB 282 (2001).

9

Id.

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establish a causal relationship is rationalized medical evidence.10 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11
ANALYSIS -- ISSUE 2
The relevant medical evidence regarding continuing employment-related residuals
submitted by appellant after November 30, 2005 consists of Dr. Kearns’ September 15 and
November 7 and 25, 2005 treatment notes which addressed appellant’s continuing neck, back
and shoulder pain. The November 25, 2005 treatment note attributed appellant’s current back
problems to the March 28, 1988 employment injury. Dr. Kearns’ treatment notes failed to
provide an opinion as to whether appellant had any continuing symptoms due to the May 22,
1997 employment injury. In a January 22, 2007 report, he found that appellant’s current back
and neck problems were related to the March 28, 1988 employment injury and that the May 22,
1997 employment injury permanently aggravated the prior injury. Dr. Kearns’ opinion regarding
causal relationship is similar to his prior opinion that was considered and found to give rise to the
conflict in medical opinion. As the Board has held, a subsequently submitted report of a
physician on one side of a resolved conflict of medical opinion is generally insufficient to
overcome the weight of the impartial medical specialist or to create a new conflict of medical
opinion.12 The Board finds that Dr. Kearns’ treatment notes and report are insufficient to
establish appellant’s claim of continuing residuals of the May 22, 1997 employment injury after
November 30, 2005.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
November 30, 2005 on the grounds that she no longer had any residuals or disability causally
related to her accepted May 22, 1997 employment injury. The Board further finds that appellant
failed to establish that she had any continuing employment-related residuals or disability after
November 30, 2005.

10

Elizabeth Stanislav, 49 ECAB 540 (1998).

11

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

12

See Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005); William Morris,
52 ECAB 400 (2001). The Board notes that Dr. Kearns’ treatment notes and report do not contain new findings or
rationale upon which a new conflict might be based.

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ORDER
IT IS HEREBY ORDERED THAT the March 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, WILMINGTON
PROCESSING & DISTRIBUTION CENTER,
New Castle, DE, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0995
Issued: September 11, 2015

Case Submitted on the Record

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

JURISDICTION
On March 25, 2015 appellant, through counsel, filed a timely appeal from a
September 26, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred eighty days from September 26, 2014, the date of OWCP’s last decision was
March 25, 2015. Since using March 30, 2015, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 25, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective July 20, 2012 as he no longer had any residuals or disability causally
related to his accepted employment injury.
On appeal, counsel contends that the medical report of the second opinion physician is
insufficient to meet OWCP’s burden to terminate appellant’s compensation benefits as his report
is devoid of any explanation regarding the issue of whether the accepted aggravation was
temporary or permanent. He states that the physician noted significant physical findings and
work limitations, and recommended potential back surgery. Counsel, thus, contends that
appellant continues to suffer disability from his accepted employment-related injury.
Alternatively, he contends that there is a conflict in medical opinion between the second opinion
physician and appellant’s treating physician.
FACTUAL HISTORY
On March 14, 2011 OWCP accepted that on May 30, 2009 appellant, then a 46-year-old
clerk, sustained an aggravation of preexisting radiculopathy of the lumbar spine as a result of
lifting trays at work. Appellant stopped work, returned to work with restrictions on June 10,
2009 and performed full-duty work with restrictions as of August 16, 2010. Thereafter, he
missed work intermittently commencing June 18, 2011 because the employing establishment had
no work available within his restrictions. Appellant stopped work completely on September 16,
2011 and has not returned.
In a September 13, 2011 duty status report (Form CA-17), Dr. Steven D. Grossinger, an
attending Board-certified neurologist specializing in pain management, provided an unknown
diagnosis and advised that appellant could work eight hours a day with restrictions. In an
October 3, 2011 form report, he advised that appellant was temporarily totally disabled until
further notice. Dr. Grossinger stated that he was unfit to return to his mail processor position.
In an office note dated October 3, 2011, he noted appellant’s complaint of low back pain that
extended into his left leg, greater than right, poor tolerance for prolonged standing, bending, and
twisting. Dr. Grossinger provided examination findings and an impression of persistent signs of
chronic lumbar strain with myofascial pain and sacroiliac dysfunction with lumbar radiculopathy
which had been aggravated since the May 30, 2009 employment injury. He stated that
appellant’s restrictions remained the same.
OWCP scheduled appellant for a March 27, 2012 second opinion examination with
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon. In his medical report, Dr. Hanley
reviewed the statement of accepted facts, the results of a lumbar magnetic resonance imaging
scan, and history of the accepted May 30, 2009 employment injury and appellant’s medical
treatment. On physical examination, he found that appellant was not in any acute distress.
Appellant had good range of motion. His back had limited motion. Appellant extended about 10
degrees and flexed about 40 degrees, but Dr. Hanley did not feel any spasm in the paraspinous
muscles at rest. A straight leg raising test caused some back pain, more in the left than the right.
Reflexes were intact at the ankle and absent at the knee, but strength was normal. The back was
straight without any evidence of kyphosis, scoliosis, or spasm. Dr. Hanley diagnosed

2

degenerative disc disease at L5-S1 with left-sided radiculopathy. He did not believe that the
effects of the work injury were still present. Dr. Hanley believed that appellant had a temporary
aggravation of his condition. His condition was symptomatic prior to the aggravation and it
remained symptomatic after the aggravation. Dr. Hanley stated that this meant the aggravation
was temporary and resolved. He believed that appellant was fit for light-duty activities.
However, the need for these light duties was not a result of the May 30, 2009 employment injury,
but rather a consequence of a preexisting and progressive degenerative process well documented
in the medical record. Dr. Hanley believed that appellant had clearly been unsuccessfully
overtreated. He stated that appellant should consider the possibility of surgical intervention.
Dr. Hanley advised that there was a chance that appellant’s condition would not resolve even
with surgical intervention and that it would leave him permanently limited to light-duty
activities. In a March 27, 2012 work capacity evaluation (Form OWCP-5c), he listed appellant’s
work restrictions.
By letter dated April 25, 2012, OWCP requested that Dr. Grossinger review Dr. Hanley’s
March 27, 2012 report and provide an opinion with regard to whether he agreed with the
findings.
By notice dated May 29, 2012, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits because Dr. Hanley’s March 27, 2012 report found
that he had no continuing residuals or disability due to his accepted May 30, 2009 employment
injury. It noted that Dr. Grossinger had not responded to its April 25, 2012 letter. OWCP
afforded appellant 30 days to submit additional evidence or argument regarding the proposed
termination.
The employing establishment submitted a June 25, 2012 Form CA-17 report from
Dr. Grossinger who diagnosed appellant as having depression and anxiety due to his May 30,
2009 employment injury. Dr. Grossinger advised that appellant could perform light-duty work
with restrictions.
A June 25, 2012 office note of Dr. Grossinger provided examination findings and an
impression of persistent chronic lumbar strain with myofascial pain, lumbar radiculopathy, and
sacroiliac dysfunction as a result of appellant’s May 30, 2009 work-related injury.
By decision dated July 23, 2012, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective July 20, 2012. It found that the medical
evidence submitted was insufficient to establish any residuals or disability causally related to his
May 30, 2009 employment-related injury.
In a July 25, 2012 letter, appellant, through counsel, requested a telephone hearing with
an OWCP hearing representative which was held on April 16, 2013.
By decision dated July 3, 2013, an OWCP hearing representative affirmed the July 23,
2012 decision. He found that the weight of the medical opinion evidence rested with
Dr. Hanley’s March 27, 2012 report, which stated that appellant no longer had any employmentrelated residuals or disability.

3

In a June 30, 2014 letter, appellant’s counsel requested reconsideration and submitted
medical evidence. In a June 26, 2014 report, Dr. Grossinger reviewed Dr. Hanley’s March 27,
2012 report and noted that there were contradictions evident in his report. He noted Dr. Hanley’s
finding that appellant had a temporary aggravation of his condition, that an ongoing requirement
for a light-duty restriction was not related to his May 30, 2009 employment injury, and that the
light-duty restriction was a consequence of a preexisting and progressive degenerative process.
Dr. Grossinger indicated that appellant was working full duty without restriction prior to his
May 30, 2009 work injury and that the preexisting process had not limited his activity until the
aggravation. He noted Dr. Hanley’s finding that appellant had persistent problems after the
May 30, 2009 employment injury despite receiving various treatments which did not improve his
condition and Dr. Hanley’s recommendation for surgical intervention. Dr. Grossinger stated
that, at no point did he indicate that appellant had improved following the May 30, 2009
employment injury and he acknowledged an aggravation. Dr. Hanley’s statements were
consistent with appellant’s aggravation which had remained permanent and required his ongoing
need for a restricted work-duty status.
Dr. Grossinger noted the definition of temporary aggravation under FECA guidelines and
stated that appellant had an acknowledged aggravation, but he did not return to his previous
physical status. Appellant worked in a full-duty status as of May 30, 2009, despite having a
history of low back complaints. There was no gradual worsening of his status, but rather an
abrupt worsening followed by an acknowledged requirement for modified/accommodated duty
which had persisted. Dr. Grossinger noted the definition of permanent aggravation under FECA
guidelines and reported that appellant’s clinical course was consistent with this definition. He
continued to work sporadically after his May 30, 2009 work injury and did so in excess of what
was recommended which contributed to permanent aggravation of his accepted injury.
Dr. Grossinger opined that appellant should be compensated for the intermittent dates he missed
work due to the significant aggravation caused by his May 30, 2009 employment injury. Despite
his best efforts to exceed his medical restrictions and continue working, appellant could not
perform his full-job duties without a worsening of his condition. Dr. Grossinger related that this
led to intermittent days missed from work and appellant’s restrictions. It remained his opinion
that these restrictions were reasonable, necessary, and causally related to the aggravation that
occurred on May 30, 2009. Dr. Grossinger disagreed with Dr. Hanley’s opinion that an
underlying degenerative process caused a sudden worsening of appellant’s status and
requirement for these limitations.
In a September 26, 2014 decision, OWCP denied modification of its termination
decision. It found that Dr. Grossinger’s June 26, 2014 report was of diminished probative value
because it was not based on any objective findings.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

without establishing that the disability ceased or that it was no longer related to the employment.4
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.5 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.6 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.7
ANALYSIS
OWCP accepted that appellant sustained an aggravation of preexisting lumbar
radiculopathy while in the performance of duty on May 30, 2009. Appellant received monetary
compensation after he stopped work. OWCP terminated his wage-loss compensation and
medical benefits effective July 20, 2012 as the accepted condition ceased without residuals or
disability. It based its termination on the medical opinion of Dr. Hanley, a second opinion
physician.
As argued on appeal, the Board finds that Dr. Hanley’s opinion is insufficient to meet
OWCP’s burden of proof to establish that the accepted aggravation of a preexisting lumbar
condition had ceased without residuals. Although Dr. Hanley found, in his May 27, 2012 report,
that the accepted May 30, 2009 aggravation of appellant’s preexisting lumbar radiculopathy was
temporary and it had resolved, he did not provide sufficient medical rationale to explain his
conclusion that appellant no longer had any employment-related residuals. He reported that the
underlying lumbar condition was symptomatic prior to the aggravation and it remained
symptomatic after the aggravation which meant that the temporary aggravation had resolved.
However, a medical report from John Hopkins Medical Department of Orthopedic Surgery dated
January 8, 2009 notes appellant may be employed full-time, full duty with no restrictions. Such
medical status was his base line prior to his accepted May 30, 2009 work injury. As Dr. Hanley
continues to restrict appellant to permanent light duty, he has failed to provide sufficient medical
rationale for his opinion that the residuals of the work injury have resolved. He did not clearly
explain the basis for determining that appellant had only a temporary employment-related
aggravation. Further, Dr. Hanley recommended possible back surgery because appellant’s
previous medical treatment had been unsuccessful, but he did not clearly state that the
recommended surgery was not related to residuals of the accepted work-related injury.
As Dr. Hanley did not clearly find that appellant had no further residuals of his accepted
temporary aggravation of preexisting lumbar radiculopathy, his opinion is insufficient to meet

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).

5

OWCP’s burden of proof to terminate appellant’s wage-loss compensation and medical benefits
for the May 30, 2009 employment injury.8
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective July 20, 2012.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 11, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

J.M., supra note 5.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, LONGMONT POST
OFFICE, Longmont, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
H. Earl Moyer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-104
Issued: March 16, 2007

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 October 16, 2006 appellant, through counsel, filed a timely appeal from merit
decisions dated December 20, 2005 and August 1, 2006 of the Office of Workers’ Compensation
Programs, finding that he did not sustain an emotional condition while in the performance of
duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition
while in the performance of duty.
FACTUAL HISTORY
On August 23, 2005 appellant, then a 52-year-old mail carrier, filed an occupational
disease claim. On March 26, 2005 he first became aware of his emotional problems with clinical
depression and anxiety. An attending psychiatrist told appellant that his frustration at being
asked to perform work beyond his physical limitations in his restricted duty classification and

harassment by his superiors who demanded that he transfer to another classification caused
extreme stress which led to his anxiety, anger and clinical depression. Appellant stopped work
on March 25, 2005 and did not return.
In a statement dated September 26, 2005, Mike Fittje, supervisor, controverted
appellant’s claim. Mr. Fittje and Cathy Minter, the postmaster, instructed appellant on several
occasions not to work outside his restrictions. Appellant was given a limited-duty job offer
which he accepted. Mr. Fittje noted that appellant had a problem with sick leave usage during
the prior three years and had not worked since March 26, 2005.
In an August 23, 2005 statement, appellant further described the development of his
emotional condition. He experienced depression since surgery in 1998 due to a December 27,
1994 work-related injury. Based on the recommendation of an Employee Assistance Program
(EAP) counselor, appellant stated that he was evaluated by R. Kent Hinesley, Ph.D., whose
specialty was in psychology, on November 19, 2004. He had been on permanent restricted duty
since 1998 and harassed by his supervisors and postmaster. Appellant alleged that the
postmaster pressured him to change his craft classification from carrier to clerk and urged him to
resign or retire from the employing establishment. He contended that on several occasions he
was ordered to perform physical work outside his limitations. In a June 22, 2005 medical report,
Dr. Hinesley stated that appellant’s depression was caused by employment activity. He
explained that appellant was asked to do things that added extra stress, which led to frustration,
anger, feelings of hopelessness and depression.
By letter dated October 13, 2005, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit.
In a November 9, 2005 letter, Arlette Elicerio, an employing establishment injury
compensation specialist, controverted appellant’s claim. She contended that appellant failed to
provide any objective documentation to establish his claim. Ms. Elicerio denied that appellant
had been continually harassed by his supervisors or the postmaster and contended that the
allegation was unsubstantiated. She also denied that he was pressured to change crafts, resign or
retire. Ms. Elicerio noted the employing establishment’s responsibility to find work for its
injured employees within their restrictions and in some cases it had changed the craft of some
employees. If it was determined that the employee could no longer perform the essential
functions within his craft, work was found in other crafts within the employee’s restrictions.
Ms. Elicerio indicated that more changes took place in the carrier craft because it involved more
strenuous essential functions than the clerk craft. She denied appellant’s allegation that he was
required to work outside his physical restrictions. Ms. Elicerio noted that he had been
performing limited-duty work since 1998 and that he agreed to work in this position.
By decision dated December 20, 2005, the Office found that appellant did not sustain an
emotional condition while in the performance of duty. It found that he did not submit evidence
to substantiate his allegations that he had been harassed by his supervisors or the postmaster, that
the postmaster pressured him to change his craft classification, resign or retire or that he was
required to work outside his physical limitations.

2

Appellant requested an oral hearing before an Office hearing representative.1 At the
May 16, 2006 hearing, he testified that he began working at the employing establishment in
March 1983 and that he sustained an employment-related back and hip injury on December 27,
1994 which required surgery in 1998. Since 1998, he had physical limitations related to lifting,
standing, walking and bending and he was on permanent restricted duty. Appellant reiterated his
prior allegations and alleged harassment by supervisors, Joe Bachoffer, Murray Johnson, Jerry
Wilson and Barbara Kohlbeck. He alleged harassment by coworkers who complained about him
being in the break room and not having to carry the mail as required in his job description.
While working at the Longmont processing plant, Ms. Kohlbeck assigned him work duties
outside his physical restrictions. In March 2005, she assigned him to process passports but did
not provide him with any training for this task. Ms. Kohlbeck also tried to get him to change his
job classification from carrier to clerk on three or four occasions due to a change in his hours but
he refused to do so. Appellant stated that a coworker told him that he was being punished as the
reason why he was sent to work at the Twin Peaks mail processing facility. He contended that
Ms. Kohlbeck specifically urged him to resign or retire on medical disability on two or three
occasions and she had asked Woody Joiner, an employing establishment employee, to also ask
him.
Appellant contended that he was required to drive and lift beyond his restrictions. He
noted that Ms. Kohlbeck and Gary Hall, a clerk, asked him to lift a parcel weighing either 51 or
52 pounds in a hurry. When appellant lifted the parcel, he pulled a muscle in his neck.
Ms. Kohlbeck filled out an accident report but appellant stated that he did want to pursue it based
on his current claim. Appellant also contended that he also worked outside his physical
restrictions when he processed express mail and took “hot case mail” out to carriers on their
route which involved lifting trays. He had to rush to get the express mail out by a 12:00 noon
deadline and to find carriers on the street. Appellant later testified that, although he was not sure
how much the parcel weighed, it exceeded his restriction of lifting no more than 20 to 25 pounds.
He did not file any grievances against the employing establishment regarding his allegations.
By decision dated August 1, 2006, an Office hearing representative affirmed the
December 20, 2005 decision. He found that Postmaster Minter’s request that appellant change
his craft from letter carrier to clerk constituted an administrative matter and appellant failed to
establish that the employing establishment committed error or abuse. Except for the incident at
the Twin Peaks Processing Plant where Ms. Kohlbeck instructed him to deliver a parcel
weighing 51 pounds, appellant failed to identify specific incidents where he was asked to work
outside his physical restrictions by his supervisors. The hearing representative found that this
incident did not constitute a compensable factor of appellant’s employment. He further found
that appellant failed to establish that he was harassed by his coworkers and that his allegation
that he was assigned the task of handling passport applications without receiving any training did
not constitute compensable factors of his employment.2
1

The Board notes that appellant’s request for a hearing is not contained in the case record.

2

In the August 1, 2006 decision, the hearing representative noted that Ms. Elicerio submitted comments dated
June 16, 2006 in response to appellant’s hearing testimony. The Board notes that the case record does not contain
Ms. Elicerio’s comments. However, based on her comments as related by the hearing representative’s account, it
appears that she merely reiterated her November 9, 2005 comments in denying appellant’s allegations.

3

LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.3 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.7 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.8
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of

3

Pamela R. Rice, 38 ECAB 838 (1987).

4

See Donna Faye Cardwell, 41 ECAB 730 (1990).

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

8

Lillian Cutler, supra note 5.

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

4

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or his frustration from not being
permitted to work in a particular environment or to hold a particular position.11 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.12
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.13
ANALYSIS
Appellant attributed his emotional condition to being required by his supervisor,
Ms. Kohlbeck, to work outside his physical limitations. He contended that she instructed him to
process passports but failed to provide him with any training on how to perform this task.
Appellant further contended that she instructed him to lift a parcel weighing 51 or 52 pounds
which was outside his lifting restrictions. He contended that he processed express mail and took
“hot case mail” out to carriers on their routes which involved lifting trays. The Board has held
that being required to work beyond one’s physical limitations may constitute a compensable
employment factor if such activity is substantiated by the evidence of record.14 Appellant has
not submitted sufficient evidence to establish that he was required to work beyond his physical
limitations. He stated that he was not sure how much the parcel weighed or whether
Ms. Kohlbeck knew how much it weighed. The statements from Mr. Fittje, a supervisor, and
Ms. Elicerio, an injury compensation specialist, indicated that appellant was instructed on several
occasions not to work outside his restrictions and that he had been performing limited-duty work
since 1998. Appellant has not provided evidence sufficient to show that the employing
establishment required him to work beyond his restrictions. His allegation that the employing
establishment failed to provide adequate training, involves an administrative function of the
employer and not to the employee’s regular or specially assigned work duties.15 Appellant has
not submitted any evidence of error or abuse on behalf of the employing establishment with
regard to its training practices. Accordingly, he has not substantiated to compensable factors of
employment as to these allegations.

10

Id.

11

Lillian Cutler, supra note 5.

12

Michael L. Malone, 46 ECAB 957 (1995).

13

Charles D. Edwards, 55 ECAB 258 (2004).

14

Robert W. Johns, 51 ECAB 137 (1999).

15

See Michael Thomas Plante, 44 ECAB 510 (1993).

5

Appellant alleged harassment by his supervisors and coworkers. He stated that
Postmaster Minter and Ms. Kohlbeck pressured him to change his craft classification from
carrier to clerk or to retire or resign from the employing establishment on medical disability.
Appellant contended that his coworkers complained about him being in the break room and not
having to carry mail, as required in his job description. Ms. Elicerio denied appellant’s
allegations of harassment by his supervisors and Postmaster Minter. She stated that he was not
pressured to change crafts, resign or retire. Ms. Elicerio further stated that it was the employing
establishment’s responsibility to find work for injured employees within their restrictions; noting
that, in some cases, it had to change the craft of an employee after it was determined that he
could no longer perform the essential functions of his craft. She explained that more changes
occurred in the carrier craft because it involved more strenuous essential functions than the clerk
craft. Appellant did not submit any witness statements to substantiate his allegations of
harassment, i.e., that he was forced to change his craft and/or to retire. The Board, therefore,
finds that he has not established a factual basis for his perceptions of harassment at the
employing establishment. He did not provide any probative evidence to establish that
harassment occurred.16 Therefore, he did not establish a compensable employment factor with
respect to harassment.17
CONCLUSION
As appellant has not identified any compensable factors of his employment, the Board
finds that he has failed to establish that he sustained an emotional condition while in the
performance of duty.18

16

James E. Norris, 52 ECAB 93 (2000).

17

See Jamel A. White, 54 ECAB 224 (2002).

18

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of his emotional condition, the medical evidence relating appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2006 and December 20, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 16, 2007
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

7