United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.N., Appellant
and
TENNESSEE VALLEY AUTHORITY,
COLBERT STEAM PLANT, Tuscumbia, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1956
Issued: April 15, 2009

Case Submitted on the Record

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

JURISDICTION
On July 7, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated June 3, 2008, which affirmed
the Office’s November 8, 2007 decision denying his traumatic injury claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On September 25, 2007 appellant, then a 44-year-old fossil mechanic technician, filed a
traumatic injury claim alleging that on June 11, 2007 he sustained an injury to his left shoulder
while pushing balls to the right side of the mill while in the performance of duty.1 He stopped
1

Appellant stated that this was on the same shoulder that was previously injured.

work on September 17, 2007.2 The employing establishment indicated that it first had notice of
the claimed injury on September 25, 2007.
The Office received several medical reports from Dr. A.E. Joiner, Jr., a Board-certified
orthopedic surgeon, and treating physician dating from July 31 to September 17, 2007. In a
July 31, 2007 report, Dr. Joiner noted that appellant related that he injured his shoulder on
June 18, 2007 when he was at work. He indicated that appellant related that “he was using the
shoulder quite a bit, at which time he felt something pull in the shoulder and it has just continued
to hurt him and he wanted to come back in today and have it evaluated.” Dr. Joiner also
completed a July 31, 2007 disability certificate advising that appellant could return to full duty.
In an August 30, 2007 report, he diagnosed rotator cuff tendinitis/bursitis in the left shoulder and
a “possible retear of the rotator cuff.” In an August 29, 2007 report, Dr. Jonathan Davis, a
Board-certified diagnostic radiologist, advised that a magnetic resonance imaging (MRI) scan of
the left shoulder, revealed a full thickness rotator cuff tear and acromioclavicular degenerative
changes with subacromial and subdeltoid effusions.
In a September 25, 2007 statement, appellant advised that the date of the injury was
June 11, 2007 not June 18, 2007. He explained that he saw Dr. Joiner on June 28, 2007 and,
when asked about the date of injury, he stated, “a week or so ago.” Appellant stated that
Dr. Joiner inadvertently wrote June 18, 2007 but it should have been June 11, 2007. He also
explained that “the reason for all of my confusion is that I was under the impression that this was
the same injury, not a new claim. This is also why I believe there is no documentation to support
my injury.”
By letter dated October 2, 2007, the Office requested that appellant provide additional
factual and medical information.
In an October 9, 2007 report, Dr. Joiner noted that appellant was seen on July 31, 2007.
He indicated that appellant informed him at that time that he “reinjured his left shoulder at work
on June 18, 2007.” Dr. Joiner indicated that appellant appeared to have a new tear of his rotator
cuff which was going to require surgery.
On October 15, 2007 the Office received a report dated November 30, 2006, from
Dr. Gary Daniel, Board-certified in family medicine, who advised that appellant was in “for a
return to work (nonwork-related/injury/illness), a fitness for duty and also a review of medical
constraints.” Dr. Daniel noted that appellant was out of work for “approximately three to four
months for a nonwork-related problem and has been kept off work for treatment for anger
management and for alcohol abuse and dependence.” He indicated that appellant was currently
in treatment. Dr. Daniel also noted that appellant was in the yard the previous day attending to a
dog when he fell. He indicated that appellant was having “severe pain in his left shoulder
again.” Dr. Daniel advised that appellant could return to work. The Office also received a
nurse’s notes from August 7 to September 4, 2007. An August 7, 2007 note reported that
appellant had stated on July 31, 2007 that he had reinjured his shoulder on June 18, 2007 when

2

The record reflects that appellant has an accepted work-related June 28, 2006 employment injury to the left
shoulder under claim File No. xxxxxx927.

2

he was at work. The nurse stated that appellant related that he was using his shoulder quite a bit
when he felt something pull in the shoulder and it continued to hurt him.
The employing establishment controverted the claim and submitted a September 12,
2007, statement from Doug Keeling, a manager, who alleged that appellant had not reported or
filed a claim for an alleged work injury on June 18, 2007 and that the present matter should not
be treated as a “new injury.” Further, Mr. Keeling alleged that the injury could “not be
substantiated by work orders for the date claimed or by alleged witnesses and there was no report
of injury made to his foreman as the claimant has alleged.” He also indicated that Dr. Daniel’s
November 30, 2006 report supported that appellant’s condition related to an incident where he
had fallen in his front yard while tending to his dogs. Mr. Keeling asserted that the evidence
from appellant did not support that he was reinjured at work. In an October 4, 2007 letter, he
advised that appellant did not report injury to his foreman until August 30, 2007. While
Mr. Keeling noted that appellant alleged that he earlier reported the injury to his foreman, the
foreman did not confirm appellant’s statement. He also alleged that, when told that the date was
not consistent with how the injury occurred, appellant changed the date of the injury to
June 26, 2007. Mr. Keeling stated that appellant “changed the date again from June 26 to 11,
2007 when he filed his [Form] CA-1. In filing his [Form] CA-1 on September 25, 2007
[appellant] claimed: ‘I double checked later to learn it was in fact the 11th.’” Mr. Keeling also
noted that, between June 11 and August 5, 2007, appellant was in the health station on numerous
occasions and never mentioned another injury. He stated that appellant only changed the date of
injury to June 11, 2007 after management told him that the first two dates were inconsistent with
work records for those days. Mr. Keeling asserted that he believed that appellant “reviewed the
work records finding a date to coincide with his alleged injury and reported that date, his third
reported date of injury.” He reiterated that appellant had an injury at home and another injury
under claim File No. xxxxxx485. Furthermore, Mr. Keeling noted that appellant was “showing a
pattern of behavior or elusiveness which raises doubt as to the validity of the claim.”
By decision dated November 8, 2007, the Office denied appellant’s traumatic injury
claim on the grounds that he had not established that an incident occurred in the performance of
duty and had not submitted medical evidence rendering a diagnosis that could be connected to
the claimed work-related events.
On November 13, 2007 appellant’s representative requested a telephonic hearing, which
was held on February 12, 2008. During the hearing, appellant alleged that he was moving metal
balls weighing approximately 300 pounds, when he hurt his left shoulder. He also indicated that
he informed the foreman that he hurt his shoulder but he did not keep a record of the date.
Appellant added that the foreman instructed him to go to the plant nurse. He alleged that the
nurse thought that his shoulder was probably hurting due to the weather and that he did not recall
seeing her make a notation or fill out a claim form. Appellant explained that his shoulder
continued to hurt and that he revisited the nurse on July 17, 2007, at which time she determined
that he may have aggravated his shoulder and advised him to take anti-inflammatory medication.
He alleged that he went back to see the nurse a few more times before she advised him to go see
his doctor. Appellant further attempted to explain the discrepancies regarding the date of the
injury. He noted that he had an accepted shoulder injury, for which he had surgery on
November 10, 2006, and he believed that he had aggravated his left shoulder. Appellant alleged

3

that he did not fill out the claim form until September 2007 and that he was not sure when the
date of injury occurred but he believed that it was on or about July 17, 2007.
In a December 19, 2007 letter, appellant’s representative alleged that the actual date of
the injury was July 17, 2007 not June 11, 2007. He denied that appellant intended to defraud the
employing establishment and sought to explain the discrepancies regarding the date of the injury.
In particular, appellant’s representative noted that appellant originally injured his left shoulder in
June 2006 and underwent surgery in November 2006, which was accepted by the Office. He
also alleged that, on June 18, 2007, a prescription was called in for appellant. Additionally,
appellant’s representative noted that on or about July 17, 2007 appellant was working with his
crew when he placed stress on his left shoulder. He alleged that appellant informed Dondale
Goodloe, the crew supervisor, that his shoulder was hurt and he was instructed to see the nurse.
Appellant’s representative noted that it was not initially clear whether this was a new injury or an
aggravation of the old one. He noted that appellant visited the nurse at least three times between
the date of the injury and July 31, 2007, the date he saw his physician. Appellant’s
representative indicated that appellant informed his supervisor on July 19, 2007 that he had
reinjured his arm. Additionally, he noted that when appellant saw Dr. Joiner on July 31, 2007,
he indicated that he hurt his shoulder a “couple of weeks ago.” The representative stated that it
was unclear why Dr. Joiner selected June 18, 2007 and when contacted, the physician’s office
did not recall the June 18, 2007 notation. He alleged that it was possible that Dr. Joiner was in
the “June mind set” and wrote “June 18[, 2007] rather than July 18[, 2008] as the date of the new
injury.” Appellant’s representative stated that appellant called the doctor for additional pain
medication and it was possible that Dr. Joiner assumed that this was the date of the injury when
preparing his notes. He advised that, after appellant underwent therapy without improvement,
Dr. Joiner ordered an MRI scan on August 21, 2007, which revealed a possible rotator cuff
“retear.” Appellant was instructed to fill out new paperwork as it was a new injury, but appellant
could not recall the exact date. He decided to look at Dr. Joiner’s paperwork, which as noted,
had the incorrect date. Thereafter, appellant met with his union steward and looked up the
records nearest to the date that appellant was working with his crew when he injured his
shoulder. Appellant’s representative related that the records revealed that the date was June 11,
2007, the date appellant listed on the claim form. He stated that it was not unusual for there to be
a delay in reporting when there were two injuries. Appellant’s representative reiterated that
appellant’s physician initially thought he had irritated his old injury until MRI scan results
indicated a new injury. He noted that the actual date of injury was determined to be
July 17, 2007.
In a January 23, 2008 letter, appellant’s representative, provided additional evidence
which included a January 17, 2008 letter from the Assistant Inspector general concluding that
appellant did not file a false claim.3 The Office received physical therapy notes dated March 19
and August 19, 2007 and copies of treatment notes from a nurse dated September 21, 24 and 27
and October 16, 2007.

3

The Office had previously received a draft report from the Office of the inspector general, which had conducted
an investigation into whether appellant filed a false workers’ compensation claim during September 2007.

4

In an April 24, 2008 response, Mr. Keeling referenced Dr. Daniel’s November 30, 2006
report and noted that notes from the employing establishment’s nurse indicated that appellant
never had shoulder surgery. Furthermore, the nurse indicated that she saw appellant for
complaints of pain after he was released to full duty between June 11 and August 6, 2007. The
employing establishment also submitted further evidence. In a statement received April 30,
2008, Corey Saint noted that, on August 20, 2007, another supervisor advised him that appellant
had been complaining about his shoulder aggravating him. He indicated that the nurse contacted
him to let him know that appellant had reinjured his shoulder and was going to have surgery but
that it was going to be problematic as he had not reported the injury. In a statement dated
September 12, 2007, Randall Scott noted “dual rating” appellant from July 19 to 30, 2007 and
stated that appellant advised him that he had aggravated his shoulder on a “20k” while Mr. Scott
was on annual leave. Mr. Scott noted that he informed Mr. Goodloe who recommended that
appellant see a nurse. In a September 13, 2007 statement, Mr. Goodloe, appellant’s foreman,
noted that appellant did not report an injury to him on June 18, 2007 or June 26, 2008. He
advised that, if an injury had been reported, he would have completed a form and sent appellant
to the employing establishment’s nurse. Mr. Goodloe also stated that, during August 2007,
appellant approached him on about three occasions regarding his shoulder but he could not recall
the dates.
Appellant submitted a response which was received on May 30, 2008. He indicated that
he had notified Dr. Joiner that he had fallen at home and denied that he had fabricated any
statements. Appellant also reiterated that he had informed the nurse about his shoulder, but that
she did not take him seriously. He also alleged that his foreman failed to have him sign an injury
report and instead, merely directed him to go see the nurse. Additionally, he alleged that, when
his surgery was denied, he contacted the nurse and that she informed his physician’s nurse that
he should have the surgery and then seek reimbursement afterwards. Appellant alleged that he
reported his injury and that his supervisor did not initially give him a form.
By decision dated June 3, 2008, the Office hearing representative affirmed the Office’s
November 8, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act5 and that an injury was
sustained in the performance of duty.6 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.7
4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

James E. Chadden Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyet, 41 ECAB 992 (1990).

5

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.8 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.10
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.11 A consistent history of the injury as reported on medical reports to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
incident.12 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.13 Although an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence,14 an
employee has not met this burden when there are inconsistencies in the evidence such as to cast
serious doubt upon the validity of the claim.15
ANALYSIS
The Board finds that appellant has not established fact of injury due to inconsistencies in
the evidence that cast serious doubt as to whether the specific traumatic incident occurred at the
time, place and in the manner alleged. Appellant alleged on his September 25, 2007 notice of
traumatic injury that on June 11, 2007, he injured his left shoulder while pushing balls to the
right side of the mill in the performance of duty. He also alleged that he reported the injury to
his foreman. In a July 31, 2007 report, however, Dr. Joiner noted that appellant injured his
shoulder on June 18, 2007 while at work. He repeated that the date of injury was June 18, 2007
8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

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

10

See id.

11

Rex A. Lenk, 35 ECAB 253, 255 (1983).

12

Id. at 255-56.

13

Dorothy M. Kelsey, 32 ECAB 998 (1981).

14

Id.

15

Joseph A. Fournier, 35 ECAB 1175 (1984).

6

in his October 9, 2007 report. In nurses’ notes dated August 7 and September 4, 2007, they
included an annotation that appellant indicated that he had injured himself on June 18, 2007.
However, appellant’s representative alleged that the date of injury was actually July 17, 2008 and
not June 11, 2007. He tried to explain the confusion by explaining that Dr. Joiner made a
mistake and was in the “June mind set” when he wrote “June 18, 2007 rather than July 18, 2008
as the date of the new injury.” Appellant’s representative also indicated that appellant called in
for additional pain medication and it was possible the doctor assumed this was the date of the
new injury. Appellant did not submit any other evidence, such as witness statements or medical
records, which tended to confirm that he sustained an injury on July 17, 2008.
The Board notes that the employing establishment denied that appellant reported or filed
a claim for a new injury on July 17, 2008 or any other date alleged by appellant. The employing
establishment manager, Mr. Keeling, indicated that appellant’s injury could not be substantiated
by work orders, witnesses, or a report of injury to his foreman until August 30, 2007. He
explained that, when appellant was informed that the date was not consistent, “he reviewed the
work records finding a date to coincide with his alleged injury and reported that date, his third
reported date of injury.” Mr. Keeling indicated that appellant changed the date of injury from
June 26 to June 11, 2007. He also indicated that, between June 11 and August 5, 2007, appellant
was in the health station on numerous occasions, and never mentioned another injury.
Furthermore, Mr. Keeling noted that appellant had an injury at home and another injury. He
indicated that appellant was “showing a pattern of behavior or elusiveness which raises doubt as
to the validity of the claim.” Mr. Goodloe, appellant’s foremen advised that appellant did not
report a work injury to him in July 2007. Other statements from employing establishment do not
support that appellant contemporaneously reported a work injury in July 2007.
The Board finds that the circumstances of this case cast serious doubt upon the
occurrence of a June 11 or a July 17, 2007 incident in the manner as described by appellant.
Appellant has given differing dates on which the alleged injury occurred and has not provided
sufficient explanation or corroborating evidence to overcome the inconsistency regarding when
the claimed injury occurred. On the other hand, the employing establishment has submitted
various statements from individuals who worked with or oversaw appellant during the period in
question and none of these individuals indicated that appellant claimed an injury on any of the
dates in question. Given the inconsistencies in the evidence regarding when he sustained his
injury, the Board finds that there is insufficient evidence to establish that appellant sustained a
traumatic incident in the performance of duty as alleged.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2008 is affirmed.
Issued: April 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0843
Issued: December 11, 2018

Case Submitted on the Record

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

JURISDICTION
On March 13, 2018 appellant filed a timely appeal from a February 27, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated March 7, 2016, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 27, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On September 2, 2003 appellant, then a 36-year-old engine utility worker, filed an
occupational disease claim (Form CA-2) asserting that she developed back and leg pain from a
herniated disc she sustained in the performance of her federal employment duties. She first became
aware of her condition on March 23, 2003, but did not realize a connection to her federal
employment until June 9, 2003. OWCP accepted the claim for lumbosacral sprain and displaced
lumbar intervertebral disc. It authorized L5-S1 lumbar laminectomy surgeries, which were
performed on August 28, 2003 and September 8, 2006. OWCP paid appellant wage-loss
compensation and medical benefits on the supplemental rolls as of February 8, 2004 and on the
periodic rolls as of June 13, 2004.
On March 24, 2010 OWCP issued a notice of proposed reduction of compensation based
on appellant’s ability to earn wages as a user support analyst/computer support specialist
Dictionary of Occupational Titles (DOT #SOC # 15-1041, at the rate of $576.92 per week.
By decision dated May 27, 2010, OWCP finalized its proposed reduction of compensation
benefits, finding that the position of user support analyst/computer support specialist was
medically and vocationally suitable, reasonably available and therefore representative of her wageearning capacity.
On January 20, 2016 OWCP issued a notice proposing to modify appellant’s loss of wageearning capacity (LWEC) determination based on medical evidence establishing that she was
capable of performing all the duties of her date-of-injury position.
By decision dated March 7, 2016, OWCP modified the May 27, 2010 LWEC
determination to zero to reflect that appellant was capable of returning to her date-of-injury
position. It explained that the weight of the medical evidence demonstrated that her condition had
“materially changed and improved.”
On February 6, 2018 OWCP received appellant’s January 26, 2018 request for a telephonic
hearing before an OWCP hearing representative regarding the March 7, 2016 decision. The
request was postmarked January 31, 2018.
By decision dated February 27, 2018, OWCP denied appellant’s request for a telephonic
hearing, finding that her request was untimely as it was not filed within 30 days of the March 7,
2016 decision. It exercised its discretion and performed a limited, nonmerit review of the evidence
following the issuance of the March 7, 2016 decision. OWCP further denied the hearing request,
however, as the issue in the case could equally be addressed by requesting reconsideration and
submitting new and relevant evidence.

2

LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: “Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.”3
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between two formats: an oral hearing or a review of the written record.
In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.4 A request for either an oral hearing or a review of the written record must be sent,
in writing, within 30 days of the date of the decision for which the hearing is sought.5 A claimant
is not entitled to a hearing or a review of the written record if the request is not made within 30
days of the date of the decision.6
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record and must properly exercise such
discretion.7
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely filed. OWCP’s regulations provide that the hearing request must be sent
within 30 days of the date of the decision for which a hearing is sought.8 As her request was
postmarked January 31, 2018, more than 30 days after OWCP’s March 7, 2016 decision, it was
untimely filed and she was not entitled to an oral hearing as a matter of right.9
The Board further finds that OWCP’s hearing representative properly exercised her
discretion in denying appellant’s request for an oral hearing by determining that the issue in the
case could be addressed equally well through a request for reconsideration and the submission of
new evidence relevant to the issue at hand.10 The Board has held that the only limitation on
OWCP’s discretionary authority is reasonableness. An abuse of discretion is generally shown
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a); W.B., Docket No. 18-0878 (issued October 12, 2018); G.W., Docket No. 10-0782 (issued
April 23, 2010); James Smith, 53 ECAB 188 (2001).
6

See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

7

20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018).

8

See supra note 6.

9

See J.A., Docket No. 17-1744 (issued January 9, 2018).

10

See D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

3

through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to logic and probable deduction from established facts.11 In this case, the
evidence of record does not establish that OWCP abused its discretion in denying appellant’s
request for an oral hearing. Accordingly, the Board finds that OWCP properly denied her oral
hearing request.12
On appeal appellant raises arguments relevant to the merits of this claim. The only issue
before the Board, however, is whether OWCP properly denied her request for an oral hearing as
untimely filed. As the Board lacks jurisdiction to review the underlying merits of appellant’s
claim, it cannot review her arguments regarding modification of the March 7, 2016 LWEC
determination.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).

11

See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

12

See J.O., Docket No. 17-0789 (issued May 15, 2018).

13

See G.S., Docket No. 18-0388 (issued July 19, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., claiming as personal representative of the
estate of A.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Denver, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-1922
Issued: June 19, 2008

Case Submitted on the Record

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

JURISDICTION
On July 13, 2007 appellant filed a timely appeal from an April 5, 2007 decision of the
Office of Workers’ Compensation Programs, denying compensation for death benefits. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the employee’s pulmonary fibrosis and his death on July 21, 2005
were causally related to factors of his federal employment.
FACTUAL HISTORY
On July 18, 2005 the employee, then a 75-year-old retired mine safety and health
inspector, filed an occupational disease claim for pulmonary fibrosis.1 He indicated that in
1

Appellant retired in October 1992.

April 1988 he first became aware of his condition and that it was caused or aggravated by his
occupational exposure to dust and other airborne particles in mines and mills.2
In a July 19, 2005 report, Dr. Amitab Puri, an attending Board-certified pulmonologist,
stated that the employee had disseminated prostate cancer and what appeared to be interstitial
lung disease or pulmonary scarring, also known as pulmonary fibrosis.3
In an August 11, 2005 letter, the Office requested a comprehensive medical report
explaining the relationship of the employee’s pulmonary fibrosis condition to his federal
employment.
By letter dated September 8, 2005, appellant, the employee’s wife, advised that he had
passed away. A state death certificate dated August 16, 2005 indicated that the employee’s death
on July 21, 2005 was caused by prostate cancer which was due to pulmonary interstitial fibrosis
as a consequence of “miner’s lung.”
A March 9, 1977 pulmonary function test for the employee was reported as normal. A
report of a July 21, 1986 medical examination for the employing establishment indicated no
pulmonary problems.
In an October 21, 2005 report, Dr. Richard K. Rosenberg, an attending oncologist, noted
that he treated the employee for metastastic prostate cancer from January 26 to July 21, 2005.
He stated:
“[The employee] developed respiratory difficulties that prevented him from
receiving appropriate treatment for his prostate cancer. The first sign of his
respiratory difficulty came to my attention on April 8, 2005 when he complained
of shortness of breath. [The employee’s] dyspnea [shortness of breath] worsened
to the point that I referred him to a pulmonologist, Dr. Amitab Puri, on
May 23, 2005. Dr. Puri ultimately concluded that [the employee] had pulmonary
fibrosis and nonspecific alveolitis [inflammation of lung alveoli].”
By decision dated January 31, 2006, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that the employee’s pulmonary fibrosis and death were
causally related to factors of his employment.
On January 16, 2007 appellant requested reconsideration and submitted additional
evidence. May 18 and 23, 2005 progress notes from Dr. Rosenberg contained diagnoses of
prostate cancer and “dyspnea/asthma/COPD (chronic obstructive pulmonary disease).” A
June 24, 2005 radiology report indicated findings most compatible with moderately severe
pulmonary fibrosis. A June 27, 2005 hospital discharge summary from Dr. Michael R. Jerman
noted diagnoses of atherosclerotic coronary artery disease, chronic atrial fibrillation, metastatic
prostate carcinoma, anemia, pulmonary fibrosis complicated by nonspecific alveolitis, a urinary
2

The Office accepted that the employee was exposed to mine dust during his federal employment.

3

Pulmonary fibrosis is the formation of fibrous tissue and the chronic inflammation of the pulmonary alveolar
walls. See DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003) 698.

2

tract infection, history of dyslipidemia and a history of mild aortic stenosis and regurgitation. In
a July 6, 2005 report (hospital physical assessment), Dr. Rosenberg diagnosed prostate cancer
and dyspnea.
By decision dated April 5, 2007, the Office denied modification of the January 31, 2006
decision.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s pulmonary fibrosis and death was causally related his
federal employment. This burden includes the necessity of furnishing medical opinion evidence
of a cause and effect relationship based on a proper factual and medical background.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical evidence.5 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s 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.6
ANALYSIS
A June 24, 2005 radiology report indicated findings compatible with moderately severe
pulmonary fibrosis but did not address the issue of causal relationship. A June 27, 2005 hospital
discharge summary report from Dr. Jerman noted numerous diagnoses, including metastatic
prostate carcinoma and pulmonary fibrosis complicated by nonspecific alveolitis. However,
Dr. Jerman did not address the cause of these conditions. Because the radiology report and
hospital discharge report did not contain a work history and a rationalized medical opinion as to
the cause of the employee’s pulmonary fibrosis, they are not sufficient to establish that his
pulmonary fibrosis and death were causally related to factors of his federal employment.
In a July 19, 2005 report, Dr. Puri stated that the employee had disseminated prostate
cancer and what appeared to be interstitial lung disease or pulmonary scarring, also known as
pulmonary fibrosis. He did not provide any history of employment factors as being a cause of
the pulmonary fibrosis or address the issue of whether the lung condition was related by direct
cause or aggravation. Because this report is lacking a complete and accurate factual and medical
history and a rationalized opinion regarding causal relationship, it is not sufficient to establish
that the employee’s pulmonary fibrosis and death were causally related to his employment.
4

Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); Kathy Marshall (Dennis Marshall), 45 ECAB 827 (1994).

5

Michael S. Mina, 57 ECAB 379 ( 2006).

6

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

3

The May 18 and 23, 2005 progress notes and July 6, 2005 hospital assessment from
Dr. Rosenberg contained diagnoses of prostate cancer and “dyspnea/asthma/COPD.” In an
October 21, 2005 report, Dr. Rosenberg stated that he treated the employee for metastastic
prostate cancer from January 26 to July 21, 2005. He stated that the employee developed
respiratory difficulties that prevented him from receiving appropriate treatment for his prostate
cancer and he referred him to a pulmonologist, Dr. Puri. However, Dr. Rosenberg did not
include a work history or discuss the cause of the employee’s respiratory problems in his
progress notes and report. Therefore, this evidence is not sufficient to establish that the
employee’s pulmonary fibrosis and death were causally related to factors of his employment.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that the
employee’s pulmonary fibrosis and death were causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2007 is affirmed.
Issued: June 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, FREEDOM STATION,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Geraldine Sumter, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-21
Issued: March 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 2, 2013 appellant, through her attorney, filed a timely appeal from an April 8,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration.1 As more than 180 days has elapsed between the last merit decision
dated April 5, 2012 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of her claim pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from April 8, 2013, the date of
OWCP’s last merit decision, or October 7, 2013. Since using October 8, 2013, the date the appeal was received by
the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the employing establishment postmark is October 2, 2013, which renders the appeal timely filed.
20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128.
FACTUAL HISTORY
On August 7, 2007 appellant, then a 36-year-old casual city carrier, filed a traumatic
injury claim alleging that on June 30, 2006 she injured her left leg when she stepped into a hole
delivering mail. She stopped work on June 30, 2006. OWCP accepted the claim for a left knee
strain.3 On September 15, 2006 appellant underwent a debridement of an anterior horn tear of
the left medial meniscus and chondroplasty of the femoral trochlea. On September 8, 2008 she
had a lateral release of the left knee and plica excision with debridement of scar tissue.
By decision dated June 25, 2008, OWCP found that appellant had not established that she
was disabled from work beginning June 30, 2006 due to her accepted employment injury. On
March 17, 2009 OWCP’s hearing representative vacated the June 25, 2008 decision and
remanded the case for OWCP to refer appellant for a second opinion examination to determine
her exact diagnoses and the extent of disability from employment due to her work injury.
In a decision dated July 8, 2009, OWCP denied appellant’s claim for disability
compensation from June 30, 2006 to April 2, 2008. It found that the opinion of Dr. Harrison A.
Latimer, a Board-certified orthopedic surgeon and OWCP referral physician, constituted the
weight of the evidence and established that appellant sustained only a strain as a result of her
work injury and that any period of disability lasted only around four weeks. On December 28,
2009 OWCP’s hearing representative affirmed the July 8, 2009 decision. In decisions dated
February 16, 2011 and April 5, 2012, OWCP denied modification of its finding that appellant
had not established employment-related disability from June 30, 2006 to April 2, 2008.
On April 4, 2013 appellant, through her representative, requested reconsideration.
Counsel argued that appellant had not been released to return to employment before her
September 15, 2006 surgery. She described appellant’s medical treatment and asserted that the
newly submitted September 27, 2012 report from Dr. George A. Flowers, a Board-certified
orthopedic surgeon, established that her disability was causally related to her employment injury.
In a report dated September 27, 2012, Dr. Flowers related that he treated appellant for
injuries sustained in September 2006 when she stepped in a hole.4 He noted that her work duties
required significant walking and standing and found that she should not perform extensive
walking due to her knee condition. Dr. Flowers indicated that the issue of whether appellant
could perform her usual employment from June 2006 to April 2008 was “answered in my
response to you in the previous numbered response.”
3

In decisions dated August 14, 2007 and June 23, 2008, OWCP denied appellant’s claim for continuation of pay
as the injury was not reported on an approved form within 30 days of the injury.
4

Dr. Flowers indicated that appellant’s injury occurred in September 2006 rather than June 2006; however, this
appears to be a typographical error.

2

By decision dated April 8, 2013, OWCP denied appellant’s request for reconsideration as
the evidence submitted was cumulative and insufficient to warrant reopening her case for further
merit review under section 8128. It found that the April 4, 2014 letter from her attorney
duplicated a prior reconsideration request dated February 15, 2012. OWCP further determined
that Dr. Flowers’ September 27, 2012 report was substantially similar to a prior report dated
September 8, 2008.
On appeal, counsel describes the factual and medical history of the case and asserts that
all of appellant’s physicians found that her June 30, 2006 injury impeded her ability to walk or
stand as required by the duties of her position. She argues that OWCP placed unwarranted
weight on the opinion of the second opinion physician.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.11

5

Supra note 2. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at anytime on his own motion or on application.”
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
11

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

3

ANALYSIS
OWCP issued a decision on April 5, 2012 denying modification of its determination that
appellant had not submitted medical evidence sufficient to establish that she was disabled from
June 30, 2006 to April 2, 2008. On April 4, 2013 appellant sought reconsideration of the April 5,
2012 decision. In an April 8, 2013 decision, OWCP denied her request for reconsideration after
finding that the evidence and arguments submitted were cumulative in nature.
As noted above, the Board does not have jurisdiction over the April 5, 2012 decision.
The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In her
April 4, 2013 request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. She did not advance a new and relevant legal argument not
previously considered. In a statement dated April 4, 2013, counsel argued that appellant had not
been released to return to work by her physicians at the time of her September 15, 2006 surgery.
Additionally, she summarized the medical evidence and asserted that the reports from appellant’s
attending physicians establish that she was disabled due to her work injury. However, counsel
previously raised the identical arguments on February 15, 2012. Her arguments are thus
repetitious of evidence already of record and considered by OWCP. Arguments which repeat or
duplicate evidence already in the case record do not constitute a basis for reopening a case.12
A claimant may also be entitled to a merit review by submitting pertinent new and
relevant evidence, but appellant did not submit any pertinent new and relevant medical evidence
in this case. In a report dated September 27, 2012, Dr. Flowers discussed her history of an injury
when she stepped in a hole. He referenced a previously submitted report in response to the
question of whether appellant could perform her regular work duties from June 2006 to
April 2008. Dr. Flowers did not directly address the relevant issue of whether she was disabled
from June 2006 to April 2008 but instead referred to his findings in a prior report. Evidence that
does not address the particular issue involved does not warrant reopening a case for merit
review.13
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, counsel argues the merits of the case. As noted above, the Board only has
jurisdiction over the nonmerit decision and therefore is precluded from conducting a merit
review.

12

See C.N., Docket No. 08-1569 (issued December 9, 2008); Richard Yadron, 57 ECAB 207 (2005).

13

See J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF DEFENSE, TINKER AIR
FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2432
Issued: June 15, 2009

Case Submitted on the Record

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

JURISDICTION
On September 10, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ July 15, 2008 schedule award for monaural hearing loss of the left ear.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than 5.6 percent monaural hearing loss in the left
ear for which he received a schedule award.
FACTUAL HISTORY
On October 25, 2007 appellant, then a 61-year-old motor vehicle operator, filed an
occupational disease claim alleging that he sustained hearing loss due to hazardous noise levels
in the course of his federal employment. He first became aware of his hearing loss and related it
to his employment on September 28, 2007. Appellant’s last exposure to workplace noise was on
October 1, 2007, the date on which he retired.

On November 6, 2007 the Office requested additional evidence. Subsequently, appellant
and the employing establishment submitted evidence pertaining to his work at the employing
establishment from 1965 to 2007 and exposure to noise from various sources. Additionally,
several audiograms, dated between August 30, 1977 and October 9, 2007, were submitted.
On December 4, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Richard Dawson, a Board-certified otolaryngologist, for a second opinion
evaluation.
In a January 9, 2008 report, Dr. Dawson noted examining appellant on January 8, 2008
and reviewed his medical history. He advised that appellant had normal audiogram results at the
beginning of his federal employment on August 30, 1977. Dr. Dawson compared the present
audiometric findings to the 1977 tests and found that appellant had a sensorineural hearing loss
in excess of what would normally be predicated on the basis of presbycusis. He identified
appellant’s workplace exposures as sufficient in intensity and duration to cause hearing loss.
Dr. Dawson diagnosed bilateral high-tone sensorineural hearing loss due to noise exposure in
appellant’s federal employment. He noted that the fact that one ear differed from the other may
be accounted for by the open window on the driver’s side of the trucks appellant drove.
Dr. Dawson recommended left ear amplification. He found that appellant had zero percent
monaural impairment of the right ear and six percent monaural impairment of the left ear. A
January 8, 2008 audiogram performed on Dr. Dawson’s behalf showed the following decibel
losses at frequencies of 500, 1,000, 2,000 and 3,000 cycles per second: 10, 10, 15 and 35 for the
right ear and 15, 20, 30 and 50 for the left ear.
By decision dated January 28, 2008, the Office accepted appellant’s claim for binaural
sensorineural hearing loss.
On January 31, 2008 an Office medical adviser reviewed Dr. Dawson’s January 9, 2008
otologic examination report and audiometric test results. He concluded that appellant had a 5.6
percent monaural hearing loss in the left ear. The Office medical adviser opined that hearing
aids should be authorized and that the date of maximum medical improvement was January 8,
2008, the date of Dr. Dawson’s examination. On July 10, 2008 appellant filed a claim for a
schedule award.
By decision dated July 15, 2008, the Office granted a schedule award for 5.6 percent
monaural hearing loss of the left ear. The period of the award ran for 3.12 weeks from January 8
to 29, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. Where the loss of use is less than 100 percent, the amount of compensation is paid in
proportion to the percentage loss of use. The Act, however, does not specify the manner in
which the percentage loss of a member shall be determined. The method used in making such
determination is a matter which rests in the sound discretion of the Office. For consistent results

2

and to ensure equal justice, the Board has authorized the use of a single set of tables so that there
may be uniform standards applicable to all claimants. The American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001) has been adopted by the Office
for evaluating schedule losses and the Board has concurred in such adoption.1
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss, the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.2
ANALYSIS
Appellant filed a claim for hearing loss and the Office developed the claim by referring
him to Dr. Dawson who found that appellant’s hearing loss was due to noise exposure
encountered in his workplace. Dr. Dawson had an audiogram performed on his behalf and
recommended amplification for the left ear.
The Office medical adviser applied the Office’s standard procedures, as noted in the
January 8, 2008 audiogram. It tested decibel losses at 500, 1,000, 2,000 and 3,000 cycles per
second and recorded decibel losses of 10, 10, 15 and 35 respectively in the right ear. The total
decibel loss in the right ear is 70 decibels. When divided by 4, the result is an average hearing
loss of 17.5 decibels. The average loss of 17.5 decibels is reduced by the fence of 25 decibels to
equal 0, which when multiplied by the established factor of 1.5, resulted in 0 percent impairment
of the right ear. The audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and
3,000 cycles per second and recorded decibel losses of 15, 20, 30 and 50 respectively for a total
decibel loss of 115 decibels. When divided by 4, the result is an average hearing loss of 28.75
decibels. The average loss of 28.75 is reduced by the fence of 25 decibels to equal 3.75, which
when multiplied by the established factor of 1.5, resulted in 5.625 percent impairment of the left
ear.
The Office medical adviser concluded that appellant had 5.6 percent hearing loss in the
left ear and the Office’s July 15, 2008 schedule award decision states that appellant has 5.6
percent impairment. The Board notes, however, that Office policy is to round the calculated
percentage of impairment to the nearest whole number.3 Thus, appellant’s left ear hearing loss
1

Harry Butler, 43 ECAB 859 (1992). See 20 C.F.R. § 10.404.

2

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald Stockstad, 53 ECAB 301 (2002),
petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).
3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (October 1990).

3

should be rounded to six percent impairment. However, the Board notes that this error is
harmless as the Office’s July 15, 2008 decision reflects that the period of the award, January 8 to
29, 2008, represents the number of weeks’ compensation is to be paid in proportion to the
percentage loss of use for permanent loss of appellant’s hearing. As noted, when the loss of use
is less than 100 percent, the amount of compensation is paid in proportion to the percentage loss
of use. The compensation schedule in the Act provides that the maximum number of weeks of
compensation for hearing loss in one ear is 52 weeks.4 Six percent of 52 weeks is 3.12 weeks of
compensation, which is the period that the Office paid appellant.
On appeal, appellant asserts that his hearing loss occurred from 1997 to 2007 and
questions why this period was not considered for compensation. As noted, section 8107 provides
for payment of the schedule awards in proportion to the percentage of loss of use. Six percent
monaural hearing loss yields 3.12 weeks of compensation. Regarding the time at which the 3.12
weeks of compensation begins to run, it is well established that the period covered by a schedule
award commences on the date that the employee reaches maximum medical improvement from
the residuals of the employment injury. The determination of whether maximum medical
improvement has been reached was based on the medical evidence of record. The date is usually
the date of the medical examination which determined the extent of the impairment.5 Here, the
date of the examination on which the schedule award was based is Dr. Dawson’s January 8, 2008
examination. The Board has noted that factors such as employability or limitations on daily
activities have no bearing on the calculation of a schedule award.6 The Board finds that the
Office paid appellant’s compensation for the appropriate time period.
CONCLUSION
The Board finds that the Office’s July 15, 2008 decision awarded appellant compensation
for the appropriate period. The decision is modified to reflect that appellant’s employmentrelated hearing loss is six percent of the left ear.

4

5 U.S.C. § 8107(c)(13)(a).

5

See Richard Larry Enders, 48 ECAB 184 (1996); see also P.C., 58 ECAB ___ (Docket No. 07-410, issued
May 31, 2007).
6

Kimberly M. Held, 56 ECAB 670 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 15, 2008 is affirmed, as modified.
Issued: June 15, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pacoima, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1845
Issued: April 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2010 appellant, through his attorney, filed a timely appeal of an April 19, 2010
Office of Workers’ Compensation Programs’ merit decision. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to consider the merits of the case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation benefits based
on her failure to undergo vocational rehabilitation under sections 8104 and 8113(b) of the Act.
FACTUAL HISTORY
On April 23, 2003 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim alleging that she developed lower back and right leg pain as a result of her
employment duties of twisting, bending and lifting. The Office accepted her claim for herniated
1

5 U.S.C. § 8101 et seq.

lumbar disc and lumbar radiculopathy on July 2, 2003. It accepted the additional conditions of
displacement of lumbar intervertebral disc with myelopathy and thoracic or lumbar neuritis or
radiculitis on July 17, 2009.
In a report dated May 26, 2009, appellant’s attending physician, Dr. Richard Feldman, a
Board-certified orthopedic surgeon, found that appellant was capable of working within
restrictions. The Office entered appellant on the periodic rolls on July 17, 2009. On that date, it
referred her for vocational rehabilitation services. The vocational rehabilitation counselor
completed a report on August 29, 2009 stating that the employing establishment was unable to
accommodate appellant’s restrictions.
In a report dated September 7, 2009, the vocational rehabilitation counselor determined
the positions available to appellant based on her education and skills.
Appellant telephoned the Office on September 29, 2009 and stated that she was currently
totally disabled and unable to cooperate with vocational rehabilitation efforts. In a letter dated
October 2, 2009, the Office informed her of her obligation to comply with vocation rehabilitation
efforts, and afforded her 30 days to contact the vocational rehabilitation counselor.
Dr. Feldman completed a note on November 9, 2009 and indicated that appellant must be
able to sit and stand as needed, could not lift over 10 pounds and could not perform constant
bending and stooping.
The vocational rehabilitation counselor completed a report on November 10, 2009 and
noted that appellant had investigated enrolling in Concorde Career College and that goal
selection was the medical-clerical field.
The Office noted that appellant was to begin school on November 23, 2009 as part of her
vocational rehabilitation plan. It directed her to attend class or sanctions would be enforced.
On December 2, 2009 the Office informed appellant that she could receive maintenance
compensation such as transportation, meals, etc., provided she maintained average progress and
attendance at the American Pacific College; ARISE Associates. This training had been designed
to prepare her for positions as either an insurance clerk; a receptionist, doctor’s office; or an
administrative assistant, according to an October 22, 2009 labor market survey. In a separate
letter dated December 2, 2009, the Office noted approving the plan to return to work in one of
these capacities and noted that appellant would earn approximately $22,360.00 per year in these
positions.
By letter dated December 14, 2009, the Office requested a report from Dr. Feldman
addressing appellant’s ability to participate in vocational rehabilitation efforts, noting that she
alleged that she was unable to participate in classroom instruction because of her back pain. In a
report dated December 18, 2009, Dr. Feldman examined her and diagnosed lumbar spinal
stenosis with increasing right leg radiculopathy. He noted that appellant had increasing
discomfort in her back radiating down her right leg and that she was having difficulty attending
school for her vocational rehabilitation. Dr. Feldman noted that prolonged sitting was a risk
factor for the development of back pain and suggested that she be allowed to alternate sitting and

2

standing. He stated that he was altering appellant’s anti-inflammatory medication, that if this
failed he would then consider epidural corticosteroid injection or surgical intervention.
In a report dated January 9, 2010, the vocational rehabilitation counselor stated that
appellant attended trial training classes through November 20, 2009, but left early due to
complaints of pain. On December 2, 2009 appellant focused on her physical concerns, but
ultimately agreed to try the full-time schedule.
The Office informed appellant on January 12, 2010 that she had refused to participate in a
training program as she had missed four days of school due to an upper respiratory infection. It
directed her to comply with the approved training plan within 30 days or her rehabilitation effort
would be terminated and her compensation reduced.
On March 22, 2010 Dr. Feldman stated that on March 23, 2010 appellant could work
only four hours a day with no constant sitting or standing.
The vocational rehabilitation counselor completed a report on March 31, 2010 and stated
that appellant had completed half of her training program. He noted that beginning in April she
planned to reduce her hours to four hours a day in accordance with Dr. Feldman’s report.
By decision dated April 19, 2010, the Office reduced appellant’s compensation benefits
as she failed to undergo vocational rehabilitation based on her capacity to earn wages as a
doctor’s receptionist.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Disability means the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury. It may be partial or total.3 Once the Office accepts a claim, it has the burden
of proving that the disability has ceased or lessened before it may terminate or modify
compensation benefits.4
The Office may direct a permanently disabled employee to undergo vocational
rehabilitation.5 If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed, the Office, on review under 5 U.S.C. § 8128 and after finding
that in the absence of the failure the wage-earning capacity of the individual would probably
have substantially increased, may reduce prospectively the monetary compensation of the
individual in accordance with what would probably have been his or her wage-earning capacity
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

S.F., 59 ECAB 642, 646 (2008); Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238,
241 (1984).
5

5 U.S.C. § 8104(a).

3

in the absence of the failure, until the individual in good faith complies with the direction of the
Office.6
Where a suitable job has been identified, the Office will reduce the employee’s future
monetary compensation based on the amount which would likely have been his or her wageearning capacity had he or she undergone vocational rehabilitation. It will determine this amount
in accordance with the job identified through the vocational rehabilitation planning process,
which includes meetings with the Office nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the direction of the
Office.7
ANALYSIS
Upon receiving medical evidence that appellant was not totally disabled for all work, but
was capable of working four hours a day with restrictions, the Office properly referred her to
vocation rehabilitation services. Appellant generally cooperated with the early and necessary
stages of the vocational rehabilitation effort as she met with the rehabilitation counselor and
underwent vocational testing. She also enrolled in and began classes as part of her vocational
rehabilitation. After attending classes in December 2009, appellant began to report that she was
incapable of remaining in class for the entire day.
Appellant submitted reports from Dr. Feldman dated December 18, 2009 and March 22,
2010 addressing her physical condition. Initially, Dr. Feldman stated that she had increasing
discomfort in her back radiating into her right leg and noted that prolonged sitting was a risk
factor for the development of back pain. He suggested that appellant be allowed to alternate
sitting and standing, but did not provide additional restrictions. However, on March 22, 2010
Dr. Feldman found that she could work only four hours a day with no constant sitting or
standing.
The Office found that the medical evidence supported appellant’s ability to participate in
the vocational rehabilitation program. The Board finds, however, that she has submitted
sufficient evidence that she was unable to participate in the designated vocational rehabilitation
program on a full-time basis.8 The Office has the burden of proof to justify any modification of
appellant’s compensation for wage loss, including any reduction under section 8113(b) of the
Act.9 Appellant submitted probative medical evidence supporting her position that full-time
6

Id. at § 8113(b).

7

20 C.F.R. § 10.519(a).

8

See Yusuf D. Amin, 47 ECAB 804 (1996) (where a psychiatrist and a clinical psychologist substantiated that the
employee’s headaches, as well as his accepted emotional condition, caused marked interference with his ability to
comprehend and follow instructions and marked impairment of other skills, such as the ability to make
generalizations or decisions, necessary to carry out vocational testing activities, the Board held that, as appellant did
substantiate his allegation of inability to participate in vocational rehabilitation with medical evidence, he did
establish good cause for his failure to fully cooperate with vocational rehabilitation).
9

James B. Christenson, 47 ECAB 775, 778 (1996); Patricia A. Keller, 45 ECAB 278 (1993); Wilson L. Clow, Jr.,
44 ECAB 157 (1992). Harold S. McGough, 36 ECAB 332 (1984); L.F., Docket No. 10-1119 (issued
February 1, 2011).

4

vocational rehabilitation efforts were beyond her physical abilities. The Office did not explore
the possibility of a part-time academic schedule. It took no further steps to develop the medical
evidence or to clarify appellant’s ability to attend training. For example, the Office does not
dispute that appellant missed four days of class because of a legitimate upper respiratory
infection. As such, the Board finds that the Office did not meet its burden to justify the penalty
under section 8113(b).
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation for failing
to cooperate with vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carrollton, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1520
Issued: March 22, 2011

Case Submitted on the Record

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

JURISDICTION
On May 17, 2010 appellant filed an appeal from a March 29, 2010 decision of an Office
of Workers’ Compensation Programs’ hearing representative who affirmed the termination of
her monetary compensation on the grounds that she refused an offer of suitable work. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective November 23, 2008 pursuant to 5 U.S.C. § 8106.
On appeal appellant’s attorney asserts that the decision is contrary to fact and law.
FACTUAL HISTORY
On January 8, 2009 appellant, then a 42-year-old city carrier, sustained a laceration of the
right hand caused by a dog bite incurred while delivering mail. In a January 8, 2009 emergency
room report, Dr. Michael Glassinger, Board-certified in emergency medicine, diagnosed a
puncture wound to the right wrist. A right wrist x-ray showed no fractures or dislocations, mild

degenerative joint disease in the distal radial ulnar joint, and intrinsically normal carpal bones
and proximal metacarpals. On January 9, 2009 Dr. Glassinger described physical findings of a
superficial laceration to the right wrist from a dog bite. He advised that appellant could return to
work but should limit use of the right wrist for three days and follow-up with her primary care
physician. Appellant did not return to work.
Duty status reports dated January 12 and 30, 2009 indicated that appellant could not
work.1 In a February 17, 2009 report, Dr. Kelly Alana, a chiropractor, noted appellant’s
complaint of right upper extremity pain and discomfort. She provided findings on physical
examination and diagnosed sprain/strain to the wrist, forearm and elbow and laceration to the
right hand. A February 20, 2009 magnetic resonance imaging (MRI) scan of the right wrist and
right forearm demonstrated no abnormality. A March 9, 2009 MRI scan of the right elbow was
unremarkable. On March 2, 2009 Dr. Alana advised that appellant could work in a sedentary
category.
In a March 5, 2009 report, Dr. Diane S. Litke, a Board-certified orthopedic surgeon,
noted the history of injury and provided right upper extremity examination findings, noting a
small dog bite scar on the right wrist. Neurologic examination was normal. Tinel’s and Phalen’s
signs were negative for numbness but both elicited pain and Finkelstein’s test was positive for
pain in the mid-portion of the wrist. There was tenderness over the lateral epicondyle, forearm
extensor muscles and over the dorsum of the wrist and no appreciable swelling but some atrophy
of forearm muscles. Dr. Litke reported that appellant had no strength against resistance in finger
abduction, finger pinch, grip, wrist flexion or extension. She diagnosed dog bite to the forearm
consistent with contusion and possible tenosynovitis. Dr. Litke found that appellant’s extreme
lack of strength indicated either severe neurologic damage to all three major nerves in the hand,
which did not occur, or lack of effort as her symptoms were out of proportion to her injury. She
recommended a nerve conduction study (NCS). Randy Gibson, a licensed professional
counselor, performed a behavioral health evaluation on March 10, 2009 and diagnosed posttraumatic stress disorder and depression with anxiety due to chronic pain and physical
limitations.
An April 3, 2009 bilateral upper extremity electromyography (EMG) and NCS studies
were interpreted as normal by Dr. Sameer A. Fino, a Board-certified physiatrist. No carpal
tunnel syndrome, ulnar or radial nerve injury was identified. In reports dated April 3 to May 18,
2009, Dr. Fino advised that appellant could not work, noting that she “seems to have RSD.” On
June 15, 2009 he stated that appellant’s report that her pain was getting worse, moving up the
arm into the shoulder. Dr. Fino found decreased wrist range of motion on physical examination
and diagnosed wrist pain and right arm RSD. He advised that she could return to work for four
hours a day on June 22, 2009.
On June 23, 2009 appellant accepted a modified assignment as lobby director for four
hours a day. The duties included meeting and greeting customers, writing second notices on all
accountable mail and assisting customers at the automated stamp machine. Appellant returned to

1

The signatures are illegible.

2

work for 1.53 hours on June 24, 2009 but stopped, noting she was in excruciating pain and could
not work.
By letter dated June 25, 2009, the Office advised appellant that the position offered was
suitable. Appellant was notified that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of the Federal Employees’ Compensation
Act,2 her right to compensation for wage loss or a schedule award would be terminated. She was
given 30 days to respond. In an undated response, appellant contended that the job was not
difficult but that, due to excruciating pain, she could not work. In reports dated June 29, 2009,
Dr. Fino noted that she had attempted a return to work. He noted hypersensitivity on
examination of the right arm, diagnosed right wrist pain and RSD of the right arm and advised
that appellant could not work. Dr. Fino advised that she could not work due to hypersensitivity
of the right arm, but that she should be able to return to full duties within six months. In an
August 24, 2009 report, an Office medical adviser reviewed the medical record and advised that
RSD should not be accepted and more clinical evidence obtained before the diagnosis was
accepted.
By letter dated September 3, 2009, the Office informed appellant that her reasons for
refusing the offered position were not valid and she was given an additional 15 days to accept the
offered position. In a September 11, 2009 response, appellant asserted that she had RSD and
enclosed the July 2, 2009 report of Dr. Stephen Becker, a Board-certified physiatrist, who
reported a history of injury that appellant tried to vigorously extract her hand from the dog,
causing traction to the right upper extremity.3 On physical examination, Dr. Becker noted
findings of decreased cervical rotation on the right with tenderness over the brachial plexus and
significant atrophy of the right upper and lower arm and hand intrinsics. Strength was somewhat
pain limited in the right upper extremity and she had altered sensation and decreased subjective
sense in the lateral aspect of the right arm. Dr. Becker diagnosed right hand dog bite and right
brachial plexus stretch injury due to right arm traction versus cervical radiculopathy. He
recommended a cervical MRI scan and repeat EMG study. A July 28, 2009 MRI scan study of
the cervical spine was unremarkable. On August 28, 2009 Dr. Fino reiterated his diagnosis of
right arm RSD and advised that appellant could not work.
On September 21, 2009 the employing establishment confirmed that the offered position
remained available. In a decision dated September 21, 2009, the Office terminated appellant’s
compensation benefits effective October 25, 2009. It found that she neglected an offer of
suitable work.
In reports dated September 25 and October 1, 2009, Dr. Fino reiterated his findings and
conclusions. On October 2, 2009 Dr. Theodore R. Simon, Board-certified in nuclear medicine,
reported that the results of a bone scintigram study were not indicative of RSD but were
suggestive of arthritis. On October 8, 2009 Dr. Fino advised that appellant could return to work
for four hours daily. Appellant returned to work in mid-October 2009. On October 18, 2009
appellant, through her attorney, requested a hearing. In a December 10, 2010 report,
2

5 U.S.C. §§ 8101-8193.

3

Dr. Becker’s report was apparently prepared for a third-party claim.

3

Dr. Charles E. Willis, II, a Board-certified anesthesiologist, noted the history of injury and
appellant’s complaint of right upper extremity pain that limited her ability to work, exercise and
have fun. He provided findings on physical examination and diagnosed status post dog bite,
post-traumatic stress and possible brachial plexus injury and provided restrictions to her physical
activity. At the January 12, 2010 hearing her attorney argued that the offered position was not
suitable because appellant worked full time before the injury and the offered position was part
time. Appellant asserted that the employment injury caused a brachial plexus condition, as
confirmed by Dr. Becker. In reports dated January 21 and February 18, 2010, Dr. Willis advised
that appellant should continue modified duty.
In a decision dated March 29, 2010, an Office hearing representative affirmed the
September 21, 2009 decision.
LEGAL PRECEDENT
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee
who (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”4 It is the Office’s burden to terminate compensation under section 8106(c) for
refusing to accept suitable work or neglecting to perform suitable work.5 The implementing
regulations provide that an employee who refuses or neglects to work after suitable work has
been offered or secured for the employee has the burden of showing that such refusal or failure
to work was reasonable or justified and shall be provided with the opportunity to make such a
showing before entitlement to compensation is terminated.6 To justify termination, the Office
must show that the work offered was suitable and that appellant was informed of the
consequences of his refusal to accept such employment.7 In determining what constitutes
“suitable work” for a particular disabled employee, the Office considers the employee’s current
physical limitations, whether the work is available within the employee’s demonstrated
commuting area, the employee’s qualifications to perform such work and other relevant factors.8
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.9
Office procedures provide that a job which involves less than four hours of work per day
where the claimant is capable of working four or more hours per day will be considered
unsuitable.10 The issue of whether an employee has the physical ability to perform a modified
4

5 U.S.C. § 8106(c).

5

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

6

20 C.F.R. § 10.517(a).

7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
8

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

9

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

Id. at Chapter 2.814.4.b(1) (July 1997).

4

position offered by the employing establishment is primarily a medical question that must be
resolved by medical evidence.11 It is well established that the Office must consider preexisting
and subsequently acquired conditions in the evaluation of suitability of an offered position.12
ANALYSIS
The Office accepted that appellant sustained a laceration of the right hand caused by a
dog bite on January 8, 2009. In a September 21, 2009 decision, it terminated her monetary
compensation effective October 25, 2009 on the grounds that she abandoned a June 23, 2009
offer of suitable employment. The initial question is whether the Office properly determined that
the position was suitable, a medical question that must be resolved by the medical evidence.13
The medical evidence in this case establishes that the June 23, 2009 position offered by the
employing establishment was suitable.
February 2009 MRI scan studies of the right wrist, elbow and forearm were negative and
an April 3, 2009 EMG/NCS was normal. On June 15, 2009 Dr. Fino, an attending physiatrist,
advised that appellant could return to work for four hours a day on June 22, 2009.
On June 23, 2009 the employing establishment offered appellant a sedentary position as
lobby director for four hours a day, which she accepted. The duties were described as meeting
and greeting customers, writing second notices on all accountable mail and assisting customers at
the automated stamp machine. The only restriction provided by Dr. Fino was a shortened
workday of four hours. The Office, therefore, properly found that the offered position was
suitable as the weight of the medical evidence at that time established that appellant was no
longer totally disabled from work and had the physical capacity to perform the modified duties
listed in the June 23, 2009 job offer.
Appellant worked 1.53 hours and stopped, stating that, although the job was not difficult,
she was in excruciating pain and could do nothing. She did not seek medical care for five days
after the work stoppage, and in reports dated from June 29 to October 1, 2009, Dr. Fino noted
hypersensitivity of the right arm, diagnosed RSD and advised that appellant could not work.
These reports are of limited probative value because Dr. Fino did not provide adequate medical
rationale in support of his stated opinion. Dr. Fino did not describe appellant’s condition in any
detail or explain how her condition changed from such that it rendered her unable to perform the
essentially sedentary duties of lobby director for four hours a day. The Board finds these reports
insufficient to establish that the offered position was not medically suitable.14 While Dr. Becker
provided a new diagnosis of right brachial plexus stretch injury versus cervical radiculopathy in
his July 2, 2009 report, he did not address the suitability of the offered position or provide any
opinion as to whether appellant could work.

11

Gayle Harris, 52 ECAB 319 (2001).

12

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

13

Gayle Harris, supra note 11.

14

S.S., 59 ECAB 315 (2008).

5

In order to properly terminate appellant’s compensation under section 8106 of the Act,
the Office 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.15 The record in
this case establishes that the Office properly followed the procedural requirements. By letter
dated June 25, 2009, the Office advised appellant that the offered position was found suitable.
Appellant was notified that, if she failed to report to work or to demonstrate that such failure was
justified, her right to monetary compensation would be terminated. She was allotted 30 days to
either accept or provide reasons for refusing the position. On September 3, 2009 appellant was
given an additional 15 days in which to respond. There is no evidence of a procedural defect in
this case. The Office provided appellant with proper notice. Appellant was offered a suitable
position by the employing establishment and the offer was refused. Under section 8106 of the
Act, her monetary compensation was properly terminated effective October 25, 2009 on the
grounds that she refused an offer of suitable work.16
After the Office established that the offered work was suitable, the burden shifted to
appellant to show that her refusal was reasonable or justified.17 The bone scintigram obtained on
October 2, 2009 ruled out the diagnosis of RSD. On October 8, 2009 Dr. Fino advised that
appellant could return to light duty for four hours daily. In reports dated November 16, 2009, he
noted that appellant had continued complaints of right arm pain and could work four hours a day.
Dr. Willis also advised that appellant could work four hours daily. Neither physician provided
any opinion on the suitability of the offered position or whether appellant could have worked
beginning in June 2009. Appellant therefore failed to establish that her neglect of a suitable
position was justified.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a) and that she did not, thereafter, establish that her refusal of
suitable work was justified.

15

See Maggie L. Moore, supra note 7.

16

Joyce M. Doll, supra note 5.

17

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 22, 2011
Washington, DC

Richard J. Daschbach, 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