United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bay Pines, FL, Employer
__________________________________________

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

Docket No. 10-926
Issued: March 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On February 19, 2010 appellant filed a timely appeal from a January 8, 2010 decision of
the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $5,264.37 for the period April 6 to June 6, 2009;
and (2) whether the Office properly found that appellant was at fault in the creation of the
$5,264.37 overpayment and therefore not entitled to waiver.

1
2

5 U.S.C. § 8101 et seq.

Appellant’s request for appeal was postmarked on February 11, 2010. On February 18, 2010 the Office issued a
decision regarding a schedule award. Its February 18, 2010 decision is not before the Board on the present appeal.

On appeal, counsel asserts that the Office’s January 8, 2010 decision is “contrary to fact
and law.”
FACTUAL HISTORY
The Office accepted that on October 2, 2008 appellant, then a 56-year-old maintenance
mechanic, sustained an L4 compression fracture and a laceration of his left middle finger when a
metal crowbar fell from a shelf.3 Appellant stopped work on the date of injury. He received
wage-loss compensation for temporary total disability on the daily rolls.
In an October 31, 2008 letter, the Office advised appellant to inform it immediately when
he returned to work. It explained that, if he received a compensation check covering a period in
which he had worked, he should return it immediately to prevent an overpayment.
On November 12, 2008 appellant authorized the Office to pay his compensation through
electronic funds transfer (EFT).
In a December 15, 2008 letter, the Office advised appellant that his case was being placed
on the periodic compensation rolls effective December 1, 2008. Compensation would be paid
every 28 days. The Office again advised appellant to report immediately when he returned to
work. It explained that each automated payment would “include the period for which payment
[was] made. If [appellant] worked for any portion of this period, [he] must return the check” to
the Office to avoid creating an overpayment.
On April 6, 2009 appellant return to full-time, limited duty at a retained pay rate. The
Office continued to issue periodic rolls payments for total disability: $2,377.45 for the period
March 15 to April 11, 2009, including $565.83 for the period April 6 to 11, 2009; $2,349.77 for
the period April 12 to May 9, 2009; and $2,348.77 for the period May 10 to June 6, 2009.
On June 8, 2009 appellant and the employing establishment advised the Office that he
returned to work with no wage loss on April 6, 2009. The Office calculated that, from April 6 to
June 6, 2009, appellant received $5,264.37 in compensation while working full time with no
wage loss.
By notice dated June 24, 2009, the Office advised appellant of its preliminary
determination that an overpayment of $5,264.37 was created in his case for the period April 6 to
June 6, 2009 as he received compensation for temporary total disability although he had returned
to work. It found him at fault as he was advised that he was not entitled to compensation for
total disability after he returned to work. The Office afforded appellant 30 days to submit
additional evidence and argument and to request a hearing.
In a July 15, 2009 letter, appellant requested a prerecoupment hearing. He asserted that
he was not at fault in creating the overpayment and that repaying the debt would cause severe
financial hardship. Appellant submitted financial documentation, including an overpayment
recovery questionnaire (Form OWCP-20) showing $2,403.22 in monthly household income,
3

Appellant underwent kyphoplasty at L4, approved by the Office.

2

$1,920.95 in monthly mortgage, food, clothing and utility expenses and $795.95 in monthly debt
repayments. He listed assets of $3,931.17 in cash and bank accounts.
At the prerecoupment hearing, held telephonically on November 5, 2009, appellant did
not contest the fact or amount of the overpayment. He asserted that he was not at fault in its
creation as the EFT payments did not specify the period for which compensation was paid.
Alternatively, appellant contended that he thought the Office might have owed him the money.
He noted that he omitted certain financial information from his OWCP-20 form and that he
typically had $500.00 left over at the end of each month. Counsel acknowledged that appellant
“clearly ha[d] the money to pay [the Office] back.” Following the hearing, appellant repaid
$2,300.00 to the Office by lump-sum check, leaving a remainder of $2,964.37.
By decision dated January 8, 2010, the Office affirmed the fact and amount of the
$5,264.37 overpayment, of which $2,964.37 remained outstanding. It found that appellant was
at fault in its creation as he knew or should have known he was not entitled to receive total
disability compensation after he returned to work. The Office denied waiver as his household
income exceeded his ordinary and necessary living expenses by more than $50.00 a month. It
directed recovery of the overpaid amount by lump sum of the entire remaining debt.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act4 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.5 Section 8129(a) of the Act provides, in pertinent part, that when “an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”6 The Office’s procedure manual
identifies various situations when overpayments of compensation may occur, including when a
claimant receives compensation for total disability while working.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar and finger injuries disabling him for
work from October 2, 2008 to April 5, 2009. Appellant returned to work with no wage loss on
April 6, 2009. However, the Office continued to issue compensation payments on the periodic
rolls through June 6, 2009. The evidence reflects and appellant does not dispute that he received
$5,264.37 in total disability compensation while working from April 6 to June 6, 2009. The

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).

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Board therefore finds that the Office correctly determined that he received an overpayment of
compensation in the amount $5,264.37 for the period in question.8
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.9 Section 10.433 of the implementing regulations specifically provide that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.10 The regulations further provide that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.11
Section 10.433 of the Office’s regulations, provide that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.12 Section 10.433(b) of the
Office’s regulations provide in relevant part, that the determination of fault “depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she is being
overpaid.”13 In cases where a claimant receives compensation through electronic direct deposits,
to establish fault for accepting such payments, the Office must show that the claimant knew or
should have known at the time of deposit that the payment was incorrect.14
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the $5,264.37 overpayment
because he accepted compensation payments that he knew or should have known to be incorrect.
Appellant returned to work on April 6, 2009. He did not notify the Office until
June 8, 2009. The record establishes that, on April 11, 2009, the Office made a direct deposit of
8

Alberto Pineiro, 51 ECAB 310 (2000).

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.433 (a).

11

Id.

12

Id. at § 10.433(a)(3).

13

Id. at § 10.433(b).

14

W.B., Docket No. 09-1440 (issued April 12, 2010); Tammy Craven, 57 ECAB (2006) (order granting petition
for recon., denying the Director’s request for oral argument and reaffirming prior Board decision) (holding that
acceptance occurs in direct deposit cases when the funds are placed in the employee’s account and that fault for
acceptance must be judged by what the employee knew or should have known at the time of deposit).

4

$2,349.77 into appellant’s bank account for the period March 15 to April 11, 2009. This deposit
included $565.83 in compensation for the period April 6 to 11, 2009, after appellant returned to
work. Appellant was entitled to the remaining $1,783.94, covering the period March 15 to
April 5, 2009. On May 9, 2009 the Office made a $2,349.77 direct deposit for the period
April 12 to May 9, 2009 and on June 6, 2009 deposited $2,348.77 for the period May 10 to
June 6, 2009. As noted, these payments included a total overpayment of $5,264.37.
On June 24, 2009 the Office issued a preliminary determination of the overpayment. It
found that appellant was aware or should have been aware that he was not entitled to total
disability compensation while working.
The Office advised him, in October 31 and
December 15, 2008 letters, that he should immediately return any compensation payments issued
for any period in which he had worked.
The Office found appellant at fault in creation of the entire $5,264.37 overpayment and
that it was not subject to waiver. However, the Board finds that appellant was not at fault for
$565.83 of the overpayment covering the period April 6 to 11, 2009. On April 11, 2009 the
Office deposited $2,349.77 into his bank account. Appellant was entitled to $1,783.94 of the
April 11, 2009 payment, covering the period March 15 to April 5, 2009. The $565.83 paid for
the period April 6 to 11, 2009, after he returned to work with no wage loss, constitutes an
overpayment. The Board has held that an employee who received payments from the Office in
the form of direct deposit may not be at fault the first time the incorrect funds are deposited into
his account.15 Receiving one or two erroneous direct deposit payments over a short time
immediately following the employee’s return to work does not necessarily create the requisite
knowledge to find that a claimant was at fault in the creation of the overpayment.16 While
appellant accepted the overpayment by gaining control of the funds deposited into his account
pursuant to his authorization, he did not know that he would receive an incorrect payment on that
day.17 Therefore, he was without fault for the $565.83 overpayment deposited into his account
on April 11, 2009.
Although appellant is without fault in creating $565.83 of the total overpayment, this
finding does not mean that he may keep the money. Rather, the Office must consider his
eligibility for waiver for this period.18 On remand, the Office should consider whether appellant
is entitled to waiver of this portion of the overpayment. This consideration should be followed
by issuance of an appropriate decision.
The Board notes that it does not have jurisdiction to review the Office’s determination of
recovery by lump-sum payment. The Board’s jurisdiction is limited to reviewing those cases

15

Tammy Craven, 57 ECAB 689 (2006).

16

W.P., 59 ECAB 514 (2008).

17

W.P., supra note 16.

18

J.W., Docket No. 10-1271 (issued February 3, 2011).

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where the Office seeks recovery from continuing compensation under the Act.19 Appellant is not
in receipt of continuing compensation.
On appeal, counsel contends that the Office’s January 8, 2010 decision is “contrary to
fact and law.” As noted, the Office properly found a $5,264.37 overpayment of compensation.
Appellant was at fault for $4,698.54 of the overpayment, rendering him ineligible for waiver.
However, the Office improperly found that he was at fault in creating $565.83 of the total
$5,264.37 overpayment. The case will be remanded to the Office to consider whether the
$565.83 is subject to waiver.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of amount of $5,264.37 for the period April 6 to
June 6, 2009. The Board further finds that the Office properly found that he was at fault in
creation of a $4,698.54 overpayment of compensation for the period April 12 to June 6, 2009.
The Board further finds that the Office improperly found appellant at fault in creating $565.83 of
the overpayment for the period April 6 to 11, 2009 and improperly denied waiver for this period.
The case will be remanded to the Office to determine if he is entitled to waiver of the $565.83 in
compensation paid for the period April 6 to 11, 2009 as he was not at fault in its creation.

19

Judith A. Cariddo, 55 ECAB 348, 353 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2010 is affirmed in part regarding the fact and amount
of overpayment, affirmed regarding the findings of fault and denial of waiver for the $4,698.54
paid for the period April 12 to June 6, 2009, reversed in part regarding the finding of fault for the
period April 6 to 11, 2009 and set aside in part regarding the denial of waiver for the period
April 6 to 11, 2009.
Issued: March 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, JFK
INTERNATIONAL AIRPORT, Jamaica, NY,
Employer
__________________________________________

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

Docket No. 12-1166
Issued: February 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 3, 2012 appellant, through her attorney, filed a timely appeal from a
November 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective September 1, 2010 as she was no longer disabled; and (2) whether appellant
met her burden of proof to establish that she had any disability after September 2, 2010 causally
related to the accepted employment injury.
On appeal appellant’s counsel contends that OWCP erroneously weighed the medical
evidence. He alleged that the impartial medical examiner’s opinion was erroneously given
weight to terminate wage-loss compensation, that greater weight should have been given the
1

5 U.S.C. § 8101 et seq.

opinion of appellant’s treating physician, that OWCP erroneously terminated wage-loss
compensation when all physicians continued to indicate that appellant had restrictions, that she
was on medication that the impartial medical examiner noted may have interfered with her work
and that OWCP did not consider how her limitations interfered with her having to make restroom
trips or walk to the lunchroom.2
FACTUAL HISTORY
On September 3, 2008 appellant, a liquidation specialist, filed a traumatic injury claim
alleging that on August 27, 2008 someone bumped into her in the lunch room causing her to fall
and sustain injuries to her left leg, lower back and right elbow. On October 23, 2008 OWCP
accepted her claim for left knee contusion. It subsequently accepted appellant’s claim for left
knee, internal derangement. On February 13, 2009 appellant underwent an arthroscopy,
synovectomy, partial medial and lateral meniscectomy, debridement and drilling
osteoarthritis/osteonecrosis, abrasion chondroplasty, synovectomy, resection of suprapatellar
plica left knee.
In a May 12, 2009 attending physician’s report, Dr. Arnold Goldman, appellant’s treating
Board-certified orthopedic surgeon, indicated that appellant remained totally disabled due to her
August 27, 2008 employment injury.
On June 9, 2009 OWCP referred appellant to Dr. Frank Hudak, a Board-certified
orthopedic surgeon, for a second opinion. In a June 25, 2009 report, Dr. Hudak listed the
diagnosis as status post aggravation of underlying osteoarthritis and chondromalacia of the left
knee, as well as aggravation of, in all medical probability, preexisting medial and lateral
meniscal tears as well as aggravation of preexisting plica. He opined that the aggravation was
permanent and that at this point appellant has not reached status quo ante, i.e., what the condition
was prior to the accident. Dr. Hudak stated that the conditions were still active and causing
objective symptoms with residual atrophy. He opined that appellant was temporarily moderately
partially disabled related to the August 27, 2008 employment injury which superimposed upon
the preexisting conditions. Dr. Hudak recommended lubricating injections into appellant’s left
knee and continuing physical therapy three times per week for six weeks. He opined that
appellant was unable at this time to perform her regular duties of a liquidation specialist.
Dr. Hudak also completed a work capacity evaluation, wherein he indicated that appellant could
walk for two hours at work, stand for five hours, bend and stoop for one hour. He prohibited
appellant from squatting or kneeling.
Dr. Goldman continued to submit reports indicating that appellant was disabled. In a
report dated June 23, 2009, he noted that she indicated that her left knee was still “puffy and
achy” at times. Dr. Goldman gave appellant a cortisone-type injection and noted that she
remained totally disabled. In a March 16, 2010 report, he stated that it was his opinion with a
reasonable degree of medical certainty that the current findings on examination were related to
the accepted work-related injury. Dr. Goldman noted that the diagnosis was internal
derangement of the left knee. He indicated that laboratory and surgical findings on February 13,
2

Appellant’s attorney also contends that this case was improperly reviewed under the clear evidence of error
standard. Although the language in OWCP’s decision dated November 22, 2011 is somewhat confusing, it is clear
to this Board that OWCP did evaluate the evidence on the merits. Thus, the Board concludes that appellant’s
argument with regard to clear evidence of error is without merit.

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2009 are consistent with medial and lateral meniscal tears and chondromalacia synovitis.
Dr. Goldman noted that the pathology report documents fragments of fibrotendinous tissue and
synovitis. He stated that the objective findings continued to reveal atrophy and limited range of
motion. Dr. Goldman opined that appellant remained totally disabled at this time. He noted that
she worked as a liquidator and could not perform the duties of this occupation at this time.
Dr. Goldman stated that in terms of work tolerance, the only thing he believed appellant was
capable of doing at that time was sitting eight hours a day.
By letter dated April 23, 2010, OWCP referred appellant to Dr. Edmunde A.C. Stewart, a
Board-certified orthopedic surgeon, in order to resolve a conflict in medical opinions between
Drs. Hudak and Goldman with regard to the need for further medical treatment, the necessity for
treatment for the accepted work condition and whether there existed continuing disability due to
the accepted work injury. In a May 6, 2010 report, Dr. Stewart listed his diagnoses as status post
contusion and sprain of the left knee joint of August 27, 2008; status post aggravation of
underlying osteoarthritis of the left knee as well as aggravation of, in all medical probability,
preexisting medial and lateral meniscal tears; and status post arthroscopic surgery of the left knee
of February 13, 2009. He opined that these diagnoses would represent a permanent aggravation
of a preexisting condition. Dr. Stewart opined that appellant was capable of returning to light
sedentary occupation as a liquidation specialist. He opined that she should be limited to one
hour a day of walking, standing two hours a day, bending and stooping to one hour a day, and
lifting, pushing and pulling to 10 to 15 pounds. Dr. Stewart recommended no squatting or
kneeling. He indicated that appellant should have 15-minute breaks every 2 hours. Dr. Stewart
reviewed the position of liquidation specialist and noted that this appeared to be a light sedentary
position and he opined that orthopedically she should be capable of full work in that position.
He further opined that appellant had a moderate, partial disability related to the injury of
August 27, 2008. Dr. Stewart saw no need for further physiotherapeutic measures. He further
indicated that Synvisc injections could be authorized, but noted that barely 50 percent of people
have lasting improvement from same. Dr. Stewart saw no need for further surgical intervention.
He indicated that appellant’s medication regimen should be professionally managed, especially
since it appeared that she had been on narcotic medication for over a year and a half. Dr. Stewart
further noted that the long-term narcotic medication usage may well interfere with her duties as a
liquidation specialist.
On June 2, 2010 the employing establishment informed appellant that, pursuant to the
medical report of Dr. Stewart, they expected her to return to her position as a liquidation
specialist. The employing establishment noted that, although the position was basically
sedentary, her job would be limited to her light-duty restrictions of walking no more than one
hour a day, standing two hours a day, bending and stooping one hour a day, lifting, pushing and
pulling 10 to 15 pounds and no squatting and kneeling.
By letter dated June 4, 2010, OWCP found that the position was suitable, and gave
appellant 30 days to either accept the position or provide reasons for refusing it.
By letter dated June 30, 2010, appellant’s attorney argued that the position was not within
appellant’s limitations and resubmitted the March 16, 2010 report by Dr. Goldman.
By letter dated July 12, 2010, OWCP informed appellant that the statement was
insufficient to overcome the determination that she was physically able to perform the limitedduty assignment offered by the employing establishment. It informed her that, if she refused the
3

employment or failed to report to work when scheduled, compensation would be terminated
within 15 days.
By letter dated July 21, 2010, appellant’s attorney again advised OWCP that appellant
was unable to perform the duties of the offered position.
On July 29, 2010 OWCP issued a notice of proposal to terminate appellant’s
compensation benefits as the medical evidence established that she was no longer disabled from
work due to her accepted conditions. It noted that this would not affect her entitlement to
medical benefits.
By letter dated August 20, 2010, appellant, through counsel, contended that any proposed
termination was contrary to the medical evidence and FECA.
On September 1, 2010 OWCP finalized the notice of proposed termination and
terminated appellant’s compensation benefits effective that date as she was no longer totally
disabled as a result of the employment injury and was capable of returning to her date-of-injury
position.
Dr. Goldman, in reports dated from September 14, 2010 through April 13, 2011,
continued to find that appellant was totally disabled from her occupation as a liquidator; he also
noted that he gave appellant multiple injections in her left knee.
On August 16, 2011 appellant, through counsel, requested reconsideration. In support
thereof, she submitted an October 25, 2010 report by Dr. Goldman, wherein he noted that he
initially saw appellant on September 2, 2008 with regard to a work-related injury to her left knee
on August 27, 2008. Dr. Goldman described appellant’s injury and his treatment of her. He
noted that, despite initial conservative management, she had persistent left knee pain, limited
motion and atrophy. Dr. Goldman performed surgery on February 13, 2009. He opined that,
within a reasonable degree of medical certainty, appellant’s left knee condition resulted from the
employment-related injury she sustained on August 27, 2008. Dr. Goldman noted that appellant
remained on Percocet, Lidoderm patches and a TENS unit for pain management. He
recommended continuation of a formal physical therapy program as the best treatment to
maintain strength and motion. Dr. Goldman further opined that appellant remained totally
disabled from her usual occupation as a liquidator. He noted that appellant may require formal
work-up in the future for regional pain syndrome/reflex sympathetic dystrophy. In addition,
Dr. Goldman noted that authorization for lubricating Supartz, Synvisc or Euflexxa injections will
continue to be requested. He continued to submit reports indicating that appellant remained
totally disabled from her usual occupation.
By decision dated November 22, 2011, OWCP denied modification of the termination
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

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employee has disability causally related to his federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn wages that the employee was receiving at the time of injury.6 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to a federal employment
injury, but nevertheless has the capacity to earn the wages he or she was receiving at the time of
injury, has no disability as the term is used in FECA.8 Whether a particular injury causes an
employee to be disabled for employment and the duration of the disability are medical issues
which must be proved by a preponderance of the reliable, probative and substantial medical
evidence.9
Section 8123(a) of FECA provides in pertinent part: 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.10 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.11
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for left knee contusion and internal derangement of the
left knee. After appellant underwent surgery on February 13, 2009, Dr. Goldman, appellant’s
treating physician, continued to indicate that appellant was totally disabled from her regular
employment due to the August 27, 2008 employment injury. The second opinion physician,
Dr. Hudak, indicated that appellant still had active symptoms and was moderately partially
disabled due to the work incident. In order to resolve the conflict between Dr. Goldman and
Dr. Hudak with regard to appellant’s remaining disability, OWCP referred appellant to
Dr. Stewart for an impartial medical examination. Dr. Stewart found that appellant had residuals
from the injury, but opined that appellant was capable of returning to her light sedentary
occupation as a liquidation specialist. He established that appellant’s medical conditions no

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

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

6

D.M., 59 ECAB 164 (2007).

7

See Merle J. Marceau, 53 ECAB 197 (2001).

8

See 20 C.F.R. § 10.5(f); Robert A. Flint, 47 ECAB 369 (2006); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

Fereidoon Kharabi, 42 ECAB 291 (2001).

10

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

11

Sharyn D. Bannick, 54 ECAB 537 (2003); V.G., 49 ECAB 635 (20008); Gary R. Sieber, 46 ECAB 215 (1994).

5

longer rendered her physically unable to return to work as she was physically able to perform the
duties of her basically sedentary position of liquidation specialist on a full-time basis.
The Board finds that OWCP properly gave special weight to the well-rationalized opinion
of the impartial medical examiner, Dr. Stewart, and terminated appellant’s compensation for
wage loss. The Board finds that Dr. Stewart’s opinion was sufficiently thorough, probative and
well rationalized and constituted sufficient medical evidence to rely upon in terminating
appellant’s compensation benefits.
The Board is not persuaded by appellant’s contentions that benefits were improperly
terminated. Although Dr. Stewart did indicate that appellant’s medication regimen should be
professionally managed and did note that long-term narcotic medication may well interfere with
her duties as a liquidation specialist, there is no indication at this point in time that this statement
was more than a speculative indication of a possible outcome for staying on medication. The
fact that the medication needed to be monitored does not indicate that appellant was disabled
from her position. Appellant’s counsel contends that Dr. Goldman’s report indicated that she
was disabled. However, Dr. Goldman was on one side of the conflict in medical evidence which
was resolved by the opinion of the impartial medical specialist, Dr. Stewart. The employing
establishment indicated that appellant could return to her employment and remain within her
physical limitations as set by Dr. Stewart. The argument that appellant would overstep these
limitations by trips to the bathroom or lunch room is without any support. Accordingly, OWCP
properly terminated appellant’s compensation effective September 1, 2010 on the grounds that
she was no longer disabled.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate compensation, the burden shifted to
appellant to establish that she had ongoing disability causally related to her accepted injury.12 In
order to prevail, the claimant must establish by the weight of reliable, probative and substantial
evidence that she had an employment-related disability that continued after termination of
compensation benefits.13
ANALYSIS -- ISSUE 2
After OWCP’s termination of appellant’s compensation benefits on September 1, 2010
based on the report of the impartial medical examiner Dr. Stewart, appellant submitted new
medical evidence addressing her condition. Specifically, appellant submitted further reports by
her treating physician, Dr. Goldman who continued to indicate that appellant remained totally
disabled from her usual occupation. However, Dr. Goldman was on one side of the conflict
resolved by Dr. Stewart. Subsequently submitted reports of a physician on one side of a resolved
conflict of medical opinion are generally insufficient to overcome the weight of the impartial
12

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

13

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

6

medical specialist to create a new conflict of medical opinion.14 There is no finding in this new
report to suggest that Dr. Stewart should not remain the weight of the medical evidence. The
Board finds that the reports of Dr. Goldman are insufficient to overcome the weight of the wellrationalized opinion of Dr. Stewart. Appellant has failed to meet her burden of proof.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective September 1, 2010. The Board further finds that appellant did not meet her burden of
proof to establish that she had any disability after September 2, 2010 causally related to the
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2011 is affirmed.
Issued: February 15, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

14

Richard O’Brien, 53 ECAB 234 (2001); see also R.A., Docket No. 10-844 (issued December 22, 2010).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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

Docket No. 09-2248
Issued: September 27, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant timely appealed the August 6, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for an employment-related
emotional condition. 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 sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On January 12, 2005 appellant, then a 48-year-old mail processing clerk, filed a claim
(Form CA-2) for employment-related stress commencing October 8, 2004.1 She first realized
1

Appellant had been working limited duty due to a previous injury.

her condition was employment related on December 22, 2004. Appellant claimed that on several
occasions management verbally attacked her, which caused her to seek professional help. She
was off work for approximately seven days in January 2005. Within a few weeks of filing her
emotional condition claim, appellant filed another claim for injury to her head and right shoulder
that occurred on January 27, 2005. She was using a restroom at work when a plastic toilet paper
dispenser fell open, striking the right side of her head and her right shoulder.2
On February 17, 2005 the Office asked appellant to submit additional factual and medical
information regarding her emotional condition. In response, appellant submitted a February 22,
2005 statement.
Appellant filed an Equal Employment Opportunity (EEO) complaint regarding a
September 22, 2004 incident involving Anthony Teemer, a supervisor, who gave her a letter
requesting updated medical information. She objected to the request because she had recently
submitted information regarding her work restrictions. Mr. Teemer insisted that appellant follow
instructions. Appellant noted that the signatures on the September 17, 2004 letter were not
original, but had been stamped and she refused to accept the letter with the stamped signatures.
Mr. Teemer retracted the letter and later reissued one with the appropriate signatures. He noted
it was common practice to request medical information from limited-duty employees. Similar
letters were issued to all limited-duty employees that required updated medical information. The
EEO complaint was subsequently dismissed as untimely.3
As to the alleged verbal abuse, appellant stated that Gilbert Lopez, an injury
compensation manager, called her a troublemaker on October 8, 2004. She had gone to the
personnel office to see Connie Clay, the receptionist, about some benefit forms. Mr. Lopez
approached appellant and asked if he could be of any assistance. Appellant told him she was
waiting for Ms. Clay, and he replied that Ms. Clay might be at lunch. When she turned to look at
the forms on display, Mr. Lopez asked if she had come to start trouble, because she was nothing
but a troublemaker.
Appellant filed both a grievance and an EEO complaint regarding the October 8, 2004
incident with Mr. Lopez. A November 1, 2004 grievance status report noted that Mr. Lopez
expressed a willingness to apologize in person if he had offended appellant; however, she
refused the proposed settlement. The EEO complaint was dismissed by decision dated
January 12, 2005.4
Mr. Lopez submitted an August 1, 2005 statement. He noted that the October 8, 2004
incident began when appellant knocked on the door to gain entrance to the Human Resources
(HR) Department. Mr. Lopez let appellant in and jokingly asked her if she was there to start
trouble. They both laughed and appellant responded that she was always starting trouble.
Mr. Lopez stated that appellant then proceeded to her destination in the HR department. At no
2

The Office denied the claim on April 21, 2005 because appellant failed to establish that the incident occurred as
alleged.
3

Appellant waited until November 10, 2004, more than 45 days, before filing her EEO complaint.

4

The copy of the January 12, 2005 decision that appellant submitted only included pages 1 and 4.

2

point did he attack her. Mr. Lopez stated that he had not been confrontational, he had held many
discussions with appellant and they were always in a “normal tone” and the course of their
conversations had always been “business friendly.”
In a February 22, 2005 statement, appellant alleged that on December 23, 2004 Cynthia
Walker, a supervisor, exhibited aggressive behavior when she approached her demanding to
know where appellant had been. On December 30, 2004 Ms. Walker had instructed Jimella
Wright, appellant’s immediate supervisor, to have a preliminary discussion with appellant
regarding an unspecified incident.
Appellant filed a grievance and an EEO complaint alleging that Ms. Walker retaliated
against her for having filed an EEO complaint against Mr. Teemer. In her grievance, she alleged
that Ms. Walker approached her in a hostile manner on December 19, 2004 asking where she had
been. Appellant explained her morning routine, of which Ms. Walker was already aware. She
had been in the postage due unit retrieving mail for the nixie unit to work on that day.
Ms. Walker told appellant that she could no longer work mail from the plastic tubs. Appellant
replied that she had been working from the tubs for two years and asked Ms. Walker what her
problem was today. She explained that the area where she worked was cold and noisy and that
the tubs prevented the air from blowing on her. Appellant told Ms. Walker that she was being
harassed only because she filed an EEO complaint against Mr. Teemer. Ms. Walker denied the
accusation. Appellant again asked Ms. Walker what her problem was and she reportedly stated
that another manager had been complaining about the tubs.
Appellant stated that Ms. Walker approached her again on December 22, 2004 regarding
her use of tubs. She questioned Ms. Walker’s authority to tell her how to work given that she
was neither the unit supervisor nor her immediate supervisor. Ms. Walker claimed authority as a
coordinator of every unit, which appellant described as some made-up title to justify the
harassment. Appellant noted that a white female coworker in her unit was permitted to work
with a gurney while appellant worked with tubs. However, the other woman was not asked to
remove the gurney. Appellant claimed that Ms. Walker prohibited her from working in the best
and most comfortable way. Ms. Walker allegedly told appellant there would be no walking that
day. Appellant reiterated the allegations in her December 23, 2004 EEO complaint.
On August 9, 2005 Ms. Walker responded to appellant’s allegations concerning the
incidents of December 23 and 30, 2004. She explained that as a supervisor it was her
responsibility to ensure that her unit took timely breaks and lunches. Appellant had been away
from the unit for approximately one hour between her break and lunch. When questioned, she
reportedly told Ms. Walker that her doctor advised her to take long walks. Ms. Walker noted
that as an acting manager there were times when the scheduled manager either left or was in a
meeting and she would be placed in charge. She indicated that she was unaware of any EEO
claims by appellant at the time.
Appellant also alleged incidents that happened in February and March 2005 pertaining to
her traumatic injury claim of January 27, 2005 when the plastic toilet paper dispenser opened
striking her on the head and right shoulder. She noted that just a few months prior she had a
biopsy on the right side of her head, which resulted in a diagnosis of discoid lupus erythematosus

3

(DLE).5 Appellant explained that, after the January 27, 2005 incident, she experienced
headaches and her physician recommended a magnetic resonance imaging scan and advised that
she not return to work until February 16, 2005.6
Appellant stated that the employing establishment called her at home on February 3, 2005
and advised her to report for a fitness-for-duty examination the following day.7 Dr. Eva T.
Ostrowski, a Board-certified internist, examined appellant on February 4, 2005. She noted
complaints of headaches and right shoulder pain from getting hit by a plastic toilet paper cover.
Appellant advised Dr. Ostrowski that she was unable to do anything due to headaches and
depression. Dr. Ostrowski diagnosed nonspecific headaches unrelated to the recently reported
trauma and advised that appellant could return to work in her previous position. The employing
establishment provided a job offer based on Dr. Ostrowski’s findings. However, appellant
contacted her personal physician who recommended that she not return to work until
February 15, 2005. She alleged that Dr. Ostrowski told her that due to her conditions and the
situations she was working under, she should retire on disability.
Appellant received another call at home on February 14, 2005 requesting a meeting the
following morning in reference to her January 27, 2005 injury claim. She initially agreed to the
meeting but, after contacting a union steward, she cancelled. The steward informed appellant
that she did not have to report to work on an unscheduled day. Mr. Teemer allegedly called
appellant the following morning insisting that she attend the meeting. Appellant told
Mr. Teemer that she would not cancel any appointments or be intimidated or harassed on her
unscheduled days off. When she returned to work on February 16, 2005 no discussion was held
about her injury. Appellant contended that this was another form of harassment.
On March 4, 2005 Ms. Walker offered appellant a position that involved walking around
the facility checking mail and inputting data into a laptop computer. She told appellant that she
considered her for the position based on her demonstrated computer skills. Appellant rejected
the job offer because she sensed something “fishy” about it.8 Later that day she was questioned
by a postal inspector and a contract fraud analyst. Together with a union steward, appellant
reviewed surveillance footage of her coming and going on certain days. She alleged that the
postal inspector tried to intimidate her.
5

Appellant submitted a copy of the October 4, 2004 pathology report which confirmed the diagnosis of DLE.

6

Appellant submitted for the record a February 11, 2005 prescription pad note from Dr. Jacob Salomon, a Boardcertified surgeon, who excused her from work through February 16, 2005. Dr. Salomon subsequently provided
disability certificates for February 18 and 19 and March 5 and 6, 2005 because of headaches and right shoulder pain
from the January 27, 2005 injury.
7

The employing establishment notified appellant by letter dated February 3, 2005 explaining that the scheduled
examination was in reference to the job injury she sustained on January 27, 2005 and was necessary in order to
determine her ability to perform her employment duties.
8

In her August 9, 2005 statement, Ms. Walker indicated that it was her responsibility to extend job offers to all
tour 2 injured employees. On or about March 4, 2005 she offered appellant a position in the data conversion
department, which involved using a handheld computer and entering data. Ms. Walker stated that the position was
within appellant’s medical restrictions but she nonetheless rejected it, as was the case with previous job offers. She
indicated that the employing establishment accommodated appellant’s medical restrictions.

4

Effective March 7, 2005 the employing establishment placed appellant on off-duty status
without pay for allegedly engaging in activities inconsistent with her claim of total disability
during the months of January and February 2005. The Postal Inspection Service prepared a
March 18, 2005 investigative memorandum that included surveillance of appellant on six days
between February 7 and 21, 2005, as well as information obtained during her March 4, 2005
interview.
On April 6, 2005 the employer issued appellant a notice of removal for engaging in
activities inconsistent with her claim of total disability. The effective date of the removal was
May 14, 2005.
In a February 27, 2005 report, Dr. Thomas D. MacRoy, Ph.D., a clinical psychologist,
diagnosed major depression. He noted that appellant had reported that it was not her job but
rather the negative interactions with supervisors that she believed contributed to her problems.
In a decision dated October 21, 2005, the Office denied appellant’s emotional condition
claim, finding that she did not establish any compensable employment factors.
Appellant timely requested an oral hearing, which was held on May 18, 2009. At the
hearing, she submitted reports from Dr. MacRoy dated December 22, 2004 and May 17, 2009.
Posthearing appellant submitted a May 27, 2009 statement from a coworker, Cassandra Ellis,
who witnessed “verbal, harassment and discrimination by management” against appellant in
2004 and 2005. Ms. Ellis stated that management verbally attacked appellant whenever they
would come in contact with her, including when appellant was walking about getting mail for
work, when she was on breaks or at lunch, and even while she was in the restroom. She also
stated that managers would use the public address (PA) system to contact appellant when they
knew she was either at one place or another and that appellant was asked where she had been or
where she was going. Ms. Ellis stated that she witnessed management take plastic tubs from
appellant that she used to accommodate her injury. She noted that management put appellant in
emergency placement status.
In a June 16, 2009 letter to the hearing representative, appellant provided a timeline of
events that caused or contributed to her claimed emotional condition. She reiterated the
incidents of September 22, October 8, 2004, and February 4, 14 and 15, 2005. Appellant noted
an October 14, 2004 incident when Ms. Walker and Mr. Teemer allegedly used the PA system to
locate her while knowing that she was either on a break, at lunch or in the restroom. On
February 17, 2005 Mr. Lopez and Mary Hughes, an injury compensation specialist, allegedly
questioned her about her work abilities in a “hostile tone.” Appellant also mentioned a meeting
in a conference room when she was reportedly dismissed from the employing establishment.
Ms. Walker and another manager, Melvin Dean, allegedly walked in the conference room and
started laughing aloud as they approached appellant.
By decision dated August 6, 2009, an Office hearing representative affirmed the
October 21, 2005 decision. The hearing representative found that appellant did not establish any
compensable employment factors.

5

LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.10 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.11 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.12 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter, the Office must base its decision on an analysis of the medical evidence.13
ANALYSIS
Appellant did not attribute her emotional condition to the performance of her regular or
specially assigned duties under Cutler. Rather, she contends that she was harassed by Mr. Lopez
and Mr. Teemer because she had filed several workers’ compensation claims. Appellant claimed
to have been verbally attacked by Mr. Lopez on October 8, 2004. For harassment to give rise to
a compensable disability there must be evidence that harassment occurred.14 The mere
perception of harassment is not compensable.15 Allegations of harassment must be substantiated
by reliable and probative evidence.16 Verbal abuse or threats of physical violence in the
9

See Kathleen D. Walker, 42 ECAB 603 (1991).

10

Pamela D. Casey, 57 ECAB 260, 263 (2005).

11

Lillian Cutler, 28 ECAB 125, 129 (1976).

12

Kathleen D. Walker, supra note 9.

13

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
14

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

15

Id.

16

Joel Parker Sr., 43 ECAB 220, 225 (1991).

6

workplace are compensable under certain circumstances.17 This, however, does not imply that
every ostensibly abusive or threatening statement uttered in the workplace will give rise to
coverage under the Federal Employees’ Compensation Act.18 Verbal altercations and difficult
relationships with supervisors, when sufficiently detailed and supported by the record, may
constitute compensable factors of employment.19 For appellant to prevail on her claim, she must
support her allegations with probative and reliable evidence.20
Appellant did not provide specific details about alleged harassment or verbal abuse. She
variously described being approached in a “hostile manner” and being addressed in a “hostile
tone.” Appellant described Ms. Walker as exhibiting “aggressive behavior” and being “fishy”
with respect to a March 4, 2005 limited-duty job offer. On another unspecified occasion,
Ms. Walker and Mr. Dean allegedly laughed aloud as they approached appellant in a conference
room, prior to her dismissal. Mr. Lopez was purportedly abusive on October 8, 2004 when he
asked appellant if she was in the HR department to start trouble. According to his August 1,
2005 statement, he and appellant both laughed at his remark and she replied that she was always
starting trouble. Mr. Lopez noted that he was not being confrontational and had not attacked
appellant that day. He also indicated that his many discussions with appellant were conducted in
a “normal tone” and had always been “business friendly.” The record further indicated that
Mr. Lopez offered to personally apologize if his remarks offended appellant; an offer she
reportedly declined. Under the circumstance, asking appellant if she was in the HR department
to start trouble or calling her a troublemaker does not rise to compensable verbal abuse. The
Board further finds that appellant has not substantiated her various allegations of harassment.
None of the above-noted incidents are sufficiently descriptive to determine whether workplace
harassment did in fact occur.
Appellant took exception to Mr. Teemer’s September 22, 2004 request that she provide
updated medical evidence regarding her work restrictions. She objected to the request because
she had reportedly submitted similar information just a few days prior. Appellant also accused
Mr. Lopez of falsifying information because the September 17, 2004 letter Mr. Teemer had
given her included stamped rather than original signatures. Mr. Teemer subsequently provided
her with a similar document bearing actual signatures.
The employing establishment’s September 22, 2004 request for additional medical
information constitutes an administrative matter. An employee’s emotional reaction to
administrative or personnel matters generally falls outside the Act’s scope.21 However, to the
extent the evidence demonstrates that the employing establishment either erred or acted
abusively in discharging its administrative or personnel responsibilities, such action will be

17

Fred Faber, 52 ECAB 107, 109 (2000).

18

Id.

19

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

20

See Kathleen D. Walker, supra note 9.

21

Andrew J. Sheppard, 53 ECAB 170, 173 (2001).

7

considered a compensable employment factor.22 Appellant has not presented sufficient evidence
to establish error or abuse. Based on information obtained during the EEO complaint process, it
was a common practice to request medical documentation from limited-duty employees. Similar
letters were issued to all limited-duty employees that required updated medical information.
Appellant’s preference for documents bearing original signatures does not establish any
wrongdoing on Mr. Lopez’s part. She has not presented any evidence that the stamped
signatures were unauthorized. Furthermore, Mr. Teemer reportedly cured any perceived defect
in the September 17, 2004 letter by obtaining original signatures and then reissuing the letter.
Accordingly, the Board finds that the September 22, 2004 incident is not compensable.
On October 14, 2004 Mr. Teemer and Ms. Walker reportedly used the PA system to try
and locate appellant. Ms. Ellis provided some information to this incident, although she did not
specify the exact date. Appellant claimed that it was unnecessary to use the PA system because
her managers knew she was either on break, at lunch or in the restroom. Monitoring work is an
administrative function of a supervisor.23 The manner in which a supervisor exercises his or her
discretion falls outside the coverage of the Act. This principle recognizes that supervisors must
be allowed to perform their duties, and at times employees will disagree with their supervisor’s
actions, but mere dislike or disagreement with certain supervisory actions will not be
compensable absent proof of error or abuse on the part of the supervisor.24 Appellant essentially
argued that using the PA system was unnecessary because Mr. Teemer or Ms. Wheeler should
have surmised that she was at one of three possible locations. Her contention and the witness
statement are not evidence of error or abuse on the part of either Mr. Teemer or Ms. Walker.
Consequently, the October 14, 2004 incident is not compensable.
Appellant also took exception to two encounters with Ms. Walker in December 2004.
The first incident occurred on December 19, 2004 when Ms. Walker reportedly asked appellant
where she had been earlier in the day and also instructed appellant to discontinue using plastic
tubs. The second incident occurred on December 22, 2004 when Ms. Walker again approached
appellant regarding her use of plastic tubs. Appellant claimed that the tubs prevented air from
blowing on her and that using them was the best and most comfortable way for her to work since
injuring herself in 2002. Again, monitoring work is an administrative function of a supervisor.25
In an August 9, 2005 statement, Ms. Walker explained that as a supervisor it was her
responsibility to ensure that her unit took timely breaks and lunches. As to the use of plastic
tubs, appellant implied that it was a necessary accommodation for a prior work-related injury.
However, she did not provide any medical documentation to establish that her work restrictions
included limited exposure to blowing air. An employee’s frustration from not being permitted to
work in a particular environment or hold a particular position is generally not compensable.26
Appellant has not provided evidence of error or abuse regarding the December 19 and 22, 2004
22

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

23

Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D. Edwards, 55 ECAB 258, 270 (2004).

24

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

25

Beverly R. Jones, supra note 23.

26

Lillian Cutler, supra note 11.

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incidents with Ms. Walker. While she filed both a grievance and an EEO complaint regarding
these incidents, the final disposition of those complaints is not of record. The mere fact that an
employee filed an EEO complaint does not establish error or abuse on the part of her employer.27
Based on the evidence of record, the Board finds that the December 19 and 22, 2004 incidents
involving Ms. Walker are not compensable.
Appellant also alleged that, on December 30, 2004, Ms. Walker instructed her immediate
supervisor, Ms. Wright, to have a preliminary discussion with appellant regarding an unspecified
incident. She did not provide any further information about this particular incident. Thus, the
Board finds that the December 30, 2004 alleged incident has not been factually established.
The remaining incidents are primarily related to circumstances stemming from
appellant’s alleged traumatic injury on January 27, 2005, when a defective toilet paper dispenser
opened and struck the right side of her head and her right shoulder. The Office ultimately denied
this claim.
On February 3, 2005 appellant received a call at home requesting that she report to the
employing establishment’s medical unit the following day. She complied with the request.
Dr. Ostrowski examined her on February 4, 2005 and found appellant fit to resume her previous
duties. Appellant, however, remained off work in accordance with her personal physician’s
recommendation. She did not specifically challenge the February 3, 2005 examination request.
Appellant’s only objection was that Dr. Ostrowski allegedly told her that she should go ahead
and retire on disability because nothing was going to change at work. The Board finds no
substantiation for the remarks appellant attributed to Dr. Ostrowski during the February 4, 2005
examination. Accordingly, this allegation has not been factually established.
The next incidents occurred on February 14, 15 and 16, 2005. Appellant stated that she
received a call at home on February 14, 2005 requesting that she meet with Mr. Dean at work the
following day to discuss her January 27, 2005 injury. She originally agreed to the February 15,
2005 meeting, but later called and left a message cancelling the appointment. Appellant did so
on the advice of a union steward who informed her that her unscheduled days did not belong to
the employing establishment. The following morning Mr. Teemer called appellant at her home,
insisting that she meet with Mr. Dean that morning. Appellant apparently did not comply.
When she returned to work on February 16, 2005 there were no discussions that day with either
Mr. Dean or Mr. Teemer concerning her January 27, 2005 injury claim. Appellant considered
the lack of discussions a form of harassment.
The February 14 and 15, 2005 requests to meet with Mr. Dean regarding appellant’s
January 27, 2005 injury are administrative matters. As such, these incidents are not compensable
absent evidence of error or abuse on the part of the employing establishment. Appellant objected
to meeting on February 15, 2005 only after she had been advised that she did not have to report
for work on a day she was not otherwise scheduled to work. She has not demonstrated any error
27

Grievances and EEO complaints do not establish that workplace harassment or unfair treatment occurred.
Charles D. Edwards, 55 ECAB 258, 266 (2004). Furthermore, absent an admission of fault, a settlement agreement
does not establish error or abuse on the part of the employing establishment. Kim Nguyen, 53 ECAB 127,
128 (2001).

9

or abuse on the part of the employing establishment in attempting to schedule a meeting to
discuss her January 27, 2005 claim of injury. Appellant’s claim of being harassed on
February 16, 2005 is unsubstantiated. There is no evidence that anything transpired that day
between appellant and either Mr. Teemer or Mr. Dean. By itself, the mere fact that no meetings
were held that day does not establish harassment.
Two other incidents occurred on March 4, 2005. Ms. Walker offered appellant another
limited-duty assignment, which appellant denied because it was “fishy.” It is not clear what her
specific objections were or how the March 4, 2005 offer caused or contributed to her claimed
emotional condition. Ms. Walker explained that it was her responsibility to extend job offers to
all tour 2 injured employees. She indicated that the March 4, 2005 position offered appellant in
the data conversion department was within her medical restrictions, but appellant rejected the
offer. Ms. Walker further indicated that the employer continued to accommodate appellant’s
medical restrictions. The March 4, 2005 job offer was an administrative matter, and merely
characterizing it as “fishy” does not demonstrate error or abuse on the part of her employer.
The second March 4, 2005 incident involved an interview by a postal inspector and
contract fraud analyst regarding appellant’s January 27, 2005 injury claim. Appellant was shown
surveillance footage from February 2005. She claimed that the postal inspector tried to
intimidate her. Investigations that do not involve an employee’s regular or specially assigned
duties are not compensable absent a showing of error or abuse on the part of the employing
establishment.28 Appellant’s vague and unsubstantiated allegation of intimidation is not
evidence of error or abuse. Consequently, the March 4, 2005 investigative interview is not
compensable.
The March 7, 2005 suspension without pay and the April 6, 2005 notice of removal
constitute disciplinary actions, which are administrative in nature.29 Reprimands, counseling
sessions and other disciplinary actions are administrative matters that are not covered under the
Act unless there is evidence of error or abuse.30 Appellant has not established error or abuse
with respect to either of the above-noted disciplinary actions.
Because appellant failed to establish a compensable factor of employment, the Office
properly denied her claim.31 The Board need not review the medical evidence.
CONCLUSION
Appellant has not established that she sustained an emotional condition in the
performance of duty.

28

Beverly A. Spencer, 55 ECAB 501, 512 (2004).

29

Charles D. Edwards, supra note 27.

30

Andrew Wolfgang-Masters, 56 ECAB 411, 414 n.7 (2005).

31

Garry M. Carlo, supra note 13.

10

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
HUMAN RESOURCES CENTER,
Richmond, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0672
Issued: August 24, 2016

Case Submitted on the Record

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

JURISDICTION
On February 22, 2016 appellant, through counsel, filed a timely appeal of a February 2,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
August 7, 2015 as she refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c).
On appeal appellant’s representative contends that the offered position was not suitable
because of limitations arising from her psychological condition and, thus, OWCP erred in
terminating her compensation under section 8106(c).
FACTUAL HISTORY
On March 15, 2013 appellant, then a 44-year-old claims representative, filed an
occupational disease claim (Form CA-2) alleging that on June 1, 2012 she first became aware
that her carpal tunnel condition was due to her work duties. OWCP accepted her claim for
bilateral upper arm, shoulder, and other specified sites strain and right carpal tunnel syndrome.
Appellant stopped work on August 11, 20143 and received wage-loss compensation for
temporary total disability from August 25 to September 30, 2014 and February 12 to
March 19, 2015.
In periodic progress reports dated September 10 and October 15, 2014, Dr. David Kassel,
a treating physician, diagnosed cervical spondylosis with myelopathy; myofascial pain,
numbness, and tingling; overuse syndrome; hypermobility syndrome; carpal tunnel syndrome;
and wrist strain/sprain. He opined that appellant continued to be disabled from work. Physical
findings included decreased neck and bilateral wrist range of motion.
On December 4, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, to determine the extent of
appellant’s disability, nature of her condition, and appropriate treatment.
The record contains periodic progress reports covering the period November 14 to
December 15, 2014 from San Hye Kim, a nurse practitioner (NP), noting that appellant was
currently off work. In the November 14, 2015 report, NP Kim noted that appellant was off work
until December 15, 2014 on Dr. Kassel’s orders. Diagnoses included: cervical spondylosis with
myelopathy; myofascial pain, numbness, and tingling; overuse syndrome; hypermobility
syndrome; carpal tunnel syndrome; and wrist strain/sprain.
In a periodic progress report, attending physician’s report (Form CA-20), and work status
form dated December 10, 2015, Dr. Kassel indicated that appellant was disabled from working.
Diagnoses remained unchanged. Appellant reported a pain level of 9 in the periodic progress
report.
In a January 6, 2015 report, Dr. Swartz noted appellant’s history of injury and treatment.
He conducted an examination, noted her pain complaints, and her claim that she had extreme
depression due to her severe pain. Dr. Swartz noted that appellant had worked for the employing
3

Appellant used leave when stopping work on August 11, 2014, leave without pay beginning August 25, 2014,
and sick leave after September 30, 2014.

2

establishment for 18 years and had not worked since August 7, 2014 due to her employment
injury. Physical examination findings included tenderness and spasm in the cervical spine,
tenderness in the upper back and both anterior shoulders, tenderness in the right elbow lateral
epicondyle, slight tenderness in both medial epicondyles, a positive Phalen’s test bilaterally in
the wrists and hands, and positive Tinel’s testing. Dr. Swartz opined that appellant had resolved
bilateral shoulder girdles repetitive strain syndrome, and chronic bilateral carpal tunnel
syndrome, which was confirmed by clinical examination and unsupported by electrodiagnostic
studies. He determined her disability ended as of the date of his examination, January 6, 2015
and that she was capable of returning to work. With respect to appellant’s work capability,
Dr. Swartz recommended a functional capacity evaluation (FCE) be performed.
A February 3, 2015 FCE was performed at Dr. Swartz’ request. The test reported
appellant’s range of motion was restricted by her arm and neck pain complaints. The FCE
summary reported that she was capable of lifting five pounds from floor to counter and two and
one-half pounds overhead, and sitting up to 30 minutes. No restriction was provided regarding
repetitive grasping. The FCE also reported shoulders, forearm, wrists, and cervical range of
motion deficits.
In a supplemental report dated February 25, 2015, Dr. Swartz provided work restrictions
based on his review of the February 3, 2015 FCE. He noted that the FCE had been affected by
appellant’s complaints of neck and upper shoulder discomfort and pain. Dr. Swartz completed a
work capacity evaluation on February 25, 2015 which included restrictions of walking up to four
to five hours per day; standing up to six hours per day; reaching up to seven hours per day;
reaching above the shoulder up to three hours per day; twisting, bending, and stooping up to
three to four hours per day; up to four hours per day of operating a motor vehicle at work and to
and from work; up to four hours of repetitive wrist movement; up to six hours of repetitive elbow
movement; up to two to three hours of pushing, pulling, and lifting 5 to 10 pounds; up to
one-half hour per day of squatting and climbing stairs; and up to one hour per day of kneeling.
In a March 12, 2015 report, Dr. Robert J. Balaban, a treating Board-certified psychiatrist,
diagnosed a single moderate major depressive episode without psychotic features. Based on his
examination and employment injury history, he attributed appellant’s psychiatric condition to her
employment injury. Dr. Balaban reported that it was clear that her pain overwhelmed her and
was a significant contributor to her depression.
On March 18, 2015 the employing establishment offered appellant the position of social
insurance specialist (claims representative, bilingual), which was based on the restrictions
provided by Dr. Swartz. The position involved working on a computer terminal with a headset,
ergonomic chair, and ergonomic workstation. The employing establishment noted appellant’s
work restrictions included up to eight hours sitting, up to six hours of standing, four to five hours
of walking, seven hours of reaching, up to three hours of reaching above the shoulder, three to
four hours of stooping and ending, up to four hours of operating a motor vehicle and driving to
and from work; up to four hours of repetitive wrist use; up to six hours of repetitive elbow use;
5 to 10 pounds of pushing, pulling, and lifting two to three hours per day; up to one-half hour per
day of squatting and climbing stairs, and up to one hour of kneeling.

3

On March 20, 2015 appellant accepted the job offer, but indicated that she was in the
appeals process, required treatment, and would return when she was well.
By letter dated April 9, 2015, OWCP advised appellant that the social insurance specialist
(claims representative, bilingual) position was deemed medically suitable based on the
February 25, 2015 opinion of Dr. Swartz. Appellant was advised that the employing
establishment had confirmed that the position remained available to her. OWCP informed her
that she should accept the position or provide an explanation for refusing the position within
30 days. Finally, it informed appellant that, if she failed to accept the offered position and failed
to demonstrate that the failure was justified, her compensation would be terminated.
In an April 14, 2015 psychiatric progress report, Dr. Balaban diagnosed moderate single
major depressive episode and noted that appellant was not working. Under history of illness, he
noted that she had significant pain and difficulty holding objects in her hand. Dr. Balaban
reported that appellant had feelings of being upset and anxious about returning to work and
remarkable pain. He observed that she had severe pain and significant functional limitation.
Dr. Balaban concluded that appellant was incapable of returning to work.
In an April 16, 20154 report, Dr. Kassel noted his disagreement with Dr. Swartz’ opinion
including the conclusion that the FCE was invalid. He attributed the diagnosed conditions of
cervical spondylolysis, hypermobility, carpal tunnel syndrome, numbness and tingling, and wrist
strain/sprain to appellant’s employment duties. Dr. Kassel opined that all the diagnosed
conditions had been confirmed by objective evidence and clinical and historical findings. He
concluded that appellant’s injury complaints supported the validity of the FCE and her
significant work restrictions. Dr. Kassel observed that FCE showed the impact of prolonged pain
due to her carpal tunnel, cervical radiculopathy, and repetitive stress could have when optimized
treatment had not been provided.
By letter dated June 3, 2015, OWCP advised appellant that her reasons for refusing to
accept the social insurance specialist (claims representative, bilingual) position were not
supported by the evidence. It found that the reports from Drs. Balaban and Kassel were
insufficient to create a conflict with Dr. Swartz’ opinion or establish that the duties of the offered
position were outside her work restrictions. OWCP informed appellant that the position was still
available. It advised her that her compensation and entitlement to a schedule award would be
terminated if she did not accept the position with 15 days of the date of the letter.
In a June 8, 2015 letter, appellant’s counsel contended that the offered position was
unsuitable as OWCP failed to consider appellant’s work and nonwork-related conditions. He
also argued that the FCE was valid contrary to Dr. Swartz’ opinion. Lastly, counsel contended
that there was an unresolved conflict in the medical opinion evidence between Dr. Swartz and
Dr. Kassel regarding her work capability.
In a June 10, 2015 psychological evaluation report, Scott Lingen, Psy.D, clinical
psychologist, reported appellant related being overwhelmed by her depression and anxiety
symptoms. According to appellant the stressors in her life included work difficulties due to her
4

The year noted on the report is 2016, which appears to be a typographical error.

4

pain, excessive pain, difficulties with sex due to pain, and financial problems. She reported
symptoms of sadness, depression, loss of interest, sleeping difficulties, feelings of guilt, fatigue
and worthlessness, loss of energy and decreased concentration, and a feeling of complete
helplessness. Dr. Lingen noted appellant’s repetitive history and that in 2012 she began
treatment for psychiatric distress and worsening depression. Medical diagnoses included:
cervical radiculitis, cervical spondylosis with myelopathy, carpal tunnel syndrome, headaches,
brachial neuritis or radiculitis, and overuse syndrome. Psychological testing was performed and
results provided. The tests revealed positive clinical range of psychiatric disturbance acute
depression, anxiety, and impaired concentration. Response from the Minnesota Multiphasic
Personality Inventory -- 2 revealed post-traumatic stress disorder, which Dr. Lingen attributed to
traumatization due to stress and pain from appellant’s last year of work. He diagnosed mood
disturbance and anxiety to her physical conditions, severe recurrent major depressive disorder
without psychotic features, which he attributed to her accepted employment injuries and the
employing establishment’s failure to provide ergonomic furniture and acknowledge her
employment injuries. Dr. Lingen concluded that appellant was totally disabled due to her
psychological conditions and recommended psychiatric disability retirement.
In periodic progress reports dated June 10 and July 10, 2015, Dr. Kassel reviewed
Dr. Lingen’s report and concurred with his opinion that appellant’s depression and severe
anxiety had been caused by her pain from her accepted employment conditions.
In work restriction form reports dated June 10 and July 10, 2015, Dr. Kassel determined
that appellant was totally disabled from June 10 to September 30, 2015.
By decision August 7, 2015, OWCP terminated appellant’s compensation benefits as she
refused an offer of suitable work effective that day. It found that the position offered by the
employing establishment was within the prescribed work restrictions of Dr. Swartz, and that
Dr. Kassel’s opinion was speculative and of diminished probative value. Next, OWCP found
Dr. Lingen’s report insufficient to establish that the diagnosed psychiatric conditions were
causally related to appellant’s accepted employment conditions. It also noted that she had been
afforded the requisite 15-day notice and opportunity to comply with 5 U.S.C. § 8106(c).
On August 24, 2015 appellant and her counsel requested a telephonic hearing before an
OWCP hearing representative, which was changed to a request for a review of the written record
by letter dated December 16, 2015.
In a November 4, 2015 periodic progress report, Dr. Kassel reiterated findings and
diagnoses from prior reports and indicated that appellant continued to be totally disabled from
work.
In a letter dated December 4, 2015, counsel requested reconsideration and submitted an
October 21, 2015 report by Dr. Kassel in support of appellant’s request.
By decision dated February 2, 2016, OWCP’s hearing representative affirmed the
August 7, 2015 decision terminating appellant’s compensation pursuant to section 8106(c).
Regarding her alleged psychiatric condition, the hearing representative found that appellant had

5

not provided rationalized medical opinion explaining why the condition prevented her from
performing the offered position.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA 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 her is not entitled to compensation.5 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
refusing to accept or neglecting to perform suitable work.6 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7 To justify termination, OWCP
must show that the work offered was suitable and that appellant was informed of the
consequences of her refusal to accept such employment.8
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.9 It is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.10 All of appellant’s
medical conditions, whether work related or not, must be considered in assessing the suitability
of the position.11
ANALYSIS
OWCP accepted that appellant sustained bilateral upper arm, shoulder, and other
specified sites strain and right carpal tunnel syndrome due to her employment duties. On
March 18, 2015 the employing establishment offered her a job as a modified social insurance
specialist (claims representative, bilingual). By letters dated April 9 and June 3, 2015, OWCP
informed appellant that the position was suitable based on the opinion of Dr. Swartz, a second
opinion physician. Appellant refused the position and OWCP terminated her compensation
effective August 7, 2015 due to her refusal.
The Board finds that OWCP did not meet its burden of proof to establish that modified
social insurance specialist (claims representative, bilingual) position offered by the employing
5

5 U.S.C. § 8106(c)(2).

6

Howard Y. Miyashiro, 51 ECAB 253 (1999).

7

H. Adrian Osborne, 48 ECAB 556 (1997).

8

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

Gayle Harris, 52 ECAB 319 (2001).

10

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

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.4(c)(7) (June 2013); Mary E. Woodard, 57 ECAB 211 (2005).

6

establishment was suitable. Therefore, OWCP’s termination of appellant’s compensation for
refusing such employment was improper.
OWCP did not adequately consider whether all of appellant’s diagnosed medical
conditions impacted her ability to work in the position offered by the employing establishment.
The Board has held that all impairments, whether work related or not, must be considered in
assessing the suitability of an offered position.12 In this case, OWCP did not adequately consider
whether appellant’s diagnosed psychological condition affected her ability to perform the
modified social insurance specialist (claims representative, bilingual) position. Appellant
submitted medical evidence from Dr. Balaban, a treating Board-certified psychiatrist, and
Dr. Lingen, a clinical psychologist, opining that she was totally disabled due to her pain, anxiety,
and depression. While these psychiatric conditions have not been accepted by OWCP as work
related, they should be considered in determining the suitability of the modified social insurance
specialist (claims representative, bilingual) position. In the decision dated August 7, 2015,
OWCP improperly discounted the evidence from Drs. Balaban and Lingen regarding appellant’s
psychiatric condition, finding that it was not an accepted condition.
OWCP’s hearing representative further discounted the psychiatric condition as she found
that the opinions expressed by Dr. Balaban and Dr. Lingen were not well rationalized and did not
sufficiently explain why appellant could not perform the offered position. By doing so the
hearing representative placed the burden of proof on her.
Dr. Balaban opined in his April 14, 2015 report that appellant was diagnosed with a
major depressive episode and that she was incapable of returning to work. In his June 10, 2015
report, Dr. Lingen noted that psychological testing had been performed which revealed
psychiatric disturbance, acute depression, anxiety, and impaired concentration.
Like
Dr. Balaban, Dr. Lingen opined that appellant was totally disabled due to her psychiatric
conditions.
In J.J.,13 the Board explained that at the time OWCP terminates benefits for refusal of
suitable work, it is OWCP’s burden to determine whether appellant was disabled from the
offered position due to any impairment. If at the time of the termination there is no evidence that
appellant has an impairment which prevents her from accepting the position, the termination is
justified. Following the termination of benefits the burden of proof shifts to her to establish that
her refusal to accept employment was justified.14

12

See Mary E. Woodward, 57 ECAB 211 (2005).

13

Docket No. 09-0975 (issued April 9, 2010).

14

In J.J. the Board noted that at the time benefits were terminated the medical evidence established that the
employee took medication for back pain, but did not list any impairment due to the effects of the medication. Only
after the termination of benefits did the employee offer medical evidence that the sedative properties of her
medication prevented her from performing the duties of the position. As this evidence was provided following the
termination of benefits, the burden of proof was on appellant to provide a well-rationalized medical opinion to
justify her refusal of suitable work.

7

As of August 7, 2015, the date appellant’s benefits were terminated, the evidence of
record included the April 14, 2015 report from Dr. Balaban, and the June 10, 2015 report from
Dr. Lingen, which opined that appellant was totally disabled due to her psychiatric condition.
Because section 8106(c) of FECA is a penalty provision, it must be narrowly construed.15
The medical evidence did not clearly establish that the modified social insurance specialist
(claims representative, bilingual) position was within appellant’s capabilities, at the time of the
suitable work termination. Consequently, OWCP did not discharge its burden of proof to justify
the termination of her compensation pursuant to section 8106(c).
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to establish that appellant
refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2016 is reversed.
Issued: August 24, 2016
Washington, DC

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

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

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

15

See Stephen A. Pasquale, 57 ECAB 396 (2006); Richard P. Cortes, 56 ECAB 200 (2004).

8