United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-1502
Issued: April 20, 2011

Case Submitted on the Record

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

JURISDICTION
On May 12, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 26, 2010 nonmerit decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The last merit
decision was a May 18, 2009 Office decision concerning the denial of appellant’s consequential
injury claim. Because more than 180 days elapsed between the Office’s last merit decision to the
filing of this appeal, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a September 14, 2004 decision, the
Board affirmed the Office’s August 25, 2003 decision terminating appellant’s compensation,
effective September 25, 2002, on the grounds that she refused an offer of suitable work.2 The
Board found that the medical opinion of Dr. Joseph I. Hoffman, Jr., an attending Board-certified
orthopedic surgeon, established that she was capable of performing the offered job. The Board
further found that appellant’s reasons for refusing the job were not valid and there was no
medical evidence to establish that she was unable to perform the offered job. The facts and the
history relevant to the present appeal are hereafter set forth.3
On February 13, 2006 appellant’s counsel requested that appellant’s claim be accepted
for depression. In a January 30, 2006 report, Dr. William H. Carter, Jr., a treating physician,
who diagnosed major depression due to her carpal tunnel syndrome and her treatment by the
employing establishment.
On January 29, 2007 appellant filed an occupational disease claim alleging that her major
depression was due to the frustration and anxiety she experienced due to her bilateral carpal
tunnel condition.
Appellant subsequently submitted a statement regarding the cause of her depression and
treatment notes for the period July 31, 2002 through January 30, 2006 from Dr. Carter. On
July 8, 2002 Dr. Carter diagnosed recurrent major depression with no psychotic features. On
May 27, 2003 he diagnosed major depression without psychotic features. Dr. Carter noted that
appellant’s depression worsened due to her noncompliance with treatment following financial
and other problems as well as her disability compensation issues. On November 14, 2003 he
diagnosed major depression and noted that her hostility and anger stem from her financial
difficulties and the denial of disability compensation issues. On January 30, 2006 Dr. Carter
attributed appellant’s major depression to her bilateral carpal tunnel employment injury. He
stated that her depression resulted from worry, anxiety and her frustration with her perception of
her treatment by the employing establishment.
By decision dated July 23, 2008, the Office denied appellant’s request to accept the
consequential injury of depression.
On August 1, 2008 appellant requested an oral hearing before an Office hearing
representative, which occurred on November 3, 2008.
By decision dated January 15, 2009, the Office hearing representative affirmed the denial
to expand appellant’s claim to include the consequential injury of depression.
2

Docket No. 04-189 (issued September 14, 2004).

3

On April 23, 1997 appellant, then a 40-year-old clerk, filed an occupational disease claim alleging that her
bilateral carpal tunnel syndrome was employment related. The Office accepted the claim for bilateral carpal tunnel
syndrome on January 20, 2000.
Appellant stopped work in August 1997 and retired on disability in
September 1997. By decision dated July 9, 2002, the Office modified the date of onset for her carpal tunnel
syndrome to March 9, 1992.

2

Subsequent to the Office’s denial, it received a September 29, 2000 report from
Dr. Stephen Snook, a treating licensed psychologist, who diagnosed major depression and noted
that appellant was currently in receipt of medical disability retirement compensation.
On March 26, 2009 counsel requested reconsideration and submitted a March 24, 2009
statement by Dr. Carter, who diagnosed major depression and bilateral carpal tunnel syndrome
and noted that appellant had been totally disabled since August 1997. Dr. Carter attributed
appellant’s depression to her bilateral carpal tunnel condition. He noted her low self-esteem,
self-concept and anger about her treatment by the employing establishment.
By decision dated May 18, 2009, the Office denied modification of the prior decisions.
On June 28, 2009 appellant requested reconsideration. In support of her claim, she
submitted statements from her brother and Andrea M. Bernard attesting to her depression and the
impact of her bilateral carpal tunnel syndrome on her depression.
By decision dated July 9, 2009, the Office denied appellant’s request for reconsideration
of the merits.
The Office subsequently received additional medical records dated February 3, 2003
through September 3, 2009 concerning appellant’s carpal tunnel condition from her treating
physicians and a September 3, 2009 electromyogram (EMG) report. In reports dated August 9
and September 4 2009, Dr. Bradley Henderson, a treating Board-certified orthopedic surgeon,
provided findings from a physical examination and diagnosed bilateral carpal tunnel syndrome.
On December 8, 2009 appellant requested reconsideration and submitted a July 7, 2009
report from Dr. Joseph N. Saba, a treating Board-certified neurologist, who noted her injury
history and that she had not worked since 1997. Dr. Saba diagnosed major depression due to her
chronic pain, tension/chronic muscular contraction headache, chronic cervical syndrome,
bilateral carpal tunnel syndrome, chronic lumbar syndrome, acid reflux and chronic persistent
pain. He reported that appellant was tearful and noted she appeared to be having a difficult time
with workers’ compensation. In an October 2, 2009 report, Dr. W. Joseph Absi, a treating
Board-certified orthopedic surgeon, diagnosed left carpal tunnel syndrome.
By decision dated March 26, 2010, the Office denied appellant’s request for
reconsideration of the merits.4

4

The Board notes that, following the March 26, 2010 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); J.T., 59 ECAB 293
(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373
(2003); M.B., Docket No. 09-176 (issued September 23, 2009).

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LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.6 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.7 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.8
ANALYSIS
Appellant requested that her claim be accepted for consequential depression, which was
denied by the Office in merit decisions dated July 23, 2008, January 15 and May 18, 2009. By
decisions dated July 9, 2009 and March 26, 2010, the Office declined to reopen the case for
further merit review
The Office denied appellant’s claim due to the lack of rationalized medical evidence
establishing a causal relationship between her accepted bilateral carpal tunnel syndrome and her
depression. The Board finds that she did not advance a new legal argument or a point of law not
previously considered by the Office. Consequently, appellant is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered, appellant submitted medical reports from Dr. Saba. On July 7, 2009
Dr. Saba diagnosed major depression due to her chronic pain, tension/chronic muscular
contraction headache, chronic cervical syndrome, bilateral carpal tunnel syndrome, chronic
lumbar syndrome, acid reflux and chronic persistent pain. The August 9 and September 4, 2009
reports of Dr. Henderson, as well as the October 2, 2009 report from Dr. Absi, all diagnosed
bilateral carpal tunnel condition, but these reports are not relevant because the physicians did not

5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
6

20 C.F.R. § 10.606(b)(2); Susan A. Filkins, 57 ECAB 630 (2006). See J.M., Docket No. 09-218 (issued
July 24, 2009).
7

Id. at § 10.607(a); Robert G. Burns, 57 ECAB 657 (2006). See S.J., Docket No. 08-2048 (issued July 9, 2009).

8

Id. at § 10.608(b); Tina M. Parrelli-Ball, 57 ECAB 598 (2006).
March 16, 2009).

4

See Y.S., Docket No. 08-440 (issued

address the issue of whether appellant’s depression was a consequence of her accepted bilateral
carpal tunnel syndrome. The Board has held that evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.9 Appellant did not offer any
relevant new evidence addressing the central issue of her claim. She is not entitled to a review of
the merits of her claim based on the third requirement under section 10.606(b)(2). The Office
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2010 is affirmed.
Issued: April 20, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9

See R.M., 59 ECAB 690 (2008); D’Wayne Avila, 57 ECAB 642 (2006); David J. McDonald, 50 ECAB
185 (1998).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rahway, NJ, Employer
__________________________________________

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

Docket No. 08-1810
Issued: February 20, 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 June 10, 2008 appellant timely appealed the May 22, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of her
claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability on June 5, 2000,
causally related to her August 18, 1997 employment injury.
FACTUAL HISTORY
This case was previously before the Board. Appellant, a 53-year-old former letter carrier,
has an accepted claim for cervical and lumbosacral sprains she sustained in an August 18, 1997
motor vehicle accident.1 Dr. Kevin E. Lukenda, a Board-certified family practitioner, released
1

Appellant also has an accepted claim for an October 22, 1996 right ankle injury (xxxxxx781). This prior claim
was accepted for fracture of the right (distal) fibula. Appellant later developed right Achilles tendinitis.

appellant to perform limited-duty work effective October 20, 1997.2 Appellant returned to work
on October 20, 1997 but the exact nature of her limited-duty assignment at the time remains
unclear.3
On June 27, 2000 appellant filed a claim for recurrence of disability beginning June 5,
2000, causally related to her August 18, 1997 employment injury. She indicated that she had
been on light duty since her injury and that she was restricted from walking, bending, lifting and
twisting. Appellant also stated that she had stress-induced muscle spasms and constant pain in
her neck and shoulders. She claimed that her light-duty work aggravated her injury. Appellant
explained that if she stood or sat in one place her neck pain would worsen. The employing
establishment noted that “work [had been] provided to keep [appellant] well within her
limitations.”
Less than two weeks prior to the June 5, 2000 work stoppage, Dr. Lukenda advised that
appellant could only lift 10 pounds. He also stated that she could not push a “skid/nutting truck
of 1,000 pounds” and she could not do “continuous bending, lifting, twisting, walking, etc.” In
this May 25, 2000 report, Dr. Lukenda stated that he was treating appellant for vascular
insufficiency and chronic tendinitis and that she was unable to carry out her job duties.
In an August 7, 2000 statement, appellant indicated that her duties included casing and
pulling down mail for three different routes and then handing the mail off to another carrier for
delivery. This took approximately two and a half hours to complete. Appellant also stated that
she performed interstation deliveries among the Rahway, Clark and Colonia Post Offices. This
reportedly involved loading tubs of mail in a truck and delivering it to the appropriate facility.
Appellant stated that she also unloaded blue collection boxes at various postal facilities and
another 26 blue boxes on the street. She reportedly drove to the various blue boxes, opened
them, removed tubs of mail from within and replaced the full tubs with empty ones, then
returned to the Rahway postal facility and unloaded the mail. Appellant estimated that the
collection work took two to two and a half hours. Additional duties included writing
“accountable mail” and “CFSS.”
Edward H. Honchen, customer service supervisor at the Rahway postal facility, stated
that “at no time did [appellant] ever exceed her doctor’s limitations.” Citing Dr. Lukenda’s
October 13, 1997 duty status report (Form CA-17), Mr. Honchen indicated that appellant could
lift/carry 10 pounds and walk for three hours per day. He also stated that appellant never left the
building to do carrier functions. Mr. Honchen indicated that over time appellant’s restrictions
had progressively worsened to the point that she was unable to perform any carrier duties. He
further noted that appellant occasionally transported box mail to the branches, but she primarily
2

Appellant was restricted to three hours standing, three hours walking, two hours climbing and no kneeling,
bending/stooping, twisting or pushing/pulling. Dr. Lukenda also indicated that appellant could lift/carry 10 pounds,
sit for eight hours, perform eight hours of fine manipulation, two hours simple grasping, three hours reaching above
shoulder, two hours driving and two hours operating machinery.
3

The employing establishment appears not to have provided appellant a written, limited-duty job offer outlining
the specific duties she was expected to perform on or after October 20, 1997. A December 2, 1997 Form CA-3
(Report of Termination of Disability and/or Payment) confirming appellant’s return to work merely noted that
“limited duty [was] provided.”

2

performed office duties. Additionally, Mr. Honchen stated that, up until the time appellant
completely stopped reporting to work, she was “limited to only sit down office work.”
Dr. Paul Blank, a chiropractor, began treating appellant on June 5, 2000. He noted that
she was involved in a motor vehicle accident in August 1997. Dr. Blank diagnosed cervical disc
degeneration and cervicocranial syndrome and found appellant totally disabled from June 5 to
August 28, 2000. He also noted that the nature of appellant’s job could cause exacerbations.
Dr. Blank advised against prolonged sitting or standing and prolonged flexion or extension of the
head. He also imposed a five-pound lifting restriction.
On June 21, 2000 Dr. Lukenda indicated that appellant was to remain off work
indefinitely due to cervical pain. He continued the same work restriction when he saw appellant
on August 1, 2000. Dr. Lukenda’s August 29, 2000 treatment notes indicated that appellant was
unable to work due to chronic neck and right ankle pain. In an August 30, 2000 report, he
diagnosed cervical sprain and explained that appellant’s neck pain was aggravated with work.
Dr. Douglas Ashendorf, III, a Board-certified physiatrist, saw appellant on September 11
and October 9, 2000. He noted that appellant sustained a fracture of the right lateral malleolus in
October 1996 and later developed chronic Achilles tendinitis. Dr. Ashendorf also indicated that
appellant was involved in an August 1997 motor vehicle accident where she was rear-ended.
According to him, appellant developed “some sort of chronic pain syndrome in the cervical
region and ... right lower extremity.” Dr. Ashendorf’s ultimate diagnosis was “chronic idiopathic
pain syndrome.”
In a March 22, 2001 report, Dr. Lukenda diagnosed severe cervical sprain due to the
August 18, 1997 employment-related motor vehicle accident. He noted that appellant continued
to complain of severe pain in the neck and shoulders. Given the duration of these complaints,
Dr. Lukenda characterized appellant’s cervical injury as “permanent.” He also stated that
appellant’s condition affected her capacity to do any significant and meaningful occupational and
work-related projects, as well as recreational activities. Dr. Lukenda further noted that appellant
experienced pain with work and she was unable to deal with the smallest amount of demands to
her neck.

3

The Office denied appellant’s recurrence claim by decision dated May 23, 2001.4
Pursuant to a November 11, 2001 request for reconsideration, the Office reviewed the merits of
appellant’s recurrence claim and denied modification by decision dated February 13, 2006.5
Appellant filed another request for reconsideration on February 6, 2007. She described
her blue box collection duties and the process of setting up and pulling down a route. With
respect to the latter, appellant indicated that individual bundles of mail on a route generally
exceeded 10 pounds and the entire route weighed at least 500 pounds. Regarding her interstation
collections, she explained that she used a skid that weighed approximately 75 pounds. Appellant
would load and unload the skid with mail and push the skid around the postal facility. She
indicated that her various duties involved a lot of lifting, bending, standing, walking and
twisting. Appellant also provided statements from several coworkers attesting to her having
performed the above-mentioned duties until June 5, 2000.
Additional medical evidence included an undated report from psychologist, Martha K.
Blanc, Ph.D., who had been treating appellant since June 23, 2005 for depression. Dr. Blanc
noted that appellant was a former postal worker who suffered work-related injuries in 1997.
Appellant reportedly had been unable to return to work since her injury. According to Dr. Blanc,
appellant described significant depression associated with her physical limitations and chronic
pain from her injuries.
In a March 1, 2006 report, Dr. Erica N. David, a Board-certified physiatrist, noted that
appellant was a passenger in a postal service truck that was rear ended by another vehicle on
August 18, 1997. She also noted that appellant had stopped work in June 2000. Dr. David
diagnosed chronic neck pain secondary to C4-5 and C5-6 disc bulges. She also diagnosed
chronic cervical myofascial pain, left C6-7 radiculopathy, right lower cervical radiculitus and
cervicogenic headaches. Dr. David stated that appellant’s symptoms of neck pain, muscle
spasm, headaches and paresthesias were directly related to the August 18, 1997 accident.6
In a February 2, 2007 report, Dr. Lukenda stated that appellant was permanently disabled
by her October 22, 1996 and August 18, 1997 employment injuries. Her current diagnoses
included chronic Achilles tendentious, chronic pain secondary to C4-5 and C5-6 disc bulges,
4

Appellant also filed for a June 5, 2000 recurrence of disability under claim number xxxxxx781. This recurrence
claim was similarly denied. On February 9, 2009 the Board issued a decision (Docket No. 08-1780) affirming the
Office’s latest denial of modification with respect to appellant’s alleged June 5, 2000 recurrence of disability under
claim number xxxxxx781.
5

The Office considered, among other things, an undated report from Dr. Adriana Stolte, who examined appellant
on June 29, 2001. Dr. Stolte reported moderate neck pain radiating into both shoulders and moderate ankle pain.
She also noted that appellant had been out of work since June 5, 2000 because of her symptoms. According to
Dr. Stolte, appellant’s former job required a lot of driving and walking, which was why she felt unable to perform
her job duties. She diagnosed left C6-7 cervical radiculopathy, right cervical radiculitis, right-sided C6
radiculopathy, right-sided C7 nerve root radiculopathy, and chronic Achilles tendinitis and pain syndrome.
Dr. Stolte stated that appellant was not currently able to return to the workforce nor would she be able to in the
distant future.
6

Dr. David also diagnosed left carpal tunnel syndrome, which was unrelated to appellant’s August 18, 1997
motor vehicle accident.

4

chronic cervical myofascial pain, left radiculopathy, right lower cervical radiculitus and
cervicogenic headaches. Dr. Lukenda also stated that there was “spontaneity to [appellant’s]
previous injuries which caused her to leave work on June 5, 2000.”
Dr. Lukenda also provided February 28, 2007 work restrictions due to appellant’s
August 18, 1997 “back/neck injury.” The restrictions included no strenuous activity and no
lifting greater than 10 pounds. Dr. Lukenda also indicated that appellant should alternate
between sitting and standing. He further stated that appellant should not perform any bending,
lifting, twisting or walking, no pulling or setting up, no casing mail and no reaching. Appellant
was also advised to walk less than one hour and drive less than one hour. Dr. Lukenda noted that
appellant had stopped work on June 5, 2000.
By decision dated April 30, 2007, the Office denied modification. The Board, however,
set aside this decision by order dated May 20, 2008.7 The record on appeal was incomplete, thus
precluding the Board from conducting a full and fair adjudication of appellant’s recurrence
claim. The Board also expressed concern about the dearth of information regarding appellant’s
limited-duty assignment.8
After compiling the necessary documentation, the Office issued a May 22, 2008 decision
denying modification.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.9 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn -- except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force -- or when the physical requirements of
such an assignment are altered so that they exceed the employee’s established physical
limitations.10 Moreover, when the claimed recurrence of disability follows a return to light-duty
work, the employee may satisfy her burden of proof by showing a change in the nature and

7

Docket No. 08-139 (issued May 20, 2008).
reference.

The Board’s May 20, 2008 order is incorporated herein by

8

In February 2007, the Office sought clarification from the employing establishment regarding appellant’s
assigned duties at the time of her June 5, 2000 work stoppage. The effort was unsuccessful because Mr. Honchen
had since retired and appellant’s former Postmaster was deceased. As such, there were no employing establishment
managers with first-hand knowledge of appellant’s job duties available for comment. However, two former
coworkers who wished to remain anonymous reportedly “never saw [appellant] exceed her restrictions.”
9

20 C.F.R. § 10.5(x) (2008).

10

Id.

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extent of the injury-related condition such that she was no longer able to perform the light-duty
assignment.11
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.12 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.13 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.14
ANALYSIS
The first question is whether the physical requirements of appellant’s limited-duty
assignment were altered such that they exceeded appellant’s established physical limitations. In
its May 22, 2008 decision, the Office accepted as factual appellant’s August 7, 2000 description
of her limited-duty assignment. Although the employing establishment represented that it had
provided work “well within [appellant’s] limitations,” the description of appellant’s duties was
vague. In his April 9, 2001 statement, Mr. Honchen indicated that appellant primarily performed
office duties. Appellant reportedly never left the building to perform carrier functions, but
occasionally transported box mail to the branches. Mr. Honchen also represented that at no time
did appellant ever exceed her doctor’s limitations. He further stated that up until the time
appellant completely stopped reporting to work, “she was limited to only sit down office work.”
Statements from several of appellant’s coworkers establish that she performed more than just “sit
down office work” prior to her June 5, 2000 work stoppage. The record establishes that
appellant’s primary duties included casing and pulling down up to three mail routes, collecting
mail from blue boxes and interstation collection and distribution. Appellant claims that these
duties exceeded the restrictions imposed by her physician. However, her belief that her assigned
duties exceeded her physical limitations is not by itself sufficient to establish a recurrence of
disability.
The next question is what physical limitations were in effect on or about June 5, 2000
specific to appellant’s accepted cervical and lumbosacral sprains. Dr. Lukenda’s October 13,
1997 duty status report (Form CA-17) is the only clear representation of appellant’s physical
restrictions due to her August 18, 1997 accepted employment injury.15 But these restrictions
predate appellant’s June 5, 2000 work stoppage by more than two and a half years. The record
does not adequately reflect the extent to which these various restrictions remained in effect as of
11

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

12

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
13

See Helen K. Holt, supra note 12.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

15

See supra note 2.

6

June 5, 2000. Just prior to appellant’s work stoppage, Dr. Lukenda imposed a 10-pound lifting
restriction, which was consistent with the previous October 13, 1997 lifting restriction. He also
indicated that appellant could not push a “skid/nutting truck of 1,000 pounds” and could not
perform “continuous bending, lifting, twisting, walking, etc.” The May 25, 2000 work
restrictions, however, were reportedly due to appellant’s vascular insufficiency and chronic
tendinitis. Dr. Lukenda did not specifically attribute these latest restrictions to appellant’s
accepted cervical or lumbosacral sprains. Moreover, he offered no rationale for the limitations
he imposed on May 25, 2000.
The Office accepted Dr. Lukenda’s May 25, 2000 restrictions as an accurate
representation of appellant’s physical capabilities on or about June 5, 2000. However, it
apparently overlooked the fact that he did not specifically ascribe these limitations to appellant’s
August 18, 1997 accepted injuries. The Office went on to conclude that appellant had not
demonstrated that her various duties exceeded Dr. Lukenda’s May 25, 2000 restrictions.
Consequently, it denied modification.
While the Board concurs with the outcome of the May 22, 2008 decision, we reach this
result based on a different analysis. It is abundantly clear that appellant had not performed her
regular letter carrier duties for several years. The record does not, on the other hand, clearly
establish what physical limitations remained in effect on or about June 5, 2000 that were directly
related to appellant’s accepted cervical and lumbosacral sprains. Without this particular
information it is impossible to determine if appellant’s assigned duties exceeded her specific
injury-related physical restrictions. Under the circumstances, appellant has failed to establish a
recurrence of disability based on a purported change in her light-duty assignment.
The only remaining avenue is to establish a change in the nature and extent of appellant’s
injury-related condition. There is evidence that appellant was totally disabled as of June 5, 2000.
The first such evidence was provided by Dr. Blank, who diagnosed cervical disc degeneration
and cervicocranial syndrome. Dr. Blank indicated that appellant was totally disabled from
June 5 through August 28, 2000. The conditions Dr. Blank diagnosed have not been accepted by
the Office. Furthermore, the reports prepared by Dr. Blank, a chiropractor, do not constitute
credible medical evidence.16
Between June and August 2000, Dr. Lukenda kept appellant out of work due to cervical
and right ankle pain. In an August 30, 200 report, he specifically diagnosed cervical sprain.
However, Dr. Lukenda’s reports and treatment notes during this timeframe do not adequately
explain how appellant’s cervical complaints were related to the August 18, 1997 employment
injury.17 On March 22, 2001 Dr. Lukenda reiterated his August 30, 2000 diagnosis of cervical
16

Dr. Blank did not diagnose a subluxation of the spine based on x-ray evidence, and thus, his opinion is not
probative. See 5 U.S.C. § 8101(2) (2006); Kathryn Haggerty, 45 ECAB 383, 389 (1994).
17

Causal relationship is a medical question, which generally requires rationalized medical opinion evidence to
resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be based on a complete
factual and medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s
opinion must be expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors. Id.

7

sprain. But in neither instance did he explain how an August 18, 1997 cervical sprain ostensibly
persisted for some three to three and a half years after appellant’s initial injury.
As previously noted, cervical and lumbosacral sprains are thus far the only accepted
conditions arising from appellant’s August 18, 1997 motor vehicle accident. Where an employee
claims that a condition not accepted or approved by the Office was due to her employment
injury, she bears the burden of proof to establish that the condition is causally related to the
employment injury.18 Drs. Stolte, Ashendorf, Blanc, David and Lukenda have diagnosed a litany
of physiological and psychological conditions which the Office has not accepted as employment
related. These diagnoses include depression, multilevel cervical disc bulges, chronic cervical
myofascial pain, cervical radiculopathy, cervical radiculitus, cervicogenic headaches and chronic
idiopathic pain syndrome. None of the above-referenced physicians provided a rationalized
medical opinion linking appellant’s current cervical and psychological conditions to her
August 18, 1997 motor vehicle accident. In his latest report, Dr. Lukenda appears to have
abandoned his diagnosis of cervical sprain in favor of adopting Dr. David’s March 2006
diagnoses of chronic pain secondary to C4-5 and C5-6 disc bulges, chronic cervical myofascial
pain, left radiculopathy, right lower cervical radiculitus and cervicogenic headaches. But other
than stating that appellant’s 1996 and 1997 employment injuries have left her permanently
disabled, Dr. Lukenda did not adequately explain the relationship between appellant’s current
cervical condition and her August 18, 1997 employment injury. While appellant may very well
be totally disabled, the medical evidence fails to establish that her claimed disability beginning
June 5, 2000 was causally related to her accepted employment injury of August 18, 1997.
CONCLUSION
Appellant failed to establish that she sustained a recurrence of disability on June 5, 2000,
causally related to her August 18, 1997 employment injury.

18

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Roanoke, VA, Employer
__________________________________________

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)

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

Docket No. 17-0314
Issued: May 17, 2017

Case Submitted on the Record

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

JURISDICTION
On November 25, 2016 appellant filed a timely appeal from an October 5, 2016 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.
ISSUE
The issue is whether appellant has established that he was disabled from work during the
period May 5 to June 6, 2016 due to his accepted May 5, 2016 employment injury.
FACTUAL HISTORY
On May 11, 2016 appellant, then a 50-year-old carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2016 he sustained an injury in the performance of
duty. On the claim form he related that hit his head on a beam and fell to the ground while
1

5 U.S.C. § 8101 et seq.

delivering mail. Appellant also noted that he jammed his neck during this incident. He stopped
work on May 5, 2016. Appellant received treatment on the evening of May 5, 2016 at a health
clinic, from Dr. Kimberly Abel, an emergency medicine specialist. Dr. Abel diagnosed
concussion and cervical sprain.
In a form report dated May 10, 2016, Dr. Hetzal Hartley, Board-certified in occupational
medicine, diagnosed cervical strain and indicated that appellant could work full duty as of
May 10, 2016. He also completed a duty status report (Form CA-17) dated May 10, 2016
diagnosing acute cervical strain and indicating that appellant could work regular full-time duties.
In an attending physician’s report (Form CA-20) dated May 11, 2016, Dr. Hartley diagnosed
acute cervical strain and closed-head injury. He checked a box marked “yes” that the conditions
were employment related, and indicated that appellant could resume regular work.
In a June 3, 2016 letter, the employing establishment indicated that appellant was initially
hired on April 16, 2016. Following the May 5, 2016 injury, appellant was paid continuation of
pay benefits and was subsequently released to full duty on May 10, 2016. The employing
establishment also related that appellant’s supervisor had ordered him to report to work on
May 20, 2016. According to the employing establishment, appellant did not report for work and
his employment was terminated effective May 25, 2016. It was also noted that appellant had
submitted medical evidence on June 1, 2016 regarding a 10-pound lifting restriction, and work
could have been provided within that restriction.
OWCP accepted the claim on June 1, 2016 for cervical strain of the muscle, fascia, and
tendon. On June 3, 2016 appellant submitted a claim for compensation (Form CA-7) for the
period May 5 to June 6, 2016.
In a form report dated June 1, 2016, Dr. Hartley indicated that appellant could work
modified duties from June 1 to 6, 2016, and he could work regular duty as of June 6, 2016. In an
undated report received by OWCP on June 3, 2016, he wrote that on May 10, 2016 appellant had
informed him that his employment was terminated. Dr. Hartley noted that, because of this
information, he had reported that appellant could return to full duty. He wrote that if appellant
could have returned to work his lifting restriction would have been 10 pounds due to the
accepted cervical strain.
By letter dated July 22, 2016, OWCP noted that Dr. Hartley had released appellant to full
duty on May 10, 2016 in his Form CA-20 report. It requested that appellant submit additional
medical evidence within 30 days. On July 28, 2016 appellant resubmitted the undated report
from Dr. Hartley. He also submitted a report dated June 17, 2016 from Dr. Hartley, which
provided examination findings and diagnosed acute cervical strain. Dr. Hartley indicated that
appellant reported his neck was feeling better.
By decision dated October 5, 2016, OWCP denied the claim for disability from May 5 to
June 6, 2016. It found that the medical evidence of record was insufficient to establish the
claimed period of disability.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.3 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.4
Whether a particular injury causes an employee to be disabled from work and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.6 The Board will
not require OWCP to pay compensation for disability in the absence of any medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.7 To establish causal relationship between the disability claimed and the
employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.8
ANALYSIS
OWCP accepted that appellant sustained a cervical strain on May 5, 2016 while in the
performance of duty. Appellant filed a Form CA-7 claim for compensation for disability from
work during the period May 5 to June 6, 2016. To establish disability, he must submit
rationalized medical evidence supporting causal relationship.9
The record indicates that appellant was seen on May 10, 2016 by Dr. Hartley.
Dr. Hartley submitted three form reports dated May 10, 2016, each indicating that appellant
could work full duty. He did not discuss whether appellant was disabled during the claim period.
The Board will not require OWCP to pay compensation for disability in the absence of any

2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9

See B.S., Docket No. 16-1121 (issued September 16, 2016).

3

medical evidence directly addressing the specific dates of disability for which compensation is
claimed.10
In a brief undated report initially submitted on June 3, 2016, Dr. Hartley wrote that he
had released appellant to full duty because appellant had told him his employment had been
terminated. He then reported that appellant continued to have a 10-pound lifting restriction.
This report is not sufficient to establish an employment-related disability from May 5 to
June 6, 2016 as Dr. Hartley did not discuss the May 5, 2016 employment injury, the physical
examination, or diagnostic test findings.11 Moreover, Dr. Hartley did not provide a reasoned
medical opinion explaining that appellant was disabled from performing his carrier position
duties due to the May 5, 2016 employment injury, or the duration of any disability. A physician
must clearly identify the specific dates of disability and provide an explanation of how the
accepted condition contributed to disability for work.12
It is appellant’s burden of proof to establish the claimed period of disability.13 For the
reasons discussed above, the Board finds that appellant has not met his burden of proof in this
case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he was disabled from work during
the period May 5 to June 6, 2016 due to his accepted May 5, 2016 employment injury.

10

N.G., Docket No. 16-1421 (issued December 12, 2016).

11

A probative medical report includes findings on examination, a firm diagnosis, and medical rationale
supporting the opinion offered. See K.W., Docket No. 16-1176 (issued November 2, 2016).
12

See R.P., Docket No. 12-1455 (issued January 10, 2013).

13

Supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 5, 2016 is affirmed.
Issued: May 17, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Meriden, CT, Employer
__________________________________________

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

Docket No. 19-1058
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a December 20,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The record also contains a July 20, 2018 decision suspending appellant’s compensation effective July 22, 2018 as
she failed to complete and return an EN1032 form. Counsel has not appealed this decision and thus it is not before
the Board at this time. 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective June 6, 2018, due to her failure to attend a scheduled
medical appointment.
FACTUAL HISTORY
On February 7, 2003 appellant, then a 39-year-old casual letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her right temple, right side of her
neck, and right arm when she slipped and fell on ice while in the performance of duty. OWCP
accepted the claim for cervical sprain and right shoulder tendinitis. Appellant performed modified
employment following her injury until April 26, 2003, when her temporary appointment ended.
OWCP paid her wage-loss compensation for total disability on the periodic rolls beginning
July 11, 2004.5
By decision dated April 27, 2006, OWCP suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d), effective April 16, 2006, as she had failed to attend a scheduled magnetic
resonance imaging (MRI) scan of the cervical spine. By decisions dated July 7 and November 22,
2006, it denied modification of its April 27, 2006 decision.
Thereafter, on November 22, 2010, OWCP received an October 19, 2010 letter from
appellant advising that she would cooperate with OWCP and vocational rehabilitation. It
reinstated her wage-loss compensation effective November 22, 2010.6
On September 29, 2017 OWCP referred appellant to Dr. Steven A. Silver, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated October 2, 2017,
Dr. Silver diagnosed resolved cervical strain and rotator cuff tendinitis causally related to the
3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the December 20, 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.
5

By decision dated October 20, 2004, OWCP reduced appellant’s wage-loss compensation to zero effective
October 19, 2004 under 5 U.S.C. § 8113(b) due to her failure to participate in vocational rehabilitation. By decision
dated February 9, 2005, it vacated its October 20, 2004 decision and reinstated wage-loss compensation.
6

In a report dated March 3, 2011, Dr. Balaz B. Somogyi, a Board-certified orthopedic surgeon, diagnosed chronic
cervical syndrome with mild cervical degenerative arthritis and chronic right rotator cuff tendinitis causally related to
the February 17, 2003 employment injury. He noted that there were no MRI scans of the neck or shoulder and
recommended a right shoulder MRI scan. In an October 31, 2011 report, Dr. Joseph Tomanelli, a Board-certified
internist, advised that appellant was unable to take medication to prevent moving during MRI scans due to her
allergies. He indicated that he had not treated her since January 2008 and was unable to address her current condition.

2

February 7, 2003 employment injury. He found that appellant was unable to return to her usual
employment, but could participate in vocational rehabilitation. Dr. Silver noted, “It is my opinion
an MRI [scan] of both the right shoulder and cervical spine is both medically necessary and
warranted to fully ascertain the etiology of her continued pain. [Appellant], however, states [that]
she is unable to undergo these procedures.” He advised that he recommended a cervical MRI scan
to “resolve the disparity between [appellant’s] subjective complaints and her examination.”
In a report dated October 25, 2017, a physician assistant evaluated appellant for low back
pain. He advised that she could not lie supine for a prescribed MRI scan as a resting tremor
prevented her from lying down flat. The physician assistant referred appellant for a standing MRI
scan.
On February 28, 2018 OWCP referred appellant for the prescribed standing MRI scan on
March 14, 2018.
In a March 9, 2018 telephone call, counsel informed OWCP that she was unable to sit for
over four hours in a vehicle to travel to the scheduled MRI scan location. In response, OWCP
advised that it had scheduled the MRI scan at the standing MRI scan facility that was the closest
to her location. It noted that appellant had not submitted evidence supporting that she was unable
to sit in a vehicle for that length of time. OWCP informed counsel that it could provide
transportation if notified in advance.
In a March 12, 2018 telephone, appellant advised that she had located a provider closer to
her location and questioned the type of transport available. OWCP informed her that its scheduler
could arrange for transportation in either a van or a taxi. It provided appellant until the end of the
day to state whether she required transportation to the appointment.
Appellant failed to attend the MRI scan scheduled for March 14, 2018. Counsel
subsequently advised that she was unable to attend the appointment due to the weather and asked
that the appointment be rescheduled.
On April 24, 2018 OWCP again referred appellant for the prescribed MRI scan on
May 14, 2018.7
Appellant also failed to attend the MRI scan rescheduled for May 14, 2018.
In a May 21, 2018 notice, OWCP proposed to suspend appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d) as she failed to attend the standing MRI scan scheduled for
May 14, 2018. It advised her that she should provide a written explanation of her reasons for
failing to attend the scheduled examination, with substantive corroborating evidence, within 14
days. No response was received.
By decision dated June 6, 2018, OWCP finalized its proposed suspension, effective that
date. It found that it had directed appellant on April 24, 2018 to attend the MRI scan scheduled
7
OWCP had referred appellant for the prescribed MRI scan on April 16, 2018. On April 17, 2018 counsel advised
that the provider had cancelled the appointment as she did not have a prescription.

3

for May 14, 2018, but that she had not attended the appointment nor had she provided a reason
why she had refused to attend the diagnostic study.
On June 14, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on November 13, 2018.8 Appellant testified that she was
unable to attend the MRI scan due to her preexisting medical conditions of a fractured spine, torn
meniscus, and hole in her right retina. She advised that remaining in a particular position for the
standing MRI scan would cause significant pain and noted that she was unable to take pain
medication. Appellant indicated that she would not attend a rescheduled MRI scan due to orders
from her physician.
Thereafter, OWCP received the results of January 30, 2008 cervical x-rays that revealed
mild facet arthritis at C5-6 and C6-7 and June 19, 2018 lumbar x-rays that showed an ageindeterminate fracture at L2 and mild degenerative changes.
Appellant further submitted progress reports from 2017 describing her treatment for an
age-indeterminate compression fracture at L2, a medial cruciate ligament sprain of the left knee
with a possible medial meniscus tear, and a mild right elbow contusion.
In an August 27, 2018 report, Dr. Amando Rafael, an optometrist, diagnosed a macular
cyst, hole, or pseudo hole on the right eye.
On October 26, 2018 a nurse practitioner advised that appellant was unable to undergo the
prescribed MRI scan due to her “current health conditions.”
By decision dated December 20, 2018, OWCP’s hearing representative affirmed the
June 6, 2018 suspension decision. She found that appellant had not offered good cause for her
failure to attend the May 14, 2018 MRI scan as ordered by OWCP.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.9 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.10
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.11
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
8

At the hearing, appellant specified that her name had changed to B.C. from B.P.

9

5 U.S.C. § 8123.

10

L.B., Docket No. 17-1891 (issued December 11, 2018); J.T., 59 ECAB 293 (2008).

11

20 C.F.R. § 10.320.

4

to or obstructs a directed medical examination, his or her right to compensation is suspended until
the refusal or obstruction ceases.12 OWCP’s procedures provide that, before OWCP may invoke
these provisions, the employee is to be provided a period of 14 days within which to present in
writing his or her reasons for the refusal or obstruction.13 If good cause for the refusal or
obstruction is not established, entitlement to compensation is suspended in accordance with section
8123(d) of FECA.14
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective June 6, 2018, due to her failure to attend a scheduled
medical appointment.
On October 12, 2017 Dr. Silver, an OWCP referral physician, opined that right shoulder
and cervical spine MRI scans were “medically necessary and warranted” to determine the etiology
of appellant’s pain.
In a letter dated February 28, 2018, OWCP referred appellant for the prescribed MRI scan
scheduled for March 14, 2018. On March 9, 2018 it informed counsel that it had scheduled the
MRI scan at the facility closest to her residence with standing MRI scan equipment.
Appellant failed to attend the March 14, 2018 MRI scan, citing inclement weather. OWCP
subsequently referred her, by letter dated April 24, 2018, for a May 14, 2018 MRI scan. It
informed her of the time and place of the diagnostic testing and that it would suspend her
compensation pursuant to 5 U.S.C. § 8123(d) if she refused to submit to or obstructed testing.
Appellant, however, failed to appear for the May 14, 2018 MRI scan.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo
a medical examination, is that of reasonableness.15 The Board has interpreted the plain meaning
of section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues unless appellant can establish good cause for failing to report at the
scheduled time.16
Appellant’s refusal to submit to the medical testing warrants suspension of her entitlement
to compensation unless she can establish good cause for her failure to report at the scheduled time.
The Board finds that she has not established good cause for her failure to report at the scheduled
12

Id. at § 10.323; L.B., supra note 10.

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
14

Id.

15

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

16

See A.E., Docket No. 18-1155 (issued February 21, 2019).

5

MRI scan. OWCP allowed appellant 14 days to provide reasons for failing to appear.17 Appellant
asserted that she was unable to undergo the scheduled MRI scan due to her medical conditions of
a fractured spine, torn meniscus, and hole in her right retina.
Appellant submitted a report from an optometrist diagnosing a macular cyst or hole in her
right eye. The optometrist, however, failed to address whether this particular condition would
preclude her attendance at the scheduled MRI scan. An opinion which does not address the
relevant issue is of no probative value.18
Appellant further submitted progress reports from 2017 describing her treatment for
various conditions, including her left knee, right elbow, and back. Again, these reports contain no
opinion regarding the pertinent issue of whether she was able to undergo a standing MRI scan and
thus these reports are of no probative value.19
On October 26, 2018 a nurse practitioner opined that appellant could not undergo the
prescribed MRI scan due to her health. Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as
defined under FECA.20 Thus, the report from the nurse practitioner is insufficient to support
appellant’s claim that she was unable to attend the MRI scan.21
As appellant did not attend the May 14, 2018 MRI scan and failed to provide good cause
for failing to appear within 14 days of OWCP’s May 21, 2018 notice of proposed suspension, the
Board finds that OWCP properly suspended entitlement to future compensation in accordance with
5 U.S.C. § 8123(d) until the date on which she agrees to attend the examination. If appellant
actually attends the prescribed MRI scan, payment retroactive to the date on which she agreed to
attend the examination may be made.22
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective June 6, 2018, due to her failure to attend a scheduled
medical appointment.

17

5 U.S.C. § 8123; supra note 15.

18

See L.G., Docket No. 18-0140 (issued August 6, 2019).

19

Id.

20

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

21

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Supra note 13 at Chapter 2.805.3a(1) (January 2013).
22

Supra note 16.

6

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, TONGASS NATIONAL FOREST,
Ketchikan, AK, Employer
__________________________________________

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

Docket No. 20-1622
Issued: June 30, 2021

Case Submitted on the Record

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

JURISDICTION
On September 10, 2020 appellant filed a timely appeal from an August 5, 2020 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $8,150.72 for which he was without fault, because
he concurrently received FECA wage-loss compensation and Social Security Administration
(SSA) age-related retirement benefits for the period March 1, 2016 through March 28, 2020,
without an appropriate offset; (2) whether it properly denied waiver of recovery of the

1

5 U.S.C. § 8101 et seq.

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$51.25 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On September 18, 2003 appellant then a 53-year-old firefighter, filed a traumatic injury
claim (Form CA-1) alleging that on August 26, 2003 while he was walking down a steep grade he
injured his left knee while in the performance of duty. OWCP accepted his claim for sprain/strain
medial collateral ligament of the left knee. It paid appellant wage-loss compensation on the
supplemental rolls from April 1 through August 27, 2011, and on the periodic rolls effective
August 28, 2011. As of June 2, 2013 OWCP paid appellant wage-loss compensation pursuant to
a loss of wage-earning capacity determination dated May 7, 2013, based on the constructed
position of a bus driver.
On March 12, 2012 OWCP informed appellant that section 8116(d)(2) of FECA (5 U.S.C.
§ 8116(d)(2)) requires that a claimant’s continuing compensation benefits be reduced if he begins
receiving SSA retirement benefits based on his age and federal service. It advised that because he
was approaching his 62nd birthday they were notifying him of this requirement. OWCP further
advised that failure to report receipt of retirement benefits to OWCP could result in an
overpayment of compensation, which could be subject to recovery.
On November 25, 2012 appellant elected to receive FECA benefits effective
November 17, 2012.
On August 20, 2014 OWCP sent a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to SSA.
In a letter dated March 2, 2015, appellant informed OWCP that he was presently receiving
regular SSA age-related retirement benefits in addition to his FECA wage-loss compensation
benefits. He asserted that there was no place to report this information on the CA-1032 forms.
From 2013 through 2014 appellant received regular retirement social security income of $591.00
a month and on January 1, 2015, it increased to $603.00 a month. SSA informed him that because
he was turning 65 years of age this month he was eligible to collect Social Security Disability
Income of $833.00 a month without it being affected by his OWCP income. Appellant reported
that there would be no more “offset.”
On February 24, 2020 OWCP sent a FERS/SSA dual benefits calculation form to SSA for
its completion.
OWCP received a completed FERS/SSA dual benefits calculation form from SSA dated
March 9, 2020 on which SSA advised that, effective March 2016, appellant reached normal
retirement age and became eligible for SSA age-related retirement benefits. It noted that, since
his retirement coverage was under FERS, his compensation benefits must be offset by any part of
his SSA benefit that was calculated by using his federal employment earnings. SSA calculated
appellant’s SSA age-related retirement benefit rates with a FERS offset and without a FERS offset
from March 2016 through December 2019. Beginning March 2016, the SSA rate with FERS was
$961.80 and without FERS was $799.70. Beginning December 2016, the SSA rate with FERS

2

was $964.60 and without FERS was $802.00. Beginning December 2017, the SSA rate with FERS
was $983.80 and without FERS was $818.00. Beginning December 2018, the SSA rate with FERS
was $1,011.30 and without FERS was $840.90. Beginning December 2019, the SSA rate with
FERS was $1,027.40 and without FERS was $854.30.
On April 13, 2020 OWCP prepared a fiscal pay rate memorandum wherein it noted the
calculation of appellant’s SSA offset overpayment from March 1, 2016 through March 28, 2020
and computed a total overpayment amount of $8,150.72. This form indicated: from March 1
through November 30, 2016 appellant received an overpayment in the amount of $1,469.59; from
December 1, 2016 through November 30, 2017 appellant received an overpayment in the amount
of $1,956.56; from December 1, 2017 through November 30, 2018 appellant received an
overpayment in the amount of $1,995.07; from December 1, 2018 through November 30, 2019
appellant received an overpayment in the amount of $2,050.42; and December 1, 2019 through
March 28, 2020 appellant received an overpayment in the amount of $679.08.
On April 13, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $8,150.72 had been created because appellant
received SSA age-related retirement benefits from March 1, 2016 through March 28, 2020 that
were partially based on credits earned while working in the Federal Government, which constituted
a prohibited dual benefit. It determined that he was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised him that
he could request waiver of recovery of the overpayment. It further requested that he provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records which support income and
expenses. Additionally, OWCP further provided an overpayment action request form and notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On June 7, 2020 appellant completed an overpayment action request form and requested
that OWCP make a decision based on the written evidence. He explained that he cooperated with
the employing establishment, OWCP, and SSA and was honest and forthright in providing
information from the date of injury to the present time. Appellant indicated that OWCP and SSA
“messed” this up and he was claiming financial hardship as he was 70 years old and had high blood
pressure and was prediabetic.
On a Form OWCP-20 completed on June 7, 2020, appellant reported that his total monthly
income included $882.00 from SSA, FECA benefits of $884.22, and mineral royalties of $38.94,
resulting in total monthly income of $1,805.16. He reported expenses totaling $1,638.50.
Appellant indicated monthly expenses of $553.51 for rent/mortgage, $200.00 for food, $25.00 for
clothing, $270.59 for utilities, and $300.00 for other expenses. Appellant also noted other debts
paid by monthly installments including various credit card payments totaling $180.00 and, a roof
mortgage of $57.44, auto insurance of $20.16, insulation financing of $31.80 for total monthly
installment expense of $289.40. Appellant further noted cash on hand of $17.00, a checking

3

account balance of $92.29, and savings account balance of $1,707.36. He attached financial
information including a 2019 federal tax return, bank statements, utility bills, and credit card bills.2
By decision dated August 5, 2020, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $8,150.72 for the period March 1, 2016 through March 28, 2020, because it failed to offset his
compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. It further found that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
failed to establish that recovery of an overpayment would defeat the purpose of FECA or be against
equity and good conscience. OWCP required recovery of the overpayment by deducting $51.25
from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA 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 or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
age-related retirement benefits earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $8,150.72 for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period March 1, 2016 through March 28, 2020, without an appropriate offset.
The record supports that appellant received FECA wage-loss compensation for total
disability on the supplemental rolls beginning April 1 through August 27, 2011, the periodic rolls
2

On September 16, 2020 OWCP expanded the acceptance of appellant’s claim to include permanent aggravation
of left knee osteoarthritis.
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

effective August 28, 2011, and effective June 2, 2013 pursuant to a loss of wage-earning capacity
determination dated May 7, 2013, and that he received SSA age-related retirement benefits
beginning March 1, 2016. The information provided by SSA established that appellant had
received SSA age-related retirement benefits that were attributable to his federal service
commencing March 1, 2016. Thus, the record establishes that he received an overpayment of
FECA wage-loss compensation.7
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s specific SSA age-related retirement benefits
that were attributable to federal service. SSA provided its rate with FERS and without FERS for
specific periods March 1, 2016 through March 28, 2020. OWCP provided its calculations for each
relevant period based on SSA’s worksheet and determined that he received an overpayment in the
amount of $8,150.72. The Board, thus, finds that appellant received prohibited dual benefits for
the period March 1, 2016 through March 28, 2020 totaling $8,150.72.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.9 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.10 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.11 An individual’s liquid assets

7

Id.

8

5 U.S.C. § 8129(b).

9
20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
10

Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).
11

Id. at Chapter 6.400.4(a)(2) (September 2020).

5

include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.13
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.15
Evidence in the case record shows that appellant has income totaling $1,805.16. Form
OWCP-20 listed expenses of $553.51 for rent/mortgage, $200.00 for food, $25.00 for clothing,
$270.59 for utilities, and $300.00 for other expenses. Appellant also noted other debts paid by
monthly installments including $180.00 in various credit card payments, roof mortgage of $57.44,
auto insurance of $20.16, insulation financing of $31.80 for total monthly installment expense of
$289.40 and total expenses of $1,638.50.
Based upon the information provided on the Form OWCP-20, and evidence received,
appellant’s household income totaled $1,805.16 while his expenses totaled $1,638.50. As his
monthly income exceeds his monthly expenses by $166.66, appellant does not need substantially
all of his monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that he would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance

12

Id. at Chapter 6.400.4(b)(3).

13

20 C.F.R. § 10.437(a)(b).

14

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

15

5 U.S.C. § 8129.

6

on the payment, which created the overpayment.16 Therefore, OWCP properly denied waiver of
recovery of the overpayment.
Because it has not been established that, recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly required recovery of the overpayment by deducting
$51.25 every 28 days from appellant’s continuing compensation payments.
In determining whether appellant could repay the overpayment through $51.25 deductions
from continuing compensation payments, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method of recovery would
minimize any resulting hardship, not necessarily eliminate it, while at the same time liquidating
the debt in a reasonably prompt fashion.18 The Board finds that OWCP gave due regard to the
financial information provided and found that his monthly income exceeded monthly expenses by
$166.66. The Board, therefore, finds that OWCP properly required recovery of the overpayment
by deducting $51.25 every 28 days from appellant’s compensation payments.
On appeal appellant asserts that he needs substantially all of his monthly income to meet
ordinary and necessary living expenses. As explained, however, OWCP took into account his
financial information as well as factors set forth in 20 C.F.R. § 10.441 and found that this method
of recovery would minimize any resulting hardship, not necessarily eliminate it, while at the same
time liquidating the debt in a reasonably prompt fashion.

16

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

17
20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056,
1062 (1988).
18

See L.F., Docket No. 15-0489 (issued May 11, 2015) (the Board affirmed an OWCP hearing representative’s
denial of waiver of recovery of an overpayment because appellant and his spouse had over $17,000.00 in their savings
account, and as such his assets exceeded the specified resource base).

7

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $8,150.72 for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period March 1, 2016 through March 28, 2020, without an appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $51.25 every 28 days from his
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 30, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Spokane, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1190
Issued: September 12, 2012

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 April 19, 2011 appellant filed a timely appeal of a March 28, 2011 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying modification of his loss of wageearning capacity determination. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
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 appellant has met his burden of proof to modify the April 7, 2009
loss of wage-earning capacity determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 22, 2005 appellant then a 53-year-old clerk, filed an occupational disease
claim alleging that he developed tendinitis of the left thumb due to factors of his federal
employment. OWCP accepted his claim for left thumb tendinitis on February 24, 2006 and later
accepted left thumb trigger finger. Appellant underwent left thumb surgery on April 21, 2006.
He returned to full duty on July 6, 2006. Appellant stopped work on August 7, 2006 and filed a
claim for recurrence of disability which OWCP accepted. He returned to full-time light-duty
work on October 4, 2006. Appellant underwent a functional capacity evaluation on August 2,
2007 which found that he could perform medium work eight hours a day. He was directed to
avoid repetitive grasping and fingering and to use his left hand on an occasional basis.
Appellant’s lifting restriction was 35 pounds, occasionally.
On December 30, 2008 appellant accepted a light-duty position as a distribution clerk at
the employing establishment working eight hours a day lifting with his left hand 2 to 5 pounds a
day for two hours and lifting up to 20 pounds with both hands not involving his left thumb. He
was to perform repetitive movements of the left hand for one hour and no gripping or grasping
with the left hand. Appellant’s duties entailed casing manual flats, casing manual letters and
working and monitoring the computer at the no read tower. The position description stated, “All
assigned duties will be in strict compliance with the medical limitations placed upon you by your
treating physician. It will be your responsibility to work in a safe manner at all times and within
those restrictions.”
By decision dated April 7, 2009, OWCP found that appellant was employed as a
distribution clerk effective December 30, 2008 and that this position fairly and reasonably
represented his loss of wage-earning capacity. It reduced his compensation benefits to zero.
Appellant filed a claim for compensation requesting wage-loss compensation beginning
February 3, 2011 due to the National Reassessment Process (NRP). In a letter dated
February 15, 2011, OWCP informed him that as a formal loss of wage-earning capacity decision
had been issued, he must meet the criteria to modify the loss of wage-earning capacity
determination to receive compensation benefits.
In a letter dated February 22, 2011, the employing establishment stated that it was unable
to provide sufficient work within appellant’s restrictions to allow him to work eight hours a day.
Appellant telephoned OWCP on February 24, 2011 and stated that he had been working in the
modified position for five years and that his medical condition had not changed. He stated that
the employing establishment was cutting his hours even though there was work available.
Appellant submitted a letter and alleged that his loss of wage-earning capacity position
was an odd-lot job designed for his needs and was not a regular position.
By decision dated March 28, 2011, OWCP denied modification of the April 7, 2009 loss
of wage-earning capacity determination.

2

LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.5 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.6
FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning capacity decision
has been issued, OWCP must develop the evidence to determine whether a modification of that
decision is appropriate.7
ANALYSIS
OWCP accepted that appellant sustained employment-related left thumb tendinitis and
left thumb trigger finger. Following surgery, appellant returned to work as a modified
distribution clerk with the employing establishment. By decision dated April 7, 2009, OWCP
found that he was employed as a distribution clerk effective December 30, 2008 and that this
position fairly and reasonably represented appellant’s wage-earning capacity.
On February 3, 2011 the employing establishment reduced appellant’s work hours as part
of NRP after determining that it did not have work available for his position. Appellant filed
claims requesting compensation for wage loss beginning February 3, 2011. He further requested
modification of the April 7, 2009 loss of wage-earning capacity decision. OWCP analyzed this
case under the customary criteria for modifying a loss of wage-earning capacity determination,

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., supra note 2; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

6

Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined
therein for claims, such as this, in which limited-duty positions are withdrawn pursuant to NRP.8
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.9 To this end, the Bulletin asks OWCP to confirm that the file contains
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.10
Further the Bulletin states that OWCP, in an effort to proactively manage these types of
cases, may undertake further nonmedical development, such as requiring that the employing
establishment address in writing whether the position on which the wage-earning capacity
determination was based was a bona fide position at the time of the rating and to direct the
employing establishment to review its files for contemporaneous evidence concerning the
position.11
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside OWCP’s March 28, 2011 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning
February 3, 2011.12
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s April 7, 2009 loss of wage-earning capacity determination is appropriate. Further
action by OWCP is warranted.

8

See M.A., Docket No. 12-316 (issued July 24, 2012).

9

Supra note 7.

10

Id. at §§ I.A.1-2.

11

Id. at § I.A.3.

12

See supra note 8; M.E., Docket No. 11-1416 (issued May 17, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: September 12, 2012
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
__________________________________________
)
T.C., Appellant
)
)
and
)
)
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF INVESTIGATION, Richmond, VA, )
Employer
)
__________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-0618
Issued: September 28, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On January 28, 2020 appellant filed a timely appeal from a September 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0618.
On November 16, 2015 appellant, then a 32-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that on November 13, 2015 he injured his right ankle while in the
performance of duty. He explained that he was running a trail on a Marine Corp base when he
rolled his right ankle resulting in a popping sensation, pain, swelling, and bruising. Appellant did
not stop work. On March 25, 2016 OWCP accepted his claim for a sprain of the right ankle.
In a March 16, 2016 medical report, Dr. Seth Cheatham, a Board-certified orthopedic
surgeon, evaluated appellant for right ankle pain. He noted appellant’s November 13, 2015 right
ankle sprain and that he was still experiencing intermittent pain. On evaluation Dr. Cheatham
discussed a small effusion and opined that appellant may have some type of cartilage injury
On January 17, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a letter dated January 18, 2019, OWCP requested that appellant submit an impairment
evaluation from his attending physician in accordance with the sixth edition of the American

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1 It
afforded him 30 days to submit additional evidence.
In a February 27, 2019 functional capacity evaluation Elliott Skorupa, a physical therapist,
evaluated the residual functional capacity of appellant’s right ankle in relation to his November 13,
2015 right ankle sprain. He referenced Table 16-22 (Ankle Motion Impairments) at page 549 of
the A.M.A., Guides to find seven percent impairment for maximum dorsiflexion measured at 10
degrees and zero percent impairment for maximum plantar flexion measured at 24 degrees, which
combined to seven percent impairment of the right lower extremity. In a March 11, 2019 medical
report, Dr. Cheatham reviewed Mr. Skorupa’s right ankle functional capacity evaluation and
countersigned the results, opining that his findings were valid.
On May 22, 2019 OWCP referred the medical record and statement of accepted facts
(SOAF) to Dr. Norman Marcus, a Board-certified orthopedic surgeon, for a second opinion
examination and an opinion on permanent impairment in accordance with the A.M.A., Guides.
In his June 14, 2019 medical report, Dr. Marcus noted his review of the medical evidence
of record and the SOAF, and his own examination findings. Dr. Marcus reasoned that the right
ankle injury had not reached maximum medical improvement (MMI) and was therefore not
suitable for an impairment rating.
In an August 14, 2019 addendum, Dr. Marcus noted his review of imaging scans. He
provided an impairment rating of zero percent as status post ankle sprain.
By decision dated September 18, 2019, OWCP denied appellant’s request for a schedule
award.
Having reviewed the case record submitted by OWCP, the Board finds that this case is not
in posture for decision.2
In the case of William A. Couch,3 the Board held that when adjudicating a claim, OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued.
In its September 18, 2019 decision, OWCP denied appellant’s request for a schedule
award. While the September 18, 2019 decision discussed Dr. Marcus’ opinion of zero percent
permanent impairment, it failed to acknowledge Mr. Skorupa’s4 medical examination findings and
Dr. Cheatham’s February 27, 2019 medical report which found seven percent impairment of the

1

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

2

See K.F., Docket No. 19-0888 (issued January 2, 2020); J.J., Docket No. 13-1666 (issued August 18, 2014).

3

41 ECAB 548, 553 (1990).

4

A report from a physician assistant, physical therapist or certified nurse practitioner will be considered medical
evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013).

2

right lower extremity. As OWCP did not note receipt or consideration of this medical report, it
failed to follow its own procedures to properly discuss the relevant medical reports of record.5
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior
to the time of issuance of its final decision be reviewed and addressed by OWCP.6 Because OWCP
failed to consider Dr. Cheatham’s February 27 2019 medical report, the Board cannot review such
evidence for the first time on appeal.7
For this reason, the case will be remanded to OWCP to properly consider8 all of the
evidence of record.9 Following this and other such further development as deemed necessary,
OWCP shall issue a decision de novo.10 Accordingly,

5

All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
6

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also Linda
Johnson, 45 ECAB 439 (1994).
7

20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

8
On remand OWCP should request that Dr. Marcus clarify and elaborate on his August 14, 2019 addendum in
accordance with the sixth edition of the A.M.A., Guides.
9

M.J., Docket No. 18-0605 (issued April 12, 2019).

10

B.N., Docket No. 17-0787 (issued July 6, 2018).

3

IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings consistent
with this order of the Board.
Issued: September 28, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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