United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, ROANOKE CARRIER
ANNEX, Roanoke, VA, Employer
__________________________________________

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

Docket No. 10-942
Issued: November 24, 2010

Case Submitted on the Record

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

JURISDICTION
On February 24, 2010 appellant, through counsel, filed a timely appeal of the February 1,
2010 merit decision of the Office of Workers’ Compensation Programs denying his recurrence of
disability claim. Pursuant to 5 U.S.C. § 8149 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 sustained a recurrence of total disability commencing
June 24, 2009 causally related to his September 11, 2007 employment injury.
On appeal, appellant’s attorney asserts that the Office’s February 1, 2010 decision was
contrary to fact and law.
FACTUAL HISTORY
On October 19, 2007 appellant, then a 51-year-old city letter carrier, filed a traumatic
injury claim alleging that on September 11, 2007 he sustained lower back strain as a result of
loading bags at work. The Office accepted his claim for back sprain. Appellant returned to work

as a modified city carrier and received compensation for total disability when work within his
physical restrictions was not available at the employing establishment.1
In a prescription note dated June 24, 2009, Dr. Cyrus E. Bakhit, an attending internist and
Board-certified anesthesiologist, advised that appellant was totally disabled for work through
July 21, 2009. In a June 24, 2009 medical report, he stated that appellant’s pain was refractory to
treatment and exacerbated by bending and prolonged standing and sitting. Dr. Bakhit reiterated
his opinion that appellant was totally disabled through July 21, 2009.
By letter dated June 30, 2009, the Office advised appellant that it had received
notification from Dr. Bakhit regarding his total disability for work. It requested that he complete
an accompanying recurrence of disability claim (Form CA-2a) and submit additional factual and
medical evidence.
On July 3, 2009 appellant filed a Form CA-2a alleging that he sustained a recurrence of
disability commencing June 24, 2009 due to his September 11, 2007 employment injury. He
noted that he had not been released to return to full-duty work. In another report dated June 24,
2009, Dr. Bakhit listed his findings on physical examination and diagnosed lumbar degenerative
disc disease and lumbar facet joint arthropathy. He reiterated his opinion that appellant was
totally disabled for work through July 21, 2009. In a July 21, 2009 report, Dr. Bakhit listed his
findings on physical examination and indicated that appellant underwent a provocation lumbar
discography at L1-2, L2-3, L3-4 and L4-S1. He diagnosed lumbar spondylosis. Dr. Bakhit
stated that appellant would continue to be off work. In a July 29, 2009 prescription note and
report, he advised that appellant may be able to return to work after undergoing a functional
capacity evaluation (FCE). In the July 29, 2009 report, Dr. Bakhit reiterated his diagnoses of
lumbar degenerative disc disease and lumbar facet joint arthropathy.
On July 29, 2009 the employing establishment advised the Office that it accommodated
appellant’s work restrictions. He was allowed to take as many breaks as necessary. There had
been no change in appellant’s work schedule or job requirements.
By decision dated August 13, 2009, the Office denied appellant’s recurrence of disability
claim. The medical evidence of record was found insufficient to establish that his total disability
commencing June 24, 2009 was due to his accepted September 11, 2007 employment injury.
On August 21, 2009 appellant, through counsel, requested an oral hearing before an
Office hearing representative. In a July 29, 2009 prescription note, Dr. Bakhit ordered an FCE.
In an October 1, 2009 prescription note, Dr. Bakhit ordered equipment to provide appellant with
protection from L5 to T9 as he was status post a lumbar procedure. In reports dated
September 25 and November 20, 2009 and January 6, 2010, Dr. Bakhit listed his findings on
physical examination and reiterated his diagnoses of lumbar degenerative disc disease and
lumbar facet joint arthropathy. He also diagnosed lumbar disc displacement. In another
November 20, 2009 report, Dr. Bakhit opined that appellant’s current low back pain was causally
related to his September 11, 2007 employment injury.
1

The record reveals that commencing September 11, 2007, the date of injury, the employing establishment did
not release appellant to full duty.

2

A September 16, 2009 FCE report found that appellant may be capable of performing
light work on a limited basis. His inactive lifestyle and reported low positional tolerances of 10
to 15 minutes in any one position would have a negative effect on any potential placement. It
was questionable as to whether appellant could be competitively employed.
A July 21, 2009 computerized tomography scan report of appellant’s lumbar spine from
Dr. Clifford A. Nottingham, III, a Board-certified family practitioner, revealed findings
consistent with spondylosis and Grade 4 posterior annular tears at L1-2, L2-3, L3-4, L4-5 and
L5-S1.
By decision dated February 1, 2010, an Office hearing representative affirmed the
August 13, 2009 decision, finding that appellant failed to establish that he sustained a recurrence
of total disability commencing June 24, 2009 causally related to his September 11, 2007
employment injury.
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or 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 his or her established
physical limitations.3
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.4
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.5

2

20 C.F.R. § 10.5(x).

3

Id.

4

Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

James H. Botts, 50 ECAB 265 (1999).

3

ANALYSIS
The Office accepted that appellant sustained a lumbar sprain on September 11, 2007.
Following this injury, appellant returned to limited light-duty work. He claimed a recurrence of
total disability commencing June 24, 2009 causally related to his accepted employment injury.
Appellant must demonstrate either that his condition has changed such that he could not perform
the activities required by his modified job or that the requirements of the limited light-duty jobs
changed. The Board finds that the record contains no evidence that the limited light-duty job
requirements were changed or withdrawn or that appellant’s employment-related condition has
changed such that it precluded him from performing limited light-duty work.
Dr. Bakhit’s November 20, 2009 report found that appellant’s current low back pain was
causally related to his September 11, 2007 employment injury. As noted, a recurrence of
disability is defined as a spontaneous change in the accepted medical condition. Dr. Bakhit,
however, did not address the issue of how the accepted employment injury spontaneously caused
or aggravated the diagnosed condition as of June 24, 2009.6 Further, the Board notes that a
diagnosis of pain, without more in the way of medical rationale, does not constitute the basis for
the payment of compensation.7 The Board finds that Dr. Bakhit’s report is insufficient to
establish appellant’s claim.
Dr. Bakhit’s June 24 and July 29, 2009 prescription note and reports revealed that
appellant had lumbar degenerative disc disease, lumbar facet joint arthropathy and lumbar
spondylosis. He opined that appellant was totally disabled for work. Dr. Bakhit did not address
whether appellant’s disability was causally related to the September 11, 2007 employment
injury. The Board finds that his reports are insufficient to establish that appellant’s disability for
work commencing June 24, 2009 was causally related to the accepted employment injury.
The remainder of the medical evidence, including Dr. Bakhit’s July 29 and October 1,
2009 prescriptions and reports dated September 25, 2009 to January 6, 2010, Dr. Nottingham’s
July 21, 2009 diagnostic test results and the September 16, 2009 FCE report failed to provide an
opinion on causal relationship between the claimed period of disability and the September 11,
2007 employment injury. The Board finds, therefore, that this evidence does not establish that
the claimed period of disability was causally related to appellant’s accepted employment injury.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements which would prohibit him from performing the limited light-duty
positions he assumed after he returned to work.

6

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant).
7

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008) (pain is a symptom, not a compensable
medical diagnosis); Robert Broome, 55 ECAB 339, 342 (2004).

4

CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
total disability commencing June 24, 2009 causally related to his September 11, 2007
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2010
Washington, DC

Alec J. Koromilas, 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
__________________________________________
E.L., Appellant
and
DEPARTMENT OF TRANSPORTATION,
TRANSPORTATION SECURITY
ADMINISTRATION, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 12-791
Issued: August 29, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 27, 2012 appellant filed a timely appeal from an October 11, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant an allowance for services of an
attendant pursuant to 5 U.S.C. § 8111 and 5 U.S.C. § 8103.
FACTUAL HISTORY
This case was before the Board on a prior appeal. On August 13, 2008 OWCP accepted
that appellant sustained a lumbar sprain, aggravation of lumbar spondylosis and aggravation of
1

5 U.S.C. § 8101 et seq.

lumbar spinal stenosis in the performance of duty on July 12, 2003.2 Appellant’s compensation
was suspended on October 2, 2005 for failure to attend a scheduled examination. On August 13,
2008 the Board affirmed the suspension. The history of the case provided in the Board’s prior
decision is incorporated herein by reference.
The record indicates that, following the suspension of compensation, appellant began
receiving compensation for wage loss as of December 18, 2006. On April 27, 2009 OWCP
accepted neck sprain and aggravation of displaced cervical disc.
In a report dated January 5, 2011, Dr. Andrew Paterson, an attending orthopedic surgeon,
stated that appellant was scheduled for cervical surgery on January 11, 2011. He stated that,
following the surgery, appellant would need “some degree of supervised care to help ensure a
safe, progressive recovery.” Dr. Paterson noted that appellant wanted his wife to provide
attendant’s services. Appellant underwent cervical discectomy surgery on January 11, 2011.
By letter dated February 18, 2011, OWCP advised appellant that he must submit
additional evidence to be entitled to an allowance for attendant’s services. Appellant submitted a
May 21, 2009 certificate of graduation stating that his wife had completed a caregiver training
course.
In a report dated February 21, 2011, Dr. Paterson provided results on examination and
stated that appellant was doing fairly well. He recommended continuing with activity
restrictions and no excessive bending of his head or neck, no lifting and no high-risk activities
for a total of at least 12 weeks from surgery.
Dr. Paterson completed a form report dated April 7, 2011 which noted that appellant was
examined on April 4, 2011. He stated that appellant would require attendant’s services two to
four weeks after surgery, but attendant’s services were no longer needed. Dr. Paterson checked
boxes that appellant could bath, dress and walk unassisted.
By decision dated October 11, 2011, OWCP denied appellant’s request for an attendant’s
allowance. It found the medical evidence did not establish that attendant’s services were
required.
LEGAL PRECEDENT
FECA provides for an attendant’s allowance under section 8111(a), which provides that
OWCP may pay an employee who has been awarded compensation an additional sum of not
more than $1,500.00 a month when OWCP finds “that the service of an attendant is necessary
constantly because the employee is totally blind, or has lost the use of both hands or both feet, or
is paralyzed and unable to walk, or because of other disability resulting from injury making him
so helpless as to require constant attendance.”3
According to 20 C.F.R. § 10.314, in the exercise of discretion afforded by 5 U.S.C.
§ 8111, the cost of providing attendant’s services will be paid by OWCP under 5 U.S.C. § 8103,
2

Docket No. 08-459 (issued August 13, 2008).

3

5 U.S.C. § 8111(a).

2

for personal care services that have been determined to be medically necessary and are provided
by a home health aide, licensed practical nurse or similarly trained individual. 5 U.S.C.
§ 8103(a) provides for the furnishing of services, appliances and supplies prescribed or
recommended by a qualified physician which OWCP, under authority delegated by the
Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or aid
in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time.5 OWCP has administrative discretion in choosing the means to achieve
this goal and the only limitation on its authority is that of reasonableness.6
The Board has held that OWCP may pay an attendant’s allowance upon a finding that a
claimant is so helpless that he is in need of constant care. The claimant is not required to need
around-the-clock care. He has only to have a continually recurring need for assistance in
personal matters. The attendant’s allowance, however, is not intended to pay an attendant for
performance of domestic and housekeeping chores such as cooking, cleaning, doing the laundry
or providing transportation services. It is intended to pay an attendant for assisting a claimant in
his personal needs such as dressing, bathing or using the toilet.7
Additionally, a claimant bears the burden of proof to establish by competent medical
evidence that he requires attendant care within the meaning of FECA.8 An attendant’s allowance
is not granted simply upon the request of a disabled employee or upon request of his physicians.
The need for attendant care must be established by rationalized medical opinion evidence.9
ANALYSIS
Appellant has the burden to submit medical evidence to establish that he requires
attendant care under FECA. The attendant care must be necessary for personal needs such as
dressing or bathing and must be established by probative medical evidence.
Before the January 11, 2011 cervical surgery, Dr. Paterson stated that appellant would
need some degree of supervised care following the surgery. He did not provide any additional
explanation or detail. In a February 21, 2011 report, Dr. Paterson noted that appellant was doing
fairly well postsurgery, without discussing his need for attendant’s services following the
surgery. In the April 7, 2011 form report, he stated that appellant did not need attendant’s
services. Dr. Paterson briefly stated that appellant would have need of attendant’s services two
to four weeks after the surgery, but again he did not provide any additional explanation. He did
4

Id. at § 8103(a).

5

Dale E. Jones, 48 ECAB 648, 649 (1997).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
7

Nowling D. Ward, 50 ECAB 496 (1999).

8

Bonnie M. Schreiber, 46 ECAB 989 (1995).

9

Id.

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not discuss appellant’s condition in the two to four weeks following surgery, or explain whether
appellant needed recurring help in personal needs such as dressing or bathing.
The Board finds that the medical evidence is not sufficient to establish that attendant’s
services were medically necessary in this case. Based on the probative medical evidence of
record, it was reasonable for OWCP to deny authorization of attendant’s allowance.
On appeal, appellant has submitted letters, forms and memoranda regarding his claim.
He contends that OWCP claims examiners failed to acknowledge his spouse’s caregiver
certificate. OWCP’s decision was based on the medical evidence of record. The Board has
reviewed the evidence of record and finds, for the reasons stated, that OWCP properly
determined that appellant was not entitled to an attendant’s allowance.
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 OWCP properly found that appellant was not entitled to an
attendant’s allowance under FECA.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 11, 2011 is affirmed.
Issued: August 29, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
COMMUNICATION STATION,
Apple Valley, CA, Employer
__________________________________________

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

Docket No. 07-1409
Issued: October 11, 2007

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 20, 2007 merit decision concerning a schedule award for
hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a six percent monaural hearing loss in his left ear.
FACTUAL HISTORY
On December 20, 2005 appellant, then 56-year-old lead firefighter, filed an occupational
disease claim alleging that he sustained a hearing loss due to exposure to hazardous noise at
work. He indicated that since 1974 he had been exposed to noise from fire engines, alarms,

pumps, boats and chain saws. The record contains numerous audiograms detailing the results of
testing obtained between 1997 and 2005.
The Office referred appellant to Dr. Montra Kanok, a Board-certified otolaryngologist,
for otologic and audiologic testing. On May 13, 2006 she determined that appellant had a
sensorineural high-frequency hearing loss in both ears which was most likely aggravated by
prolonged exposure to noise during his work for the employing establishment. Dr. Kanok stated
that appellant noticed high-pitched tinnitus in both ears but reported that he has been getting used
to it and it no longer bothered him. May 11, 2006 audiometric testing for the left ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 15,
10, 15 and 75 respectively. Testing for the right ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cycles per second revealed decibel losses of 10, 15, 5 and 65 respectively. Dr. Kanok
stated that appellant had 100 percent discrimination in both ears with the sound level of 40
decibels for both regular and high-frequency words.
On June 26, 2006 the Office accepted that appellant sustained employment-related
bilateral hearing loss.
On September 8, 2006 Dr. Brian Schindler, a Board-certified
otolaryngologist serving as an Office medical director, calculated that appellant sustained a 5.6
percent monaural hearing loss in his left ear and rounded the figure up to 6 percent. He indicated
that appellant reached maximum medical improvement on May 11, 2006 and stated that he
agreed that appellant’s hearing loss was employment related.
By decision dated February 20, 2007, the Office granted appellant a schedule award for a
six percent monaural hearing loss in his left ear. The award ran for 3.12 weeks from May 11 to
June 1, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second,
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

A.M.A., Guides 224-25 (4th ed. 1993); A.M.A., Guides at 226-51 (5th ed. 2001).

2

the losses at each frequency are added up and averaged.5 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.6 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9
ANALYSIS
On September 8, 2006 Dr. Schindler, a Board-certified otolaryngologist serving as the
Office medical adviser, reviewed the otologic and audiologic testing performed on appellant for
Dr. Kanok, a Board-certified otolaryngologist serving as an Office referral physician. He applied
the Office’s standardized procedures to this evaluation. Testing for the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 15, 10, 15 and
75 respectively. These decibel losses were totaled at 115 decibels and were divided by 4 to
obtain the average hearing loss of 28.75 decibels. This average loss was reduced by 25 decibels
(25 decibels being discounted as discussed above) to equal 3.75 which was multiplied by the
established factor of 1.5 to compute a 5.6 percent hearing loss in the left ear. The 5.6 figure was
properly rounded up to six percent.10 Testing for the right ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 10, 15, 5 and 65
respectively. These decibel losses were totaled at 95 decibels and were divided by 4 to obtain
the average hearing loss of 23.75 decibels. This average loss was reduced by 25 decibels (25
decibels being discounted as discussed above) to equal a figure less than 0 which constituted a 0

5

Id.

6

Id.

7

Id.

8

Id.

9

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b, 4b(2)
(October 1990).

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percent hearing loss in the right ear. The Board finds that Dr. Schindler properly applied the
appropriate standards to determine that appellant has a six percent monaural hearing loss in his
left ear.11
On appeal, appellant contends that the schedule award he received is not adequate
compensation for his monaural hearing loss. The schedule award provision of the Act provides
for compensation to employees sustaining permanent impairment from loss of use of specified
members of the body.12 The Act establishes a maximum of 52 weeks of compensation as the
award for total monaural hearing loss.13 A partial loss of hearing is compensated at a
proportionate rate,14 so appellant’s award of compensation for a six percent monaural hearing
loss entitled him to six percent of 52 weeks of compensation or 3.12 weeks of compensation.
The record indicates that appellant received this amount of compensation. Because he has been
fully compensated for the percent monaural hearing loss and his condition has not worsened
since that time under the Office’s standards for evaluating hearing loss, appellant is not entitled
to any additional compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a six percent monaural hearing loss in his left ear.

11

The record contains several audiograms obtained by the employing establishment. The Board has held that, if an
audiogram is prepared by an audiologist, it must be certified by a physician as being accurate before it can be used to
determine the percentage of hearing loss. See Joshua A. Holmes, 42 ECAB 231, 236 (1990). None of the audiograms
of record were certified by a physician as accurate. Dr. Kanok stated that appellant noticed high-pitched tinnitus in
both ears but reported that he has been getting used to it and it no longer bothered him. An impairment percentage
of up to five percent may be added for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the
ability to perform activities of daily living. See A.M.A., Guides 246 (5th ed. 2001). There is no indication in the
record that appellant has tinnitus that meets this standard.
12

5 U.S.C. § 8107(c).

13

5 U.S.C. § 8107(c)(13)(B).

14

5 U.S.C. § 8107(c)(19).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 20, 2007 decision is affirmed.
Issued: October 11, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, ROCKY MOUNT
PROCESSING & DISTRIBUTION CENTER,
Rocky Mount, NC, Employer
__________________________________________

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

Docket No. 06-2183
Issued: May 18, 2007

Case Submitted on the Record

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

JURISDICTION
On September 29, 2006 appellant, through her attorney, filed a timely appeal from the
July 11, 2006 decision of the Office of Workers’ Compensation Programs, denying modification
of a decision that terminated her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(1), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits, effective January 25, 2004, on the grounds that she had no residuals or disability
causally related to her accepted employment injury; and (2) whether appellant established that
she continues to have disability related to her accepted employment injury. On appeal, appellant
contends that the medical evidence of record establishes her continuing disability for work.

FACTUAL HISTORY
On November 3, 2000 appellant, then a 37-year-old flat sorter machine operator, filed a
traumatic injury claim alleging that she injured her left shoulder on October 27, 2000 while
lifting a tub of mail to place on a conveyer belt. She was treated at the Pitt County Hospital
emergency room on November 3, 2000 and was diagnosed with a sprain of the left shoulder.
Appellant was referred to Dr. Christopher C. Hasty, a Board-certified orthopedic surgeon, who
noted that appellant had good shoulder strength and rotation, but that she experienced pain
during part of the testing. Dr. Hasty interpreted x-rays of the left shoulder as showing
subacromial narrowing and a Type II or III subacromial spur. He diagnosed appellant with
impingement syndrome of the left shoulder. The Office accepted appellant’s claim for left
shoulder strain on January 2, 2001. Appellant received a light-duty assignment and appropriate
compensation benefits.
On September 16, 2001 appellant was involved in a nonemployment-related automobile
accident and sustained trauma to her head, neck and lower back.
On December 12, 2001 appellant underwent a functional capacity evaluation. The
physical therapist, Lynn Forbes, indicated that appellant was functioning in the lower end of the
medium work category. Appellant could lift 21 to 50 pounds on an occasional basis, 11 to 25
pounds on a frequent basis and 6 to 13 pounds on a constant basis. Ms. Forbes indicated that, if
as appellant reported her job was in the heavy work category, a return to full duty was unlikely
without accommodations.
On February 8, 2002 appellant returned to Dr. Hasty with complaints of shoulder pain.
Dr. Hasty ordered a magnetic resonance imaging (MRI) scan of her left shoulder. On March 28,
2002 he reported the MRI scan to be normal. Dr. Hasty noted diffuse pain from her neck to
shoulder region but did not notice any specific pain or tenderness in her anterior shoulder region.
He was unsure what further treatment to offer given that the previous injections had not been
helpful for the long term. On May 7, 2002 appellant returned to see Dr. Hasty with nonspecific
complaints of shoulder and neck pain. He recommended that she follow up with Dr. Kevin
Good, a Board-certified neurologist.
Dr. Good examined appellant on May 9, 2002 and found that she had general symptoms
of joint and muscle pain and neurological symptoms of easy fatigability and nausea, weakness in
arms and legs and stiffness and pain. He conducted electrophysiological studies of the left arm
and shoulder, which were found to be normal. Dr. Good diagnosed probable myofascial pain
syndrome in appellant’s left neck and shoulder and indicated that it may have “evolved out of an
injury at work and been reactivated or made worse by the motor vehicle accident.”
By letter dated June 25, 2002, appellant requested that the Office authorize a change of
physicians to Dr. Lisa Staton, an internist.1 On July 31, 2002 Dr. Staton examined appellant and
found that her left shoulder exhibited a limited range of motion and that she could not lift her
hand above her head. She also noted diffuse tenderness on palpitation of the left shoulder.
Dr. Staton diagnosed left shoulder impingement, which was causing chronic pain and was being
1

Dr. Staton’s Board certification status could not be established.

2

complicated by depression. She noted that appellant had sustained a shoulder injury from lifting
a tub at work and that she was currently unable to perform her job duties because they involved
lifting her hand above her head several times a day. Dr. Staton gave appellant four weeks of
leave from work to allow her shoulder time to heal with a regimen of physical therapy and
medication.
Dr. Staton extended appellant’s period of disability to November 13, 2002, when she
released her to return to work with the limitations of no pushing or pulling, and no more than 50
pounds of lifting and 4 hours of reaching above shoulder. The employing establishment offered
a light-duty job; however, on February 11, 2003 the Office informed the employing
establishment that the job offer did not meet appellant’s physical limitations.
On May 1, 2003 Dr. Staton submitted a duty status report, Form CA-17, indicating that
appellant could lift no more than 21 pounds and was limited to 4 hours of bending, twisting and
fine manipulation. By letter dated July 23, 2003, the Office informed appellant that the
employing establishment had been unable to identify a job that would meet her limitations and
that it would begin to prepare her for other employment.
On September 18, 2003 the Office referred appellant for a second opinion evaluation to
determine the extent and nature of her remaining injury-related disability. Appellant was seen by
Dr. Noel B. Rogers, a Board-certified orthopedic surgeon, on November 7, 2003 for a second
opinion examination. Dr. Rogers diagnosed chronic pain in appellant’s left shoulder and noted
tenderness in the left trapezius and biceps. He ordered and reviewed new x-rays of her shoulder,
which were normal, and noted that Dr. Hasty had found a normal MRI scan in his March 23,
2002 report. In response to the Office’s questions, Dr. Rogers indicated that her left shoulder
strain had essentially resolved, as she had normal strength, reflexes and sensation. He opined
that appellant’s subjective complaints did not correspond with objective findings, especially as to
her ability to reach over her head. Dr. Rogers was uncertain as to how much of her pain was
linked to her nonemployment-related spinal injuries. He stated that, on the basis of her left
shoulder, and not considering any back pain, appellant should be able to return to full duty or to a
sedentary job and was in need of no further medical treatment.
On December 2, 2003 the Office notified appellant that it was proposing termination of
her compensation benefits on the grounds that she was no longer disabled as a result of the
accepted left shoulder strain. The Office found that the weight of the medical evidence rested
with Dr. Rogers’ report, as the treating physician, Dr. Staton, was not an orthopedic specialist
and had not provided a medical report in over a year.
On December 29, 2003 appellant responded to the Office’s proposed termination. She
contended that the Office had not given her medical history and records adequate consideration.
Appellant noted that the “tenderness” described by Dr. Rogers was the source of her shoulder
pain, spasms and weakness. She indicated that she had strength in her shoulder because of her
diligence in doing recommended exercises and taking medication to manage her pain. Appellant
did not submit any medical reports.
By decision dated January 22, 2004, the Office terminated appellant’s medical and wageloss benefits effective January 25, 2004. In response to appellant’s contention that her medical

3

file had been disregarded, the Office noted that Dr. Rogers was provided the complete medical
file.
On January 11, 2005 appellant, by counsel, submitted a request for reconsideration. She
argued that the Office’s decision was based solely on the evidence of the second opinion
physician, Dr. Rogers, and did not properly acknowledge a conflict in medical opinion with her
physicians. Appellant contended that Dr. Rogers’ finding that her condition had “essentially
resolved” meant that it had not resolved completely, and that, as a consequence, she had a
percentage of disability that was compensable. She argued that Dr. Rogers’ opinion was of
diminished probative value.
By decision dated March 24, 2005, the Office denied modification of the January 22,
2004 decision. It noted that Dr. Rogers’ certification status had been determined prior to his
engagement and that his report was internally consistent with the determination that appellant
was no longer disabled for work due to her shoulder injury. The Office found that the medical
evidence did not give rise to a conflict, as Dr. Hasty had found no objective evidence of pain
when he released appellant from his care. Dr. Staton had provided no recent narrative report
regarding the work injury. The Office affirmed that the weight of the medical evidence rested
with Dr. Rogers.
On March 13, 2006 appellant submitted a request for reconsideration. She contended that
the Office failed to accept as compensable all of the injuries and conditions that were causally
related to her October 27, 2000 employment injury. In a November 25, 2005 report,
Dr. Michael K. Nunn, an osteopath and a Board-certified psychiatrist,2 stated that he had treated
appellant for her psychiatric and chronic pain problems since August 7, 2002. He diagnosed
major depression and cervical spine pain with left shoulder involvement. Dr. Nunn indicated
that her chronic pain had worsened with time and developed into fibromyalgia. He stated that
appellant’s injuries were acquired in her work setting and were chronic, which rendered her
unable to work.
By letter dated March 29, 2006, the Office requested information about appellant’s
September 16, 2001 motor vehicle accident. Appellant responded with a written statement about
the incident. She also provided records from Dr. Brian Kean, a chiropractor, who treated her
following her accident.
On May 26, 2006 the Office informed appellant that she had been scheduled for an
examination with Dr. Ronald A. Summers, a Board-certified orthopedic surgeon, selected as the
impartial medical specialist to resolve a conflict in medical opinion between Dr. Nunn and
Dr. Rogers. The Office provided an addendum to the statement of accepted facts which stated
that appellant had sustained trauma to her head, shoulders, lumbar and cervical areas in the
motor vehicle accident. It noted that, in addition to her shoulder strain, she had an accepted
workers’ compensation injury for lumbar strain. The following conditions had not been
accepted: depression, cervical strain, bilateral shoulder impingement, myofascial pain syndrome,
bunectomy, fibromyalgia and degenerative disc disease.
2

Dr. Nunn’s osteopathic certification status could not be ascertained.

4

In a June 13, 2006 report, Dr. Summers provided the results of a physical examination, a
review of appellant’s medical history and responses to questions posed by the Office. He noted
normal flexion, abduction and rotation of both shoulders. Dr. Summers stated that appellant had
a full passive range of motion, but that there were complaints of pain at the outside limits. He
noted no focal point of pain, no muscle atrophy and no soft tissue swelling, bruising, ecchymosis
or discolorations. Dr. Summers reported that she felt discomfort on palpitation of the trapezius
and paraspinous cervical muscles. He found strength and sensation to light touch to be normal.
Dr. Summers did not find signs of impingement. He did not review any x-rays of appellant’s
shoulder. Dr. Summers opined that appellant had subjective complaints which were not
substantiated by objective physical examination findings or a review of the provided records. He
stated that appellant’s shoulder strain had improved with physical therapy and should not have
impeded her from returning to her usual occupation. Dr. Summers noted that her examination
showed no limitations on functionality and indicated that her subjective complaints of pain were
limited to only some motions, movements and strength testing. He stated that there was no
relation between her current condition and the accepted employment injury of October 27, 2000.
By decision dated July 11, 2006, the Office denied modification of its March 24, 2005
decision. The Office found that the weight of the medical opinion evidence rested with
Dr. Summers, the impartial medical specialist, who opined that appellant was not disabled from
the job she held on the date of injury. The Office noted that appellant’s complaints of pain and
discomfort were not supported by physical findings of disability.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.5
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for a left shoulder strain. Following appellant’s
November 3, 2000 employment injury, she was treated by Dr. Hasty, a Board-certified
orthopedic surgeon. On December 29, 2000 he diagnosed impingement of the left shoulder and
noted that x-rays of her shoulder showed subacromial narrowing and a Type II or III subacromial
spur. Dr. Hasty treated her with a cortisone shot. Appellant was in an automobile accident on
September 16, 2001 and sustained trauma to her head, neck and lower back. When she sought
treatment from Dr. Hasty on February 8, 2002 for ongoing shoulder pain he ordered an MRI
3

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

James F. Weikel, 54 ECAB 690 (2003).

5

scan. The MRI scan results were reported as normal with no evidence of impingement. On
examination, Dr. Hasty noted that appellant had diffuse pain in her neck and shoulder area, but
found no specific pain or tenderness in her anterior shoulder. He released her from his care on
May 7, 2002.
On May 9, 2002 appellant was examined by Dr. Good, a Board-certified neurologist, who
found general symptoms of joint and muscle pain and neurological symptoms of easy
fatigability, nausea, weakness in the extremities, stiffness and pain.
Dr. Good’s
electrophysiological studies of the left arm and shoulder were reported as normal. He diagnosed
“probable” myofascial pain syndrome in appellant’s neck and shoulder on the left side, which he
posited “may” have evolved out of her employment injury and been aggravated by her 2001
automobile accident.
On July 31, 2002, 18 months after the accepted employment injury, Dr. Staton, an
internist, found that appellant’s left shoulder had a limited range of motion and that she could not
lift her hand above her head. She noted diffuse tenderness on palpitation of the left shoulder.
Dr. Staton diagnosed left shoulder impingement, which was causing chronic pain and being
complicated by depression. It does not appear that she made the impingement diagnosis based
on objective x-ray or MRI scan evidence. Dr. Staton mentioned that appellant had a history of
shoulder injury, but did not identify the type of injury sustained and did not state that it had
caused appellant’s current condition. She did not address the MRI scan obtained for Dr. Hasty or
the electrodiagnostic studies of Dr. Good which were reported as normal. Dr. Staton provided no
explanation of how appellant’s current shoulder condition was related to her employment injury.
Her report is not sufficient to prove that appellant sustained an impingement from her
employment injury, accepted for shoulder strain. The Board notes that Dr. Staton’s findings of
shoulder pain cannot be directly connected to the accepted employment injury because they were
made more than 18 months afterwards. Her report was not sufficiently rationalized to establish a
causal relationship between appellant’s shoulder pain and her accepted shoulder strain.
Thus, in order to determine the extent and degree of any employment-related disability or
residuals, at the Office’s request Dr. Rogers, a Board-certified orthopedic surgeon, conducted a
second opinion examination of appellant on November 7, 2003. The examination included a
review of her employment injury, the physical requirements of her position and a physical
examination. Dr. Rogers found no residuals related to her accepted employment injury, as she
had normal strength, reflexes and sensation in her left shoulder. He also noted the normal x-ray
and MRI scan findings. Dr. Rogers opined that appellant’s subjective complaints did not
correspond to objective findings, especially in regards to the ability to reach over her head. He
stated that some of her pain was likely linked to her nonemployment-related spinal injuries.
Dr. Rogers concluded that, on the basis of her left shoulder, and not considering any back pain,
appellant would be able to return to full duty or to a sedentary job and was in need of no further
medical treatment. The Board finds that Dr. Rogers opinion, which is based on an accurate
medical history and a thorough examination is sufficient to establish that appellant had no
residuals or disability causally related to the October 27, 2000 left shoulder strain. The Board
finds that the Office properly relied on Dr. Rogers’ opinion, rather than Dr. Staton’s, to establish
that appellant had no residuals or disability from her employment injury because his opinion was
based on a complete medical history, including diagnostic studies, and he provided rationale for
his stated condition. Notably, he took into account the normal findings of the MRI scan

6

conducted by Dr. Hasty and the x-ray that he performed. Consequently, Dr. Rogers’ report
constitutes the weight of the medical evidence and establishes that appellant had no employmentrelated disability or residuals causally related to the October 27, 2000 left shoulder strain.
The Board finds that the Office properly terminated appellant’s compensation benefits on
the grounds that she had no residuals or disability causally related to the accepted shoulder strain.
LEGAL PRECEDENT -- ISSUE 2
Once the Office meets its burden of proof to terminate appellant’s compensation benefits,
the burden shifts to appellant to establish that she had disability causally related to her accepted
injury.6 Appellant must submit rationalized medical evidence to establish the causal relationship
between her continuing disability and the employment injury.7 To be rationalized, the opinion
must be based on a complete factual and medical background of the claimant,8 and must be one
of reasonable medical certainty,9 explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between a physician making an examination for the United States and the physician of the
employee, the Secretary must appoint a third physician to make an examination.12 Likewise, the
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office must appoint a third physician to make an examination.
This is called a referee examination and the Office is required to select a physician who is
qualified in the appropriate specialty and who has had no prior connection with the case.13 It is
well established that, when a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on
proper factual and medical background, must be given special weight.14

6

Manuel Gill, 52 ECAB 282 (2001).

7

Id.

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

Ernest St. Pierre, 51 ECAB 623 (2000).

12

5 U.S.C. §§ 8101-8193, 8123(a).

13

20 C.F.R. § 10.321.

14

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

7

ANALYSIS -- ISSUE 2
The Office properly terminated appellant’s benefits on January 25, 2004, based on the
medical report of Dr. Rogers. Appellant challenged this termination on the grounds that
residuals from her accepted employment injury continued to disable her for work. As the Office
met its burden of proof to terminate wage-loss and medical compensation benefits, the burden
shifted to appellant to establish continuing employment-related residuals or disability.
Appellant’s treating physician, Dr. Nunn, an osteopath and a Board-certified psychiatrist,
disagreed with Dr. Roger’s findings in a report dated November 25, 2005. He stated that
appellant’s chronic pain had developed into fibromyalgia and was the cause of chronic
depression. Dr. Nunn stated that these conditions were the result of the injury sustained at work.
The Board finds that the Office properly determined that there was a conflict of medical
opinion as to whether appellant was still disabled from work due to residuals causally related to
the accepted employment injury and properly selected an impartial medical specialist. On
June 13, 2006 Dr. Summers, a Board-certified orthopedic surgeon selected as an impartial
medical specialist, conducted a physical examination and reviewed appellant’s full medical
history related to her left shoulder. He found that her subjective complaints of pain for some
shoulder movements were not substantiated by objective findings. Dr. Summers noted that
appellant had full and normal functioning of her left shoulder. For these reasons, he opined that
there were no residuals from the accepted left shoulder strain that would prevent appellant from
returning to her date-of-injury position at the employing establishment.
The Board finds that the Office properly afforded the opinion of Dr. Summers the special
weight of the evidence in resolving the conflict of opinion regarding the degree of appellant’s
disability. His opinion was rationalized and based on a full medical history and examination. As
such it was entitled, under the Act, to be given special weight by the Office.
Appellant argued on appeal that the medical reports in the record establish that her
disability was caused by her federal employment. However, the evidence in the record was
considered by Dr. Summers when he rendered his opinion. The Board finds that all medical
conflicts in the record were resolved by Dr. Summers’ opinion.
The special weight of the medical evidence as represented by Dr. Summers establishes
that appellant had no continuing disability or residuals causally related to the accepted injury of
left shoulder strain. Thus, she has not met her burden of proof to establish continuing
employment-related disability or residuals.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective January 25, 2004 on the grounds that she had no residuals of disability causally related
to her accepted employment injury. The Board further finds that appellant did not establish that
she continued to have disability or residuals related to her accepted employment injury.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2006 is affirmed.
Issued: May 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, ALASKA NATIVE MEDICAL
CENTER, Anchorage, AK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Anne M. Dressen, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0023
Issued: September 3, 2020

Case Submitted on the Record

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

JURISDICTION
On October 3, 2018 appellant, through her representative, filed a timely appeal from a
July 5, 2018 nonmerit decision and a July 17, 2018 merit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 17, 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $126,789.23 because she concurrently received
FECA wage-loss compensation benefits and Social Security Administration (SSA) age-related
retirement benefits without an appropriate offset for the period February 1, 2008 to March 31,
2018; (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment; (3) whether OWCP
properly required recovery of the overpayment by deducting $1,400.00 every 28 days from
appellant’s continuing compensation payments; and (4) whether OWCP properly denied
appellant’s request for a prerecoupment hearing.
FACTUAL HISTORY
On March 25, 1998 appellant, then a 60-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on March 19, 1998 she injured the front of her body and chin
when she slipped and fell forward on loose gravel while in the performance of duty. OWCP
accepted her claim for multiple contusions, lacerations in the mouth, fractured jaw, and anxiety
disorder. Appellant stopped work on the date of injury and did not return. OWCP paid wage-loss
compensation on the supplemental rolls from May 4, 1998 on the periodic rolls effective
March 31, 1999.
On EN1032 forms completed by appellant from March 4, 2008 to March 4, 2018, she
indicated that she was not receiving SSA age-related retirement benefits as part of an annuity for
federal service.
On March 30, 2018 SSA forwarded a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to OWCP. The form indicated that, beginning in February 2008
appellant’s SSA rate with FERS was $1,888.80 and without FERS $948.10; beginning in
December 2008 through November 2011, her SSA rate with FERS was $1,998.30 and without
FERS $1,003.10; beginning in December 2011, appellant’s rate with FERS was $2,070.20 and
without FERS $1,039.10; beginning in December 2012, appellant’s rate with FERS was $2,105.20
and without FERS $1,056.70; beginning in December 2013, appellant’s SSA rate with FERS was
$2,136.80 and without FERS $1,072.40; beginning in December 2014 through November 2016,
appellant’s SSA rate with FERS was $2,173.10 and without FERS $1,090.60; beginning in
December 2016, appellant’s SSA rate with FERS was $2,179.50 and without FERS $1,093.70;
and beginning in December 2017, appellant’s SSA rate with FERS was $2,223.00 and without
FERS $1,115.50.
In a letter dated April 5, 2018, OWCP informed appellant that she had been receiving a
prohibited dual benefit. It noted that, pursuant to section 8116(d) of FECA, the portion of SSA
benefits earned as a federal employee was part of her retirement, and that the receipt of wage-loss
compensation under FECA and this portion of her SSA retirement was a prohibited dual benefit.
OWCP notified appellant that, based on information provided by SSA regarding the amount her
SSA age-related retirement benefits were attributable to federal service, her FECA wage-loss
compensation had been adjusted. An OWCP worksheet described its overpayment calculations.

2

On April 16, 2018 OWCP issued a preliminary determination finding that an overpayment
of compensation in the amount of $126,789.23 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-related retirement benefits that she received
from February 1, 2008 to March 31, 2018 were based on credits earned while working in the
Federal Government, and that this portion of her SSA benefit was a prohibited dual benefit. OWCP
found her at fault in the creation of the overpayment because she failed to report on the annual
EN1032 forms that she was in receipt of SSA benefits from 2008 to the present. It provided an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20)
for appellant’s completion.4 OWCP explained that its calculation of the overpayment, informed
her of the actions she could take, and allotted 30 days for her to respond.
On May 22 2018 appellant faxed the overpayment action request to an OWCP senior
claims examiner. She requested a prerecoupment hearing before OWCP’s Branch of Hearings and
Review on the issues of fault and possible waiver of recovery of the overpayment. Appellant
indicated that she believed that the overpayment occurred through no fault of her own, writing that
she did not understand what the form was asking for when she filled it out. She did not submit an
overpayment recovery questionnaire. In an attached letter, appellant’s representative reported that,
because appellant and her husband required visits to an emergency room and the physician, she
was unable to obtain the requested paperwork at that time. The representative also requested a
hearing.
In correspondence postmarked June 5, 2018, appellant’s representative also mailed a copy
of the overpayment action request form and letter to OWCP’s Branch of Hearings and Review,
noting that she had done so based on the instructions of the claims examiner.
By decision dated July 5, 2018, OWCP denied appellant’s request for a prerecoupment
hearing as untimely filed. It informed her that, as her request was not made within 30 days of the
April 16, 2018 decision, she was not, as a matter of right, entitled to a prerecoupment hearing.
By decision dated July 17, 2018, OWCP finalized the preliminary overpayment
determination. It found that appellant was paid both FECA compensation and SSA age-related
retirement benefits without a FERS adjustment for the period February 1, 2008 to March 31, 2018,
a prohibited dual benefit. OWCP noted that she failed to report that she was receiving SSA benefits
on the EN1032 forms she completed from 2008 to present, and that she had not submitted the
requested overpayment questionnaire or financial information. It found appellant at fault in the
creation of the overpayment because she knowingly accepted wage-loss compensation to which
she was not entitled. OWCP determined that $1,400.00 would be deducted from her continuing
compensation 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

4

OWCP explained that appellant was to attach supporting documentation to the Form OWCP-20 overpayment
recovery questionnaire including income tax returns, bank account statements, bills and cancelled checks, pay slips,
and any other records which supported income and expenses listed.

3

performance of his or her federal employment.5 Section 8129(a) of FECA provides, in pertinent
part: “When an overpayment has been made to an individual under this subchapter because of an
error of fact or law, adjustment shall be made under regulations prescribed by the Secretary of
Labor by decreasing later payments to which an individual is entitled.”6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.7 FECA Bulletin No. 97-9 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit 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.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $126,789.23 for the period February 1, 2008 to March 31, 2018.
In its July 17, 2018 decision, OWCP found that an overpayment of compensation was
created for the period February 1, 2008 to March 31, 2018 based on the evidence OWCP received
from SSA with respect to age-related retirement benefits paid to appellant. A claimant cannot
receive both FECA compensation for wage loss and SSA age-related retirement benefits
attributable to federal service for the same period.9 The information provided by SSA indicated
that appellant received SSA age-related retirement benefits that were attributable to federal service
during the period February 1, 2008 to March 31, 2018.
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 the specific amount of SSA age-related retirement
benefits that were attributable to federal service. The SSA provided the compensation rate with
FERS, and without FERS for specific periods February 1, 2008 to March 31, 2018. OWCP
provided its calculations for each relevant period based on an SSA worksheet and in its April 16,
2018 preliminary overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculations of the dual benefits received by appellant
for the period February 1, 2008 to March 31, 2018 and finds that an overpayment of compensation
in the amount of $126,789.23 was created.10

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see D.W., Docket No. 19-0546 (issued March 4, 2020).

8

FECA Bulletin No. 97-9 (issued February 3, 1997).

9

5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019).

10

R.D., Docket No. 19-1598 (issued April 17, 2020).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that “[a]djustment or recovery 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.”11 On the issue of fault, section 10.433(a) of OWCP’s regulations
provides that an individual is with fault in the creation of an overpayment who: (1) made an
incorrect statement as to a material fact which the individual knew or should have known to be
incorrect; (2) failed to furnish information which the individual knew or should have known to be
material; or (3) with respect to the overpaid individual only, accepted a payment which the
individual knew or should have been expected to know was incorrect.12
Section 10.433(b) of OWCP’s regulations provides that whether or not OWCP determines
that an individual was at fault with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she is being
overpaid.13
When a claimant receives benefits from the SSA as part of an annuity under FERS
concurrently with disability/wage-loss compensation, the claimant should be found without fault
unless there is evidence on file that the claimant was aware that the receipt of full SSA benefits
concurrent with disability/wage loss compensation was prohibited.14
OWCP’s procedures in effect at the time of the July 17, 2018 decision provided that in
situations where an equally valid argument could be made both for “without fault” and “with fault,”
the benefit of the doubt should go to the claimant, and a finding of without fault should be made
consistent with the nature of FECA as social legislation designed to benefit entitled employees.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment for the period February 1, 2008 to March 31, 2018.
As noted above, the Federal (FECA) Procedure Manual identifies that, regarding an SSA
dual benefits scenario, where the claimant receives SSA benefits as part of an annuity under FECA,
which results in an overpayment, the claimant should be found not at fault unless there is evidence
on file that the claimant was aware that the receipt of full SSA age-related retirement benefits
concurrent with disability/wage-loss compensation was prohibited.16 Because of the complex
11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.433(a); see J.S., Docket No. 19-0824 (issued October 4, 2019).

13

Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Determinations in an Overpayment, Chapter 6.300.4(d) (September 2018).
14

Id. at Chapter 6.300.4g(4) (September 2018).

15

Id. at Chapter 6.200.5 (June 2009).

16

Id.

5

nature of SSA benefits administration, appellant could not have been expected to be able to
calculate the amount of an offset. Therefore, she could not reasonably have been aware during the
relevant period that her concurrent receipt of SSA age-related retirement benefits constituted an
actual prohibited dual benefit.17
As previously noted, to determine if an individual was at fault with respect to the creation
of an overpayment, OWCP examines the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.18 The Board finds that appellant was without
other options to avoid a potential FECA overpayment. Therefore, based on the circumstances
described, OWCP has not met its burden of proof to establish that she was at fault in the creation
of the overpayment for the period February 1, 2008 to March 31, 2018.19
As appellant was not at fault in the creation of the overpayment for the period February 1,
2008 to March 31, 2018, the case will be remanded to OWCP to issue a new preliminary
determination on the issues of waiver and, if warranted, recovery of the overpayment which affords
her the right to request a prerecoupment hearing on those two issues.20
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$126,789.23 for the period February 1, 2008 to March 31, 2018. The Board further finds that she
was not at fault in the creation of the overpayment.21

17

D.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed OWCP’s finding that, due to the
complexity of SSA age-related benefits administration, appellant was not with fault in the creation of the overpayment
because he could not have reasonably known that an improper payment had occurred. OWCP determined that
appellant was not expected to be able to calculate the amount of the offset).
18

Supra note 13.

19

See E.H., Docket No. 18-1009 (issued January 29, 2019).

20

See 20 C.F.R. §§ 10.431(d) and 10.439.

21

In light of the Board’s finding as to Issue 2, Issues 3 and 4 are rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2018 decision of the Office of the
Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded
for further proceedings consistent with this decision of the Board. The July 5, 2018 decision is set
aside as moot.
Issued: September 3, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, BARTLETT POST
OFFICE, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0240
Issued: January 26, 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 November 11, 2019 appellant filed a timely appeal from an October 25, 2019 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 OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and schedule award benefits, effective October 24, 2019, because he
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 21, 2016 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained severe right wrist pain due to his federal
employment duties, including frequent handling and lifting of large boxes and heavy objects. He
1

5 U.S.C. § 8101 et seq.

stopped work on December 16, 2016 and returned to part-time work on January 2, 2017. OWCP
accepted the claim for unspecified right wrist sprain. Appellant underwent right scapulate
ligament repair with intercarpal pinning surgery, which occurred on May 31, 2017, and removal
of right wrist implants, which occurred on July 18 and August 23, 2017. OWCP paid appellant
wage-loss compensation on the supplemental rolls effective March 13, 2017 and on the periodic
rolls effective June 25, 2017.
In a September 27, 2017 report, Dr. David L. Cannon, a Board-certified orthopedic and
hand surgeon, noted appellant’s history of injury and medical treatment. He also related
appellant’s physical examination findings. Dr. Cannon diagnosed status right scapholunate
ligament disruption, status post intercarpal pinning repair, and status post implants removal and
referred appellant for physical therapy. He attached a form report, dated September 27, 2017, in
which he noted that he had released appellant to return to light-duty work, wearing a wrist brace,
and with a restriction of no lifting or gripping more than 15 pounds.
On October 26, 2017 Dr. Cannon related that appellant’s right wrist condition was
improving, with increased motion and strength. He indicated that appellant was capable of lightduty work and he increased appellant’s lifting/carrying limitation to 30 pounds. Dr. Cannon again
attached a form report dated October 27, 2017 in which he noted that appellant should work with
a wrist brace, and not perform lifting or gripping over 30 pounds with the right hand.
On November 8, 2017 the employing establishment offered appellant a modified
assignment as a city carrier. The duties of the job required two to four hours of casing mail and
two to eight hours of delivering routes. The physical restrictions listed were four to eight hours of
lifting up to 30 pounds, four to eight hours pulling/pushing, and up to eight hours walking and
simple grasping. On November 10, 2017 appellant refused the modified job offer asserting that
the limitations required modification.
Dr. Cannon, in a report and form dated November 27, 2017, indicated that appellant was
capable of light-duty work with use of a brace and no lifting or gripping more than 35 pounds.
In a December 8, 2017 letter, Susan Townsend, a registered nurse in Dr. Cannon’s office
advised that appellant’s work restrictions included no twisting of the wrist.
Dr. Cannon reported on January 8, 2018 that appellant’s right wrist mobility was
improving, but he was not gaining as much improvement regarding increased strength. He
concluded that appellant should be allowed to work with a brace, and with a lifting restriction of
35 pounds.
In a letter dated February 1, 2018, OWCP forwarded the November 8, 2017 modified job
offer to Dr. Cannon for his opinion as to whether appellant could perform the offered job. It
requested a response within 30 days.
In response, OWCP received a form report dated January 8, 2018 in which Dr. Cannon
noted that appellant should work in a brace, and with restrictions of no lifting or gripping over 35
pounds with the right hand/wrist, and no twisting of the wrist.

2

On February 7, 2018 OWCP referred appellant for a second opinion evaluation with
Dr. James T. Galyon, a Board-certified orthopedic surgeon, to determine the status of his accepted
condition and work capacity.
Dr. Cannon provided in a February 19, 2018 report, that appellant’s work restrictions were
working with a wrist brace and no lifting more than 35 pounds. In a form report of the same date,
he noted appellant’s restrictions as “work in brace, no lifting or gripping over 35 pounds with the
right hand/wrist, and no twisting of the wrist.”
In a February 28, 2018 report, Dr. Galyon noted appellant’s histories of injury and medical
treatment. He indicated that appellant’s physical examination of the left wrist revealed pain on
excess strain, weakness, and restricted range of motion. Dr. Galyon opined that appellant
sustained a left wrist sprain on December 16, 2016 and that he currently had a persistent left
scapholunate subluxation at the scaphoid joint. He reviewed the November 8, 2017 modified job
offer and concluded that the job was not suitable. Dr. Galyon explained that appellant still had
significant restricted lifting and pulling ability and he did not believe appellant was capable of two
to eight hours of casing and delivering mail. In an attached work capacity evaluation (Form
OWCP-5c), he indicated that appellant was capable of working up to two hours per day with
restrictions and that his restrictions were permanent. The restrictions included up to one hour of
reaching/reaching above the shoulder, one hour of repetitive wrist motion, and pulling/pushing/
lifting limited to five pounds.
Dr. Galyon, in a March 28, 2018 supplemental report, advised that he mistakenly referred
to the left wrist when the examination was of the right wrist.
In an April 2, 2018 report, Dr. Cannon noted that appellant was seen for right wrist pain
complaint. He provided appellant’s physical examination findings and concluded that appellant
still had some limitations, but this did not mean that appellant could not return to work in some
capacity at the employing establishment. Dr. Cannon reported that appellant continued to have
the same limitation of 35 pounds lifting and gripping, and that he should be able to use a splint at
work. He completed an April 2, 2018 form report wherein he again provided appellant’s
restrictions as “work in brace, no lifting or gripping over 35 pounds with the right wrist/hand, no
twisting wrist.”
On April 9, 2018 appellant underwent a functional capacity evaluation (FCE) as ordered
by Dr. Cannon. The FCE found appellant was capable of performing medium work range of 21
to 50 pounds, and occasional gripping and pinching of the right upper extremity for one minute,
up to 2 hours and 30 minutes based on an 8-hour day.
On May 2, 2018 the employing establishment offered appellant a modified assignment as
a city carrier. The duties of the job required two to four hours of casing mail and two to eight
hours of delivering routes. The physical restrictions listed were four to eight hours of lifting up to
35 pounds, four to eight hours pulling/pushing, and up to eight hours walking and simple grasping.
On May 2, 2018 appellant refused the offered modified job asserting it was not based on
Dr. Galyon’s work restrictions.
On July 30, 2018 the employing establishment offered appellant a modified assignment as
a city carrier. The duties of the job required one hour of casing mail and one to three hours of

3

taking parcels and cut offs to streets. The physical restriction listed were one to three hours of
lifting up to five pounds, one to eight hours of walking/driving, one to three hours of simple grasps,
and one hour of reaching. Appellant accepted the job offer.
Dr. Cannon, in an August 20, 2018 report, provided physical examination findings and
concurred with Dr. Galyon’s work restrictions, which were for administrative or clerical work.
In a letter dated August 30, 2018, the employing establishment informed OWCP that while
appellant accepted the July 30, 2018 job offer, he had not reported to work.
On August 31, 2018 OWCP requested that Dr. Galyon review an updated statement of
accepted facts (SOAF)2 and the April 9, 2018 FCE, and advise whether there was any change in
appellant’s work restrictions.
On October 22, 2018 OWCP received an updated modified city carrier job offer dated
August 17, 2018. Work hours were listed as 8:00 a.m. to 16:50 p.m. The duties of the job required
one hour of casing routes, one hour of removing and replacing case labels, and one hour of
sedentary work. The physical restrictions were one hour of lifting up to five pounds, one hour of
walking, one hour of reaching/reaching above the shoulder, and one hour of pushing/pulling. On
November 4, 2018 appellant refused the job offer.
In a November 16, 2018 supplemental report, Dr. Galyon reviewed appellant’s April 9,
2018 FCE, which he advised clearly showed significant right wrist loss of dexterity and strength.
He opined that appellant had sustained a serious injury with progressive deterioration. Dr. Galyon
indicated that “he will not be able to do repetitious work with his right hand, even light work like
5 or 10 pounds repetitious or frequent.” He also indicated that appellant could lift up to 25 pounds
occasionally, but not repeatedly, and that there was a possibility that appellant’s work restrictions
would progress.
In a letter dated December 3, 2018, OWCP advised appellant of its determination that the
modified city carrier position offered by the employing establishment was suitable based on the
February 28, 2018 report and November 16, 2018 supplemental report from Dr. Galyon and the
April 9, 2018 FCE. OWCP noted that the position was within his work restrictions. It advised
appellant that pursuant to 5 U.S.C. § 8106(c)(2) his wage-loss compensation and entitlement to a
schedule award would be terminated if he did not accept the job offer or provide good cause for
not doing so within 30 days of the date of the letter.
Subsequent to the December 3, 2018 letter, OWCP received an October 22, 2018 report
from Dr. Cannon. Dr. Cannon provided physical examination findings and diagnosed right
de Quervain’s syndrome, which he opined was likely due to his prior wrist injuries and surgeries.
Appellant stated that he would like to return to work, but that the employing establishment was
not providing work within his restrictions.
In a December 3, 2018 report, Dr. Cannon noted appellant’s physical examination findings.
He concluded that appellant’s right de Quervain’s syndrome had resolved.

2

The August 31, 2018 SOAF noted appellant’s accepted condition as “Unspecified Sprain of Right Wrist.”

4

On December 26, 2018 OWCP received undated letters from appellant to the employing
establishment concerning a new modified job offer delivered to his home by certified mail on
December 19, 2018.
Appellant retired from the employing establishment effective February 28, 2019.
On February 4, 2019 OWCP requested that Dr. Galyon provide an updated Form OWCP5c in order to assist it with obtaining suitable employment for appellant. In a February 25, 2019
Form OWCP-5c, Dr. Galyon diagnosed right wrist ligament tear and failed repair. He determined
that appellant was capable of working four hours per day with restrictions. The restrictions
included up to three hours of reaching, up to one hour of pulling and pushing, up to 10 pounds and
lifting, and up to one hour of repetitive wrist and elbow movements, and no climbing. He advised,
in a March 1, 2019 report, that appellant could perform light or sedentary with a 10-pound lifting
limit.
On April 11, 2019 the employing establishment offered appellant a modified city carrier
job working 8:00 a.m. to 12:30 p.m. The duties of the position required up to one hour of casing
mail, up to one hour of casing labels, up to one hour of handling undeliverable bulk business mail,
and up to one hour performing administrative duties. The physical requirements of the position
included up to one hour of lifting no more than eight pounds, up to one hour of walking, up to one
hour of reaching/reaching above the shoulder, and up to one hour pushing/pulling. On the second
page of the job offer, the employing establishment noted that the restrictions were based on the
opinion of second opinion physician including no more than four hours of work per day, reaching
up to three hours per day, up to one hour per day of repetitive wrist and elbow movement, up to
one hour per day of pushing/pulling/lifting up to 10 pounds per day, and no climbing. Appellant
refused the job offer asserting that it did not meet his physical restrictions.
In a letter dated June 18, 2019, OWCP advised appellant of its determination that the
modified city carrier position offered by the employing establishment by notice dated April 11,
2019 was suitable based on the February 28, 2018 report and supplemental reports dated
November 16, 2018, February 25, and March 1, 2019 from Dr. Galyon. It noted that the position
was within his work restrictions. OWCP advised appellant that pursuant to 5 U.S.C.
§ 8106(c)(2) his wage-loss compensation and entitlement to a schedule award would be terminated
if he did not accept the job offer or provide good cause for not doing so within 30 days of the date
of the letter.
On June 25, 2019 OWCP received appellant’s undated response. Appellant asserted that
the April 11, 2014 job offer was not within Dr. Galyon’s work restrictions. He noted that the job
offer lacked any specific weight restrictions with respect to pushing and pulling.
In a July 17, 2019 letter to the employing establishment, OWCP noted that the April 11,
2019 modified job offer failed to contain the weight restriction for pulling and pushing.
In a letter dated August 13, 2019 to OWCP, the employing establishment noted that a
permanent job offer was not available, but a modified assignment had been identified within
appellant’s restrictions, and the job offer remained available. It attached a copy of the April 11,
2019 modified job offer. On the second page of the job offer the employing establishment noted
that “this assignment is currently available and is subject to revision based on changes in your

5

physical restrictions and/or the availability of work. If a revision is necessary, you will be given a
revised written modified assignment.”
OWCP, in an August 13, 2019 letter, advised appellant that his reasons for refusing to
accept the modified city carrier position were unjustified. On July 17, 2019 the employing
establishment clarified that the April 11, 2014 job offer appellant had been given consisted of two
pages with weight limits for pushing/pulling/lifting noted on the second page of the job offer. It
advised him that his wage-loss compensation and entitlement to a schedule award would be
terminated if he did not accept the position and report to the position within 15 days of the date of
the letter.
On September 6, 2019 appellant elected to receive retirement benefits from the Office of
Personnel Management in lieu of FECA benefits effective August 18, 2019.
By decision dated October 25, 2019, OWCP terminated appellant’s entitlement to wageloss compensation and a schedule award effective October 24, 2019, because he refused an offer
of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the duties and physical
requirements of the April 11, 2019 job offer were suitable based on the work restrictions prescribed
by Dr. Galyon. OWCP found that appellant’s reasons for his job refusal and his failure to report
to work were not justified because the position was within his treating physician’s restrictions.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee is not entitled to compensation.4
To justify termination of compensation, OWCP must show that the work offered was
suitable, that the employee was informed of the consequences of refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or
submit evidence to provide reasons why the position is not suitable.5 Section 8106(c)(2) of FECA
(5 U.S.C. § 8106(c)(2)), will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work
3

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
4

5 U.S.C. § 8106(c)(2).

5

R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4 (June 2013).
6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

6

and other relevant factors.7 A temporary job will be considered unsuitable for the purposes of 5
U.S.C. § 8106(c)(2) unless the claimant was a temporary employee when injured and the
temporary job reasonably represents the claimant’s wage-earning capacity. Even if these
conditions are met, a job which will terminate in less than 90 days will be considered unsuitable.8
Once OWCP establishes that the work offered is suitable, the burden shifts to the employee
who refuses to work to show that the refusal or failure to work was reasonable or justified.9 Section
10.517(a) of FECA’s implementing regulations provide that an employee who refuses or neglects
to work after suitable work has been offered or secured, has the burden of showing that such refusal
or failure to work was reasonable or justified.10 Pursuant to section 10.516, the employee shall be
provided with the opportunity to make such a showing before a determination is made with respect
to termination of entitlement to compensation.11
ANALYSIS
The Board finds that OWCP has not met it burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award benefits, effective October 24, 2019,
for refusing an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
On April 11, 2019 the employing establishment offered appellant the position of modified
city carrier. The physical requirements of the offered position were within appellant’s medical
restrictions provided by Dr. Galyon, in his capacity as a second opinion referral physician.
However, the employing establishment advised OWCP by letter dated August 13, 2019 that a
permanent job offer was not available and that the April 11, 2019 modified assignment had been
identified to be within appellant’s restrictions. It confirmed that the modified job offer remained
available.
As previously noted, OWCP’s procedures relate that a temporary job will be considered
unsuitable for the purposes of 8106(c) unless the claimant was a temporary employee when injured
and the temporary job reasonably represents the claimant’s wage-earning capacity.12
The record does not support a finding that appellant was a temporary employee at the time
of injury. The employing establishment explained in its August 13, 2019 letter that the April 11,
2019 modified job offer was made because a permanent job offer was not available. The Board
thus finds that the April 11, 2019 modified job offer was temporary in nature and not a permanent
job offer.

7

Supra note 6 at Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.(4)(c) (June 2013).

8

Id. at Chapter 2.814.4(c)(5) (June 2013); see also R.A., Docket No. 19-0065 (issued May 14, 2019); Leonard W.
Larson, 48 ECAB 507 (1997).
9

20 C.F.R. § 10.517(a).

10

Id.

11

Id. at 10.516.

12

Supra footnote 10.

7

The Board therefore finds that OWCP improperly determined that the April 11, 2019
modified job offer was suitable.13 OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits pursuant to 5 U.S.C. § 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met it burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award benefits, effective October 24, 2019,
for refusing an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 26, 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

13

Id.

8