United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, RAYTOWN POST
OFFICE, Kansas City, MO, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1082
Issued: September 7, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 27, 2020 appellant, through counsel, filed a timely appeal from a February 19,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 20-1082.
On June 12, 2019 appellant, then a 43-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 31, 2019 she injured her left knee when walking down stairs
while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx295. On the
reverse side of the claim form, the employing establishment noted that appellant had been working

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.

modified duty and at the time of her alleged injury, violated her work restrictions by walking up
and down stairs while delivering a package. 2 Appellant did not stop work.
Appellant submitted evidence in support of her claim, including a narrative statement.
In a June 18, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence necessary and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
In response, appellant submitted additional evidence in support of her claim, as well as a
medical authorization request for surgical repair of her left knee medial meniscus tear.
By decision dated July 23, 2019, OWCP accepted that the May 31, 2019 employment
incident occurred, as alleged. However, it denied her claim, finding that the medical evidence of
record was insufficient to establish a left knee condition causally related to the accepted May 31,
2019 employment incident.
OWCP continued to receive evidence in support of appellant’s claim.
On August 22, 2019, appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on December 11, 2019.
By decision dated February 19, 2020, the hearing representative affirmed the July 23, 2019
decision. She noted that appellant had a previously accepted claim under OWCP File No.
xxxxxx316 for left knee strain and a medial meniscus tear. The hearing representative further
noted that appellant underwent left knee surgery on August 8, 2018 under OWCP File No.
xxxxxx316.
The Board has duly considered the matter and finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined where
correct adjudication depends on cross-referencing between files and where two or more injuries
occur to the same part of the body. 3 In the instant case, under OWCP File No. xxxxxx295,
appellant is alleging a left knee condition. OWCP had previously accepted that she sustained a
left knee strain and medial meniscus tear under OWCP File No. xxxxxx316. However, it has not
administratively combined the present claim with her previously accepted claim under File No.
xxxxxx316, pertaining to left knee conditions.
The Board thus finds that, for a full and fair adjudication, the claims in OWCP File Nos.
xxxxxx316 and xxxxxx295 must be administratively combined. 4 This will allow OWCP to

2

The record reveals that appellant has a previously accepted August 14, 2017 traumatic injury under OWCP File
No. xxxxxx316 for a left knee strain and tear of medial meniscus.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; R.H., Docket No. 19-1457 (issued July 17, 2020).

2

consider all relevant claim files and accompanying evidence in developing appellant’s current
traumatic injury claim. 5
Accordingly, the Board will remand the case to OWCP to administratively combine the
said files. Following any further development as deemed necessary, OWCP shall issue a de novo
decision.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: September 7, 2021
Washington, DC

Alec J. Koromilas, 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

5

R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF DEFENSE, PUGET SOUND
NAVAL SHIPYARD, Bremerton, WA, Employer
__________________________________________

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

Docket No. 07-402
Issued: November 26, 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 November 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 18, 2006 decision modifying his wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether the Office properly modified its June 5, 1997 wage-earning capacity
determination.
FACTUAL HISTORY
This is the second appeal in this case. On March 19, 1984 appellant, then a 33-year-old
equipment cleaner, sustained a right shoulder strain as he was reaching into a bilge to remove
trash. On May 29, 1984 he strained his right shoulder when the elevator he was riding broke and
he climbed over the gate to exit the elevator. The Office accepted appellant’s claims for right
shoulder strain, right chronic impingement syndrome of rotator cuff of right shoulder and

approved a partial acromioplasty which was performed on January 22, 1985. On July 16, 1986
the Office issued a schedule award for a 10 percent permanent impairment of the right upper
extremity. Appellant continued to perform limited duty until October 30, 1987, when he was
terminated from his position because there was no work available within his limitations. The
Office commenced payment of compensation for total disability. By decision dated June 5,
1997, the Office reduced appellant’s compensation benefits based on his wage-earning capacity
as a salesclerk. This decision was affirmed by an Office hearing representative in a decision
dated February 19, 1998 and affirmed by the Board on February 20, 2001.1
On July 16, 2003 Dr. Kenneth R. Koskella, a Board-certified orthopedic surgeon,
performed an arthroscopy on appellant’s right shoulder.
On December 5, 2003 Dr. Koskella noted that appellant was fixed and stable as of that
date. Appellant had permanent work restrictions precluding working above shoulder level,
lifting pushing or pulling more than 10 pounds with his right upper extremity and should avoid
rapid or repetitive motions with his arm but not his hand.
In a report dated May 13, 2004, Dr. Edward D. Arrington, a Board-certified orthopedic
surgeon to whom the Office referred appellant for a second opinion, diagnosed: (1) right
shoulder strain, secondary to industrial injury of March 19, 1984, status post right anterolateral
partial acromionectomy in January 1985, status post revision arthroscopy, subacromial
decompression with debridement and labral tear and distal clavicle excision in July 2003;
(2) right carpal tunnel syndrome by history, unrelated to the industrial injury; and (3) right tardy
ulnar nerve palsy by history, unrelated to the industrial injury. He opined that appellant has
reached maximum medical improvement for the right shoulder strain and disorder of the bursae
and tendons of the right shoulder. Dr. Arrington indicated that appellant’s current condition was
related to his 1984 work injury by direct cause, but opined that he was capable of performing the
duties of a salesclerk. On June 18, 2004 he listed appellant’s limitation as follows: reaching,
reaching above shoulder, pushing, pulling, lifting and climbing limited to zero to two hours.
Dr. Arrington also limited appellant’s pushing, pulling and lifting to zero to two hours and no
more than 10 pounds. In an addendum dated July 12, 2004, he indicated that appellant must
have breaks up to 10 minutes every 2 hours.
On July 28, 2004 the Office issued an additional schedule award, finding that appellant
had a total of 20 percent permanent impairment of the right arm.
The Office found a conflict in medical opinion between Dr. Koskella and Dr. Arrington
with regard to appellant’s lifting restrictions and ability to perform the duties of a salesclerk. By
letter dated September 16, 2004, the Office referred appellant to Dr Daniel Brzusek, a Boardcertified physiatrist, for an impartial medical examination. In a medical report dated October 18,
2004, Dr. Brzusek listed his impressions as: (1) right shoulder sprain and strain as a result of
initial injury of March 19, 1984 with subsequent aggravation of injury on May 28, 1984;
(2) development of shoulder impingement syndrome as a result of industrial injury; (3) right
anterolateral partial acromionectomy on January 12, 1985 as a result of shoulder impingement
syndrome; (4) right arthroscopic subacromial decompression with debridement of labral tear,
1

Docket No. 99-1176 (issued February 20, 2001).

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right shoulder, on July 16, 2003; (5) right carpal tunnel syndrome, unrelated to industrial injury;
and (6) right tardy ulnar palsy, right upper extremity, unrelated to industrial injury. He found
that appellant was capable of performing the position of salesclerk with, modification.
Dr. Brzusek restricted appellant on frequent lifting of 10 pounds and occasional lifting of
10 pounds. He noted that appellant could not reach above his shoulder and required
modifications regarding setting up advertising or displays and arranging merchandise.
Dr. Brzusek further stated: “Although I have not been given the job analysis for telephone
solicitor, this gentleman’s condition certainly fits well within the necessary requirements.” He
completed a work capacity evaluation indicating that appellant was limited to reaching zero to
four hours below shoulder and prohibited from reaching above his shoulder or operating a motor
vehicle. Dr. Brzusek placed limits on repetitive movements of the wrists and elbows of zero to
four hours and limitations of pushing, pulling and lifting to 10 pounds zero to four hours. He
noted that appellant could work eight hours a day within these restrictions.
In an August 30, 2005 report, Dr. Koskella indicated that appellant had long been fixed
and stable. He recommended that appellant not climb ladders, but he thought that other jobs
would be suitable.
On February 16, 2006 the Office notified appellant of a proposed reduction in
compensation based on her ability to earn wages as a salesclerk. By decision dated April 5,
2006, the Office reduced appellant’s compensation benefits effective February 16, 2006 based on
his ability to work as a salesperson.
In a decision dated August 21, 2006, an Office hearing representative reversed the
finding that appellant’s wage-earning capacity was represented by the position of a salesclerk.
In an August 27, 2006 labor market survey, the vocational counselor described the
position of telephone solicitor. She noted that the position involved keying data from order card
into computer using a keyboard. The vocational counselor demands were listed as sedentary in
nature, with occasional lifting of up to 10 pounds, or exerting negligible force in pushing or
pulling. The position involves sitting most of time, but may involve walking or standing for
brief periods of time. Occasional reaching and handling are required and frequent fingering is
required. The vocational counselor noted that appellant would qualify for median wages which
would be $11.51 per hour or $460.40 per week. She noted that there are approximately 27 to 33
average annual job openings of this type within appellant’s reasonable commuting area and
therefore the job is performed in sufficient numbers in the commuting labor market area so as to
be considered reasonably available.
On September 15, 2006 the Office issued a notice of proposed reduction of appellant’s
compensation to reflect that the position of telephone solicitor is medically and vocationally
suitable and fairly represented his wage-earning capacity. Appellant responded that telephone
solicitation was illegal in the state of Washington.
By decision dated October 18, 2006, the Office reduced appellant’s wage-loss
compensation effective that day based on his ability to earn wages in the constructed position of
telephone solicitor. The Office found that appellant had a 65 percent loss of wage-earning

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capacity. The Office found that the position was within his medical and vocational capacity and
was reasonably available in the commuting area.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is properly determined, it
remains undisturbed regardless of actual earnings or lack of earnings. A modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was in fact erroneous. The burden is on the Office to establish that
there has been a change so as to effect the employee’s capability to earn wages in the job
determined to represent his earning capacity. Compensation for loss of wage-earning capacity is
based upon the loss of capacity to earn and not actual wages lost.2
Once the criteria for establishing modification has been met, a determination of wage rate
and availability in the labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick,3 will result in the percentage of the employee’s loss of wage-earning capacity.4
ANALYSIS
In its decision dated June 5, 1997, the Office determined that appellant’s wage-earning
capacity was represented by the position of salesclerk. This determination was affirmed by the
hearing representative and this Board.
On July 16, 2003 appellant underwent additional arthroscopy on his right shoulder with
limitations impacting his capacity for work. By decision dated April 5, 2006, the Office reduced
appellant’s compensation benefits effective February 16, 2006 based on his ability to work as a
salesclerk. However, on August 21, 2006, an Office hearing representative reversed this
decision. Accordingly, as there was a material change in the nature and extent of appellant’s
injury-related condition, the Office considered modification of the prior wage-earning capacity
determination. In an August 27, 2006 survey, the vocational counselor determined that the
position of telephone solicitor was suitable for appellant.
The Board finds that the special weight of the medical evidence clearly establishes that
appellant is no longer totally disabled from work.5 Dr. Brzusek was the impartial medical
examiner selected to resolve the conflict in medical opinion between Dr. Koskella, appellant’s
2

Ronald M. Yokota, 33 ECAB 1629; see also Marie A. Gonzeles, 55 ECAB 395 (2004).

3

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403(d)(c).

4

Francisco Bermudez, 51 ECAB 506 (2000); James A. Birt, 51 ECAB 291 (2000).

5

In situations where there are opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special weight.
Solomon Polen, 51 ECAB 341, 343 (2000); see also Kathryn Haggerty, 45 ECAB 383 (1994).

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attending physician, and Dr. Arrington, an Office referral physician. Dr. Brzusek found that
appellant could work eight hours a day with restrictions of lifting below the shoulder zero to four
hours, pushing, pulling and lifting 10 pounds for zero to four hours and repetitive motions of his
wrists and elbow limited to zero to four hours. As vocational rehabilitation efforts were not
successful, the vocational rehabilitation counselor evaluated certain constructed positions with
regard to appellant’s limitations. She found that appellant was capable of performing work as a
telephone solicitor. This position was described as sedentary in nature with occasional lifting of
up to 10 pounds. This position was noted by Dr. Brzusek and conforms to the limitations
specified by the impartial medical specialist. The vocational rehabilitation counselor noted that
negligible force would be utilized pushing and pulling. She did note that occasional reaching
and handling would be required. The counselor noted that these positions were available in
sufficient numbers in appellant’s commuting area. Finally, she stated that appellant would
qualify for median wages for this position, which would be $460.40 per week. Based on these
calculations, the Office issued an October 18, 2006 decision modifying appellant’s compensation
based on his ability to earn $460.40 per week as a telephone solicitor.
The Board finds that the Office considered the proper factors, such as availability of
telephone solicitor positions and appellant’s physical limitations, in determining that the
telephone position represented his wage-earning capacity. The vocational rehabilitation
counselor also found that telephone solicitor positions were reasonably available in appellant’s
commuting area. Also, the Office followed the established procedures under the Shadrick
decision in calculating appellant’s employment-related loss of wage-earning capacity. Appellant
did not contend that the Office erred in its mathematical calculations of wage-earning capacity.
The Board has reviewed these calculations and finds them to be correct.
Appellant alleges that telephone solicitation is illegal in the State of Washington. He has
provided no proof to support his allegation. Furthermore, his allegations of illegality are refuted
by the fact that there are numerous telephone solicitor jobs available within his commuting area.
CONCLUSION
The Board finds that the Office properly modified appellant’s wage-earning capacity as
was determined in the Office’s decision of June 5, 1997.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 18, 2006 is affirmed.
Issued: November 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 09-37
Issued: September 23, 2009

Case Submitted on the Record

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

JURISDICTION
On October 8, 2008 appellant filed a timely appeal from the September 23, 2008 decision
of the Office of Workers’ Compensation Programs finding that she received an overpayment in
the amount of $1,016.28 for which she was at fault. Her appeal is also timely filed from a
July 16, 2008 decision terminating her compensation for failure to accept suitable work.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the
merits of this claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits after July 16, 2008 on the grounds that she refused suitable work;
(2) whether the Office properly determined that appellant received an overpayment of $1,016.28
for the period July 16 through August 2, 2008; and (3) whether the Office properly determined
that appellant was at fault in creating the overpayment of compensation, thereby precluding
waiver.

FACTUAL HISTORY
On June 1, 2007 appellant, then a 32-year-old part-time flexible letter carrier, sustained
injury when her right foot became caught on a step and she fell, twisting her ankle and landing
on her knees. The Office accepted her claim for right ankle sprain and left knee contusion.
Appellant stopped work on July 18, 2007 and received compensation benefits for wage loss.
On December 6, 2007 Dr. David L. Flood, a Board-certified orthopedic surgeon,
performed an arthroscopy of the left knee with chondroplasty and arthroscopic limited
synovectomy. On March 13, 2008 he noted that appellant was making progress following the
left knee surgery but she continued to experience pain involving her right knee. On April 24,
2008 appellant underwent surgery on her right ankle including, arthroscopy with debridement of
intraarticular adhesions and open exploration of the peroneal tendons above peroneal
retinaculum. She also underwent a right knee arthroscopy and arthroscopic chondroplasty of the
patella; arthoscopic chondroplasty of the medial femoral condyle; and limited synovectomy and
plicectomy. In a May 5, 2008 report, Dr. Flood noted appellant’s status as postarthroscopic
debridement for chondral lesion of the patella and status post ankle arthroscopy for debridement
of scar tissue and tenolysis of peroneal tendon. He requested authorization for physical therapy.
In a work capacity evaluation dated June 3, 2008, Dr. Flood advised that appellant could
work six hours a day for two weeks and then begin full-time eight-hour work. He placed
restrictions on intermittent sitting for three hours, one hour of walking, three hours of
intermittent standing and six hours each for operating a motor vehicle, reaching, twisting and
repetitive movement with wrists and elbow. Dr. Flood limited her to pushing/pulling/lifting 10
pounds. He prohibited squatting, kneeling and climbing. Dr. Flood recommended that appellant
have 10-minute breaks every 2 hours. He stated that appellant “needs to be able to sit or stand at
will.” Dr. Flood indicated that these restrictions would last four weeks.
On June 3, 2008 the employing establishment offered appellant a position as a modified
carrier and noted that she could use her cane when she delivered mail. Restrictions in the
modified assignment were intermittent sitting to drive to each destination (30 minutes),
intermittent walking on flat surfaces (1 hour and 15 minutes), intermittent standing (1 hour and
15 minutes) and intermittent lifting of up to 10 pounds which required “breakdown of swings” (2
hours and 30 minutes). In a letter dated June 4, 2008, the employing establishment advised the
Office that appellant did not report to work.
On June 5, 2008 Dr. Flood modified the June 3, 2005 work capacity form and indicated
that appellant could not operate a motor vehicle to drive to and from work. All other restrictions
remained the same.
On June 5, 2008 the employing establishment again made an offer to appellant of
modified duty as a letter carrier. Appellant’s duties would include scanning certified mail
(which could be done sitting) for three hours a day and conducting address searches and
completing forms for three hours a day. The physical requirements were noted as sitting 5.5
hours a day, standing and walking 30 minutes a day and lifting continuously one ounce and
occasionally up to 10 pounds. The employing establishment noted that she could use a cane and
sit or stand as needed for comfort.

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By letter dated June 6, 2008, appellant resigned from the employing establishment. She
contended that she had been asked to return to work under circumstances that were neither
comfortable nor acceptable for her. Appellant maintained that the job offer required her to drive
to the downtown office and that she was medically unable to drive and walked with the
assistance of a cane.
By letter dated June 9, 2008, the Office informed appellant that it found that the position
of modified carrier to be within her work capabilities as prescribed by Dr. Flood. It advised
appellant that she had 30 days from the date of the letter to either accept the position or provide
an explanation for refusing it. The Office notified her that, if she failed to accept the position or
to demonstrate that the failure was justified, her compensation would be terminated. Appellant
did not respond to the Office’s letter.
In a decision dated July 16, 2008, the Office terminated appellant’s compensation
effective that date for failure to accept an offer of suitable work pursuant to 5 U.S.C. § 8106(c).
On July 24, 2008 the Office issued a check in the amount of $1,580.88 for compensation
from June 8 through July 5, 2008. However, in a form dated July 24, 2008, it noted that
appellant’s compensation was terminated as of July 16, 2008. The Office determined that she
received 18 days of compensation to which she was not eligible in the amount of $1,016.28.
On July 24, 2008 the Office made a preliminary determination that appellant received an
overpayment in the amount of $1,016.28 after her compensation was “suspended” because she
refused a light-duty job offer. As appellant received compensation for the period July 16 through
August 2, 2008, an overpayment was created. The Office found that appellant was at fault in the
creation of the overpayment because she knew or should have known that she accepted an
incorrect payment to which she was not entitled. It informed appellant of the prerecoupment
procedures relevant to the overpayment. Appellant did not respond to the Office’s preliminary
determination of overpayment.1
By decision dated September 23, 2008, the Office finalized its determination that
appellant received an overpayment in the amount of $1,016.28. As appellant was at fault in the
creation of the overpayment, she was not entitled to a waiver. The Office requested that she
forward a check for the full amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.2 The Office
has authority under this section to terminate compensation for any partially disabled employee
who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
1

Appellant did submit further information with regard to her medical condition.

2

5 U.S.C. § 8106(c)(2).

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setting forth the specific restrictions, if any, on the employee’s ability to work and has the burden
of establishing that a position has been offered within the employee’s work restrictions, setting
forth the specific job requirements of the position.3 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.4
Whether an employee has the physical or psychological ability to perform an offered position is
primarily a medical question that must be resolved by the medical evidence.5
When the Office considers a job to be suitable, it shall advise the employee of its findings
and afford her 30 days to either accept the job or present any reasons to counter the Office’s
finding of suitability.6 If the employee presents such reasons and the Office determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days in which to accept the offered work without penalty.7 After
providing proper notification, the Office will terminate the employee’s entitlement to further
compensation.8 However, the employee remains entitled to medical benefits.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right ankle sprain and left knee contusion.
Appellant underwent multiple surgeries. On June 2, 2008 Dr. Flood completed a work capacity
evaluation which the employing establishment used in offering appellant modified duty within
her restrictions. On June 5, 2008 he noted that appellant could not operate a motor vehicle.
Appellant did not accept the job offer; rather, she resigned from her position. She indicated that
the position required her to drive to the downtown office and that she was medically unable to
drive and walked with the assistance of a cane.
On June 9, 2008 the Office informed appellant that it found the position suitable and
noted that it remained available. Appellant was provided 30 days from the date of the letter to
either accept the position or provide reasons for refusing the position. She did not respond to the
Office’s proposed termination. Accordingly, the Office terminated compensation benefits.
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits. The position offered by the employing establishment was based on the
work restrictions of her attending physician, Dr. Flood. The position noted that appellant would
work six hours a day. If she accepted the position, she would be scanning certified mail, a
3

Frank J. Sell, Jr., 34 ECAB 547 (1983).

4

Glen L. Sinclair, 36 ECAB 664 (1985).

5

Gayle Harris, 52 ECAB 319, 321 (2001).

6

20 C.F.R. § 10.516.

7

Id.

8

Id. at § 10.517(b).

9

Id.

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position which could be done sitting, for three hours a day and conducting address searches and
completing forms for three hours a day. The physical requirements were noted as sitting 5.5
hours a day, standing and walking 30 minutes a day and lifting continuously one ounce and
occasionally up to 10 pounds. The employing establishment noted that appellant could use her
cane and sit or stand as necessary for comfort. On June 5, 2008 Dr. Flood indicated that
appellant could work six hours a day but must be able to sit and stand at will. The position
offered by the employing establishment was within these restrictions. The position did not
require that appellant drive a vehicle during the course of her federal duties.
The Board notes that appellant never responded to the Office’s proposed termination of
benefits. Appellant did not provide the Office with any response as to why the position was not
suitable. The Office properly terminated benefits.10 Appellant indicated by letter to the
employing establishment that she could not perform the offered position because she could not
drive to the downtown office. However, she did not establish that she was unable to commute to
the work site. There is no information that using alternative methods of transportation were not
feasible. Appellant advised her employer that she resigned. Resignation from the employing
establishment, like retirement, is not a valid reason for refusing a suitable offer of work.11
Appellant did not respond to the Office’s proposed termination of benefits. As noted, the
position offered by the employing establishment was properly found to be suitable for the work
restrictions set by her treating physician. The Office properly terminated appellant’s benefits for
failure to accept an offer of suitable work pursuant to 5 U.S.C. § 8106(c).
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of the Act provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.12 When an overpayment has been made to an individual 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 the individual is entitled.13
ANALYSIS -- ISSUE 2
The Board finds that the Office has not provided sufficient evidence
received an overpayment in the amount of $1,016.28. The Office found that
overpaid for the period July 16 through August 2, 2008 because she received
benefits for this time period and her compensation had been terminated on

that appellant
appellant was
compensation
July 16, 2008.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.4(d)(2) (July 1997). See also Rosie E. Garner, 48 ECAB 220 (1996); Stephen R. Lubin, 43
ECAB 564 (1992).
11

See Robert P. Mitchell, 52 ECAB 116 (2000) (where the claimant chose to receive disability retirement benefits
rather than accept a position offered by the employing establishment).
12

5 U.S.C. § 8102(a).

13

Id. at § 8129(a).

5

However, the supporting documentation of record, a check issued on July 5, 2008 in the amount
of $1,580.88, indicates that it was for the period June 8 through July 5, 2008, prior to the July 16,
2008 termination of compensation benefits. Accordingly, the Office failed to submit supporting
evidence that appellant received an overpayment after compensation benefits had been
terminated. It did not meet its burden of proof in establishing that an overpayment of
compensation occurred, as alleged.14
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits as of July 16, 2008 on the grounds that she refused suitable work. The
Office did not meet its burden of proof to establish that appellant received an overpayment in the
amount of $1,016.28.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2008 is affirmed. However, the Office’s decision dated
September 23, 2008 finding an overpayment in the amount of $1,016.28 is reversed.
Issued: September 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

See Robert D. Short, 44 ECAB 354 (1993) (the Office did not meet its burden to establish fact of
overpayment). Given this finding, the Board need not address the issue fault.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

Alec J. Koromilas, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Greensboro, NC, Employer
__________________________________________

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

Docket No. 09-1214
Issued: October 21, 2009

Case Submitted on the Record

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

JURISDICTION
On April 6, 2009 appellant filed a timely appeal of the March 20, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs denying his request for reconsideration
because it was not timely filed and failed to establish clear evidence of error. Because more than
one year has elapsed between the most recent merit decision dated November 24, 1998 and the
filing of the appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On July 23 and 29, 1998 appellant, then a 33-year-old mailhandler, filed a traumatic
injury and occupational disease claims, respectively, alleging that he sustained work-related
stress. In a July 15, 1998 report, T. Earl Coleman, Ph.D. stated that appellant should continue to

be excused from work until his follow-up examination by Dr. Douglas G. Smith, a psychiatrist.
In a July 22, 1998 report, Dr. Smith opined that appellant did not sustain an emotional condition.
In a July 23, 1998 report, a physician whose signature is illegible provided appellant’s physical
restrictions. In a July 31, 1998 letter, the employing establishment controverted appellant’s
claim, contending that the evidence did not establish that his stress was work related.
By letter dated August 10, 1998, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It addressed the factual and medical evidence appellant
needed to submit.
Medical records dated July 8 to November 4, 1998 addressed appellant’s emotional
condition, physical restrictions and disability for work. In a November 4, 1998 report,
Rosalyn Harris-Offutt, a certified registered nurse in psychiatry, reviewed a history that appellant
was frustrated with management because it was not honest or truthful. Appellant received unfair
evaluations and accusations. Ms. Harris-Offutt opined that he sustained post-traumatic stress
disorder due to work-related environmental stresses.
By decision dated November 24, 1998, the Office denied appellant’s claim, finding that
he did not sustain an emotional condition in the performance of duty. The factual evidence
failed to establish a compensable factor of appellant’s employment. The medical evidence failed
to establish that appellant sustained an emotional condition causally related to a compensable
employment factor.
In a December 22, 1998 report, Dr. Gerald I. Plovsky, a psychiatrist, reviewed a history
that appellant was harassed and belittled by his supervisors. Appellant was required to clean up
chemical spills which, was outside his job description. The employing establishment denied his
request to attend school and to take an examination. It accused appellant of being the
“Unibomber.” It set him up for failure by assigning him extra work or different kinds of work.
The employing establishment discriminated against appellant based on his race. The employing
establishment’s attitude towards appellant changed after he became a union representative.
Dr. Plovsky opined that appellant’s work environment caused his anxiety and personality
changes which could lead to the development of post-traumatic stress disorder. He
recommended that appellant stay off work until the harassment and conflicts were resolved. In a
November 4, 1998 note, Dr. Plovsky advised that he had examined appellant only once and did
not offer him any treatment.
In a July 8, 1998 report, a physician whose signature is illegible reviewed a history that
appellant feared for his safety at work. Appellant was exposed to hazardous chemicals. The
report stated that he suffered from delusional disorder and occupational problems. It
recommended that appellant take time off work.
In a March 20, 2006 report, Ms. Harris-Offutt stated that appellant continued to suffer
from schizotypal personality disorder. She recommended that appellant remain out of work
because he was a danger to others in the work environment.

2

In a February 26, 2007 letter, appellant requested that the employing establishment
provide all benefits owed to him resulting from his disability retirement in February 2000, due to
his alleged employment-related schyzolypal personality disorder. In an October 13, 1999 report,
Dr. Plovsky reiterated the history that appellant was harassed after becoming a union
representative, called the “Unibomber” and assigned work duties outside his job description. He
diagnosed post-traumatic stress disorder. Dr. Plovsky opined that appellant was disabled as he
could not return to work in a toxic environment at the employing establishment. He stated that
nearly all of appellant’s symptoms had abated since being removed from such an environment.
By letter dated August 16, 2007, appellant requested reconsideration of the November 24,
1998 decision.
By decision dated April 28, 2008, the Office found that appellant’s letter requesting
reconsideration was dated August 16, 2007, more than one year after the November 24, 1998
merit decision and was untimely. It further found that appellant did not submit any evidence
establishing clear evidence of error in the Office’s denial of his emotional condition claim.
On May 2, 2008 appellant appealed the April 28, 2008 decision to the Board and
requested an oral argument. In a January 30, 2009 order, the Board set aside the April 28, 2008
decision and remanded the case to the Office for proper assemblage and construction of the case
record.1 The Board found that the case record did not contain relevant medical evidence
mentioned in the April 28, 2008 decision or a copy of the November 24, 1998 Office decision.
Following remand, appellant submitted Ms. Harris-Offutt’s records dated August 25,
1998 to March 22, 2002. This evidence addressed his emotional condition. In an October 29,
1999 report, Ms. Harris-Offutt reviewed a history that appellant was harassed by the employing
establishment after he became a union representative.
Appellant was verbally and
psychologically abused. Ms. Harris-Offutt reiterated her prior diagnosis of post-traumatic stress.
Appellant resubmitted a July 8, 1998 progress note from Prime Care of Greensboro. A
July 8, 1998 progress note from The Moses H. Cone Memorial Hospital stated that he was
paranoid and delusional. Progress notes dated August 4 and 24, 1998 from the Bland Clinic
indicated that appellant underwent psychological evaluation. Documents dated October 4, 1999
to July 20, 2007, addressed his disability retirement.
By decision dated March 20, 2009, the Office found that appellant’s August 16, 2007
letter requesting reconsideration was dated more than one year after the November 24, 1998
merit decision and was untimely. It also found that appellant did not submit any evidence
establishing clear evidence of error in the Office’s denial of his emotional condition claim.2

1

Docket No. 08-1558 (issued January 30, 2009).

2

In an August 19, 2009 order, the Board denied appellant’s request for oral argument in the present appeal.
Docket No. 09-1214 (issued August 19, 2009).

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence

3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

4

of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
November 24, 1998 merit decision. In implementing the one-year time limitation, the Office’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.14
In the November 24, 1998 decision, the Office found that appellant did not sustain an
emotional condition in the performance of duty as he failed to establish any compensable
employment factors that caused his emotional condition. The appeal rights attached to the
decision notified appellant of his rights to request reconsideration and submit additional evidence
to the Office within one year of the decision. As appellant’s August 16, 2007 letter requesting
reconsideration was made more than one year after the Office’s November 24, 1998 merit
decision, the Board finds that it was not timely filed.
The Board finds that appellant has not submitted evidence establishing clear evidence of
error by the Office in finding that he did not establish any compensable employment factors that
caused or contributed to his emotional condition. Appellant did not submit the type of positive,
precise and explicit evidence or argument which manifests on its face that the Office committed
an error. Dr. Plovsky’s December 22, 1998 and October 13, 1999 reports stated that he was
harassed by the employing establishment as he was belittled by his supervisors, required to work
outside his job description by cleaning up chemical spills, accused of being the “Unibomber,”
and denied permission to attend school and to take an examination. He also stated that the
employing establishment discriminated against appellant based on his race. However, the Office
did not accept that appellant established his allegations as factual. This impacts on the medical
history as reported by Dr. Plovsky. The July 8, 1998 report of a physician whose signature is
illegible stated that appellant feared for his safety at work as he was exposed to hazardous
chemicals. It also stated that appellant suffered from delusional disorder and occupational
problems which required time off work. Again, the Office has not accepted an exposure to
chemicals as factually established. Appellant has only made a general allegation of work-related
stress without specifying any particular incident or event. Moreover, the fear of future injury is
not a basis for an award of benefits.15 The Board finds that this evidence does not shift the
weight of the evidence in favor of appellant’s claim or raise a substantial question as to the
correctness of the Office’s November 24, 1998 decision denying his claim.
Dr. Plovsky’s November 4, 1998 note stated that he only examined appellant once and
did not offer him any treatment. This evidence is not sufficient to shift the weight of the
13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

Larry L. Litton, 44 ECAB 243 (1992).

15

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

5

evidence in favor of appellant or raise a substantial question as to the correctness of the Office’s
decision. Dr. Plovsky failed to identify any specific compensable employment factors alleged by
appellant to have caused his emotional condition.16 Further, he did not opine that appellant
sustained an emotional condition causally related to a compensable employment factor.
The October 29, 1999 report of Ms. Harris-Offutt, a certified registered nurse, noted the
alleged employment factors and offered an opinion on causal relationship. The Board finds that
the report is of no probative medical value as a nurse is not considered to be a physician as
defined by the Act.17 The Board finds, therefore, that Ms. Harris-Offutt’s report does not raise a
substantial question as to the correctness of the Office’s decision and, therefore, does not
establish clear evidence of error. Her other reports were previously of record and reviewed by
the Office. Material which is repetitious or duplicative of that already in the case record is of no
evidentiary value in establishing a claim.18 The Board finds, therefore, that this material does not
establish clear evidence of error in the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

16

See Dean D. Beets, 43 ECAB 1153 (1992) (to establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office).
17

See 5 U.S.C. § 8101(2); see also G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

18

Lawrence Ellis Myers, 27 ECAB 262 (1976).

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ORDER
IT IS HEREBY ORDERED THAT the March 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1158
Issued: January 29, 2009

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 March 11, 2008 appellant timely appealed a February 5, 2008 merit decision of the
Office of Workers’ Compensation Programs denying modification of the termination of his
entitlement to wage-loss and schedule award benefits effective July 9, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits,
effective July 9, 2007, pursuant to 5 U.S.C. § 8106(c)(2) on the grounds that he refused an offer
of suitable work.
FACTUAL HISTORY
The case was previously before the Board. By decision dated September 12, 2002, the
Board determined a conflict in the medical opinion evidence existed between appellant’s treating
physician, Dr. Emilio Oribe, a Board-certified neurologist, and an Office medical adviser

regarding the causal relationship of appellant’s herniated cervical intervertebral discs.1
Accordingly, the Board set aside the Office’s December 10, 2001 decision and remanded the
case for referral to an impartial medical specialist to resolve the conflict. The facts and the
circumstances of the case as set forth in the Board’s prior decision and order are incorporated
herein. The facts relevant to the present appeal are set forth.
Following additional medical development, the Office accepted appellant’s claim for
herniated cervical discs at C3-4 and C4-5. It also accepted a recurrence of disability of
August 28, 2005, in which appellant was found to be partially disabled for work for four hours a
day in his modified job as a letter carrier. The Office paid appropriate medical and partial
disability compensation benefits.
Dr. Oribe submitted treatment records dated February 2 and June 26, 2006, noting that
appellant could only work four hours a day with restrictions. He recommended that appellant
take a 20-minute break every 2 hours of driving to allow time to rest and perform exercises to
prevent exacerbation of his neck and shoulder pains. Dr. Oribe advised that appellant continue
delivering small packages of less than 40 pounds each, limit bending (i.e., to less than
90 degrees), turning (i.e., less than 45 degrees) and pushing/pulling (i.e., less than 40 pounds)
and avoid repetitive movements such as racking letters. Physical therapy notes were also
provided.2
In a March 27, 2006 report, Dr. Hubert Pearlman, a Board-certified orthopedic surgeon
and Office referral physician, opined that appellant had residuals from the cervical disc
herniations arising from his job duties. Appellant had objective findings of mild muscle spasms
and tenderness and complaints of pain with all ranges of motion. Dr. Pearlman indicated that
appellant’s computerized tomography (CT) scan revealed herniated discs with no evidence of
preexisting degeneration. He advised that appellant’s delay in recovery might be due to lack of
benefit from physical therapy and recommended consultation with a pain management specialist.
Dr. Pearlman opined that, while appellant’s prognosis was undetermined, he was capable of
returning to work full time as a mail carrier with 15- to 20-minute breaks every 4 hours from
driving and lifting no greater than 40 pounds.
On September 13, 2006 the Office informed appellant that he was being sent for a referee
examination with Dr. David Zitner, a Board-certified orthopedic surgeon, on October 16, 2006.
It found that Dr. Pearlman’s opinion conflicted with his physician’s opinion regarding his
diagnosis and whether he had continuing disability due to the accepted work injury. Dr. Zitner
was provided with a statement of accepted facts, a list of questions and appellant’s medical file.
In an October 19, 2006 report, Dr. Zitner reviewed the history of injury and appellant’s
medical record. He diagnosed degenerative disc disease of the cervical spine with a left-sided
disc herniation at C3-4. Dr. Zitner noted that, while the disc herniation and foraminal stenosis
1

Docket No. 02-894 (issued September 12, 2002).

2

The evidence reflects that appellant received treatment from Central Nassau Guidance and Counseling Services,
Inc., in September and October 2005. In a February 16, 2006 letter, Martin Merget advised that appellant was fit to
return to work as of February 6, 2006 and that he continued to be treated. No other reports are of record.

2

were on the left side, appellant’s complaints of pain were on the right side. He stated that a CT
scan revealed a central disc herniation at C4-5 but caused no impression on the spinal cord or
nerves. Dr. Zitner advised that, while appellant had been treated by a neurologist, he was never
found to have any neurologic deficit or had ever undergone an electromyogram. He opined that
there was no medical evidence that appellant’s degenerative disc disease or disc herniations were
work related and that he had not seen any reports that patients with appellant’s particular job or
similar job had a higher incidence of this condition. Dr. Zitner advised appellant’s symptoms
were mild and he required no ongoing medical treatment or medication. He explained that the
physical examination was essentially normal except for voluntary restrictions in appellant’s
motion and subjective changes in sensation. Dr. Zitner noted x-rays revealed mild degenerative
changes and the CT scan from six years ago revealed degenerative changes with one level of disc
herniation on the opposite side of his symptoms and a small central disc herniation at the C4-5
level. He opined that the degenerative changes were not work related that appellant’s condition
was not work related and that appellant had no significant disability. Dr. Zitner further opined
that appellant was capable of performing his regular duty as a full-time letter carrier.
In a March 8, 2007 letter, the Office advised Dr. Zitner that it had accepted appellant’s
cervical disc herniations as employment related and requested him to address whether he had any
work restrictions due to the accepted condition and whether further medical treatment was
necessary. In a March 13, 2007 work capacity evaluation form, Dr. Zitner found that appellant
was capable of performing his regular-duty job as a letter carrier full time with restrictions.
Limitations included reaching, reaching above the shoulder, pushing, pulling, lifting and
climbing. Dr. Zitner advised that appellant could reach and climb six hours a day, could push,
pull, reach above the shoulder and lift for four hours a day and push/pull 30 pounds and lift
20 pounds. He further advised that appellant required 30-minute breaks every 4 hours.
Dr. Zitner opined no further medical treatment was required. On March 27, 2007 the Office
asked Dr. Zitner if appellant could perform his regular duties and if he required further medical
treatment. In a report received April 5, 2007, Dr. Zitner advised that appellant could perform his
regular duties within the restrictions that he set forth on March 13, 2007. He amended the
March 13, 2007 report to note appellant’s weight restrictions. Dr. Zitner advised that appellant
required no further medical treatment due to his current condition.
Dr. Oribe submitted additional treatment records noting that appellant could only work
four hours a day within his restrictions.
On May 10, 2007 the employing establishment offered appellant a full-time modified
letter carrier position effective May 14, 2007. The position required appellant to lift no more
than 20 pounds for four hours a day, reach above the shoulders for 4 hours a day and push/pull
no more than 30 pounds for four hours a day. The job offer included a 30-minute break every
4 hours. Appellant declined the position on May 12, 2007 on the basis of his work-related
disability.
In a May 16, 2007 letter, the Office advised appellant that the offered position was
suitable work within his medical restrictions based on the reports of Dr. Zitner and the
employing establishment confirmed that the position remained available. It afforded him 30
days to either accept the offer or provide good cause for refusal. The Office advised appellant
that he would lose his entitlement to wage-loss compensation if he refused suitable work.

3

In response, appellant submitted copies of reports from Dr. Oribe, statements dated
April 22 and May 19, 2007 and an April 26, 2007 letter from his attorney. He contended that he
had residuals of his work injury and was unable to perform his regular duties full time.
Appellant asserted he was productive in his current position of four hours a day with limitations
and there was no need to call in sick or have a recurrence. He also submitted a statement from
his wife, a nurse.
Appellant’s attorney argued that the proposed termination of appellant’s benefits was
procedurally improper and not supported by the medical evidence. He contended that the
Office’s acceptance of a displacement of cervical discs was unduly narrow as an Office referral
physician, Dr. Donald Goldman, found in January 2003 that the discs were fully herniated at
C3-4 with left foraminal stenosis and at C4-5 as well. Dr. Goldman stated that appellant’s
condition had not resolved and that he was limited on his capacity for work. He noted that
Dr. Zitner confirmed this diagnosis in October 2006, but failed to acknowledge that the condition
was employment related. On June 13, 2007 counsel argued that, since Dr. Zitner’s reports
predated the May 10, 2007 job offer, the physician’s opinion was of no value in evaluating
appellant’s current medical ability to perform the job duties offered. He contended that the
reliance on Dr. Zitner’s opinion was improper.
On June 14, 2007 the employing establishment verified that the offered position remained
available.
In a June 18, 2007 letter, the Office informed appellant that his reasons for refusing the
position were unacceptable. It provided him 15 days in which to accept the position or his
entitlement to wage-loss and schedule award benefits would be. On July 6, 2007 the employing
establishment verified that the offered position remained available.
By decision dated July 9, 2007, the Office terminated appellant’s entitlement to
wage-loss compensation on the grounds that he refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2). It found that the weight of the medical evidence rested with Dr. Zitner’s reports.
On July 25, 2007 appellant filed a recurrence claim indicating that on July 17, 2007 his
four-hour-a-day limited-duty assignment was withdrawn. On August 6, 2007 the Office advised
him that, since his entitlement to wage-loss benefits was terminated as of July 9, 2007 for
refusing suitable work, he could not file a recurrence for disability.
On November 28, 2007 counsel requested reconsideration. He contended that the
opinions of Dr. Pearlman and Dr. Zitner were not valid as the Office did not acknowledge that
appellant’s herniated discs were employment related. Counsel argued that the Office engaged in
doctor shopping as it was unreasonable for the Office to obtain additional medical evaluation as
evidence of record supported “permanent and continued work-related disability.”
In a November 1, 2007 report, Dr. Oribe reviewed appellant’s history, noted diagnoses
and set forth his reasons as to why he disagreed with Dr. Zitner’s reports. He argued that
Dr. Zitner’s opinions and recommendations did not fully reflect the record and medical literature.
Dr. Oribe opined that appellant was unable to work full time and that any attempt to return to
work would likely cause a recurrence of disability.

4

By decision dated February 5, 2008, the Office denied modification of its July 9, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation, including cases in which the Office terminates compensation
under section 8106(c) for refusal to accept suitable work.3 Section 8106(c)(2) of the Federal
Employees’ Compensation Act, which 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, the Office must show that
the work offered was suitable and must inform appellant of the consequences of refusal to accept
such employment.5 Section 8106(c) 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
Office regulations provide that in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.7 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.8 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.9
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.10

3

Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

6

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

7

20 C.F.R. § 10.500(b).

8

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

9

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).

5

Section 10.516 of the Code of Federal Regulations states that the Office will advise the
employee that the work offered is suitable and provide 30 days for the employee to accept the
job or present any reasons to counter the Office’s finding of suitability.11 Thus, before
terminating compensation, the Office must review the employee’s proffered reasons for refusing
or neglecting to work.12 If the employee presents such reasons and the Office finds them
unreasonable, the Office will offer the employee an additional 15 days to accept the job without
penalty.13
Section 8123(a) of the Act provides in pertinent part: If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.14 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.15
ANALYSIS
The Office accepted the conditions of herniated cervical disc at C3-4 and C4-5 and
displacement of cervical intervertebral discs without myelopathy and paid appropriate
compensation for periods of disability. It terminated appellant’s entitlement to wage-loss
compensation effective July 9, 2007 on the grounds that he refused an offer of suitable work.
The Board finds that the Office met its burden of establishing that the work offered was suitable
and that appellant failed to establish that his refusal to accept the job offer was justified.
The Office properly determined that that a conflicts in medical opinion arose regarding
appellant’s ability to work between Dr. Oribe, a treating physician, who opined that appellant
could only work four hours within restrictions, and Dr. Pearlman, an Office referral physician,
who opined that appellant could work full time within restrictions. The Office referred appellant
to Dr. Zitner for an impartial medical examination.
In an October 19, 2006 report, Dr. Zitner opined that appellant had degenerative disc
disease and herniation in the cervical spine. He opined that appellant’s symptoms were
relatively mild and required no treatment. Dr. Zitner determined that appellant had no significant
disability and could work full time. He initially opined that appellant’s degenerative disc disease
and disc herniations were not work related and that appellant was capable of performing his
regular duty as a full-time letter carrier. However, Dr. Zitner subsequently acknowledged that
11

20 C.F.R. § 10.516.

12

See Sandra K. Cummings, 54 ECAB 493 (2003); see also Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992) and 20 C.F.R. § 10.516, which codifies the procedures set forth in Moore.
13

Id.

14

5 U.S.C. § 8123(a).

15

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

6

appellant’s conditions were work related in a March 13, 2007 work capacity evaluation form and
his report received on April 5, 2007. He advised that residuals of appellant’s accepted cervical
disc herniations did not preclude him from working modified duty for eight hours a day, in a
limited capacity with specified restrictions on reaching, reaching above the shoulder, pushing,
pulling, lifting and climbing for four hours a day. Dr. Zitner noted specific weight limits for
different activities. He found no further medical treatment was required. Dr. Zitner reiterated
his determination that appellant could work full time within restrictions in a supplemental report
received on April 5, 2007.16 He explained his opinion on work restrictions by noting that,
although appellant had residuals of the accepted condition, he did not require any further medical
treatment. The Board finds that the opinion of Dr. Zitner is entitled to the special weight of the
medical evidence because it is sufficiently well rationalized and based on proper factual
background. The Board notes that the work requirements of the modified letter carrier position
are within the work restrictions specified by Dr. Zitner.17
The Board finds that the Office has established that the modified letter carrier position
offered by the employing establishment was suitable at the time it was offered. As noted once
the Office has established that a particular position is suitable, an employee who refuses or
neglects to work after suitable work has been offered to him has the burden of showing that such
refusal to work was justified.18 The Board has carefully reviewed the medical evidence and
appellant’s arguments in support of his refusal of the modified letter carrier position and notes
that they are not sufficient to support his refusal of the position.
Appellant contended that he could not work eight hours a day and submitted reports from
Dr. Oribe and a statement from his wife, a nurse. The issue of whether he is able to perform an
offered position is primarily a medical one and must be resolved by probative medical
evidence.19 The Board finds that the opinion of Dr. Oribe, who was on one side of the conflict in
medical opinion, does not overcome the special weight of the medical evidence given to the
opinion of Dr. Zitner.20 Dr. Oribe did not provide any opinion with respect to appellant’s ability
to perform the offered position. Appellant also submitted a letter from his wife, a nurse. The
Board has held that the reports of a nurse are not considered medical opinion because they are
not physicians as defined by the Act.21 Thus, this letter cannot be considered medical evidence.
16

It was proper for the Office to secure supplemental reports from Dr. Zitner as the Board has held that, when the
Office obtains an opinion from an impartial medical specialist for the purpose of resolving a conflict in the medical
evidence and the specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the defect. V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008).
17

The position required appellant to lift no more than 20 pounds for four hours a day, reach above the shoulders
for four hours a day and push/pull no more than 30 pounds for four hours a day. The job offer additionally included
30-minute break every 4 hours.
18

Brian O. Crane, 56 ECAB 713 (2005).

19

Kathy E. Murray, 55 ECAB 288, 290 (2004).

20

See Jaja K. Asaramo, 55 ECAB 200, 205 (2004) (the additional report of the physician who had been on one
side of the conflict resolved by the impartial medical examiner was insufficient to overcome the weight accorded to
the opinion of the impartial medical examiner or create a new conflict).
21

5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369 (1998).

7

The weight of the medical opinion evidence establishes that appellant is capable of performing
the duties of the offered position.
Appellant’s other contentions are without merit. He argued that the termination of his
wage-loss benefits was based on an erroneous view of the medical evidence. Appellant cites to
medical evidence from 2003 from Dr. Goldman who concluded that appellant had herniated
discs at C4-5 and at C3-4 with left foraminal stenosis and argued that his conditions have not
resolved and he could not perform the listed work duties. However, the medical evidence, as
noted, germane to appellant’s current medical status at the time of the suitable work
determination established that he was capable of performing the duties of the offered position.
Dr. Zitner acknowledged appellant’s accepted cornered disc conditions in his supplemental
reports but reiterated that he could work full time within prescribed limitations that are consistent
with the offered position. Appellant has not shown that his refusal to work was justified. The
weight of the medical evidence continues to support that appellant’s accepted conditions did not
prevent him from performing the job he was offered on May 10, 2007.
The medical reports received subsequent to the evaluation by Dr. Zitner are insufficient
to either overcome his opinion or create a new conflict in the medical evidence. On
November 1, 2007 Dr. Oribe repeated his opinion that appellant was only able to work four
hours a day with limitations and argued that Dr. Zitner’s opinion did not fully reflect the record
or medical literature. As noted, he was on one side of the conflict of medical opinion regarding
appellant’s ability to work and he offered no new rationale for his stated conditions.22
Dr. Oribe’s report is insufficient to outweigh the well-rationalized medical opinion assessment
provided by Dr. Zitner or to create a new medical conflict.23 Furthermore, he did not provide
any opinion with respect to appellant’s ability to perform the offered position. Nor did Dr. Oribe
provide any findings or rationale to support that appellant would have been unable to perform the
limited-duty position during the time period it was offered and available to him. Following the
termination of his weight benefits, appellant has not established that the offered position was
outside his physical recommendations. The Board finds that appellant did not meet his burden of
proof to show that his refusal to accept suitable work was justified.
Appellant also contended that the Office was “doctor shopping” when it obtained
additional medical evaluations since the medical evidence supported “permanent and continued
work-related disability.” The statue and implementing federal regulations provides the Office
with the authority to develop the medical evidence as it deems necessary.24 There is no evidence
showing that the Office acted unreasonably in developing the medical evidence regarding
appellant’s capacity for work. Appellant’s attorney further contends that the job duties in the
22

See Dorothy Sidwell, 41 ECAB 857 (1990) (The Board has held that a doctor on one side of conflict in medical
opinion that is resolved cannot come back and create a new conflict without submitting new rationale or medical
evidence to support his opinion).
23

Id.

24

See 5 U.S.C. § 8123(a); Lynn C. Huber, 54 ECAB 281 (2002) (section 8123(a) authorizes the Office to require
an employee who claims compensation to undergo a physical examination as it deems necessary; the determination
of the need for an examination, the choice of locale and the choice of medical examiners are matters within the
province and discretion of the Office).

8

May 10, 2007 job offer should be the same as those appellant previously performed as he is older
and his herniated discs were not surgically repaired. However, appellant’s ability to work is a
medical issue and the medical evidence establishes that he has the ability to perform the duties of
the offered position.
The Board finds that appellant did not establish that his refusal to accept the position was
justified.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
disability compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment effective
July 9, 2007 and that appellant did not, thereafter, establish that his refusal of suitable work was
justified.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated February 5, 2008 and July 9, 2007 are affirmed.
Issued: January 29, 2009
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

9