United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
WILLIAM J. HUGHES TECHNICAL CENTER,
Atlantic City, NJ, Employer
__________________________________________

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

Docket No. 09-716
Issued: November 12, 2009

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant, through his attorney, filed a timely appeal from the
March 17, September 5 and November 24, 2008 merit decisions of the Office of Workers’
Compensation Programs denying authorization for surgery and expansion of his claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for surgical
authorization; and (2) whether he has established that his current condition of degenerative disc
disease of the spine is causally related to his accepted work injuries.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board affirmed
an Office finding that appellant was not entitled to a schedule award for the left leg but found

that the case was not in posture for decision regarding the extent of any permanent impairment of
the right leg.1 The findings of fact and conclusions of law from the prior decision are hereby
incorporated by reference.
On August 17, 2004 Dr. Fernando Delasotta, a Board-certified neurosurgeon,
recommended a three-level posterior lumbar interbody surgery with instrumented arthodesis.2
On August 26, 2004 he attributed appellant’s current condition and need for surgery “to both the
work-related injuries of June of 1995 and May of 1997 in which he suffered low back injury.”
Dr. Delasotta asserted that appellant’s “condition has progressed as a result of the injuries in
which there has been accelerated degenerative changes in the lumbar spine now necessitating the
need for surgery.”
An Office medical adviser reviewed the case record on September 30, 2004. He noted
that the accepted condition was a soft tissue injury of the lower back muscles and ligaments. The
medical adviser asserted that there was “absolutely no relationship whatsoever between the soft
tissue injuries resulting in a lumbar sprain and a diagnosis of degenerative disc disease with a
request for a lumbar spinal fusion.” He concluded that the requested surgery was not casually
related to the accepted work injury.
In a report dated February 21, 2005, Dr. Delasotta related that absent the work injury he
did not believe that appellant would have such severe pathology. On April 6, 2005 the Office
informed appellant’s attorney that the medical evidence was currently insufficient to support that
his degenerative back condition and need for surgery were causally related to his injuries. It
noted that Dr. Delasotta appeared to be unaware that in 1995 appellant was diagnosed with
severe preexisting degenerative disc disease.
On May 3, 2005 the Office referred appellant to Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for a second opinion evaluation. On June 7, 2005 Dr. Stark diagnosed
cervical and lumbar degenerative disc disease. He opined that there was “no connection between
[appellant’s] condition of multiple collapsed dis[c]s and foraminal stenosis to his 1995 and 1997
work-related accidents.” Dr. Stark found that lumbar surgery was appropriate but not related to
his preexisting degenerative disc disease. He noted that appellant’s degenerative disease had not
been accelerated or aggravated by the accepted injuries.

1

Docket No. 02-2065 (issued February 7, 2003). The Office accepted that appellant sustained a lumbosacral
sprain and right knee derangement on June 1, 1995, assigned file number xxxxxx701. Appellant underwent an
arthroscopic debridement and partial synovectomy on January 30, 1996. The Office further accepted that he
sustained a sprain of the neck, shoulder and right knee and a right knee contusion on May 8, 1997, assigned file
number xxxxxx543. Appellant underwent a partial medial meniscectomy on July 21, 1997.
2

By decision dated December 15, 2003, a hearing representative vacated the June 23, 2003 decision and
remanded the case for the Office to determine whether appellant had more than 37 percent right lower extremity
impairment. On February 13, 2004 the Office found that he had no more than 37 percent right lower extremity
impairment. By decision dated February 1, 2005, a hearing representative affirmed the February 13, 2004 decision.
She instructed the Office upon return of the case record to determine whether appellant’s low back condition was
due to his accepted employment injury and whether surgery should be authorized. On April 6, 2005 the Office
denied appellant’s request for further review of the merits of his claim under 5 U.S.C. § 8128.

2

By decision dated June 27, 2005, the Office denied appellant’s request to expand
acceptance of his clam to include additional spinal conditions and authorization for surgery.3
In 2006 Dr. Delasotta again requested authorization to perform a posterior lumbar
interbody fusion at L3-4, L4-5 and L5-S1. On December 26, 2006 an Office medical adviser
asserted that the employment-related diagnosis of lumbosacral strain should not require spinal
surgery a decade later.
On April 12, 2007 the Office again referred appellant to Dr. Stark for a second opinion
examination. In a report dated April 24, 2007, Dr. Stark found no objective evidence that
appellant had continuing residuals of the accepted conditions of right knee derangement and
lumbosacral strain/sprain. He diagnosed degenerative lumbar joint disease and discogenic
disease unrelated to the June 1, 1995 work injury. Dr. Stark further found that the surgery for
appellant’s degenerative disc disease was unrelated to his 1995 work injury.
On December 19, 2007 an Office medical adviser reviewed the medical evidence and
noted that if appellant’s back injury caused an aggravation of his underlying degenerative disc
disease surgery could be authorized. He recommended an additional medical report from the
attending physician describing how conservative care failed necessitating surgery.
On February 13, 2008 the Office referred appellant to Dr. George Glenn, a Boardcertified orthopedic surgeon, for an impartial medical examination regarding the causal
relationship between appellant’s current back condition and his work injury and the need for
surgery. On February 26, 2008 Dr. Glenn discussed appellant’s history of work injuries and
reviewed in detail the medical evidence of record. He found that appellant sustained only a
lumbosacral strain due to the June 1, 1995 employment injury and noted that an x-ray obtained at
that time showed severe preexisting degenerative disc disease. Dr. Glenn further noted that
following the May 8, 1997 incident the medical reports referenced a prior injury to the back and
current low back and right hip problems but did not provide a diagnosis. He found that the
medical record did not show that appellant received back treatment after the May 8, 1997 work
injury until six months prior to Dr. Delasotta’s evaluation in February 2004.4 Dr. Glenn stated:
“In summary then it is my opinion within reasonable medical probability that the
incident of June 1, 1995 caused a lumbosacral strain which basically is a soft
tissue injury this superimposed upon rather extensive preexisting lumbar
degenerative osteoarthritic changes with compression fracture.
“It is further obvious that [appellant] did not receive any specific treatment for his
lumbosacral sprain beyond the short time frame in June of 1995. It is further my
opinion that the changes depicted in the subsequent diagnostic studies including
the MRI [magnetic resonance imaging] scan, the myelogram, and CT
[computerized tomography] scan, and the discogram were as a result of the
natural progression of the preexisting degenerative process and that these findings
3

On August 24, 2005 the Office accepted that appellant sustained a recurrence of disability on February 2, 2004.

4

Appellant indicated that he received chiropractic treatment.

3

were not in any way caused by the incident. The[y] may have been temporarily
aggravated by the incident, but the aggravation factor in my opinion promptly
resolved. It is furthermore my opinion, again, within reasonable medical
probability that the preexisting process was not in any way accelerated by the
incident of June 1, 1995.”
Dr. Glenn noted that appellant should have a second opinion before having surgery and
again asserted that the “work[-]related injury of June 1, 1995 is in no way the proximate cause of
the current condition which now prompts the recommendation for surgery by Dr. Delasotta. In
actuality [his] actual physical findings are rather meager.”
By decision dated March 17, 2008, the Office denied appellant’s request for authorization
for back surgery.5 On March 24, 2008 appellant’s attorney requested an oral hearing.6 At the
hearing, held on July 15, 2008, counsel argued that Dr. Glenn’s opinion was equivocal and
required clarification.
On August 4, 2008 Dr. Delasotta disagreed with Dr. Glenn’s conclusion that appellant’s
June 1, 1995 injury was a soft tissue injury. He noted that it did not appear that Dr. Glenn
reviewed the 1995 x-ray. Dr. Delasotta opined that appellant’s degenerative disc disease would
not have progressed as much absent his work injury. He diagnosed lumbar radiculopathy, spinal
stenosis and discogenic pain syndrome. Dr. Delasotta explained the lack of back treatment after
his 1995 and 1997 injuries to his significant right knee injury and need for surgery. He noted
that appellant received chiropractic treatment for his back and further advised that he altered his
gait due to his knee pain “which would also be a contributing factor in the aggravation of his
lower back pain.” Dr. Delasotta stated:
“Another crucial fact in this case is that the patient did not complain of lower
back and leg pain until after the 1995 and 1997 incidents. Therefore, he was not
symptomatic as a result of his preexisting degenerative changes but became
symptomatic as a result of the injury. This fact is well documented in the past
records. The pain became frankly worse in 2004. Over the years his condition
has progressively worsened due to aggravation, exacerbation and acceleration of
the degenerative process to the point that he now has neurologic deficit.”
Dr. Delasotta discussed the July 25, 2008 findings on appellant’s CT scan and
recommended surgery.
By decision dated September 5, 2008, the hearing representative affirmed the March 17,
2008 decision. She found that his claim should not be expanded to include an aggravation of
degenerative disc disease or that the Office should authorize spinal surgery.
5

In a report dated March 26, 2008, Dr. Delasotta diagnosed lumbar and cervical radiculopathy and discogenic
pain syndrome due to appellant’s June 1995 and May 1998 work injuries.
6

By letter dated March 17, 2008, appellant’s attorney noted that the Office failed to inform him of the impartial
medical examination scheduled with Dr. Glenn and requested a copy of the report and a formal decision with appeal
rights. It appears from a review of the record, however, that the Office sent a copy of the February 13, 2008 referral
letter to the attorney.

4

On September 18, 2008 appellant, through his attorney, requested reconsideration. He
resubmitted the August 4, 2008 report from Dr. Delasotta and a July 25, 2008 myelogram. The
myelogram showed spondylosis and degenerative changes at many levels but no disc herniation.
By decision dated November 24, 2008, the Office denied modification of the
September 5, 2008 decision. It found that Dr. Delasotta’s opinion was insufficiently rationalized
to overcome the weight accorded the impartial medical examiner.7
LEGAL PRECEDENT -- ISSUE 1
Where appellant claims that a condition not accepted or approved by the Office was due
to his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.8
Causal relationship is a medical issue, and the medical evidence generally required to establish
causal relationship is rationalized medical opinion evidence.9 Rationalized medical opinion
evidence is medical evidence, which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the claimant,11 must be one of reasonable medical certainty12
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.13
Section 8123(a) of the Federal Employees’ Compensation Act14 provides that, 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.15 The implementing regulations state 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, the Office shall appoint a third physician to make an

7

The Office used clear evidence of error language in its decision; however, appellant’s request for
reconsideration was timely. However, it weighed the evidence of record and performed a merit review;
consequently, any error is harmless.
8

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

9

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

10

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

11

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

12

John W. Montoya, supra note 9.

13

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

14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8123(a).

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examination. This is called a referee examination and the Office will select a physician who is
qualified in the appropriate specialty and who has no prior connection with the case.16
When 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.17
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Act provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree of the period of disability or aid in lessening the amount of monthly
compensation.18 In interpreting this section of the Act, the Board has recognized that the Office
has broad discretion in approving services provided under section 8103, with the only limitation
on the Office’s authority being that of reasonableness.19 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.20 In order to be entitled to reimbursement for medical expenses, a claimant must
establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury.21 Proof of causal relationship must include supporting rationalized medical
evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence to show
that the requested procedure is for a condition causally related to the employment injury and that
it is medically warranted. Both of these criteria must be met in order for the Office to authorize
payment.22
In situations where there are opposing medical reports 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.23

16

20 C.F.R. § 10.321.

17

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

18

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

19

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

20

Claudia L. Yantis, 48 ECAB 495 (1997).

21

Cathy B. Mullin, 51 ECAB 331 (2000).

22

Id.

23

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

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ANALYSIS -- ISSUES 1 & 2
The Office accepted that appellant sustained lumbosacral sprain and derangement of the
right knee due to a June 1, 1995 work injury and a right knee contusion and sprain of the neck,
right knee and right shoulder due to an injury on May 8, 1997. On August 17, 2004
Dr. Delasotta, his attending physician, recommended a posterior lumbar interbody surgery at
L3-4, L4-5 and L5-S1. He opined that appellant’s June 1995 and May 1997 work injuries
“accelerated degenerative changes in the lumbar spine now necessitating the need for surgery.”
In contrast Dr. Stark, an Office referral physician, asserted in reports dated June 7, 2005 and
April 24, 2007 that appellant’s degenerative disc disease of the lumbar spine was unrelated to the
accepted work injuries. He further attributed the need for surgery to a progression of the
nonemployment-related preexisting degenerative disc disease. The Office properly determined
that a conflict existed between Dr. Delasotta and Dr. Stark regarding whether his current back
condition was due to his accepted work injury and whether the requested surgery should be
authorized as employment related. It referred appellant to Dr. Glenn for resolution of the
conflict.
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.24 The Board finds that the opinion of Dr. Glenn, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Glenn accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions
about appellant’s condition which comported with his findings.25 In a report dated February 26,
2008, he reviewed the medical evidence of record, including the results of diagnostic studies.
Dr. Glenn noted that x-rays taken at the time of appellant’s June 1, 1995 work injury revealed
severe preexisting degenerative disc disease. He also indicated that the medical record did not
establish that appellant received medical treatment for his lumbosacral sprain except for a brief
period in June 1995. Dr. Glenn further noted that appellant did not receive specific treatment for
his back following the May 1997 work injury. He asserted that the changes on diagnostic studies
over the years revealed a natural progression of appellant’s preexisting degenerative disc disease.
Dr. Glenn concluded that the June 1995 employment injury caused a temporary aggravation of
the preexisting degenerative disc disease which “promptly resolved” and that the “preexisting
process was not in any way accelerated by the incident of June 1, 1995.” He provided rationale
for his opinion by finding that the diagnostic studies over the years revealed a natural
progression of appellant’s preexisting degenerative disc disease. Dr. Glenn further concluded
that any need for surgery was unrelated to the accepted work injuries. As his report is detailed,
well rationalized and based on a proper factual background, his opinion is entitled to the special
weight accorded an impartial medical examiner and establishes that appellant’s current back
condition and need for surgery is not related to his accepted work injury.

24

Id.

25

Manuel Gill, 52 ECAB 282 (2001).

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In a report dated August 4, 2008, Dr. Delasotta disagreed with Dr. Glenn’s conclusion
that appellant sustained only a soft tissue injury on June 1, 1995. He attributed the extent of the
progression of his degenerative disc disease to his work injury. Dr. Delasotta explained that
appellant did not receive extensive back treatment after his 1995 and 1997 work injuries because
of the need for treatment and surgery on his right knee. He found that appellant altered his gait
due to his knee injury which also aggravated his back pain. Dr. Delasotta noted that appellant
did not complain about radicular pain and low back pain until after his work injury and thus
“became symptomatic as a result of the injury.” However, a medical opinion that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after it is insufficient, without supporting rationale, to establish causal
relationship.26 Further, Dr. Delasotta was on one side of the conflict resolved by Dr. Glenn. A
medical report from a physician on one side of a conflict resolved by an impartial medical
examiner is generally insufficient to overcome the weight accorded the report of an impartial
medical examiner or create a new conflict.27
On appeal appellant’s attorney contends that the Office medical adviser recommended
surgery before Dr. Glenn’s opinion. On December 19, 2007 an Office medical adviser found
that he may have sustained an employment-related aggravation of his underlying degenerative
disc disease. The Office properly developed the medical evidence to resolve this issue by
referring appellant to Dr. Stark for a second opinion examination and Dr. Glenn for an impartial
medical evaluation.
Counsel also contends on appeal that Dr. Glenn was not properly selected from the
Physician’s Desk Reference. He did not, however, timely raise this argument at the time of
Dr. Glenn’s selection as impartial medical examiner. If the counsel objected to the selection of
Dr. Glenn because the Office bypassed physicians in its referral, he should have noted his
objection at or near the time that he was informed of the appointment.28
Counsel further argues that Dr. Glenn’s report is not rationalized and that he does not
explain the nature of appellant’s preexisting back condition. He further contends that the
physician did not address whether the right knee injury aggravated appellant’s back condition
due to a change in his gait and noted physical findings consistent with radiculopathy. As
discussed, however, Dr. Glenn’s report is thorough, well rationalized and based on an accurate
factual and medical history; consequently, his report represents the weight of the medical
evidence. He found that appellant’s current back condition was the result of a progression of
preexisting degenerative disc disease unrelated to the accepted work injuries.
Counsel also contends that Dr. Delasotta found appellant’s lumbar radiculopathy and
progression of degeneration was employment related and that his right knee injury caused an
altered gait that aggravated his low back condition. He further noted that Dr. Delasotta reviewed
the July 25, 2008 myelogram and CT scan. As noted, however, Dr. Delasotta was on one side of
26

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

27

Jaja K. Asaramo, supra note 8; Michael Hughes, 52 ECAB 387 (2001).

28

See L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

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the conflict resolved by Dr. Glenn and thus his report is insufficient to overcome the weight
accorded the impartial medical examiner.29
CONCLUSION
The Board finds that the Office properly denied appellant’s request for surgical
authorization. The Board further finds that he has not established that his current back condition
is causally related to his accepted work injuries.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 24, September 5 and March 17, 2008 are affirmed.
Issued: November 12, 2009
Washington, DC

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

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

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

29

Id.

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

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

Docket No. 14-96
Issued: April 9, 2014

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 22, 2013 appellant filed a timely appeal from an August 5, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Because more than one year elapsed from the last merit decision dated
October 6, 1989 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
his case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.3

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008). For final adverse OWCP decisions issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e) (2009).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may
only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal, appellant argues that OWCP erred in terminating his compensation benefits
and that he sustained a traumatic brain injury as a result of his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. On October 27, 1982 the Board set aside
a June 15, 1982 OWCP hearing representative’s decision affirming a January 8, 1982 decision.4
In the January 8, 1982 decision, OWCP terminated appellant’s compensation, pursuant to
5 U.S.C. § 8106(c), on the grounds that he refused an offer of suitable work. The Board found
that OWCP failed to show that the work was suitable and remanded the case to OWCP for
further development. In the second appeal on June 11, 1984, the Board affirmed a November 10,
1983 OWCP decision terminating appellant’s compensation benefits effective
November 3, 1983.5 OWCP found that the medical evidence established that he no longer had
any residuals or disability due to his accepted March 21, 1969 employment injuries of head
trauma, postconcussion cervical trauma and cervical spine neuropathy. It also found that the
medical evidence was insufficient to establish that appellant’s psychiatric condition was causally
related to the accepted March 21, 1969 employment injury. On October 6, 1989 in a third
appeal, the Board affirmed OWCP’s merit decisions dated June 7 and November 21, 1988
denying modification on the issue of whether his psychiatric condition was causally related to the
accepted March 21, 1969 employment injury. The Board also affirmed a March 8, 1989 OWCP
nonmerit decision denying appellant’s request for reconsideration. On October 29, 2002 the
Board affirmed OWCP’s June 19, 2000 decision denying his request for reconsideration on the
grounds that it was untimely filed and failed to establish clear evidence of error. The facts and
circumstances surrounding the prior appeals are hereby incorporated by reference.6
In an April 20, 2013 letter, appellant requested reconsideration. He contended that
OWCP decisions were erroneous and wrongfully denied him wage-loss and medical benefits for
disability and residuals of his accepted March 21, 1969 employment injury. Appellant argued
that the Board failed to consider two decisions by the U.S. District Court or his Veterans
Administration outpatient clinic treatment for neuropsychological treatment. He alleged that his
quality of life was adversely impacted by his traumatic brain injury, chronic vestibular damage
and cervical spine neuropathy, which were due to the accepted March 21, 1969 employment
injury.

4

34 ECAB 144 (1982).

5

Docket No. 84-341 (issued June 11, 1984).

6

On March 21, 1969 appellant, then a 31-year-old mail handler, fell backwards over a mailbag and struck his
head on a pallet. OWCP accepted the claim for head trauma, postconcussion cervical trauma and cervical spine
neuropathy. By letter dated November 12, 1974, it placed appellant on the periodic rolls for temporary total
disability effective November 8, 1974.

2

Appellant submitted statements detailing the history of his claim. He also resubmitted
medical and factual evidence previously considered by OWCP, including an August 5, 1981
letter from a Dr. J. Mattes, a treating physician with the Veterans Administration Medical Center,
Bronx, NY and an August 6, 1981 letter addressed to a Dr. T.P. Naidu from the employing
establishment’s Chief, Medical Administration Service. In an August 5, 1981 Veterans Hospital
report, Dr. Mattes noted that appellant was being referred to Harlem Hospital for psychiatric
treatment.
The August 6, 1981 letter addressed to Dr. Naidu noted appellant’s diagnosis of major
depressive disorder and provided information regarding his psychiatric treatment.
By decision dated August 5, 2013, OWCP denied reconsideration on the grounds that
appellant’s request was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.8
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.9 OWCP’s regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in
20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on
the part of OWCP.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.11 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
7

20 C.F.R. § 10.607(a).

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011).
OWCP’s procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.5a.
11

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

12

See Leona N. Travis, 43 ECAB 227, 240 (1991).

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clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by OWCP 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 OWCP.15 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 OWCP’s decision.16
OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new
regulations provide that the date of the reconsideration request for timeliness purposes was
changed from the date the request was mailed to the date the request was received by OWCP.17
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
The most recent merit decision in this case was issued on October 6, 1989. OWCP received
appellant’s April 30, 2013 request for reconsideration on May 7, 2013; thus, the request was
outside the one-year time limit.18 Consequently, appellant must demonstrate clear evidence of
error by OWCP in denying his claim for compensation.19
The Board finds that the evidence submitted by appellant in support of his April 30, 2013
request for reconsideration does not raise a substantial question as to the correctness of OWCP’s
termination of his compensation benefits and the denial of his claim to include a psychiatric
condition as causally related to the accepted March 21, 1969 employment injury or prima facie
shift the weight of the evidence of record in his favor. Appellant resubmitted evidence
concerning treatment for his major depression. This evidence was previously considered by
OWCP in its prior decisions and does not establish that OWCP committed clear evidence of
error in terminating his compensation effective November 10, 1983 and denying his claim that
his psychiatric condition was causally related to the accepted March 21, 1969 employment
injury. Further, this evidence did not provide any opinion addressing whether the diagnosed
condition was causally related to the accepted March 21, 1969 employment-related injuries. The
13

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

14

See Leona N. Travis, supra note 12.

15

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

Leon D. Faidley, Jr., supra note 8.

17

20 C.F.R. § 10.607.

18

See supra note 10 at Chapter 2.1602.4 (October 2011). For decisions issued on or after August 29, 2011, there
is still a one-year time limit for requesting reconsideration. The one-year period begins on the date of the original
decision and the application for reconsideration must be received by OWCP within one year of the date of the
decision for which review is sought.
19

20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

4

Board finds that the medical reports resubmitted by appellant do not discharge his burden of
showing clear evidence of error.
Appellant argued that OWCP erred in the handling of his claim as he continues to have
residuals and disability due to his accepted March 21, 1969 employment injuries. He has not
provided any argument or evidence of sufficient probative value to shift the weight of the
evidence in his favor and raise a substantial question as to the correctness of OWCP’s
termination of his compensation benefits effective November 10, 1983 nor of the denial that his
psychiatric condition was caused by the accepted March 21, 1969 employment injuries.
Consequently, OWCP properly denied appellant’s reconsideration request as his request does not
establish clear evidence of error.
On appeal, appellant contends that OWCP erred in terminating his compensation benefits
as he continues to have residuals of his accepted employment injuries. He also contends that
OWCP erred that he sustained a traumatic brain injury as a result of the accepted March 21, 1969
employment injury. As discussed above, appellant failed to timely file a request for
reconsideration and failed to establish clear evidence of error. He submitted no evidence raising
a substantial question as to the correctness of OWCP’s termination of his compensation benefits
effective November 10, 1983 or denying expansion of his claim to include a psychiatric
condition.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2013 is affirmed.
Issued: April 9, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.G., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Carson, CO, Employer
_________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1588
Issued: August 20, 2013

Case Submitted on the Record

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

JURISDICTION
On July 13, 2012 appellant, through his representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) decisions dated January 18 and
June 21, 2012. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation based on
a retroactive loss of wage-earning capacity determination; (2) whether appellant met his burden
of proof to establish that he is entitled to compensation for wage loss from January 7, 2007 to
July 27, 2009; and (3) whether OWCP properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 29-year-old engineering equipment operator, injured his neck and upper
back in the performance of duty on December 30, 1982. He filed a claim for benefits on
January 3, 1983, which OWCP accepted for upper back and neck strain.
Appellant filed several additional claims which were accepted by OWCP. He sustained
injury on April 29, 1987, which OWCP accepted for a neck strain; a left knee injury on July 31,
2003, which it accepted for a meniscal tear; a facial injury on May 30, 2011, which it accepted
for foreign object in the eye, lacerations of the face, fractured teeth, dental caries and loss of
teeth; an occupational disease claim for cervical degenerative disc disease on September 12,
2008, accepted by OWCP, and a subsequent claim for aggravation of cervical degenerative disc
disease.
On July 26, 2006 Dr. Terry Struck, Board-certified in physical medicine and
rehabilitation and appellant’s treating physician, outlined work restrictions. He could return to
full-time work with intermittent lifting/carrying 0 to 10 pounds for no more than two-thirds of
the workday; limited lifting/carrying of 10 to 20 pounds for no more than one-third of the
workday; no lifting/carrying exceeding 20 pounds; no pushing/pulling exceeding 30 pounds for
no more than one and two-thirds of the workday; no pushing/pulling exceeding 20 pounds for no
more than two-thirds of the workday; sitting not exceeding six to eight hours per day, while
alternating positions; standing not exceeding four to six hours per day, while alternating
positions as needed; walking not exceeding four to six hours per day, while alternating positions
as needed; limited ladder climbing, kneeling, bending, stooping, twisting, and reaching above the
shoulder; intermittent stair climbing, simple hand grasping, fine hand manipulation and pinch
gripping. Dr. Struck indicated that any new job would require ergonomic evaluation.
On December 11, 2006 the employing establishment removed appellant from his position
as an engineering equipment operator for failure to perform the duties essential to his position.
The decision indicated that he had most recently been employed in a light-duty position, within
restrictions imposed by his treating physician, in July 2006. The employing establishment noted
that appellant’s treating physician had determined that he could no longer perform the essential
functions of his position. It indicated that there was no merit to appellant’s allegations that the
doctors’ reports had been misquoted and used against him and that he had been forced to apply
for disability retirement.
In a report dated January 16, 2007, Dr. Struck advised that appellant had been
experiencing an aggravation of his pain syndrome due to cold, snowy weather changes. She
related having constant neck, shoulder girdle, interscapular and temporomandibular joint (TMJ)
pain, with occipital headaches two to five hours per day. Dr. Struck noted that appellant had
been placed on disability as of December 14, 2006 and had left the employing establishment on
January 5, 2007. She indicated that appellant had been released from work and was free to begin
looking for jobs in the civilian market, which he had just started doing. Dr. Struck stated that he
could continue to function within his permanent limitations and restrictions.
In an April 4, 2008 report, Dr. Struck stated that appellant had undergone a de-escalation
of the previous flare-up of pain syndrome and noted that he would continue with his pain

2

management program. She advised that he could continue to function within his permanent
limitations and restrictions.
In a report dated May 8, 2008, Dr. Struck advised that appellant continued to have
constant neck, shoulder girdle, interscapular, and TMJ pain, with constant occipital headaches.
Appellant related that his right hand, thumb, and index fingers tingled and cramped periodically
into flexion especially during shoulder extension, rotation and abduction activities. The pain was
aggravated by immobility, stress, illnesses, lifting, driving, and static or repetitive as well as
reaching and overhead neck and upper extremity activities. Dr. Struck advised that appellant
described being medically and surgically stable since she last saw him without undergoing any
other diagnostic workup or treatment. Appellant had quit his job at the Holiday Inn because he
was required to set up tables and equipment for banquets which he was unable to do without
aggravating his pain syndrome. Dr. Struck stated that appellant was looking for a new job but
had not been able to find one within his limitations and restrictions.
In order to determine appellant’s current condition and his ability to work, OWCP
referred him to Dr. Hendrick J. Arnold, Board-certified in orthopedic surgery, for a second
opinion examination. In a report dated June 25, 2009, Dr. Arnold noted that appellant had
medically retired on January 6, 2007. He stated that appellant was capable of working only at a
sedentary job, with breaks for getting up and stretching every hour for 10 minutes. Dr. Arnold
restricted him from lifting no more than 10 pounds, with no overhead lifting, with only
intermittent standing and walking.
On July 27, 2009 appellant filed a Form CA-7 claim for benefits, claiming compensation
for wage loss from January 7, 2007 to July 27, 2009.
By letter to appellant dated September 15, 2010, OWCP noted that appellant had claimed
compensation for wage loss from January 7, 2007 to July 27, 2009. It advised appellant that he
could not receive both Office of Personnel Management (OPM) retirement benefits and OWCP
wage-loss compensation at the same time. OWCP noted that he was not totally disabled upon
retirement and that it required additional information regarding the private sector jobs at which
he worked after retirement. It asked him to submit information regarding any postretirement
jobs, including the dates he started and stopped working, hours per week and hourly wages.
By letter to his attorney dated September 15, 2010, appellant stated that he received
disability retirement from OPM on January 6, 2007. He worked at the Holiday Inn as a shuttle
driver within Dr. Struck’s limitations from March 2007 through May 2008 for 40 hours a week
at a salary of $8.50 per hour.
In a January 3, 2011 letter to OWCP, appellant asserted:
“In January 2007 I was put in the situation where OWCP denied my claim, and
Fort Carson refused to find me work. In March 2007 I accepted a job at the
Holiday Inn, 40 hours a week at $8.50 an hour. My job consisted of driving
people back and forth to the airport, I was expected to help people in and out of
the van, and lifting their bags within my restriction, (which) at that time was 30
pounds, inspecting the property three times per shift, each time I had to climb 3
flights of steps at the Holiday Inn and 3 flights of steps at the Holiday Express,

3

also set up banquet rooms and dumped the trash. At the beginning of the shift my
pain level would be between 3 and 4 and by the end of the shift my pain level
would be between 7 and 8, sometimes reaching 10. After each shift I would come
home with a bad headache and excruciating pain. I would have to use pain
killers, muscle relaxers and heat packs to get my pain level back down. As time
went on it was hard to get the pain level down. In April 2008 I had a hard time
raising my arm to help people in and out of the vehicle and lifting their bags.
Weeks later while I was returning from the airport I needed to get into the left
lane to go to the Holiday Inn and I couldn’t turn my neck to see the blind spot, I
almost had an accident, so that was when I decided I needed to find a new job
where I wouldn’t put myself or others in danger.”
By decision dated April 15, 2011, OWCP advised appellant that it was reducing his
monetary compensation effective April 15, 2011 because the medical evidence established that
he was no longer totally disabled due to the effects of his accepted cervical conditions. It found
that his actual earnings as a shuttle driver fairly and reasonably represented his wage-earning
capacity. It based its wage-earning capacity determination on appellant’s actual wages. It found
that the job of shuttle driver for the Holiday Inn in Capri Colorado Springs, with a weekly wage
of $341.14 per week and was effective on March 1, 2007.2
OWCP stated that appellant had demonstrated the ability to perform the duties of this job
for two months or more and found that the position was suitable because it was within the
restrictions outlined by Dr. Struck, his treating physician. The medical evidence did not indicate
that he stopped working at his shuttle driver job because he experienced a significant worsening
of his accepted condition. The record showed that he quit the shuttle driver job voluntarily due
to subjective complaints of pain. OWCP found that appellant had the capacity to earn wages as a
shuttle driver at the adjusted rate of $341.00 per week, in accordance with the factors outlined in
5 U.S.C. § 8115.3 It calculated that appellant’s compensation rate should be adjusted to
$1,549.00 using the Shadrick4 formula. OWCP noted that appellant’s salary as of January 6,
2007, the date he stopped working with the employing establishment, was $508.08 per week, that
his current, adjusted pay rate for his job on the date of injury was $811.92, and that appellant was
currently capable of earning $341.01 per week, the rate of a shuttle driver. It determined that he
had a 42 percent wage-earning capacity, an adjusted wage-earning capacity of $470.91, which
when multiplied by three fourths amounted to a compensation rate of $353.18. OWCP found
that his current adjusted compensation rate, per four-week period, was $863.00.
By decision dated May 24, 2011, OWCP paid compensation for wage loss for the period
January 7 to February 28, 2007 finding that appellant sustained a recurrence of total disability
due to the employing establishment’s inability to accommodate his work restrictions. With
2

OWCP found that appellant’s start date as a shuttle driver for Holiday Inn in Capri Colorado Springs was
March 1, 2007. It noted that the fact that he stated that he began working full time as a shuttle driver in March of
2007 and did not provide the exact date that he commenced this employment. March 1, 2007 was an appropriate
start date. OWCP found that he worked at this position until an unidentified date in May 2008.
3

5 U.S.C. § 8115.

4

Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.2 (April 1995).

4

regard to the period March 1, 2007 to July 27, 2009, it denied compensation for wage loss
because he demonstrated the ability to perform the duties of a shuttle driver during this period.
By letter dated June 7, 2011, appellant, through his attorney, requested an oral hearing,
which was held on October 14, 2011.
In a June 16, 2011 report, Dr. Jack L. Rook, Board-certified in physical medicine and
rehabilitation, noted that two years prior Dr. Arnold had opined that appellant was unable to
return to work following his medical retirement. He advised that appellant had attempted to
return to work as a shuttle driver with Holiday Inn but had developed worsening neck, head and
right upper extremity symptoms. Dr. Rook related that Dr. Struck, who was no longer treating
appellant, told appellant that he should only drive to and from the workplace in a truck equipped
with an extra-large mirror to avoid excessive movement of his neck. Dr. Struck also instructed
him to drive only on smooth roads. Dr. Rook concurred with Dr. Arnold’s opinion that appellant
was unable to return to work as a shuttle driver because of his cervical and right upper extremity
conditions. He stated, however, that appellant was capable of returning to work at another job
within the restrictions provided by Dr. Arnold.
At the October 14, 2011 hearing, appellant related that he returned to work because he
was experiencing financial difficulties. He was initially able to perform the shuttle driver job
with some difficulty; but eventually stopped work because he was required to set up tables and
equipment for banquets, which aggravated his neck condition. In addition, appellant was tasked
with helping people that had difficulty getting in and out of his vehicle. His initial supervisor in
the private sector accommodated his physical limitations but eventually left the workplace; the
new supervisor wanted him to undertake additional duties which exceeded Dr. Struck’s work
restrictions and aggravated his cervical condition.
By decision dated January 18, 2012, an OWCP hearing representative affirmed the
April 15, 2011 wage-earning capacity determination. He also affirmed the May 24, 2011
decision which denied compensation for wage loss; finding that appellant was working full-time
as a shuttle driver for Holiday Inn during the period he had requested compensation for wage
loss. The hearing representative denied compensation for wage loss for the period March 1,
2007 to July 27, 2009. He further found that there was a presumption that appellant and his
attorney had received a copy of the April 15, 2011 decision.
By letter dated March 30, 2012, appellant’s attorney requested reconsideration. He
reiterated that he had not received the April 15, 2011 decision. Counsel stated that, once he
informed OWCP that he did not receive the April 15, 2011 decision, the presumption of receipt
“burst” and OWCP was required to prove both that it was mailed and not returned.
By decision dated June 21, 2012, OWCP denied appellant’s application for review on the
grounds that it neither raised substantive legal questions nor included new and relevant evidence
sufficient to require OWCP to review its prior decision.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden to justify termination or modification of
compensation benefits.5
Section 8115(a) of FECA provides that the wage-earning capacity of an employee is
determined by actual earnings if actual earnings fairly and reasonably represent the wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.6
After the claimant has been working for 60 days, OWCP will determine whether the
claimant’s actual earnings fairly and reasonably represent his or her wage-earning capacity. If
so, a formal decision should be issued no later than 90 days after the date of return to work.7
Where OWCP learns that the claimant has returned to alternative work more than 60 days
after the fact, OWCP may consider a retroactive loss of wage-earning capacity determination
(loss of wage-earning capacity). Such a determination may be appropriate where an
investigation reveals that a claimant held private employment and had earnings which were not
reported to OWCP. A retroactive decision may be made if:
“(1) The claimant has worked in the position for at least 60 days;
“(2) OWCP has determined that the employment fairly and reasonably represents
the wage-earning capacity (an assessment of suitability need not be made); and
“(3) The work stoppage did not occur because of any change in the claimant’s
injury-related condition affecting ability to work.”8
If no formal loss of wage-earning capacity decision has been issued, OWCP should
consider whether it is appropriate to issue a retroactive loss of wage-earning capacity
determination. OWCP will also need to ask the claimant to provide his or her reasons for
ceasing work.9
ANALYSIS -- ISSUE 1
The question that arises in this case is whether it was appropriate for OWCP to issue a
retroactive loss of wage-earning capacity determination. Appellant’s attorney argues on appeal
that OWCP’s April 15, 2011 loss of wage-earning capacity decision was erroneous because the
5

Harold S. McGough, 36 ECAB 332 (1984).

6

Don J. Mazurek, 46 ECAB 447 (1995).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(e) (December 1993).
8

Id. at Chapter 2.814.9(b).

9

Id. at Chapter 2.814.9(b)(1).

6

medical and factual evidence indicates that the position did not demonstrate his wage-earning
capacity. He argues that appellant tried to return to work but was forced to quit because the job’s
work duties exceeded his work restrictions and aggravated his accepted upper back and cervical
conditions.
While OWCP did not learn that appellant had returned to work as a shuttle driver on
March 1, 2007 until September 2010, once it learned that appellant had stopped working at this
job in approximately May 2008, it should have asked appellant to provide his reasons for ceasing
work.
The medical evidence reflects complaints of increasing neck and shoulder pain in
May 2008. Dr. Struck stated in her May 8, 2008 report that appellant continued to have constant
neck, shoulder, interscapular, and TMJ pain, with constant occipital headaches. She asserted that
appellant experienced tingling and cramps his right hand, thumb, and index fingers, particularly
when engaged in shoulder extension, rotation and abduction activities. Dr. Struck stated that
appellant’s pain was aggravated by immobility, stress, illnesses, lifting, driving, and by reaching
and overhead neck and upper extremity activities. She advised that appellant had quit his job at
the Holiday Inn because they required him to set up tables and equipment for banquets which he
was unable to do without aggravating his pain syndrome. In addition, Dr. Rook stated in his
June 16, 2011 report that appellant had attempted to return to work as a shuttle driver with
Holiday Inn but had developed worsening neck, head and right upper extremity symptoms. He
related that Dr. Struck had told appellant that he should only drive to and from the workplace on
smooth roads, in a truck equipped with special requirements including an extra-large mirror to
avoid excessive movement of his neck. Dr. Rook agreed with Dr. Arnold that he was unable to
continue working as a shuttle driver because of his cervical and right upper extremity conditions.
The Board finds that OWCP issued a loss of wage-earning capacity determination when
the evidence raised a substantial question as to whether appellant’s work stoppage on or about
May 2008 occurred because of a change in the injury-related conditions affecting his ability to
work.
The Board will therefore reverse OWCP’s January 18, 2012 decision which affirmed the
April 15, 2011 loss of wage-earning capacity decision.
LEGAL PRECEDENT -- ISSUE 2
It is the employee’s burden of proof to establish disability during the period of time for
which wage-loss compensation is claimed. The term “disability” is defined by implementing
regulations as “the incapacity, because of an employment injury, to earn the wages the employee
was receiving at the time of injury. It may be partial or total.”10 The Board has long held that
whether a particular injury causes an employee disability for employment is a medical question
which must be resolved by competent medical evidence.11

10

20 C.F.R. § 10.5(f).

11

See Donald E. Ewals, 51 ECAB 428 (2000).

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ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained work-related upper back and cervical
conditions. Appellant filed a claim for wage-loss compensation for January 7, 2007 to July 27,
2009 and submitted reports from Dr. Struck. By decision dated May 24, 2011, OWCP awarded
compensation for wage loss for the period January 7 to February 28, 2007 because he sustained a
recurrence of total disability due to the employing establishment’s inability to continue
accommodating his work restrictions during this period. With regard to the period March 1,
2007 to July 27, 2009, OWCP denied compensation for wage loss because he demonstrated the
ability to perform the duties of a shuttle driver until at least May 2008, when he stopped
working. Appellant requested a hearing and submitted Dr. Rook’s June 16, 2011 report asserting
that he was unable to return to work at the employing establishment. Dr. Struck’s reports from
that period, appellant’s September 15, 2010 letter to his attorney and his January 3, 2011 letter to
OWCP indicate that he was working full time as a shuttle driver from March 2007 to May 2008
and was therefore not totally disabled during this period.
Appellant alleged that he was earning $8.50 per hour as a shuttle bus driver, an amount
less than his earnings in his federal employment. He remained entitled to partial disability
benefits, offset by actual earnings, if his federal employment remained unavailable to him due to
his accepted injury. OWCP improperly determined that appellant was not entitled to partial
disability benefits, simply because he was working during this time period. OWCP did not make
the necessary findings to determine whether appellant’s accepted condition continued to cause
partial disability during this time period.
The Board also finds that OWCP did not properly determine appellant’s entitlement to
partial wage loss after his return to work at the Holiday Inn. During the relevant time period,
OWCP’s procedures stated:
“If the claimant is entitled to compensation for partial wage loss after return to
work, the CE [claims examiner] should compute entitlement using the Shadrick
formula (see FECA PM 2-0901.15) and authorize compensation on a 28-day
payment cycle. The CE should make every effort to avoid interruption of income
to the claimant.
“The CE will advise the claimant (see Exhibit 2) that compensation will be paid
based on actual earnings, and that the claimant remains entitled to payment of
medical expenses for treatment of the accepted condition. This letter will not
constitute a formal decision and will have no appeal rights attached.”12
Furthermore, pursuant to OWCP procedures, when determining entitlement using the Shadrick
formula (see FECA PM 2-0901.15), the claims examiner should confirm the respective pay rates
for each job by telephone and document the file accordingly.13 The record does not substantiate
that OWCP verified appellant’s pay rate or earnings regarding his Holiday Inn employment.
12

Supra note 1 at Chapter 2.814.7(b).

13

See id. at Chapter 2.814.7(c)(2).

8

OWCP procedures also require that, if the file shows that the claimant has an approved
OPM annuity, a new election of benefits must be obtained and OPM advised of the election.14
The record does not establish that OWCP received an election of benefits for the appropriate
time period.
On remand, OWCP shall further develop the issue of appellant’s partial disability as of
March 1, 2007. After such further development as necessary, it shall issue a merit decision
regarding appellant’s entitlement to monetary compensation for the period March 1, 2007 to
July 27, 2009, with proper application of the Shadrick formula.
CONCLUSION
The Board finds that OWCP did not meet its burden regarding the loss of wage-earning
capacity determination. The case is remanded as to the issue of appellant’s partial disability as
of March 1, 2007 and election of benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: August 20, 2013
Washington, DC

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

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

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

14

Id.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., a.k.a., L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 13-1203
Issued: November 22, 2013

Case Submitted on the Record

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

JURISDICTION
On April 19, 2013 appellant filed a timely appeal of an October 22, 2012 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 the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
March 1, 2010 because she refused an offer of suitable work under 5 U.S.C. § 8106.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 13, 1998, the
Board affirmed an OWCP decision denying appellant’s request for authorization for surgery, as

1

5 U.S.C. § 8101 et seq.

untimely filed and failing to establish clear evidence of error.2 The facts as set forth in the
Board’s prior decision are hereby incorporated by reference.
On June 23, 1992 appellant, then a 34-year-old letter carrier, filed a traumatic injury
claim alleging that she fell on her back trying to escape some wasps that had flown out of a
mailbox. OWCP accepted the claim for lumbosacral strain and contusion of the back and paid
compensation benefits.
In order to determine the nature and degree of appellant’s employment-related disability,
on November 7, 2007, OWCP referred appellant to Dr. Bernard Albina, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated November 27, 2007, Dr. Albina
opined that appellant had chronic lumbar strain, degenerative lumbar disc disease and
spondylolisthesis at L5-S1. He noted that the chronic lumbar strain was connected to the injury
on the job and that the chronic pain in her lower back with intermittent lumbar radiculopathy
were residuals of the employment injury. Dr. Albina gave appellant physical limitations
resulting from the employment-related disability of not lifting in excess of 10 pounds and no
repeated stooping and bending. He noted that appellant could probably do sedentary to lightduty type work and the potential for rehabilitation is affected by her amount of pain as well as
the chronicity of the pain that she suffered as a result of her injury.
In a February 20, 2008 report, Dr. Raul Sepulveda, appellant’s treating Board-certified
neurosurgeon, opined that appellant suffered a herniated disc in the lumbar spine with chronic
compression upon a nerve that produced chronic lumbar radiculopathy. He did not believe that
the diagnosis of chronic lumbar strain by itself fully explained appellant’s problems.
Dr. Sepulveda noted that appellant has physical limitations and that she had to take significant
analgesics and that this prevented her from driving safely. He opined that, at this point, he did
not feel it was safe for her to be in a working environment given the amount of medication she
had to take. Dr. Sepulveda did believe that appellant could perform sedentary-type activities, but
believed that these activities should be in a safe environment, such as her house. Accordingly,
there existed a conflict between Drs. Sepulveda and Albina with regard to whether appellant
should return to work.
On August 21, 2008 OWCP referred appellant to Dr. James Hood, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated October 8, 2008,
Dr. Hood noted that the current diagnosis from the work injury is lumbar sprain. He noted that
he did not have the imaging films, so it was impossible to determine if appellant had
spondylolisthesis at its origin. Dr. Hood questioned appellant’s use of Bioflex gel, Vicodin (with
Tylenol) and Xanax. He did not believe that appellant should be off work. Specifically,
Dr. Hood opined that to be off work since 1992 because of soreness in one’s back without
neurological abnormalities is indefensible. He opined that appellant could work at a sedentary
level which allows for an occasional lifting of 1 to 10 pounds but that appellant cannot at this
time return to unrestricted duties as a letter carrier. In a work capacity evaluation of the same
date, Dr. Hood indicated that appellant could work eight hours a day, but did limit walking to
one hour; standing; bending/stooping and twisting to two hours; and reaching, including reaching
2

Docket No. 96-1887 (issued May 13, 1998).

2

above shoulder, to six hours. He also indicated that appellant should take a 15-minute break
every two hours.
On September 9, 2008 OWCP awarded appellant a schedule award for a two percent
impairment to the right lower extremity and a two percent impairment to the left lower extremity.
However, it noted that appellant was currently in receipt of compensation payments, and that a
schedule award and compensation payments cannot be paid simultaneously. OWCP also advised
appellant that, if she elected retirement benefits, she could collect schedule award benefits
concurrently, but that she must indicate her desire in writing.
Appellant continued to be treated by Dr. Sepulveda for chronic aching, burning and
occasional sharp low back pain with radiation into both legs. He continued to list appellant’s
problems as herniated lumbar disc and aftercare, long term use of medications.
On August 3, 2009 the employing establishment made an offer of limited duty to
appellant for work as a letter carrier. She would case the route, answer telephones and perform
customer service. The physical requirements of the modified assignment were standing,
reaching above the shoulder and fine manipulation limited to two hours, and communicating
with customers limited to six hours.
On January 26, 2010 appellant refused the modified assignment, contending that it was
against her doctor’s advice to accept the position. She noted that she was in a lot of pain and on
medication and that her doctor did not want her to be in a work environment. Appellant
contended that she would not be able to do the job and that she is retired.
On February 9, 2010 OWCP informed appellant that the duties of the position offered by
the employing establishment were within appellant’s restrictions as set by Dr. Hood, that the
employing establishment confirmed that the position remained available to her, and that she
should either accept the position or provide a written explanation of reasons for refusing the
position within 30 days.
By letter dated March 5, 2010, appellant contended that OWCP did not send Dr. Hood all
her medical reports that he refused the ones that she attempted to give him and that she saw
Dr. Hood for only 15 minutes but had been seeing her physician for 10 years. She argued that
her doctor contended that it was not safe for her to be in a work environment; that she had nerve
damage in her right leg which was resulting in falls; that she is always in pain in her back
radiating down her legs; that she suffers from a lot of pain in her knee shooting in to her hip; that
she cannot stand and case for two hours; and that her doctor till did not want her to reach above
her shoulder.
By letter dated March 17, 2010, OWCP noted that appellant’s reasons for not accepting
the position were not valid and it gave her an additional 15 days to report to the assignment.
On August 18, 2010 OWCP terminated appellant’s compensation and for wage loss and
schedule awards effective March 1, 2010 because the evidence established that she refused to
accept suitable work.

3

By letter dated October 6, 2010, appellant requested an oral hearing before an OWCP
hearing representative. OWCP’s Branch of Hearings and Review denied this request as untimely
in a decision dated December 27, 2010.
In a February 2, 2011 report, Dr. Sepulveda continued to list his impressions as herniated
lumbar disc and lumbar back pain. He opined that appellant was unable to stand up for the
required two hours to case mail, was unable to do overhead work for more than very limited
periods of time and that her ability to work with customers was at least partially limited due to
the fact that she has to take Trazadone and Xanax as adjuvants for control of pain as well as the
use of Hydrocodone which could possibly affect her ability to make decisions. In a May 12,
2011 decision, Dr. Sepulveda listed his impressions as herniated lumbar disc and aftercare, longterm use, medications necessary.
By letter dated February 3, 2011, appellant requested reconsideration. She stated that she
was trying to receive the schedule award that had already been awarded to her.
By decision dated September 7, 2011, OWCP denied appellant’s request for
reconsideration as the evidence was insufficient to warrant modification of the prior termination
decision dated August 18, 2010.
Appellant continued to submit reports by Dr. Sepulveda. In an August 31, 2011 report,
Dr. Sepulveda listed his impression as aftercare, long-term use of medications and herniated
lumbar disc.
He reiterated these impressions in reports of November 30, 2011 and
February 29, 2012. In his November 30, 2011 report, Dr. Sepulveda also noted that appellant
needed to have a workup for her hips to include a magnetic resonance imaging (MRI). He
informed appellant that the workup should be done with private insurance as there is no evidence
that this problem is related to her employment injury.
On September 5, 2012 appellant again requested reconsideration. She contended that her
doctor told her not to accept the job offer on February 3, 2011. Appellant stated that she was
tricked into choosing retirement benefits. She stated that she needs two hip replacements and
was not physically able to accept the job offer. Appellant contended that she was still suffering
from the same pain multiplied by 100 and still uses a cane for assistance with walking.
By decision dated October 22, 2012, OWCP denied modification of the previous
decisions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 Section 8106(c)(2) of FECA4 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or

3

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

4

5 U.S.C. §§ 8101-8193.

4

secured for the employee is not entitled to compensation.5 OWCP may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.6 The Board has started that monetary compensation payable to an employee under
section 8107 are payments made from the Employees’ Compensation Fund and are, therefore,
subject to penalty provision of section 8106(c).7
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.8 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.9
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.10
ANALYSIS
OWCP found a conflict in medical opinion arose between Dr. Sepulveda, appellant’s
treating physician, and the second opinion physician, Dr. Albina, with regard to appellant’s
ability to work. Accordingly, it referred appellant to Dr. Hood to resolve the conflict. In an
August 21, 2008 report, Dr. Hood found that appellant could work at a sedentary level which
allowed for an occasional lift of 1 to 10 pounds. He noted that, while the initial MRI scan
indicated a paracentral protrusion, at this time there was no focal nerve root compression or mass
effect on the exiting nerve roots, and that this has held through on subsequent imaging studies
indicating only minimal disc bulge. Dr. Hood stated that she relates that she has nerve damage,
but there was no evidence of that, noting that the EMG nerve conduction study done after the
work accident was normal. He noted that in addition to this, appellant had a normal neurological
examination with no significant signs of radiculopathy or neurological compromise. As this
impartial opinion is based on a proper factual and medical background it is, therefore, entitled to
special weight.11 The Board finds that the position offered by the employing establishment was
specifically set within the restrictions as advised by Dr. Hood. Accordingly, OWCP properly
relied upon the opinion of Dr. Hood, the impartial medical specialist, in determining that

5

Id. at § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

6

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

7

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

8

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

9

Supra note 8 at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

10

Anna M. Delaney, 53 ECAB 384 (2002).

11

Darlene R. Kennedy, 57 ECAB 414 (2006).

5

appellant had failed to accept suitable employment at the position with the employing
establishment and in terminating her compensation benefits.
The Board further notes that OWCP complied with its procedural requirements in
advising appellant that the position was found suitable, providing her with the opportunity to
accept the position or provide her reasons for refusing the job offer and notifying her of the
penalty provision of section 8106(c).12
The medical evidence submitted after the termination of compensation benefits is
insufficient to outweigh the well-rationalized opinion of the impartial medical examiner,
Dr. Hood. On reconsideration, appellant submitted multiple reports by her treating physician,
Dr. Sepulveda, who continued to list his impressions as herniated lumbar disc and lumbar back
pain. In a February 2, 2011 report, Dr. Sepulveda opined that appellant was unable to stand the
required two hours to case mail; that she was unable to do overhead work for more than very
limited periods of time and that her ability to work with customers was limited due to the fact
that she was on medication that would affect her ability to make decisions. As he was on one
side of the conflict that Dr. Hood resolved, his report is insufficient to overcome that of Dr. Hood
or to create a new medical conflict.13
On reconsideration, appellant contended that she needed two hip replacements.
However, her claim has not been accepted for an injury to her hips. In fact, Dr. Sepulveda,
appellant’s attending physician, specifically stated that appellant’s hip problems were not related
to her employment injury.
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 terminated appellant’s compensation effective
March 1, 2010 because she refused an offer of suitable work under 5 U.S.C. § 8106.

12

See Bruce Sanborn, 49 ECAB 176 (1997).

13

See S.J., Docket No. 09-1794 (issued September 20, 2010) (submitting a report from a physician who was on
one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict). See also Michael Hughes, 52
ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2012 is affirmed.
Issued: November 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1882
Issued: April 27, 2016

Case Submitted on the Record

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

JURISDICTION
On September 15, 2015 appellant filed a timely appeal from an April 29, 2015 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 the claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
April 29, 2015 because he refused suitable work under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On October 3, 2012 appellant, then a 54-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on October 2, 2012 he suffered a hernia when he caught a
buggy that had tipped off the ramp. He stopped work on October 3, 2012 and returned to work
1

5 U.S.C. § 8101 et seq.

on October 10, 2012. Appellant then stopped work on December 12, 2012 and did not return.
OWCP accepted the claim for inguinal hernia without obstruction or gangrene, bilateral. No
surgeries have been performed. Appellant received periodic compensation payments for
disability commencing December 16, 2012.
In reports dated October 15, November 12 and 13, 2012, Dr. Mark Ciaglia, an osteopath
and orthopedic surgeon, indicated that medical clearance from appellant’s cardiologist was
needed prior to surgical repair of the hernias. In his November 13, 2012 report, he opined that
appellant was capable of telephone duties for four to six hours per day. The employing
establishment, however, did not have the requested sedentary work available.
In a March 12, 2013 report, Dr. Amilcar Avendano, a Board-certified internist, indicated
that appellant was unable to undergo hernia surgery because he had five cardiac stents placed in
August 2012, he should not have surgery for one year, and would be unable to stop medications
until then.
In a March 28, 2014 letter, OWCP requested that Dr. Ciaglia provide a well-rationalized
medical report regarding appellant’s disability status.2 No response was received.
In October 2014, OWCP referred appellant, along with the medical record, a statement of
accepted facts (SOAF) and lists of questions, to Dr. Howard L. Beaton, a Board-certified general
surgeon, for a second opinion examination. Dr. Beaton was asked to provide a medical opinion
as to whether appellant had any residuals of the accepted condition and whether his current
disability was due to the October 2, 2012 employment event or due to any medical conditions not
related to the October 2, 2012 employment event. In a November 11, 2014 report, he noted the
history of injury, his review of the SOAF, and the medical record. Dr. Beaton noted that elective
surgical repair of the bilateral inguinal hernias were advised following medical clearance.
Appellant’s past medical history was significant for coronary artery disease, for which five
percutaneous stents have been inserted several months prior to the October 2, 2012 employment
incident. He was maintained on anticoagulation medication and has not been cleared for elective
surgery. In April 2013, appellant underwent coronary artery bypass surgery to relieve
obstructions in three vessels and, two weeks prior to his evaluation, two additional percutaneous
coronary stents were inserted. Dr. Beaton noted that appellant continued on antiplatelets agents.
He opined that the accepted work-related conditions have not resolved. Dr. Beaton also opined
that appellant could not perform his date-of-injury job as a rural carrier due to the fact that his
hernias must be repaired prior to a full-time, full-duty return to work. He indicated that even
though appellant was medically disabled from his date-of-injury job as a rural carrier, he could
perform full-time, limited-duty work with restrictions of no pushing, no pulling, and no lifting
over 20 pounds during an eight-hour day. Dr. Beaton further opined that even though appellant
has nonwork-related coronary artery disease, he may perform full-time, limited-duty work within

2

In several letters, OWCP wrote appellant’s treating physician, Dr. Ronald A. Buczek, an osteopath, and
requested that he provide a well-rationalized medical report regarding appellant’s work-related disability and if he
was medically able to return to full-duty work or perform some type of gainful employment in a limited-duty
capacity. It, however, received no response from Dr. Buczek. Appellant indicated that he was changing his
physician to Dr. Ciaglia.

2

those restrictions until he was medically cleared to undergo surgical repair of his inguinal
hernias.
On January 30, 2015 the employing establishment offered appellant a modified rural
carrier position, which entailed delivering assigned routes for 5.5 hours. The physical
requirements of the position required pushing, pulling, lifting, and picking up letters and parcels
up to 20 pounds for 5.5 hours intermittently, walking for 30 minutes intermittently, operating
motor vehicle, and reaching at shoulder level to deliver five hours intermittently.
On March 12, 2015 OWCP advised appellant that the duties and physical requirements of
the modified rural carrier position were suitable as it was within the medical limitations provided
by Dr. Beaton in his November 11, 2014 report and that the employing establishment confirmed
that the position remained open and available to him. OWCP afforded appellant 30 days to
accept the position or provide his reasons for refusal. Appellant was advised that, pursuant to 5
U.S.C. § 8106(c)(2), an employee who refuses an offer of suitable work without reasonable
cause is not entitled to further compensation for wage loss or schedule award.
OWCP did not receive a response to the 30-day notice. The employing establishment
confirmed that appellant did not accept the job and did not return to work during the 30-day
period.
By notice dated April 13, 2015, appellant was advised that his refusal of the offered
position was not justified and he was afforded an additional 15 days to accept the job. He did not
accept the job and did not return to work during the 15-day period.
In an April 23, 2015 letter, appellant related that he had a discussion with his postmaster
and that he could not accept the job offer because of his nonwork-related, preexisting medical
conditions which include six stents in his heart, his triple bypass surgery, multiple cardiac artery
blockages, and emphysema. He requested that OWCP accept those conditions as valid reasons
to refuse work. Appellant also referenced Publication CA-810 (8-4C) and indicated that he
could not accept the position due to those conditions.
An October 3, 2014 cardiac catherization study and an October 4, 2014 hemodynamic
report were submitted.
By decision dated April 29, 2015, OWCP terminated appellant’s entitlement to
compensation benefits effective April 29, 2015 because he refused to accept suitable
employment in keeping with 5 U.S.C. § 8106(c)(2).
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 Section 8106(c)(2) of FECA4 provides that a partially
3

Linda D. Guerrero, 54 ECAB 556 (2003).

4

Supra note 1.

3

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.5 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.6 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.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee has
the burden of showing that such refusal or failure to work was reasonable or justified.8 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.9
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions, and setting forth the specific job requirements of the position.10 In other
words, to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty
provision, OWCP has the burden of showing that the work offered to and refused by appellant
was suitable.11
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.12 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.13 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.14 In evaluating the suitability of a particular position,
OWCP must consider preexisting and subsequently acquired medical conditions.15
5

Id. at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

Ronald M. Jones, 52 ECAB 190 (2000).

7

Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

10

See Linda Hilton, 52 ECAB 476 (2001).

11

Id.

12

See supra note 6.

13

Gayle Harris, 52 ECAB 319 (2001).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(July 2013).
15

Martha A. McConnell, 50 ECAB 129, 132 (1998).

4

ANALYSIS
OWCP accepted that appellant sustained inguinal hernia without obstruction or gangrene,
bilateral. Although surgical repair of the hernias was recommended, no surgeries had been
performed due to nonwork-related conditions.
On January 30, 2015 the employing establishment offered appellant a position as a
modified rural carrier. The determination of whether an employee has the physical ability to
perform a position offered by the employing establishment is primarily a medical question that
must be resolved by the medical evidence.16 The Board finds that the weight of the evidence in
this case clearly establishes that appellant was capable of performing the offered position.17
In late 2012, Dr. Ciaglia found that appellant was capable of sedentary work. In a
March 12, 2013 report, Dr. Avendano indicated that appellant was unable to undergo hernia
surgery because he had five stents placed in August 2012 and he should not have surgery for one
year. However, Dr. Avendano did not provide an opinion regarding appellant’s disability status.
In his November 11, 2014 report, Dr. Beaton reviewed appellant’s medical records and
provided a comprehensive, well-rationalized report. He noted that medical clearance was needed
prior to elective surgical repair of the bilateral inguinal hernias. Dr. Beaton further noted
appellant’s significant past medical history for coronary artery disease and his current status with
regards to medication and percutaneous coronary stents. He opined that the accepted workrelated conditions had not resolved and that appellant could not perform his date-of-injury job as
a rural carrier due to the fact that his hernias must be repaired prior to a full-time, full-duty return
to work. Dr. Beaton indicated, however, that even though appellant has nonwork-related
coronary artery disease he could perform full-time, limited-duty work with restrictions of no
pushing, no pulling, and no lifting over 20 pounds during an eight-hour day until he was
medically cleared to undergo surgical repair of his inguinal hernias. The employing
establishment’s job offer, which requires appellant to push, pull, lift, and pick up letters and
parcels up to 20 pounds for 5.5 hours intermittently, walk for 30 minutes intermittently, and
operate a motor vehicle and reach at shoulder level to deliver five hours intermittently, falls
within the restrictions set forth by Dr. Beaton. The Board thus finds that the offered position was
medically suitable.
The Board further finds that OWCP complied with its procedural requirements in
advising appellant that the position was suitable, providing him with the opportunity to accept
the position or provide reasons for his refusal and notifying him of the penalty provision of
section 8106(c).18 Appellant did not respond to OWCP’s March 12, 2015 30-day notice which
found the job offer suitable and in accordance with Dr. Beaton’s medical limitations. In
16

See Robert Dickinson, 46 ECAB 1002 (1995).

17

The Board notes that appellant’s physician, Dr. Ciaglia, indicated in his November 13, 2012 report that
appellant was capable of sedentary work four to six hours per day. As the employing establishment did not have
total sedentary work available, appellant was referred to Dr. Beaton for a second opinion examination.
18

See Bruce Sanborn, 49 ECAB 176 (1997).

5

response to the April 13, 2015 15-day notice, which found appellant’s reasons not valid, he
indicated, in an April 23, 2015 letter, that he did not accept the job offer because of his nonworkrelated, preexisting heart conditions, multiple cardiac procedures and other medical conditions,
including emphysema. However, he did not submit any medical evidence supporting that he was
unable to perform the duties of the offered position. Furthermore, appellant has not submitted
any recent reports from his physicians addressing disability. The diagnostic testing he submitted
fails to contain a medical opinion on disability and the causal relationship of such disability. The
Board finds that OWCP properly followed its procedures in terminating compensation under
section 8106.
On appeal, appellant reiterates his contention that the medical evidence supports that
between the 2012 work injury and Dr. Beaton’s medical examination in late 2014, he did not
regain his health, but rather had multiple cardiac procedures. He indicated that he is now in need
of a heart transplant. Appellant notes that his prior cardiac medical condition is known to both
his employer and OWCP and that those conditions should be valid reasons to refuse suitable
work. He additionally refers to Publication CA-810 (8-4C) which states, “The position should be
compatible with the employee’s medical condition, including any nonwork-related medical
condition which either preexisted the injury at work or developed since it occurred.” The
determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.19 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.20 In this case, the medical records on file do not support
that appellant is unable to perform the modified rural carrier position, either due to his
preexisting cardiac condition or his accepted hernia condition. Thus, appellant’s argument lacks
merit.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
April 29, 2015 on the grounds that he refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2).

19

Gayle Harris, 52 ECAB 319 (2001).

20

Supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 27, 2016
Washington, DC

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

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

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

7