United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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E.C., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Hammond, IN, Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-1634
Issued: March 10, 2008

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ wage-earning capacity decision dated April 13, 2007. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s actual earnings as a modified letter carrier fairly and
reasonably represent her wage-earning capacity.
FACTUAL HISTORY
On January 12, 2004 appellant, then a 55-year-old letter carrier, slipped on ice at work.
She did not completely stop work but began working reduced hours. Appellant began a limitedduty assignment on April 21, 2004. The Office accepted her claim for right hip contusion,
lumbosacral spondylosis and congenital spondylolysis. On August 9, 2005 it authorized a spinal
fusion at L4-5. The Office paid appellant wage-loss compensation for hours she was unable to
work. On September 29, 2005 she was placed on the periodic rolls.

In a January 17, 2006 letter, Lillie M. Evans, an employing establishment injury
compensation specialist, provided a corrected salary history regarding appellant’s pay rate. She
explained that an error had occurred as appellant’s records were never updated to reflect the
change in her pay schedule, grade and step. The error occurred in 2002 and was not realized
until about a year prior. Ms. Evans advised that appellant’s supervisors had been working to
correct the error. When appellant first began working for six hours per day on January 12, 2004,
she was paid at Level 1, Step C at a yearly salary of $38,815.00. However, Ms. Evans indicated
that appellant should have been paid at Level 2, Step C at a salary of $42,242.00. She added that
when appellant became disabled on August 8, 2004 she was paid at Level 1, Step E at a salary of
$43,211.00 but she should have been paid at Level 2, Step E at a salary of $44,019.00.
Appellant returned to light-duty work for four hours a day, five days a week on
February 22, 2006.
In an April 3, 2006 report, Dr. Nitin Khanna, a Board-certified orthopedic surgeon and
treating physician, opined that appellant was post single level decompression and instrumental
fusion. He opined that she reached maximum medical improvement and had permanent
restrictions comprised of sedentary-type duties for four hours a day. Dr. Khanna noted that a
functional capacity evaluation might be considered but he was concerned that it might cause
appellant’s pain to worsen. In a duty status report, also dated April 3, 2006, he advised that
appellant could lift or carry for four hours per day not to exceed two pounds on a continuous
basis or five pounds on an intermittent basis; and sitting for no more than four hours per day.
By letter dated May 11, 2006, the Office provided the employing establishment with a
copy of Dr. Khanna’s restrictions, and requested whether appellant could be provided a position
that complied with the restrictions. The Office also requested verification of appellant’s
grade/step and salary on January 12, 2004.
In an April 3, 2006 addendum, Dr. Khanna noted permanent restrictions of lifting and
carrying of no more than five pounds, four hours per day; intermittent standing up to four hours
per day; intermittent walking up to one hour per day; no climbing, kneeling, bending or stooping,
twisting; pulling or pushing; simple grasping intermittently for up to four hours per day; fine
manipulation intermittently up to four hours a day; reaching above the shoulder, intermittently
four hours a day; and no driving or operating machinery. He indicated that appellant should
perform primarily sedentary work. On July 17, 2006 Dr. Khanna opined that appellant could
work four hours a day provided that she did not do any casing, and could only do intermittent
reaching for no more than one hour per day. He also indicated that appellant needed to work
earlier in the day “due to medication.”
On September 18, 2006 the employing establishment offered appellant a rehabilitation
job offer as a modified letter carrier, Level 2, Step G at $47,276.00 per year effective
October 28, 2006. The employing establishment advised that the hours were from 9:00 a.m. to
1:00 p.m. and noted that the specific physical requirements included seated work at a letter case
table, lining out customer information on cards weighing approximately one ounce or less,
checking and verifying carrier edit books while seated, consolidation of “AVUS receipts” while

2

seated, verifying packages for next day delivery, scanning delivery confirmation packages within
weight restrictions, answering telephones and other duties within her restrictions.1
On September 25, 2006 appellant signed the job offer “under protest.”
indicates that she continued working four hours per day.

The record

On October 16, 2006 Kelli Rowland, an employing establishment injury compensation
specialist, provided the Office with a copy of the limited-duty job offer. She confirmed that on
the date of injury, appellant was a Level 1, Step C city letter carrier. Ms. Rowland also
confirmed that appellant’s salary was $38,815.00 per year. She indicated that today, a Level 1,
Step C would earn $42,783.00 per year. Ms. Rowland noted that appellant was being rehabbed
as a modified letter carrier at Level 2, Step G, earning $47,276.00 per year. She noted that today
a Level 2, Step G would have earned $43,198.00.
By letter dated November 15, 2006, Mary Banks, an employing establishment injury
compensation specialist, provided the Office with a copy of the rehabilitation job offer. She
confirmed that appellant signed the offer on September 25, 2006, effective October 28, 2006.
Appellant accepted the offer under protest related to the location of the job offer and the
scheduled off days. Ms. Banks advised that appellant was placed in the location of her
preference but changing the scheduled off days was not feasible. Appellant accepted the job
offer on November 22, 2006.
In letters dated November 28, 2006, Ms. Banks confirmed that appellant was working as
a modified letter carrier, Level 2, Step G, since October 28, 2006. She confirmed that, on the
date of injury, appellant was a Level 1, Step C city letter carrier with a salary of $38,815.00 per
year. Ms. Banks indicated that the current salary for a Level 1, Step C would earn $42,783.00
per year. Additionally, she noted that the current salary for a modified letter carrier,
rehabilitation job Level 2, Step G was $42,576.00, and noted that appellant was a Level 2,
Step G, earning $47, 276.00 per year.
On January 5, 2007 the Office noted that Ms. Banks confirmed that appellant had
completed 60 days of successful work in the rehabilitation job assignment. The Office also
confirmed that appellant was a “01/C” on January 12, 2004.
By decision dated January 8, 2007, the Office found that appellant’s actual earning as a
part-time, modified letter carrier fairly and reasonably represented her wage-earning capacity.
She had demonstrated the ability to perform the duties for two months or more. The Office
noted that appellant was reemployed as a modified letter carrier for four hours a day effective
October 28, 2006 with weekly wages of $454.58. The Office found that the position was
suitable to her partially disabled condition and her entitlement to compensation would be
reduced effective December 24, 2006 according to the provisions of 5 U.S.C. §§ 8106 and 8115.
The Office’s wage-earning capacity worksheet indicated that appellant’s weekly pay rate on
April 21, 2004 was $798.12.

1

An earlier offer by the employing establishment was rejected by appellant as it violated her restrictions.

3

On January 16, 2007 appellant requested a review of the written record. She enclosed a
copy of the wage calculation sheet and explained that the Office used the incorrect rate of pay for
her date-of-injury position. Appellant alleged that the Office used a pay rate of Step 01/C as her
pay rate on October 28, 2006. This rate was equivalent to $822.75 per week. Appellant
contended that the correct rate should be Level 2, Step G. She stated that she had spoken to
Ms. Evans, who noted that the wage-rate information was never correctly entered, and that the
error remained uncorrected. The calculation sheet contained an annotation from L. Poindexter,
“SCS,” who acknowledged that he verified appellant’s level as 02, Step G.
Appellant enclosed a notification of personnel action with an effective date of
November 16, 2002. It contained an annotation that appellant should have been in Level 2
effective November 16, 2002. The form indicated that appellant’s grade and step was “02/B”
with a salary of $37,897.00. She also included a Form CA-7 and noted that it was submitted
incorrectly.
By letter dated March 2, 2007, the Office requested that the employing establishment
provide comments or additional evidence. It did not respond.
In an April 13, 2007 decision, the Office hearing representative affirmed the Office’s
January 8, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act2 provides, in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
her actual earnings if her actual earnings fairly and reasonably represent her wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of evidence showing they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.3 If the actual earnings do
not fairly and reasonably represent wage-earning capacity, or if the employee has no actual
earnings, her wage-earning capacity is determined with due regard to the nature of her injury, her
degree of physical impairment, her usual employment, her age, her qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect her wage-earning capacity in her disabled condition.4 Wage-earning capacity is a
measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.5

2

5 U.S.C. § 8115.

3

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

4

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right hip contusion and sciatic right leg, and
authorized a spinal fusion.
Appellant began working a part-time limited-duty position as a modified letter carrier,
effective October 28, 2006. The modified letter carrier position complied with the restrictions
provided by Dr. Khanna in his April 3 and July 17, 2006 reports which advised that appellant
could work four hours a day provided she did not do any casing, only performed intermittent
reaching for no more than one hour per day and worked early in the day “due to medication.” He
provided restrictions on lifting and carrying more than five pounds, four hours per day;
intermittent standing up to four hours per day; intermittent walking up to one hour per day; no
climbing, kneeling, bending or stooping, twisting; pulling or pushing; simple grasping
intermittently for up to four hours per day; fine manipulation intermittently up to four hours a
day; reaching above the shoulder, intermittently four hours a day; and no driving or operating
machinery. Dr. Khanna indicated that appellant should perform primarily sedentary work. The
modified letter carrier position was a Level 2, Step G at $47,276.00 per year effective
October 28, 2006. The employing establishment noted that the hours were from 9:00 a.m. to
1:00 p.m. and included seated work at a letter case table, lining out customer information on
cards weighing approximately one ounce or less, checking and verifying carrier edit books while
seated, consolidation of AVUS receipts while seated, verifying packages for next day delivery,
scanning delivery confirmation packages within weight restrictions, answering telephones and
other duties within her restrictions. On January 5, 2007 the Office confirmed that appellant had
completed 60 days of successful work in the job. The Board finds that the modified letter carrier
position that appellant began working on October 28, 2006 is consistent with her work
restrictions and abilities. Appellant worked in the position for over 60 days. Her performance of
this position in excess of 60 days is persuasive evidence that the position represents her wageearning capacity.6 Moreover, there is no evidence that the position was seasonal, temporary or
make-shift work designed for appellant’s particular needs.7
However, the Board notes that the record contains conflicting information regarding
appellant’s rate of pay on the date of injury or the date that disability began. Appellant’s primary
argument on appeal is that the Office utilized the incorrect salary to determine her pay rate. In
order to calculate appellant’s pay rate, the Office would have to use appellant’s monthly pay.8
Monthly pay is defined as the monthly pay at the time of injury, or the monthly pay at the time
disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
6

Office procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given position for more
than 60 days. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(c) (December 1993).
7

Elbert Hicks, 49 ECAB 283 (1998).

8

See 5 U.S.C. § 8106(a) (if the disability is partial, the Office shall pay the employee during the disability
compensation equal to the difference between her monthly pay and her monthly wage-earning capacity).

5

with the United States, whichever is greater.9 It appears that the Office is using April 21, 2004
as the date her disability began. However, the amount that appellant was being paid at that time
is unclear.
The Board notes that the formula for determining loss of wage-earning capacity based on
actual earnings developed in Albert C. Shadrick,10 has been codified by regulation at 20 C.F.R.
§ 10.403. Subsection (d) of this regulation provides that the employee’s wage-earning capacity
in terms of percentage is obtained by dividing the employee’s actual earnings by the current pay
rate for the job held at the time of injury.11 As noted above, the Office calculated appellant’s
compensation and utilized a weekly pay rate of $798.12, effective April 21, 2004. However, the
record contains conflicting information regarding appellant’s pay rate on the date of injury, and
the Board is unable to determine which rate of pay was greater, or if the Office utilized the
corrected pay rate information provided by the employing establishment. For example, in a
January 17, 2006 letter, Ms. Evans, an injury compensation specialist from the employing
establishment, provided a corrected salary history regarding appellant’s pay rate. She explained
that an error had occurred in the employing establishment’s records which were never updated to
reflect the change in appellant’s pay schedule, grade and step. She further noted that the error
had occurred in 2002 and was not discovered until approximately a year earlier. Another injury
compensation specialist, Ms. Banks, indicated that, when appellant first began working for six
hours per day on January 12, 2004, she was paid at Level 1, Step C at a yearly salary of
$38,815.00, but noted that she should have been paid at Level 2, Step C at a salary of
$42,242.00. Additionally, she added that when appellant became disabled on August 8, 2004 she
was paid at Level 1, Step E at a salary of $43,211.00, but she should have been paid at Level 2,
Step E at a salary of $44,019.00. Furthermore, on October 16, 2006, Kelli Rowland, another
injury compensation specialist from the employing establishment, noted that, on the date of
injury, appellant was a Level 1, Step C city letter carrier. However, appellant continued to note
that an error remained regarding her salary on the date of injury. Appellant contends that she
was a Level 2, when she was injured, but she was incorrectly paid at a Level 1 rate.
The Board notes that Office procedures and Board precedent contemplate that when there
are pay rate discrepancies they must be clarified.12 Office procedures address clarifying pay rate
discrepancies, noting that the employing establishment or claimant may challenge, correct, or
expand on the evidence in the original reports with respect to terms of employment, amount of
pay, or types and amounts of increments. When this happens, the Office must clarify any
material discrepancies in the record before establishing a pay rate for compensation purposes.
This can be done by letter or by a telephone call followed by written confirmation.13

9

5 U.S.C. § 8101(4).

10

5 ECAB 376 (1953).

11

20 C.F.R. § 10.403 (d); see Afegalai L. Boone, 53 ECAB 533 (2002).

12

See Ricardo Hall, 49 ECAB 390 (1998); Gary Vancura, 40 ECAB 427 (1989).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.2(d)(1)
(April 2002).

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As the evidence contains discrepancies which have not been adequately explained, the
Board concludes that the case must be remanded for further development and a de novo decision
with detailed findings on how appellant’s rate of pay was on the date disability began.
Thereafter, the Office should compute the rate of pay in accordance with the corrected pay
information provided by the employing establishment.
CONCLUSION
The Board finds that the position of a modified letter carrier that appellant held
commencing October 28, 2006 was an appropriate limited-duty job which the Office properly
determined represented her wage-earning capacity. However, the case is not in posture
regarding the rate of pay which was used to determine her wage-earning capacity and the case
must be remanded.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded in part.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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Appearances:
Chris Chaney, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1874
Issued: April 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 14, 2009 appellant filed a timely appeal from a June 30, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs finding he had abandoned his hearing request.
The Board also has jurisdiction over the January 30, 2009 merit decision that denied 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 appellant established that he sustained an injury on
November 4, 2008 in the performance of duty causally related to his employment; and
(2) whether the Office properly found that appellant abandoned his request for a hearing.
FACTUAL HISTORY
On November 7, 2008 appellant, a 56-year-old clerk, filed a traumatic injury claim (Form
CA-1) for a twisted left ankle. He alleges that, on November 4, 2008, as he was leaving to go on
break, his body turned but his left foot did not, resulting in a twisted left ankle.

Appellant submitted a November 5, 2008 unsigned note from St. Anthony Hospital
documenting that he received treatment on November 5, 2008 and it was seeking payment for its
services.
Appellant submitted a November 5, 2008 report (Form CA-17) bearing an illegible
signature and diagnosing a sprained ankle.
Appellant submitted a November 12, 2008 note signed by a Shannon Brown, appellant’s
supervisor, who transported him to the hospital on November 4, 2008 and witnessed the
treatment he received.
Appellant submitted a November 13, 2008 report in which Dr. Dale Hall, a podiatrist,
reported that x-rays of his left ankle revealed no evidence of fracture or disorientation of the
bone.
By decision dated January 30, 2009, the Office denied the claim because the evidence of
record did not demonstrate that appellant sustained an injury as defined by the Act. It found that
the evidence of record did not establish that the employment event occurred as alleged. The
Office also found that appellant had not provided sufficient medical evidence demonstrating that
an injury occurred as alleged.
On February 12, 2009 appellant requested an oral hearing.
By letter dated April 30, 2009, the Office notified appellant that a hearing was scheduled
for June 2, 2009 at 10:00 am. It provided him the telephone number to call to participate and he
was advised to be present.
Appellant did not attend the hearing and by decision dated June 30, 2009, the Office
denied his request finding that he had abandoned his hearing request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

2

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
There is nothing in the record to dispute that appellant turned his ankle on November 4,
2008 while going on break as alleged. Appellant’s burden is to demonstrate that the identified
employment incident caused a medically-diagnosed injury. Causal relationship is a medical
issue which can only be proven by probative rationalized medical opinion evidence. The Board
finds appellant has not submitted sufficient probative rationalized medical evidence supporting
his claim and, accordingly, has not established that he sustained an injury in the performance of
duty on November 4, 2008 causally related to his employment.9
The evidence of record consists of a report (Form CA-17) bearing an illegible signature
and a note from Dr. Hall. The CA-17 lacks probative value because unsigned reports or reports
bearing illegible signatures are not considered probative medical evidence because they lack
proper identification as to whether they were prepared by physicians.10
5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

Appellant submitted additional evidence on appeal. As this evidence was not considered by the Office as part of
either of its prior decisions, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.)
10

See R.M., 59 ECAB __ (Docket No. 08-734, issued September 5, 2008); Richard Williams, 55 ECAB
343 (2004).

3

While Dr. Hall’s note does qualify as medical evidence for purposes of the Act,11 the
substance of his note is such that it has diminished probative value on the issue of causal
relationship. His note did not present objective findings on examination or a diagnosis based on
those findings. Dr. Hall did not review appellant’s history of injury or course of treatment. He
did not provide a rationalized medical opinion explaining how the November 4, 2008
employment incident caused any diagnosed condition. These deficiencies reduce the probative
value of Dr. Hall’s opinion and that of his note such that it is insufficient to satisfy appellant’s
burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.12 While he established an employment incident that he deems
responsible for his condition, he has not submitted sufficient medical evidence demonstrating
that this employment incident caused a medically-diagnosed personal injury and, consequently,
the Board finds he has not established that he sustained an injury in the performance of duty on
November 4, 2008 causally related to his employment.
LEGAL PRECEDENT -- ISSUE 2
With respect to hearing requests, Chapter 2.1601.6(e) the Office’s procedure manual
provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”13
ANALYSIS -- ISSUE 2
In finding that appellant had abandoned his February 12, 2009 request for a hearing, the
Office noted that a telephone hearing had been scheduled for June 2, 2009. The record shows
that it mailed him an appropriate notice of the hearing to his address of record. Appellant did not
telephone the hearing representative as instructed. While he maintains on appeal that he never
received notice of the hearing date, the record contains no evidence that the Office’s April 30,
2009 notice was improperly addressed or was returned as undeliverable. The record contains no
11

Under section 8101(2), the definition of a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law. 5 U.S.C. § 8101(2).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also Claudia J. Whitten, 52 ECAB 483 (2001); 20 C.F.R. § 10.622.

4

evidence that appellant contacted the Office seeking postponement or inquiring on the status of
his hearing request. The record contains no evidence that appellant contacted the Office within
10 days to reschedule the hearing or explain his failure to participate in the scheduled telephonic
hearing.
Appellant failed to participate in the scheduled hearing and did not provide any
notification of such failure within 10 days of the scheduled hearing. As the circumstances of this
case meet the criteria for abandonment as provided in Chapter 2.1601.6(e) of the Office’s
procedure manual, the Board finds that appellant abandoned his request for an oral hearing.
CONCLUSION
The Board finds appellant has not established that he sustained an injury on November 4,
2008 in the performance of duty causally related to his employment. The Board further finds
that the Office properly determined that appellant abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the June 30 and January 30, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 21, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OAKHURST OUTPATIENT CLINIC,
Oakhurst, CA, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0056
Issued: March 21, 2017

Case Submitted on the Record

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

JURISDICTION
On October 17, 2016 appellant, through counsel, filed a timely appeal from a May 4,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
while in the performance of duty on January 13, 2014, as alleged.
On appeal counsel contends that the evidence of record is sufficient to establish
appellant’s claim.
FACTUAL HISTORY
On January 21, 2014 appellant, then a 54-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 13, 2014 she vomited twice, lacked focus, became
confused, and experienced headache and dizziness due to her exposure to toxic fumes from a
malfunctioning heating unit at work. She claimed that toxic exhaust fumes were emitted into her
office, examination rooms, and nearby areas of a clinic.
Medical reports and diagnostic test results dated January 14 to March 10, 2014 addressed
appellant’s diagnosis of toxic effect of carbon monoxide and carbon monoxide poisoning and her
work capacity.
In a January 30, 2014 letter, the employing establishment requested that OWCP
determine whether appellant’s request for continuation of pay should be granted in light of a lack
of medical evidence to support the request.
By letter dated February 13, 2014, OWCP noted that as appellant’s injury initially
appeared to be a minor injury resulting in minimal or no lost time from work, and because the
employing establishment had not controverted continuation of pay or challenged the merits of
the case, payment of a limited amount of medical expenses was administratively approved and
the merits of the claim had not been formally considered. The claim was reopened for
consideration by OWCP because the employing establishment had challenged the claim.
In a February 14, 2014 letter, Dr. T. Sutton, an employing establishment physician
Board-certified in occupational medicine, noted that there was no evidence to support that
appellant had carbon monoxide poisoning due to a blockage of an air conditioning unit causing a
noxious smell. He researched medical literature and found no cases where carbon monoxide
poisoning resulted from a blocked air conditioner. Dr. Sutton related that such an occurrence
was illogical because there was no burning of fossil fuels involved. In addition, he noted that
eight employees were working in the same environment and none of them had developed this
problem. Dr. Sutton maintained that it was conceivable that appellant had transient irritational
symptoms from the blocked air conditioner, but that three hours was too limited of an exposure
to cause any significant impairment. He further maintained that certainly she had no residuals
from this minimal exposure, which had been documented in the medical literature.
A JS West Propane Gas work order dated January 29, 2014 indicated that the gas
pressure was tested inside the employing establishment’s building. It was determined that the
pressure was good and there were no leaks.

2

In a January 19, 2014 narrative statement, appellant described the alleged January 13,
2014 incident. When she reported to work on that date she noticed a strange and out-of-the
ordinary smell when she entered the building. Appellant asked her staff about the smell and was
told that someone was coming to check on the situation and they should continue to see patients.
She returned to her office and within 20 minutes she experienced watery/burning eyes,
burning/tingling lips, hoarseness, coughing, and shortness of breath, a dull headache, dizziness,
and nausea. Appellant reported her illness to three staff members who exclaimed that her face
was bright red and asked if she was okay. She briefly saw a patient and then returned to her
office to retrieve water. Appellant’s symptoms worsened and she rushed to a restroom to vomit.
When she exited the restroom, three staff members had headaches, nausea, hoarseness, and
burning eyes. Appellant went outside to get some air and encouraged staff members to do the
same. She assessed another patient and later became light-headed and vomited again. Appellant
felt groggy, with poor focus of attention when she left the restroom. She noted that five other
staff members were having similar symptoms. Appellant encouraged the staff to grab a bottle of
water and get out of the building. The head nurse finally agreed to let the staff go, but she did
not call 911 for emergency services to evaluate the fumes or to provide for emergency treatment
to those affected by the toxic gas. Appellant and two other staff members had to wait several
hours before going home because they could not drive as they were groggy. They had to wait for
available family members to drive them home. Appellant noted a worsening of her symptoms
from January 14 to 16, 2014 for which she sought medical treatment. She maintained that she
had never experienced toxic substance/gas/carbon monoxide exposure.
In a January 20, 2014 narrative statement, an unidentified coworker noted that he had
developed carbon monoxide poisoning due to his exposure to exhaust fumes at work on
January 13, 2014, one year prior to this date. He also noted that appellant and other coworkers
were sickened by the strong exhaust fumes on January 13, 2014.3
A January 16, 2013 incident report from the California Department of Forestry and Fire
Protection noted that a “HZM2” was dispatched to check a strange smell at the employing
establishment. Upon arrival, five employees complained about dizziness and feeling ill. A
carbon monoxide detector and 4-gas monitor were used in the building to determine that no
gases were present. The employees were evaluated and no medical treatment was necessary. A
HAZMAT team was cancelled.
By letter dated June 26, 2014, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional medical evidence. It also requested that the
employing establishment respond to her allegations and provide information regarding her
workplace exposure.
Diagnostic test results and medical reports dated May 7 to 12, 2014 addressed appellant’s
carbon monoxide poisoning symptoms and conditions.
In a June 30, 2014 response to OWCP’s June 26, 2014 development letter, appellant
noted that the January 20, 2014 statement was authored by her coworker, M.F. and recorded
3

The coworker’s name was redacted.

3

points of clarification that she deemed necessary regarding her exposure claim. However, M.F.
did not re-sign this new statement regarding the clarification of factual allegations.
By letter dated July 14, 2014, the employing establishment submitted a July 7, 2014 email from E.Q., manager of the employing establishment clinic, who disagreed with appellant’s
claim that she was exposed to carbon monoxide. E.Q. noted a bad odor upon appellant’s arrival
to the clinic on January 13, 2014. The smell was similar to one noted one year earlier in the
building. A local fire department investigated the smell with a carbon monoxide meter and
determined that the building was safe as no carbon monoxide was detected. On January 13, 2014
the odorous heating ventilation and air conditioning (HVAC) unit was shut off and the side and
front doors of the clinic were opened to air out the building. Appellant was reassigned to an
examination room further from the source of the smell at the beginning of her shift. Employees
reporting symptoms were encouraged to get fresh air and go home if needed. Appellant stepped
out of the building multiple times due to her sensitivity to the odor. A propane company
responded to a service call and confirmed that there were no propane leaks. An HVAC
repairman identified a sooty buildup on an air conditioner unit which caused the heating element
on a compressor to burn out. Air samples were not obtained. The odor was cleared before noon.
Three employees went home sick, eight employees stayed their entire shift, and E.Q. stayed until
after 5:00 p.m. E.Q. noted that none of the exposed employees had any residual effects. The
clinic had since had a carbon monoxide monitor installed and the memory readings always read
zero.
An HVAC service order dated January 13, 2014 from Wilkins Enterprises indicated that
an air conditioner was plugged with soot. A heat exchange was replaced and the burner
operation was checked.
Medical reports dated July 17 to 23, and November 14, 2014 addressed appellant’s
alleged carbon monoxide poisoning and work capacity and the causal relationship between her
medical condition and the alleged January 13, 2014 employment incident.
On December 3, 2014 OWCP referred appellant, together with a statement of accepted
facts (SOAF), the medical record, and a list of questions, to Dr. Gerald B. Levine, a Boardcertified internist specializing in pulmonary diseases, for a second opinion. In a January 25,
2015 report, Dr. Levine reviewed the medical record and reported normal findings on diagnostic
and physical examination, noting “no obvious pulmonary repercussions from her exposure.” He
noted that appellant’s alleged toxic exposure at work had not been objectively elucidated.
Dr. Levine further noted that a diagnosis of carbon monoxide poisoning had not been
established. He indicated that appellant had no work restrictions.
In a February 17, 2015 decision, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the January 13, 2014 incident occurred at the
time and place and in the manner alleged. It noted that the employing establishment submitted
evidence to establish that she was not exposed to carbon monoxide or toxic gas and Dr. Levine
found no factual or objective confirmation of a diagnosis of carbon monoxide poisoning.
On June 5, 2015 appellant, through counsel, requested reconsideration. She argued that
appellant had submitted sufficient evidence to establish that her injuries were directly caused by

4

her exposure to toxic fumes at work. Counsel noted that inspection reports from JS West
Propane Company established that appellant was exposed to toxic fumes from gas leaks and soot
problems at the employing establishment. She further noted that her coworkers experienced the
same or similar symptoms after the January 13, 2014 exposure. Counsel contended that
Dr. Levine’s opinion regarding the facts of the case should not be given any weight in
determining whether fact of injury had been established.
Counsel submitted medical evidence which addressed appellant’s work capacity and
alleged carbon monoxide poisoning condition.
In a September 11, 2015 decision, OWCP denied modification of the February 17, 2015
decision. It found that the arguments and medical evidence submitted were insufficient to
establish that the January 13, 2014 incident occurred as alleged.
On February 4, 2016 counsel requested reconsideration of the September 11, 2015
decision. She submitted articles from publications which addressed carbon monoxide detectors
and carbon monoxide and propane. Counsel also submitted printouts from JS West Propane Co.
dated January 11, 2011 and December 22, 2014 and a bill from Johnson Air dated
January 13, 2014. She submitted medical reports dated February 2012 to August 7, 2015 which
addressed appellant’s conditions.
In a May 4, 2016 decision, OWCP denied modification of the September 11, 2015
decision. It found that the evidence of record failed to establish that appellant was exposed to
toxic fumes in the performance of duty on January 13, 2014, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

5

generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 The employee may establish that the employment incident
occurred as alleged, but fail to show that her disability or condition relates to the employment
incident.9
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.10
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.11
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish her
traumatic injury claim.
Appellant filed her claim on January 21, 2014. She alleged a traumatic injury due to her
exposure to toxic fumes at work on January 13, 2014, while in the performance of duty.
Appellant’s statement that she sustained a traumatic injury on January 13, 2014, although
entitled to great weight, is contradicted by the employing establishment’s statements and the
medical evidence.
The employing establishment noted that while a sooty buildup was found on an air
conditioner unit on January 13, 2014, testing of the air in the clinic on that date by a propane
company found no propane leaks. It further noted that a carbon monoxide monitor was
subsequently installed in the clinic building and the memory readings always read zero.
In a January 25, 2015 report, Dr. Levine, an OWCP referral physician, found that
appellant’s alleged toxic exposure at work had not been objectively elucidated. He further found
that a diagnosis of carbon monoxide poisoning had not been established based on his normal
diagnostic and physical examination findings, that there were no “obvious pulmonary
repercussions,” and that appellant had no work restrictions.

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

11

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

6

The Board finds that appellant failed to provide evidence sufficient to establish that the
January 13, 2014 incident occurred at work, as alleged.12 Appellant has not met her burden of
proof to establish any employment-related conditions.13 As such, it is unnecessary to address the
medical evidence regarding causal relationship.14
On appeal, counsel contends that the evidence of record is sufficient to establish
appellant’s claim. As found, appellant did not submit sufficient evidence to establish that the
January 13, 2014 incident occurred as alleged. Accordingly, she failed to establish fact of injury
in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 13, 2014, as alleged.

12

T.M., Docket No. 13-1997 (issued February 11, 2014).

13

See S.P., 59 ECAB 184 (2007); Michael A. Danowski, 34 ECAB 706 (1983).

14

Alvin V. Gadd, 57 ECAB 172 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2017
Washington, DC

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

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

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

8


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

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

Docket No. 08-1250
Issued: May 5, 2009

Case Submitted on the Record

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

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated February 28, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation in the amount of $73,212.21 was created because appellant did not report earnings
for the period January 20, 2002 to April 7, 2004; and (2) whether the Office properly found that
appellant was at fault in the creation of the overpayment and, therefore, it was not subject to
waiver.
FACTUAL HISTORY
On November 9, 1999 the Office accepted that appellant, then a 51-year-old supervisor of
customer-services, sustained an employment-related major depression, recurrent, severe,

generalized anxiety disorder, severe and post-traumatic stress disorder. He had stopped work on
June 24, 1999 and was placed on the periodic rolls.
Appellant submitted Office Forms EN1032 and reported no employment activity. The
forms were dated April 2, 2001, April 8 and 10, 2003, March 11 and April 7, 2004 and
July 18, 2005. In an undated letter received by the Office on August 13, 2003, he advised that
the only wages he received from January 1, 1999 through December 31, 2002 were from the
employing establishment through June 24, 1999.
An August 30, 2005 postal inspection service investigative memorandum indicated that
on April 7, 2004 appellant told a postal inspector that he only worked at occasional chores at his
church. However, the postal inspector reported that from February through May 2003, appellant
was observed using his dump truck to pick up 16 loads of rocks. On August 27 and 28, 2003 he
worked over seven hours each day moving portable toilets. On September 25 and 26, 2003
appellant used his dump truck to pick up 14 loads of gravel. On October 31, 2003 he used his
dump truck to pick up a load of rock and on November 6 and 20, 2003 he was witnessed
assisting in work on a sanitation pump truck with Rick A. Harris, who advised that he paid
appellant by buying him lunches and by giving him a 1981 Chevrolet pick-up truck, a donkey
and sheep. On October 3, 2005 the Office of the Inspector General of the Department of Labor
provided supportive documentation including sworn affidavits, a transfer of title for a 1981 truck
and a number of receipts dated February 25, 2003 to March 25, 2004 for hauling truck loads of
materials signed or initialed by appellant.
By decision dated November 8, 2005, the Office found that appellant knowingly omitted
and/or understated work activity and earnings on Forms EN1032 covering the period June 16,
2002 through April 7, 2004.1 It also made a preliminary determination that he received an
overpayment in compensation in the amount of $73,212.21 because he knowingly failed to report
work activity for the period March 24, 2002 to July 3, 2006 and had received compensation in
this amount. Computer print-outs and an Office overpayment worksheet indicate that appellant
received $73,212.21 in compensation for this period.
On November 15, 2005 appellant, through his attorney, requested a hearing regarding the
final forfeiture decision and the preliminary overpayment finding. On November 16, 2005
appellant elected Office of Personnel Management retirement benefits, effective
December 1, 2005. By letter dated October 30, 2007, the Office informed appellant and his
attorney that the hearing was scheduled for December 5, 2007. In a letter dated November 13,
2007, appellant’s attorney informed the Office that appellant did not wish to proceed with the
scheduled hearing. On December 3, 2007 it informed appellant that his request for withdrawal
from the hearing had been accepted. In a January 15, 2008 letter, the Office informed appellant
that a final overpayment needed to be issued and offered him the option of a telephone
conference. An overpayment questionnaire was enclosed. On January 24, 2008 appellant
1

The Office stated that appellant had been in receipt of periodic compensation for temporary total disability since
June 16, 2002. The record, however, contains computer print-outs indicating that he received wage-loss
compensation in 2001 and there is no indication that his compensation stopped until he elected Office of Personnel
retirement compensation in December 2005. There is also a Social Security Administration statement showing
earnings in 2000 and 2001.

2

telephoned the Office to discuss the overpayment.
information.

He was advised to submit financial

On January 24, 2008 appellant submitted an overpayment questionnaire and stated that,
under the advice of his psychiatrist, he was only helping friends and was not paid for his work.
By decision dated February 28, 2008, the Office finalized the preliminary determination that
appellant was at fault in creating the $73,212.21 overpayment because he failed to provide
information that he knew or should have known was material.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the
United States shall pay compensation as specified by this subchapter for the disability or death of
an employee resulting from personal injury sustained while in the performance of his duty.2 A
claimant, however, is not entitled to receive temporary total disability and actual earnings for the
same period.3 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work and continues to receive compensation.4
Section 8106(b) provides that the Secretary of Labor may require a partially disabled
employee to report his earnings from employment or self-employment, by affidavit or otherwise,
in the manner and at the times the Secretary specifies. It provides that an employee who fails to
make an affidavit or report when required or knowingly omits or understates any part of his or
her earnings forfeits his or her right to compensation with respect to any period for which the
affidavit or report was required.5
In order to establish that compensation should forfeit the compensation received for the
periods covered by completed Office EN1032 forms, the evidence must establish that he or she
knowingly omitted or understated his or her employment and earnings.6 As forfeiture is a
penalty, it is not enough merely to establish that there were underreported earnings from
employment. The inquiry is whether appellant knowingly omitted or understated his earnings
from employment for the periods covered by the EN1032 forms. The term knowingly is not
defined within the Act or it’s implementing federal regulations. In common usage, the Board has
adopted the definition of “knowingly” as “with knowledge, consciously, intelligently, willfully,
intentionally.”7 The language on Office EN1032 forms is clear and unambiguous in requiring a
claimant to report earnings for the previous 15 months from any employer, self-employment or a

2

5 U.S.C. § 8102(a).

3

Donna M. Rowan, 54 ECAB 698 (2003).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
5

5 U.S.C. § 8106(b); see F.C., 59 ECAB ____ (Docket No. 07-1541, issued November 16, 2007).

6

Robert R. Holmes, 49 ECAB 161 (1997).

7

Harold F. Franklin, 57 ECAB 387 (2006).

3

business enterprise in which he or she worked. The forms further emphasize that severe
penalties may be applied for failure to report all work activities thoroughly and completely.
Section 10.529 of the Office’s regulations provides that, if an employee knowingly omits
or understates any earnings or work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was required. A false or evasive
statement, omission, concealment or misrepresentation with respect to employment activity or
earnings in a report may also subject an employee to criminal prosecution. Where the right to
compensation is forfeited, the Office shall recover any compensation already paid for the period
of forfeiture pursuant to section 8129 and other relevant statutes.8
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant knowingly failed to report his
employment activities on Office EN1032 forms. The language on the forms is clear and
unambiguous in requiring that a claimant report all earnings or involvement in business
enterprises, including odd jobs even if intermittent and specifically notes that unpaid duties must
also be reported and an appropriate rate of pay shown for the activity. Appellant performed
work activities including; hauling with his dump truck. His signature on the EN1032 forms
dated April 10, 2003, March 11 and April 7, 2004 certified that “all the statements made in
response to questions on this form are true, complete and correct to the best of my knowledge
and belief.” On each of these forms, appellant reported no work, no self-employment and no
volunteer work of any kind. Each of the forms covered the 15-month period prior to the date of
his signature and the answers he provided with regard to his work activities were in violation of
section 10.529 of the Office’s regulations. Thus, appellant knowingly forfeited his right to
compensation for the period June 16, 2002 to April 7, 2004 and an overpayment in compensation
was created. In calculating the amount of the overpayment, the Office properly determined that
he received wage-loss compensation totaling $73,212.21 for the period in question. It, therefore,
properly found that an overpayment in compensation in the amount of $72,212.21 had been
created for the period June 16, 2002 to April 7, 2004.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides that an overpayment in compensation shall be
recovered by the Office unless “incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of the Act or would be
against equity and good conscience.”10

8

Id.

9

F.C., supra note 5.

10

5 U.S.C. § 8129(b); see Linda E. Padilla, 45 ECAB 768 (1994).

4

Section 10.433(a) of the Office regulations provides:
“[The Office] may consider waiving an overpayment only if the individual to
whom it was made was not at fault in accepting or creating the overpayment.
Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [it is] proper. The
recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”11
To determine if an individual was at fault with respect to the creation of an overpayment,
the Office examines the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.12
ANALYSIS -- ISSUE 2
The Office found appellant at fault in creating the overpayment in compensation because
appellant knowingly failed to report employment activities. Appellant had an obligation to show
good faith and to exercise a high degree of care in reporting events that could affect the amount
of his compensation.13 On the Office EN1032 forms dated April 10, 2003 and March 11 April 7,
2004, he indicated that he had no earnings and was not performing work activities. The forms
properly advised appellant that a false or evasive answer to any question could be grounds for
forfeiting compensation benefits and advised that severe penalties could be applied for failure to
report all work activities thoroughly and completely. When he signed the forms, he certified that
he understood that he must immediately report to the Office any employment or work activities.
Appellant failed to inform the Office of his work activities, information that he knew or should
have known was material to the calculation of his wage-loss compensation.14 The Board finds

11

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

12

20 C.F.R. § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

13

Sinclair L. Taylor, supra note 11.

14

Harold F. Franklin, supra note 7.

5

that he was thus at fault in the creation of the overpayment in compensation.15 Because appellant
is at fault in the creation of the overpayment, he is not entitled to waiver.16
CONCLUSION
The Board also finds that appellant was at fault in the creation of an overpayment in the
amount of $73,212.21.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2008 be affirmed.
Issued: May 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

15

F.C., supra note 5.

16

The Board notes that its jurisdiction is limited to reviewing those cases where the Office seeks recovery from
continuing compensation benefits under the Act. Where, as here, a claimant is no longer receiving wage-loss
compensation benefits, the Board does not have jurisdiction with respect to the Office’s recovery of the
overpayment under the Debt Collection Act. Albert Pineiro, 51 ECAB 310 (2000).

6


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

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

Docket No. 17-0106
Issued: April 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 25, 2016 appellant filed a timely appeal from an April 28, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 28, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On March 1, 2016 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that at 3:55 p.m., on January 11, 2016, she fell on an entry step while
carrying a heavy package into a building and hit her head on the wall. She indicated that the
injury occurred at 448 Washington Road, first floor. Appellant reported sustaining a cut on the
top of her head which required two stitches. She first received medical care on January 11, 2016
and notified her supervisor on March 10, 2016. Appellant did not stop work following her
injury. On the reverse side of the form, appellant’s supervisor controverted the claim noting that
the injury was reported more than 30 days after the incident occurred.
By letter dated March 17, 2016, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It informed her that the evidence was insufficient to
establish that she actually experienced the incident or employment factor alleged to have caused
injury, that there was no diagnosis of any condition, nor was there a physician’s opinion as to the
cause of her injury. Appellant was advised of the factual and medical evidence needed to
support her claim and was afforded 30 days to submit the necessary evidence. OWCP also
provided a questionnaire for completion and requested that she submit a response in order to
substantiate the factual basis of her claim. Appellant did not respond or complete the
development questionnaire.
In support of her claim, appellant submitted a January 11, 2016 Raritan Bay Medical
Center Emergency Department report documenting her treatment on that date. No history of
injury was related in this report. Laceration of the scalp was diagnosed. The report noted that
appellant was treated for a single repair laceration by Dr. Santiago Muzones, Board-certified in
internal medicine. Additionally, discharge instructions were provided for staple removal.
By decision dated April 28, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that the January 11, 2016 employment incident occurred as
alleged. It noted that she failed to respond to the questionnaire that was sent with the March 17,
2016 development letter. OWCP concluded that appellant failed to establish an injury in the
performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

3

Gary J. Watling, 52 ECAB 278 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
the employee must submit sufficient evidence to establish that she experienced a specific event,
incident, or exposure occurring at the time, place, and in the manner alleged. She must also
establish that such event, incident, or exposure caused an injury.6 Once the employee establishes
that she sustained an injury in the performance of duty, she has the burden of proof to establish
that any subsequent medical condition or disability for work, for which she claims compensation
is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden of proof when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
ANALYSIS
The Board finds that appellant failed to establish that she sustained a scalp laceration on
January 11, 2016 at the time, place, and in the manner alleged.9 Appellant has therefore not
established an injury in the performance of duty.
Appellant must establish all of the elements of her claim in order to prevail. She has
provided insufficient detail to establish that a traumatic incident occurred as alleged.10 On her
claim form, appellant alleged that she sustained a cut on her head when she fell on an entry step
while carrying a heavy package and hit her head on a wall. She did provide the time and place of
the alleged injury. The Board notes however that appellant’s description of the traumatic
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams,
41 ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 3.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

J.L., Docket No. 16-1114 (issued October 25, 2016).

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

incident is vague and fails to provide any specific detail to determine the manner in which she
sustained her injury. Appellant’s description did not relate with specificity the circumstances of
the injury, or identify the actual cause.11 She provided no explanation as to why she fell, for
example if she tripped, slipped, or fell due to weakness of a lower extremity. While appellant
sought medical treatment on January 11, 2016 at the Raritan Bay Medical Center Emergency
Department, this report is also insufficient to establish fact of injury. This medical report did not
relate a history of injury. Therefore, while this document has some connection to appellant’s
claim, it is of limited probative value as it offers no further evidence that the incident occurred as
alleged.12 Appellant’s supervisor controverted the claim indicating that appellant failed to report
the incident for more than 30 days after the alleged January 11, 2016 date of injury.
Appellant was provided an opportunity to establish how her alleged injury occurred on
January 11, 2016. By letter dated March 17, 2016, OWCP requested she describe the factual
circumstances of her injury and provided her with a questionnaire for completion. Appellant did
not respond to the questionnaire and failed to provide a narrative statement detailing the
traumatic incident. The only explanation provided pertaining to the January 11, 2016 traumatic
incident was the generalized and vague statement noted in her Form CA-1. By failing to
describe the employment incident and circumstances surrounding her alleged injury, appellant
has not established that the traumatic injury occurred as alleged.13
On appeal, appellant argues that her January 11, 2016 injury was work related and
described the details surrounding the alleged employment incident. As previously noted, the
Board does not have jurisdiction over the merits of the claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty on January 11, 2016.

11

T.N., Docket No. 16-1099 (issued December 16, 2016).

12

David J. McDonald, 50 ECAB 185 (1990).

13

P.T., Docket No. 14-598 (issued August 5, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2017
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1064
Issued: December 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 22, 20162 appellant, through counsel, filed a timely appeal of an October 28,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to

1

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). One hundred eighty
days from October 28, 2015 was April 25, 2016. Since using April 26, 2016, the date the appeal was received by the
Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is April 22, 2016, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and schedule award benefits as she refused a suitable work position.
On appeal counsel argues that OWCP’s decision was incorrect as it was based upon
flawed findings of fact and conclusions of law.
FACTUAL HISTORY
On September 12, 2012 appellant, then a 38-year-old carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her low back on August 31, 2012 carrying a heavy
mail load on a long walking route. She underwent a magnetic resonance imaging (MRI) scan on
September 12, 2012, which demonstrated a moderately bulging L4-5 disc with a small broadbased central disc herniation and a bulging L5-S1 disc. OWCP accepted this claim for herniated
disc at L4-5 on October 26, 2012.
Appellant’s attending physician, Dr. Richard J. Weinstein, a Board-certified family
practitioner and occupational medicine specialist, released appellant to return to work on
November 27, 2012. He provided work restrictions and indicated that she could work four hours
a day commencing April 5, 2013.
Appellant accepted a new, light-duty position on
April 9, 2013.
Appellant underwent electrodiagnostic testing on June 3, 2013, which was normal with
no evidence for peripheral neuropathy, lumbosacral radiculopathy, thoracic radiculopathy, or
peripheral nerve impairment.
OWCP referred appellant for a second opinion evaluation with Dr. Robert F. Draper, a
Board-certified orthopedic surgeon, on June 25, 2013. Appellant underwent a cervical MRI scan
on July 15, 2013 which demonstrated a small right paracentral disc herniation at C4-5. In a
report dated July 23, 2013, Dr. Draper noted her history of injury and her accepted condition of
herniated disc at L4-5. He reported that appellant was working four hours a day. Dr. Draper
concluded that she could lift 20 pounds occasionally and 10 pounds frequently and could work
40 hours a week. He noted that appellant had not reached maximum medical improvement.
On November 16, 2013 the employing establishment offered appellant a light-duty
position working six hours day, walking, driving while seated, and delivering parcels weighing
less than 10 pounds. Appellant accepted that position on that date.
Dr. Martin J. Wall, an osteopath, examined appellant on January 28, 2014 and diagnosed
displacement of intervertebral disc. He provided the work restrictions of no lifting over 10
pounds and working four hours a day five days a week. Dr. Wall referred appellant to
3

5 U.S.C. § 8101 et seq.

2

Dr. Kevin Lasko, a chiropractor, for therapy and noted that he recommended that she work only
four hours a day. Appellant underwent a lumbar MRI scan on January 9, 2014 which
demonstrated a moderate broad-based disc herniation at L4-5 with a generalized disc bulge at
L5-S1 and minimal disc bulge at L2-3. Her findings had not significantly changed since
April 2013.
Appellant filed a recurrence of disability claim (Form CA-2a) on February 10, 2014
alleging that working six hours a day with a 20-pound lifting restrictions had increased her pain
level. In a report dated February 10, 2014, Dr. Lasko noted that he and Dr. Wall agreed that a
four-hour workday was in keeping with her work capacity. He further noted that appellant
should work only five days a week and lift, push, or pull no more than 10 pounds. Dr. Lasko
noted that he had diagnosed low back pain and lumbosacral sprain/strain throughout the course
of her ongoing treatment.
In reports dated February 11 and 28, 2014, Dr. Wall diagnosed lumbar strain, lumbar
herniated disc, and cervical paracentral disc herniation. He provided appellant’s work
restrictions as no lifting over 10 pounds.
OWCP referred appellant for an additional second opinion evaluation with Dr. Draper on
February 14, 2014. Dr. Draper examined her on February 25, 2014 and noted her report that her
back pain had increased when working six hours a day. He found that appellant continued to
experience residuals of her accepted condition and opined that her work injury permanently
aggravated her preexisting degenerative disc disease at L5-S1. Dr. Draper opined that she could
perform light-duty work lifting 20 pounds occasionally and 10 pounds frequently. He concluded
that appellant could stand and walk for two hours out of six-hour day and could sit for four hours
of a six-hour day. Dr. Draper limited her to a five-day workweek.
OWCP requested a supplemental report from Dr. Draper on March 11, 2014 and noted
that appellant had not returned to full-time work, but worked six hours a day, six days a week
from November 16, 2013 through January 24, 2014. It asked that he provide rationalized support
relative to his work limitations.
Dr. Wall completed a report on March 11, 2014 and opined that appellant should work
four hours a day five days a week. He suggested that these limitations would assist in her
healing process. Dr. Wall based his recommendations on appellant’s September 12, 2012 MRI
scan and her clinical conditions.
Dr. Draper completed a supplemental report on March 17, 2014 and indicated that
appellant could work six days a week rather than five with restrictions. Appellant’s work
restrictions were no lifting more than 20 pounds occasionally and 10 pounds frequently. She
could stand and walk for two hours out of the six-hour day and sit for four hours. Dr. Draper
found that appellant could not walk for six hours a day.
On March 20, 2014 appellant accepted a light-duty position working four hours a day.
She was not required to lift more than 10 pounds. Dr. Wall continued to restrict appellant to four
hours of work a day, five days a week with a lifting weight restriction of 10 pounds from
March 27 through June 5, 2014.

3

The employing establishment offered appellant a city delivery position on April 4, 2014
which required six hours a day, walking for two hours, seated driving for four hours, and casing
a route while seated for two hours. Appellant was to deliver parcels and items weighing less
than 20 pounds. She accepted this position on April 4, 2014.
On April 23, 2014 Dr. Lasko noted that appellant continued to show slow, but steady
improvements in her condition as she continued to work under the given restrictions, repetitively
bending and sorting mail as well as delivering mail via walking with a mail pouch. He noted that
with the change in job duties he had altered her rehabilitation plan to mimic her work duties.
By decision dated May 23, 2014, OWCP accepted appellant’s claim for recurrence of
total disability from February 7 through March 19, 2014.
On June 19, 2014 the employing establishment noted that while appellant had been
returned to limited-duty work for six hours a day, six days a week, she was only working what
she feels she is capable of performing and claiming leave without pay. Due to her sporadic work
the employing establishment noted difficulty verifying her leave without pay hours.
In a letter dated June 23, 2014, OWCP informed appellant that the April 4, 2014 position
was suitable based on her medical limitations as provided by Dr. Draper. The employing
establishment confirmed that this position continued to be available to her for the entire six
hours. OWCP informed appellant that she must accept the position within 30 days or offer
written reasons for her refusal within that period. It further informed her that if she failed to
work when suitable work was provided for her, she would not be entitled to further
compensation for wage loss or a schedule award. OWCP concluded that, at the end of the
30-day period, a decision would be rendered based on the evidence of record and that if appellant
failed to report to the offered position and her reasons for refusing were not deemed justified, her
right to compensation and schedule award benefits would be terminated.
On June 18, 2014 Dr. Wall found that appellant’s symptoms had increased as she was
required to work outside his restrictions. He repeated his restrictions of no lifting over
10 pounds, working four hours a day, five days a week, and added no repetitive twisting of the
low back. Dr. Wall repeated these restrictions from July 1 through October 9, 2014.
OWCP referred appellant for an additional evaluation with Dr. Draper on
September 24, 2014.
The employing establishment offered appellant an alternate light-duty position separating
Postal Automated Redirection System (PARS) mail for return to senders on October 16, 2014.
This position required appellant to lift up to 20 pounds occasionally and 10 pounds frequently for
four to six hours a day. She was also required to stand or walk for one to two hours a day and to
be seated with a change in position every hour for four to six hours a day. Appellant refused this
position on October 18, 2014 as it did not adhere to her restriction of sitting for no more than
four hours a day.
In a letter dated October 30, 2014, OWCP noted that appellant was offered the PARS
position on October 18, 2014. It found that this position was suitable work as it complied with
Dr. Draper’s March 17, 2014 restrictions including no lifting over 20 pounds occasionally and 10
4

pounds frequently, standing for two hours out of a six-hour day, and sitting for four hours out of
a six-hour day. OWCP informed appellant of her right to respond within 30 days and the
consequences of refusing a suitable work position including termination of her wage-loss
compensation and schedule award benefits.
Dr. Wall completed a report on October 22, 2014 and found that appellant was
experiencing a new onset of pain and tingling radiating down her right leg. He noted that she
was working six hours a day with twisting to put mail in boxes. Dr. Wall restricted appellant to
no lifting over 10 pounds, sitting two hours a day, walking two hours a day, and working four
hours a day, five days a week.
On November 4, 2014 the employing establishment reiterated the physical requirements
of the PARS position, noting that sitting was a tolerated as this was a “work at your own pace
assignment.” Appellant had the option to change positions as needed from sitting to standing
any length of time of her choosing.
In a letter dated November 7, 2014, appellant contended that the PARS job offer did not
follow Dr. Draper’s restrictions as she could not sit for six hours a day. She further noted that
she could not perform the position while standing without bending at the waist to sort through
mail in the trays. Appellant alleged that Dr. Draper allowed only limited bending and twisting of
her back and requested a more suitable position.
OWCP identified a conflict in medical opinions as existing between Drs. Draper and
Wall regarding appellant’s work restrictions. It referred her, a statement of accepted facts, and a
list of specific questions for an impartial medical examination to Dr. John Francis Perry, a
Board-certified orthopedic surgeon, on November 7, 2014. Following the November 7, 2014
letter referring appellant to an impartial medical examination for purposes of establishing proper
work restrictions, OWCP informed her, by letter dated November 20, 2014, that the PARS
position was suitable work. It further concluded that the weight of the medical evidence of
record rested with Dr. Draper as Dr. Walls merely noted that he agreed with Dr. Lasko’s
restriction that appellant could work only four hours a day. OWCP found that she had 30 days to
accept the position or provide a written reason for her refusal. It again informed appellant of the
penalties of refusing a suitable work position.
In a decision dated December 2, 2014, OWCP denied appellant’s claim for compensation
for the period March 8 through August 23, 2014 as it remained unable to determine any period of
disability as she failed to submit proper medical evidence, as requested on November 4, 2014
supporting disability during the period claimed.4 The employing establishment had noted that it
had offered suitable work during this period, but she sporadically worked what she felt capable
of working.

4

Appellant requested a review of the written record from OWCP’s Branch of Hearings and Review on
December 30, 2014 from the December 2, 2014 denial of compensation. In a decision dated June 12, 2015,
OWCP’s hearing representative affirmed OWCP’s December 2, 2014 decision denying compensation for benefits
for the period March 8 through August 23, 2014.

5

On January 5, 2015 OWCP informed appellant that her reasons for refusing the PARS
position were not valid. It noted that the employing establishment reported that this position was
still available and granted her an additional 15-day period to accept and report to this position.
OWCP informed appellant that if she did not accept and report to the position within the allotted
15-day period her entitlement to wage loss and schedule award benefits would be terminated.
Appellant underwent an additional lumbar MRI scan on December 4, 2014. This study
demonstrated broad disc protrusions and central annular tears at L4-5 and L5-S1.
Dr. Perry, the impartial medical specialist, completed his report on January 2, 2015. He
listed appellant’s history of injury and reviewed her medical history. Dr. Perry found normal
lower extremity sensation, musculature, and reflexes. He found that appellant’s motion tests
were nondiagnostic, that she had no atrophy, and that her straight leg raising test did not indicate
mechanical low back pain problems. Dr. Perry diagnosed low back pain of questionable origin,
degenerative disc disease of the lumbar spine, small noncompressive central disc herniation of
L4-5 of questionable age, inconsistent examination, subjective presentation, and possible left hip
trochanteric bursitis. He opined that due to appellant’s inconsistencies she could return to work
without restrictions due to her August 31, 2012 work injury.
On January 29, 2015 OWCP contacted the employing establishment and confirmed that
the PARS position was still available for appellant and that she could change positions so that
she was not required to sit for more than four hours.
By decision dated January 29, 2015, OWCP terminated appellant’s wage-loss
compensation and schedule award benefits effective January 20, 2015 as she had refused suitable
work in accordance with 5 U.S.C. § 8106(c)(2). Counsel requested an oral hearing regarding this
decision from OWCP’s Branch of Hearings and Review on February 3, 2015.
In a letter dated February 27, 2015, counsel argued that appellant had attempted to accept
the offered position beginning on January 20, 2015, but that the employing establishment
ignored her. Appellant submitted a series of e-mails dated January 20, 22, and 29, 2015
addressed to officials at the employing establishment indicating that she was accepting the PARS
position and asking when to report. On January 30, 2015 her supervisor informed her that as of
January 28, 2015 the PARS position was no longer available as Dr. Perry found that she could
return to work without restrictions.
On March 3, 2015 OWCP requested that Dr. Perry provide a supplement report following
review of appellant’s MRI scan reports. In a report dated April 20, 2015, Dr. Perry reviewed her
MRI scans and found degenerative disc disease in the lumbar spine with very small
noncompressive protrusions of L4-5 and L5-S1. He concluded that these studies did not change
his prior expressed opinions.
Appellant testified at the oral hearing regarding the suitable work determination decision
on August 13, 2015 and asserted that she had attempted to accept the PARS job offer. She
received a voice mail from her supervisor that the position was no longer available sometime
before January 20, 2015.

6

By decision dated October 28, 2015, OWCP’s hearing representative found that OWCP
met its burden of proof to terminate appellant’s wage-loss compensation benefits as she failed to
accept a suitable work position. She found that the offered position was within appellant’s
established medical restrictions. OWCP’s hearing representative further found that OWCP had
provided appellant with 15 days to accept the offered position on January 5, 2015. Counsel
argued that appellant had attempted to accept the position, but was told that the suitable work
position was no longer available. OWCP’s hearing representative found that the position was
still available.
LEGAL PRECEDENT
It is well settled that once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.5 As OWCP in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), OWCP must establish that appellant refused
an offer of suitable work. Section 8106(c) of FECA6 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee is not entitled to compensation. Section 10.517 of the applicable regulations7 provides
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee, has the burden of showing that such refusal or failure to work was reasonable
or justified, and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation. 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.8 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.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

5

Mohamed Yunis, 42 ECAB 325, 334 (1991).

6

5 U.S.C. § 8106(c)(2).

7

20 C.F.R. § 10.517(a).

8

Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

9

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

10

See Linda Hilton, 52 ECAB 476 (2001).

11

Id.

7

ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and schedule award benefits effective January 20, 2015 under
8106(c)(2).
OWCP accepted appellant’s claim for herniated disc at L4-5 on October 26, 2012. By
decision dated January 29, 2015, it terminated her wage-loss compensation and schedule award
benefits effective January 20, 2015 as she had refused suitable work in accordance with 5 U.S.C.
§ 8106(c)(2). OWCP relied upon the findings of Dr. Draper, the second opinion physician, to
determine that the offered PARS position was suitable work. However, before issuing the
January 29, 2015 termination decision, it found that there was an unresolved conflict of medical
opinion evidence between appellant’s attending physician Dr. Wall and Dr. Draper regarding the
extent of appellant’s restrictions. OWCP referred her to Dr. Perry on November 7, 2014 for an
impartial medical examination. It, however, based its suitable work termination on Dr. Draper’s
report rather than the report of Dr. Perry, the impartial medical specialist selected to resolve
conflict as to appellant’s restriction, the exact issue in question. Once OWCP undertakes
development of the record on a particular issue, herein her work capacity, it needs to complete
the process and resolve the existing medical conflict before terminating her benefits.12
The Board finds that OWCP terminated appellant’s compensation benefits effective
January 20, 2015 without having first resolved the existing conflict in opinion between
Dr. Draper and Dr. Wall. Due to this defect, OWCP failed to meet its burden of proof to
terminate her compensation benefits.13
Accordingly, the Board will reverse the October 28, 2015 decision which terminated
appellant’s compensation benefits because she had refused suitable work under 5 U.S.C.
§ 8106(c)(2).
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and schedule award benefits effective January 20, 2015.

12

Richard F. Williams, 55 ECAB 343, 346 (2004).

13

See J.R., Docket No. 13-0720 (issued October 21, 2013); Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M.
Crenshaw, Jr., 40 ECAB 919, 922-23 (1989).

8

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 6, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9