United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 10-443
Issued: November 19, 2010

Case Submitted on the Record

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

JURISDICTION
On December 7, 2009 appellant filed a timely appeal from the August 25 and
September 30, 2009 merit decisions of the Office of Workers’ Compensation Programs
terminating his compensation and denying his claim for a schedule. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective May 31, 2008 on the grounds that he abandoned suitable work; and (2) whether
appellant is entitled to a schedule award.
FACTUAL HISTORY
The Office accepted that on January 3, 2005 appellant, then a 59-year-old fuel
distribution system worker, sustained a medial meniscus tear of his right knee when he stepped
in a gopher hole at work. He stopped work on March 2, 2005 and underwent a partial medial
meniscectomy with joint debridement of the right knee on March 14, 2005. On March 26, 2005

appellant underwent arthroscopic debridement and lavage.
medical compensation.

The Office paid wage-loss and

In a February 2, 2006 report, Dr. Ronald M. Krasnick, an attending Board-certified
orthopedic surgeon, stated that appellant exhibited an antalgic gait, a varus deformity on the
right, a thick right knee synovium and 95 degrees of right knee flexion. He advised that
appellant had end-stage tricompartmental arthritis and that the treatment of choice was a total
knee arthroplasty. Dr. Krasnick recommended that appellant consult with Dr. Robert Booth, a
Board-certified orthopedic surgeon, before any decision was made. On September 14, 2006
Dr. Zohar Stark, a Board-certified orthopedic surgeon serving as an Office referral physician,
noted that examination of appellant revealed diffuse swelling and tenderness in his right knee.
He determined that appellant had ongoing residuals of the accepted work injury which might
necessitate surgery. Dr. Stark completed a Form OWCP-5 indicating that appellant was capable
of returning to work with restrictions.1 Based on the report of Dr. Stark, appellant was referred
for vocational rehabilitation services.
In a January 23, 2007 report, Dr. Krasnick stated that appellant had chronic degenerative
disc disease and spondylosis in his lumbosacral spine and severe tricompartmental degenerative
arthritis in his right knee. Appellant remained totally disabled from work and was a candidate
for a synvisc injection or a total knee arthroplasty. On June 11, 2007 Dr. Booth examined
appellant and diagnosed degenerative arthritis of his right knee. He encouraged appellant not to
have a total knee arthropathy due to his youth, right leg sciatica and “his multiple confounding
issues.” Dr. Booth was asked to complete an OWCP-5 form indicating appellant’s work
restrictions. In a June 20, 2007 letter, he indicated that he was returning the form uncompleted
as he felt appellant should be evaluated by a physician with expertise in determining work
limitations.
The Office determined that there was a conflict in medical opinion between Dr. Krasnick
and Dr. Stark regarding appellant’s ability to work. It referred appellant to Dr. Gregory S.
Maslow, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
On September 11, 2007 Dr. Maslow reviewed appellant’s factual and medical history and
reported the findings on examination of appellant. Appellant had patellofemoral crepitus in his
right knee but none in his left and there was no patellofemoral compression pain on either side.
The left knee showed 0 to 125 degrees of flexion and the right knee showed 0 to 125 degrees of
flexion with pain. Dr. Maslow stated that there was no medial, lateral or drawer instability in
either knee and that there was diffuse mild tenderness in the anterior of the right knee. There
was no popliteal tenderness on either side and no leg length discrepancy. The neurologic
examination of the lower extremities showed that reflexes were intact and there was no sensory
deficit to light touch in either lower extremity. Dr. Maslow stated that on January 3, 2005
appellant sustained a sprain of his right knee with aggravation of preexisting degenerative
changes and a tear of the medial meniscus. As a result of surgery undertaken for this diagnosis,
appellant also suffered pulmonary emboli and a staphylococcus infection of his right knee.
Dr. Maslow noted limited findings for appellant’s neck, trunk and upper extremities. He noted
that appellant exhibited mild evidence of impairment during the clinical evaluation. Appellant’s
1

Dr. Stark stated that appellant could lift, push and pull up to 20 pounds for up to eight hours per day, sit for up to
eight hours per day, walk for up to one hour per day and stand for up to one hour per day.

2

use of a cane was deemed to be optional, but it would be appropriate to use it with his left hand.
Dr. Maslow stated that appellant was not totally disabled and “certainly could manage a lightduty or sedentary-type job.”
Dr. Maslow completed a Form OWCP-5 indicating that appellant was capable of
returning to work on a full-time basis with restrictions. He found that appellant could walk for
one to two hours per day; stand for one to two hours per day; operate a motor vehicle at work;
and operate a motor vehicle to and from work for short distances. Appellant could lift, push and
pull up to 25 pounds but he could not engage in squatting, kneeling or climbing.
In a November 15, 2007 report, Dr. Krasnick diagnosed spondylolisthesis at L5-S1 and
degenerative disc disease at L5-S1 and indicated that appellant was totally disabled.
On March 3, 2008 the employing establishment offered appellant a modified job as a
supply clerk. This position was sedentary in nature and did not require him to squat, kneel or
climb. While sitting in a chair, appellant would be required to perform such duties as issuing and
receiving supplies, preparing and submitting transaction documents, monitoring contracts and
providing administrative support to property book office operations. He would be allowed to sit
or stand at his convenience for comfort and would be permitted to take occasional walks. The
supply clerk position required walking for one to two hours a day; standing for one to two hours
a day and lifting, pushing and pulling up to 25 pounds.2 On March 15, 2008 appellant indicated
that he could neither accept nor reject the offered position but would contact his physician to
discuss whether it was suitable.
In a March 28, 2008 letter, the Office advised appellant of its determination that the
supply clerk position offered by the employing establishment was suitable. It informed him that
his compensation would be terminated, under 5 U.S.C. § 8106(c)(2), if he did not accept the
position or provide good cause for not doing so within 30 days of the date of the letter.
In a report of Dr. Krasnick, received by the Office on April 7, 2008, he advised that
appellant’s physical examination was unchanged. He reviewed the supply clerk position offered
by the employing establishment and asserted that prolonged sitting was inconsistent with
appellant’s physical capabilities. Dr. Krasnick reiterated that appellant was totally disabled.
In an April 29, 2008 letter, the Office advised appellant that his reasons for not accepting
the position offered by the employing establishment were unjustified. It advised him that his
compensation would be terminated, under 5 U.S.C. § 8106(c)(2), if he did not accept the position
within 15 days of the date of the letter.
In an April 29, 2008 report, Dr. Krasnick stated that appellant had become progressively
immobilized based on a clinical diagnosis of depression. He noted that appellant had a sluggish
gait, severe crepitus, varus deformities and marked restriction of motion and indicated that he
was totally disabled.

2

The job description indicated that all duties would be in accordance with the restrictions recommended by
Dr. Maslow.

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Appellant accepted the job offer on May 14, 2008 and returned to work on May 25, 2008.
However, on May 31, 2008 he stopped work and elected to retire from the employing
establishment.
In an October 13, 2008 report, Dr. Krasnick stated that appellant reported that he could
not sit or stand still. He diagnosed severe arthrosis of the right knee, mild arthrosis of the left
knee, degenerative disc disease of the lumbosacral spine, cervical disc disease and severe
depressive reaction since the passing of his spouse in January 2008. Dr. Krasnick stated that all
of these diagnosed conditions contributed to appellant being totally and permanently disabled.
In an October 28, 2008 letter, the Office advised appellant that it had received notice that
he had abandoned the position of supply clerk. It reiterated that the position was suitable,
informed him of the provisions of 5 U.S.C. § 8106(c)(2) with respect to refusal of suitable work,
indicated that the position remained available and afforded him 30 days to either accept the
position or provide an explanation justifying his refusal. Appellant submitted a November 11,
2008 report in which Dr. Krasnick described giving him an injection in his right knee. He did
not provide any indication that he would return to work as a supply clerk.3
In a December 5, 2008 decision, the Office terminated appellant’s compensation benefits
effective May 31, 2008 under 5 U.S.C. § 8106(c)(2) on the basis that he abandoned suitable work
and neglected to work after suitable employment was offered. It found that the opinion of
Dr. Maslow established that he could perform the supply clerk position.
In a November 25, 2008 report, Dr. Krasnick stated that appellant presented to his office
with back and bilateral knee pain and noted that he could barely move. He indicated that
appellant was severely depressed and that he was about to become under the care of a mental
health professional. Appellant’s difficulty in walking, sitting and standing made him
permanently impaired and totally disabled. On February 24, 2009 Dr. Krasnick stated that
appellant was “stable with reference to both of his knees” and had tricompartmental arthrosis in
his knees. He noted, “At some point joint replacement surgery will be the treatment of choice.”
Appellant filed a schedule award claim due to his January 3, 2005 work injury. In a
March 16, 2009 decision, the Office denied his claim, finding that the termination of his
monetary compensation under 5 U.S.C. § 8106(c)(2) served as a bar to receipt of schedule award
compensation. It also found that appellant had not submitted medical evidence to establish
permanent impairment and that he had not yet reached maximum medical improvement.
In an April 7, 2009 report, Dr. Krasnick stated that at some point joint replacement
surgery in appellant’s knees would be the treatment of choice. He noted, “[Appellant] has
reached maximum medical improvement in a sense that nonsurgical management has gone as far
as it basically can…. Ultimately [appellant] should be considered at maximum medical
improvement after he has recuperated from his joint replacement surgery. Needless to say that
would be at some point in the future.”
Appellant requested a hearing before an Office hearing representative. At the May 18,
2009 hearing, he testified regarding his medical conditions, including nonwork conditions such
3

The Office confirmed that the position remained available.

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as prostate cancer and back problems. Shortly before appellant received the job offer, his wife
died and he became very depressed. He noted that his attending physician put him on depression
medication and he began attending clinics with Vietnam Veterans who were dealing with similar
problems. When appellant went back to work he had problems getting from his truck to the job
and he was not comfortable either sitting or standing. He reported that he had increased pain and
swelling in his knee and that he was taking a narcotic medication and was in a daze most of the
time. Counsel contended that appellant did not abandon the job but simply could not continue to
perform the duties due to a worsening of his symptoms. He noted that the position was against
the orders of appellant’s physician and asserted that appellant put forward his best effort to
perform the job.
In a June 23, 2009 letter, John C. Hollis, a management official, provided comments on
the hearing transcript on behalf of the employer. He submitted affidavits from Donna Warren
and Darlene Hemmingway, management officials.
In an undated statement, Ms. Warren, a supervisor, stated that on May 25, 2008 appellant
was assigned to her section. She noted that his job was essentially an administrative desk job
that did not require him to do any notable standing or lifting. Ms. Warren stated that, by lunch
time on his first day back to work, appellant requested official time off to go to the civilian
personnel office so that he could initiate paperwork to retire from federal service. Appellant did
not offer any reason for not wanting to work at his new position, did not state that the working
conditions were causing him any pain, discomfort or difficulties, and did not show any outward
signs of pain, discomfort or difficulties. After he announced his plan to retire, he spent the better
part of the next four days at the civilian personnel office completing paperwork. Appellant never
actually performed any substantive duties prior to stopping work on May 31, 2008.
In an undated statement, Ms. Hemmingway, a human resources specialist, stated that on
May 25, 2008 appellant came to her office to obtain paperwork for a voluntary regular
(nondisability) retirement. She provided him with the proper forms and answered his questions
over the next several days. Ms. Hemingway indicated that appellant never stated that the
working conditions in his new job were causing him any pain, discomfort or difficulties.
Appellant’s application for retirement was approved with an effective date of May 31, 2008.
In an August 1, 2009 letter, appellant responded to the employing establishment’s
comments. He submitted additional reports from Dr. Krasnick describing his medical condition.
In an August 25, 2009 decision, an Office hearing representative affirmed the
December 5, 2008 decision terminating appellant’s compensation for abandonment of suitable
work. Appellant requested a review of the written record by an Office hearing representative
with respect to the denial of his schedule award claim. In a September 30, 2009 decision,
another Office hearing representative affirmed the March 16, 2009 decision schedule award
denial.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is

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offered ... is not entitled to compensation.”4 However, to justify such termination, the Office
must show that the work offered was suitable.5 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.6
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”7 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.8
ANALYSIS -- ISSUE 1
The Office accepted that on January 3, 2005 appellant sustained a medial meniscus tear
of his right knee when he stepped in a gopher hole at work and the Office paid him compensation
for periods of disability. On March 3, 2008 the employing establishment offered appellant a
modified job as a supply clerk. This position was sedentary in nature and involved various
clerical duties related to issuing and receiving supplies. The supply clerk position required
walking for one to two hours per day, standing for one to two hours per day and lifting, pushing
and pulling up to 25 pounds, but it did not require squatting, kneeling or climbing. Appellant
returned to work in the supply clerk position on May 25, 2008 but stopped work on
May 31, 2008. The Office terminated his compensation benefits effective May 31, 2008 for
neglecting to work after suitable work was offered. It found that the opinion of Dr. Maslow, a
Board-certified orthopedic surgeon serving as an impartial medical specialist, showed that
appellant could perform the supply clerk position.
The Board finds that the opinion of Dr. Maslow shows that appellant was capable of
performing the supply clerk position offered by the employing establishment in March 2008 and
determined to be suitable by the Office. The record does not reveal that the supply clerk position
was temporary or seasonal in nature.9
The Office properly determined that there was a conflict in the medical opinion between
Dr. Krasnick, an attending Board-certified orthopedic surgeon, and Dr. Stark, a Board-certified
orthopedic surgeon acting as an Office referral physician, on the issue of appellant’s ability to
4

5 U.S.C. § 8106(c)(2).

5

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

6

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

7

5 U.S.C. § 8123(a).

8

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

9

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997). The record does not indicate that appellant was not vocationally able to perform the
duties of the supply clerk position.

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work.10 In order to resolve the conflict, it properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Maslow.11 The Board finds that the weight of the medical evidence
regarding appellant’s ability to work is represented by the thorough, well-rationalized opinion of
Dr. Maslow.12
On September 11, 2007 Dr. Maslow provided a description of appellant’s factual and
medical history and reported the findings of his examination of appellant. He indicated that
appellant had patellofemoral crepitus in his right knee but none in his left and noted that there
was no patellofemoral compression pain on either side. Dr. Maslow stated that there was no
medial, lateral or drawer instability in either knee and that there was diffuse mild tenderness in
the anterior of the right knee. The neurologic examination of the lower extremities was normal
and range of motion of the knees was normal with some pain. Dr. Maslow also reported physical
examination findings for appellant’s neck, trunk and upper extremities, but he noted limited
findings in these areas. He concluded that appellant could perform sedentary work.13
Dr. Maslow completed a Form OWCP-5 indicating that appellant could work for eight hours per
day; walk for one to two hours per day; stand for one to two hours per day; operate a motor
vehicle at work; and operate a motor vehicle to and from work for short distances. Appellant
could lift, push and pull up to 25 pounds but he could not engage in squatting, kneeling or
climbing.
The Board has carefully reviewed the opinion of Dr. Maslow and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Maslow provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.14 He provided medical rationale for
his opinion that appellant could perform limited-duty work by noting that appellant exhibited
mild evidence of impairment during the clinical evaluation. The Board further finds that the
work restrictions recommended by Dr. Maslow are within the specific job requirements of the
supply clerk position offered by the employing establishment.
On appeal counsel argued that the sitting requirements of the supply clerk position
rendered the position unsuitable given appellant’s medical condition. However, Dr. Maslow did
not place any restrictions on appellant’s ability to sit and the supply clerk position allowed
appellant to sit or stand at his convenience for comfort and to take occasional walks as needed.
Counsel also argued that Dr. Maslow’s opinion did not adequately specify whether appellant
would have the ability to drive to and from work.15 The distance from appellant’s home to the
work site at Fort Dix is only about 18 miles and there is no evidence that public transportation
10

On September 14, 2006 Dr. Stark indicated that appellant was capable of returning to work with restrictions. In
contrast, Dr. Krasnick stated that on January 23, 2007 appellant was totally disabled from work.
11

See supra note 7 and accompanying text.

12

See supra note 8 and accompanying text.

13

Dr. Maslow stated that appellant’s use of a cane was deemed to be optional, but it would be appropriate to use
it in his left hand.
14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

15

Dr. Maslow indicated that appellant could drive to and from work for “short distances.”

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was not available to Fort Dix. Counsel also argued that Dr. Maslow did not consider various
aspects of appellant’s medical condition, including prostrate cancer, depression and back
problems. Although appellant’s history of prostrate cancer is mentioned in several reports, there
is no medical evidence of record indicating that this condition impacted his ability to work.
Dr. Krasnick stated in several reports that depression contributed to appellant’s ability to work.
However, he does not specialize in psychiatric medicine and the record does not contain any
medical report from an appropriate medical specialist regarding appellant’s psychiatric
condition, let alone a rationalized medical report showing that appellant had a psychiatric
condition limiting his ability to work. With respect to appellant’s back condition, there is no
evidence that Dr. Maslow did not take into account his back symptoms when rendering his
opinion on work restrictions.
For these reasons, the opinion of Dr. Maslow shows that the supply clerk position was
suitable. As noted above, an employee who refuses or neglects to work after suitable work has
been offered to him has the burden of showing that such refusal to work was justified.16 The
Board has carefully reviewed the evidence and argument submitted by appellant in support of his
neglecting to work in the supply clerk position and finds that he has not justified his
abandonment of the position.17 For these reasons, the Office properly terminated appellant’s
compensation effective May 31, 2008 on the grounds that he abandoned suitable work.18
LEGAL PRECEDENT -- ISSUE 2
Section 8106(c)(2) of the Act provides in pertinent part, “A partially disabled employee
who ... refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”19 The Board has held that termination under section 8106(c) of the Act serves as
a bar to receipt of further compensation, including schedule award compensation.20
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim for a schedule award noting that the termination of
his compensation under 5 U.S.C. § 8106(c)(2) served as a bar to receipt of schedule award
compensation. For the reasons discussed above, it terminated appellant’s compensation effective
May 31, 2008 on the grounds that he abandoned suitable work. This termination provided a

16

See supra note 6.

17

After the termination of his compensation, appellant submitted reports in which Dr. Krasnick reiterated that he
was totally disabled from all work. Dr. Krasnick repeated his earlier assertions that appellant’s leg and back
symptoms rendered him unable to work, but he did not provide any additional medical rationale in support of this
opinion.
18

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing appellant with an opportunity to accept the supply clerk position after informing
him that his reasons for initially refusing the position were not valid; see Maggie L. Moore, 42 ECAB 484 (1991);
reaff’d on recon., 43 ECAB 818 (1992).
19

5 U.S.C. § 8106(c)(2).

20

See Pete F. Dorso, 52 ECAB 424 (2001).

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proper basis for the Office to determine that appellant was not entitled to receive schedule award
compensation.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
May 31, 2008 on the grounds that he abandoned suitable work. The Board further finds that he
is not entitled to a schedule award based on the suitable work termination.
ORDER
IT IS HEREBY ORDERED THAT the September 30 and August 25, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RESERVE OFFICER TRAINING CORP,
Clemson, SC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1569
Issued: May 3, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On July 26, 2016 appellant filed a timely appeal from a January 27, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the
appeal as No. 16-1569.
On August 20, 2014 appellant, then a 21-year-old Air Force Reserve Officer Training
Corps cadet, filed a traumatic injury claim (Form CA-1) alleging on March 12, 2014 he sustained
a herniated disc while running at the Norman Track and Field Complex on Clemson University.
OWCP requested additional information in support of his claim on September 22, 2014. It
specifically requested a “[l]ine of [d]uty statement.” OWCP also requested medical evidence.
On October 24, 2014 it received a “[l]ine of [d]uty [d]etermination” from Colonel Christopher R.
Mann, of the employing establishment dated October 7, 2014. By decision dated October 24,
2014, OWCP denied appellant’s claim finding that he had not submitted the necessary evidence
to establish that his injury occurred in the performance of duty as he had not submitted a “[l]ine
of [d]uty [s]tatement.” On November 12, 2014 it acknowledged receipt of the “line of duty
statement” and concluded that this document satisfied the performance of duty requirement for
appellant’s claim. OWCP further determined that appellant had failed to submit medical
evidence establishing that his diagnosed conditions were causally related to his March 12, 2014
employment injury. On November 4, 2015 appellant requested reconsideration and submitted

additional medical evidence. In a January 27, 2016 decision, OWCP denied the November 4,
2015 request for reconsideration finding it was not timely filed within one year of the
October 24, 2014 decision and failed to demonstrate clear evidence of error.
The Board has considered the matter and finds that the November 4, 2015 request
constituted a timely request for reconsideration. Section 8128(a) of FECA does not entitle a
claimant to review of an OWCP decision as a matter of right.1 OWCP has discretionary
authority in this regard and has imposed certain limitations in exercising its authority.2 One such
limitation is that the application for reconsideration must be received by OWCP within one year
of the date of the decision for which review is sought.3 When a request for reconsideration is
untimely, OWCP will undertake a limited review to determine whether the application presents
clear evidence of error on the part of OWCP in its most recent merit decision.4
The Board finds that the November 12, 2014 OWCP correspondence was an appealable
final decision. This decision contained findings of fact and a statement of reasons.5 The
November 12, 2014 decision also altered the basis for the denial of appellant’s claim from failure
to establish an injury in the performance of duty to failure to establish an injury causally related
to his accepted employment activity. Finally, OWCP made reference to the appeal rights which
accompanied its October 24, 2014 decision.6
As the November 12, 2014 decision was appealable, contrary to OWCP’s finding,
appellant timely requested reconsideration which OWCP received on November 4, 2015.
Accordingly, clear evidence of error was not the appropriate standard of review. The case shall
be remanded to OWCP for proper consideration of appellant’s November 4, 2015 request for
reconsideration under 20 C.F.R. §§ 10.606, 10.608, and 10.609.7

1

This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
2

20 C.F.R. § 10.607

3

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
4

Id. at § 10.607(b).

5

Id. at § 10.126.

6

Julius Cormier, 47 ECAB 465 (1996).

7

B.C., Docket No. 14-1281 (issued November 6, 2014). A timely request for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 20 C.F.R.
§ 10.606(b)(2). When a timely application for reconsideration meets at least one of the above-noted requirements,
OWCP will reopen the case for merit review and determine whether modification of the prior decision is
appropriate. 20 C.F.R. §§ 10.608(a) and 10.609.

2

IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: May 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rainier, OR, Employer
__________________________________________

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Appearances:
Frankie L. Sanders, for the appellant
Office of Solicitor, for the Director

Docket No. 16-1590
Issued: January 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 1, 2016 appellant, through his representative, filed a timely appeal from a
June 9, 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 the claim.2
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation efforts.

1
2

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its June 9, 2016 decision. The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
20 C.F.R. § 501.2(c)(1). Therefore, evidence not before OWCP at the time of the June 9, 2016 decision cannot be
considered by the Board for the first time on appeal. Id.

FACTUAL HISTORY
On May 17, 2004 appellant, then a 49-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) for carpal tunnel syndrome, which she attributed to her employment
duties. She indicated that she first became aware of her employment-related condition on
February 10, 2004. On August 17, 2004 OWCP accepted the claim for bilateral carpal tunnel
syndrome.3 Appellant underwent a left carpal tunnel release on August 25, 2005, followed by a
right carpal tunnel release on September 22, 2005.4 She received wage-loss compensation for
temporary total disability beginning August 25, 2005, and OWCP placed her on the periodic
compensation rolls effective November 26, 2006. For more than a decade, appellant continued
to receive wage-loss compensation for temporary total disability.
In a January 13, 2015 report, Dr. Eric S. Furie, a Board-certified orthopedic surgeon and
OWCP referral physician, noted the history of injury as reported by appellant and noted his
review of the diagnostic testing of record. He reported that the x-rays of the bilateral wrists
revealed no fracture, dislocation or other deformity and indicated that the September 21, 2011
electromyogram (EMG) revealed no F-reflex evidence of cervical radiculopathy bilaterally, no
nerve conduction velocity evidence of other neuropathy bilaterally, and only mild carpal tunnel
syndrome bilaterally. Dr. Furie also set forth examination findings. He opined that appellant
had complex regional pain syndrome secondary to right carpal tunnel syndrome. Objective
findings included weakness on grip and decreased strength in abduction as well as flexion of her
fingers. Dr. Furie noted that diagnostic studies were not helpful with complex regional pain
syndrome except for sympathetic block, which appellant indicated relieved her pain. He
indicated that appellant was unable to physically perform her date-of-injury position as a rural
letter carrier as she could not lift 70 pounds. Dr. Furie opined, however, that she was capable of
performing sedentary or light duty with limitations of no lifting, pushing or pulling more than 10
pounds with the right hand and no driving secondary to the narcotic medications she was taking.
He advised that those restrictions could be alleviated if she was to get a sympathetic ganglion
block. Dr. Furie further opined that she was a good candidate for vocational rehabilitation. In a
February 6, 2015 work capacity evaluation (Form OWCP-5c), he indicated that appellant had
reached maximum medical improvement and her limitations were related to complex regional
pain syndrome.
On March 2, 2015 OWCP advised appellant that her claim was expanded to include right
upper limb complex regional pain syndrome as an accepted condition.5
3

Under OWCP File No. xxxxxx979, appellant has an accepted occupational disease claim for right lateral
epicondylitis, which arose on or about November 6, 2000. She also has an accepted claim for bilateral lateral
epicondylitis under OWCP File No. xxxxxx943, with a June 14, 2002 date of injury. Appellant’s three upper
extremity occupational disease claims have been combined, and OWCP File No. xxxxxx974, the file on appeal, has
been designated the master file. She also has an accepted claim for lumbar and left gluteal conditions, which arose
on or about March 9, 2002 (OWCP File No. xxxxxx938). This later occupational disease claim is not part of the
current combined case record.
4

OWCP authorized both surgical procedures.

5

OWCP also accepted narcotic-induced constipation. On September 24, 2015 it additionally accepted chronic
pain-induced insomnia.

2

On March 9, 2015 OWCP advised appellant that her case had been referred for
vocational rehabilitation services based on Dr. Furie’s January 13, 2015 examination results. It
further advised her that she was expected to cooperate fully with the rehabilitation and
reemployment effort.
On June 12, 2015 appellant underwent a vocational evaluation. The vocational evaluator,
Amy M. Meacham, identified 10 potential jobs as vocational alternatives. She indicated that
those jobs required skills which appellant would be able to learn with certificate level and/or onthe-job training of 30 days to a maximum of six months to become proficient in the necessary
skills.
On September 18, 2015 Lane Westcott, OWCP’s designated rehabilitation counselor,
indicated that the positions of receptionist and information clerk were the best employment
options for appellant. She noted that those positions required computer skills in order for
appellant to be a qualified candidate and to satisfactorily perform the tasks of current semiskilled clerical positions. Therefore, Ms. Westcott recommended, and OWCP approved a
rehabilitation plan for a computer training course (MS Windows, Word and Excel). The period
of training was from October 14, 2015 through January 30, 2016 and would take place through
Goodwill and Ed2go/UGA.
In a September 30, 2015 letter, OWCP informed appellant of the rehabilitation plan
developed by Ms. Westcott for her return to work as a receptionist, Department of Labor,
Dictionary of Occupational Titles (DOT) No. 237.367-038, and information clerk, DOT
No. 237.367-022.6 It also noted that those job duties were within her medical limitations.
Appellant was advised that she was expected to cooperate fully so that she may return to work in
the specified job or one similar to it. She was informed that, if she failed to cooperate fully,
OWCP would assume that the vocational services would have resulted in a wage-earning
capacity and therefore may reduce her compensation in accordance with 20 C.F.R. § 10.519.
In an October 16, 2015 report, Ms. Westcott indicated that she had left messages for
appellant that she would receive 12 weeks of training as preparation for job goals, which will
begin October 14, 2015 through January 30, 2016. She indicated that appellant left one message
for her on October 6, 2015 indicating that she had received her calls, but that her husband had
been in the hospital for heart problems and that she would call back as soon as she could.
Ms. Westcott indicated that appellant sent her e-mails on October 11 and 12, 2015 indicating that
she had been trying to catch up with telephone messages from friends and family concerning her
husband’s hospitalization. Appellant indicated that she had to type one-handed and would like
Dragon Voice activation system included in her training program. She also stated that she did
not have cable or Internet service at home and had to go to the library. Appellant indicated that
she expected OWCP to cover the cost for internet if she had to take on-line courses. She also
expressed concern over OWCP expecting her to do jobs which would exacerbate her injuries and
expressed much skepticism over OWCP. Appellant noted that she had a back injury and wanted
to know if the selected positions would impact her back issues.

6
The labor market studies for both jobs listed the physical demands as sedentary -- less than 10 pounds
occasionally.

3

Ms. Westcott indicated that she called appellant on October 15, 2015 to talk about
training and setting her up for classes, but her call was not returned. She noted that appellant had
sent e-mails indicating additional limitations that she did not believe would allow appellant to
physically manage a job without worsening her symptoms.
In an October 19, 2015 letter, OWCP noted appellant’s reason for not undergoing the
approved training as stated to her rehabilitation counselor. Appellant was advised of the
provisions of section 8113(b) of FECA and was instructed to contact OWCP or her rehabilitation
specialist within 30 days to make necessary arrangements to enter into the approved training
programs or to provide reasons for her refusal with any supporting evidence to OWCP. If,
during the allotted period, she did not comply with the instruction to undergo the approved
training program or failed to show good cause for not undergoing the training program, appellant
was notified that the rehabilitation effort would be terminated and her compensation reduced to
reflect her probable wage-earning capacity had she completed the training program.
In a November 17, 2015 statement, appellant indicated that Ms. Westcott falsely advised
OWCP that she had refused to participate in an OWCP-approved training program and that she
was not returning her telephone calls. She provided a detailed account of her experience with
Ms. Westcott.
In a January 28, 2015 report, Dr. Kevin Sheahan, a Board-certified pain specialist,
indicated that appellant had right upper extremity pain since carpal tunnel surgery but that she
has not had physical therapy, stellate ganglion block or ketamine therapy for this. He indicated
in his report that appellant had been out of work for several years due to work-related injuries.
Treatment notes from Dr. Kamal Kabakibou, a Board-certified anesthesiologist, dated
October 16 and 26, November 25 and 30, and December 4, 2015, and January 8, 2016 diagnosed
complex regional pain syndrome of the right upper limb. In his November 25, 2015 report,
Dr. Kabakibou indicated that appellant suffered from regional pain syndrome of the right upper
extremity secondary to a work-related injury. He stated that her injury caused significant pain
and disability and had not resolved. Dr. Kabakibou opined that appellant was unable to perform
any type of work at this time.
Treatment notes dated September 18, October 16, November 16, and December 21, 2015
from Dr. Kevin A. Williams, an orthopedic surgeon, diagnosed chronic pain syndrome.
Dr. Williams indicated that appellant’s complex regional pain syndrome was under control.
Evidence pertaining to appellant’s accepted condition of chronic pain-induced insomnia
and her drug usage were received, along with an October 16, 2015 physical therapy note and
chiropractic treatment notes dated October 29, 2015 and January 19, 2016.
By decision dated January 25, 2016, OWCP finalized the proposed reduction of
appellant’s compensation. It reduced her compensation effective February 7, 2016 based on her
ability to earn wages as an information clerk, DOT # 237.367-022, at the rate of $534.80 per
week.
On March 16, 2016 appellant requested reconsideration. She contended that she did not
refuse to participate in the vocational rehabilitation program. Appellant indicated that she was in
4

communication with Ms. Westcott, had returned her calls, and had attempted to meet each
requirement. She also expressed her belief that the request for Dragon software was reasonable
given her medical condition that she was only able to type with one hand. Appellant argued that
Dr. Kabakibou’s November 25, 2015 finding that she was incapable of working created a
conflict in medical opinion with Dr. Furie’s findings, and thus, required referral to an impartial
medical examiner. She indicated that she did not score well on several of the 11 critical
vocational aptitudes and that eye-hand-foot coordination was not scored. Appellant further
indicated that, based on her diagnoses of carpal tunnel syndrome and reflex sympathetic
dystrophy, she was unable to perform the duties of an information clerk as the position required a
great deal of computer skills. She also noted that OWCP was aware of her psychological
condition(s), but had not yet referred her for a second opinion evaluation.7
OWCP received several physical therapy notes from October 16, 2015 through June 2,
2016 along with medical evidence.
Medical reports from Dr. Kabakibou dated November 25, 2015 through May 25, 2016
were received. In his November 25, 2015 report, Dr. Kabakibou noted that appellant suffers
from reflex sympathetic dystrophy of the right upper extremity secondary to a work-related
injury. He indicated that the injury was not an aggravation of a preexisting condition and that
appellant had significant pain as a result of the injury. Dr. Kabakibou opined that appellant was
unable to perform any type of work at this time.
In a March 31, 2015 report, Dr. Lyles indicated that appellant had been under his care
since October 2008. He noted that she struggled with anxiety and depression related to chronic
pain. Dr. Lyles stated that appellant had not worked since 2004 due to chronic pain.
In a March 31, 2016 report, Dr. Zouheir Shama, a general surgeon, indicated that
appellant was seen for follow-up regarding bilateral wrist pain. Examination findings were
provided and Dr. Shama opined that, based on appellant’s job duties, physical examination and
history, she sustained an occupational injury.
By decision dated June 9, 2016, OWCP reviewed the merits of the claim and affirmed the
January 25, 2016 decision as modified.8 It found that appellant failed to establish good cause for
not participating in an OWCP-approved training program. The reasons appellant provided did
not establish good cause for her failure to participate in the on-line training and the medical
evidence failed to establish that appellant was unable to participate in the on-line training.
Therefore, OWCP properly reduced appellant’s wage-loss compensation pursuant to 5 U.S.C.
§ 8113(b).

7
In its August 6, 2015 letter, OWCP indicated that on July 17, 2015 Dr. Michael Lyles, a psychiatrist, diagnosed
appellant with attention deficit hyperactivity disorder (ADHD). It indicated that appellant would be referred for a
second opinion evaluation to determine whether there was a causal relationship between her preexisting ADHD and
the February 10, 2004 work injury.
8
OWCP previously cited 5 U.S.C. §§ 8106 and 8115 as authority for the reduction of wage-loss compensation.
On reconsideration, the senior claims examiner noted that neither statutory provision applied to the current situation.

5

LEGAL PRECEDENT
FECA provides that the Secretary of Labor may direct a permanently disabled individual
whose disability is compensable to undergo vocational rehabilitation.9 If an individual, without
good cause, fails to apply for and undergo vocational rehabilitation when so directed, OWCP,
after finding that in the absence of the failure the wage-earning capacity of the individual would
probably have substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his or her wage-earning
capacity in the absence of the failure.10 The reduction of compensation remains in effect until
the individual in good faith complies with OWCP’s directive.11
Section 10.519 of OWCP’s regulations provides:
If an employee without good cause fails or refuses to apply for, undergo, participate in, or
continue to participate in a vocational rehabilitation effort when so directed, OWCP will act as
follows:
“(a) Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. OWCP will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the OWCP nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of OWCP.”12
An employee may fail to cooperate with vocational rehabilitation efforts in various ways.
General examples of noncooperation include lack of response to letters or telephone calls from
OWCP’s rehabilitation specialist and/or rehabilitation counselor (RC); failure to show up for
appointments, interviews, or testing (e.g., vocational testing, functional capacity evaluation)
arranged by the RC; and failure to attend an approved training program.13 Specific examples of
noncooperation during the training phase of vocational rehabilitation include: failure to attend
classes; failure to apply appropriate effort to succeed in such classes; failure to maintain a “C”
average; and failure to undergo training after a training program has been approved.14

9

5 U.S.C. § 8104(a).

10

Id. at § 8113(b).

11

Id.

12

20 C.F.R. § 10.519(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17
(February 2011).
14

Id. at Chapter 2.813.17c.

6

If the employee refuses or impedes rehabilitation training, the claims examiner (CE) shall
notify the injured worker, in writing, of the provisions of 5 U.S.C. § 8113(b) and direct the
injured worker to apply for, participate in, or resume participation in the training program.15 The
letter should advise the injured worker to comply or provide a written explanation of his or her
failure to comply within 30 days, or the provisions of 5 U.S.C. § 8113(b) will be applied and
benefits will be reduced based on the jobs targeted in the approved training plan.16 This letter
satisfies the requirement to provide a 30-day prereduction notice.17
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
effective February 7, 2016 as she failed, without good cause, to participate in prescribed
vocational rehabilitation efforts. OWCP accepted the current occupational disease claim for
bilateral carpal tunnel syndrome, complex regional pain syndrome reflex sympathetic dystrophy
(RSD), narcotic-induced constipation, and chronic pain-induced insomnia. Appellant had been
receiving wage-loss compensation for temporary total disability dating back to August 25, 2005,
when she underwent OWCP-approved left wrist surgery.
In a January 13, 2015 report, Dr. Furie, an OWCP second opinion examiner, opined that
appellant had complex regional pain syndrome secondary to the right carpal tunnel syndrome.
He found, however, that appellant could work with restrictions of no lifting, pushing or pulling
more than 10 pounds with the right hand for eight hours per day and no driving secondary to the
narcotic medications. He indicated that her limitations were related to complex regional pain
syndrome.
The Board has reviewed Dr. Furie’s opinion and finds that it had reliability, probative
value and convincing quality with respect to his conclusions reached regarding appellant’s work
ability. Dr. Furie reviewed the statement of accepted facts and the medical record and noted his
examination findings. He indicated that appellant was capable of working at sedentary or light
duty with limitations because of her complex regional pain syndrome, which OWCP
subsequently accepted. While appellant argued that the statement of accepted facts had changed
a couple of months later, the Board notes that OWCP merely accepted additional conditions of
constipation, other insomnia, and complex regional pain syndrome/reflex sympathetic dystrophy
of the right upper limb, which Dr. Furie had accounted for when providing his opinion. Thus,
Dr. Furie’s opinion is rationalized and based on a proper medical and factual history, and
represents the weight of the medical evidence.18
Based on Dr. Furie’s findings, OWCP referred appellant for vocational rehabilitation.
The vocational rehabilitation counselor identified the position of receptionist and information
clerk as the best employment options for appellant and indicated that appellant required a
15

Id.

16

Id.

17

Id.

18

See C.C., Docket No. 16-0318 (issued May 2, 2016).

7

computer training course in order to be a qualified candidate to perform the tasks of the
identified semi-skilled clerical positions. The counselor prepared a training plan, which OWCP
authorized.
By decision dated June 9, 2016, OWCP modified and affirmed its January 25, 2016
decision reducing appellant’s compensation under section 8113(b) effective February 7, 2016 as
she failed to establish good cause for not participating in an OWCP-approved training program.
Appellant believed that she was cooperating with vocational rehabilitation. The issue, therefore,
was whether she failed to continue participation in vocational rehabilitation without good cause.
The Board finds that the evidence of record does not establish that appellant’s failure to
participate in the on-line training during the period October 14, 2015 through January 30, 2016
was medically warranted. The physical therapy notes from October 16, 2015 through June 2,
2016 do not support that appellant’s medical condition prevented her from participating in the
training program in Microsoft Office Suite through Ed2go at UGA.
The reports from Dr. Kabakibou from November 25, 2015 through May 25, 2016
consisted of objective medical evidence from appellant’s office visits. In his medical report
dated November 25, 2015, Dr. Kabakibou noted that appellant suffers from RSD of her right
upper extremity secondary to a work-related injury. He stated that the injury was not an
aggravation of a preexisting condition and that appellant had significant pain as a result of the
injury. While Dr. Kabakibou opined that appellant was unable to perform any type of work at
that time, he failed to provide a rationalized medical opinion, supported by specific findings,
clearly showing that appellant was disabled from all activity or that her RSD prevented
participation in the on-line training during the period October 14, 2015 through
January 30, 2016.19
In his March 31, 2015 report, Dr. Lyles noted that appellant had been under psychiatric
care since October 2008 and that she struggled with anxiety and depression related to chronic
pain. He stated that she had not worked since 2004 due to chronic pain. Dr. Lyles, however, did
not provide a medical opinion based on objective findings to support that appellant’s medical
condition prevented her from participating in the on-line training during the period October 14,
2015 through January 30, 2016. The Board has held that a physician must provide a rationalized
opinion, supported by specific findings, clearly showing that a claimant was disabled from all
activity or that his or her medical condition prevented participation in vocational rehabilitation
efforts, including attending classes or taking tests.20
In his March 31, 2016 medical report, Dr. Shama noted that appellant was seen on that
date for a follow-up visit regarding pain in bilateral wrists. While he opined that appellant had
an occupational injury, Dr. Shama did not provide a medical opinion to support that appellant

19

See D.A., Docket No. 11-0871 (issued January 27, 2012); see also C.P., Docket No. 15-0781 (issued
April 5, 2016).
20

See id.

8

was unable to participate in the on-line training during the period October 14, 2015 through
January 30, 2016.21
The Board accordingly finds that OWCP properly found that appellant had, without good
cause, failed to continue vocational rehabilitation.22 OWCP followed its procedures and advised
her that, if she did not continue vocational rehabilitation, her compensation would be reduced.
Pursuant to 5 U.S.C. § 8113(b) and the implementing regulations, OWCP may reduce appellant’s
compensation based on the amount which would likely have been her wage-earning capacity had
he or she undergone vocational rehabilitation.
The rehabilitation counselor identified the position of information clerk, DOT No.
237.367.02, with wages of $534.80 per week. This represents the amount which would likely
have been appellant’s wage-earning capacity had she undergone vocational rehabilitation. The
job was a sedentary job with occasional lifting of 10 pounds, within the work restrictions of the
second opinion physician Dr. Furie. The medical evidence does not establish that the position
was medically unsuitable, and the deficiencies of the reports from the attending physicians are
discussed above. The Board has held that the medical evidence of record must show that an
accepted condition, or a preexisting condition, prohibited appellant from performing the selected
position.23
The Board finds that OWCP properly reduced appellant’s compensation in this case. Had
appellant completed the training program, she would have had the capacity to earn $534.80 per
week as an information clerk. OWCP may reduce her compensation in accord with the Shadrick
decision to reflect her wage-earning capacity.24
On appeal appellant’s representative reiterated arguments made before OWCP. For the
reasons noted above, the Board finds that appellant had, without good cause, failed to continue
participation in vocational rehabilitation, and her compensation was properly reduced to reflect a
wage-earning capacity as an information clerk. As noted above, the reduction in compensation
continues until the individual in good faith complies with the direction of OWCP. Appellant
may pursue the issue with OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
effective February 7, 2016 for failing to cooperate with vocational rehabilitation.

21

Id.

22

See M.K., Docket No. 16-1676 (issued February 16, 2017).

23

See S.B., Docket No. 15-0106 (issued March 15, 2016).

24
See R.S., Docket No. 14-1484 (issued November 10, 2014); Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R.
§ 10.403(d).

9

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.25
Issued: January 17, 2018
Washington, DC

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

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

25
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OVERTON BROOKS MEDICAL CENTER,
Shreveport, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1236
Issued: October 20, 2016

Case Submitted on the Record

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

JURISDICTION
On May 25, 2016 appellant filed a timely appeal of a January 20, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision in the
case is dated July 22, 2015, which is more than 180 days prior to the filing of the instant appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The record on appeal contains evidence received after OWCP issued its January 20, 2016 decision. The Board,
however, is precluded from considering evidence that was not in the case record at the time OWCP rendered its final
decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 26, 2014 appellant, then a 55-year-old former licensed practical nurse,
filed an occupational disease claim (Form CA-2) alleging that she injured her hands on or about
June 12, 2008 while doing chest compressions.3 She further alleged that her condition had
progressively worsened over the years due to repeated use of her hands at work. Prior to her
January 6, 2012 resignation, appellant had been working as a health technician (telemetry); a
position she held since September 30, 2011.4
The relevant medical evidence included a July 11, 2012 electromyogram/nerve
conduction velocity (EMG/NCV) study that revealed bilateral carpal tunnel syndrome, right
greater than left.
In an August 9, 2012 report, Dr. Ellis O. Cooper III, a Board-certified hand surgeon,
noted complaints of bilateral hand pain, numbness, and tingling which had reportedly been going
on for about five years. He also reported that appellant “knows of no trauma that started this.”
Dr. Cooper diagnosed bilateral carpal tunnel syndrome. On physical examination, appellant had
positive Tinel’s test and positive carpal compression test, bilaterally. Dr. Cooper also noted
appellant’s positive EMG/NCV study results. He diagnosed bilateral carpal tunnel syndrome
and recommended carpal tunnel releases.
Dr. John D. Googe, a Board-certified orthopedic surgeon, examined appellant on
August 15, 2012 and diagnosed bilateral carpal tunnel syndrome.5 He attributed appellant’s
condition to a February 22, 2001 employment injury “doing chest compressions.” Dr. Googe
noted that appellant’s injury was initially treated as a rotator cuff tear.
In a report dated August 23, 2012, Dr. Austin W. Gleason, a Board-certified orthopedic
surgeon, referenced five separate employment injuries occurring between February 2001 and
May 2011. He indicated that appellant had been disabled since January 2, 2012 due to various
on-the-job injuries. Appellant’s employment-related conditions included bilateral carpal tunnel
syndrome, right shoulder rotator cuff tear -- status postsurgery with acromioclavicular joint
arthritis, lumbar degenerative disc disease (L2-3, L3-4), multilevel cervical degenerative disc
disease, and trauma-related fibromyalgia.
In a September 26, 2012 progress report, Dr. Googe noted that appellant continued to
complain of bilateral hand pain, with associated weakness and numbness. He continued to
diagnose work-related bilateral carpal tunnel syndrome.6

3

Appellant has an accepted traumatic injury claim for neck sprain and right rotator cuff sprain, which occurred on
June 12, 2008 (OWCP File No. xxxxxx830).
4

According to the employing establishment, appellant’s permanent reassignment as a health technician
(telemetry) was the result of an April 8, 2009 work-related injury under File No. xxxxxx627.
5

Dr. Googe is a colleague of Dr. Cooper’s at Orthopedic Specialists of Louisiana.

6

Dr. Googe provided similar information in his April 3, 2013 progress report.

2

On October 15, 2012 the Office of Personnel Management (OPM) authorized appellant’s
disability retirement. It found appellant disabled due to bilateral carpal tunnel syndrome,
residual pain from rotator cuff tear status postsurgery, lumbar degenerative disc disease, cervical
degenerative disc disease, and fibromyalgia due to trauma with generalized pain.7
On December 9, 2014 OWCP advised appellant that she needed to submit additional
factual and medical information regarding her claim. In its claim development letter, it
requested, inter alia, a comprehensive narrative medical report. The December 9, 2014 letter
identified specific types of information the attending physician’s narrative report should include.
OWCP also requested a detailed description of the particular job duties appellant believed caused
or contributed to her claimed bilateral hand condition.
In a December 12, 2014 supplemental statement, appellant indicated that she previously
advised her physician that she had been “working with telemetry equipment and typing at the
computer.”
By decision dated January 22, 2015, OWCP denied appellant’s claim because she failed
to establish fact of injury. Although she submitted additional factual and medical information in
response to OWCP’s December 9, 2014 inquiry, appellant did not provide detailed information
regarding her specific duties or the frequency and/or duration of any implicated job duties.
Consequently, OWCP found that she failed to satisfy the factual component of fact of injury.
Appellant timely requested reconsideration, which OWCP received on March 2, 2015. In
a February 9, 2015 statement, she indicated that she had been assigned to telemetry where she
continuously cleaned equipment. This activity reportedly occurred on a daily basis. Appellant
claimed it contributed to her condition. She also reported that she had no hobbies or recreational
activities outside of her federal employment. Appellant contended that her carpal tunnel
syndrome worsened after starting her new job in telemetry, which involved cleaning equipment
and continuous typing on a computer 12 hours per day.
OWCP also received additional medical evidence from Dr. Cooper and Dr. Googe. In a
May 24, 2013 addendum, Dr. Cooper indicated that appellant’s bilateral carpal tunnel syndrome
was indeed likely a result of her repetitive motion activities while employed at the employing
establishment. He also provided follow-up reports dated June 7, 2013, July 28 and August 4,
2014, and February 2, 2015. Dr. Cooper continued to diagnose bilateral carpal tunnel syndrome,
which he attributed to job-related repetitive hand stress. Dr. Googe also continued to diagnose
carpal tunnel syndrome in his June 23, August 4, 2014, and January 30, 2015 progress reports.
In an April 6, 2015 decision, OWCP denied modification of the January 22, 2015
decision, finding that appellant failed to establish the factual component of fact of injury. It
explained that the latest evidence submitted was insufficient to warrant modification because it
was still unclear what appellant claimed to have caused her bilateral hand condition. The senior
claims examiner noted that appellant’s November 26, 2014 Form CA-2 indicated that the
condition was the result of doing chest compressions, but in her subsequent statement, she
7

Appellant would later claim wage-loss compensation (Form CA-7) for the period January 2 through
October 15, 2012.

3

attributed her bilateral hand condition to cleaning telemetry equipment and typing 12 hours a day
as a health technician (telemetry). She further found that appellant’s statement was too vague
and general with respect to work factors she believed were responsible for her bilateral hand
condition.
On April 14, 2015 appellant again requested reconsideration. She argued that her
bilateral hand symptoms dated back to 2008, which reportedly had already been documented in
the medical records submitted. Appellant also resubmitted her July 11, 2012 EMG/NCV study
and several reports from Dr. Cooper (September 9, 2012, May 24, 2013, August 4, 2014, and
February 2 and June 9, 2015).
By decision dated July 22, 2015, OWCP again denied modification. It noted that
appellant did not submit a detailed statement clarifying whether her claimed condition was
caused or aggravated by performing chest compressions or due to typing 12 hours a day in the
position she most recently held prior to resigning in January 2012.
On August 17, 2015 appellant again requested reconsideration, using the appeal request
form that accompanied OWCP’s July 22, 2015 decision. She noted on the form that Dr. Cooper
would resubmit a narrative report. However, there is no record of OWCP having received any
additional factual or medical evidence following its July 22, 2015 decision.
In a nonmerit decision dated January 20, 2016, OWCP denied appellant’s request for
reconsideration. It noted, inter alia, that it received her request for reconsideration on
August 31, 2015. However, appellant did not submit any evidence in support of her request.
OWCP further noted that she failed to describe the specific work factors she believed to have
caused her claimed condition. Consequently, it found there was insufficient evidence or
argument to warrant merit review of its July 22, 2015 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.10 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
8

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.

4

interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely application for reconsideration does not meet at least
one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.12
ANALYSIS
Although appellant timely requested reconsideration, her August 17, 2015 request did not
elaborate on the basis for reconsideration. She merely noted that Dr. Cooper would resubmit a
narrative report, evidence which OWCP never received. Appellant neither alleged, nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, she did not advance any relevant legal arguments not previously considered by
OWCP. Accordingly, appellant is not entitled to a review of the merits based on the first and
second requirements under section 10.606(b)(3).13
Appellant also failed to submit any relevant and pertinent new evidence with her latest
request for reconsideration. Although she indicated Dr. Cooper would resubmit a narrative
report, OWCP noted that appellant had not submitted any evidence in support of her request for
reconsideration. Because she did not provide OWCP with any relevant and pertinent new
evidence, appellant is not entitled to a review of the merits based on the third requirement under
section 10.606(b)(3).14 Accordingly, OWCP properly declined to reopen appellant’s case under
5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s August 17, 2015 request for
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

11

Id. § 10.606(b)(3).

12

Id. § 10.608(a), (b).

13

Id. at § 10.606(b)(3)(i) and (ii).

14

Id. at § 10.606(b)(3)(iii).

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

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J, Appellant
and
DEPARTMENT OF THE ARMY, U.S. CORPS
OF ENGINEERS, Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket Nos. 21-0467 &
20-0812
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0467 AND
DISMISSING PETITION FOR RECONSIDERATION
IN DOCKET NO. 20-0812
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 4, 2021 appellant sought an appeal from a purported October 19, 2020
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 21-0467.
The Board has duly considered the matter and notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA).1 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
the date appellant filed his appeal. 2 As of the filing of the current appeal, the most recent OWCP
decision was dated February 11, 2020. However, by an October 19, 2020 decision in Docket No.
20-0812, the Board affirmed OWCP’s February 11, 2020 decision, finding that OWCP properly
denied appellant’s request for reconsideration as it was untimely filed and failed to demonstrate

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

clear evidence of error.3 As there is no final adverse decision issued by OWCP within 180 days
of the filing of this appeal4 over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0467 must be dismissed.
To the extent that appellant’s February 4, 2021 appeal may be construed as a timely petition
for reconsideration of the Board’s October 19, 2020 decision in Docket No. 20-0812, the Board
notes that its decision became final upon the expiration of 30 days from the date of issuance. 5
Further, as appellant did not file his disagreement with the Board’s October 19, 2020 decision until
February 4, 2021, this submission may not be deemed as a timely petition for reconsideration as it
was filed in excess of 30 days from the date of issuance. 6 Thus, the petition for reconsideration of
the October 19, 2020 Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0467 is dismissed.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
20-0812 is dismissed as untimely filed. 7

3

Docket No. 20-0812 (issued October 19, 2020).

4

Supra note 2.

5

20 C.F.R. § 501.6(d).

6

See id. at § 501.7(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
7

2

Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2242
Issued: June 2, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 14, 2009, which denied his request for an
oral hearing as untimely. As the most recent merit decision of the Office was issued on May 11,
2006, the Board lacks jurisdiction to review the merits of this case pursuant to 20 C.F.R.
§§ 501.2 and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On August 4, 2004 appellant, then a 53-year-old letter carrier, sustained a right shoulder
injury while lifting mail. He did not stop work. The Office accepted appellant’s claim for right
shoulder tendinitis and authorized arthroscopic surgery.
1

For Office decisions dated November 19, 2008 or later, a claimant has 180 days to file an appeal with the Board.
20 C.F.R. § 501.3(e) (2008). For Office decisions issued before November 19, 2008, a claimant had one year in
which to file an appeal. See 20 C.F.R. § 501.3(d)(2).

From August 4 to September 10, 2004, appellant was treated by Dr. Jay Hammett, Jr., a
Board-certified orthopedic surgeon, who diagnosed right shoulder pain, probably bicep tendon
strain, recommended steroid injections and returned appellant to light-duty work. A magnetic
resonance imaging scan of the right shoulder dated September 15, 2004 revealed a complete tear
of the supraspinatus tendon, arthritic changes with osteophyte formation. Appellant came under
the treatment of Dr. Paul Naylor from September 21, 2004 to August 14, 2005, who diagnosed a
right rotator cuff tear and acromioclavicular joint arthritis. On October 24, 2004 Dr. Naylor
performed a right shoulder arthroscopy with open repair of a large rotator cuff tear. In reports
dated November 3, 2004 to August 14, 2005, he advised that appellant was progressing well and
diagnosed a stable right shoulder.
On November 7, 2005 appellant requested a schedule award.
In a decision dated May 11, 2006, the Office granted appellant a schedule award for five
percent impairment of the right upper extremity. The period of the award was from March 28 to
July 15, 2005.
On April 22, 2009 appellant requested an additional schedule award claiming impairment
to his right hand. He submitted an electromyogram dated January 27, 2009, which revealed right
brachial plexopathy with involvement of either the lower trunk or medial cord, inconclusive with
regard to carpal tunnel syndrome, left ulnar nerve mononeuropathy and mild sensorimotor
peripheral neuropathy of uncertain etiology.
In a letter dated May 26, 2009, the Office advised appellant to follow the appeal rights
attached to the May 11, 2006 decision if he wanted an additional schedule award.
On July 15, 2009 appellant requested an oral hearing. He indicated that he underwent a
right carpal tunnel release on April 24, 2006, which did not improve his symptoms or increase
his grip strength. Appellant asserted that he had more than five percent impairment to his right
arm. He submitted a February 3, 2009 report from Dr. Alan L. Whiton, a Board-certified
orthopedic surgeon, who advised that appellant did not have the classical signs or symptoms of
carpal tunnel syndrome or median nerve entrapment and did not have impairment attributable to
carpal tunnel syndrome.
In a decision dated August 14, 2009, the Office denied appellant’s request for an oral
hearing. It found that the request was not timely filed. Appellant was informed that his case had
been considered in relation to the issues involved, and that the request was further denied as the
issues could be addressed by requesting reconsideration before the Office and submitting
evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”2 Section 10.617 and 10.618 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
2

5 U.S.C. § 8124(b)(1).

2

oral hearing or a review of the written record by a representative of the Secretary.3 Although
there is no right to a review of the written record or an oral hearing if not requested within the
30-day time period, the Office may within its discretionary powers grant or deny appellant’s
request and must exercise its discretion.4 The Office’s procedures require that it exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration
under section 8128(a).5
ANALYSIS
Appellant requested a hearing before the Office’s Branch of Hearings and Review in a
letter dated July 15, 2009. As the request was submitted more than 30 days following issuance
of the May 11, 2006 decision, it was untimely filed.
The Office considered the matter in relation to the issue involved and found that
additional evidence could be submitted with a request for reconsideration. It has administrative
discretion in determining whether a hearing should be granted even though the request is
untimely. An abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.6 The Board finds that the Office did not abuse its
discretion in determining that appellant could further pursue the matter through the
reconsideration process and the submissions of medical evidence relevant to his claim of greater
impairment.
On appeal appellant asserts that he could not timely appeal the initial schedule award
decision because he was not aware of additional impairment of his right shoulder until
Dr. Whiton issued his report in 2009. The Board notes that appellant is not precluded from
pursuing a claim for increased impairment before the Office.7 Rather, appellant is not entitled to
an oral hearing with regard to the May 11, 2006 decision because it was not timely filed.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing as
untimely.

3

20 C.F.R. §§ 10.616, 10.617.

4

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

5

See R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
6

Samuel R. Johnson, 51 ECAB 612 (2000).

7

See Linda T. Brown, 51 ECAB 115 (1999) (a claimant may seek an increased schedule award if the medical
evidence establishes that progression of an employment-related condition has resulted in a greater permanent
impairment than previously calculated); see also A.A., 59 ECAB ___ (Docket No. 08-951, issued
September 22, 2008).

3

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4