United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oberlin, OH, Employer
__________________________________________

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

Docket No. 12-1694
Issued: March 13, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2012 appellant, through his attorney, filed a timely appeal of a July 16,
2012 decision of the Office of Workers’ Compensation Programs (OWCP), finding that his
request for reconsideration was untimely and failed to show clear evidence of error. Pursuant to
the Federal Employees’ Compensation Act1 (FECA), the Board has jurisdiction over the
February 23, 2010 decision. The Board does not have jurisdiction over a decision on the merits
of the claim.2

1
2

5 U.S.C. § 8101 et seq.

The last merit decision was a Board decision dated April 8, 2008, modifying and affirming OWCP decisions
dated February 21 and September 11, 2007. For OWCP decisions issued prior to November 19, 2008, a claimant
had one year to file an appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after
November 19, 2008, a claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated April 8, 2008, the
Board found that appellant had established a compensable work factor on November 30, 2004,
when he was working at his radar screen and two airplanes failed to maintain proper separation.3
A second allegation regarding a change in work rules was found not to be a compensable work
factor. The Board affirmed the denial of appellant’s claim for compensation on the grounds that
the medical evidence did not establish a diagnosed emotional or physical condition causally
related to the employment incident. The history of the case as provided in the Board’s prior
decision is incorporated herein by reference.
In a letter dated May 7, 2012, appellant, through his representative, requested
reconsideration. He stated that there was new probative evidence indicating the claim should be
reevaluated.4 Appellant submitted reports from August 31, 2006 to December 27, 2007 from
Dr. Said Haidar, a psychiatrist, who stated that appellant had experienced anxiety since
November 2005, diagnosing generalized anxiety disorder and “stress of situation at work.”
Dr. Haidar noted that “one time” appellant had mismanaged a situation at work as an air traffic
controller and was disciplined. On January 22, 2007 he stated that appellant had been diagnosed
with general anxiety disorder and major depressive disorder, noting the dates of treatment.
Dr. Haidar stated that appellant’s condition was aggravated by work stressors. On December 27,
2007 he noted that appellant was also seeing a counselor.
Appellant also submitted a July 27, 2006 memorandum from Dr. Marvin Jackson, an
employing establishment physician, stating that appellant’s medical clearance for air traffic
controller duties had been temporarily withdrawn on July 13, 2006. In a report dated March 13,
2008, Dr. Jackson recommended that appellant be permanently medically disqualified from air
traffic controller duties. He noted reports submitted by Dr. Haidar. In a report dated March 19,
2008, Dr. Nestor Kowalsky, an employing establishment surgeon, advised appellant that he was
permanently medically disqualified from air traffic controller duties. Appellant also submitted a
March 10, 2006 report from Dr. Nicholas Jarmoszuk, a gastroenterologist, indicating that
appellant was being treated for proctitis.
By decision dated July 16, 2012, OWCP found the application for reconsideration was
untimely. It further determined that appellant did not establish clear evidence of error with
respect to the denial of his claim for compensation.

3

Docket No. 08-82 (issued April 8, 2008).

4

The record indicates that evidence was submitted on April 10 and May 14, 2012.

2

LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.5 The
employee shall exercise this right through a request to the district OWCP. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”6
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.7 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.8 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.9 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be sent within one year of the date of OWCP’s decision for which review is
sought. OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The evidence must be
positive, precise and explicit and must manifest on its face that OWCP committed an error.10
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.11 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.14

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.605 (1999).

7

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

Under section 8128 of FECA, “[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.”
9

5 U.S.C. §§ 8101-8193.

10

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

11

Annie L. Billingsley, 50 ECAB 210 (1998).

12

Jimmy L. Day, 48 ECAB 652 (1997).

13

Id.

14

Thankamma Mathews, 44 ECAB 765 (1993).

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ANALYSIS
The last decision on the merits of the claim for compensation was dated April 8, 2008,
when the Board addressed the merits of the claim. Appellant’s application for reconsideration
was dated May 7, 2012. As this was more than one year after the last merit decision, it was
untimely filed.
Since the application for reconsideration was untimely, appellant must establish clear
evidence of error by OWCP to be entitled to a review of the merits of his claim. In this case
appellant submitted additional medical evidence with his application for reconsideration. None
of the evidence submitted is sufficient to establish clear evidence of error.
Dr. Haidar submitted reports of treatment dated August 31, 2006 to December 27, 2007.
There is a general reference to stress at work in the August 31, 2006 report, with a brief
statement as to an undated incident where appellant had been disciplined. The compensable
work factor was a November 30, 2004 incident involving the performance of assigned duties.
Dr. Haidar did not provide a detailed description of the November 30, 2004 incident or otherwise
provide a complete factual and medical background. Moreover, he did not provide an opinion,
supported by medical rationale, establishing a diagnosed condition as causally related to the
compensable work factor.
The evidence from the employing establishment physicians noted only that appellant was
found medically disqualified from air traffic controller duties as of July 2006. There is no
rationalized medical opinion, based on a complete background, on causal relationship between a
diagnosed condition and the employment incident.
As noted, the evidence must be of such probative value that it shifts the weight of the
evidence in favor of the claimant and raises a substantial question as to the correctness of
OWCP’s decision. The application for reconsideration and the evidence submitted clearly does
not meet this standard. Therefore the Board finds that OWCP properly denied merit review in
this case.
CONCLUSION
The Board finds appellant’s application for reconsideration was untimely and failed to
show clear evidence of error.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2012 is affirmed.
Issued: March 13, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 09-1486
Issued: May 20, 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 May 26, 2009 appellant filed a timely appeal from the July 7, 2008 and January 28,
2009 merit decisions of the Office of Workers’ Compensation Programs concerning a schedule
award. 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 met his burden of proof to establish that he has more than
a 24 percent permanent impairment of his right leg, for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that on May 6, 2004 appellant, then a 58-year-old distribution clerk,
sustained a right knee meniscus tear, right hip contusion and lumbar disc displacement due to a
fall at work. On December 17, 2004 Dr. Kevin N. Mabie, an attending Board-certified
orthopedic surgeon, performed a partial medial meniscectomy and medial femoral chondroplasty

on appellant’s right knee. The procedure was authorized by the Office. On March 1, 2006
appellant filed a claim for a schedule award due to his May 6, 2004 employment injury.
On March 23, 2006 Dr. Samuel J. Hess, an attending Board-certified orthopedic surgeon,
stated that on examination appellant exhibited a left compensatory pelvic tilt of his right thoracic
rib hump and significant quadriceps atrophy in his right leg. Appellant had 5/5 motor strength in
his arms and left leg, 3/5 strength on hip flexion and 3/5 strength of his right leg quadriceps (but
otherwise had 5/5 strength in his right leg). Dr. Hess indicated that sensation in the extremities
was grossly intact but noted that appellant had diminished reflexes in his right leg compared with
his left leg.1
The findings of January 9, 2007 electromyogram (EMG) and nerve conduction velocity
(NCV) testing showed that appellant had a right L4 radiculopathy. On April 18, 2007 Dr. Mabie
found that appellant continued to have symptoms of his medial meniscus tear and L4
radiculopathy with resultant weakness in his right knee. He noted that appellant was not
interested in right knee surgery given that his knee symptoms were “not particularly
bothersome.” On May 17, 2007 Dr. Mabie stated that appellant complained of pain, weakness
and giving way in his right knee. On examination he exhibited full range of motion of his right
knee, atrophy of his right thigh and subjective weakness of his right quadriceps. Dr. Mabie
indicated that appellant had a right L4 radiculopathy and a right medial meniscus tear which was
asymptomatic and did not result in permanent impairment.2
On February 19, 2008 Dr. Mabie stated that appellant had reached maximal medical
improvement as of April 18, 2007. He noted that under Table 17-31 of the A.M.A., Guides
appellant had a three percent permanent impairment of his whole person due to the arthritic
changes of his right knee which was equivalent to a seven percent impairment of his right leg.
Under Table 17-33, Dr. Mabie had a two percent impairment of his right leg due to his right
partial medial meniscectomy. He stated that under Table 15-3 appellant had a 13 percent
impairment of his whole person due to persistent symptoms related to his L4 radiculopathy.3
Dr. Mabie noted, “Combining these impairments, the patient has suffered a permanent partial
impairment of function of his right lower extremity of 29 percent by using the appropriate
conversion for combining lower extremity impairments.”
On May 5, 2008 Dr. George L. Cohen, a Board-certified internist who served as an
Office medical adviser, stated that under Table 17-33 of A.M.A., Guides appellant had a two
percent impairment of his right leg due to his right partial medial meniscectomy.4 Using Table
1

The findings of magnetic resonance imaging (MRI) scan testing from August 2006 showed degenerative disc
disease between L3-4 and L5-S1. X-ray testing from late 2006 showed mild osteoarthritis of the right knee
including a three-millimeter joint space interval.
2

Dr. Mabie stated that appellant had a 13 percent permanent impairment of his whole person based on Table 15-3
(regarding lumbar spine impairment) of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001).
3

Dr. Mabie indicated that appellant had positive EMG findings for a right L4 radiculopathy, symptomatic sensory
loss and symptomatic loss of strength.
4

Dr. Cohen indicated that appellant had reached maximal medical improvement on April 18, 2007.

2

17-31, appellant had a seven percent impairment of his right leg due to arthritic loss of right knee
joint cartilage (three-millimeter cartilage interval). Dr. Cohen used the Combined Values Chart
of the A.M.A., Guides to find that appellant had a nine percent impairment of the right leg due to
right knee impairment. Using Table 15-18, the maximum leg impairment due to sensory loss
associated with the L4 nerve was 5 percent and the maximum leg impairment due to weakness
associated with this nerve was 34 percent. Dr. Cohen indicated that under Table 16-10 appellant
had a Grade 3 (60 percent) sensory loss because his condition interfered with some activity and
he multiplied the 5 and 60 percent values to yield 3 percent leg impairment for sensory loss.
Under Table 16-11, appellant had a Grade 3 (50 percent) strength loss associated with the L4
nerve and multiplying the 34 and 50 percent values yielded a 17 percent leg impairment for
strength loss. Dr. Cohen used the Combined Values Chart to combine the 3 percent value for
sensory with the 17 percent value for strength loss to yield a 19 percent impairment for sensory
loss and strength loss associated with the right L4 nerve. He then used the Combined Values
Chart to combine this 19 percent impairment with the 9 percent value for impairment associated
with the right knee to conclude that appellant had a 24 percent permanent impairment of his right
leg.
In a July 7, 2008 decision, the Office granted appellant a schedule award for a 24 percent
permanent impairment of his right leg. The award ran for 69.12 weeks from April 18, 2007 to
August 13, 2008.
Appellant requested a hearing before an Office hearing representative. At the
November 10, 2008 hearing, he argued that Dr. Mabie’s opinion showed that he had a 29 percent
permanent impairment of his right leg. Appellant also questioned whether Dr. Cohen properly
combined various impairment values to reach his conclusion on total impairment of his right leg.
In a January 28, 2009 decision, the Office hearing representative affirmed the July 7,
2008 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7 A schedule
award is not payable for the loss, or loss of use, of a part of the body that is not specifically
enumerated under the Act. Neither the Act nor its implementing regulations provide for a schedule

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

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award for impairment to the back or to the body as a whole. Furthermore, the back is specifically
excluded from the definition of organ under the Act.8
ANALYSIS
The Office accepted that on May 6, 2004 appellant sustained a right knee meniscus tear,
right hip contusion and lumbar disc displacement due to a fall at work. On December 17, 2004
appellant underwent a partial medial meniscectomy and medial femoral chondroplasty of his
right leg. In a July 7, 2008 decision, the Office granted appellant a schedule award for a 24
percent permanent impairment of his right leg. The award was based on calculations of
Dr. Cohen, a Board-certified internist serving as an Office medical adviser, who reviewed the
medical evidence of record, including the reports of Dr. Mabie, an attending Board-certified
orthopedic surgeon.
On May 5, 2008 Dr. Cohen properly determined that appellant had a two percent
diagnosis-based impairment of his right leg due to his right partial medial meniscectomy
surgery9 and a seven percent impairment of his right leg due to arthritic loss of right knee joint
cartilage (three-millimeter cartilage interval).10 He also properly found that multiplying the 5
percent maximum value for sensory loss due to a peripheral injury of the L4 nerve times a Grade
3 (60 percent) sensory loss yielded a 3 percent right leg impairment for sensory loss.11 Under the
Combined Values Chart of the A.M.A., Guides, the combining of these three impairment values
would yield a 12 percent impairment of the right leg.12 Table 17-2 (Guide to the Appropriate
Combination of Evaluation Methods) provides that it is permissible to combine these three
impairment values, which represent diagnosis-based impairment due to knee surgery (two
percent), impairment due to knee arthritis (seven percent) and impairment due to peripheral
nerve injury associated with the L4 nerve (three percent).13
Dr. Cohen also multiplied the 34 percent maximum value for leg impairment due to
muscle strength loss associated with the L4 nerve times a Grade 3 (50 percent) strength loss to
total 17 percent impairment for strength loss.14 However, he impermissibly combined this 17
percent impairment value for muscle strength loss with the ratings for diagnosis-based
impairment due to knee surgery, impairment due to knee arthritis and impairment due to

8

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

9

See A.M.A., Guides 546, Table 17-33.

10

Id. at 544, Table 17-31.

11

Id. at 424, Tables 15-15 and 15-18. Appellant’s condition interfered with some activities and therefore it was
appropriate to find a Grade 3 sensory loss. Id. at 424, Table 15-18.
12

Id. at 604, Combined Values Chart.

13

Id. at 526, Table 17-2.

14

Id. at 424, Tables 15-16 and 15-18.

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peripheral nerve injury associated with the L4 nerve. The Board notes that Table 17-2 of the
A.M.A., Guides does not allow for such a combination of impairment ratings.15
On appeal, appellant argued that Dr. Mabie’s opinion showed that he had a 29 percent
permanent impairment of his right leg. On February 19, 2008 Dr. Mabie properly found that he
had a two percent impairment of his right leg due to his right partial medical meniscectomy and a
seven percent impairment of his right leg due to arthritic loss of right knee joint cartilage.
Dr. Mabie also indicated that under Table 15-3 of the A.M.A., Guides appellant had a 13 percent
impairment of his whole person due to persistent symptoms related to his L4 radiculopathy.
Dr. Mabie stated, “Combining these impairments, the patient has suffered a permanent partial
impairment of function of his right lower extremity of 29 percent by using the appropriate
conversion for combining lower extremity impairments.” However, Table 15-3 concerns
diagnosis-related estimates for impairments related to lumbar spine injuries and provides
impairment values for the whole person.16 Dr. Mabie’s evaluation in this regard is of limited
probative value because the Act does not provide for a schedule award for impairment to the back
or to the body as a whole.17 His conclusion regarding appellant’s total impairment is of reduced
probative value in that he failed to provide a full explanation of how his assessment of permanent
impairment was derived in accordance with the standards adopted by the Office and approved by
the Board for evaluating schedule losses.18
The evidence of record reflects that impairment rating methods would yield either a 12
percent impairment (based on the combination of impairments due to surgery, arthritis and
nerve-based sensory loss) or a 17 percent impairment (based on muscle strength loss). The
A.M.A., Guides provides that, when two methods of impairment evaluation are appropriate, the
method which yields the highest impairment rating should be used.19 In this case, the highest
impairment rating is derived by using the 17 percent impairment rating for muscle strength loss.
The Board finds that the evidence of record shows that appellant has a 17 percent permanent
impairment of his right leg. Therefore, appellant has not established that he has more than a 24
percent permanent impairment to his right leg, for which he received a schedule award.

15

Id. at 526, Table 17-2.

16

Id. at 384, Table 15-3.

17

See supra note 8. Dr. Mabie suggested that he converted the whole person impairment to a rating for leg
impairment, but he did not explain how this was done in accordance with the standards of the A.M.A., Guides.
18

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment). On appeal, appellant argued that
he was entitled to additional compensation because his right leg was still unstable. However, appellant’s schedule
award accounted for this condition by including an impairment rating for right leg weakness.
19

See A.M.A., Guides 526-27.

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 24 percent permanent impairment of his right leg, for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2009 and July 7, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 20, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camden, AL, Employer
__________________________________________

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

Docket No. 14-2016
Issued: January 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 19, 2014 appellant filed a timely appeal of a July 31 and September 8,
2014 Office of Workers’ Compensation Programs’ (OWCP) merit decisions. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request to
change physicians; and (2) whether it properly denied appellant’s request for surgical spinal
fusion.
FACTUAL HISTORY
On December 9, 2013 appellant, then a 49-year-old rural carrier, filed a traumatic injury
claim alleging neck sprain during a December 2, 2013 employment-related automobile accident.
1

5 U.S.C. § 8101 et seq.

She returned to light-duty work on December 16, 2013. On January 6, 2014 OWCP accepted
appellant’s claim for lumbar and neck sprains.
Appellant’s attending physician, Dr. Huey R. Kidd, an osteopath, examined her on
March 3, 2014 and noted that she did not feel she was improving with physical therapy. He
recommended a magnetic resonance imaging (MRI) scan due to neck sprain. Appellant
underwent a cervical MRI scan on March 10, 2014. On March 17, 2014 Dr. Kidd reported that
appellant had pain on the right side of her neck with numbness and tingling into her right
fingertips. He reviewed the MRI scan and found bulging discs at C5-6 and a herniated disc at
C6-7. Dr. Kidd requested a neurosurgical consultation.
Dr. Timothy Holt, a Board-certified neurosurgeon, examined appellant on April 17, 2014
and noted her history of injury. He diagnosed neck pain, cervical radiculitis, and herniated
cervical disc. On examination Dr. Holt found weakness of the right wrist on motor testing with
loss of range of motion. He examined appellant’s x-rays and found large anterior osteophytes at
C5-6 with collapse of the discs at both levels. Dr. Holt stated, “At this time I think that
[appellant] does have cervical stenosis. She has tried all conservative measures. She does have
moderate disease at C5-6 and mild to moderate at C6-7, but both correlate to her symptoms.” He
recommended a spinal fusion at C5-6 and C6-7. In a note dated April 22, 2014, Dr. Kidd stated
that appellant was scheduled for surgery on June 20, 2014.
OWCP accepted that appellant also sustained displacement of cervical intervertebral disc
without myelopathy on May 9, 2014. An OWCP medical adviser reviewed the evidence on
May 9, 2014 and found that surgery was not appropriate. He stated that appellant demonstrated
some weakness in her right upper extremity, but no hard neurologic radicular signs. The medical
adviser reviewed the cervical MRI scan and found that the report was “not particularly striking.”
He stated that surgical intervention did not offer significant benefits and that conservative
management was preferable.
By decision dated May 21, 2014, OWCP denied the requested spinal fusion surgery.
Appellant requested reconsideration of the May 21, 2014 decision on June 3, 2014.
Dr. Kidd submitted a report dated May 22, 2014 and diagnosed cervical radiculopathy.
On June 5, 2014 he diagnosed neck sprain, lumbago, bulging disc C5-6, and cervical
radiculopathy. In a note dated June 20, 2014, Dr. Kidd stated that appellant was experiencing
increased pain with radiation into her right arm. On July 8, 2014 he diagnosed herniated disc
and cervicalgia. Dr. Kidd stated that appellant had “a potentially correctible problem by
surgery.” He noted that she had continued pain and symptoms consistent with her findings on
the MRI scan. Dr. Kidd submitted a report dated July 22, 2014 and stated that appellant
remained symptomatic despite physical therapy. He recommended that she continue physical
therapy and consult with Dr. Holt.
Appellant submitted a written request to change physicians on June 26, 2014. She stated
that Dr. Kidd was her treating physician and that he had recommended three courses of physical
therapy. Appellant stated that she continued to experience a lot of pain and requested that
Dr. Holt become her treating physician.

2

In a letter dated July 14, 2014, OWCP stated that additional medical evidence was needed
to support authorization of the requested surgery and provided appellant with a list of questions
regarding her condition. It allowed 30 days for a response.
By decision dated July 31, 2014, OWCP denied appellant’s request to change physicians
finding that she had not submitted a compelling reason to find treatment from Dr. Kidd was
anything other than proper and adequate.
On August 22, 2014 Dr. Holt resubmitted his treatment note, appellant’s MRI scan
findings, and Dr. Kidd’s notes. The medical adviser reviewed the medical evidence on
August 20, 2014 and found no evidence of objective neurological deficit. He stated, “The MRI
[scan] report is very bland.” The medical adviser concluded that conservative care was
preferable.
By decision dated September 8, 2014, OWCP denied modification of its prior decisions
finding that appellant had not submitted the necessary medical evidence supporting a need for
surgery.
LEGAL PRECEDENT -- ISSUE 1
The payment of medical expenses incident to securing medical care is authorized under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances, and supplies in accordance with such
regulations and instruction as the Secretary considers necessary.2
When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other instances, however, the employee must submit a written request
to OWCP with her reasons for desiring a change of physician. OWCP will approve the request if
it determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician who specializes in treating
conditions like the work related one or the need for a new physician when an employee has
moved.3
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. Employees who want to change attending
physicians must explain their reasons in writing and OWCP must review all such requests.
OWCP may approve a change when: the original treating physician refers the claimant to
another physician for further treatment; the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field or from the care of one specialist to
another in the appropriate field; or the claimant moves more than 50 miles from the original

2

5 U.S.C. § 8101-8193; § 8103(a).

3

20 C.F.R. § 10.316.

3

physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip
distance of 100 miles). It must use discretion in cases where other reasons are presented.4
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP
has the general objective of ensuring that an employee recovers from his or her injury to the
fullest extent possible in the shortest amount of time. It, therefore, has broad administrative
discretion in choosing the means to achieve this goal. The only limitation on OWCP’s authority
is that of reasonableness. Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deductions from established facts. It is not enough to show merely that the
evidence could be construed to produce a contrary conclusion.5
ANALYSIS -- ISSUE 1
On June 26, 2014 appellant submitted a written request to receive medical treatment from
Dr. Holt. She noted that her treating physician, Dr. Kidd, had recommended three courses of
physical therapy, but continued to have pain and requested that Dr. Holt become her treating
physician. OWCP denied appellant’s request as there was no evidence to indicate that the
treatment from Dr. Kidd was anything other than proper and adequate.
The Board finds that OWCP did not abuse its discretion by denying appellant’s request to
change physicians to Dr. Holt. The Board notes that Dr. Kidd has provided the medical
treatment recommended by OWCP medical adviser and a change of medical treatment providers
does not appear to be in appellant’s best interest. While appellant offered reasons for requesting
to see Dr. Holt, OWCP provided sufficient reason for denying her request. It has broad
discretion in approving services provided under FECA and the only limitation on OWCP’s
authority is that of reasonableness.6 In this case, there is no evidence of manifest error, clearly
unreasonable judgment or illogical action on the part of OWCP. Appellant did not demonstrate
that OWCP’s decision to deny the change in physicians was an abuse of discretion.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA7 provides that OWCP shall provide a claimant with the service,
appliances, and supplies prescribed or recommended by a qualified physician which are likely to
4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5.c (February 2012).
5

Daniel J. Perea, 42 ECAB 221 (1990); J.W., Docket No. 13-1852 (issued January 23, 2014).

6

Id.

7

5 U.S.C. §§ 8101-8193, § 8103.

4

cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of
monthly compensation. In interpreting section 8103, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA. OWCP has the general objective
of ensuring that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time. It therefore has broad administrative discretion in choosing means to
achieve this goal. The only limitation on OWCP’s authority is that of reasonableness.8 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.9
To establish that a medical procedure is warranted, a claimant must submit evidence to
show that the procedure is for a condition causally related to the employment injury and that the
procedure is medically warranted. Both of these criteria must be met in order for OWCP to
authorize payment.10
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained lumbar and neck sprain as well as displacement
of cervical intervertebral disc without myelopathy. On April 17, 2014 Dr. Holt diagnosed neck
pain, cervical radiculitis, and herniated cervical disc. He found motor weakness in the right wrist
as well as loss of range of motion. Dr. Holt reviewed appellant’s x-rays and found large anterior
osteophytes at C5-6 with collapse of the discs at both levels. He concluded that appellant had
cervical stenosis with moderate disc disease at C5-6 and C6-7 and recommended a spinal fusion
at C5-6 and C6-7.
An OWCP medical adviser reviewed Dr. Holt’s reports as well as appellant’s MRI scan
and noted that appellant demonstrated some weakness in her right upper extremity. He further
found no clear neurologic radicular signs. The medical adviser reviewed appellant’s MRI scan
and found that the report was “not particularly striking” and was “very bland.” He concluded
that surgical intervention did not offer significant benefits and that conservative management
was preferable.
Based on the evidence of record, the Board finds that OWCP did not abuse its discretion
by denying the proposed surgical procedure for a cervical fusion. The evidence of record fails to
establish the necessity for surgery was medically warranted. While Dr. Holt asserted that
appellant required surgery for moderate disc disease, the medical adviser reviewed his report and
noted that he had not provided specific detailed physical findings in support of his conclusions.
Dr. Holt did not explain how and why he believed that surgery was necessary and a better
treatment for appellant. Without medical opinion evidence establishing that the proposed

8

Daniel J. Perea, supra note 5.

9

Id.

10

T.C., Docket No. 14-878 (issued November 24, 2014).

5

surgery was medically warranted, Dr. Holt did not establish the need for spinal surgery and
OWCP did not abuse its discretion in denying this requested treatment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request to
change physicians or by denying her request for spinal surgery.
ORDER
IT IS HEREBY ORDERED THAT the September 8 and July 31, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CHEYENNE VETERANS ADMINISTRATION
MEDICAL CENTER, Cheyenne, WY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-463
Issued: August 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 10, 2008 merit decision denying her traumatic injury claim.
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 sustained a traumatic injury while in the performance of
duty on August 8, 2008.
FACTUAL HISTORY
On August 14, 2008 appellant, a 41-year-old house-keeping aid, filed a traumatic injury
claim (CA-1) alleging that, on August 8, 2008, she strained her back while lifting sheets out of a
laundry bin and placing them on shelves. She stated that she sought medical treatment on
August 10, 2008 from Dr. Douglas Bell, a treating physician. The employing establishment

controverted the claim, noting that appellant did not seek medical treatment until two days after
the alleged incident occurred.
On September 3, 2008 the Office notified appellant that the evidence submitted was
insufficient to establish her claim and advised her to provide, within 30 days, additional
documentation, including a firm diagnosis and a physician’s opinion as to how her injury
resulted in the diagnosed condition. It specifically asked appellant to provide a detailed
description as to how the injury occurred, including the cause of the injury; statements from any
witnesses or other documentation supporting her claim; and the reason she delayed seeking
medical treatment.
In a merit decision dated October 10, 2008, the Office denied appellant’s claim. It found
that the evidence was insufficient to establish that the claimed event occurred as alleged, or that
she had a diagnosed condition which could be connected to the claimed event.1
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”4
An employee seeking benefits under the Act 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 the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or

1

Appellant submitted additional evidence after the Office’s October 10, 2008 decision; however, the Board
cannot consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the
evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007).
2

5 U.S.C. § 8101 et seq.

3

Id. at § 8102 (a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.6
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 prima facie 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 a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
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 evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
that she sustained a traumatic injury to her back on August 8, 2008.
Appellant claimed in her CA-1 form that the nature of her injury was a back strain which
occurred while she was lifting sheets out of a laundry bin and placing them on shelves. She
provided no detailed account of and stated no apparent cause for the injury. Appellant presented
no evidence regarding the specific mechanism of injury, as required in a claim for traumatic
6

See Paul Foster, 56 ECAB 208 (2004); Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
7

See Betty J. Smith, supra note 6.

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

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

10

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

3

injury, nor has she even alleged that she experienced a specific event, incident or exposure at a
definite time, place and manner.11 She provided no evidence of a causal relationship between the
alleged injury and a diagnosed condition.
Appellant’s vague recitation of the facts as she perceived them is insufficient to establish
that a specific event occurred which caused an injury.12 She stated that she strained her back
while she was engaged in the process of “lifting sheets out of laundry [bins] and placing them on
shelves.” Appellant did not identify a particular act which caused the alleged back strain, or
explain how the alleged injury occurred. She did not allege whether she was lifting two sheets or
two hundred, or whether she was bent over or standing or sitting up right while performing the
alleged activity. Additionally, appellant’s actions surrounding the alleged incident cast serious
doubt on the validity of her claim. She did not immediately seek medical treatment and failed to
provide notification to her supervisor for a week.13 There were no witnesses to the alleged
incident and no indication that appellant related the alleged event to anyone.
In Tracey P. Spillane,14 an employee filed a claim alleging that she sustained an allergic
reaction at work. However, because she did not clearly identify the aspect of her employment
which she believed caused her to suffer the claimed condition, but only made vague references to
“possibly having a reaction to magazines or latex gloves,” the Board held that she had not
adequately specified the employment factors which she felt caused her need for medical
treatment, nor did she specify details such as the extent and duration of exposure to any given
employment factors. Medical reports reflected that the employee had not clearly reported to her
physicians that she felt her claimed condition was due to a specific and identifiable employment
factor. Similarly, in the instant case, appellant’s allegations are vague and do not relate with
specificity the cause of the injury (e.g., the fact that she twisted her spine as she lifted heavy
linens, or felt a pull as she reached overhead); or the exact and immediate consequence of the
injury (e.g., the fact that she fell, stumbled or had to sit down). Therefore, she has not met her
burden of proof to establish that she sustained an injury in the performance of duty.15
Thus, appellant has failed to establish the fact of injury: she did not submit sufficient
evidence to establish that she actually experienced an employment incident at the time, place and
in the manner alleged or that the alleged incident caused her condition.

11

See Betty J. Smith, supra note 6; see also Tracey P. Spillane, supra note 6.

12

See Dennis M. Mascarenas, supra note 9.

13

The Board notes that the CA-1 form was dated August 14, 2008, but was received by the Office on August 25,
2008, more than two weeks after the alleged employment incident.
14

See Tracey P. Spillane, supra note 6.

15

As appellant failed to establish that the claimed event occurred as alleged, it is not necessary to discuss the
probative value of medical evidence. Id. However, the Board notes that appellant did not submit any medical
evidence in support of her claim prior to the issuance of the Office’s October 10, 2008 decision.

4

CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her back in the performance of duty on August 8, 2008.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
St. Louis, MO, Employer
)
___________________________________________ )
C.R., Appellant

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

Docket No. 16-0078
Issued: February 3, 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 October 20, 2015 appellant filed a timely appeal from an April 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to a March 17, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted evidence to OWCP following the April 27, 2015 decision. The Board has jurisdiction to
review only the evidence that was before OWCP at the time of the final decision on appeal. See 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On March 17, 2015 appellant, then a 65-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he twisted his right knee while stepping out of his
mail carrier in the performance of duty. He did not stop work. The employing establishment
noted that the incident occurred at 2:00 p.m., but that appellant did not report it to a supervisor
until 3:30 p.m. Additionally, it stated that he refused treatment at a medical center in favor of
seeking treatment from his own physician.
In e-mail correspondence dated March 23, 2015, Patricia Stamps-Stephens, a human
resource specialist, noted that the supervisor was not in agreement with the time and fact of
injury since appellant refused treatment after he was sent for treatment.
In letters dated March 23, 2015 to appellant and the employing establishment, OWCP
explained that additional factual and medical evidence was needed and requested that the
evidence be submitted within 30 days.
In a March 20, 2015 report, Dr. Roy J. Williams, a Board-certified internist, noted that
appellant was seen on that date and unable to work beginning March 17, 2015. He indicated that
appellant could return to normal work duties as of March 24, 2015.
By decision dated April 27, 2015, OWCP denied appellant’s claim because he did not
submit medical evidence establishing that the work event caused a diagnosed medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing 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 timely filed within the applicable time
limitation period of FECA,4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
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.7 In some traumatic injury cases, this
3

5 U.S.C. § 8101 et seq.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (August 2012).

2

component can be established by an employee’s uncontroverted statement on the Form CA-1.8
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
In this case, appellant alleged that on March 17, 2015 he twisted his right knee when he
stepped out of his city carrier in the performance of duty. OWCP has accepted that the claimed
event occurred as alleged -- that stepping out of his city carrier and twisting his right knee at
work occurred as alleged.
However, with regard to the medical evidence, the Board finds that there is no medical
evidence of record to establish the second component of fact of injury, that the employment
incident caused an injury. The record does not contain any medical evidence which includes a
diagnosis and a reasoned explanation of how the specific employment incident on March 17,
2015 caused or aggravated an injury.11
The only medical evidence of record is a March 20, 2015 return to work note from
Dr. Williams. However, Dr. Williams merely noted that appellant was seen on that date, that he
was unable to work beginning March 17, 2015, and that he would be able to return to regular
duties on March 24, 2015. He indicated that appellant could return to normal work duties at that
time. However, Dr. Williams did not offer a diagnosis or opinion on causal relationship. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.12
Because appellant did not submit any medical evidence to address how the March 17,
2015 activities at work caused or aggravated a right knee condition, he has not established that
the March 17, 2015 employment incident caused or aggravated a specific injury.
On appeal, appellant argues that he was examined by his physician on Friday, March 20,
2015 and he met with another physician on April 28, 2015. He contends that he received the
8

John J. Carlone, 41 ECAB 354 (1989).

9

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee). Federal (FECA) Procedure
Manual, supra note 7 at Chapter 2.803.2b.
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

OWCP decision on April 27, 2015 and that he turned his report over as soon as possible. The
Board notes that these reports are not in the record before the Board.
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 did not meet his burden of proof to establish a traumatic
injury causally related to a March 17, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1345
Issued: September 19, 2013

Case Submitted on the Record

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

JURISDICTION
On May 14, 2013 appellant, through her attorney, filed a timely appeal from a
December 21, 2012 merit decision of the Office of Workers’ Compensation Programs’ (OWCP)
hearing representative. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective June 3,
2012 based on her capacity to perform the duties of a gate guard.
On appeal, appellant’s counsel alleges that the decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 19, 1990 appellant, then a 37-year-old mark up clerk, filed an occupational
disease claim alleging that she developed a wrist condition as a result of her employment duties.
She was placed on limited duty. OWCP accepted appellant’s claim for synovitis of the left wrist
and bilateral carpal tunnel syndrome. Appellant underwent arthroscopy and partial resection of
the triangular fibrous cartilage of the left wrist.
On December 3, 1992 appellant filed a recurrence claim alleging that on November 15,
1992 her left and right wrists worsened to the point that she had to wear a brace on her right wrist
and elevate it. She stopped work and received disability compensation. Appellant returned to
modified duty.
OWCP granted appellant a schedule award for 10 percent permanent impairment of the
right and left upper extremities.2
On November 16, 2010 the employing establishment withdrew appellant’s modified clerk
position through the National Reassessment Process. Appellant stopped work and filed a claim
for recurrence of disability. In a decision dated December 3, 2010, OWCP accepted her
recurrence of disability claim and paid wage-loss compensation.
OWCP referred appellant, along with a statement of accepted facts, to Dr. Patrick J.
Hughes, a Board-certified neurologist, for a second-opinion examination. In a January 19, 2011
report, Dr. Hughes reviewed appellant’s records, including the statement of accepted facts and
provided an accurate history of injury. He related her complaints of pain in both wrists and hands
when doing repetitious works. Appellant also described numbness and tingling in both hands
that would last for a number of hours. Dr. Hughes reported that she had no trouble sitting,
standing, walking or driving and lifting up to 35 pounds. Examination revealed normal strength
in the deltoid, biceps and triceps. Dr. Hughes observed that light touch and pain sensation were
normal. Tinel’s and Phalen’s signs were positive. Dr. Hughes stated that the history and
mechanism of injury were consistent with appellant’s diagnosed bilateral carpal tunnel syndrome
and that she had not fully recovered from her work-related injury. He reported that she
continued to suffer residuals of her condition. Dr. Hughes explained that appellant’s limitations
in repetitive movements such as fine manipulation and simple grasping prevented her from
returning to her date-of-injury job as a clerk, but she could work in another occupation that was
not as strenuous. He limited her to no lifting more than 35 pounds, no more than four hours a
day of fine manipulation, and no more than one hour of simple grasping. Dr. Hughes concluded
that appellant reached maximum medical improvement.
On March 4, 2011 OWCP referred appellant for vocational rehabilitation training based
on Dr. Hughes’ January 19, 2011 report.
On June 1, 2011 appellant returned to modified duty working four hours a day as a
modified window clerk. The physical requirements of the job included standing, twisting,
grasping, bending, walking and lifting no more than 35 pounds up to four hours a day.
2

By decision dated September 21, 2010, OWCP denied an additional impairment rating.

2

OWCP continued to pay appellant compensation for intermittent periods of wage loss.
On July 29, 2011 the employing establishmentadvised appellant that it was no longer able
to accommodate her medical restrictions. OWCP referred her back to vocational rehabilitation
and paid wage-loss compensation. On February 23, 2012 appellant was placed on the periodic
rolls.
In reports dated August 5, September 6, October 20and November 4, 2011 and
January 25, 2012 a vocational rehabilitation counselor discussed appellant’s education and work
history and noted that she graduated from high school and attended a few semesters at a
community college. The vocational rehabilitation counselor reported that appellant worked for
the employing establishment for 17 years. The vocational rehabilitation counselor summarized
efforts to find vocational training or suitable alternative employment for appellant within her
physical restrictions.
On November 17, 2011 the vocational rehabilitation counselor identified three positions
for appellant listed in the Department of Labor’s Dictionary of Occupational Titles (DOT) for
information clerk, DOT #237.367-022, customer service representative, DOT #239.362-014 and
Gate Guard, DOT #372.667-030. The vocational rehabilitation counselor identified the
occupation requirements for an information clerk, customer service representative and gate guard
and provided job descriptions. The positions of information clerk and customer service
representative were noted to be sedentary strength position and the position of gate guard was
found to be light strength position.3 All of the positions were found to be within appellant’s
restrictions, her vocational and work history, education, skills and training so as to reflect her
capacity to earn wages. The vocational rehabilitation counselor contacted the Bureau of Labor
Statistics for that region and determined that the jobs for an information clerk, customer service
representative and gate guardwere being performed in sufficient numbers so as to make them
reasonably available to the claimant within her commuting area and there was a positive labor
market for both jobs. The weekly wages were $393.08 for an information clerk,$443.46 for a
customer service representative and $380.96 for a gate guard.
In a November 21, 2011 duty status report, Dr. Jeffrey Ribner, a Board-certified
neurologist, noted appellant’s diagnosis of bilateral carpal tunnel syndrome. He reported that she
was capable of working eight hours a day with restrictions of lifting up to 35pounds, fine
manipulation for one to three hours a day and simple grasping for four hours a day.
In a March 7, 2012 report, the vocational rehabilitation counselor stated that appellant
had participated in 90 days of job placement services but was not offered a position.
On April 3, 2012 OWCP obtained updated salary information from the employing
establishment. In a letter dated April 4, 2012, itadvised appellant of its proposal to reduce her
3

The duties of a gate guard were described as: opens gate to allow entrance or exit of employees, truckers and
authorized visitors; checks credentials or approved roster before admitting anyone; issues passes at own discretion;
directs visitors and truckers to various parts of grounds or buildings; inspects outgoing traffic; may record number of
trucks or other carriers entering and leaving; may perform maintenance duties such as mowing lawns and sweeping
gate areas; may supervise use of time clocks for recording arrival and departure of employees. The physical
restrictions included light strength, occasional handling and no fingering.

3

wage-loss compensation as the factual and medical evidence established that she was not totally
disabled. Appellant had the capacity to earn wages as a gate guard, DOT #372.667-030 at the
rate of $390.19 a week, in accordance with the factors outlined in 5 U.S.C. § 8115. It calculated
that her compensation rate should be adjusted to $1,960.00 each four weeks. The vocational
rehabilitation counselor found that the gate guard position was suitable for appellant, given her
work restrictions and was available in her commuting area. OWCP allowed appellant 30 days in
which to submit any contrary evidence.
In an April 25, 2012 statement, appellant alleged that every job that the rehabilitation
counselor found for her involved clerical work even though she was restricted from working on a
computer all day. She noted that the position of gate guard required mowing the lawn and
frequent use of her wrists all day. Appellant stated that she was entitled to refuse jobs that were
not related to her skill set of the last 31½ years at the employing establishment. She also
disagreed with OWCP listing her as totally disabled and requested that she be given another parttime position at the employing establishment. Appellant submitted various application and
interview lists and print-outs of job searches that she had completed.
By decision dated May 31, 2012, OWCP reduced appellant’s compensation to reflect her
wage-earning capacity as a gate guard effective June 3, 2012.
On June 10, 2012 appellant requested an oral hearing. She alleged that the gate guard job
was not within her medical restrictions and that if she was capable of performing these duties
then she should be given a job with the employing establishment. Appellant also noted her
disagreement with why the employing establishment was unable to accommodate her medical
restrictions.
On October 15, 2012 a telephone hearing was held. Appellant was represented
byStephen Larkin, an OWCP advocate. She described her duties as a postal clerk and provided a
history of her employment with the employing establishment and her medical condition.
Appellant noted that Drs. Hughes and Ribner authorized her to return to full duty with
restrictions of lifting up to 35 pounds, fine manipulation up to four hours and simple grasping up
to one hour. She stated that the gate guard duties of mowing lawns and sweeping gate areas
involved simple grasping. Counsel alleged that the physical demands of the gate guard position
required occasional handlingfor two hours and 40 minutes of the day, which exceeded the
restriction of one hour of handling and grasping duties. The hearing representative stated that the
fourhours of fine manipulation and one-hour of simple grasping totaled five hours of handling.
In a June 4, 2012 report, Dr. Ribner noted appellant’s complaints of pain, predominantly
in her left hand and related her problems with finding a job because she could not use the
computer but all the jobs were computerized. Upon examination he observed good strength
throughout and good small hand movements. Phalen’s maneuver and Tinel’s sign were positive
at the wrists bilaterally. Dr. Ribner did not note any focal weakness. He diagnosed bilateral
carpal tunnel syndrome and partial permanent disability with small hand movements.
In an August 13, 2012 report, Dr. Ribner related appellant’s complaints of intermittent
pain in her right and left upper extremities. He conducted an examination and noted no

4

significant changes. Dr. Ribner opined that appellant could work full time with restrictions
regarding repetitive motion.
In a June 4 and August 13, 2012 duty status reports, Dr. Ribner authorized appellant to
return to work on June 4, 2012 with restrictions. He limited her to lifting no more than 35
pounds for eight hours a day, fine manipulation for one to three hours a day and simple grasping
up to four hours a day.
In an October 26, 2012 statement, Mr. Larkin requested that Dr. Hughes, the secondopinion examiner, be given an opportunity to determine the suitability of the gate guard position.
He alleged that because holding gardening tools involved grasping, the gate guard position
required more than one hour of grasping.
By decision dated December 21, 2012, OWCP’s hearing representative affirmed the
May 31, 2012 reduction in wages finding that the medical evidence established that appellant
was capable of performing the selected position of a gate guard and that this position fairly and
reasonably represented appellant’s capacity to earn wages.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of proving that the
disability has ceased or lessened in order to justify termination or modification of compensation
benefits.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regards to the nature of the injury, his or her degree of physical impairment,
his or her usual employment,his or her age, his or her qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his or
her wage-earning capacity in his or her disabled condition.6
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence relied upon must provide a detailed description of the condition.7Additionally,

4

Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984).

5

See Del K. Rykert, 40 ECAB 284 (1988).

6
7

5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988).
William H. Woods, 51 ECAB 619 (2000).

5

the Board has held that a wage-earning capacity determination must be based on a reasonably
current medical evaluation.8
OWCP procedure instructs that, in cases where a claimant has undergone vocational
rehabilitation, the vocational rehabilitation counselor will submit a final report to the vocational
rehabilitation specialist summarizing why vocational rehabilitation was unsuccessful and listing
two or three jobs which are medically and vocationally suitable for the claimant. Where no
vocational rehabilitation services were provided, the vocational rehabilitation specialist will have
provided the report. Included will be the corresponding job numbers from DOT (or OWCP
specified equivalent) and pay ranges in the relevant geographical area.9 Once this selection is
made, a determination of wage rage and availability in the open labor market should be made
through contact with the state employee service or other applicable service. Finally, application
of the principles set forth in the Shadrick10decision will result in the percentage of the
employee’s loss of wage-earning capacity.
In determining an employee’s wage-earning capacity based on a position defined suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation.11 Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.12
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
effective June 3, 2012 based on her capacity to earn wages in the constructed position of gate
guard.
The Board finds that the weight of medical evidence is represented by the January 19,
2011 report from Dr. Hughes, who provided a second opinion evaluation that established that
appellant was not totally disabled. Dr. Hughes provided an accurate history of injury and
conducted a thorough examination. He explained that appellant’s limitations in repetitive
movements such as fine manipulation and simple grasping prevented her from returning to her
date-of-injury job as an office clerk. Dr. Hughes opined that she could work in another
8

John D. Jackson, 55 ECAB 465 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8 (October 2009).
10

Albert C. Shadrick, 5 ECAB 376 (1953).

11

James Henderson, Jr., 51 ECAB 268 (2000).

12

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

6

occupation that was not as strenuous as her office clerk position. He limited appellant to lifting
no more than 35 pounds, fine-manipulation for up to four hours and simple grasping for up to
one hour.Based on Dr. Hughes’ report, OWCP referred her for vocational rehabilitation. The
Board finds that it properly referred appellant for vocational rehabilitationcounselor as she was
capable of working with restrictions. In a November 17, 2011 report, the vocational
rehabilitation counselor identified positions that conformed to appellant’s capabilities and
determined that she could perform the duties of a gate guard.
Appellant disagreed with the proposed reduction and in a telephone hearing alleged that
the requirements for occasional handling exceeded her medical restrictions. The Board finds,
however, that the physical demands of the gate guard position do not exceed her restrictions
provided by Dr. Hughes’ January 19, 2011 second-opinion report. The position has a light
strength level and does not require frequent fingering, handling or grasping.13 The Department
of Labor’s Dictionary of Occupational Titles classified the position as within light strength
The vocational
levels, occasional reaching and handling and negligible fingering.14
rehabilitation counselor determined that the position was being performed in sufficient numbers
so as to make them reasonably available to the claimant within her commuting area.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, such as age, employment and qualifications, in
determining that the position of gate guard represented her wage-earning capacity.The
rehabilitation counselor noted that appellant had a high school diploma and over 30 years of
work experience with the employing establishment. The vocational rehabilitation counselor also
contacted the Bureau of Labor Statistics for that region and found the position to be in sufficient
numbers so as to make it reasonably available to appellant within her commuting area. The
evidence of record establishes that appellant has the requisite physical ability, skill and
experience to perform the position and that such a position was reasonably available within the
general labor market of her commuting area. OWCP therefore properly determined that the
position of gate guard reflected appellant’s wage-earning capacity and using the Shadrick
formula15 properly reduced her compensation effective June 3, 2012.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof in reducing appellant’s
compensation.

13

See A.L., Docket No. 13-857 (issued August 14, 2013).

14

Supra note 3.

15

Supra note 10.

7

ORDER
IT IS HEREBY ORDERED THATthe December 21, 2012 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: September 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1198
Issued: December 17, 2009

Case Submitted on the Record

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

JURISDICTION
On April 2, 2009 appellant filed a timely appeal from the July 16, 2008 and January 16,
2009 merit decisions of the Office of Workers’ Compensation Programs reducing of her
compensation for failure to participate in vocational training. 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 the Office properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to participate
in vocational rehabilitation efforts.
FACTUAL HISTORY
The Office accepted that on February 27, 2004 appellant, then a 44-year-old supervisory
security screener, sustained acromioclavicular joint separation of her right shoulder and deep

venous thrombosis of her legs.1 She received compensation for periods of disability. In a
May 29, 2007 decision, the Office terminated appellant’s medical benefits for deep venous
thrombosis as the medical evidence showed that she no longer had this condition. On August 2,
2006 Dr. Joseph E. Noonan, a Board-certified orthopedic surgeon serving as an Office referral
physician, advised that due to her work-related right shoulder condition appellant was not able to
return to work as a supervisory security screener without restriction. However, appellant was
able to sit, stand, walk, kneel, bend and twist up to five hours per day and perform pushing,
pulling and simple grasping with her left arm.
In June 2007, appellant began to participate in vocational rehabilitation efforts with her
counselor, Jeanette Hanson.2 Testing was obtained which showed that, if appellant obtained a
general education development (GED) certificate, she would be qualified to consider such
occupational areas as clerical handling and some areas of records processing.
Ms. Hanson made numerous attempts to have appellant participate in GED classes at the
Takoma Goodwill headquarters. Appellant often did not return Ms. Hanson’s telephone calls
regarding this matter on a timely basis. She indicated that she would attend the classes at the
Takoma Goodwill headquarters but she failed to do so, citing various reasons including not
feeling well, moving into a new home, taking a vacation and the fact that her attorney told her
she did not have to attend such classes.3 Appellant later indicated that she would purse GED
classes at the Bates Technical College, but she failed to attend classes on a regular basis. In a
November 30, 2007 report, Ms. Hanson advised the Office that appellant was obstructing
vocational rehabilitation efforts. In February 2008, appellant was assigned a new counselor,
Jennifer Kabacy. There is no indication that appellant regularly attended GED classes despite
Ms. Kabacy’s efforts to have her do so.4
By letter dated June 11, 2008, the Office advised appellant of its preliminary
determination that she had failed to participate in vocational rehabilitation efforts, including
participating in classes designed to help obtain a GED certificate. It informed appellant that an
individual who refuses or impedes a vocational rehabilitation effort without good cause after
testing has been accomplished will have her compensation reduced based on what would have
been her wage-earning capacity had the training been successfully completed. The Office
directed appellant to make a good faith effort to participate in the rehabilitation effort within 30
days or, if she believed she had good cause for not participating in the effort, to provide reasons

1

Appellant underwent right distal clavicle resection surgery on January 6, 2005 which was authorized by the
Office.
2

Appellant had previously participated in rehabilitation efforts, but health problems interrupted those efforts.

3

Ms. Hanson indicated that the Takoma Goodwill would make accommodations for appellant’s physical
condition.
4

In early May 2008, appellant arrived at the Bates Technical College for a GED class but she left after about one
hour because she was in pain.

2

and supporting evidence of such good cause within 30 days.5 It stated that, if these instructions
were not followed within 30 days, action would be taken to reduce her compensation.
In a June 17, 2008 report, Dr. Julian S. Arroyo, an attending Board-certified orthopedic
surgeon, stated that appellant had ongoing pain with respect to her right shoulder. The report
contain limited examination findings and Dr. Arroyo did not provide any opinion on whether
appellant was unable to attend classes. The record reveals the Bates Technical College was
willing to make accommodations for appellant’s medical condition, but there is no indication that
she attended GED classes on a regular basis. Ms. Kabacy indicated that, if appellant had
received her GED certificate, she likely would have been able to return to work at the same or
higher wages than for the position she held when injured.
In a July 11, 2008 decision, the Office reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect her loss of wage-earning capacity had she continued to participate in
vocational rehabilitation efforts. It determined that appellant had failed, without good cause, to
undergo vocational rehabilitation as directed. With respect to her wage-earning capacity, the
Office further found that, if appellant had participated in good faith in vocational rehabilitation,
she would have been able to return to work at the same or higher wages than for the position she
held when injured. It reduced her compensation to zero as of July 14, 2008.
Appellant requested reconsideration and contended that she was medically unable to
attend GED classes but she did not submit any medical evidence to establish that she was
medically unable to attend such classes. Ms. Kabacy advised that appellant had not attended
GED classes on a regular basis. In a January 16, 2009 decision, the Office affirmed its July 16,
2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened before it may terminate or modify compensation benefits.6 Section 8113(b) of
the Federal Employees’ Compensation Act provides that, if an individual, without good cause, fails
to apply for and undergo vocational rehabilitation when so directed under section 8104 of the Act,
the Office, “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,” until the individual in good faith complies
with the direction of the Office.7
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions the
Office will take when an employee without good cause fails or refuses to apply for, undergo,
5

The Office directed appellant to attend GED classes at Bates Technical College at specified times and to return
calls of her rehabilitation counselor within 24 hours.
6

Betty F. Wade, 37 ECAB 556, 565 (1986).

7

5 U.S.C. § 8113(b).

3

participate in, or continue to participate in a vocational rehabilitation effort when so directed.
Section 10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, [the Office] 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. [The Office] will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the [Office] 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 [the Office].”8
ANALYSIS
The record establishes that appellant was offered repeated opportunities to complete the
agreed upon vocational rehabilitation plan, including attending GED classes. Starting in
June 2007, appellant’s rehabilitation counselors attempted to have appellant attend GED classes
at either the Takoma Goodwill headquarters or the Bates Technical College. Both institutions
advised that they would make accommodations for appellant’s physical condition. Appellant
often did not return her rehabilitation counselors’ telephone calls regarding this matter on a
timely basis. She indicated that she would attend the GED classes but she failed to do so, citing
various reasons including not feeling well, moving into a new home, taking a vacation and the
fact that her attorney told her she did not have to attend such classes. Appellant claimed that her
physical condition prevented her from attending classes, but she did not submit medical evidence
to support this assertion. In a June 17, 2008 report, Dr. Arroyo, an attending Board-certified
orthopedic surgeon, noted that she had ongoing pain with respect to her right shoulder.
However, Dr. Arroyo did not provide any opinion on whether appellant was disabled from
attending classes. There is no indication that appellant ever attended GED classes on a regular
basis as directed to do by her rehabilitation counselors.
There is no evidence therefore that appellant’s failure to fully participate in the
rehabilitation program, particularly in her failure to participate in attempts to obtain a GED
certificate necessary to return to the workforce at a reasonably high level of employment, was
based on “good cause.”9 The reduction of appellant’s compensation was based on a
determination of what appellant’s income likely would have been if she had fully participated in
vocational rehabilitation efforts. The Office properly found that, if appellant had participated in
good faith in vocational rehabilitation efforts, she would have been able to return to work at the
same or higher wages than for the position she held when injured. Therefore, it reduced
appellant’s compensation to zero as of July 14, 2008. For these reasons, the Office properly

8

20 C.F.R. § 10.519(a).

9

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

4

reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning
capacity had she continued to participate in vocational rehabilitation efforts.10
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to participate
in vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2009 and July 16, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 17, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

On appeal appellant’s attorney argued that the Office committed errors of fact and law in its decisions, but he
did not further articulate the basis for this belief.

5