United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Hills, NY, Employer
__________________________________________

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

Docket No. 18-0599
Issued: February 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 26, 2018 appellant filed a timely appeal from a July 31, 2017 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 to
consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $12,652.79 for the period February 16 to July 12,
2017; and (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment of compensation thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 26, 2011 appellant, then a 58-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 22, 2011 she injured both knees when she tripped on uneven
pavement when trying to deliver mail while in the performance of duty. She stopped work on
July 27, 2011 and returned to intermittent limited duty on July 31, 2011. Appellant was placed on
disability retirement effective January 13, 2014.
On November 28, 2011 OWCP accepted appellant’s claim for bilateral knee and lower leg
contusions and contusion of the bilateral wrists and hands.
On May 22, 2012 Dr. Mark S. McMahon, a Board-certified orthopedist, performed a right
knee arthroscopy and diagnosed right knee torn medial meniscus with degenerative joint disease,
partial tear of the medial collateral ligament and chondromalacia of the patella.
On December 4, 2012 OWCP expanded the acceptance of appellant’s claim to include the
additional conditions of bilateral chondromalacia patellae, bilateral tear of the medial meniscus of
the knee, and right lower leg osteoarthrosis unspecified.
On January 28, 2014 Dr. Frank DiMaio, a Board-certified orthopedist, performed a
cemented right total knee replacement and diagnosed traumatic arthritis of the right knee.
Appellant was placed on the periodic rolls effective May 4, 2014. On May 28, 2014 she
elected FECA benefits.
In a letter dated July 21, 2014, OWCP advised appellant’s then-counsel that a third party
may be liable for her work-related injury. It informed her to promptly take action to seek damages
and to contact OWCP if there was a recovery against a third party. OWCP requested that appellant
respond to an attached questionnaire.
On June 2, 2015 appellant’s then-counsel advised the Department of Labor that he
represented appellant in a third-party claim for bodily injury arising out of her July 22, 2011 workrelated injury. He indicated that the defendant wished to discuss settlement and therefore he was
requesting a printout of the employing establishment charges against any recovery or judgement
obtained.
In a letter dated June 8, 2015, OWCP advised appellant’s then-counsel that a Form
CA-1108 must be filed once appellant received a settlement. The purpose of the form is to
calculate the refund owed to the United States.
In a September 29, 2015 letter, OWCP informed counsel that $132,860.46 in wage-loss
compensation and $54,965.32 in medical benefits had been paid in connection with the claim, for
a total of $187,825.78 in payments issued to appellant as of that date.
On November 25, 2015 her then-counsel indicated that appellant agreed to accept the thirdparty’s settlement offer in the amount of $600,000.00. He attached a copy of the November 14,
2015 settlement agreement.

2

In a December 1, 2015 letter, OWCP informed appellant’s then-counsel that on that date
$138,756.46 in wage-loss compensation and $54,965.32 in medical benefits had been paid in
connection with the claim, for a total of $193,721.78 in payments issued to appellant.
In a letter dated December 2, 2015, her then-counsel again advised the Department of
Labor that appellant had received a third-party settlement as a result of the injury. He enclosed a
completed Form CA-1108 dated December 14, 2015. The gross recovery noted was $600,000.00.
After deducting attorney fees ($199,980.00), court costs ($4,852.30), and an additional 20 percent
($79,033.54), the remainder was $316,134.16. The amount of benefits paid by the government
was noted as $193,721.78 and the government’s allowable portion attorney fees was noted as
$64,567.47. The form indicated that a refund of $129,154.31 was owed to the Department of
Labor. It also noted that the credit against future benefits (surplus) was $122,412.38.
In a letter dated December22, 2015, OWCP informed appellant’s then-counsel of the
approval of the Form CA-1108 which had been submitted. It noted the United States
Government’s statutory right to a refund of compensation benefits in the amount of $129,154.31
and provided repayment instructions.
On January 4, 2016 appellant, through counsel, submitted a check to OWCP in the amount
of $129,154.31.
In a letter dated January 20, 2016, appellant elected to terminate wage-loss compensation
benefits under FECA and instead collect from a disability annuity under the Federal Employees
Retirement System.
On February 16, 2016 OWCP confirmed the refund had been received. It advised counsel
that a surplus remained in appellant’s case in the amount of $122,412.38. OWCP advised him that
until the surplus had been exhausted, she was not entitled to further wage-loss compensation or
medical benefits under FECA. It indicated that it would resume compensation payments only after
the amount of the surplus had been absorbed.
Appellant continued to receive compensation payments under FECA. She received
compensation in the amount of $1,527.16, representing her wage-loss compensation for the period
February 16 to March 5, 2016; $2,259.40, representing her wage loss for each 28-day period from
March 6 to June 25, 2016; $1,371.78, representing her wage-loss compensation for the period
June 26 to July 12, 2016; and medical payments in the amount of $716.25. The total amount of
the overpayment was $12,652.79.
In an election form dated July 13, 2016, appellant elected to receive benefits from the
Office of Personnel Management (OPM) effective July 13, 2016.

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In a letter dated July 26, 2016, OWCP informed OPM that appellant elected to receive
retirement benefits from OPM in lieu of FECA compensation benefits.2
On April 5, 2017 OWCP issued a preliminary determination of an overpayment of
compensation in the amount of $12,652.79 for the period February 16 to July 12, 2016 because
she received wage-loss compensation during a period of a third-party surplus. It found that
appellant was at fault in the creation of the overpayment because she knowingly accepted payments
which she knew or reasonably should have known were incorrect. The preliminary determination
provided an explanation of the calculation of the overpayment. OWCP requested that appellant
complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it notified her that, within 30 days of the date
of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
In a letter dated May 11, 2017, appellant responded to OWCP’s preliminary determination
and indicated that she was unaware of a surplus in her claim. She indicated that counsel provided
her with letters dated January 4 and February 11, 2016 from OWCP, but they had not mentioned
a surplus. Appellant explained that nobody had explained to her that a surplus existed and thus
she believed that the error was not of her own fault. She submitted argument and supportive
correspondence and other paperwork in her response. Appellant also submitted bank statements,
tax forms, annuities, monthly expenses, investment statements, and grocery receipts. She
completed an overpayment action request form and requested OWCP make a decision based on
the evidence in the file. Appellant indicated that her monthly income was $2,367.35 and her
monthly expenses were $4,498.69. She indicated that she had $338,784.13 at her disposal.
By decision dated July 31, 2017, OWCP finalized its determination that appellant received
an overpayment of compensation in the amount of $12,652.79 and that she was with fault in the
creation of the overpayment. It required that she forward payment for the full amount of
$12,652.79 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8132 of FECA outlines that where an injury or death for which compensation is
payable is caused under circumstances creating a legal liability in a person other than the United
States to pay damages and a beneficiary entitled to compensation from the United States for that
injury or death receives money or other property in satisfaction of that liability as a result of suit
or settlement by him or her in his or her behalf, the beneficiary, after deducting there from the
costs of suit and a reasonable attorney’s fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus on future payments of compensation
2

OWCP indicated that appellant’s compensation benefits had ceased on July 23, 2016. It requested that OPM
forward $932.42 as reimbursement for the period July 13 to 23, 2016. On December 27, 2016 OWCP received a
check in the amount of $932.42 from OPM as reimbursement for compensation paid from July 13 to 23, 2016.
3

Id. at § 8102.

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to him or her for the same injury.4 The applicable regulations reiterate that, after the refund owed
to the United States is calculated, FECA beneficiary retains any surplus remaining and this amount
is credited, dollar for dollar, against future compensation for the same injury.5 OWCP will resume
the payment of compensation only after FECA beneficiary has been awarded compensation which
exceeds the amount of the surplus.6 Where a beneficiary who has received a third-party recovery
has made the required refund, but subsequent events result in payment of compensation benefits,
including medical benefits, this may result in an overpayment of compensation.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,652.79 for the period February 16 to July 12, 2017.
Appellant received a third-party recovery of $600,000.00. She was properly provided,
through her then-counsel of record, a December 14, 2015 Form CA-1108 which provided the
calculations of the amount that needed to be refunded directly to the United States Government,
as well as any surplus funds that would offset future compensation benefit payments. After
appropriate deductions for the costs of the third-party suit and attorney fees, a surplus was created
against future compensation in the amount of $122,412.38. Future compensation payments are to
be charged against a surplus until it has been exhausted.8
For the period February 16 to March 5, 2016, appellant received benefits in the amount of
$12,652.79 in her FECA claim. This amount was required to be credited against the remaining
surplus rather than paid to her.9 Therefore, the Board finds that OWCP properly found an
overpayment of compensation in the amount of $12,652.79.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments to
which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery

4

Id. at § 8132. See also T.D., Docket No. 16-0565 (issued May 5, 2016).

5

20 C.F.R. § 10.712.

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, FECA Third-Party Subrogation Guidelines, Chapter
2.1100.10 (March 2006).
8

20 C.F.R. § 10.712.

9

See B.G., Docket No. 14-0850 (issued September 17, 2014).

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would defeat the purpose of FECA or be against equity and good conscience.10 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.11
In determining whether an individual is at fault, section 10.433(a) of OWCP’s regulations
provides in relevant part:
“An individual is with fault in the creation of an overpayment who-Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or accepted a payment which he or she knew or should have
known to be incorrect.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
OWCP found that appellant was at fault in the creation of the overpayment because she
accepted payments she knew or should have known were incorrect. In a letter dated February 16,
2016, it informed appellant’s then-counsel of record that she had a surplus in the amount of
$122,412.38 as a result of her third-party settlement. The letter also informed her then-counsel
that, until the surplus had been exhausted, appellant was not entitled to further wage-loss
compensation or medical benefits, but her compensation payments would resume after the amount
of the surplus had been absorbed. Following receipt of the February 16, 2016 letter, appellant
received payments for wage-loss compensation and reimbursement for medical payments in the
amount of $12,652.79.
Although OWCP may have erred in not applying the third-party surplus when issuing the
wage-loss compensation and medical reimbursement payments, this does not relieve appellant
from her obligation to repay the overpayment. Fault can be established if the circumstances show
that the claimant accepted a payment she should have known was incorrect.13 It has been
established that OWCP provided a specific explanation regarding the nature of the nature and
amount of the surplus and the resultant impact on appellant’s entitlement to further compensation
payments until the surplus had been absorbed. Therefore, appellant should have known that the
wage-loss compensation benefits and medical reimbursements were incorrect.14 Thus, OWCP

10

5 U.S.C. § 8129(b).

11

Robert W. O Brien, 36 ECAB 541, 547 (1985).

12

20 C.F.R. § 10.433(a).

13

P.B., Docket No. 17-1046 (issued January 2, 2018); B.G., Docket No. 14-850 (issued September 17, 2014).

14

Id.

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properly found her at fault in the creation of the overpayment, thereby precluding waiver of
recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,652.79 for the period February 16 to July 12, 2017 and that
appellant was at fault in the creation of the overpayment of compensation thereby precluding
waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Lake Mary, FL,
Employer
__________________________________________

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

Docket No. 14-1790
Issued: May 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant, through counsel, filed a timely appeal of a June 12, 2014
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.
ISSUE
The issue is whether appellant established that his rib condition was causally related to
the accepted May 30, 2011 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. On June 2, 2011 appellant, then a 49year-old mail processing clerk, filed a traumatic injury claim alleging that on May 30, 2011 he
1

5 U.S.C. § 8101 et seq.

reinjured his left rib when he attempted on his own to flip a full tray of mail onto a postal
machine. By decision dated January 28, 2014, the Board affirmed a July 12, 2013 OWCP
decision denying appellant’s request for reconsideration as it was untimely filed and failed to
show clear evidence of error.2 The Board found that a review of the case record revealed that no
request for reconsideration had been submitted on or about June 26, 2012 as alleged and
appellant had failed to submit proof showing that a request had been submitted in a timely
manner.
On March 14, 2014 counsel requested reconsideration and contended that neither OWCP
nor the Board had read the complete record in this case. He included a copy of a document from
the case record proving receipt by OWCP of his June 26, 2012 request for reconsideration on
July 5, 2012 well within one year of the last OWCP merit decision dated July 21, 2011.
By decision dated June 12, 2014, OWCP found that the June 26, 2012 request for
reconsideration had been in the record. It then performed a merit review of all the evidence.
After that merit review, OWCP found that the medical evidence contained in the record failed to
establish that the diagnosed rib condition was causally related to the accepted May 30, 2011
employment incident and denied the claim.
The relevant evidence in the record is set forth below.
On May 31, 2011 a South Seminole Hospital report stated that appellant had been seen
for left chest pain after hearing a pop after lifting a tray of letters and was diagnosed with a rib
fracture and bronchitis. Under assessment, it noted that appellant sustained an employment
injury.
A May 30, 2011 chest x-ray interpretation from Orlando Health Department of
Radiology/Nuclear Medicine reported normal findings.
In e-mail correspondence dated May 31, 2011, Saverio Marchesio, a supervisor, related
that on May 30, 2011 appellant told him he felt a pop in his chest after flipping a tray of mail.
Appellant related that a few weeks previously he had been treated in the hospital for rib problems
and that he had been told he had cracked or fractured the rib from coughing and bronchitis.
On June 21, 2011 OWCP received a May 31, 2011 discharge note from Orlando Health
Department of Radiology/Nuclear Medicine stating that appellant could return to work on
June 5, 2011.3
A June 5, 2011 coding summary from Seminole Hospital noted that appellant had been
seen in the emergency room on May 30, 2011 and was discharged on May 31, 2011. The
diagnosis was not otherwise specified chest pain.
In a June 7, 2011 Florida Workers’ Compensation Uniform Medical Treatment/Status
Report form, Dr. Olivia Alexander, an examining Board-certified family practitioner, diagnosed
2

Docket No. 13-1894 (issued January 28, 2014).

3

The physician’s signature is illegible.

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chest wall sprain and checked “yes” to the question of whether it was work related. The date of
injury was noted as May 30, 2011.
On June 7, 2011 Centra Care Florida Hospital Urgent Care informed appellant that he
had been diagnosed with chest wall pain and provided his prescriptions and instructions for care
of his injury.
On June 7, 2011 Dr. Alexander reported seeing appellant for rib pain and diagnosed acute
chest wall sprain. She related that he sustained a work injury on May 30, 2011 due to lifting
mail and noted a prior injury.
In Florida Workers’ Compensation Uniform Medical Treatment/Status Report forms
dated June 7, 14, 22, 26, and 28, and July 6, 12, and 20, 2011, Dr. Russell Wheatley, a treating
osteopathic Board-certified family practitioner, provided work restrictions. He diagnosed closed
rib fracture and checked “yes” to the question of whether the diagnosed condition was
employment related. Dr. Wheatley noted the date of injury as May 30, 2011 on the June 7, 28,
July 6, 12, and 20, 2011 forms and May 31, 2011 on the June 14, 22 and July 5, 2011 forms.
In a June 14, 2011 Centra Care Florida Hospital Urgent Care note, Dr. Wheatley
diagnosed closed unspecified rib fracture(s), noted medicine prescribed for appellant, and
provided instructions for care of his injury. Dr. Wheatley also noted that appellant’s blood
pressure was high that day, provided a definition of high blood pressure and information on how
to lower blood pressure.
In reports dated June 14, 22, July 6, and 20, 2011 Dr. Wheatley reported that appellant
sustained a work injury on May 31, 2011 due to lifting a heavy object and that he had a prior
injury. A physical examination revealed left lateral chest tenderness. Diagnoses included acute
unspecified closed rib fracture(s).
In notes dated dated June 22 and July 6, 2011, Dr. Wheatley diagnosed one rib closed
fracture, which he stated was healing nicely. He indicated that appellant was to continue
working a modified job and gave a return date for a follow-up visit.
Dr. Wheatley, in a June 28, 2011 report, noted that appellant sustained an injury at work
on May 30, 2011 due to lifting a heavy object. He diagnosed an acute closed rib fracture.
In a July 9, 2011 response to questions posed by OWCP, appellant related that he had a
similar condition prior to the May 30, 2011 incident. He stated that the prior rib injury was from
March 5 to May 5, 2011 and occurred due to coughing attacks and bronchitis.
In July 12 and 20, 2011 reports, Dr. Wheatley related that appellant sustained a work
injury to his rib on May 30, 2011 due to lifting a heavy object. He noted that appellant had
previously sustained a rib injury.
On July 15, 2011 OWCP also received medical and hospital reports for the period
February 28 to May 11, 2011 concerning treatment for a left rib fracture with the relevant
evidence regarding left rib fracture set forth below.

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A March 7, 2011 progress note by Dr. Dimple Shah, an examining Board-certified
internist, reported appellant had been seen for upper respiratory problems. Under assessment,
she noted that appellant’s chest pain was “likely related to costochondritis versus bruising of the
left-sided chest muscles or ribs.”
On March 23, 2011 Dr. Shah opined that appellant’s chest pain was likely due to
costochondritis based on the negative cardiac workup.
On March 29, 2011 Dr. Shah diagnosed acute bronchitis and costochondritis.
On April 4, 2011 appellant was seen by Dr. Shah for his left-sided chest wall pain
complaints. Diagnoses included left chest wall pain, leukocytosis, hypertension, and tobacco
dependence. Dr. Shah recommended that an x-ray be performed “to rule out any rib fracture as
he is extremely tender over the left side of the ribs in the infra-axillary area.”
In an April 11, 2011 progress report, Dr. Shah diagnosed seventh left rib fracture based
on a bone scan and leukocytosis.
In an April 5, 2011 report, Dr. Antonio Rodriguez, an examining physician Boardcertified in critical care medicine, internal medicine, and pulmonary disease, diagnosed atypical
chest pain, dyspnea, and hypertension. A computerized tomography (CT) scan revealed a
negative rib series. Under history of illness, Dr. Rodriguez reported that appellant had “been
dealing with left-sided atypical chest pain” for the past four weeks along with two to three
emergency room visits.
In an April 5, 2011 report, Dr. Babak Alex Vakili, a Board-certified internist specializing
in cardiology, related that appellant was seen for dyspnea. Under history of present injury, he
noted that appellant complained of shortness of breath for the past month and a half and left side
rib pain. Diagnoses included dyspnea, controlled hypertension, and abnormal electrocardiogram.
An April 6, 2011 bone scan revealed left posterolateral seventh rib fracture and that
“[U]nderlying pathology cannot be excluded, but is unlikely in the absence of other significant
findings.”
On April 8, 2011 Dr. Shah diagnosed left chest wall pain probably due to seventh rib
fracture, leukocytosis, tobacco dependence, and hypertension.
In progress notes dated April 28, 2011, Dr. Shah reported that appellant was seen for a
follow-up visit for a left seventh rib fracture. She noted that he was on short-term disability, that
the rib injury took several weeks to diagnose, there were many hospitalizations for this injury,
and appellant was to return to work on May 1, 2011.
Dr. Shah, in a May 11, 2011 progress note, related that appellant was evaluated for leftsided chest pain and diagnosed left seventh rib fracture.
In a May 31, 2011 discharge summary, electronically signed by Richard Garris, ED RN,
appellant’s condition was noted as stable.

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A July 15, 2011 CT scan reported callus formation on the seventh and ninth rib fractures
and nondisplaced eighth rib fracture with no callus formation.
A July 15, 2011 Florida hospital emergency physician report, stated that appellant was
seen for shortness of breath, which he attributed to a left rib fracture. Dr. Vicki Kay Friend, an
examining Board-certified emergency room physician, examined appellant, provided physical
findings, noted a past history of asthma, and a May 30, 2011 left rib fracture. A clinical
assesment noted asthma and old rib fracture.
On September 13, 2011 OWCP received a July 12, 2011 x-ray interpretation which
diagnosed mild left lung atelectasis which might be the result of splinting caused by trauma.
On July 5, 2012 OWCP received a report from Centra Care Florida Hospital Urgent Care
dated July 20, 2011 which diagnosed recurrent rib fracture and a July 12, 2011 report by
Dr. Wheatley. On July 12, 2011 Dr. Wheatley related that appellant was seen for a recheck on
his rib injury. He stated that the rib injury occurred on May 30, 2011 due to lifting a heavy
object at work and there had been a prior injury. Physical examination findings were provided.
Dr. Wheatley diagnosed acute closed one rib fracture. Appellant was released to modified work
on July 26, 2011.
On May 13, 2013 OWCP received a letter dated January 17, 2013 from appellant’s
counsel requesting reconsideration. Counsel indicated that a request for reconsideration had
been filed on or about June 26, 2012 and submitted a copy of the letter.
By decision dated July 12, 2013, OWCP denied the claim as untimely as no request for
reconsideration has been filed. Appellant appealed this decision to the Board which was
affirmed on January 28, 2014.
On March 14, 2014 counsel requested reconsideration and provided evidence of a timely
request for reconsideration. He argued that the record supported his contention that his request
for reconsideration had been timely filed.
By decisin dated June 12, 2014, OWCP denied the claim after reviewing the merits of the
case.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

4

Supra note 1.

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employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged. 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.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.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
OWCP accepted that on May 30, 2011 appellant was alone when he went to flip a full
tray of mail onto a postal machine. It denied his claim because the record contained no medical
opinion explaining how the diagnosed left rib condition had been caused or aggravated by the
May 30, 2011 employment incident. The issue on appeal is whether the medical evidence of
5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

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

7

See Elaine Pendleton, 40 ECAB 1143 (1989); K.K., Docket No. 13-1205 (issued December 13, 2013).

8

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

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

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record is sufficient to establish that the May 30, 2011 employment incident caused or aggravated
a left rib condition. The Board finds that appellant failed to submit a rationalized medical report
from a physician addressing how the May 30, 2011 incident could have caused or aggravated his
claimed rib condition.
Appellant submitted multiple Florida Workers’ Compensation Uniform Medical
Treatment/Status reports from Drs. Alexander and Wheatley. In a June 7, 2011 report,
Dr. Alexander noted an injury date of May 30, 2011 diagnosed chest wall sprain and “checked
“yes” to the question of whether the diagnosed condition was causally related to appellant’s
employment. Dr. Wheatley diagnosed closed rib fracture in the form reports he completed and
noted injury dates of either May 30 or 31, 2011. As to the cause of the diagnosed condition,
Dr. Wheatley also checked “yes” to the question of whether the diagnosed condition was
causally related to appellant’s employment. Neither physician provided any rationale explaining
why they believed the diagnosed conditions were employment related. The Board has held that
when a physician’s opinion on causal relationship consists only of checking “yes” to a form
question, without explanation or rationale, that opinion is of diminished probative value and is
insufficient to establish a claim.13 Thus, these reports are insufficient to meet appellant’s burden
of proof.
Dr. Alexander also completed a report on June 7, 2011 in which she noted that appellant
was seen for rib pain and he had sustained an employment injury on May 30, 2011. She noted
that there was a history of a prior rib injury without providing any details as to when it occurred.
Dr. Wheatley provided multiple reports for the period June 14 to July 20, 2011 in which he
diagnosed a left rib fracture which occurred due to appellant lifting a heavy object at work on
either May 30 or 31, 2011. The Board finds that while both Drs. Alexander and Wheatley
attributed appellant’s rib condition to a May 30, 2011 incident, neither physician provided any
explanation as to how the May 30, 2011 incident caused or aggravated appellant’s rib condition.
The Board has found that vague and unrationalized medical opinions on causal relationship have
little probative value.14 Thus, these reports are insufficient to meet appellant’s burden of proof.
The record also contains a July 20, 2011 report from Centra Care Florida Hospital Urgent
Care diagnosing recurrent rib fracture and a July 15, 2011 emergency room report by Dr. Friend
noting a history of asthma and May 30, 2011 left rib fracture. Medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value.15
Thus, these reports are insufficient to establish appellant’s claim.

13

D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

14

See D.U., Docket No. 10-144 (issued July 27, 2010) (medical reports not containing adequate rationale on
causal relationship are of diminished probative value and are insufficient to meet the claimant’s burden of proof);
Richard A. Neidert, 57 ECAB 474 (2006); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value); Jimmie H. Duckett, 52 ECAB
332 (2001).
15

S.E., Docket No. 08-2214 (issued May 6, 2009); K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB
200 (2004); Dennis M. Mascarenas, supra note 9.

7

Appellant also submitted medical and hospital reports for the period February 28 to
May 11, 2011 for the treatment of a left rib fracture. Dr. Shah, in progress notes for the period
March 7 to May 11, 2011, diagnosed various conditions including left chest wall pain, acute
bronchitis, costochonritis, and left seventh rib fracture. Dr. Rodriguez diagnosed atypical chest
pain, hypertension, and dyspnea. On April 5, 2011 Dr. Vakili noted that appellant complained of
left side rib pain and shortness of breath for the past month and a half and diagnosed dyspnea,
controlled hypertension and abnormal electrocardiogram. Dr. Rodriguez, in an April 5, 2011
report, noted appellant’s complaints of left-sided atypical chest pain for the past month and
diagnosed atypical chest pain, hypertension, and dyspnea. These reports, however, are of no
probative value in establishing the claimed left rib injury as they predate the May 30, 2011
injury.16
The remaining medical evidence of record, including diagnostic tests, which do not
contain an opinion on the cause of appellant’s claimed condition, are insufficient to establish
appellant’s claim.17
Further, the Board has held that the fact that a condition manifests itself during a period
of employment does not raise an inference of causal relation.18 An award of compensation may
not be based on surmise, conjecture, or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment, nor the belief that his condition was caused,
precipitated, or aggravated by his employment, is sufficient to establish causal relationship.19 To
establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s
report that addresses the May 30, 2011 employment incident and how it caused or aggravated his
left rib condition.20
OWCP advised appellant of his responsibility to provide a comprehensive medical report
which described his symptoms, test results, diagnosis, treatment, and the physician’s opinion,
with medical reasons, on the cause of his condition. Appellant failed to submit appropriate
medical documentation in response to OWCP’s request. As there is no probative, rationalized
medical evidence addressing how his claimed left rib condition was caused or aggravated by the
May 30, 2011 employment incident, he has not met his burden of proof.
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.

16

Michelle Kunzwiler, 51 ECAB 334 (2000).

17

Id.

18

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007) Daniel O. Vasquez, 57 ECAB
559 (2006).
19

See D.U., supra note 14; D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza,
48 ECAB 115 (1996).
20

Michael S. Mina, 57 ECAB 379 (2006); Michael E. Smith, 50 ECAB 313 (1999).

8

CONCLUSION
The Board finds that appellant failed to establish that his left rib condition was causally
related to the accepted May 30, 2011 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2014 is affirmed.
Issued: May 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF JUSTICE, ALCOHOL,
TOBACCO, FIREARMS & EXPLOSIVES,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1914
Issued: June 4, 2015

Case Submitted on the Record

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

JURISDICTION
On September 4, 2014 appellant filed a timely appeal from a July 28, 2014 merit decision
of the Office of Workers’ Compensation Programs1 (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

Following the issuance of the July 28, 2014 OWCP decision, appellant submitted new evidence. The Board is
precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20
C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated April 24, 2015, the Board denied the request as
appellant’s arguments on appeal could be addressed adequately in a decision based on a review of the case as
submitted on the record. Order Denying Request for Oral Argument, Docket No. 14-1914 (issued April 24, 2015).

ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on December 5, 2013, as alleged.
On appeal, appellant contends that her attending physicians diagnosed lumbago,
cervicalgia, and knee injury in connection with her claim and requests payment of her medical
bills and restoration of 56 hours of sick leave.
FACTUAL HISTORY
On December 20, 2013 appellant, then a 62-year-old industry operations intelligence
specialist, filed a traumatic injury claim (Form CA-1) alleging an injury on December 5, 2013
due to a work-related motor vehicle accident. She reported that, as she was driving to conduct a
weapons inventory in a government issued vehicle, she was rear-ended by another vehicle at a
red traffic light. Appellant stated that she was wearing a seat belt, but her head jerked forward,
almost to the windshield, and back again. She hit her right knee on the console, as well.
In a January 16, 2014 letter, OWCP notified appellant of the deficiencies of her claim as
she had failed to submit any documentation to support her claim and afforded her 30 days to
submit evidence and respond to its inquiries.
Appellant therefore submitted a narrative statement and hospital records dated
December 5, 2013 from Einstein Medical Center in Philadelphia, Pennsylvania. Dr. Che Ward, a
Board-certified emergency medicine physician, diagnosed musculoskeletal pain. He explained
that appellant was rear-ended in a motor vehicle accident without airbag deployment and
presented with back pain on the right lumbar area. Dr. Ward reported that appellant denied
dizziness, chest pain, shortness of breath, nausea, vomiting, numbness, tingling, or weakness in
the upper and lower extremities, but that appellant had mild lower lumbar muscle tenderness on
the right side. There was no cervical spine tenderness, full range of motion of the hip, and an
x-ray of the hip joint showed no acute fracture. Appellant was able to ambulate in the
emergency department and her pain had decreased before discharge.
In a reports dated December 11 and 19, 2013, Dr. Judy Chertok, a Board-certified family
practitioner and appellant’s attending physician, indicated that appellant had a doctor’s
appointment and required time off due to persistent pain after her car accident. On January 29,
2014 she diagnosed “muscle spasm and pain in relation to a car accident she sustained [on]
December 5, 2013 where she reported being rear-ended at a stop light.” Dr. Chertok stated that
appellant’s initial examination was significant for “diffuse muscle spasm and tenderness, left
posterior calf (not in area of tenderness) with small grape-sized swelling without ecchymosis or
erythema.” Appellant’s follow-up examination was essentially normal and Dr. Chertok noted
that her back had no tenderness to palpation along the spine, mild paraspinal tenderness in the
cervical and lumbar regions, and normal gait. Dr. Chertok found “full range of motion [of] both
knees without effusion or signs of trauma.” She reiterated her diagnosis of “muscle spasm
related to motor vehicle accident” and recommended medication and physical therapy.

2

By decision dated February 20, 2014, OWCP denied appellant’s claim on the basis that
the medical evidence submitted failed to establish a diagnosis causally related to the employment
incident.
On March 10, 2014 appellant requested an oral hearing before an OWCP hearing
representative, which was held on June 9, 2014.
Appellant submitted additional hospital records dated December 5, 2013 and physical
therapy notes dated January 8 through March 14, 2014 from James Blakely, a physical therapist,
who diagnosed lower back pain “consistent with lumbar sprain/strain.”
In a December 19, 2013 report, Dr. Chertok stated that appellant was seen after motor
vehicle accident and initially presented with neck and leg pain and indicated that appellant’s pain
was worsening in the lower back and anterior right knee. She diagnosed muscle pain and
explained that appellant was having a limited schedule at work because her pain was worse after
prolonged sitting.
By decision dated July 28, 2014, an OWCP hearing representative affirmed the
February 20, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury5 was sustained in the performance of
duty, as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. 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. An employee may establish that the employment incident occurred, as alleged,
but fail to show that his or her condition relates to the employment incident.7
4

5 U.S.C. § 8101 et seq.

5

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
7

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
OWCP has accepted that the employment incident of December 5, 2013 occurred at the
time and in the place and manner alleged. The issue is whether appellant sustained an injury as a
result. The Board finds that appellant did not meet her burden of proof to establish an injury
related to the December 5, 2013 employment incident.
On December 5, 2013 Dr. Ward, the emergency room physician, noted that appellant was
rear-ended in a motor vehicle accident and diagnosed musculoskeletal pain. The Board finds
that Dr. Ward’s diagnosis of musculoskeletal pain is a description of a symptom rather than a
clear diagnosis of the medical condition.9 Thus, the reports from Dr. Ward are insufficient to
establish a medical diagnosis in connection with the injury as required.
Similarly, in her reports, Dr. Chertok diagnosed muscle spasm and muscle pain related to
appellant’s December 5, 2013 motor vehicle accident. In a December 19, 2013 report, she
indicated that appellant’s pain was worsening in the lower back and anterior right knee. The
Board finds that Dr. Chertok’s diagnoses of muscle spasm and muscle pain are description
symptoms rather than a clear diagnosis of a medical condition.10 The Board further finds that
Dr. Chertok’s indication of worsening lower back pain and anterior right knee pain is also not
firm diagnoses. Therefore, the reports from Dr. Chertok are insufficient to establish a medical
diagnosis in connection with the injury.
Appellant further submitted physical therapy notes dated January 8 through March 14,
2014 from a physical therapist who diagnosed lower back pain “consistent with lumbar
sprain/strain.” These documents are of no probative value as a physical therapist is not a
physician under FECA.11
On appeal, appellant contends that her attending physicians diagnosed lumbago,
cervicalgia, and knee injury in connection with her claim and requests payment of her medical
bills and restoration of 56 hours of sick leave. The Board finds that the evidence of record fails
to establish any of these medical diagnoses and their relationship to the employment incident.
As appellant has not submitted any evidence to support her allegation that she sustained any
8

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

9

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
10

See id.

11

Barbara J. Williams, 40 ECAB 649 (1989).

4

injury related to the December 5, 2013 employment incident, she has failed to meet her burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty on December 5, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spokane, WA, Employer
__________________________________________

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

Docket No. 10-2319
Issued: September 16, 2011

Case Submitted on the Record

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

JURISDICTION
On September 14, 2010 appellant filed a timely appeal from a May 14, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the finding
that she refused suitable work. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
May 14, 2005, on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
This case has previously been before the Board. In a July 31, 1987 decision, the Board
set aside an April 4, 1986 OWCP decision and remanded the case for further medical
development. The Board found that there was a conflict in medical opinion between appellant’s
1

5 U.S.C. §§ 8101-8193.

treating physician and OWCP’s referral physician as to whether the diagnosed right thoracic
outlet syndrome was work related.2 The facts and circumstances of the case as set forth in the
Board’s prior decision are incorporated herein by reference.
On November 13, 2002 OWCP referred appellant to Dr. Scott V. Linder, a Boardcertified orthopedic surgeon, for a second opinion examination. In a December 6, 2002 report,
Dr. Linder, noted minimal objective findings and diagnosed bilateral thoracic outlet syndrome
historically related to work activities with residuals despite surgery. He advised that appellant
could not return to her date-of-injury job as she had not worked in 10 years and, when she was
employed, she worked two hours daily in light duty that she found intolerable. Dr. Linder
provided restrictions based on her tolerance and noted she could work part-time light duty. In a
February 20, 2003 supplemental report, he diagnosed chronic pain syndrome and stated that
appellant’s symptoms were not supported by objective findings. The only objective finding was
restricted range of motion that was due to appellant’s limited effort. Dr. Linder reviewed a
February 18, 2003 functional capacity evaluation that also showed inconsistent effort by
appellant. He made no objective findings to support total disability. In a February 26, 2003
work capacity evaluation, Dr. Linder noted appellant could work eight hours daily with no
reaching above the shoulder.
On May 2, 2003 the employing establishment offered appellant a full-time position as a
general clerk, computer forwarding system, subject to the restrictions set forth by Dr. Linder.
The duties included computer input, data entry, data extraction, affixing labels to mail manually
and with mechanical devices, preparing forms for address correction, manually distributing
processed markups and operating a photo copy machine. The requirements of the position
included avoiding overhead work. Appellant did not respond to the job offer.
In a January 23, 2004 letter, OWCP advised appellant that the job offer constituted
suitable work. Appellant was informed that she had 30 days to accept the job or provide reasons
for refusing it; otherwise, she risked termination of her compensation benefits.
In a February 18, 2004 letter, appellant asserted that the offered position was not suitable
and that there was a conflict between Dr. Linder and her physician, Dr. Royce Van Gerpen,
Board-certified in occupational medicine, regarding whether she had the capacity to return to
work. In a February 11, 2004 report, Dr. Van Gerpen reviewed Dr. Linder’s opinion and
disagreed with his conclusion. He diagnosed bilateral thoracic outlet syndrome with permanent
aggravation of the left cervical rib with ongoing residuals, status post cervical disc surgery, status
post bilateral mastectomies and chronic pain, osteoarthritis and fibromyalgia. Dr. Van Gerpen
opined on February 26, 2002 that appellant was unable to work effective July 2000 and his
opinion had not changed. He reviewed the general clerk job offer and found that appellant was
not capable of performing the physical requirements of the job. Dr. Van Gerpen disagreed with
Dr. Linder in that he found residuals of thoracic outlet syndrome involving the bilateral upper
extremities and believed appellant was incapacitated.

2

Docket No. 86-1617 (issued July 31, 1987). Appellant’s claim was accepted for permanent aggravation of left
cervical rib and bilateral thoracic outlet syndrome. OWCP authorized surgery to remove the left cervical rib on
February 20, 1979 and transauxillary resection of the first ribs bilaterally on November 4, 1981.

2

A conflict of medical opinion was found between Dr. Van Gerpen and Dr. Linder, for
OWCP, regarding appellant’s ability to work. OWCP referred appellant to Dr. David Schenkar,
a Board-certified orthopedic surgeon, to resolve the conflict.
In an April 29, 2004 report, Dr. Schenkar noted appellant’s history and reviewed the
medical evidence. He diagnosed aggravation of left cervical rib and bilateral thoracic outlet
syndrome, with no ongoing objective evidence, cervical osteoarthritis, bilateral brachial
plexopathy, chronic pain disorder and significant emotional component to explain current
complaints, including the appearance of feigning and bad pain behavior. Dr. Schenkar noted that
the only diagnosis causally related to the work injury was brachial plexopathy and advised that
the other diagnoses were not supported by clinical findings. He noted that nonindustrial
preexisting conditions of generalized osteoarthritis and cervical disc disease. Dr. Schenkar
advised that work related total disability ceased on December 6, 2002 based on the physical
examination and functional capacity evaluation. He opined that appellant’s restrictions included
no work with arms greater that 45 degrees forward flexion or abduction to prevent range of
motion stress on the supra clavicle area, wrist support when typing with forearm, feet on the
ground with knees flexing at 90 degrees with a comfortable chair with back support.
Dr. Schenkar opined that she could perform the offered position.
On May 18, 2004 OWCP requested clarification from Dr. Schenkar regarding whether
the restrictions were due solely to work-related injuries. On May 24, 2004 Dr. Schenkar noted
that appellant underwent surgery for the bilateral thoracic outlet syndrome which caused brachial
plexopathy and was causally related to the work injury. He noted that the cervical disc condition
and surgery and pain syndrome were unrelated to the work injury. In a work capacity evaluation
dated May 24, 2004, Dr. Schenkar found appellant could work eight hours a day with restrictions
on reaching above the shoulder and arm elevation greater than 45 degrees from the side. He
found her to be functionally able to do the sedentary desk job without other restrictions.
On February 22, 2005 OWCP advised appellant that the position of a general clerk in the
computer forward system was suitable work. It noted that it considered the reasons given by her
for refusing the position and found then to be unacceptable. OWCP afforded appellant 15
additional days to accept the job offer.
In statements dated March 2 and 3, 2005, appellant asserted that Dr. Schenkar was on
disciplinary probation at the time of examination and undergoing psychiatric treatment for acts
of moral turpitude. She asserted that OWCP found that she could work based on Dr. Schenkar’s
report but, due to the disciplinary action against him, his report should be excluded. Appellant
submitted a March 10, 2005 report from Dr. Van Gerpen, who recommended that she not accept
the job offer. Dr. Van Gerpen noted that she had not worked an eight-hour day in 10 years and
advised she was unable to lift or carry at the level required for the job.
On March 14, 2005 the employing establishment noted that appellant verbally refused a
job offer and referenced the March 10, 2005 report from her physician.
In a May 18, 2005 decision, OWCP terminated appellant’s monetary compensation,
effective March 16, 2005, on the grounds that she refused an offer of suitable work.

3

Appellant requested an oral hearing which was held on October 26, 2005. She submitted
reports from Dr. Van Gerpen dated June 7 and July 18, 2005. On July 18, 2005 Dr. Van Gerpen
diagnosed reflex sympathetic dystrophy, brachial plexopathy and neurogenic thoracic outlet
syndrome and noted that she remained markedly restricted in her functional capabilities.
In a January 11, 2006 decision, OWCP affirmed the May 18, 2005 decision. On
October 30, 2006 appellant appealed to the Board. In a September 17, 2007 order, the Board
remanded the case to OWCP for reconstruction and proper assemblage of the case record.3
On November 9, 2007 counsel asserted that Dr. Schenkar was disciplined and place on
probation in Hawaii, Idaho and Washington and his opinion in appellant’s case should be
excluded. Appellant also asserted that Dr. Schenkar’s April 29 and May 24, 2004 reports, on
which the termination was based, were a year old and therefore stale evidence. She should have
been referred to another specialist for a current report. In a February 2, 2006 report, Dr. Stephen
Penaskovic, Board-certified in emergency medicine, diagnosed body wall pain, left upper
extremity parachymal arterial insufficiency and history of brachial plexus problems. A
December 15, 2006 cervical spine magnetic resonance imaging (MRI) scan showed bilateral
moderate facet hypertrophy at C2-3, severe facet hypertrophy at C3-4 and mild bilateral facet
hypertrophy at C4-5. Also submitted were reports from Dr. Lisa S. Bliss, a physiatrist, dated
August 16 to November 30, 2006 who performed an electromyogram (EMG) which revealed
mild left and borderline right carpal tunnel syndrome and mild bilateral C5, C6 and C7
radiculopathy.
On January 14, 2008 OWCP denied modification of the May 18, 2005 decision.
On November 9, 2009 appellant requested an oral hearing which was held on
October 8, 2009. She asserted that OWCP improperly terminated her compensation based on
stale medical evidence. Appellant submitted a January 29, 2009 report from Dr. Rebecca
Meieres, an osteopath, who treated appellant for neck pain and headaches and diagnosed chronic
neck pain. A June 2, 2009 report from Dr. John Demakas, a Board-certified neurosurgeon,
diagnosed status post anterior fusion at C5-C7 with recurrent neck and arm pain, spondylosis and
degenerative disc disease at C3-4 and C4-5 and possible vascular compromise of the upper
extremities.
In a decision dated May 14, 2010, OWCP’s hearing representative affirmed the
January 14, 2008 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for her is not entitled to compensation.4 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
3

Docket 07-161 (issued September 17, 2007).

4

5 U.S.C. § 8106(c)(2).

4

refusing to accept or neglecting to perform suitable work.5 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.6 To establish that a claimant has
refused or abandoned suitable work, OWCP must substantiate that the position offered was
consistent with the employee’s physical limitations and that the reasons offered for stopping
work were unjustified.7 The issue of whether an employee has the physical ability to perform a
modified position offered by the employing establishment is primarily a medical question that
must be resolved by the medical evidence of record.8 Additionally, it is well established that
OWCP must consider preexisting and subsequently acquired conditions in the evaluation of
suitability of an offered position.9
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.10 Section
10.516 of the regulations provide that OWCP shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter its finding of suitability. If the employee presents such reasons, and OWCP
determines that the reasons are unacceptable, it will notify the employee of that determination
and that he or she has 15 days in which to accept the offered work without penalty. At that point
in time, OWCP’s notification need not state the reasons for finding that the employee’s reasons
are not acceptable.11
ANALYSIS
OWCP accepted appellant’s condition for permanent aggravation of left cervical rib and
bilateral thoracic outlet syndrome. It terminated her monetary compensation effective May 18,
2005, based on her refusal of suitable work. The Board finds that OWCP did not meet its burden
of proof.
When OWCP made its January 23, 2004 finding that the position of general clerk was
suitable, it based its finding on the December 6, 2002 and February 20, 2003 reports of
Dr. Linder, a referral physician. A January 23, 2004 letter advised appellant that the offered
position was considered suitable and she had 30 days to accept the position or provide reasons
for refusing the position. On February 19, 2004 OWCP determined that a conflict of medical

5

Howard Y. Miyashiro, 51 ECAB 253 (1999).

6

H. Adrian Osborne, 48 ECAB 556 (1997).

7

See Lizzie M. Greer, 49 ECAB 681 (1998).

8

See Marilyn D. Polk, 44 ECAB 673 (1993).

9

Richard P. Cortes, 56 ECAB 200 (2004); Gayle Harris, 52 ECAB 319, 321 (2001).

10

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

11

20 C.F.R. § 10.516.

5

opinion existed between Dr. Van Gerpen and Dr. Linder, regarding appellant’s ability to work,
and it referred her to Dr. Schenkar to resolve the conflict.12
Therefore, prior to the final decision, OWCP undertook additional development of the
medical evidence and eventually concluded that the reports from Dr. Schenkar were sufficient to
establish the offered position as medically suitable.13
It is well established that, when OWCP undertakes further development of the medical
evidence after it has issued a 30-day letter and seeks to terminate compensation under 5 U.S.C.
§ 8106(c)(2) based on new medical evidence, it must again provide a claimant with 30 days to
accept the job offer or provide reasons for refusing.14 OWCP cannot change the basis of its
finding that the offered position was suitable, without providing a claimant notice and a
meaningful opportunity to be heard on that basis.15
When it obtained the impartial specialist’s report, OWCP should have given appellant 30
days to accept the offer or explain her reasons for refusing it.16 By notifying her instead that she
had 15 days to accept without penalty and that no further reasons for refusal would be
considered, it deprived her of the due process protections addressed in Maggie L. Moore.17
When OWCP changes the basis of its finding that the offered position is suitable, the claimant is
entitled to notice and a meaningful opportunity to be heard on that basis.18
The Board therefore finds that OWCP did not afford appellant with the proper notice
pursuant to Board precedent and its procedure before it terminated monetary benefits under 5
12

See 5 U.S.C. § 8123(a).

13

In requesting a supplemental opinion on May 18, 2004, OWCP asked that Dr. Schenkar specify which work
restrictions were “due solely” to appellant’s work-related injuries. The Board notes that, in determining whether a
position is suitable under 5 U.S.C. § 8106(c), it must consider preexisting and subsequently acquired conditions.
See supra note 9. It was error for OWCP not to have the physician consider all of appellant’s medical conditions in
assessing appellant’s ability to perform the offered position.
14

See Adrienne L. Curry, 53 ECAB 750 (2002) (OWCP obtained an additional clarifying report from a referee
physician after a letter finding the offered position was suitable; the Board held appellant was entitled to a new letter
giving her 30 days to accept the position or provide reasons for refusing); Barbara L. Chien, 53 ECAB 579 (2002)
(a conflict still existed at the time of the suitability letter and when OWCP later received a referee’s report, it should
have given appellant an additional 30 days to accept the position or provide reasons for refusal). See also Y.A., 59
ECAB 701 (2008).
15

Id.

16

See James W. Henson, Docket No. 92-50 (issued December 18, 1992) (where a conflict at the time of OWCP’s
suitability finding was resolved after termination of compensation, the Board held that OWCP may not retroactively
cure its original failure to establish that the position was suitable at the time it was offered); see Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(d).
(July 1997) (if it is not possible to determine whether a claimant’s reason for refusal is justified without further
investigation of the issues, the claims examiner should contact the claimant for clarifying information and set
another 30-day deadline).
17

Supra note 10.

18

See Federal (FECA) Procedure Manual, supra note 16.

6

U.S.C. § 8106(c). It is OWCP’s burden of proof to terminate compensation under 5 U.S.C.
§ 8106(c) and it did not meet its burden of proof in this case.
CONCLUSION
The Board finds that OWCP did not comply with the procedural requirements of 5 U.S.C.
§ 8106(c) and therefore it did not properly terminate compensation for wage loss.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 06-1448
Issued: March 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 5, 2006 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated June 29, 2005 and March 24, 2006, which terminated her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On July 18, 2000 appellant, then a 34-year-old letter carrier, filed a traumatic injury claim
for a July 8, 2000 injury to her neck and back when her postal vehicle was rear-ended. The

Office accepted the claim for a cervical strain and paid appropriate compensation.1 Appellant
stopped work on July 19, 2000 and did not return.
Appellant sought treatment from Dr. Donald Dworken, a Board-certified orthopedic
surgeon, who noted in reports dated July 25 to September 28, 2000 that appellant was injured on
July 18, 2000 when she was rear-ended at work. A magnetic resonance imaging (MRI) scan of
the lumbar spine dated October 9, 2000 revealed no abnormalities. An x-ray of the lumbar spine
dated October 9, 2000 revealed no abnormalities. In treatment notes dated November 3, 2000 to
August 27, 2003, Dr. Raymond E. Jankowich, a Board-certified orthopedic surgeon, noted a
history of injury and diagnosed low back strain, herniated disc and disc syndrome. He advised
that appellant was totally disabled. A November 6, 2003 treatment note from Dr. Michael J.
Brennan, a Board-certified orthopedic surgeon, noted appellant’s history, findings on
examination and diagnosed chronic low back pain, heel spurs, depression and obesity.
Dr. Brennan opined that appellant was disabled due to her work injury.
In October 2003, the Office referred appellant for a second opinion to Dr. MacEllis K.
Glass, a Board-certified orthopedic surgeon, to determine whether appellant had residuals of her
work injury. In a report dated October 16, 2003, Dr. Glass noted that he reviewed the history of
injury and provided findings on examination. He diagnosed traumatic aggravation of chronic
cervical syndrome. Dr. Glass indicated that he had serious reservations about the causality of
appellant’s subjective back pain syndrome. He indicated that imaging studies ruled out a
structural spine injury and it was improbable that a soft tissue sprain would cause appellant’s
functional handicap three years after the injury. Dr. Glass advised that appellant was at
maximum medical improvement and opined that her problem was not a musculoskeletal
condition but morbid obesity. He recommended an electromyogram (EMG) and advised that
appellant could return to a light-duty sedentary position with no heavy lifting. In a supplemental
report dated November 25, 2003, Dr. Glass advised that appellant underwent an EMG on
November 21, 2003 which revealed mild to moderate left C7 radiculopathy and posterior sensory
wave changes at the cervical spine level. He advised that the EMG revealed no signs of
peripheral nerve involvement and would not warrant any radical treatment.
In reports dated November 18, 2003 to May 19, 2004, Dr. Brennan diagnosed chronic
low back pain consistent with herniated nucleus pulposus, heel spurs, myofascial pain syndrome
and depression. He advised that appellant was totally disabled. Dr. Brennan also diagnosed
myofascial pain syndrome and tendinitis of the right elbow and advised that appellant was totally
disabled.
On November 23, 2004 the Office noted a conflict of medical opinion. Dr. Brennan,
appellant’s treating physician, indicated that she had residuals of her work-related cervical sprain
and was totally disabled. Dr. Glass, an Office referral physician, determined that appellant did
not have residuals of her accepted conditions and could return to work subject to restrictions.

1

On December 23, 1996 appellant filed a traumatic injury claim for a neck injury occurring on December 13,
1996, file number 01-0343641. The Office accepted this claim for sprain and strain of the neck. On June 18, 1998
appellant filed a traumatic injury claim for a neck injury occurring on June 18, 1998, file number 01-0357553. The
Office accepted appellant’s claim for sprain/strain of the thoracic and sprain/strain of the neck.

2

The Office referred appellant to Dr. Peter T. Naiman, a Board-certified orthopedic
surgeon, selected as the impartial medical specialist. In a report dated December 20, 2004,
Dr. Naiman reviewed the records and provided findings on examination of appellant. He
diagnosed aggravation of chronic cervical syndrome and a prior left C5-6 disc herniation. The
physical examination revealed mild restriction in range of motion for the cervical and
lumbosacral spine, no neurological or motor deficit of the lower extremities and mild sensory
deficit in the left arm in the C6-7 distribution. Dr. Naiman noted that appellant’s history was
significant for a prior injury to the cervical spine in 1996 and which remained symptomatic. He
indicated that the nature of appellant’s symptoms dated to 1996 and that the injury of July 18,
2000 was an aggravation of her chronic cervical syndrome. Dr. Naiman opined that appellant
reached maximum medical improvement and could return to work in a light-duty position. He
submitted a December 20, 2004 work capacity evaluation that restricted appellant to sitting for
four hours, walking for one hour, standing for one to two hours, reaching and reaching above the
shoulder for two to four hours, twisting for two hours, pushing and pulling for two to four hours,
lifting up to five pounds for one hour, no bending or stooping and no kneeling or climbing.
Dr. Naiman advised that appellant could not operate a motor vehicle and was generally limited in
repetitive movements of the wrists and elbows. He advised that appellant could work for four to
six hours per day and that the restrictions would apply for one month.
On February 17, 2005 the employing establishment offered appellant a part-time limitedduty position as a rehabilitation letter carrier effective February 17, 2005 with a tour of duty
from 8:00 a.m. to 12:00 p.m. for the first week, 8:00 a.m. to 1:00 p.m. for the second week, and
8:00 a.m. to 2:00 p.m. from the third week forward with an annual salary of $46,460.00. The
offer noted that appellant would work up to six hours per day in conformance with Dr. Naiman’s
restrictions. The duties included casing letters, delivery of mail to cluster boxes, wall units,
delivery of express mail/parcels, sorting mail, maintaining records, reviewing mail, recording
and updating change of address cards, verifying delivery confirmation and answering telephones.
The physical requirements of the position included sitting for four hours per day, walking for one
hour per day, standing for one to two hours per day, reaching and reaching above the shoulder
two to four hours per day, limited repetitive movement of the wrist and elbow, pushing and
pulling two to four hours per day, lifting one pound to five pounds, no bending/stooping,
kneeling or climbing. The job was subject to Dr. Naiman’s limitations, including: sitting for
four hours, walking for one hour, standing for one to two hours, reaching and reaching above the
shoulder for two to four hours, twisting limited to two hours per day, no bending or stooping,
pushing and pulling limited to two to four hours, lifting limited to one hour and five pounds and
no kneeling or climbing.
In a March 3, 2005 letter, the Office advised appellant that the job offer constituted
suitable work. Appellant was informed that she had 30 days to accept the position or provide
reasons for refusing it; otherwise, she risked termination of her compensation benefits.
In letters dated March 17 and April 14, 2005, appellant, through her attorney, indicated
that she would not accept the job offer until she had seen the referee physician’s report. She
noted that she could not obtain an additional report from her treating physician because he had
broken his leg. Appellant submitted reports from Dr. Brennan dated January 31 to May 4, 2005.
Dr. Brennan diagnosed chronic low back pain, heel spurs, myofascial pain syndrome,

3

degenerative disc disease of the cervical and lumbar spine and carpal tunnel syndrome. He
advised that appellant remained totally disabled.
On June 1, 2005 the Office advised appellant that the position of a rehabilitation letter
carrier was suitable work. The Office noted that it considered the reasons she provided for
refusing the position and found them to be unacceptable. The Office afforded appellant 15
additional days to accept the job offer.
In a June 14, 2005 letter, appellant informed the Office that she would accept the job
offer under protest. She requested that the employing establishment contact her and arrange a
date for her to return to work. In a fax coversheet dated June 15, 2005, appellant advised that she
was accepting the job offer under protest and requested the Office contact her to establish the
terms of her return to work and to obtain a uniform allowance. She further indicated that she
would need to make arrangements for suitable day care for her daughter. Appellant submitted a
report from Dr. Brennan dated June 7, 2005. Dr. Brennan advised that there were no changes in
appellant’s status.
In a June 20, 2005 letter, the employing establishment noted receipt of appellant’s
acceptance of the job offer under protest. It granted appellant until June 25, 2005 to secure child
care services and advised her to report to work on June 27, 2005 at 8:00 a.m. The employer
noted that if appellant could not secure child care services she must inform her supervisor. If she
failed to report as scheduled she would be charged as absent without leave. The employer
further noted that appellant should have ample uniform supplies because she had not worked in
five years and that uniform replenishment was based on seniority and would be renewed
according to that date.
In a June 23, 2005 letter, appellant contended that she could not find suitable child care
by June 25, 2005. She noted that the employing establishment was unreasonable in denying her
request for a uniform allotment as she had been out of work for five years and the uniforms she
had were no longer serviceable.
In a letter to the Office dated June 27, 2005, the employing establishment noted that
appellant was scheduled to return to work on June 27, 2005 but did not report.
In a decision dated June 29, 2005, the Office terminated appellant’s monetary
compensation, effective July 10, 2005, on the grounds that she refused an offer of suitable work.
Appellant submitted a signed rehabilitation job offer dated July 5, 2005 “under protest.”
This was received by the Office on July 7, 2005. She indicated that she contacted the employing
establishment on June 24, 2005 and advised that she was unable to secure child care services
until July 1, 2005. Appellant indicated that the employer scheduled a meeting on July 5, 2005 to
discuss her work restrictions. She intended to present a report from Dr. Brennan which set forth
job restrictions differing from those in the job offer. Appellant stated that she was informed by
her supervisor to report to work on July 2, 2005; however, on July 2, 2005 she received
correspondence from the employer instructing her to attend a meeting on July 5, 2005. She
indicated that she would sign the job offer if she was permitted to include an addendum noting
that she accepted the position on June 14, 2005. Appellant submitted work restrictions from

4

Dr. Brennan which differed from those outlined in the job offer. The employing establishment
refused to sign appellant’s addendum and construed her actions as a rejection of the job offer.
Appellant submitted a letter from a union representative dated June 24, 2005. It noted that she
was the union steward at the Hillside/Newfield zones and would file a grievance if she was
removed from this route. There was also a conflict between appellant’s nonscheduled day off
prior to her work injury and the nonscheduled day off in the job offer.
The employing establishment submitted a statement dated July 1, 2005 which requested
that appellant report to the employing establishment on July 5, 2005 to discuss her transition
back to work. In a letter dated July 6, 2005, the employer noted that a return to work meeting
was held on July 5, 2005 and appellant refused the job offer and had not returned to work.
By letter dated July 6, 2005, appellant requested an oral hearing. The hearing was held
on December 13, 2005. Appellant submitted reports from Dr. Brennan dated July 1 to
November 22, 2005. Dr. Brennan repeated his diagnoses and advised that appellant remained
totally disabled. In a duty status report dated July 5, 2005, he noted that appellant could return to
work for four hours per day with restrictions on lifting for two hours per day up to five pounds,
sitting for four hours per day, standing and walking for one hour per day, no climbing, kneeling,
bending, stooping or twisting and reaching above the shoulder limited to two hours per day. In
reports dated December 21, 2005 to March 16, 2006, Dr. Brennan noted appellant’s intractable
pain, worsening mood and anxiety which he attributed to her work injury. A letter from
appellant’s day care provider dated August 8, 2005 indicated that she was unable to provide day
care until July 1, 2005. Appellant submitted statements dated January 6 and 31, 2006
summarizing her correspondence with her employer since June 27, 2005.
In an August 26, 2005 letter, the employing establishment noted that appellant was
currently absent without leave. It offered her an opportunity to sign the limited-duty job offer
and to return to work by August 30, 2005. In an undated letter received January 18, 2006, the
employing establishment noted that appellant was offered an opportunity to either accept or
reject the job offer and was advised that her attorney could also sign the job offer. Appellant did
not sign the job offer.
In a decision dated March 24, 2006, the hearing representative affirmed the December 30,
2004 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.2 The Office
has authority under this section to terminate compensation for any partially disabled employee
who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work and has the burden
of establishing that a position has been offered within the employee’s work restrictions, setting
2

5 U.S.C. § 8106(c)(2).

5

forth the specific job requirements of the position.3 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.4
The implementing regulation provides that an employee, who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work was reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.5 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of his refusal to accept such employment.6
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.7 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling, the weight of such evidence is determined by its reliability,
its probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8 Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.9
ANALYSIS
The Office accepted that appellant sustained a cervical strain. The Office terminated
appellant’s compensation effective July 10, 2005 based on her refusal of a suitable work job
offer. The Board finds that the Office established that the offered position of February 17, 2005
was suitable.

3

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

4

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

5

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
6

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

7

See Marilyn D. Polk, 44 ECAB 673 (1993).

8

See Connie Johns, 44 ECAB 560 (1993).

9

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

6

The Office found that a conflict in medical opinion arose between appellant’s attending
physician, Dr. Brennan, a Board-certified orthopedic surgeon, and Dr. Glass, a Board-certified
orthopedic surgeon, and Office referral physician, regarding whether appellant’s accepted
conditions had resolved and whether she was totally disabled from work.10 The Office properly
referred appellant to Dr. Naiman to resolve the conflict. Where there exists a conflict of medical
opinion and the case is referred to an impartial specialist for the purpose of resolving the conflict,
the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, is entitled to special weight.11
In a December 20, 2004 report, Dr. Naiman reviewed appellant’s history of injury,
provided findings on examination and related his clinical findings. He found some restriction of
motion in the cervical and lumbosacral spine and mild sensory deficit in the left arm in the C6-7
distribution. Dr. Naiman diagnosed aggravation of chronic cervical syndrome and a prior left
C5-6 disc herniation. He indicated that appellant’s symptoms dated to 1996 and that the injury
of July 18, 2000 was an aggravation of her chronic cervical syndrome. Dr. Naiman opined that
appellant had reached maximum medical improvement and could return to light-duty work. He
submitted a December 20, 2004 work capacity evaluation setting forth her work restrictions.
Dr. Naiman advised that appellant could not engage in operating a motor vehicle and was
generally limited in repetitive movements of the wrists and elbows. He advised that appellant
could work for four to six hours per day and that the restrictions would apply for one month.
The Board finds that, under the circumstances of this case, the opinion of Dr. Naiman is
sufficiently well rationalized and based upon a proper factual background. It is entitled to
special weight and establishes that appellant could work a modified position subject to the
restrictions the physician set forth. Dr. Naiman reviewed the entire case record and statement of
accepted facts and examined appellant. He determined that appellant could work within
specified restrictions for four to six hours daily. Dr. Naiman’s opinion is entitled to special
weight and establishes that appellant had the physical capacity for limited-duty work.
The record reflects that the physical restrictions of the modified position offered to
appellant on February 17, 2005 conform to the restrictions provided by Dr. Naiman. The job
offer advised that appellant would work as a rehabilitation letter carrier with a tour of duty from
8:00 a.m. to 12:00 p.m. for the first week, 8:00 a.m. to 1:00 p.m. for the second week, and from
8:00 a.m. to 2:00 p.m. for the third week forward. The Board finds that the physical
requirements of the offered position are consistent with the work restrictions set forth by
Dr. Naiman and that the offered position is medically suitable to appellant’s work restrictions.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.12 The Office properly followed its
10

5 U.S.C. § 8123(a), in pertinent part, provides: “If there is a 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.”
11

Solomon Polen, 51 ECAB 341 (2000).

12

See Maggie L. Moore, supra note 6.

7

procedural requirements in this case. By letter dated March 3, 2005, the Office advised appellant
that a partially disabled employee who refused suitable work was not entitled to compensation.
It found that the offered position was suitable and allotted her 30 days to either accept or provide
reasons for refusing the position.13 In response, appellant contended that she was unable to
either accept or reject the job offer of February 17, 2005 because she was not provided with a
copy of the referee physician’s report. She submitted reports from Dr. Brennan, who repeated
his diagnoses and advised that appellant continued to be totally disabled. This evidence is
insufficient to show that the offered position was not medically suitable. Dr. Brennan’s
treatment notes merely reflected appellant’s symptoms but did not address the suitability of the
offered position. His opinion did not adequately explain how appellant’s medical conditions
prevented her return to work in the modified position. Dr. Brennan repeated his opinion that she
was totally disabled, an opinion which gave rise to the conflict in medical opinion. His reports
Dr. Brennan are not sufficient to establish that appellant could not perform the offered position.14
The weight of the medical evidence establishes that, at the time the job offer was made, appellant
was capable of performing the modified position.
On June 1, 2005 the Office advised appellant that her reasons given for not accepting the
job offer were unacceptable. The Office advised that she had 15 days to accept the offer and if
she did not, a final decision under 5 U.S.C. § 8106(c)(2) would be made. In a June 14, 2005
letter, appellant informed the Office that she was willing to accept the job offer “under protest.”
She subsequently advised that she would accept the job offer; however, the record reveals that
the employing establishment allowed her an opportunity to secure child care and report for duty
by June 27, 2005. Appellant did not report to work on that date. She submitted a June 7, 2005
report of Dr. Brennan who noted findings similar to those in his prior reports but he did not
specifically address the duties of the offered position. The report of Dr. Brennan is not sufficient
to establish that appellant could not perform the offered position. Therefore, appellant did not
submit any medical evidence to show that the offered position was not medically suitable.15
Thus, under section 8106(c) of the Act, her compensation was properly terminated. The Office
met its burden of proof to terminate appellant’s compensation based on her refusal of suitable
work. The burden then shifted to appellant to show that her refusal to work in that position was
justified.16
Following the Office’s June 29, 2005 decision, appellant submitted a signed
rehabilitation job offer dated July 5, 2005 “under protest.” She indicated that she called the
employing establishment on June 24, 2005 informing it that she was unable to secure child care
services until July 1, 2005 and would sign the job offer if she was permitted to include an
addendum incorporating the restrictions of Dr. Brennan. The addendum was refused by the
employing establishment and the record reflects that appellant again refused the job offer.

13

See Bruce Sanborn, 49 ECAB 176 (1997).

14

See Gayle Harris, 52 ECAB 319 (2001).

15

See Les Rich, 54 ECAB 290 (2003).

16

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

8

After wage-loss benefits were terminated appellant submitted additional reports from
Dr. Brennan who again diagnosed low back pain, heel spurs, myofascial pain syndrome, status
post work-related injury while driving, rule out carpal tunnel syndrome and stated that she
remained totally disabled. However, these reports are insufficient to establish that the position
offered appellant was unsuitable as the physician did not provide a reasoned opinion explaining
how or why appellant’s diagnosed conditions prevented her from performing the job duties of the
selected position at the time her compensation was terminated.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
disability compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2006 and June 29, 2005 are affirmed.
Issued: March 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9