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

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0579
Issued: October 22, 2019

Case Submitted on the Record

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

JURISDICTION
On January 20, 2019 appellant, through her representative, filed a timely appeal from a
July 30, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the July 30, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 2, 2017, due to her
refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On February 6, 2016 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, a restraint bar came off its tract, struck her in the
stomach, pushed her into the corner of an all-purpose postal container, and caused her to fall to the
floor while in the performance of duty. She stopped work on February 6, 2016 and has not
returned. OWCP accepted the claim for contusion of abdominal wall, cervical disc herniation,
thoracic disc herniation, and lumbar disc herniation. It paid appellant wage-loss compensation on
the supplemental rolls as of March 23, 2016 and on the periodic rolls as of December 11, 2016.
In a December 6, 2016 report, Dr. Nunzio Saulle, Board-certified in physical medicine and
rehabilitation, opined that appellant was totally disabled from work secondary to her accepted
conditions. A January 9, 2017 electromyogram/nerve conduction velocity (EMG/NCV) study
revealed evidence of right L5 radiculopathy.
On February 6, 2017 OWCP referred appellant to Dr. Timothy Henderson, a Boardcertified orthopedic surgeon, for a second opinion examination to assess her status relative to her
injury-related condition. In a February 21, 2017 report, Dr. Henderson related appellant’s physical
examination findings, and found objective findings of lumbar radiculopathy. He noted that her
abdominal contusion had resolved, but she had not reached maximum medical improvement
(MMI) relative to her cervical and lumbar spine conditions. Dr. Henderson opined that appellant
was totally disabled from her regular duties, however, she was capable of performing full time,
sedentary duty with a 10-pound lifting restriction. He completed a February 21, 2017
work-capacity evaluation (Form OWCP-5c) and provided work restrictions including walking no
more than two hours, standing no more than two hours, and pushing/pulling/lifting no more than
10 pounds for eight hours a day. Dr. Henderson also requested EMG testing of the bilateral upper
and lower extremities in response to the question of what treatment he would recommend for the
improvement and amelioration of the accepted work-related conditions.
In a March 6, 2017 report, Dr. Andrew Cordiale, an osteopath specializing in orthopedic
surgery, noted that appellant had an abnormal neurological examination of the cervical and lumbar
spine. He diagnosed herniated cervical and lumbar discs, with left lumbar radiculopathy.
Dr. Coriale indicated that appellant was to refrain from any activity that exacerbated symptoms,
such as heavy lifting, carrying, or bending. Subsequently, he repeated his work restrictions in a
May 1, 2017 report.
Dr. Albert Villafuerte, Board-certified in physical medicine and rehabilitation, opined in
reports dated May 3, July 11, and August 22, 2017, that appellant was totally disabled from work
due to her work-related cervical and lumbar conditions.
In a September 1, 2017 letter, the employing establishment requested that OWCP rule on
the suitability of an August 25, 2017 job offer for the position of a modified mail handler. It
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attached the job offer and indicated that it was based on the restrictions outlined by Dr. Henderson.
The effective date of the job offer was August 28, 2017. The duties consisted of: platform-bid
job scanning, dispatching, load and unload for two hours; prep flats into A1 (load machine with
mail) for eight hours; and prepare empty equipment by type (trays, tubs, sacks) for two hours. The
physical requirements included: scanning inbound/outbound dispatches while standing/walking
for two hours, prep flats, lifting up to 10 pounds for eight hours and prepare/separate empty
equipment while standing/walking for two hours.
In a letter dated September 11, 2017, OWCP advised appellant that the August 25, 2017
job offer was suitable in accordance with Dr. Henderson’s February 21, 2017 medical restrictions
and that the position remained available. It notified her that she had 30 days to accept the offered
position or to provide her reasons for refusal. OWCP also informed appellant that failure to accept
suitable work would result in the termination of wage-loss compensation benefits and entitlement
to a schedule award pursuant to 5 U.S.C. § 8106(c)(2).
In a September 27, 2017 report, Dr. Demetrios Mikelis, a specialist in internal medicine ,
physical medicine and rehabilitation, noted appellant’s diagnosed cervical and lumbar conditions,
and instructed her to refrain from any activity that exacerbated her symptoms (i.e., heavy lifting,
carrying, bending, etc.) He noted a prior referral for EMG testing.
On October 12, 2017 the employing establishment indicated that appellant had not
accepted the job offer and confirmed that the job offer remained available.
OWCP advised appellant on October 13, 2017 that her reasons for refusing the position
were invalid. It provided her 15 days to accept the position or have her entitlement to wage-loss
compensation and schedule award benefits terminated.
In an October 19, 2017 report, Dr. Villafuerte noted appellant’s continued complaints of
low back and neck pain, as well as complaints of bilateral knee pain. He continued to opine that
she was totally disabled from work and again recommended EMG testing.
In an October 20, 2017 report, Dr. Faith Chang, a specialist in general surgery, diagnosed
neck, back, and right leg sprain/strain. She opined that appellant was totally disabled from work
due to restrictions on lifting, pushing, pulling, carrying, climbing, bending, kneeling, and repetitive
movements.
On October 30, 2017 the employing establishment confirmed that the position remained
open and available to appellant indefinite ly as long as she had restrictions.
On November 2, 2017 OWCP received appellant’s October 8, 2017 refusal of the
August 25, 2017 job offer. Appellant indicated that she had severe back, neck, and leg pain and
asserted that she could not stand or lift for eight hours.
By decision dated November 2, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective that date, as she had refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

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In an October 11, 2017 report, Dr. Margaret I. Griffith, Board-certified in occupational
medicine, provided examination findings, noting that appellant’s orientation and mental status was
depressed, agitated, and anxious. She related appellant’s symptoms opined that appellant was
totally disabled from work.
In an October 20, 2017 report, Dr. Chang provided assessments of neck sprain, mid-back
and low back sprains, bilateral shoulder internal derangement, bilateral hip, and knee pain, bilateral
plantar fasciitis and post-traumatic stress disorder status post employment-related injury. She
opined that appellant was totally disabled from work. Dr. Chang also provided restrictions of no
heavy lifting, pushing, pulling, and repetitive motions and indicated that appellant had a weight
limit of five pounds. She recommended that appellant see a psychologist.
On November 14, 2017 appellant requested a telephonic hearing before an OWCP hearing
representative.
In reports dated November 5, 2017 and January 19, 2018, Dr. Jonathan Levinson, a
licensed clinical psychologist, noted the history of appellant’s February 6, 2016 employment
injury and her continuing symptoms. He diagnosed adjustment disorder with anxiety and major
depressive disorder, causally related to the employment injury. Dr. Levinson concluded that
appellant was totally disabled from work.
In January 9 and 23, February 21, and April 4, 2018 reports, Dr. Joel H. King, a Boardcertified psychiatrist, opined that appellant was totally disabled from work on the basis of
psychiatric illness, causally and temporally related to the employment injury.
In a March 1, 2018 report, Dr. Silvia Geraci, an osteopath Board-certified in pain medicine,
physical medicine, and rehabilitation, diagnosed cervical sprain, herniated cervical intervertebral
disc, cervical radiculopathy, thoracic herniated nucleus pulposus, lumbar spine stain, herniated
lumbar intervertebral disc, left lumbar radiculopathy, lumbosacral facet joint syndrome, and
lumbar stenosis. Appellant was advised to refrain from any activity which exacerbated her
symptoms, such as heavy lifting, carrying, or bending.
On May 5, 2018 OWCP received a copy of a January 22, 2018 EMG/NCV study of the
upper extremities and a January 26, 2018 report from Dr. Villafuerte. The January 22, 2018
EMG/NCV study revealed evidence of bilateral median sensory demyelinating entrapment
neuropathy with probable compression at or about the level of the transcarpal ligaments as in carpal
tunnel syndrome. EMG/NCV study of the cervical spine failed to reveal evidence of
radiculopathy.
In a February 12, 2018 report, Dr. Kevin Pak, Board-certified in physical medicine and
rehabilitation, diagnosed lumbar radiculopathy, myofascial pain, cervical radiculopathy, and
thoracic back pain. He opined that appellant should avoid strenuous activities.
A telephonic hearing was held before an OWCP hearing representative on May 15, 2018.
Appellant testified that she did not return to work due to the pain in her back and shoulders. She
also indicated that she would be unable to function at work due to anxiety and her inability to stay
awake. Appellant indicated that she continued to be treated for both her physical and emotional

4

conditions. Her representative argued that OWCP failed to consider all of her medical conditions
before terminating her compensation benefits.
Following the hearing, OWCP received additional evidence.
In a June 18, 2018 report, Dr. Levinson provided a timeline relative to the development of
appellant’s psychological condition and the impact it had on her ability to accept or reject a job
offer. He opined that she was not able to accept the job offer and therefore she should not be held
accountable for not accepting it. Dr. Levinson continued to opine that she remained totally
disabled from work due to her emotional conditions.
In a June 5, 2018 report, Dr. Griffith provided an assessment of low back pain, knee pain,
neck pain, and lumbar radiculopathy. She opined that appellant was capable of sedentary work
(seated only) for four hours a day with lifting restrictions of five pounds.
By decision dated July 30, 2018, an OWCP hearing representative affirmed OWCP’s
November 2, 2017 decision. She found that the August 25, 2017 job offer was suitable based on
restrictions provided by Dr. Henderson and that appellant was provided appropriate notice. The
hearing representative found that appellant failed to provide well-rationalized medical
documentation from her attending physicians to support why she was unable to perform the duties
of the position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits. 4 Section 8106(c)(2) of FECA provides that a partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by,
or secured for the employee is not entitled to compensation. 5 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant of
the consequences of refusal to accept such employment. 6 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment. 7
Section 10.517(a) of the implementing regulations provide that an employee who refuses
or neglects to work after suitable work has been offered or secured for the employee has the burden
of proof to show that such refusal or failure to work was reasonable or justified.8 Pursuant to

4

L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

5 U.S.C. § 8106(c)(2).

6

See E.G., Docket No. 18-0710 (issued February 12, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

7

L.L., supra note 4; Gloria G. Godfrey, 52 ECAB 486 (2001).

8

20 C.F.R. § 10.517(a).

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section 10.516, the employee shall be provided with the opportunity to make such a showing before
a determination is made with respect to termination of entitlement to compensation.9
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 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.11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective November 2, 2017, due
to her refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP relied upon the February 21, 2017 findings of Dr. Henderson, the second opinion
physician, to determine that the modified mail handler position offered on August 25, 2017
constituted suitable work.
In his February 21, 2017 report, Dr. Henderson indicated that appellant’s abdominal
contusion had resolved, but that she had not reached MMI for the cervical and lumbar spine
conditions. While he opined that she was capable of working sedentary duties with pushing,
pulling, and lifting restrictions of 10 pounds, and standing and walking two hours a day, he also
requested EMG testing of the bilateral upper and lower extremities in response to the question of
what treatment he would recommend for the improvement and amelioration of the accepted workrelated conditions.
The Board therefore finds that OWCP terminated appellant’s wage-loss compensation and
schedule award benefits, effective November 2, 2017, without clarification regarding
Dr. Henderson’s request for diagnostic testing of the bilateral upper and lower extremities. Due
to this lack of clarity OWCP failed to meet its burden of proof to terminate her compensation
benefits.12

9

Id. at § 10.516.

10

See M.H., Docket No. 18-1727 (issued May 6, 2019); Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42
ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).
11

C.M., Docket No. 14-0981 (issued April 17, 2015); Gayle Harris, 52 ECAB 319 (2001).

12

E.G., supra note 6; R.W., Docket No. 16-1053 (issued December 6, 2016); see J.R., Docket No. 13-0720 (issued
October 21, 2013); Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 92223 (1989).

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CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective November 2, 2017, due
to her refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: October 22, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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San Diego, CA, Employer
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__________________________________________ )
J.H., Appellant

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

Docket No. 11-1386
Issued: February 16, 2012

Case Submitted on the Record

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

JURISDICTION
On May 25, 2011 appellant filed an appeal of the May 2, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) affirming the reduction of his
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages as an information clerk effective October 24, 2010.
FACTUAL HISTORY
Appellant has three claims involving work-related injuries to the upper extremities. On
March 7, 2001 he, then a 54-year-old letter carrier, filed an occupational disease claim that
OWCP accepted for right carpal tunnel syndrome. OWCP authorized a right carpal tunnel
1

5 U.S.C. §§ 8101-8193.

release that was performed on June 10, 2002 under claim number xxxxxx122. Appellant
returned to full-time light duty in September 2002. On January 9, 2002 he had filed an
occupational disease claim alleging that repetitive casing, holding and carrying mail caused
several upper extremity conditions. OWCP accepted left lateral epicondylitis, bilateral carpal
tunnel syndrome, bilateral ulnar nerve lesion and left-sided cervical radiculopathy under claim
number xxxxxx062. Appellant underwent bilateral carpal tunnel release and returned to work
with restrictions in August 2002. He was later assigned new duties as a lobby director. On
January 13, 2006 appellant claimed that his bilateral ulnar nerve condition was related to
repetitive gripping and hand manipulation in his modified lobby director duties. OWCP
accepted permanent aggravation of bilateral lesions of ulnar nerve and permanent aggravation of
bilateral medial epicondylitis under claim number xxxxxx110. Appellant underwent left-sided
subcutaneous ulnar nerve transposition in November 2006 and was released to light-duty parttime work as lobby director in April 2007.
On October 17, 2007 Dr. Andrew P. Hartman, a Board-certified hand surgeon and a
treating physician, opined that appellant had reached maximum medical improvement and that
he could perform the position of lobby monitor for eight hours a day. OWCP subsequently paid
some of appellant’s claims for intermittent wage loss beginning on December 24, 2007 as there
was no work available within his physical limitations. It also accepted a May 5, 2009 recurrence
claim noting that the employer withdrew its offer of modified employment and paid
compensation for wage loss, placing appellant on the periodic rolls.
OWCP referred appellant for a second opinion with Dr. Thomas J. Sabourin, a Boardcertified orthopedic surgeon.2 In a June 11, 2009 report, Dr. Sabourin reviewed the medical
record, a statement of accepted facts and summarized his examination findings. He diagnosed
mild bilateral cubital tunnel syndrome, status post right cubital tunnel surgery with ulnar nerve
transposition and bilateral carpal tunnel syndrome status post release with minimal residuals.
Dr. Sabourin noted that, while electromyogram (EMG) findings supported evidence of mild
median and ulnar nerve changes, appellant’s pain symptoms were severely disproportionate from
the determinable condition. He indicated that appellant had other problems such as a cervical
spine condition, which the magnetic resonance imaging (MRI) scan did not demonstrate was a
severe problem and treatment was of little benefit. Dr. Sabourin opined that appellant had a pain
syndrome which was severely disproportionate to his medical problems from an orthopedic
standpoint. He opined that the EMG findings over the years were the most representational of
appellant’s condition and supported only mild changes. Dr. Sabourin concluded that appellant
had residuals that required medical limitations. He further opined that appellant’s work
restrictions were permanent and completed a work capacity form indicating that appellant could
work with limitations on reaching above the shoulder for more than one hour, no repetitive
movement of the wrist or elbow and only one hour of pushing/pulling/lifting up to 20 pounds.
In a June 29, 2009 report, Dr. Hartman reviewed Dr. Sabourin’s June 11, 2009 report and
agreed with his assessment of appellant. He stated that appellant was not a candidate for
vocational rehabilitation. Dr. Hartman noted that appellant had poor results with both
nonsurgical and surgical interventions and that his symptoms were “somewhat magnified” and
2

Dr. Sabourin had also previously evaluated appellant for OWCP.

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inconsistent with the physical examination findings. He opined that appellant should not
perform work which required overhead use, pushing or pulling greater than 20 pounds and no
repetitive use of the upper extremities. Dr. Hartman indicated that appellant could stand, sit and
walk without restrictions.
On July 23, 2009 OWCP referred appellant for vocational rehabilitation and a vocational
rehabilitation counselor met with appellant on July 29, 2009. The counselor sent Dr. Hartman
copies of position descriptions for various positions being targeted for reemployment. An
August 20, 2009 report of an August 19, 2009 functional capacity evaluation (FCE) indicated
that appellant was capable of performing within the light physical demand category, lifting up to
15 pounds from floor to waist level. It noted that he perceived himself as totally disabled but his
performance was not consistent with total disability and was self-limiting due to complaints of
pain.
In an October 23, 2009 report, Dr. Hartman noted appellant’s status and also advised that
he had reviewed six different jobs descriptions with regard to appellant’s ability to return to
modified work. He opined that appellant was capable of performing the duties of an information
clerk, parking lot attendant and a customer service representative but not that of a security guard,
gate guard or cashier. Dr. Hartman stated that it was possible for appellant to use his hands and
opined that he could intermittently use a keyboard for no more than 10 minutes an hour. In a
November 16, 2009 report, he completed a form indicating that he had reviewed the FCE and
opined that appellant was medically capable of performing intermittent keyboarding for an
8-hour shift, 10 minutes at a time, up to 30 minutes an hour.
On November 24, 2009 the vocational rehabilitation counselor identified two positions
within appellant’s medical and work limitations, customer service representative and information
clerk. The counselor noted that these positions were performed in sufficient numbers to be
reasonably available in appellant’s commuting area. As the identified jobs required computer
knowledge, the counselor recommended training to improve appellant’s qualifications and to
enhance his competitiveness in the San Diego labor market. OWCP approved a 16-week
computer skills training program from December 14, 2009 to April 9, 2010. The rehabilitation
counselor developed individual placement plans for the positions of customer service
representative and information clerk, in the Department of Labor, Dictionary of Occupational
Titles (DOT) No. 237.367.022. The rehabilitation specialist reviewed the plan and by letter
dated November 25, 2009, OWCP advised appellant that he would have 90 days of placement
services following the approved program to assist him in finding employment and that his
compensation would be reduced based upon his capacity to earn a salary.
In a December 25, 2009 report, the rehabilitation counselor noted that appellant began
computer skills training on December 15, 2009. She noted that he started training one day late
due to a conflicting appointment, but he made up the lost time and completed all training hours
during the first week of school. The counselor also noted that Dr. Hartman’s office reported that
appellant could perform handwriting up to 20 minutes per hour. As this information was
received subsequent to the completion of the labor market surveys, she recontacted a number of
employers and confirmed that the vocational goals primarily involved verbal communication,
telephonic or in person and intermittent computer use. Handwriting was generally reported to be
minimal and within the restrictions noted.

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The rehabilitation counselor’s January 26, 2010 report noted that, during a January 13,
2010 meeting at the training facility with appellant and his instructor, appellant stated that he
typed with two fingers and that it was too painful to use more than two fingers to keyboard. The
instructor reported that appellant was progressing slowly but appeared to be learning the
material. Appellant also had perfect attendance.
In a January 29, 2010 telephone call to OWCP, Dr. Hartman indicated that, based on
appellant’s complaints of pain, he was limited to keyboarding 10 minutes per hour. In a
February 3, 2010 letter, OWCP requested that Dr. Hartman clarify appellant’s limitations. It
noted that appellant may type at will and at his own pace. In a February 27, 2010 report, the
rehabilitation counselor noted that on January 29, 2010 Dr. Hartman indicated that he was
changing work restrictions to 10 minutes per hour keyboarding and no forceful use of bilateral
hands. The counselor noted that on February 1, 2010 appellant continued with training, took
breaks as needed and appeared to be staying within his medical restrictions of 30 minutes per
hour. Appellant typed with two fingers, was progressing slowly, but had perfect attendance.
In a February 26, 2010 report, Dr. Hartman indicated that he reviewed the August 20,
2009 FCE. He noted that appellant felt the amount of typing required in his training program
was beyond his capacity. Dr. Hartman stated that appellant’s physical examination findings
were identical to all previous examinations. He advised that his decision to alter appellant’s
restrictions to 10 minutes of typing per hour was based more on appellant’s complaints than on
physical examination findings. Dr. Hartman stated that physical examination findings were
difficult to objectively define work capacity. He noted that the August 20, 2009 FCE found that
appellant could type for two minutes with his right hand and three minutes with his left hand and
then stopped because of pain. Dr. Hartman concluded that a more reasonable restriction would
be allowing 5 minutes of typing with a 5- to 10-minute break, allowing 20 minutes of typing
each hour.
In a March 24, 2010 vocational report, the vocational counselor noted that on March 2,
2010 the instructor at the vocational training stated that appellant had finished Microsoft Works
and was working on PowerPoint and Excel. Appellant was taking breaks and self-monitoring his
keyboarding to be within work restrictions. The report indicated that he made negative
comments about vocational rehabilitation and his ability to work and that the counselor had
explained that it was appellant’s responsibility to fully participate in vocational rehabilitation and
the placement process.
On March 24, 2010 appellant was assigned a new vocational rehabilitation counselor.
The counselor’s reports documented difficulty meeting with appellant, missed appointments and
lack of follow through on meetings for placement services. An April 23, 2010 OWCP
rehabilitation status report indicated that, as appellant successfully completed his training on
April 6, 2010, there was no need to develop a new plan and that placement services would begin
April 12, 2010.
In an April 30, 2010 report, the rehabilitation counselor noted that appellant confirmed
during an April 12, 2010 meeting that he had completed the training program on April 9, 2010.
The training program was noted to be a five-month computerized office program. The counselor
indicated that appellant was informed of the 90 days of placement, new employer services

4

effective April 12, 2010, but showed no desire or motivation to participate in placement or meet
with him. The counselor identified several job openings within appellant’s restrictions and
mailed them to him. The May 31, 2010 rehabilitation report noted that appellant had not met
with the counselor, but had faxed information about his education, prior job duties and
experience. The counselor stated that he prepared a resume for appellant and continued to
provide job opportunities for various openings in the local area in the targeted positions. All the
job openings were within appellant’s physical restrictions to include the restriction of using a
keyboard no more than 20 minutes per hour. The counselor noted that appellant had not
contacted him about the results of the job search.
In a July 23, 2010 report, the counselor noted that appellant met with him once during the
90-day job placement period and did not contact him again for over three months regarding
additional placement. On July 21, 2010 appellant informed him that he did not contact any
employers and had not obtained a job. The counselor noted that he had confirmed with appellant
on April 13, 2010 that he completed the training program on April 9, 2010. He indicated that he
contacted the training program on July 21, 2010 and received a copy of appellant’s Certificate of
Completion in Computer Applications Training for Office Work along with the courses appellant
completed. This included basic computing, keyboarding, word processing, Power Point, Excel,
the Internet and Customer Service. The counselor stated that appellant’s prior job experience
with the postal service, Army Navy Academy and U.S. Marine Corps provided experience that
would allow him to obtain employment. He indicated that the labor market surveys confirmed
that the jobs of customer complaint clerk and information clerk were performed in sufficient
numbers to be considered reasonably available and that there were a sufficient number of job
openings within a reasonable commuting distance from appellant’s home. Information about the
weekly salary of each position was also provided.
In September 14, 2010 letter, OWCP proposed to reduce appellant’s compensation
benefits based on his capacity to earn wages as an informational clerk, DOT No. 237.367.022, at
the rate of $520.00 per week or $13.00 per hour. It allowed him 30 days to respond.
On September 28, 2010 appellant disagreed with OWCP’s proposed action. He indicated
that Dr. Sabourin thought he was not a good candidate for rehabilitation and discussed
Dr. Hartman’s restrictions of no lifting over two pounds and no keyboarding more than 10
minutes per hour. Appellant stated that, during the training, he only typed 10 minutes each hour
for a total of 40 minutes per day and had only completed the first two sessions of the six total
sessions available. He argued that the rehabilitation service was inefficient and did not keep
appointments, send him letters and call him. Copies of evidence already of record were
resubmitted.
By decision dated October 21, 2010, OWCP reduced appellant’s compensation effective
October 24, 2010 based on the finding that he was capable of performing the selected position of
information clerk.
On October 28, 2010 appellant, through his attorney, requested an oral hearing. In a
November 5, 2010 report, Dr. Hartman indicated that appellant’s condition had not changed
since his permanent and stationary report of October 17, 2007.

5

Appellant’s attorney submitted a brief arguing that appellant was not a fit candidate for
vocational rehabilitation and was not medically capable of performing the selected position.
Appellant provided May 3, 2010 and February 5, 2011 statements, which discussed his
vocational training. He stated that he only completed two classes, Excel and Word, out of the six
classes. Appellant indicated that he typed using only one finger and that he was unable to type
more than 10 minutes an hour. Copies of the vocational rehabilitation as well as other
documents related to the vocational rehabilitation were also submitted. Several reports were
received from Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, in which he opined that
appellant’s cervical conditions were work related and provided an impairment rating. A copy of
the November 28, 2010 cervical MRI scan was also submitted.
A video hearing was held on February 25, 2011. Appellant’s attorney argued that
appellant was not a feasible rehabilitation candidate and appellant testified about the vocational
training he underwent, noting that he only completed two courses and the ineffectiveness of his
second vocational rehabilitation counselor. Appellant also testified about his limited use of his
hands and arms on a daily basis, noting that he did not use a computer and only intermittently
drove his car because of difficulty with his upper extremities. Following the hearing, a March 8,
2011 EMG was submitted which indicated no evidence of cervical radiculopathy although
sensory radiculopathy could not be ruled out. Also found was mild median abnormalities
suggestive of residual abnormalities after carpal tunnel release as well as evidence of
asymptomatic ulnar neuropathy at the elbow. Also submitted were minor changes to the
transcript and numerous correspondence from appellant to his attorney and from appellant’s
attorney to the rehabilitation counselor and OWCP. This included a March 6, 2011 statement
from appellant.
In a March 30, 2011 letter, the employer noted that an investigation showed that appellant
was observed riding his motorcycle on several occasions on less than straight roadways in the
last 20 days. Appellant was using his hands to manipulate the throttle and hand breaks on his
motorcycle. The employing establishment stated that, while he testified that he seldom drove
because of the pain in his hand, he was observed driving both with his wife in the vehicle and
alone on three occasions in the last 20 days. A copy of the investigation report covering the
period March 16 to April 6, 2011 was submitted as well as a compact disc.
On March 31, 2011 the employer provided Dr. Hartman a copy of the investigative report
as well as a digital video disc (DVD) of surveillance footage of appellant’s activities and
requested a medical opinion on his ability to work as an information clerk. On April 6, 2011
Dr. Hartman indicated that driving a motorcycle for 70 miles represented prolonged repetitive
use of appellant’s hands and was outside of his restrictions. He stated that use activities were
detrimental to his recovery and noted that appellant had not specifically reported that he could
not perform such activities. Dr. Hartman stated that, based on his knowledge of appellant’s
injury, objective medical findings and his review of appellant’s activities as depicted on the
DVD, appellant could perform the activities and duties of an information clerk.
On April 8, 2011 OWCP received responses from both appellant and his attorney
discussing the employing establishment’s information. In an April 7, 2011 letter, appellant’s
attorney indicated that appellant had no restrictions on operating either a car or motorcycle and
that he mostly rode his motorcycle for pleasure and only on “good days.” Appellant stated that

6

he had testified that he seldom drove a vehicle and indicated that he only drove on days his
condition was not severely limiting. He stated that riding his motorcycle was easier for him and
he only rode for pleasure. Appellant indicated that he stopped periodically to rest his hands and
opined that it was good exercise for his upper extremities and neck and that the rides were easy
because of the location he chose.
In a May 3, 2011 decision, the hearing representative found that the selected position
properly represented appellant’s wage-earning capacity and affirmed the prior decision.
LEGAL PRECEDENT
Section 8115 of FECA3 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
the employee has no actual earnings, his wage-earning capacity is determined with due regard to
the nature of his injury, the degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors or
circumstances which may affect his wage-earning capacity in his disabled condition.4
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the DOT or otherwise available in the open
market, that fits that employee’s capabilities with regard to his physical limitations, education,
age and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick5 will result in the percentage of the employee’s loss of wage-earning capacity.6
ANALYSIS
OWCP accepted appellant’s claim for permanent aggravation of bilateral ulnar nerve
lesion and permanent aggravation of bilateral medial epicondylitis. Appellant’s prior claims
included accepted conditions of bilateral carpal tunnel syndrome, left lateral epicondylitis,
bilateral ulnar nerve lesion and left-sided cervical radiculopathy. In June 2009, both appellant’s
treating physician, Dr. Hartman and OWCP’s second opinion physician, Dr. Sabourin, opined
that appellant could work with restrictions. In July 2009, OWCP referred appellant for
vocational rehabilitation and the vocational rehabilitation counselor identified two jobs that
appellant could perform and that were reasonably available. One of these positions was
information clerk. The Board finds that the selected position of information clerk was medically
and vocationally suitable.
3

5 U.S.C. § 8115.

4

N.J., 59 ECAB 171 (2007).

5

5 ECAB 376 (1953).

6

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

7

On October 23, 2009 Dr. Hartman reviewed the requirements of this position along with
a recent FCE and stated that appellant was capable of performing intermittent keyboarding for an
8-hour shift, 10 minutes at a time, up to 30 minutes per hour. On November 24, 2009 the
vocational rehabilitation counselor found that the position of information clerk was vocationally
appropriate based on appellant’s experience and that the position was being performed in
sufficient numbers so as to make it reasonably available in appellant’s commuting area. The
counselor noted that the position of information clerk required computer knowledge and
appellant underwent a 16-week computer skills training program from December 15, 2009 to
April 9, 2010. While appellant continued in the training program, Dr. Hartman indicated on
January 29, 2010 that appellant was limited to keyboarding for 10 minutes per hour. In a
February 26, 2010 report, Dr. Hartman indicated that his decision to change appellant’s
restrictions to keyboarding only 10 minutes per hour was based on appellant’s complaints and
not on objective findings.7 But he subsequently stated on November 16, 2009 that appellant
could use a keyboard 10 minutes at a time on up to 30 minutes an hour and, on February 26,
2010, he stated that appellant could type for 5 minutes, take a break and then type again for a
total of 20 minutes per hour. Accordingly, the medical evidence supports that appellant can type
for 20 minutes each hour with intermittent breaks. The evidence further reflects that his other
restrictions on his upper extremities did not affect his ability to perform the duties of the selected
position of information clerk.8 Thus, there is no medical evidence supporting that the selected
position is not medically suitable.9
Although appellant was not able to find employment as an information clerk, the Board
has frequently held that the fact that a claimant is not able to secure a job does not establish that
the work is not available or suitable.10 When placement services did not yield employment for
him, OWCP, after providing him notice, reduced his compensation effective October 24, 2010
based on his capacity to earn wages as an information clerk.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment, age and employment
qualifications, in determining that the position of information clerk represented his wage-earning
capacity. As noted, the evidence of file supports that the selected position was within the
medical limitations provided by Dr. Hartman. Appellant and his attorney have alleged that
appellant did not complete the training program and, therefore, was not qualified to perform the
position. However, the rehabilitation counselor’s reports support that appellant had completed
the computerized office program. The rehabilitation counselor’s April 30, 2010 report noted that
appellant began his training on December 15, 2009 and completed the program on April 9, 2010,
with perfect attendance. Furthermore, the rehabilitation counselor noted in his July 23, 2010
7

See William A. Archer, 55 ECAB 674 (2004) (a physician’s statements regarding an employee’s ability to work
without objective signs of disability are not a basis for payment of compensation).
8

The Board notes that the listed physical demands for an information clerk do not indicate that any particular
amount of keyboarding is required in the job.
9

Following the reduction of appellant’s compensation, Dr. Hartman, on April 6, 2011, confirmed that appellant
could perform the activities and duties of an information clerk.
10

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

8

report that he had received a copy of appellant’s Certificate of Completion in Computer
Applications Training for Office Work along with the courses appellant had completed. Neither
appellant nor his attorney raised this argument until after appellant was advised that his
compensation would be reduced. Additionally, the vocational rehabilitation specialist, by report
dated August 20, 2010, approved the selected position based on appellant’s past work experience
and this training. As the rehabilitation specialist is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion in determining whether the job is
vocationally suitable and reasonably available.11 The Board finds that appellant’s training and
past work experience constitutes adequate vocational preparation for the constructed position of
information clerk.
The evidence of record establishes that appellant had the requisite physical ability, skill
and experience to perform the position and that such a position was reasonably available within
the general labor market of his commuting area. OWCP, therefore, properly determined that the
position of information clerk reflected appellant’s wage-earning capacity and used the Shadrick
formula to properly reduce his compensation.
On appeal, appellant argues, inter alia, that he was not medically fit to undergo
vocational rehabilitation as both the second opinion physician and his physician indicated that he
was not a candidate for vocational rehabilitation. However, neither physician offered a medical
reason why he was not a vocational rehabilitation candidate. Moreover, as noted above, both
physicians found that appellant was capable of working within limitations. Since the employing
establishment could no longer accommodate those medical limitations, it was appropriate for
OWCP to refer him to vocational rehabilitation.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that appellant was capable of earning
wages in the constructed position of information clerk.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(b) (2) (December 1993).

9

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Sacramento, CA,
Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-325
Issued: April 9, 2007

Case Submitted on the Record

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

JURISDICTION
On November 16, 2006 appellant filed a timely appeal from an August 16, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs that denied appellant’s request for
reconsideration as untimely filed. Because more than one year has elapsed between the most
recent merit decision, dated June 25, 2004, and the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3. The only decision properly before the Board is the Office’s August 16, 2006 decision
denying appellant’s request for reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits on the grounds that it was untimely filed and failed to demonstrate clear evidence of
error.

FACTUAL HISTORY
On May 7, 2004 appellant, then a 32-year-old city letter carrier, filed an occupational
disease claim alleging that he developed cervical and lumbar pain in the performance of duty.
He stated that he aggravated a preexisting condition when he returned to work following an
occupational motor vehicle accident in February 1999, for which a separate claim was filed.1
Appellant stopped work on May 7, 2004.
After the Office requested additional information, appellant submitted May 12 and 14,
2004 duty status reports2 detailing his work restrictions. He also submitted a May 12, 2004
provider report3 diagnosing chronic pain in the cervical and lumbar spines. Additionally,
appellant submitted a May 11, 2004 report from a physician’s assistant.4
The employing establishment challenged appellant’s claim. In a June 16, 2004 statement,
an injury compensation manager questioned the validity of appellant’s previous motor vehicle
accident claim but noted, nonetheless, that appellant had been provided with a limited-duty job
assignment since 2002. Additionally, the employing establishment submitted a May 17, 2004
report from Dr. Randall W. Armstrong, a Board-certified family medicine specialist, who had
previously treated appellant. Dr. Armstrong stated that he had informed appellant that he “could
not recommend a surgical referral unless [appellant] got a better handle on his anger, social,
return-to-work issues and entitlement issues. He has not done that.” Dr. Armstrong reported that
appellant had since sought medical care elsewhere.
Appellant then submitted a July 11, 2002 report from his treating physician, Dr. John J.
Champlin, a Board-certified family medicine specialist, who diagnosed congenital spinal stenosis
at levels L3 through L5-S1, lumbosacral strain and spondylolisthesis. Dr. Champlin indicated
that appellant had experienced several traumatic injuries, including lower back pain sustained
while fleeing from dogs on two separate occasions and that appellant’s job also caused repetitive
trauma from bending, twisting, lifting and prolonged sitting and standing. He concluded that
“causation” in appellant’s case was “complex” as appellant clearly had “a significant severe
preexisting spinal stenosis.” Dr. Champlin opined that it was “medically probable” that workrelated repetitive bending, twisting and lifting and prior work injuries accelerated the
development of appellant’s back pain.
By decision dated June 25, 2004, the Office denied appellant’s occupational disease
claim on the grounds that the medical evidence was insufficient to establish a causal relationship
between appellant’s diagnosed condition and employment factors. The Office noted that, in a
separate claim, it had denied the same condition in a recurrence of disability claim.5 The Office
1

Appellant reported that he filed File No. 131182590 concerning his motor vehicle accident.

2

The signatures on the reports are illegible.

3

The signature on the report is illegible.

4

The name of the physician’s assistant is illegible.

5

File No. 13-2033393. This claim is not before the Board on the present appeal.

2

noted that it did not rely on evidence from the other claim in reaching its decision in appellant’s
occupational disease claim.
Appellant, through his attorney, requested reconsideration on May 15, 2006. Counsel
argued that the Office erred in not considering medical evidence from a separate claim file,
including an April 16, 2004 report of a computerized tomography (CT) scan conducted by
Dr. Thomas Wu6 and an April 22, 2004 report from Dr. Armstrong. Counsel noted that appellant
had submitted both reports to the Office in connection with a claim for recurrence of disability in
a separate Office claim. Counsel contended that the “refusal of the Office to consider the current
medical evidence in File No. 13-2033393 in adjudicating [appellant’s] occupational disease
claim under File No. 13-2104739 is clear error. The supposed difference between a recurrence
claim and an occupational disease claim is not a justification for ignoring important new medical
evidence.”7
Appellant also submitted Dr. Wu’s April 16, 2004 report and Dr. Armstrong’s April 22,
2004 report in support of his reconsideration request. Dr. Wu conducted a lumbar myelogram
and a CT scan of appellant’s lumbar spine. After noting that appellant’s history was significant
for “low back pain radiating to the left leg,” Dr. Wu recorded an impression of focal left
posterior disc protrusion at L5-S1 with large posterior inferior osteophyte at L5 and minor disc
bulging at L4-5 and L3-4.
Dr. Armstrong, in his April 22, 2004 report, stated that he personally interpreted
Dr. Wu’s CT scan and myelogram results and concluded that appellant presented with an
“impressive” osteophytic spur at the L5-S1 level, as well as disc protrusion. He recommended
surgical decompression and stated that appellant could work up to eight hours per day.
By decision dated August 16, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely filed and did not present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act8 does not entitle a claimant
to a review of an Office decision as a matter of right.9 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.10 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
6

Dr. Wu’s specialty could not be ascertained from the record.

7

The present appeal pertains to Office File No. 13-2104739.

8

5 U.S.C. § 8128(a).

9

Thankamma Mathews, 44 ECAB 765, 768 (1993).

10

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

3

year of the date of that decision.11 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).12
The Office’s regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”13
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error pursuant to the untimely request in accordance with
section 10.607(b) of its regulations.14
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.15 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.16 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.17 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.18 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.19 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.20

11

20 C.F.R. §§ 10.607, 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
12

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 9 at 769; Jesus D. Sanchez, supra note 10 at 967.

13

20 C.F.R. § 10.607(b).

14

Thankamma Mathews, supra note 9 at 770.

15

Id.

16

Leona N. Travis, 43 ECAB 227, 241 (1991).

17

Jesus D. Sanchez, supra note 10 at 968.

18

Leona N. Travis, supra note 16.

19

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

20

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

4

ANALYSIS
Appellant requested reconsideration on May 15, 2006. As he filed his reconsideration
request more than one year following the Office’s June 25, 2004 merit decision, the Office
properly determined that the request was untimely.
The Board further finds that appellant did not establish clear evidence of error. Through
counsel, appellant argued that the Office erred in not reviewing medical evidence that was part of
appellant’s recurrence of disability claim, File No. 13-2033393. Counsel stated that “[t]he
refusal of the Office to consider the current medical evidence in File No. 13-2033393 in
adjudicating [appellant’s] occupational disease claim under File No. 13-2104739 is clear error.”
Counsel further asserted that the “supposed difference between a recurrence claim and an
occupational disease is not a justification for ignoring important new medical evidence.”
Appellant’s assertions are without merit. The Board notes that it is appellant’s burden to
establish the essential elements of his claim by the submission of appropriate evidence.21 As the
record does not reflect that appellant submitted the reports in question to File No. 13-2104739,
the Office was not under a duty to consider them when adjudicating that claim. Prior to issuance
of the Office’s June 25, 2004 decision, appellant chose not to submit either of the reports in
question to the Office in support of his claim. There is no evidence to suggest that the Office
refused to consider any evidence that appellant submitted in support of his occupational disease
claim. The Board notes that the clear evidence of error standard is intended to be a difficult
standard.22 As noted above, appellant must submit evidence that proves, on its face, that the
Office’s decision was clearly erroneous. Counsel’s argument that the Office should have
reviewed evidence in a separate and distinct claim does not raise a substantial question as to the
correctness of the Office’s decision.
Furthermore, the medical reports submitted on reconsideration, Dr. Wu’s April 16, 2004
report and Dr. Armstrong’s April 22, 2004 report, also do not establish clear evidence of error by
the Office. As noted above, the evidence submitted must be relevant to the issue which was
decided by the Office. Here, appellant’s claim was denied on the grounds that the medical
evidence did not establish a causal relationship between appellant’s diagnosed condition and
employment factors. Accordingly, the evidence submitted in support of the reconsideration
request must address causal relationship and be so persuasive that it shifts the weight of the
evidence in favor of the claimant and raises a substantial question as to the correctness of the
Office’s decision. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is insufficient to show clear evidence of error.23 However,
neither Dr. Wu’s nor Dr. Armstrong’s report renders an opinion on causal relationship.
Accordingly, neither Dr. Wu’s nor Dr. Armstrong’s report is sufficient to establish clear
evidence of error in the Office’s June 25, 2004 merit decision. Appellant has submitted no other
21

See, e.g., Larry D. Dunkin, 56 ECAB ___ (Docket No. 04-1949, issued December 22, 2004).

22

See, e.g., James R. Mirra, 56 ECAB ___ (Docket No. 05-998, issued September 6, 2005).

23

Id.

5

evidence sufficient to shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration,
as the request was filed outside the one-year time limitation and did not establish clear evidence
of error.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Ridgeville, OH, Employer
__________________________________________

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

Docket No. 10-1569
Issued: April 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from the February 20, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her traumatic injury claim,
and a April 1, 2010 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a traumatic injury to her left foot on December 2, 2008; and (2) whether the Office
properly refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On December 30, 2008 appellant, a 44-year-old letter carrier, filed a traumatic injury
claim alleging that she sustained a stress fracture to her left foot at work on December 2, 2008.

She stated that the injury resulted from favoring her left leg and foot over her right leg and foot
since August 30, 2007.1
Appellant submitted a December 2, 2008 hospital note from Dr. Patrick Fairley, Boardcertified in the field of emergency medicine, who diagnosed ankle sprain and foot strain. She
also submitted semi-legible December 2, 2008 emergency room notes signed by M. Jajala, a
registered nurse. The record contains December 2, 2008 reports of x-rays of the left ankle and
the left foot.
In a letter dated January 20, 2009, the Office informed appellant that the information and
evidence submitted was insufficient to establish her claim. The facts of injury were not clear and
she failed to provide a physician’s opinion addressing how her diagnosis resulted from
employment factors. It advised appellant to clarify whether a specific incident occurred on
December 2, 2008 which resulted in her left foot fracture and, if so, to describe the
circumstances surrounding that incident. Appellant was asked to clarify whether she claimed
that favoring her left leg over her right leg was done to her accepted right knee injury under
claim number xxxxxx541 and, if so, to describe in more detail how she favored her left leg. If,
on the other hand, she claimed that her work duties over time caused her left foot condition, she
was asked to describe the specific work duties she believed led to her condition, how many days
a week she performed them and how many hours a day. The Office also requested a detailed
report from appellant’s treating physician which included a history of how her injury/condition
occurred, a diagnosis and an opinion on how the condition is causally related to the claimed
injury. The letter informed her that, if she failed to respond to the Office’s request within 30
days, a decision would be made based upon the current evidence of record.
In a December 12, 2008 report, Dr. William R. Bohl, a Board-certified orthopedic
surgeon, advised that appellant was six weeks status post right carpal tunnel release. She told
him that “the sprain in her foot that [he] saw her for last time turned out to be a fracture.”
Dr. Bohl noted that the original x-ray had not revealed any fracture.
By decision dated February 20, 2009, the Office denied the claim on the grounds that fact
of injury could not be established. It found that appellant failed to provide details regarding a
specific traumatic incident occurring on December 2, 2008 that would be competent to cause an
injury, details of work activities responsible for her foot condition, or to detail activities which
could be construed as a consequence of her accepted right knee injury. The Office was unable to
ascertain whether she was claiming a traumatic, occupational or consequential injury.
On January 19, 2010 appellant requested reconsideration. In support of her request, she
submitted records from Dr. Richard E. Hammond, a podiatrist, for the period December 9, 2008
through January 14, 2009. Dr. Hammond diagnosed stress fracture of the left metatarsal, noting
that “the problem is associated with no known injury.” In January 13, 2009 notes, he stated that
1

The Office accepted appellant’s September 10, 2007 traumatic injury claim for a tear of the right anterior
cruciate ligament, right knee sprain, abrasion and contusion (File No. xxxxxx541). Other claims filed by her include
a September 4, 2003 traumatic injury claim (File No. xxxxxx659), which was accepted for open wound of the hip
and thigh; a September 10, 2008 occupational disease claim (File No xxxxxx504), which was accepted for right
lateral epicondylitis and bilateral carpal tunnel syndrome (CTS); and an October 2008 occupational disease claim
(File No. xxxxxx939), which was accepted for bilateral CTS and right lateral epicondylitis.

2

appellant seemed determined “to get the left foot stress fracture included in her [workers’
compensation] claim for her right knee.” On January 14, 2009 Dr. Hammond stated that “it is
thought that the stress fracture is secondary to compensation for a right knee problem consisting
of chondromalacia which is an industrial injury.”
In a decision dated April 1, 2010, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant further
merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
When an employee claims that she sustained a traumatic injury in the performance of
duty, she must establish the “fact of injury,” namely, she must submit sufficient evidence to
establish that she experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged, and that such event, incident or exposure caused an injury.5
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to establish the fact of injury. Therefore, appellant
did not meet her burden of proof to establish that she sustained a traumatic injury on
December 2, 2008.

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

5

See Paul Foster, 56 ECAB 208 (2004); see also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002); 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(ee).
6

See Betty J. Smith, supra note 5.

3

Appellant’s CA-1 form contains inconsistent allegations which create doubt as to whether
she is making a claim for a traumatic injury, which occurred on a specific date, or a claim for an
occupational disease or consequential injury, which occurred over a longer period of time. She
stated that she sustained a stress fracture of the left foot on December 2, 2008. Appellant also
indicated, however, that she favored her left leg and foot over her right side since August 30,
2007 and the “stress fracture happened as cause of that.” In either event, she provided no
detailed account of the alleged injury or supporting evidence, such as witness statements.
Appellant presented no evidence regarding the specific mechanism of injury, as required in a
claim for traumatic injury, or alleged that she experienced a specific event, incident or exposure
at a definite time, place and manner.7 Her vague recitation of the facts does not support her
allegation that a specific event occurred which caused an injury.8 Appellant did not provide
information as to those employment activities she believed competent to cause a stress fracture,
or details as to how she favored her left leg and foot, or how this activity caused a stress fracture
on December 2, 2008.
The Office informed appellant that the information initially provided was insufficient to
establish her claim and to provide factual details which would clarify the nature of her claim.
Appellant was asked to respond to specific questions designed to address whether she was
claiming a traumatic injury, occupational disease or consequential injury, and to assist the Office
in determining the sufficiency of her claim. Subsequent to the January 20, 2009 development
letter, she submitted a December 12, 2008 progress report from Dr. Bohl, which did not address
when or how she sustained a left foot fracture. Appellant provided no response, however, to the
Office’s request for information regarding the circumstances of her injury or the nature of her
claim.
The contemporaneous medical evidence of record is insufficient to establish appellant’s
claim. The record contains December 2, 2008 notes from Dr. Fairley, who diagnosed ankle
sprain and foot strain, December 2, 2008 emergency room notes from M. Jajala, a registered
nurse, and December 2, 2008 x-ray reports. None of these reports contained a detailed history of
injury, describing the time, place and the manner in which the alleged injury occurred, nor do
they identify a specific causative event. Therefore, they are insufficient to establish that the
incident occurred as alleged.
In Tracey P. Spillane,9 an employee filed a claim alleging that she sustained an allergic
reaction at work. However, she did not clearly identify the aspect of her employment which she
believed caused the claimed condition, but only made vague references to “possibly having a
reaction to magazines or latex gloves.” The Board held that the employee did not adequately
specify the employment factors which caused her need for medical treatment, or specify details
such as the extent and duration of exposure to any given employment factors. The medical
record reflected that she did not clearly report to her physicians that she felt her claimed
condition was due to a specific and identifiable employment factor. In this case, appellant’s
allegations are similarly vague and do not relate with specificity the cause of the injury or how
she injured her left foot while performing her duties on December 2, 2008. She did not address
7

See Betty J. Smith, supra note 6; see also Tracey P. Spillane, supra note 5.

8

See Dennis M. Mascarena, supra note 9.

9

See Tracey P. Spillane, supra note 5.

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the immediate consequence of the injury, such as whether she experienced immediate pain, or
what actions she took immediately following the alleged incident (e.g., whether she fell,
stumbled or had to sit down.)
Appellant did not establish that she actually experienced an employment incident at the
time, place and in the manner alleged, or that the alleged incident caused an injury. As she has
not met her burden of proof to establish the fact of injury, it is not necessary to discuss the
probative value of the medical reports.10
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act11 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”12
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
Appellant’s January 19, 2010 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office which denied her claim on the grounds that she failed to sufficiently
allege, or provide evidence to establish that she actually experienced a specific incident on
10

See Tracey P. Spillane, supra note 5.

11

5 U.S.C. § 8101 et seq.

12

20 C.F.R. § 10.605.

13

Id. at § 10.606.

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

5

December 2, 2008 that caused an injury. The Office’s February 20, 2009 merit decision,
therefore, turned on a factual issue. When appellant requested reconsideration, she did not
submit a narrative statement addressing the circumstances surrounding the alleged incident. She
did not clarify the mechanics of the alleged injury or the nature of her claim. Rather, appellant
submitted medical notes and reports, which did not address the issue decided by the Office in its
February 20, 2009 decision, namely, whether she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. Therefore, they are irrelevant to
the issue at hand not constitute a basis for reopening the case for a merit review.16
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her request for reconsideration.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury to her left foot in the performance of duty on December 2, 2008.
The Board further finds that the Office properly refused to reopen her claim for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 1, 2010 and February 20, 2009 are affirmed.
Issued: April 1, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

16

D. Wayne Avila, 57 ECAB 642 (2006).

6