United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Pekin, IL, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-981 &
09-1009
Issued: December 10, 2009

Case Submitted on the Record

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

JURISDICTION
On March 6 and 10, 2009 appellant timely appealed the January 5, 2009 merit decisions
of the Office of Workers’ Compensation Programs, which denied an increased schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has greater than one percent impairment of the left lower
extremity.
FACTUAL HISTORY
Appellant, a 40-year-old correctional officer, sustained multiple injuries in the
performance of duty dating back to July 26, 1996 when he fell to the floor from a height of
approximately 16 feet. The Office accepted the 1996 injury (File No. xxxxxx657) for acute
lumbar strain and right thumb abrasion. On January 18, 1997 appellant reinjured his back in a
lifting incident. The Office accepted his 1997 injury (File No. xxxxxx339) for lumbar strain,

lumbar myositis and lumbar vertebral fracture. Appellant later sustained employment-related
injuries to his left lower extremity. On March 30, 2000 he tore the gastrocnemius muscle in his
left calf while descending stairs (File No. xxxxxx818). On September 12, 2000 appellant injured
his left foot/ankle while exiting a motor vehicle. The Office accepted this latest claim (File No.
xxxxxx374) for left acute retro-calcaneal bursitis and left heel spur excision, which he underwent
on April 18, 2001.1
Appellant underwent a second left foot surgical procedure on
December 3, 2003.
In November 2007, appellant filed schedule awards for both his back and left lower
extremity injuries.2 In a report dated July 12, 2007, Dr. Nicholas Diamond, a pain management
specialist, found 30 percent impairment of the left lower extremity due to muscle weakness and
pain.3 The overall rating included separate components for Grade 4 motor strength deficits
involving the left gastrocnemius (17 percent) and left ankle (12 percent). Dr. Diamond also
found an additional three percent impairment for pain. He attributed appellant’s impairment to a
combination of back and lower extremity injuries he sustained between July 1996 and
September 2000.
With respect to appellant’s back injury (File No. xxxxxx339), the district medical adviser
(DMA), Dr. David H. Garelick, reviewed the record, including Dr. Diamond’s July 12, 2007
report and found zero impairment of both the left and right lower extremities.4 In his
December 10, 2007 report, Dr. Garelick explained that there was no objective evidence
implicating appellant’s lumbar spine condition as the cause for his residual lower extremity
weakness. He further explained that the residual weakness was probably secondary to pain
associated with appellant’s left foot and ankle condition rather than overt muscle weakness.
Dr. Garelick was unaware that appellant’s left foot condition had been accepted as employment
related.
Another DMA, Dr. Robert W. Wysocki, reviewed the case file with respect to appellant’s
claim for a schedule award for his accepted left lower extremity injury (File No. xxxxxx818).
He too authored a report dated December 10, 2007. Dr. Wysocki found one percent impairment
of the left lower extremity due to sensory deficit involving the sural nerve. According to him,
there was zero left lower extremity impairment for decreased range of motion in the ankle.
Dr. Wysocki further explained that it was inappropriate to rate muscle weakness in the presence
of pain.
In a decision dated December 18, 2007, the Office denied a schedule award with respect
to appellant’s January 18, 1997 back injury (File No. xxxxxx339). But in a separate decision
dated January 2, 2008, it granted him a schedule award for one percent impairment of the left
1

The four above-noted claims have been combined under master file number xxxxxx374.

2

The two schedule award claims were separately adjudicated because the respective case records had yet to be
combined.
3

The original copy of the report did not include a signature page so the author was incorrectly identified as
Dr. David Weiss; one of several physicians whose name appeared on the report’s first-page letterhead.
4

Dr. Garelick is a Board-certified orthopedic surgeon.

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lower extremity as a result of his September 12, 2000 left foot injury (File No. xxxxxx374).5
Appellant requested a review of the written record with respect to both schedule award decisions.
By decision dated May 23, 2008, the hearing representative set aside the Office’s
December 18, 2007 decision and remanded the case for further development. The hearing
representative noted, among other things, that the DMA, Dr. Garelick, was unaware that
appellant had an accepted left lower extremity condition. The case was remanded to the Office
with instructions to combine appellant’s various back and lower extremity claim files. The
hearing representative also instructed the Office to prepare a comprehensive statement of
accepted facts and refer appellant together with his combined case record to an appropriate
medical specialist for a second opinion examination.6 In a separate decision dated July 7, 2008,
the Branch of Hearings & Review applied a similar rationale in setting aside the Office’s
January 2, 2008 schedule award.
On remand, the Office twice scheduled appellant for a second opinion examination.
Appellant, however, missed both appointments.
On September 11, 2008 the Office issued two separate decisions (File Nos. xxxxxx339
and xxxxxx374) denying a schedule award in excess of the prior award of one percent
impairment of the left lower extremity.
On September 29, 2008 appellant’s counsel requested reconsideration of the
September 11, 2008 decisions. He explained that appellant was unable to attend a second
opinion examination because he had recently undergone a heart transplant. Counsel also
submitted a supplemental report from Dr. Diamond dated August 8, 2008, who explained that,
due to left lumbar radicular symptoms and left foot and ankle pain, appellant developed an
altered gait, which lead to weakness in the muscles of the left lower extremity as previously
identified in his July 12, 2007 report.
The Office referred Dr. Diamond’s latest report to its medical adviser, Dr. Amon Ferry.
In a report dated December 10, 2008, Dr. Ferry concurred with Dr. Wysocki’s December 10,
2007 rating of one percent impairment of the left lower extremity. He explained that the
decreased strength Dr. Diamond identified was related to painful ankle motion. Dr. Ferry further
explained that, under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001), decreased strength cannot be rated in the presence
of decreased motion, painful conditions, deformities or absence of parts that prevent effective
application of maximal force in the region being evaluated.
In two separate decisions, both dated January 5, 2009, the Office found that appellant was
not entitled to an increased schedule award for either his back or left lower extremity
employment injuries. It based its decisions on Dr. Ferry’s December 10, 2008 report.

5

The January 2, 2008 schedule award covered 2.88 weeks.

6

The hearing representative was aware that appellant had received an award for one percent impairment of the
left lower extremity under claim file number xxxxxx374.

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LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.7 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.8 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).9
ANALYSIS
Appellant’s counsel argues that the Board should award 30 percent impairment of the left
lower extremity based on Dr. Diamond’s reports. The Office awarded one percent impairment
based on a Grade 3 pain and sensory deficit in the distribution of the left sural nerve.10 The
Board finds that appellant failed to establish greater than one percent impairment of the left
lower extremity.
Dr. Diamond’s July 12, 2007 and August 8, 2008 reports are insufficient to establish 30
percent impairment of the left lower extremity. Dr. Ferry, like Dr. Wysocki before him,
correctly explained that Dr. Diamond’s impairment rating due to muscle weakness was
inappropriate because of reported pain in appellant’s left ankle. According to the A.M.A.,
Guides, “[d]ecreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts ... that prevent effective application of maximal force
in the region being evaluated.”11 Dr. Diamond’s July 12, 2007 examination results revealed
essentially normal range of motion in the left ankle, but he noted that “[a]ll ranges of motion
[were] carried through with pain at the extremes.” He also noted that appellant admitted to left
heel and foot pain and stiffness on a daily basis that waxed and waned. Because of the presence
of pain, Dr. Diamond’s impairment rating for muscle weakness involving left ankle plantar
flexion and dorsiflexion was clearly inappropriate.12 Furthermore, he failed to justify his

7

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2)
(2006).
8

20 C.F.R. § 10.404.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

10

See Table 16-10, A.M.A., Guides 482 and Table 17-37, A.M.A., Guides 552. The one percent impairment was
derived by multiplying the Grade 3 sensory deficit (43 percent) by the maximum lower extremity sensory deficit
involving the sural nerve (2 percent).
11

Section 16.8a, A.M.A., Guides 508.

12

Id.

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additional three percent rating for pain.13 Accordingly, the Office properly declined to grant an
increased schedule award based on Dr. Diamond’s opinion.
CONCLUSION
Appellant has not established that he has greater than one percent impairment of the left
lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2009 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: December 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13

The A.M.A., Guides limit the circumstances under which a pain-related impairment may be assessed under
Chapter 18. If an impairment can be adequately rated on the basis of the body and organ impairment systems given
in other chapters of the A.M.A., Guides, such as Chapters 13, 16 and 17, then pain-related impairments should not
be assessed using Chapter 18. See section 18.3b, A.M.A., Guides 571. The A.M.A., Guides provide for an
incremental adjustment of up to three percent for pain when the conventional rating system does not adequately
encompass the burden of the individuals condition. Where the pain-related impairment appears to increase the
burden of the individual’s condition “slightly,” the physician can increase the percentage found under the
conventional rating system by up to three percent. See id. at 573; Figure 18-1, A.M.A., Guides 574.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

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

Docket No. 16-0018
Issued: February 19, 2016

Case Submitted on the Record

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

JURISDICTION
On October 7, 2015 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated July 8 and September 16, 2015. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of duty causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The record indicates that appellant also requested reconsideration with OWCP at the time he filed his appeal
with the Board. The Board and OWCP cannot have simultaneous jurisdiction over the issues in this case.
Following the docketing of an appeal before the Board, OWCP loses jurisdiction to render a further decision
regarding the issue on appeal until after the Board relinquishes jurisdiction. 20 C.F.R. § 501.2(c)(3); A.J., Docket
No. 10-0619 (issued June 29, 2010).

FACTUAL HISTORY
On May 11, 2015 appellant, then a 55-year-old human resources generalist (principal),
filed an occupational disease claim (Form CA-2), alleging that his depression, anxiety, and other
conditions were caused by management actions when he was placed on administrative leave until
completion of an internal investigation regarding his conduct. The employing establishment
indicated that appellant was placed on paid administrative leave from December 14, 2012
through May 14, 2014 and has controverted the claim.
The record includes a job description for a human resources generalist (principal). A
December 14, 2012 memorandum, signed by appellant, provided that he was placed in a nonduty
status with pay effective that day, until an internal investigation regarding his conduct was
completed.
In a July 18, 2014 note, Dr. Fernando J. Cabrera, Jr., a Board-certified psychiatrist,
advised that he first evaluated appellant on January 14, 2013 for anxiety and depression
secondary to labor problems. He diagnosed major depression and prescribed medication.
Appellant’s request for family and medical leave, to begin March 23, 2015, was approved on
March 30, 2015.
In correspondence dated May 18, 2015, Juan Delgado, human resources manager at the
employing establishment, advised that appellant was placed on paid administrative leave
commencing December 14, 2012 and was returned to work without restrictions or limitations on
May 14, 2014. He indicated that the investigation was regarding appellant’s conduct, that there
was no investigation report, and that he was returned to duty with the understanding that there
were no negative findings regarding his conduct.
In a June 2, 2015 letter, OWCP informed appellant of the evidence needed to support his
claim, including a personal statement regarding claimed employment factors and supportive
medical evidence. Appellant was afforded 30 days to respond. OWCP also asked the employing
establishment to provide information regarding his claim, including comments from a
knowledgeable supervisor.
On July 7, 2015 Mr. Delgado responded that appellant was placed on administrative
leave to investigate allegations that he had been bypassing a required step in the hiring process.
He reiterated that appellant was returned to duty with the understanding that there were no
negative findings regarding his conduct. Mr. Delgado added that appellant’s job did not include
significant stress and that he had performed his duties in a satisfactory manner since his return
from administrative leave.
By decision dated July 8, 2015, OWCP denied the claim. It noted that appellant did not
respond to the June 2, 2015 letter and denied the claim because fact of injury had not been
established.
In correspondence dated and received on July 13, 2015 appellant requested
reconsideration. In a statement dated July 7, 2015, he repeated that on December 14, 2012 he
was placed off duty with pay because of an internal investigation. Appellant asserted that he was

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not told the reason for the investigation and that employing establishment management refused
to explain or provide details of the investigation. He reported that no grievance or Equal
Employment Opportunity action had been taken and maintained that being off work for no cause
for 17 months without explanation caused his emotional condition.
In a July 6, 2015 psychiatric report, Dr. Cabrera described appellant’s treatment, noting a
diagnosis of mixed adjustment disorder with depression and anxiety in partial remission, and
additional conditions of noninsulin-dependent diabetes mellitus, obstructive sleep apnea,
hypertension, low back pain, cervical strain, hyperlipidemia, bronchial asthma, and left foot
phlebitis. He recounted that appellant was placed in nonduty status with pay on December 14,
2012 due to an investigation and was placed back in his position on May 13, 2014 without
explanation. Dr. Cabrera advised that, after appellant’s removal, he became anxious, depressed,
and could not sleep well. He indicated that appellant had improved, but was still worried that he
could be fired. Dr. Cabrera opined that appellant’s adjustment disorder diagnosis was secondary
to his labor difficulties at the employing establishment.
Also submitted was correspondence dated May 13, 2014 in which Mr. Delgado informed
appellant to report for training in Miami, Florida, on May 19, 2014. In a letter dated June 13,
2014, he informed appellant that his nonduty status with pay was rescinded effective
May 14, 2014. Mr. Delgado welcomed appellant back to the employing establishment.
In a merit decision dated September 16, 2015, OWCP denied modification of the prior
decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with

3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 137 (1999).

5

Lillian Cutler, supra note 3.

6

J.F., 59 ECAB 331 (2008).

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probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.9 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.10
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.11 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.12 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.13
ANALYSIS
The Board finds that appellant did not establish an employment-related emotional
condition. Appellant has not attributed his emotional condition to the performance of his regular
work duties or to any special work requirement arising from his employment duties under
Cutler.14 Rather, his claim pertains to his allegation that being placed on paid administrative
leave from December 14, 2012 to May 14, 2014, while an investigation took place, caused stress,
anxiety, and depression. Appellant asserted that he was not told the reason for the investigation,
that employing establishment management refused to explain or provide details of the
investigation, and that the administrative leave was rescinded and he was returned to full duty.
As to the investigation itself, investigations are considered to be an administrative
function of the employing establishment and are not considered to be an employment factor
7

M.D., 59 ECAB 211 (2007).

8

Roger Williams, 52 ECAB 468 (2001).

9

Charles D. Edwards, 55 ECAB 258 (2004).

10

Kim Nguyen, 53 ECAB 127 (2001).

11

Leslie C. Moore, 52 ECAB 132 (2000).

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

14

Supra note 3; see James E. Norris, 52 ECAB 93 (2000).

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where the evidence does not disclose error or abuse on the part of the employing establishment.15
The employing establishment retains the right to investigate an employee if wrongdoing is
suspected or as part of the evaluation process. An employee’s fear of being investigated is not
covered under FECA.16 The record supports that the employing establishment had a legitimate
reason to investigate appellant’s job performance. In correspondence dated May 18 and July 7,
2015, Mr. Delgado, human resources manager, advised that appellant was being investigated for
bypassing a required step in the hiring process. He indicated that there was no investigation
report and that appellant was returned to duty with the understanding that there were no negative
findings regarding his conduct. Appellant did not submit evidence to show that employing
establishment management or another employing establishment acted unreasonably or abusively
during the investigation.17
As to being placed on paid administrative leave, allegations of unfair disciplinary actions
and leave matters also relate to administrative or personnel matters, unrelated to the employee’s
regular or specially assigned work duties and do not fall within coverage of FECA.18 The mere
fact that personnel actions are later modified or rescinded, as in this case, does not, in and of
itself establish error or abuse.19 Appellant did not submit any evidence that postal management
erred in this action. He did not establish a compensable factor of employment with respect to
these administrative matters.20
For the foregoing reasons, appellant has not established a compensable factor of
employment under FECA and, therefore, has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
As appellant has not established a compensable employment factor, the Board need not
consider the medical evidence of record.21
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.

15

See L.C., 58 ECAB 493 (2007).

16

Jeral R. Gray, 57 ECAB 611 (2006).

17

Id.

18

Robert Breeden, 57 ECAB 622 (2006) (disciplinary actions); David C. Lindsey, Jr., 56 ECAB 263 (2005)
(leave matters).
19

C.T., Docket No. 08-2160 (issued May 7, 2009).

20

Robert Breeden, supra note 18.

21

See Katherine A. Berg, 54 ECAB 262 (2002).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an emotional
condition in the performance of duty causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 16 and July 8, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 19, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
Fort Sill, OK, Employer
__________________________________________

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Appearances:
Tommy Sims, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-868
Issued: October 18, 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 February 23, 2011 appellant filed a timely appeal of a January 13, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. 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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back injury in the performance of duty.
On appeal, counsel contends that the medical evidence and appellant’s statements
establish that he sustained a back injury on March 24, 2010 while lifting boxes at work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 2, 2010 appellant, then a 45-year-old mobilization specialist, filed a traumatic
injury claim (Form CA-1) asserting that he sustained a back injury on Thursday, March 25, 2010
while lifting a box. He stated that he remained at work on March 25, 2010 and went to the
doctor on Friday, March 26, 2010. Appellant did not return to work.
Dr. Richard T. Brittingham, an attending Board-certified internist, treated appellant from
October 28, 2008 through February 4, 2010 for chronic neck and back pain, cerebrovascular and
cardiovascular conditions. On March 18, 2010 he treated appellant for a lip laceration sustained
at work when a clothes rack fell and struck him in the face. Dr. Brittingham ordered March 19,
2010 lumbar magnetic resonance imaging (MRI) scan and x-rays, which showed narrowing of
the L4-5 disc and an old Schmorl’s node at the L5 endplate, unchanged from a February 2005
study.
In a March 25, 2010 report, Dr. Brittingham related appellant’s complaints of chronic
neck and back pain with a history of spinal stenosis. He diagnosed an L4-5 disc bulge, neck pain
and right-sided radiculopathy. Dr. Brittingham ordered an April 5, 2010 MRI scan showing an
L5-S1 annular tear and C5-6 and C6-7 disc protrusions. On April 6, 2010 he noted that appellant
complained of increased pain after “doing a lot of furniture moving” at work in late March 2010.
In an April 13, 2010 report, Dr. Brittingham restricted appellant from moving furniture due to a
March 25, 2010 occupational injury causing neck and low back pain. He again noted a
March 25, 2010 date of injury in a May 5, 2010 form report, with a remote history of a back
injury in a motor vehicle accident. Dr. Brittingham checked a box “yes” indicating his support
for causal relationship, noting that “lifting and moving furniture will aggravate [appellant’s]
pain.”
On June 7, 2010 OWCP advised appellant of the additional evidence needed to establish
his claim, including a detailed description of the March 25, 2010 incident and medical evidence
supporting a causal relationship between that incident and the claimed back injury. In response,
appellant submitted a claim for wage-loss compensation from June 20 to July 3, 2010.
By decision dated July 15, 2010, OWCP denied the claim on the grounds that fact of
injury was not established. It found that appellant did not submit factual evidence to support that
the March 25, 2010 lifting incident occurred as alleged. OWCP noted that his physicians did not
mention a March 25, 2010 back injury.
In a July 30, 2010 letter, appellant requested a telephonic oral hearing, held
November 1, 2010. At the hearing, counsel stated that the correct date of injury was March 24,
2010 and that Dr. Brittingham’s references to a March 25, 2010 incident were “record errors.”
Following the hearing, counsel submitted a November 22, 2010 letter asserting that appellant
was injured on March 25, 2010.
Appellant submitted a July 22, 2010 statement noting a history of back injuries while in
the military, prior to his work at the employing establishment. On March 18, 2010 he sustained a
lip and upper back injury at work and sought medical attention. On March 24, 2010 appellant

2

experienced a pulling sensation in his upper and lower back while stacking chests of drawers at
work. He submitted additional evidence.2
Dr. Brittingham noted chronic neck and back pain in reports from June 2 to
July 19, 2010. He mentioned March 18 and 25, 2010 workplace accidents. In August 2, 2010
form reports, Dr. Brittingham noted a March 24, 2010 workplace accident causing right-sided
neck and right shoulder pain. In a December 18, 2010 letter, he noted that on March 25, 2010,
appellant asserted that he injured his back lifting boxes on and off pallets. Dr. Brittingham
opined that this incident may have exacerbated a possible preexisting condition.
In an August 18, 2010 report, Dr. Nils Axelsen, an attending Board-certified orthopedic
surgeon, diagnosed right-sided neck and right arm pain which appellant attributed to lifting a box
at work on March 24, 2010.
By decision dated January 13, 2011, OWCP’s hearing representative affirmed the
July 15, 2010 decision, finding that the evidence submitted did not establish a March 24 or 25,
2010 lifting incident as factual. The hearing representative found that there was conflicting
evidence as to the date, time and cause of the claimed incident. OWCP’s hearing representative
further found that there was insufficient rationalized medical evidence supporting a causal
relationship between a March 24 or 25, 2010 lifting incident and the claimed back injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.6
2

A February 8, 2005 lumbar MRI scan showed disc desiccation at L4-5 and L5-S1 with mild foraminal and
spinal stenosis.
Appellant submitted reports from August 26, 2005 to September 13, 2010 regarding
cerebrovascular, cardiovascular and right upper extremity conditions. These documents do not address a back
injury. Appellant continued to file claims for total disability compensation through July 3, 2010.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

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

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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 An employee has
not met his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8
ANALYSIS
On April 2, 2010 appellant claimed that he sustained a back injury while lifting a box at
work on March 25, 2010. OWCP denied the claim by July 15, 2010 and January 13, 2011
decisions on the grounds that the evidence was insufficient to establish that the claimed incident
occurred at the time, place and in the manner alleged.
Neither appellant nor counsel provided a consistent history of injury. At the November 1,
2010 hearing, counsel contended that appellant injured his back on March 24, 2010 and that
Dr. Brittingham, an attending Board-certified internist, mistakenly noted March 25, 2010 as the
date of injury. Following the hearing, appellant submitted a July 22, 2010 statement concurring
that he was injured on March 24, 2010, although he stated on his claim form that he was injured
on March 25, 2010. Counsel then asserted in a November 22, 2010 letter that appellant was
injured on March 25, 2010. Thus, appellant and counsel both used March 24, 2010 and
March 25, 2010 as the date of injury, creating substantial confusion.
The medical evidence also contains divergent accounts of the date, mechanism and type
of injury. Appellant complained of back pain after sustaining a March 18, 2010 facial injury at
work, prompting Dr. Brittingham to order a lumbar MRI scan because appellant had preexisting
spinal stenosis. Dr. Brittingham mentioned on April 6, 2010 that appellant had back pain after
moving furniture at work in late March 2010, but not specifically on March 25, 2010. Also, he
did not explain if the effects of the March 18, 2010 incident had ceased. Dr. Brittingham first
mentioned a March 25, 2010 incident on April 13, 2010, stating that appellant sustained an injury
while moving furniture. On May 25, 2010 he again mentioned moving furniture on March 25,
2010, but that appellant also had a back injury on an unspecified date due to a motor vehicle
accident. In reports dated from June 2 to December 18, 2010, Dr. Brittingham referred both to
March 24 and March 25, 2010 injuries. Dr. Axelsen, an attending Board-certified orthopedic
surgeon, noted on August 18, 2010 that appellant believed he injured his right arm on March 24,
2010 by lifting a box at work.
The Board finds that the evidence does not provide a consistent history of when the
claimed incident occurred. There is conflicting evidence regarding whether it happened on
March 24 or 25, 2010 or whether appellant injured his back, his right arm, or both. These are
fundamental inconsistencies that cast serious doubt on the validity of the claim.9 Therefore,

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

S.P., 59 ECAB 184 (2007); V.F., 58 ECAB 321 (2007).

9

S.P., supra note 8.

4

appellant has not met his burden of proof in establishing that the March 25, 2010 incident
occurred at the time, place and in the manner alleged.10
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.
On appeal, counsel contends that the medical evidence and appellant’s statements are
sufficient to establish that appellant sustained a back injury on March 24, 2010 while lifting
boxes at work. As stated, the evidence of record contains divergent accounts of events that are
insufficient to support that the claimed incident occurred as alleged.
CONCLUSION
The Board finds that appellant did not establish that he sustained a back injury in the
performance of duty on March 25, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 13, 2011 is affirmed.
Issued: October 18, 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

10

As appellant did not establish that the employment incident occurred at the time, place and in the manner
alleged, the Board need not further consider the medical evidence.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1303
Issued: April 29, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 21, 2014 appellant, through counsel, filed a timely appeal from an April 23,
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 OWCP properly terminated appellant’s wage-loss compensation
under 5 U.S.C. § 8106(c)(2) for refusal of suitable work.
On appeal, counsel argues that compensation should be restored retroactively and
appellant should be provided all benefits under FECA. He contends that OWCP failed to
provide her with due process, failed to properly weigh the medical evidence, failed to follow its
procedures, and failed to accept other conditions including an emotional condition. Counsel
1

5 U.S.C. § 8101 et seq.

further argues that appellant did not refuse employment and that the offered employment was not
suitable when the medical evidence is considered, including evidence that she could not work or
drive.
FACTUAL HISTORY
On October 1, 2010 appellant, then a 49-year-old transportation security officer
(screener) filed a traumatic injury claim alleging that on August 21, 2010 she felt something pull
in her neck and left shoulder after picking up a set golf clubs. She listed the nature of injury as
strain of the neck and left shoulder. On December 10, 2010 OWCP accepted appellant’s claim
for temporary aggravation of cervical spondylosis without myelopathy; sprain of back and
thoracic region; and sprain of shoulder and upper arm and other specified left sites. On
August 28, 2012 it accepted her claim for the additional condition of other syndromes affecting
cervical region. OWCP paid appropriate compensation benefits.
On September 6, 2011 Dr. Robert Masson, Jr., a Board-certified neurosurgeon,
performed a C3-4 anterior cervical discectomy and anterior cervical arthroplasty, intervertebral
implant, biplanar intraoperative fluoroscopy, and intraoperative microdissection on appellant.
Appellant received follow-up treatment from him and in a note from an October 25, 2011 visit,
he indicated that she had done fairly well postoperatively. Dr. Masson noted that she had relief
from her left cervicooccipital pain, but continued to describe right cervicooccipital pain, more
with movement. He noted that x-rays showed the implant was positioned satisfactorily.
Dr. Masson recommended physical therapy, which was initiated. On April 12, 2012 appellant
underwent a functional capacity evaluation. The physical therapist noted that she did not evince
consistent effort and demonstrated inappropriate pain behaviors, so results should be interpreted
as minimum level of function and not representative of her true abilities. The evaluation
indicated that appellant can perform light work. In a May 10, 2012 follow-up visit note,
Dr. Masson indicated that appellant could return to her employment as a baggage screener as
long as her work restrictions meet her functional capacity evaluation (FCE). He noted that she
reached maximum medical improvement on March 14, 2012.
Dr. Marc Sharfman, a Board-certified neurologist, started treating appellant on
August 15, 2012. In an October 22, 2012 workers’ compensation form, he listed her differential
diagnoses as: (1) post-traumatic cervical spine trauma; (2) post-traumatic cervical cranial
syndrome; (3) post-traumatic cervical brachial syndrome; (4) post-traumatic greater occipital
neuralgia; and (5) post-traumatic adjustment disorder. Dr. Sharfman listed appellant’s work
restrictions as carrying, lifting, or pulling limited to 10 pounds.
On December 3, 2012 the employing establishment, through Danielle Enevoldsen, human
resource specialist, offered appellant a limited-duty job assignment as a modified transportation
security officer at the same pay as she earned at the time of her injury. The position would
require intermittent lifting, carrying, or pulling of not over 10 pounds. The duties of the position
would also include intermittent sitting, walking, standing, and squatting/kneeling/climbing. The
letter told appellant that, if she accepted the job offer, she should notify either Ms. Enevoldsen or
Brenda Young to confirm acceptance and her date of return to duty.

2

In a form reply dated December 7, 2012, appellant refused the employing establishment’s
job offer.
Appellant saw Dr. Sharfman on December 11, 2012 and brought forms for him to review.
Dr. Sharfman noted that she told him that she could not safely perform her job duties, that her
neurosurgeon had told her not to work and that she could not drive. He stated that, for
appellant’s safety and others, he would keep her off work while obtaining further information.
Dr. Sharfman noted that she reported a combination of headache, neck pain, back pain, dizziness,
and memory difficulty which would not allow her to work. In a December 11, 2012
occupational work status slip, he indicated that “per [appellant’s] neurosurgeon states no work.”
Dr. Sharfman noted that work status would be deferred to Dr. Masson. In a December 18, 2012
report, he noted that appellant reported persistence of headache, neck pain, back pain, leg pain,
shoulder pain, vision problems, stress, and depression, which she attributed to the August 21,
2010 accident. Dr. Sharfman listed her differential diagnoses as post-traumatic syndrome.
In a December 20, 2012 psychosocial assessment summary, Dr. Sharfman countersigned
a report by Veronica White, Ph.D., a therapist, diagnosing appellant with adjustment disorder.
Dr. White recommended treatment sessions with routine frequency.
In a December 21, 2012 medical narrative, Dr. Sharfman listed appellant’s diagnosed
condition as post-traumatic cervical spine trauma secondary to an August 21, 2010 accident;
indicated that the condition was still medically present and disabling; that based on history there
was no preexisting cervical spine trauma; and that appellant had not returned to preinjury status.
He noted that the employment injury produced a permanent condition and she has had surgery
which is irreversible. Dr. Sharfman stated that based on the history, neurologic examination,
musculoskeletal examination, diagnostic testing, review of neurosurgeon notes, and review of the
FCE, appellant appears to be able to perform some type of job with restrictions. He did note that
vocational rehabilitation was needed. Dr. Sharman requested a revisit with pain management
and neurosurgeon. In a form report, also dated December 21, 2012, he reiterated that appellant
should be limited to carrying, lifting, and pulling 10 pounds. In a January 21, 2013 report,
Dr. Sharfman listed differential diagnoses as post-traumatic cervical cranial syndrome, cervical
brachial syndrome, and occipital neuralgia.
On February 15, 2013 OWCP noted that appellant had been offered a position as a
modified transportation security officer with the employing establishment and that the duties and
physical requirements of the offered position are in accordance with her medical limitations as
provided by Dr. Sharfman in his October 22, 2012 report. It advised her that the job offer was
suitable. OWCP noted that, if appellant failed to report to the offered position and failed to
demonstrate that the failure was justified, her right to compensation and schedule award would
be terminated. It allotted her 30 days to either report for duty or to provide a written explanation
for refusing the job offer.
In a March 6, 2013 report, Dr. Sharfman noted that appellant attributed her depression
and inability to work to her symptoms from her employment injury. He noted that she did not
feel safe to return to work. In an accompanying work restriction form, Dr. Sharfman continued
to indicate that appellant was restricted from carrying, lifting, or pulling more than 10 pounds.
On March 21, 2013 he signed a form indicating that he believed that she could perform the

3

position of security officer. In reports dated May 8 and July 26, 2013, Dr. Sharfman continued
to indicate that appellant could work with restrictions of no carrying, lifting, or pulling more than
10 pounds.
In a note received by OWCP on March 18, 2013, appellant stated that she accepted the
job offer stemming from the letter dated February 22, 2013. She indicated that she was willing
to work with vocational rehabilitation training to determine what position is best for her given
her limitations and injuries. Appellant also stated that she was currently unable to drive due to
injuries in her neck and would need assistance in getting to and from an appropriate position.
In a June 5, 2013 report, OWCP gave appellant an additional 15 days to accept and make
arrangements to report to the suitable position. It noted that it would not consider any further
reasons for refusal of the suitable position.
On June 12, 2013 OWCP denied appellant’s request for a visit with a psychologist.
Appellant commenced treatment with physicians and other medical personnel at
AmeriMed Diagnostic Services, Inc. on June 17, 2013. In a June 17, 2013 duty status report,
Dr. Claude Barosy, a general practitioner, indicated that she could not work or drive for five
weeks. In a June 27, 2013 report, he listed appellant’s diagnoses as: cervical strain with
radiculopathy; status postoperative surgical repair of the cervical discs; cervical disc syndrome
with radiculopathy; bilateral shoulder sprain with radiculopathy; internal derangement of the
right shoulder; internal derangement of the left shoulder; lumbosacral strain with radiculopathy;
status post laminectomy of L5-S1; and lumbosacral disc syndrome. Dr. Barosy indicated that her
condition could deteriorate if she continued doing any stressful exercise or physical activities
that require pulling, pushing, or bending. He advised appellant to not do any activities prior to
diagnostic studies. Dr. Barosy submitted another duty status report dated July 17, 2013
indicating that she could not drive or work for four weeks. He submitted further duty status
reports dated August 14, September 11, October 9, and November 18, 2013, indicating that
appellant could not work, but did not list any driving restrictions.
By letter dated June 18, 2013, appellant’s counsel stated that appellant would love to
work, was willing to try to work within her limitations, and that she called her employing
establishment indicating that she could return to work no later than June 20, 2013. He noted that
she advised the employing establishment that her new physician, Dr. Barosy, indicated that she
could not drive or work for five weeks. Counsel noted that Dr. Masson would not see appellant
anymore since she declined to undergo surgery, and asked that OWCP approve Dr. Barosy at
AmeriMed Diagnostic Services, Inc. (AmeriMed) as her new authorized medical provider.
In a June 25, 2013 letter, Ms. Enevoldsen from the employing establishment indicated
that appellant has not contacted the employing establishment to respond to the job offer of
December 3, 2012.
Appellant resubmitted an August 10, 2011 report, wherein Jenifer A. Garrido, a licensed
social worker, diagnosed appellant with major depressive disorder, single episode, and without
psychosis. Ms. Garrido stated that, as appellant’s depression occurred only after her workrelated injuries and subsequent loss of employment, it was her opinion that appellant’s diagnosis

4

of major depressive disorder was caused and exacerbated by her injuries, resulting in chronic
pain, and her reported loss of independence and ability to continue employment.
By decision dated July 17, 2013, OWCP denied appellant’s claim for manual therapy,
infrared therapy, electrical stimulation, ultrasound therapy, therapeutic exercise, neuromuscular
reeducation, mechanical traction therapy, vasopneumatic device therapy, and electrical
stimulation other than wound.
On February 15, 2013 OWCP informed appellant again of the offered position and
provided her 30 days to respond to the offer. Appellant failed to submit appropriate evidence.
On June 5, 2013 OWCP provided her an additional 15 days to accept the offer of employment.
By decision dated July 26, 2013, OWCP terminated appellant’s compensation for wage
loss effective July 28, 2013 for refusal of suitable work.
On August 5, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In an August 14, 2013 report, Dr. Sharfman noted adjustment disorder with anxiety and
depression in addition to post-traumatic cervicocranial syndrome and post-traumatic
cervicobrachial syndrome. In a letter of the same date, he requested that diagnoses be accepted
for cranial syndrome, cervicobrachial syndrome and adjustment disorder with mixed
anxiety/depressed mood. Dr. Sharfman noted that this request is medically necessary as it is
directly related to the occupational injury that occurred on August 21, 2010 due to the
mechanism of injury. He indicated that adjustment disorder is a stress related, nonpsychotic
disturbance, and that persons with adjustment disorder are often viewed as disproportionately
overwhelmed or overly intense in their response to given stimuli. Dr. Sharfman also opined that
cognitive behavior therapy is reasonable, effective, and expected to reduce or ameliorate the
mental effects of the August 21, 2010 injury. He opined that it will assist appellant to achieve or
maintain maximum functional capacity in performing daily activities. In a functional limitations
report of the same date, Dr. Sharfman continued to indicate that she should be restricted to
carrying, lifting, and pulling 10 pounds.
In an August 30, 2013 report, Dr. Samy F. Bishai, an orthopedic surgeon with
AmeriMed, diagnosed appellant with: internal derangement of the left shoulder joint; full
thickness tear of rotator cuff of left shoulder; left shoulder impingement syndrome; internal
derangement of the right shoulder; right shoulder impingement syndrome; partial thickness tear
of the supraspinatus and infraspinatus tendons of the right shoulder; cervical disc syndrome;
herniated cervical discs at C5-6 and C6-7 with bilateral radiculopathy; status post operative
anterior cervical disc excision and fusion; herniated thoracic disc excision and fusion; herniated
thoracic disc at T11-12 and T12-L1 levels; degenerative disc disease of the lumbosacral spine;
herniated lumbar disc at L4-5 level with bilateral radiculopathy; bilateral spinal stenosis and
foraminal narrowing of the lumbosacral spine; and status post operative lumbar laminectomy,
disc excision and fusion of the lumbar spine. He concluded that she still had serious injuries to
her left shoulder and to her neck and back from working for the employing establishment on
August 21, 2010. Dr. Bishai stated that appellant has been disabled from work since
December 19, 2010 due to the severity of the pain in multiple areas of her body including her

5

neck with radiculopathy in the arms and back with radiculopathy down the legs. He also noted
that she experienced pain in her shoulders, more on the left side than the right.
In a September 5, 2013 note, Dr. Sharfman noted that he has treated appellant but that she
should obtain a treating physician to take over further medical needs within the next 30 days. He
referred her to AmeriMed for continued treatment and work on her employment-related injury
and opined that this was medically necessary.
In an October 9, 2013 report, Dr. Barosy from AmeriMed continued to keep appellant off
work. He concluded that her injuries are employment related, and that she was undergoing
physical therapy which is helping her. In a November 18, 2013 report, Dr. Gregory F. Saric, a
family practitioner from AmeriMed, noted continuing treatment for appellant, released her from
another four weeks of work and recommended follow up with Dr. Bishai.
By letter dated October 25, 2013, OWCP noted that the evidence was not sufficient to
support appellant’s claims for cranial syndrome; cervicobrachial syndrome and adjustment
disorder with mixed anxiety/depressed mood; cervical sprain with radiculopathy; internal
derangement of right shoulder; internal derangement of left shoulder; and lumbar sprain with
radiculopathy. It gave her the opportunity to submit further information.
In an October 25, 2013 report by Dr. Marianne Cloren, an internist and the physician,
who reviewed appellant’s case on behalf of the employing establishment, contended that
appellant was at maximum medical improvement and no longer needed further musculoskeletal
treatment per her treating surgeon and neurologist, who believed that she would benefit from
cognitive behavioral therapy. She further opined that, based on the FCE and the most recent
information in the record, appellant is able to work at a low physical demand capacity.
Appellant continued to submit duty status reports from AmeriMed indicating that she
should not work.
At the telephonic hearing held on January 8, 2014 appellant testified that when she asked
to go back to work she called and spoke with Bill Hale and told him that she could not drive and
he told her that she needed to send medical information showing this. She stated that she sent
the paperwork and never heard anything back from him. Appellant testified that she had surgery
for disc replacement of C3. She noted that from August 21, 2010 until the date of the hearing
she has always had pain in her neck and shoulder. Appellant stated that, when Dr. Sharfman
began seeing her, he gave her therapy in his office, but he also referred her to an in-office
psychologist with whom she had one visit with, but whom OWCP did not approve further visits.
She noted that Dr. Sharfman indicated in early 2013 that he could not treat her anymore and
referred her to AmeriMed.
Appellant contended that the job offered was the same job she had when she was on light
duty before she stopped working and that the job involved sitting on exit lane for eight hours,
and that she could not sit for eight hours because of a back injury she sustained in 2006 or 2007.
She also noted that she could not turn her head to the left or the right very far and that it was
unsafe for her to drive. Appellant stated that she began driving short distances approximately
two months ago but that her ability to drive depends on what kind of day she is having.

6

Appellant’s counsel argued that there were additional diagnosed conditions, that at the time of
the termination she could not drive, and that termination was harsh when there are so many
injuries many of which have not been accepted. He also contended that appellant did not refuse
employment.
In a February 5, 2014 report, Dr. Bishai noted that he was aware that on August 21, 2010
appellant was lifting heavy items at work when she felt a pop in her neck area as well as her left
shoulder. He noted that she had symptoms from the date of the injury and has had no
intervening accidents or injuries which would explain her continued discomfort other than the
original accident. Dr. Bishai noted that OWCP had only accepted the conditions of temporary
aggravation of cervical spondylosis without myelopathy, sprain of back, thoracic region, sprain
of shoulder and upper arm, and post-traumatic occipital neuralgia. He indicated that, for some
reason, OWCP did not revise the accepted conditions as the medical records show that the
surgery performed and the underlying conditions causing the surgery were directly related to the
accepted employment incident as the mechanism of injury and herniations that were objectively
shown on the magnetic resonance imaging scans are all consistent with that type of injury.
Dr. Bishai concluded that, based upon a full understanding of the several workers’ compensation
accidents sustained by appellant as well as the most recent one, as well as taking a history from
her as to any other potential accidents, it was his opinion that his diagnoses in his August 2013
report are related to her injury with the possible exception of her lumbosacral spine issues which
are related to her previous November 2006 workers’ compensation injury for which she had a
laminectomy and fusion in her lower back. He opined that she still had symptoms that were
disabling. Dr. Bishai noted that, when AmeriMed saw appellant in June 2013, she could not
drive or work in any position, even light duty. He noted that she had difficulty with range of
motion in her cervical area, severe pain in her neck as well as her shoulder, and that she
continued with low back pain which she has had for years. Dr. Bishai also noted that appellant
appeared depressed and needed a workup by a psychiatrist and it was apparent that her current
physical impairments related to the August 21, 2010 accident that contributed to her
psychological condition. He stated that AmeriMed continued her limitations from driving and
working during the next few visits and that he believed that she needed additional therapy in
order to be functional. Dr. Bishai noted that at this point appellant is still unable to work a full
day, but could perhaps work partial days. However, he noted that she has no one to take her to
and from work. Dr. Bishai opined that appellant could work if the employing establishment
could work out an arrangement that allowed her to work half days in a very light-duty capacity
until she can work longer hours. He indicated that referral to a psychiatrist/psychologist was
reasonably necessary and there may be additional limitations once she was evaluated.
In a February 7, 2014 letter, appellant’s counsel rejected the notion that appellant refused
to take the position as she was awaiting a call back from a representative of the employing
establishment. He further noted that her physicians did not believe that she could handle the
position, noting the February 5, 2014 report by Dr. Bishai.
In an April 10, 2014 psychiatric evaluation, Dr. Gary K. Arthur, a Board-certified
psychiatrist, diagnosed appellant with depressive disorder secondary to medical illness and
generalized anxiety disorder with panic attacks. He opined that her depression and anxiety are
directly related to the chronic pain and physical injuries brought on by her on-the-job accident.

7

Dr. Arthur noted that appellant had no prior history of psychiatric problems, had been a steady
worker for over 20 years, and that there were no domestic stressors.
By decision dated April 23, 2014, an OWCP hearing representative affirmed the July 26,
2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3 The
fact that OWCP accepts a claim for a specified period of disability does not shift the burden of
proof to the claimant to show that he or she is still disabled. The burden is on OWCP to
demonstrate an absence of employment-related disability in the period subsequent to the date
when compensation is terminated or modified.4 Pursuant to the Federal (FECA) Procedure
Manual, before terminating benefits, the claims examiner is responsible for advising the claimant
of the proposed termination or reduction, including the reasons for the proposed action, and
provide the claimant an opportunity to respond in writing.5 The Board has held that OWCP must
follow its procedures and provide notice and opportunity to respond prior to the termination of
compensation benefits.6
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”7
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.8 The Board has long held that section
8106(c) will be narrowly construed as it is a serious penalty provision that may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.9

2

Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

J.S., Docket No. 13-1678 (issued April 3, 2014).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.2(b) (February 2013).

6

K.S., Docket No. 11-2021 (issued August 21, 2012).

7

5 U.S.C. § 8106(c).

8

Joyce M. Doll, 53 ECAB 790 (2002).

9

G.M., Docket No. 11-1752 (issued April 24, 2012); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

ANALYSIS
OWCP accepted appellant’s claim for temporary aggravation of cervical spondylosis
without myelopathy and sprain of the thoracic region of the back, shoulder, and upper arm as
well as other unspecified sites. On August 28, 2012 it accepted her claim for the additional
condition of other syndromes affecting the cervical region.
Appellant received treatment from Dr. Masson, who performed surgery on her on
September 6, 2011. In a May 10, 2012 note, Dr. Masson indicated that she could return to her
employment as a baggage screener as long as her work restrictions met her functional capability
examination, which indicated that she was capable of light work. Appellant began treatment
with Dr. Sharfman on August 15, 2012. In an October 22, 2012 report, Dr. Sharfman listed her
work restrictions as carrying, lifting, or pulling limited to 10 pounds.
Based on the limitations listed in Dr. Sharfman’s October 22, 2012 report, the employing
establishment offered appellant a limited-duty job assignment as a modified security officer, with
restrictions of intermittent lifting, carrying, or pulling of not over 10 pounds. The position also
required intermittent sitting, walking, standing, and squatting/kneeling/climbing. However,
appellant refused the employment offer.
Subsequent to the offer by the employing establishment of limited duty, appellant
returned to Dr. Sharfman on December 11, 2012 and informed him that she could not safely
perform her duties, that her neurosurgeon told her not to work, and that she could not drive. In a
December 11, 2013 occupational work status slip, Dr. Sharfman indicated that per patient,
appellant’s neurosurgeon stated that she could not work, and that he would defer her work status
to Dr. Masson. However, as of December 11, 2012, there was no evidence in the record that
appellant’s neurosurgeon instructed appellant that she could not work, and in fact there was
evidence that Dr. Masson stated that she could work with restrictions. In a report dated
December 21, 2012, Dr. Sharfman returned her to the earlier restrictions prohibiting her from
carrying, lifting, and pulling more than 10 pounds. Accordingly, he only stated that appellant
could not work for a period of 10 days, placed her on this restriction based solely on her
statement that her surgeon told her not to work, and resumed the restrictions when it became
evident that there was no evidence that appellant’s neurosurgeon had released her from work.
On February 15, 2013 OWCP noted that appellant had been offered a suitable position
within the restrictions of her treating physician, Dr. Sharfman. It informed her that it found the
position suitable and gave her an opportunity to respond; 30 days as required. Afterward
Dr. Sharfman continued to indicate that appellant was able to work with restrictions of 10 pounds
lifting, carrying, or pulling and indicated in a March 21, 2013 form that she could work in the
position of security officer.
As appellant had not submitted any evidence indicating that she was unable to perform
the offered position, on June 5, 2013 OWCP gave her an additional 15 days to accept the
position and informed her that no further evidence for refusal would be considered.
Appellant began to see various medical professionals at AmeriMed on June 17, 2013, and
these physicians placed greater restrictions on her. Dr. Barosy first examined her and indicated

9

in reports dated from June 17 through November 18, 2013 that she could not work. He also
noted that appellant could not drive in his June 17, 2013 report, but this requirement was
eliminated as of August 14, 2013. In explaining his conclusion, Dr. Barosy noted that her
condition could deteriorate if she continues doing any stressful exercise or physical activities that
require pulling, pushing, or bending. However, the Board has long held that prophylactic work
restrictions do not establish a basis for wage-loss compensation.10 A fear of future injury is not
compensable under FECA.11 Furthermore, when Dr. Bishai noted that when AmeriMed first saw
appellant in June 2013, she could not drive or work in any position, even light duty. This
opinion that appellant could not work or drive was not consistent with the opinion of her treating
physician at that time, Dr. Sharfman. Although Dr. Bishai mentioned her prior physicians in his
August 30, 2013 report, it does not appear that he understood that Dr. Sharfman and Dr. Masson
believed that she could work limited duty. Nor does Dr. Barosy, Dr. Bishai, or Dr. Saric indicate
that they reviewed the limited-duty job offer, a job offer that was based on the restrictions noted
by Dr. Sharfman. The fact that Dr. Bishai, Dr. Barosy, and the physicians at AmeriMed were
unaware of the fact that appellants’ treating physician, Dr. Sharfman, believed that appellant
could work with restrictions, and the fact that she had been offered a position within his
restrictions is especially questionable given that she only began seeing AmeriMed after she
received the letter from OWCP dated June 5, 2013 giving her an additional 15 days to accept the
position. The fact that these physicians did not review the prior physicians reports and the job
offer indicates that they failed to have a proper understanding of appellant’s injury and appeared
to be basing their opinions more on her statements than on her medical history, objective reports,
and tests. Accordingly, the Board finds that the medical evidence submitted by her from the
AmeriMed physicians, including Drs. Barosy and Bishai, does not adequately show that she was
unable to perform the offered job.12
None of the other medical evidence establishes that appellant could not perform the
offered job. Dr. Cloren opined that appellant was able to work in a low physical demand
capacity.
Appellant’s counsel contends that appellant did not refuse the job. This argument is
without merit. In a note received by OWCP on March 18, 2013, appellant stated that she
accepted the job offer stemming from the February 22, 2013 letter and was willing to work with
vocational rehabilitation training to determine what position was best for her given her
limitations and injuries. She also stated that she was unable to drive. Any reasonable reading of
this letter indicates that appellant was not accepting the position. OWCP had determined that,
the position was suitable, there was no medical evidence at that time that she could not drive, and
there was no need for vocational rehabilitation. It determined that appellant could perform the
job and she was simply listing reasons that she did not wish to perform the job. Furthermore, in
a June 25, 2013 letter, Ms. Enevoldsen from the employing establishment noted that appellant
had not contacted the employing establishment about the job offer. At the hearing, appellant
testified that she called Mr. Hale and told him that she could not drive and he told her that she
10

D.N., Docket No. 14-657 (issued June 26, 2014).

11

Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

12

M.W., Docket No. 12-502 (issued January 16, 2013).

10

needed to send medical information. She indicated that she did not hear from him after that.
However, the June 25, 2013 letter clearly indicates that, to accept the position, appellant shall
contact either Ms. Enevoldsen or Ms. Young. Appellant did not do so and did not accept the job
offer.
Appellant’s counsel also argued that OWCP had unjustifiably limited its characterization
of appellant’s work-related condition. Whether appellant’s claim should be accepted for
additional medical conditions is an issue not currently before the Board.13
The Board finds that OWCP properly terminated appellant’s monetary compensation due
to her refusal of suitable work. OWCP followed all established protocols, as explained in detail
above in determining that the offered position was suitable. After it established that the offered
work was suitable, the burden shifted to appellant to show that her refusal was suitable, or
justified.14 Appellant did not establish that her refusal of suitable work after the July 26, 2013
decision was justified. The Board will therefore affirm the April 23, 2014 OWCP decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
under 5 U.S.C. § 8106(c)(2) for refusal of suitable work.

13

J.N., Docket No. 09-1621 (issued July 14, 2010).

14

T.S., Docket No. 13-1046 (issued November 15, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 23, 2014 is affirmed.
Issued: April 29, 2015
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, ALLENWOOD
FEDERAL PRISON CAMP, Montgomery, PA,
Employer
__________________________________________

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

Docket No. 07-711
Issued: June 25, 2007

Case Submitted on the Record

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

JURISDICTION
On January 19, 2007 appellant timely appealed the May 19 and December 22, 2006 merit
decisions of the Office of Workers’ Compensation Programs which accepted a two percent
monaural loss of the left ear, but determined that appellant did not have a ratable hearing loss in
his right ear. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the schedule award.
ISSUE
The issue is whether appellant established that he sustained more than a two percent
monaural hearing loss of the left ear.
FACTUAL HISTORY
On November 2, 2005 appellant, then a 41-year-old maintenance mechanic supervisor,
filed an occupational disease claim for hearing loss caused by noise exposure in the course of his

federal employment. He submitted a narrative statement addressing his exposure to noise in his
federal employment. Audiograms conducted from October 23, 1987 through May 8, 1996 were
also submitted.
In a December 5, 2005 letter, the Office requested additional factual information from
appellant. Appellant responded in a December 21, 2005 letter.
In a March 21, 2006 letter, the Office informed appellant that he had been scheduled for a
second opinion evaluation. A statement of accepted facts was included with the Office’s letter.
Appellant was referred to Dr. Charles Foulsham, Board-certified in otolaryngology. In an
April 21, 2006 report, Dr. Foulsham described the results of his audiologic examination. The
audiogram performed on April 21, 2006 determined that the frequency levels recorded at 500,
1,000, 2,000 and 3,000 hertz (Hz) for the right ear revealed decibel (dB) losses of 25, 20, 15 and
35 respectively and for the left ear revealed dB losses of 20, 15, 20 and 50.
In a May 17, 2006 letter, Dr. Kathy Landao Goodman stated that she reviewed the results
and found 1.875 percent monaural loss in the left ear.
In a May 16, 2006 note, the district medical adviser, Arnold T. Berman, Board-certified
in orthopedic surgery, found that appellant had 0 percent monaural hearing loss in the right ear
and 1.875 percent monaural hearing loss in the left ear.
In a May 19, 2006 decision, the Office accepted appellant’s hearing loss claim and
granted a schedule award for a two percent monaural loss in the left ear.
On June 23, 2006 appellant requested reconsideration. In a June 5, 2006 letter,
Dr. Foulsham opined that appellant had a 10 dB loss or approximately 8 percent reduction in
hearing. In a November 16, 2006 memorandum, Dr. Berman noted that, as a new audiogram
was not performed, there would not be a change to the previous finding of a two percent
monaural hearing loss.
By December 22, 2006 decision, the Office denied modification of the May 19, 2006
decision. It determined that appellant’s hearing loss for the right ear was not severe enough to be
considered ratable. Regarding the left ear, the Office noted no change in the previously
recommended award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
1

The Act provides that for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).

2

standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the losses at each
frequency are added up and averaged.4 Then, the “fence” of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.7
ANALYSIS
In reviewing appellant’s April 21, 2006 audiogram, the frequency levels recorded at 500,
1,000, 2,000 and 3,000 Hz for the right ear reveal dB losses of 25, 20, 15 and 35, respectively,
for a total of 95 dBs. This figure, when divided by 4 results in an average hearing loss of 23.75
dBs. The average loss of 23.75 is reduced by 25 dBs to 0, which represents a 0 percent ratable
monaural hearing loss for the right ear. Therefore, the Office properly found that appellant’s
hearing loss for his right ear was nonratable.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed
dB losses of 20, 15, 20, 50 dBs respectively, for a total of 105 dBs. This figure when divided by
4 results in an average hearing loss of 26.25 dBs. The average loss of 26.25 is reduced by 25
dBs to 1.25, which represents a 1.875 percent ratable monaural hearing loss for the left ear. This
loss was rounded up to two percent, the amount of the schedule award granted for impairment to
appellant’s left ear. The weight of the medical opinion evidence establishes that appellant has no
more than a two percent monaural loss of hearing of his left ear. In making this decision, the
Office medical adviser properly applied the Office’s procedures to the audiograms obtained by
Dr. Foulsham. The additional evidence from Dr. Foulsham is not probative as he did not apply
the formula set out in the A.M.A., Guides in his calculations to rate the percentage of impairment
to appellant’s hearing loss.

2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides at 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

3

CONCLUSION
The Board finds that appellant has no more than a two percent nonmonaural loss of
hearing loss of hearing to his left ear.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 22 and May 19, 2006 be affirmed.
Issued: June 25, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4