United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, BELOIT POST
OFFICE, Beloit WI, Employer
__________________________________________

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Appearances:
Larrissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0678
Issued: January 11, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 7, 2020 appellant, through counsel, filed a timely appeal from an August 19,
2019 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.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted February 10, 2018 employment incident.
FACTUAL HISTORY
On February 10, 2018 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his back when he slipped and fell on ice
while in the performance of duty. He did not stop work.
In a February 10, 2018 medical report, Dr. Tejesh N. Patel, Board-certified in family
practice, reported that appellant injured his back when he slipped and fell on ice. He diagnosed
left low back pain. In a medical note of even date, Dr. Patel released appellant to work on
February 11, 2018 with restrictions for no pulling, pushing, or lifting over 10 pounds. He further
noted that appellant could return to work without restrictions on February 19, 2018.
A lumbosacral spine x-ray read by Dr. George Cherian, Board-certified in diagnostic
radiology, dated February 10, 2018 demonstrated suspected bilateral L5 spondylolysis.
In a February 10, 2018 duty status report (Form CA-17) Dr. Patel diagnosed left low back
pain as a result of a slip and fall on ice and provided work restrictions.
In a February 13, 2018 medical note, Dr. Patel excused appellant from work beginning
February 10, 2018, until further notice.
A February 16, 2018 lumbosacral spine x-ray read by Dr. Philip Budihardjo, an osteopath
Board-certified in diagnostic radiology, again demonstrated suspected bilateral L5 spondylolysis
without associated spondylolisthesis.
In a February 16, 2018 report, Dr. Kenneth L. Klein, Board-certified in physical medicine
and rehabilitation, provided examination findings and diagnosed left lumbar radiculopathy, low
back pain, lumbar herniated nucleus pulposus (HNP), and spondylolysis.3 In a work excuse note
of even date, he indicated that appellant may return to work with restrictions.
A February 27, 2018 lumbar spine magnetic resonance imaging (MRI) scan read by
Dr. Eric Goth, Board-certified in diagnostic radiology, demonstrated L5 spondylolysis and mild
degenerative changes at L5-S1, but no significant canal or foraminal stenosis.
In medical reports dated March 6 and 20, 2018, Dr. Klein reiterated examination findings
and diagnosed left lumbar radiculopathy, low back pain, contusion, lumbar HNP, and

3
The reports of Dr. Klein of record also note that examination was also performed by Brian Mulder, an advanced
practice nurse,

2

spondylolysis. In a series of work excuse notes dated March 6 through April 10, 2018, Dr. Klein
released appellant to work with restrictions.4
In a development letter dated April 18, 2018, OWCP informed appellant of the type of
factual and medical evidence necessary to establish his claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the necessary evidence.
Appellant resubmitted a March 6, 2018 medical report, by Dr. Klein.
Appellant underwent physical therapy treatment on April 24, 2018.
In an April 24, 2018 response to OWCP’s questionnaire, appellant asserted that on
February 10, 2018 he slipped on ice and fell down approximately four stairs, landing on the edge
of the last step on his back. He indicated that he had no similar disability or symptoms before the
February 10, 2018 employment incident.
In a May 4, 2018 medical report, Dr. Klein reported that appellant was doing better and
undergoing physical therapy treatment, which was helping. He reiterated his diagnoses. In a work
excuse note of even date, Dr. Klein again indicated that appellant could return to work with
restrictions.5
By decision dated May 22, 2018, OWCP accepted that the February 10, 2018 employment
incident had occurred, as alleged, but found that the evidence of record did not establish a
diagnosed medical condition in connection to the accepted employment incident and, thus, the
requirements had not been met to establish an injury as defined by FECA.
In a May 18, 2018 medical report, Dr. Klein noted that appellant’s pain worsened since the
last examination and reiterated his diagnoses. In a work excuse note of even date, he again
indicated that appellant may return to work with restrictions. A lumbosacral spine x-ray of even
date revealed no acute findings.
Appellant continued to receive physical therapy treatment through May 29, 2018.
In an August 31, 2018 medical report, Dr. Klein reiterated his diagnoses. In a work excuse
note of even date, he indicated that appellant may return to work without restrictions.
In October 17, 2018 progress notes, Dr. James W. Leonard, Board-certified in physical
medicine and rehabilitation, noted that on February 10, 2018 appellant slipped and fell on ice,
striking his lower back on the edge of steps, while at work. He indicated that appellant underwent
physical therapy without relief. Dr. Leonard conducted a physical examination and reviewed
appellant’s medical history and diagnostic studies, which demonstrated L5 spondylolysis and disc
degeneration at L5-S1. He diagnosed underlying L5 spondylolysis. Dr. Leonard opined that “the
fall at work aggravated this underlying L5 spondylolysis beyond its normal progression.” He
4

On April 14, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for the period March 31
through April 13, 2018.
5

On May 15, 2018 appellant filed a Form CA-7 for the period April 14 through May 7, 2018.

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concluded that appellant’s symptoms were directly due to the accepted February 10, 2018
employment incident.
Appellant continued with physical therapy treatment.
On November 27, 2018 appellant requested reconsideration.
In December 17, 2018 progress notes, Dr. Leonard noted that appellant returned with
persistent pain and noted that his symptoms were not improving. He reported that appellant’s MRI
scan revealed bilateral L5 spondylolysis and minimal spondylolisthesis.
By decision dated February 1, 2019, OWCP modified its May 22, 2018 decision, finding
that the evidence of record was sufficient to establish a diagnosed condition. However, the claim
remained denied, as the evidence of record was insufficient to establish causal relationship
between appellant’s diagnosed condition and the accepted February 10, 2018 employment
incident.
In a March 19, 2019 narrative report, Dr. Leonard indicated that appellant was initially
seen by him on October 17, 2018. He noted that appellant slipped on ice and fell down some steps
on February 10, 2018 while at work. Dr. Leonard indicated that appellant was seen again on
December 17, 2018 with persisting pain and was referred to Dr. Seth K. Williams, a Boardcertified orthopedic surgeon, for surgical consultation. He noted that appellant’s diagnostic studies
demonstrated bilateral L5 spondylolysis with minimal spondylolisthesis at L5-S1. Dr. Leonard
reiterated that prior to his fall on February 10, 2018, appellant experienced no pain. He again
opined that the fall at work aggravated appellant’s underlying L5 spondylolysis beyond its normal
progression. Dr. Leonard concluded, with a reasonable degree of medical certainty, that the
accepted February 10, 2018 employment incident was the direct cause of appellant’s symptoms.
In an April 17, 2019 narrative report, Dr. Williams noted that appellant was evaluated on
March 2, 2019 and was diagnosed with L5 spondylolysis. He further indicated that appellant was
previously evaluated on January 16, 2019 when he referred appellant for L5 pars injections to
confirm L5 spondylolysis as the primary pain generator. Dr. Williams noted that appellant was
highly functional and performing well at his job prior to the accepted February 10, 2018
employment incident. He explained that appellant’s L5 spondylolysis was “likely” preexisting, as
the condition was present in up to five percent of the population and typically occurred during
childhood or adolescence. Dr. Williams further explained that the majority of people with L5
spondylolysis typically are without significant symptoms but, in some cases, they become
symptomatic and require surgery. He opined that appellant was functioning well until his fall,
which produced significant back pain that was persistent despite ongoing efforts with conservative
treatment. Dr. Williams, therefore, concluded, within a reasonable degree of medical certainty,
that the fall itself exacerbated appellant’s preexisting L5 spondylolysis. He recommended surgery.
On May 24, 2019 appellant requested reconsideration.
By decision dated August 19, 2019, OWCP denied modification of its February 1, 2019
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,7 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.11 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.12
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

6

Supra note 2.

7

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
8
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
9

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
11

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
12
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to his accepted February 10, 2018 employment incident.
Dr. Williams, in his April 17, 2019 narrative report, opined with a reasonable degree of
medical certainty that the accepted February 10, 2018 employment incident exacerbated
appellant’s preexisting L5 spondylolysis. He noted that appellant’s diagnosed L5 spondylolysis
was “likely” preexisting, as the condition was present in up to five percent of the population, most
of which lived without any significant symptoms. While Dr. Williams supported causal
relationship, his report does not contain rationale explaining how the accepted employment
incident of slipping on ice and falling on the edge of stairs caused or aggravated appellant’s
preexisting lumbar condition. The Board has held that a medical report is of limited probative
value on a given medical issue if it contains an opinion which is unsupported by medical
rationale.14 Further, the Board has consistently held that complete medical rationalization is
particularly necessary when there is a preexisting condition involving the same body part,15 and
has required medical rationale differentiating between the effects of the work-related injury and
the preexisting condition in such cases.16 Therefore, Dr. Williams’ April 17, 2019 report is
insufficient to establish appellant’s claim.
In October 17, 2018 progress notes and a March 19, 2019 narrative report, Dr. Leonard
noted that appellant experienced no pain prior to the accepted February 10, 2018 employment
incident and therefore he concluded that the incident aggravated appellant’s underlying L5
spondylolysis beyond its normal progression. The Board has held that the mere fact that symptoms
arise during a period of employment or produce symptoms revelatory of an underlying condition
does not establish a causal relationship between a diagnosed condition and employment factors.17
A medical opinion must provide an explanation of how the specific employment incident or
employment factors physiologically caused or aggravated the diagnosed conditions.18 As such,
these notes and report are insufficient to establish appellant’s burden of proof.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).
14

B.M., Docket No. 19-1341 (issued August 12, 2020).

15

Supra note 11.

16

Id.; see also A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued
December 31, 2018); J.B., Docket No. 17-1870 (issued April 11, 2018).
17

A.S., Docket No. 19-1955 (issued April 9, 2020).

18

G.L., Docket No. 18-1057 (issued April 14, 2020).

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In December 17, 2018 progress notes, Dr. Leonard diagnosed bilateral L5 spondylolysis
and minimal spondylolisthesis, but did not offer an opinion as to whether appellant’s employment
incident caused or aggravated his diagnosed conditions. Likewise, Dr. Klein, in his series of
reports, diagnosed left lumbar radiculopathy, low back pain, contusion, lumbar herniated nucleus
pulposus (HNP), and spondylolysis. However, he also did not address whether appellant’s
employment incident caused or aggravated his diagnosed condition. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.19 For this reason, these reports are also
insufficient to establish appellant’s claim.
In a form report and note dated February 10, 2018, Dr. Patel diagnosed left low back pain
and provided work restrictions. The Board has held, however, that pain is a symptom and not a
compensable medical diagnosis.20 These reports are, therefore, insufficient to meet appellant’s
burden of proof.
Dr. Patel excused appellant from work until further notice in his February 13, 2018 note.
However, he did not provide a specific diagnosis of an injury or medical condition or an opinion
on causation. The Board has held that a medical report lacking a firm diagnosis and a rationalized
medical opinion regarding causal relationship is of no probative value.21 As such, Dr. Patel’s
February 13, 2018 note is insufficient to meet appellant’s burden of proof.
Finally, the record contains diagnostic reports dated February 10, 16, 27, and
May 18, 2018. The Board has held, however, that diagnostic test reports standing alone lack
probative value on the issue of causal relationship as they do not provide an opinion on causal
relationship between an employment incident and a diagnosed condition.22 For this reason, these
diagnostic reports are insufficient to meet appellant’s burden of proof.
As there is no rationalized medical evidence of record explaining how appellant’s accepted
February 10, 2018 employment incident caused or aggravated his diagnosed conditions, the Board
finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

19
S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018)..
20

T.S., Docket No. 20-0343 (issued July 15, 2020); J.P., 59 ECAB 178 (2007).

21

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

22

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted February 10, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
D.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Waco, TX, Employer
__________________________________________

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

Docket No. 12-179
Issued: July 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2011 appellant filed a timely appeal from a June 2, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying modification of a wageearning capacity determination.1 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.
ISSUE
The issue is whether appellant has established that the July 11, 1995 wage-earning
capacity decision should be modified.
1

The record also contains a June 3, 2011 decision finding that appellant received a $1,804.86 overpayment of
compensation because it failed to properly deduct life insurance and a June 16, 2011 decision suspending her
compensation for failing to complete a report of earnings. Appellant has not appealed these decisions and thus they
are not before the Board at this time. See 20 C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 1991 appellant, then a 36-year-old food service worker, filed a traumatic
injury claim alleging that she sustained an injury to her right wrist in the performance of duty.3
OWCP accepted the claim for a contusion of the right hand and wrist, left carpal tunnel
syndrome and right forearm joint derangement in the performance of duty.
On January 3, 1995 the employing establishment offered appellant a full-time position as
a clerk in the Blind Rehabilitation Service. The position required light lifting and carrying under
15 pounds, reaching above the shoulders, use of the fingers and repeated bending every 30
minutes.
By decision dated July 11, 1995, OWCP reduced appellant’s compensation after finding
that her actual earnings as a clerk effective February 6, 1995 fairly and reasonably represented
her wage-earning capacity.
By letter dated February 28, 1997, the employing establishment advised OWCP that on
January 5, 1997 appellant voluntarily transferred to another location to work as a file clerk.
In a report dated June 5, 2007, Dr. Joseph Perlman, a Board-certified surgeon, related that
appellant’s right wrist problem had worsened and recommended a total wrist fusion. He stated,
“She is presently not working due to a work-related laryngeal spasm. [Appellant] stated that she
has been off work from December to the present time and does not know when she will be able
to be cleared to return to work.” Dr. Perlman provided work restrictions of lifting, pushing and
pulling no more than two pounds and performing repetitive wrist movements of no more than
one hour per day.
On January 28, 2008 the employing establishment notified appellant that it proposed to
remove her for extended absences. It indicated that she had not reported to work since
December 15, 2006. The employing establishment removed appellant from her information
receptionist position effective February 10, 2008.
In an April 3, 2008 letter, the Office of Personnel Management informed appellant that it
had determined that she was disabled from work due to spastic dysphonia and an impaired wrist.
In a progress report dated May 20, 2008, Dr. Perlman noted that appellant was on
permanent disability as a result of injuries to her right wrist and vocal cords. He diagnosed
“[c]ontinued pain and arthropathy of the right wrist status post work-related injury” and
recommended a fusion.
In a May 20, 2009 report, Dr. Perlman stated, “[Appellant] is presently [on] permanent
disability due to a vocal cord injury. She has also not been able to work because of the problem
3

This case has previously been before the Board. By decision dated May 9, 1994, the Board affirmed a
November 2, 1992 decision suspending appellant’s compensation benefits from October 17 through December 30,
1992 for refusing to undergo a medical examination. Docket No. 93-860 (issued November 2, 1992). In a decision
dated July 22, 1998, the Board affirmed a finding that appellant received an overpayment of $580.38 and that she
was not entitled to waiver. Docket No. 93-860 (issued May 9, 1994).

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with her right wrist. [Appellant] has weakness of grip and cannot perform repetitive functions
for eight hours at a time with the right hand.”
On May 27, 2009 Dr. Perlman related that appellant continued to have right wrist pain
due to her 1991 work injury. He indicated that she was “on permanent disability.”
By letter dated October 24, 2010, appellant requested compensation for disability
beginning February 10, 2008. She alleged that she was unable to work due to her January 29,
1991 employment injury.
In a December 29, 2010 response, OWCP notified appellant of the criteria for modifying
a wage-earning capacity determination. On December 29, 2010 appellant filed a claim for
compensation from February 10, 2008 to the present.
In a February 28, 2011 work restriction evaluation, Dr. Perlman found that appellant
could work full time with restrictions on performing repetitive movements of the wrists up to one
hour of moving no more than two pounds and pushing, pulling, lifting and climbing one hour.
By letter dated February 28, 2011, appellant related that she was not alleging a recurrence
of disability as she had not been released from medical treatment. She maintained that OPM and
the employing establishment found she was unable to work due to her January 29, 1991 injury.
In a decision dated June 2, 2011, OWCP found appellant had not established
modification of the July 11, 1995 wage-earning capacity determination.
On appeal appellant related that she was removed from the employing establishment due
to her work injury. She asserted that the medical evidence from Dr. Perlman supported that she
was unable to work due to a material change in her right wrist and hand condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

4

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5

Sharon C. Clement, 55 ECAB 552 (2004).

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rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
When a formal loss of wage-earning capacity is in place and light duty is withdrawn, the
proper standard of review is not whether appellant sustained a recurrence of disability, but
whether OWCP should modify its decision according to the established criteria for modifying a
formal loss of wage-earning capacity determination.8 OWCP procedures provide that when the
employing establishment has withdrawn a light-duty assignment, which accommodated the
claimant’s work restrictions and a formal wage-earning capacity decision has been issued, the
decision will remain in place, unless one of the three accepted reasons for modification applies.9
ANALYSIS
OWCP accepted that appellant sustained a contusion of the right hand and wrist, right
forearm joint derangement and left carpal tunnel syndrome due to a January 29, 1991
employment injury. On February 6, 1995 appellant accepted a job as a clerk with the employing
establishment. The physical requirements of the position were lifting and carrying less than 15
pounds, reaching above the shoulders and use of the fingers and repeated bending every 30
minutes. In a decision dated July 11, 1995, OWCP reduced appellant’s compensation based on
its findings that her actual earnings beginning February 6, 1995 fairly and reasonably represented
her wage-earning capacity.
Appellant continued to work in the position until January 3, 1997, when she transferred to
another work location and began working as a file clerk. On June 5, 2007 Dr. Perlman noted that
appellant was not working due to an employment-related laryngeal spasm. On February 10,
2008 the employing establishment removed appellant from her position as an information
receptionist as she had not reported for work since December 15, 2006. Appellant requested
compensation for total disability from February 10, 2008 onward, asserting that she was unable
to work as a result of her January 29, 1991 work injury. The relevant issue, consequently, is
whether she has established that the July 11, 1995 wage-earning capacity determination should
be modified. The medical evidence must establish that appellant sustained a material change in
her condition such that she was unable to perform the clerk position held at the time of the
July 11, 1995 wage-earning capacity determination.
The Board finds that the original wage-earning capacity determination was not in error.
OWCP’s wage-earning capacity determination was consistent with section 8115(a) of FECA
which provides that the wage-earning capacity of an employee is determined by actual earnings
if the actual earnings fairly and reasonably represented wage-earning capacity.10 The position
6

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

7

Id.

8

See K.R., Docket No. 09-415 (issued February 24, 2010).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7a(5) (October 2005).

10

See A.P., 58 ECAB 198 (2006).

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was not temporary, make-shift or part time and appellant worked in the position until she
voluntarily relocated.
Appellant asserted that she sustained a material change in the nature and extent of her
January 29, 1991 employment injury. She did not, however, submit evidence containing a
rationalized medical opinion explaining why she was unable to work beginning February 8, 2010
in her position as a clerk due to her January 19, 1991 work injury. On May 20, 2008
Dr. Perlman noted that appellant was on permanent disability due to her right wrist and vocal
cord condition. He diagnosed right wrist arthropathy and pain following a work injury and
recommended a fusion. Dr. Perlman did not specifically find that appellant was unable to
perform her modified employment as a clerk but instead merely noted that she was on permanent
disability due to two different conditions. As he did not address whether her condition materially
changed such that she could not perform the position of clerk, his opinion does not establish a
basis for modifying the wage-earning capacity determination.11
In a May 20, 2009 report, Dr. Perlman opined that appellant was permanently disabled
due to an injury to her vocal cords. He also indicated that she was not able to work because of
her right wrist injury based on her grip weakness and inability to perform repetitive work eight
hours a day. Dr. Perlman did not, however, provide a firm diagnosis of the right wrist condition
or explain how appellant’s accepted work injury caused an increase in disability. A physician’s
opinion on causal relationship between a claimant’s disability and an employment injury is not
conclusive simply because it is rendered by a physician. To be of probative value, the physician
must provide rationale for the opinion reached. Where no such rationale is present, the medical
opinion is of diminished probative value.12
On May 27, 2009 Dr. Perlman discussed appellant’s continued complaints of pain in her
right wrist following a 1991 employment injury. He noted that she was “on permanent
disability.” While Dr. Perlman generally found appellant was disabled, he did not provide a
diagnosis or specifically address whether appellant’s disability due to her January 29, 1991 work
injury increased such that she could no longer work as a clerk; therefore, his report is insufficient
to meet her burden of proof.
In a February 28, 2011 work restriction evaluation, Dr. Perlman found appellant could
work full time with restrictions on performing repetitive movements of the wrists up to one hour
with no more than two pounds and pushing, pulling, lifting and climbing one hour. He did not,
however, offer any opinion to explain how or why her work restrictions changed. Medical
conclusions unsupported by rationale are of diminished probative value.13
On appeal appellant asserted that Dr. Perlman’s opinion was sufficient to show a material
change in her accepted conditions and that the employing establishment removed her because
she could no longer perform the duties of her position. However, as explained, the medical
11

See Elbert Hicks, 55 ECAB 151 (2003).

12

See Thaddeus J. Spevack, 53 ECAB 474 (2002); Jean Culliton, 37 ECAB 728 (1996).

13

Jacqueline L. Oliver, 48 ECAB 232 (1996).

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evidence does not establish that an injury-related condition caused increased disability. As
noted, the burden of proof is on the party attempting to show a modification of the wage-earning
capacity. Appellant has not met any of the criteria for modifying OWCP’s July 11, 1995 wageearning capacity determination.14 She may request modification of the wage-earning capacity
determination, supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that the July 11, 1995 wage-earning
capacity decision should be modified.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 3, 2012
Washington, DC

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

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

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

14

See Elbert Hicks, supra note 11.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Houston, TX, Employer
__________________________________________

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

Docket No. 14-2083
Issued: March 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2014 appellant, through her attorney, filed a timely appeal from a
June 6, 2014 decision of a hearing representative of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s monetary
compensation, effective October 20, 2013, on the grounds that she was no longer disabled from
work due to the accepted bilateral carpal tunnel syndrome.
On appeal appellant’s attorney asserts that the June 6, 2014 decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 6, 2007 appellant, then a 41-year-old transportation security officer, filed an
occupational disease claim alleging that she experienced numbness, tingling, and shooting pain
down her arms following a fall at work. She was terminated by the employing establishment on
June 11, 2007 for violence in the workplace. OWCP accepted that appellant sustained
employment-related bilateral carpal tunnel syndrome, and on September 7, 2007 Dr. Mark H.
Henry, Board-certified in orthopedic and hand surgery, performed left carpal tunnel release.
Appellant was placed on the periodic compensation rolls.2 On December 4, 2007 Dr. Henry
performed right carpal tunnel release. On January 25, 2008 he advised that she could return to
modified duty.
Appellant moved from Houston, Texas, to New Orleans, Louisiana, in April 2008, and
she was referred to vocational rehabilitation. She continued to be treated by Dr. Henry, who
indicated that she had developed bilateral de Quervain’s tenosynovitis. On January 16, 2009
Dr. Henry performed authorized left de Quervain’s release. On February 10, 2009 he indicated
that appellant could return to modified duty. In an April 28, 2009 report, Dr. Dan K. Eidman, a
Board-certified orthopedist, advised that appellant had multiple symptoms including neck and
lower back, in addition to pain in both hands. He advised that she was unable to work. On
May 29, 2009 Dr. Henry advised that appellant had no current restriction but could require future
treatment for right de Quervain’s tenosynovitis.
The employing establishment indicated that it would not reemploy appellant because she
had been terminated for cause. On June 9, 2009 OWCP proposed to terminate appellant’s wageloss compensation based on Dr. Henry’s May 29, 2009 report in which he indicated that she had
no continuing disability due to the accepted condition. Appellant did not respond, and by
decision dated July 16, 2009, OWCP finalized the termination of monetary compensation,
effective August 2, 2009.
Appellant timely requested a hearing, and submitted additional medical evidence. This
included a February 4, 2009 report in which Dr. Robert W. Sickler, Board-certified in
anesthesiology and pain medicine, noted her complaint of left hand pain. He diagnosed complex
regional pain syndrome of the left upper extremity. In reports dated March 9 to July 27, 2009,
Dr. Eidman described appellant’s neck, back, and upper extremity complaints. His diagnoses
included de Quervain’s of the right wrist, and he advised that appellant could not work. In an
August 2, 2009 report, Dr. J. Robert Barnes, a Board-certified psychiatrist, noted treating
appellant since January 30, 2009 for major depression, panic disorder with agoraphobia, and
post-traumatic stress disorder caused by sexual harassment at the employing establishment, and
that she also reported petit mal seizures. He recommended referral to a neurologist to assess the
seizures and continued psychiatric treatment. In an August 24, 2009 report, Linda K. Nelson, a

2

The instant claim was adjudicated under file number xxxxxx480. The record indicates that appellant has a
separate claim, adjudicated by OWCP under file number xxxxxx554. File number xxxxxx554 claim was initially
denied by OWCP. In an order dated December 27, 2007, the Board remanded the case to OWCP to consider
additional medical evidence timely submitted by appellant. The claim was thereafter accepted for major depression,
single episode and expanded to include brachial and thoracic or lumbar neuritis or radiculitis.

2

social worker, noted treating appellant since August 25, 2008. In an August 30, 2009 report,
Dr. John W. Bick, a psychiatrist, indicated that appellant needed ongoing psychiatric treatment.
At the hearing, held on December 8, 2009, appellant testified that she continued to have
physical therapy on her right hand and that Dr. Eidman, who also treated her upper extremity
condition, advised her not to work. In a December 1, 2009 treatment note, Dr. Eidman described
appellant’s back condition and advised that she could not work. In a January 4, 2010 report,
Dr. Eric R. George, Board-certified in plastic and hand surgery, noted appellant’s employment
and medical history. He described complaints of recurrent numbness, tingling, and swelling in
her hands and provided examination findings. Dr. George recommended electrodiagnostic
testing. A January 18, 2010 upper extremity electrodiagnostic study demonstrated moderate
recurrent bilateral carpal tunnel syndrome. On January 28, 2010 Dr. George noted the study
findings and recommended repeat decompressive surgery. On February 23, 2010 he performed
right wrist surgery.
By decision dated February 24, 2010, an OWCP hearing representative reversed the
July 16, 2009 OWCP decision. She noted that appellant had additional accepted conditions, and
OWCP should have determined whether appellant’s additional conditions impacted her ability to
work. The hearing representative also noted that OWCP had authorized surgery recommended
by Dr. George. OWCP reinstated appellant’s wage-loss compensation, effective August 2, 2009.
In reports dated March 31 to June 24, 2010, Dr. George described appellant’s
postoperative care. On January 27, 2011 he reported that she was symptom free on the right.
Dr. George performed left wrist surgery on April 19, 2011. In a June 8, 2011 report, he noted
that appellant had completed physical therapy and reported and she was recently in a motor
vehicle accident and had contused her palm. Dr. George indicated that she was at maximum
medical recovery and released her to full, unrestricted activity. On September 28, 2011 he
reported appellant’s complaint of thumb pain and reiterated that she could perform full work.3
Appellant also submitted unsigned treatment notes dated December 12, 2011 and
January 12, 2012.
By decision dated February 14, 2013, OWCP terminated appellant’s wage-loss
compensation, based on the June 8 and September 28, 2011 reports of Dr. George who opined
that she had no restrictions with regard to the accepted upper extremity conditions. Appellant
timely requested a hearing, and submitted evidence previously of record. A January 22, 2013
magnetic resonance imaging (MRI) scan study of the lumbar spine demonstrated protrusions at
the L3-4 and L4-5 levels, minimal L4-5 stenosis, and mild multiple level lumbar facet arthrosis.
A cervical spine MRI scan study that day demonstrated protrusions at C2 through C7 levels and
multiple level facet arthrosis and spondylosis. In a March 15, 2013 report, Dr. George indicated
that he had reevaluated appellant. He stated that when he indicated that she was at maximum
medical recovery on June 8, 2011, it was only with regard to her hands and not to other
conditions including her neck and back, for which he did not treat her. Dr. George indicated
that, at present, appellant was a maximum medical recovery with regard to her hands and
released her to full duty. In an April 7, 2013 report, Dr. Bick indicated that he continued to see
3

Appellant’s compensation was suspended effective February 12, 2012 for failure to submit a completed OWCP
EN1032 form. She submitted the requested forms, and her compensation was reinstated.

3

appellant for psychiatric medication management and that she continued weekly psychotherapy
with a social worker and had been making gradual progress. An April 11, 2013 electrodiagnostic
study demonstrated mild recurrent bilateral carpal tunnel syndrome, right greater than left. On
April 27, 2013 Dr. George indicated that he saw appellant that day and that the studies showed,
at most, a mild slowing of the carpal tunnel. He noted appellant’s complaints of problems in her
arms, hands, neck, and back. Dr. George indicated that she refused a cortisone injection and that
he gave her bilateral braces to wear at night.
In a June 21, 2013 decision, an OWCP hearing representative reversed the February 14,
2013 decision because OWCP did not provide a pretermination notice. Her wage-loss
compensation was reinstated, effective February 14, 2013. On July 8, 2013 OWCP proposed to
terminate appellant’s wage-loss compensation, based on Dr. George’s March 15, 2013 report.
Appellant’s counsel disagreed with the proposed termination, arguing that appellant’s neck and
back injury, and her mental health problems, had not been considered.4 By decision dated
October 1, 2013, OWCP finalized the termination of monetary compensation, effective
October 20, 2013.
Appellant, through counsel, timely requested a hearing and resubmitted Dr. George’s
April 27, 2013 report.5 At the hearing, held on March 20, 2014, he argued that all accepted
conditions, including those in the file number xxxxxx554 claim, should have been considered
before terminating appellant’s wage-loss compensation. Appellant testified that she was on
social security disability and not working and that she could not return to her prior employment
due to back and neck conditions and that she continued to have psychotherapy with Ms. Nelson
two times a week. She stated that her carpal tunnel syndrome had returned but no treatment had
been recommended. The hearing representative noted that she had not filed a claim for
compensation in the file number xxxxxx554 claim. The record was left open for 30 days.
In a June 6, 2014 decision, an OWCP hearing representative affirmed the October 1,
2013 decision, finding that OWCP properly terminated appellant’s wage-loss compensation for
the accepted bilateral carpal tunnel syndrome condition. She found that the weight of the
medical evidence rested with Dr. George who opined that, as far as the diagnosed carpal tunnel
syndrome was concerned, appellant could return to regular work. The hearing representative
noted that appellant’s entitlement to benefits for the additional accepted conditions should be
addressed through file number xxxxxx554 claim.6
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
4

There is no authorization for this attorney in the record before the Board. On September 3, 2013 appellant
signed a representation form with her current attorney.
5

The newly submitted April 27, 2013 report indicated that it was an “amended report.” A comparison of that
submitted on May 10, 2013 and that submitted on October 31, 2013 shows that they are identical.
6

Supra note 2.

4

without establishing that the disability ceased or that it was no longer related to the employment.7
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.8
Under FECA the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.9
ANALYSIS
The issue in this case, adjudicated under file number xxxxxx480, is whether OWCP
properly terminated appellant’s wage-loss compensation effective October 20, 2013, for the
accepted bilateral carpal tunnel syndrome. Appellant was placed on the periodic compensation
rolls under this case in 2007. She has additional conditions accepted under file number
xxxxxx554.10
Dr. Henry, an attending hand surgeon, performed a right carpal tunnel release on
December 4, 2007 and a left release on December 4, 2008. On February 23, 2010 Dr. George,
also an attending hand surgeon, performed a second decompressive procedure on the right and a
second procedure on the left on April 19, 2011. On June 8, 2011 he indicated that appellant had
made a maximum recovery and released her to full unrestricted activity. Dr. George repeated
that she could perform full work on September 28, 2011. In a March 15, 2013 report, he advised
that appellant was at maximum medical recovery on June 8, 2011 with regard to her hands only
and not to other conditions including her neck and back, noting that he did not treat her for these
conditions. Dr. George again advised that she could return to full duty. On April 27, 2013 he
noted seeing appellant that day. Dr. George indicated that April 11, 2013 electrodiagnostic
studies showed, at most, a mild slowing of the carpal tunnel and that appellant reported
complaints of problems in her arms, hands, neck, and back. He indicated that she refused a
cortisone injection and that he gave her bilateral braces to wear at night.
The Board finds that the weight of the medical evidence, as characterized by
Dr. George’s opinion, established that appellant was no longer disabled from work due to the
accept bilateral carpal tunnel syndrome. Although appellant submitted additional medical
evidence regarding conditions accepted under file number xxxxxx554, that evidence is not
relevant to the diagnosed carpal tunnel syndrome. There is no additional medical evidence
probative on the issue of whether she was disabled due to the accepted bilateral carpal tunnel

7

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

8

Id.

9

Cheryl L. Decavitch, 50 ECAB 397 (1999); 20 C.F.R. § 10.5(f).

10

Supra note 2.

5

syndrome on October 20, 2013. OWCP, therefore, met its burden of proof to terminate
appellant’s wage-loss compensation effective that day.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation due to the accepted bilateral carpal tunnel syndrome effective October 20, 2013.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

11

The Board notes that appellant can file a claim for compensation under file number xxxxxx554.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1656
Issued: January 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 8, 2011 appellant, through his attorney, filed a timely appeal from a January 5,
2011 Office of Workers’ Compensation Programs’ (OWCP) decision denying his request for
reconsideration of the merits of his claim. As more than 180 days has elapsed from the date of
the last merit decision of December 23, 2009 to the filing date of the current appeal on July 8,
2011, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board only has jurisdiction over the nonmerit decision.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 5, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant’s attorney contends that OWCP improperly denied reopening
appellant’s claim for merit review as he submitted a statement of history of injury and
employment factors and a report of causal relationship by Dr. Randy Marrinan, a physician
Board-certified in physical medicine and rehabilitation, which constituted relevant and pertinent
new evidence.
FACTUAL HISTORY
On September 24, 2009 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained neck and back conditions due to factors of
his federal employment, including loading and unloading heavy postcons up a ramp onto a truck.
He submitted an undated treatment note with an illegible signature from an emergency room.
Appellant also submitted two prescription notes dated September 21, 2009 by Dr. Rosendito S.
Largoza, the emergency medicine physician, indicating back pain due to activity at work and
diagnosing right spinal stenosis and left lumbar radiculopathy.
By letter dated October 5, 2009, OWCP requested additional factual and medical
evidence from appellant and allotted 30 days for submission.
By decision dated December 23, 2009, OWCP denied appellant’s claim on the basis that
the evidence submitted was not sufficient to establish fact of injury or causal relationship.
On December 27, 2010 appellant, through his attorney, requested reconsideration and
submitted additional evidence.
In a September 25, 2009 report by Dr. Paresh Rijsinghani, a Board-certified radiologist,
diagnosed L4-5 broad-based disc bulge effacing the anterior thecal sac contributing to mild
central canal and bilateral neural foraminal encroachment. In a November 9, 2009 report, he
diagnosed C3-4 broad-based disc bulge mildly effacing the anterior thecal sac, C4-5 focal central
disc herniation of the protrusion-type contributing to mild central canal stenosis, C5-6 right
paracentral/foraminal disc herniation of the protrusion-type contributing to mild central canal
and mild-to-moderate right neural foraminal stenosis and C6-7 disc bulge.
On February 12, 2010 Dr. Marrinan diagnosed cervical spondylosis without myelopathy,
displacement of cervical intervertebral disc, degeneration of lumbar and thoracic or lumbosacral
neuritis or radiculitis. He indicated that appellant had been experiencing cervical pain, left leg
pain and left leg numbness since September 2009 while at work where his duties included lifting
and pushing heavy objects.
By decision dated January 5, 2011, OWCP denied appellant’s request for reconsideration
of the merits finding that he did not submit new relevant and pertinent new evidence, did not
show that OWCP erroneously applied or interpreted a point of law, nor advanced a point of law
or a fact not previously considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
2

an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
In support of his December 27, 2010 reconsideration request, appellant submitted a
February 12, 2010 report by Dr. Marrinan diagnosing cervical spondylosis without myelopathy,
displacement of cervical intervertebral disc, degeneration of lumbar and thoracic or lumbosacral
neuritis or radiculitis. While Dr. Marrinan indicated that appellant had been experiencing
symptoms since September 2009 while at work and mentioned that his duties included lifting and
pushing heavy objects, he did not address whether appellant’s neck and back conditions were
causally related to those employment factors. Thus, the Board finds that the report does not
constitute relevant and pertinent new evidence. Therefore, it is not sufficient to require OWCP
to reopen the claim for consideration of the merits.
3

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.608(b).

8

See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

Similarly, Dr. Rijsinghani provided firm diagnoses on x-ray examination. However, due
to the diagnostic nature of these reports, he did not address causal relationship. As such, the
Board finds that submission of Dr. Rijsinghani’s reports did not require reopening appellant’s
case for merit review.
On appeal appellant’s attorney contends that OWCP improperly denied reopening
appellant’s claim for merit review as he submitted a statement of history of injury and
employment factors and a report of causal relationship by Dr. Marrinan which constituted
relevant and pertinent new evidence. For the reasons stated above, the Board finds the attorney’s
arguments are not substantiated.
CONCLUSION
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP, or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen appellant’s claim for further consideration of the merits of his claim
under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEBRASKA WESTERN IOWA HEALTH
CARE SYSTEM, Grand Island, NE, Employer
__________________________________________

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

Docket No. 07-1240
Issued: September 26, 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 April 4, 2007 appellant filed a timely appeal from a February 21, 2007 decision of the
Office of Workers’ Compensation Programs that denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On November 3, 2006 appellant, then 57-year-old practical nurse, filed an occupational
disease claim alleging that she developed nerve damage in her upper thoracic and neck region in
the performance of duty. She first became aware of her condition and first connected it to her
employment on May 7, 2005, the same date on which she injured her thoracic and lumbar

regions.1 Appellant stated that, when she presented to her doctor on May 12, 2005, the first thing
she complained of was neck pain. She explained that she did not include neck pain in her
previous claims because she was confused due to anti-depressants, muscle relaxers and narcotic
pain medications. Appellant stopped work on May 10, 2005 and returned on May 14, 2005.
After a new injury on August 16, 2005 she eventually returned to work, but stopped again by
October 1, 2005.
Appellant explained that she strained her upper neck and back on May 7, 2005, while
dressing a patient in bed. She reiterated that she informed her doctor of her neck pain on
May 12, 2005. Appellant explained that when she filled out her initial claim form after the
May 7, 2005 injury, she reported only her back injury: “I did not specifically state my neck was
traumatized as well. But it is all connected. It is perfectly normal for my neck to be involved.”
On December 19, 2006 the Office requested additional information concerning
appellant’s occupational disease claim.
Appellant provided an undated statement that was received on January 16, 2007. She
explained that she injured both her back and neck on May 7 and August 16, 2005 and also during
physical therapy and work hardening on November 7, 2005 that was ordered by her physician.
Appellant stated that her condition was aggravated by a number of factors, including her physical
therapy session, the requirement that she perform tasks for which she was not trained and her
supervisors’ failure to respect her work restrictions following August 16, 2005. She also
submitted an undated statement on January 24, 2007. Appellant contended that her neck
condition was caused or aggravated by her job duties, including walking on tile-covered concrete
floors for extended periods of time, pulling, pushing, turning and repositioning both bedridden
patients and heavy equipment in order to provide various services, physically assisting patients
with their showers, using a “Hoyer Lift,” moving patients’ belongings and furniture and
transferring patients from beds to wheelchairs. She was engaged in transferring a patient from a
bed to a wheelchair on August 16, 2005, when the patient began to fall. Appellant injured her
neck and back in her attempt to prevent him from falling. After she reported her injury to her
supervisor and sought medical attention, she was verbally harassed and required to perform tasks
outside her physical restrictions. Appellant believed her condition was aggravated when she was
required to perform work beyond the physical restrictions recommended by her doctor.
In a January 24, 2007 report, Dr. Anne K. Morse, a Board-certified internist, explained
that an October 4, 2005 magnetic resonance imaging (MRI) scan revealed evidence of
degenerative changes at the L1-2 level with mild central stenosis and moderate foraminal
narrowing. She noted appellant’s history of back injury and treatment with other physicians2
which indicated that appellant did complain of neck pain and which one physician attributed to
traction performed during physical therapy. Dr. Morse offered appellant treatment with epidural
steroid injections, which was refused. Appellant also declined an offer of light duty with the
1

The record reflects that appellant filed two other claims concerning her thoracic and lumbar injuries. The claims
were assigned Office file numbers 112030908 and 112029594. These files are not before the Board in the present
appeal.
2

Appellant did not submit reports from the physicians referenced by Dr. Morse.

2

employing establishment. Dr. Morse noted that appellant’s spinal stenosis and degenerative disc
disease were preexisting conditions. She stated that “the natural history of spinal stenosis is that
over time the disease progresses. The same is true of her degenerative disc disease. This is true
whether one is sedentary or in a position of walking and lifting.” Dr. Morse noted that
appellant’s described job duties, including lifting patients and using a Hoyer Lift, probably
aggravated her degenerative disc disease and spinal stenosis but opined that appellant could work
in a sedentary or light-duty position.
By decision dated February 21, 2007, the Office denied appellant’s occupational disease
claim on the grounds that the evidence did not establish that the claimed events occurred as
alleged and that the medical evidence did not include a diagnosis that could be connected to the
claimed events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 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 disabilities and/or specific
conditions 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 upon a traumatic injury or an occupational disease.5
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.6 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”7
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

7

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 5.

3

established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.8 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.9 An employee
has not met his or her burden of proof of 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.10
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.11 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative force and will
stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
developed an occupational disease in the performance of duty. Appellant’s explanation of the
circumstances of her alleged conditions cast significant doubt on the validity of her claim.
Initially, she attributed her claimed occupational disease to dressing a patient on May 7, 2005. In
her subsequent undated statement describing the circumstances of her alleged injuries and the job
duties she believed contributed to her claim, appellant stated that she injured both her neck and
her back on May 7 and August 16, 2005 and while undergoing physical therapy on
November 7, 2005. However, appellant acknowledged that she did not report her claimed neck
injury before November 3, 2006, despite having earlier completed claim forms for a back injury
contemporaneous with the alleged May 7, 2005 events.13 Despite allegedly sustaining multiple
neck injuries in May and August 2005, she delayed filing a claim for a neck condition until
November 3, 2006. Appellant attributed her delay to confusion caused by taking antidepressants, muscle relaxers and narcotic pain medications. However, the Board notes that
appellant was apparently able to file claims for her back injuries during the time that she states
she was unable to properly file a claim for her neck condition. This fact calls into question
appellant’s explanation of why she delayed filing a claim for her alleged neck condition.
Although her statement that she developed a neck condition in the performance of duty carries
8

See Louise F. Garnett, 47 ECAB 639 (1996).

9

See Gene A. McCracken, 46 ECAB 593 (1995).

10

See Louise F. Garnett, supra note 8.

11

Linda S. Christian, 46 ECAB 598 (1995).

12

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

13

Furthermore, appellant’s initial description of the cause of her claimed injury, dressing a patient on May 7,
2005, appears to be consistent with a claim for traumatic injury, not an occupational disease, as it appears that the
incident occurred within one work shift. Compare 20 C.F.R. § 10.5(ee) (defines the term “traumatic injury”) with
20 C.F.R. § 10.5(q) (defines the term “occupational disease”).

4

significant probative weight, circumstances such as late notification of injury and lack of
confirmation of injury, as here, raise serious doubts concerning the validity of appellant’s
claim.14 The Board therefore finds that appellant’s delay in filing her claim, in view of her more
contemporaneous filing of other claims and cast doubt on appellant’s explanation concerning her
delay in filing and raise serious doubts concerning the validity of her claim.
The Board also notes that the medical evidence does not support a causal relationship
between appellant’s claimed neck condition and factors of her employment. Appellant stated
that she sought treatment shortly thereafter and presented to her doctor on May 12, 2005 with
complaints of neck and back pain; in fact, she states that neck pain was the very first thing she
complained of. However, no report appears in the record to document that appellant indeed
informed her doctor on May 12, 2005 that she incurred neck pain in the performance of duty.
Dr. Morse stated, in her January 24, 2007 report, that appellant did complain of neck pain but her
doctor attributed her complaints to traction performed during physical therapy. Appellant
provided an undated statement describing some of the factors that she believed contributed to her
claimed condition, including physically lifting patients and using a Hoyer Lift, working outside
her recommended restrictions at her supervisors’ orders, and a nonemployment incident in
physical therapy, which Dr. Morse, in her January 24, 2007 report, indicated might have
aggravated appellant’s condition.15 However, Dr. Morse did not diagnose a neck condition. She
stated that appellant had degenerative disc disease with mild spinal stenosis and foraminal
narrowing of the lumbar region, but did not identify any specific condition affecting appellant’s
neck. The Board also notes that Dr. Morse provided an equivocal opinion concerning causal
relationship; she stated that appellant’s degenerative disc disease and mild spinal stenosis were
preexisting conditions and that appellant’s back and neck conditions would have deteriorated
regardless of her activity level. The Board has previously held that a medical opinion which is
speculative or equivocal in nature is of limited probative value on the issue of causal
relationship.16 Accordingly, the Board finds that Dr. Morse did not provide sufficient rationale
or support for appellant’s claim that her alleged neck condition was caused or aggravated by her
employment factors.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
developed an occupational disease in the performance of duty.17

14

See supra notes 11, 12.

15

Any matters pertaining to an injury claimed to have occurred during physical therapy authorized by the Office
to treat an injury in a separate claim should be pursued under that separate claim. As noted, other claims are not
before the Board on the present appeal.
16

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
17

The Board also notes that appeal No. 07-1239, which also pertains to appellant, is presently pending before the
Board. Appeal No. 07-1239 will proceed to adjudication separately from the present appeal.

5

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1492
Issued: January 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 12, 2016 appellant filed a timely appeal from a January 14, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective February 8, 2016 for refusal of suitable work under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On November 15, 2013 appellant, then a 69-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging right shoulder and right ankle injuries as a result of his
federal employment. On the claim form he asserted that he had been on a walking route for 17
1

5 U.S.C. § 8101 et seq.

years as a letter carrier, and he was also constantly standing, climbing, lifting, and delivering
mail. The reverse of the form indicated that appellant stopped work on July 23, 2013. In a
December 16, 2013 letter, the employing establishment indicated that appellant had not been
performing a walking route for the prior two years. Appellant filed claims for compensation
(Form CA-7) commencing December 21, 2013.
Appellant submitted a December 2, 2013 report from Dr. Helo Chen, an osteopathic
physician specializing in occupational medicine, who provided a history and results on
examination. Dr. Chen diagnosed right shoulder internal derangement, rotator cuff syndrome,
and right ankle internal derangement and enthesopathy. He opined the conditions were causally
related to appellant’s employment as a letter carrier.
On January 27, 2014 OWCP accepted right shoulder disorder of bursae and tendons, right
shoulder articular cartilage disorder, right ankle enthesopathy, and right ankle articular cartilage
disorder. Appellant began receiving compensation for wage loss as of December 21, 2013.
Appellant underwent right shoulder arthroscopic surgery on May 20, 2014. In a report of
that date, Dr. Gordon Marshall, a Board-certified orthopedic surgeon, described the procedure
and provided a postoperative diagnosis of right rotator cuff tear, right acromioclavicular joint
arthritis, right shoulder impingement syndrome, and probable degenerative tear of the right
shoulder labrum.
In a report dated June 10, 2014, Dr. Chen indicated that appellant was using his left arm
for daily activities following the surgery. He noted that a magnetic resonance imaging (MRI)
scan of the right ankle, dated September 16, 2013, showed extensive bimalleolar soft tissue
edema along with extensive dorsal foot edema, mild sinus tarsi inflammation, tendinopathy and
tenosynovitis of the peroneus brevis and bogus, and intact collateral ligaments.
Dr. Marshall submitted a July 11, 2014 report indicating that appellant was slowly
healing from the shoulder surgery but remained disabled. He provided results on examination
and indicated that appellant should begin exercising the shoulder, and if he was not a lot better in
four weeks regarding shoulder motion, he would begin physical therapy. In a report dated
July 30, 2014, Dr. Chen reported that appellant had developed adhesive capsulitis in the right
shoulder. He indicated that appellant had decreased range of motion and Dr. Chen prescribed a
shoulder flexionator device in conjunction with rehabilitative therapy. In a report dated
August 8, 2014, Dr. Marshall reported that appellant should continue with abduction exercises,
but should wait until four months after surgery to work on strength. Dr. Marshall reported lifting
restrictions of five pounds and no repetitive activity. The diagnoses included bilateral ankle
pain.
In a report dated September 26, 2014, Dr. Marshall reported that appellant had been
taking pain medicine and been unable to return to work. He provided results on examination,
and with respect to the lower extremities, reported significant swelling in both legs, with
tenderness over the calf and ankle. Dr. Marshall diagnosed right shoulder pain, right shoulder
impingement syndrome and rotator cuff tear (traumatic), right shoulder joint derangement, and
bilateral ankle pain. He recommended that appellant “not return to doing his mail routes as of
yet.”

2

Dr. Marshall completed a state workers’ compensation work status report dated
September 26, 2014. On the form he indicated that appellant had restrictions with respect to the
right shoulder. Dr. Marshall checked a box on a form report indicating no overhead reaching and
indicated that appellant had a five-pound lifting restriction. Other restrictions noted were no
repetitive motion with the right shoulder.
By report dated October 6, 2014, Dr. Chen provided results on examination, noting that
appellant had a slightly antalgic gait and was unable to make a fist with the right hand. He
indicated that appellant should continue physical therapy.
The record contains a job offer dated October 8, 2014 for a modified letter carrier
position. The job offer indicated that the position required no lifting over five pounds with the
right shoulder, up to two hours casing mail, and six hours of mail delivery with the left hand.
The second page of the job offer indicated that there would be no repetitive motion of the right
shoulder, no lifting over five pounds, no overhead reaching, and casing of mail with the left
hand. The employing establishment issued an October 9, 2014 letter to appellant, describing the
job offer as in accord with Dr. Marshall’s September 26, 2014 work restrictions.
In a letter dated October 9, 2014, Dr. Chen wrote that appellant was being treated for
right foot, right ankle, and right shoulder conditions. He asserted that the work status
information provided by the orthopedic surgeon was incorrect, and he should be the physician
providing work restrictions.
Dr. Marshall submitted an October 15, 2014 report, relating that appellant had been
receiving physical therapy and been unable to return to work. He provided results on
examination and indicated that revised work restrictions had been provided for the right shoulder
only. Dr. Marshall explained that he was treating appellant only for the right shoulder and the
work restrictions were based only on the right shoulder. He noted that appellant had complained
of ankle and knee pain while standing. Dr. Marshall indicated that he would not provide work
restrictions for the lower extremities because he was not treating those symptoms. As to work
restrictions for the shoulder, he completed a Form CA-17 dated October 15, 2014 and indicated
that appellant had a three-pound lifting restriction for the right arm. Dr. Marshall indicated that
appellant was limited to two hours sitting, six hours standing and walking, and five hours of
climbing, kneeling, bending, stooping, and twisting.
By letter dated October 30, 2014, OWCP advised appellant that it found the job offer
from the employing establishment to be suitable. Appellant was notified of the provisions of 5
U.S.C. § 8106(c)(2), and indicated the case record would be held open for 30 days.
On November 3, 2014 appellant submitted a duty status report (Form CA-17) dated
October 21, 2014 from Dr. Chen. Dr. Chen indicated that appellant was totally disabled for
work. In narrative reports dated November 5 and 19, 2014, he provided results on examination
and indicated that appellant should continue physical therapy.
By letter dated December 4, 2014, OWCP advised appellant that he had not provided a
valid reason for refusing suitable work. It indicated that he had 15 days to accept the position or
his compensation would be terminated.

3

In a report dated December 12, 2014, Dr. Marshall indicated that appellant felt his right
shoulder was becoming stronger. He indicated an impairment rating should be ordered as
appellant had reached maximum medical improvement. By report dated December 29, 2014,
Dr. Chen provided results on examination and reported that appellant continued to have
functional deficits with right shoulder motion and strength that prohibited performing job duties
to full capacity.
Appellant submitted a letter dated January 22, 20152 in which he related that he had
retired on November 28, 2014. He requested that his compensation be terminated effective that
date.
By decision dated January 29, 2015, OWCP found that appellant had refused suitable
work. It determined appellant’s compensation for wage loss was terminated effective
February 8, 2015 pursuant to 5 U.S.C. § 8106(c)(2).
On February 23, 2015 appellant requested an oral hearing before an OWCP hearing
representative. He submitted a March 17, 2015 report from Dr. Thomas Martens, an osteopathic
physician. Dr. Martens wrote that appellant had not been released to duty in October 2014, and
had not been released to accept the job offer. Appellant submitted additional reports from
Dr. Chen providing results on examination and recommending continuing physical therapy.
A telephonic hearing was held on November 4, 2015. Appellant argued that casing mail
cannot be performed without working overhead, and the job could not be performed with one
hand. He also noted that Dr. Marshall had reduced the lifting from five pounds to three pounds.
By decision dated January 14, 2016, the hearing representative affirmed the January 29,
2015 OWCP decision. She found the evidence supported a finding that the job offer was
suitable.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) 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.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.3 To justify such a termination, OWCP
must show that the work offered was suitable.4 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.5

2

The letter was apparently misdated January 22, 2014.

3

Henry P. Gilmore, 46 ECAB 709 (1995).

4

John E. Lemker, 45 ECAB 258 (1993).

5

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

4

ANALYSIS
As the legal precedent indicates, it is OWCP that has the burden of proof to establish that
the offered position was medically suitable. The Board has reviewed the medical evidence and
finds it is insufficient to meet OWCP’s burden of proof in this case.
The offered position of modified letter carrier, dated October 8, 2014, purports to be in
accord with Dr. Marshall’s September 26, 2014 report. The job offer did describe restrictions
that were proposed by Dr. Marshall in that report, but in this regard there are two issues that
OWCP failed to properly address. The first issue is that there was additional medical evidence
received by OWCP, including subsequent reports from Dr. Marshall. In the October 15, 2014
Form CA-17, Dr. Marshall revised his work restrictions and indicated that appellant had a threepound lifting restriction. OWCP did not acknowledge this report in its decisions or explain why
the offered position complied with these work restrictions. In addition, Dr. Chen provided a
Form CA-17 dated October 21, 2014 indicating that appellant was totally disabled. OWCP did
not address this evidence in its decisions. When a claimant submits additional medical evidence
after the job offer is made, OWCP must consider the evidence in determining medical
suitability.6
The second issue raised by the medical evidence was whether appellant had restrictions
related to the lower extremity. It is well established that OWCP must consider all accepted
conditions in evaluating the suitability of an offered position.7 The hearing representative found
there was no evidence that there were work restrictions based on the ankles or feet.
Dr. Marshall, in his September 26, 2014 report, notes significant swelling in both legs, with
tenderness over the calves and ankles. He also specifically reported in his October 15, 2014
report that he was not addressing any restrictions for the lower extremities because he was
treating only the right shoulder.
The Board has held that, for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could
perform the offered position.8 As a penalty provision, section 8106(c)(2) must be narrowly
construed.9 In this case the medical evidence was not clear on the issue. OWCP did not secure a
medical report that reviewed the job offer and provided a reasoned opinion as to its suitability for
appellant, considering all work-related conditions.10
It is OWCP’s burden of proof to establish the offered position of modified letter carrier
was medically suitable. The Board finds OWCP did not meet its burden of proof in this case.
6

See, e.g., S.R., Docket No. 10-1154 (issued December 8, 2010); D.H., Docket No. 09-0381 (issued November 3,
2009); L.N., Docket No. 06-0694 (issued May 2, 2007).
7

Richard P. Cortes, 56 ECAB 200 (2004).

8

Annette Quimby, 49 ECAB 304 (1998).

9

See Stephen A. Pasquale, 57 ECAB 396 (2006).

10

Cf. B.P., Docket No. 15-1096 (issued January 20, 2016) (second opinion physician reviewed the offered
position and provided a reasoned opinion that the position was suitable).

5

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
February 8, 2016 for refusal of suitable work under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2016 is reversed.
Issued: January 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6