United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, NORTH RICHLAND
HILLS POST OFFICE,
North Richland Hills, TX, Employer
__________________________________________

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

Docket No. 20-1216
Issued: June 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 12, 2020 appellant filed a timely appeal from a March 9, 2020 merit decision and
a March 27, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,317.20 for the period December 14, 2019 to January 4, 2020 for which he was
without fault because he continued to receive wage-loss compensation after he returned to work;
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the March 27, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly denied appellant’s request for a prerecoupment hearing as untimely filed.
FACTUAL HISTORY
On June 27, 2018 appellant, then a 49-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 22, 2018 he injured his left shoulder when he fell while in the
performance of duty. On the reverse side of the claim form the employing establishment indicated
that appellant stopped work on June 22, 2018. On December 28, 2018 OWCP accepted the claim
for a strain of the muscle(s) and tendon(s) of the left shoulder rotator cuff, a superior glenoid
labrum lesion of the left shoulder, and bicipital tendinitis of the left shoulder. On January 23, 2019
appellant underwent left shoulder surgery. OWCP paid appellant wage-loss compensation for total
disability on the supplemental rolls commencing January 1, 2019 and on the periodic rolls
commencing February 3, 2019.
A January 3, 2020 return-to-work form (Form CA-3) completed by the employing
establishment indicated that appellant returned to full-time modified-duty work with restrictions
on December 14, 2019.
In a January 6, 2020 compensation termination sheet, OWCP calculated that appellant was
overpaid in the amount of $2,317.20 on January 4, 2020 for the period December 14, 2019 to
January 4, 2020.
On January 6, 2020 OWCP advised appellant that it had terminated his compensation,
effective December 14, 2019, because he had returned to work full time on December 14, 2019
and his actual wages met or exceeded the wages of the job he held at the time of his injury. It
stated that a final 28-day payment that partially covered a period following his return to work had
been issued or would be issued shortly, resulting in an overpayment of $2,317.20. OWCP further
stated that appellant may send a check or money order for $2,317.20 to return the overpayment,
and it noted that appellant’s case would be reviewed to determine if a formal decision should be
issued.
A January 17, 2020 memorandum of telephone call (Form CA-110) indicated that appellant
wanted to start making payments toward his overpayment.
On February 3, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation in the amount of $2,317.20 for the period
December 14, 2019 through January 4, 2020, for which he was without fault, because he returned
to full-time employment on December 14, 2019, but received wage-loss compensation for total
disability through January 4, 2020. It explained that appellant had received $2,949.17 in net
compensation during the period December 8, 2019 through January 4, 2020. However, since
appellant returned to work on December 14, 2019, he was not entitled to the $2,317.20 he received
during the 22-calendar days from December 14, 2019 through January 4, 2020. OWCP
determined that appellant was without fault in creation of the overpayment. Additionally, it
informed him that, within 30 days, he could request a telephonic conference, a final decision based
on the written evidence, or a prerecoupment hearing. OWCP requested that appellant complete an
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation.
2

On March 9, 2020 OWCP received an overpayment action request form, postmarked
March 5, 2020, wherein appellant requested a prerecoupment hearing. Appellant indicated that he
contested the overpayment and was requesting waiver of recovery because he was found to be
without fault in the creation of the overpayment. He explained that he was not aware of the
overpayment until after the fact.
OWCP also received on March 9, 2020 a completed Form OWCP-20 overpayment
recovery questionnaire dated February 29, 2020. Appellant related that his total monthly income
was $3,300.00 and that he supported his wife. He listed monthly household expenses totaling
$3,400.00. Appellant also listed his available funds as $300.00 in a checking account and $50.00
in a savings account. He stated that he was unaware of the overpayment and indicated that his
claim was not accepted until January 2019 and he had no income in December 2018 because he
could not work. Appellant did not submit any supporting financial documentation.
By decision dated March 9, 2020, OWCP finalized its preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$2,317.20 for the period December 14, 2019 through January 4, 2020 because he returned to fulltime employment on December 14, 2019, but received wage-loss compensation for total disability
through January 4, 2020. It determined that appellant was without fault in the creation of the
overpayment; however, it denied waiver of recovery of the overpayment, finding that recovery
would not defeat the purpose of FECA or be against equity and good conscience. OWCP indicated
that the evidence it reviewed to make this determination included appellant’s telephone calls on
January 17 and February 27, 2020. It required recovery of the overpayment in full within 30 days.
Also on March 9, 2020, OWCP received appellant’s request for a prerecoupment hearing,
which was dated February 29, 2020 and postmarked March 5, 2020.
By decision dated March 27, 2020, OWCP denied appellant’s request for a prerecoupment
hearing, finding that he had not timely requested a hearing on the preliminary overpayment
determination, and that the final overpayment determination was not subject to a hearing pursuant
to 5 U.S.C. § 8124(b).
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

3

instances.5 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,317.20 for the period December 14, 2019 to January 4, 2020.
The record establishes that appellant returned to work full time at the employing
establishment on December 14, 2019. Appellant, however, continued to receive wage-loss
compensation for temporary total disability from December 14, 2019 through January 4, 2020. As
noted above, appellant is not entitled to receive wage-loss compensation for disability after he has
returned to work, with no loss of wages.7 Thus, an overpayment of compensation was created.
The Board also finds that OWCP properly calculated that appellant’s net compensation
paid for the period December 14, 2019 through January 4, 2020 totaled $2,317.20. OWCP
calculated the overpayment by taking the amount of total disability compensation appellant
received during the period December 8, 2019 through January 4, 2020 and subtracting the amount
he was entitled to receive during that time period. It explained that appellant had received
$2,949.17 in net compensation during the period December 8, 2019 through January 4, 2020.
However, since appellant returned to work on December 14, 2019, he was not entitled to the
$2,317.20 he received during the 22-calendar days from December 14, 2019 through
January 4, 2020. Thus, the Board finds that appellant received an overpayment of compensation
in the amount of $2,317.20 during the time period in question.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.9 Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.10

5

Id. at § 8116(a).

6

K.K., Docket No. 19-0978 (issued October 21, 2019); B.H., Docket No. 09-0292 (issued September 1, 2009);
Federal (FECA) Procedure Manual, Part 6 -- Debt Management , Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2018).
7

Id.

8

See L.T., Docket No. 19-1989 (issued March 27, 2020).

9

5 U.S.C. § 8129.

10

20 C.F.R. § 10.438.

4

The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.11 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics.12 For waiver of
recovery of the overpayment under the defeat the purpose of FECA standard, appellant must show
that he or she needs substantially all of his or her current income to meet current ordinary and
necessary living expenses, and that assets do not exceed the resource base.13 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.14
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision regarding waiver of recovery
of the overpayment.
In the case of William A. Couch,15 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
Appellant submitted a completed Form OWCP-20, which OWCP received on
March 9, 2020. However, OWCP failed to review that evidence in its March 9, 2020 decision.
OWCP, thus, failed to follow its procedures by properly discussing all of the relevant evidence of
record.16
It is crucial that OWCP address all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.17 The
11

Id. at §§ 10.434-10.437.

12

Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
13

Id.

14

Id.

15

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

16

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value should also be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).
17

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 15.

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Couch principle applies with regard to evidence received by OWCP the same day a final decision
is issued.18 The Board finds that, as OWCP did not address the Form OWCP-20 in its March 9,
2020 decision, this case is not in posture for decision.19 On remand OWCP shall review all of the
evidence of record and, following any further development deemed necessary, issue a de novo
decision regarding waiver of the recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.20 The date of the request is determined by the postmark or other
carrier’s date marking.21 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing.22 The only right to a review of a final overpayment
decision is with the Board.23 The hearing provisions of section 8124(b) of FECA do not apply to
final overpayment decisions.24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.
OWCP issued a preliminary overpayment determination on February 3, 2020. It advised
appellant that he had 30 days to request a prerecoupment hearing. On March 9, 2020 OWCP
received appellant’s request for a prerecoupment hearing, which was postmarked March 5, 2020.
The timeliness of the request for a prerecoupment hearing is determined by the postmark date or
other carrier’s marking.25 The 30th day following February 3, 2020 was Wednesday,
March 4, 2020. As the request was postmarked on March 5, 2020, more than 30 days after the

18

See S.S., Docket No. 19-1737 (issued April 7, 2020); J.S., Docket No. 16-0505 (issued July 18, 2016); Linda
Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision).
19

See V.C., Docket No. 16-0694 (issued August 19, 2016).

20

20 C.F.R. § 10.432.

21

See E.G, Docket No. 19-0176 (issued February 23, 2021); P.Y, Docket No. 20-0824 (issued May 24, 2021); C.R.,
Docket No. 15-0525 (issued July 20, 2015).
22

Id.; see also Willie C. Howard, 55 ECAB 564 (2004).

23

20 C.F.R. § 10.440(b).

24

Id.

25

See C.W., Docket No. 15-0554 (issued May 27, 2015).

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February 3, 2020 overpayment determination, it was untimely filed. OWCP thus properly denied
the request.26
CONCLUSION
The Board finds that OWCP has established that appellant received an overpayment of
compensation in the amount of $2,317.20 during the period December 14, 2019 through January 4,
2020, for which he was without fault. The Board further finds that the case is not in posture for
decision with regard to waiver of recovery of the overpayment. The Board also finds that OWCP
properly denied appellant’s request for a prerecoupment hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2020 decision is affirmed in part, set
aside in part, and the case is remanded for further proceedings consistent with this decision of the
Board.
Issued: June 25, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

26

See E.V., Docket No. 17-1328 (issued December 11, 2017); see also R.U., Docket No. 16-0027 (issued
March 24, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-986
Issued: January 3, 2011

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated January 12, 2010. Under 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 failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 40-year-old mail clerk, filed a Form CA-2 claim for benefits on June 8,
2009, alleging that she developed an emotional condition causally related to factors of
employment. She indicated on the form that she experienced stress because management
unfairly denied her request for 152 hours of leave without pay (LWOP) from May 28 to
June 22, 2009. Appellant stated that George Sconyers, her plant manager, told her that the
medical documentation she provided was not sufficient to support her request. She asserted that

he failed to specify the reasons this medical evidence was not sufficient. Appellant subsequently
returned to her physician, who updated her information and added that she was incapacitated for
the period in question.
In a report dated May 27, 2009, received by the Office on July 6, 2009, Raymond
Hoobla, Ph.D., in psychology, indicated that appellant was unable to work as of May 27, 2009.
Appellant submitted a June 3, 2009 letter from Mr. Sconyers, received by the Office on
July 6, 2009, in which he denied her request for 152 hours of LWOP from May 28 to
June 22, 2009. Mr. Sconyers indicated that her medical documentation failed to provide an
explanation of the nature of her illness or injury sufficient to establish that she was unable to
perform her normal duties for the stated period. He further stated that she failed to qualify for
LWOP under both the Family Medical Leave Act (FMLA) and management’s 1250-hour work
requirement.
In a report dated June 8, 2009, Dr. Hoobla stated that he treated appellant on that date and
opined that she was incapacitated from working. He advised that she would be able to resume
work on June 22, 2009.
By letter dated June 8, 2009, appellant asked her union representative to file a grievance
against management on her behalf due to its denial of her request for LWOP during the stated
period. She indicated that management’s actions were causing her additional, undue stress.
In a report dated June 29, 2009, Paulette M. Jarmon-Thomas, a licensed professional
counselor, related that appellant had been ill since May 25, 2009. She stated that appellant was
currently enrolled in a five-week intensive outpatient program which met four times per week
and was unable to work. Ms. Jarmon-Thomas advised that appellant could resume work on
August 3, 2009 without restrictions. In a report dated July 8, 2007, she diagnosed anxiety
disorder and major depression. Ms. Jarmon-Thomas stated that appellant was experiencing
restlessness, edginess, fatigue, difficulty concentrating, irritability, sleep disturbance, an inability
to manage her anger, lack of appetite, headaches and crying spells.
By letter dated July 11, 2007, the Office advised appellant that she needed to submit
additional factual and medical information in support of her claim. It asked her to describe in
detail the employment-related conditions or incidents which she believed contributed to her
emotional condition, and to provide specific descriptions of all practices, incidents, etc., which she
believed affected her condition. The Office also asked appellant to submit a comprehensive
medical report from her treating physician describing her symptoms and the medical reasons for
her stress-related condition, and an opinion as to whether her claimed emotional condition was
causally related to her federal employment. It requested that she submit the additional evidence
within 30 days.
In a letter dated July 17, 2008, appellant stated that the employing establishment caused
her stress by failing to approve or respond to her requests for leave and to her physician’s
recommendations in a timely manner. She asserted that this conduct on the part of management
constituted a form of harassment.

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In a July 30, 2009 letter, appellant’s attendance supervisor, Toni Taylor-Pope,
controverted the claim. She stated:
“[Appellant] performed her duties as required when she reported to work. She
had no work performance or conduct problems. However [appellant] failed to
meet the [employing establishment] requirement for attendance....
“[Appellant] was issued a letter of warning for failure to be regular in attendance
on May 20, 2008. She was issued a seven[-]day suspension on February 14, 2009
for failure to be regular in attendance. On April 16, 2009 [appellant] was issued a
14[-]day suspension for failure to be regular in attendance.”
By decision dated August 14, 2009, the Office denied appellant’s claim on the basis that
she failed to establish any compensable factor of employment and thus fact of injury was not
established.
On August 30, 2009 appellant requested a review of the written record.
In a letter dated September 2, 2009, appellant indicated that she should be granted
compensation in light of the employing establishment’s subsequent approval of her LWOP
request for the period in question. She also suggested that her leave request was improperly
reviewed by an acting supervisor, who was supposed to complete a review of the request within
24 hours.
In settlement agreement dated August 24, 2009, received by the Office on November 2,
2009, the employing establishment approved appellant’s request for LWOP from May 28 to
August 17, 2009. It stated in the agreement, however, that it had approved the request solely in
an effort to resolve her allegations and that its approval should not be construed as an admission
of discrimination or wrongdoing on the part of any management official.
The employing establishment submitted an October 28, 2009 letter which reiterated that
it was controverting appellant’s claim for compensation based on an emotional condition. In
addition, with regard to the assertions she made regarding an acting supervisor completing her
accident report, and the time frame for completing her report, the employing establishment
asserted that any employee in an acting supervisory position retained the responsibility to
complete such reports.
By decision dated January 12, 2010, an Office hearing representative affirmed the denial
of appellant’s claim for an emotional condition.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition, and rationalized medical opinion establishing that compensable

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employment factors are causally related to the claimed emotional condition.1 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.2
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.3 On the other hand, disability
is not covered where it results from an employee’s fear of a reduction-in-force, frustration from
not being permitted to work in a particular environment or to hold a particular position, or to
secure a promotion. Disabling conditions resulting from an employee’s feeling of job insecurity
or the desire for a different job do not constitute a personal injury sustained while in the
performance of duty within the meaning of the Act.4
ANALYSIS
Appellant has not alleged that performance of her regular or specially assigned duties led
to her emotional condition. Rather she alleges that the initial denial of her leave request caused
additional stress. The Board finds that the administrative and personnel actions taken by
management in this case contained no evidence of agency error, and are therefore not considered
factors of employment. An employee’s emotional reaction to an administrative or personnel
matter is not covered under the Act, unless there is evidence that the employing establishment
acted unreasonably.5
The Board notes that matters pertaining to use of leave are generally not covered under
the Act as they pertain to administrative actions of the employing establishment and not to the
regular or specially assigned duties the employee was hired to perform.6 In the present case,
there is no evidence of record to substantiate appellant’s allegations that management acted
unreasonably or abusively in initially denying her request for leave from May 18 to
June 22, 2009. The fact that personnel actions were modified, rescinded or dismissed does not,
in and of itself, establish error or abuse.7 The August 14, 2009 settlement agreement was
reached without an admission of guilt or fault by the parties involved. Thus, appellant has not
established a compensable employment factor under the Act in this respect.

1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

See Ruth C. Borden, 43 ECAB 146 (1991).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Id.

5

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

6

Elizabeth Pinero, 46 ECAB 123 (1994).

7

See Sherry L. McFall, 51 ECAB 436 (2000); Garry M. Carlo, 47 ECAB 299 (1996).

4

The Board has held that an employee’s dissatisfaction with perceived poor management
constitutes frustration from not being permitted to work in a particular environment or to hold a
particular position and is not compensable under the Act.8 Regarding appellant’s allegations that
the employing establishment mishandled her request for leave by allowing an acting supervisor
to review the request, and that the acting supervisor took an excessive amount of time to
complete a report, the Board notes that the development of any condition related to such matters
would not arise in the performance of duty as the processing of such claims bears no relation to
appellant’s day-to-day or specially assigned duties.9 In addition, appellant has failed to
substantiate or provide corroboration for these allegations. She has failed to show that these
alleged actions demonstrated error or abuse on the part of the employing establishment; thus,
they are not compensable.
The Board further finds that appellant has failed to establish that management engaged in
a pattern of harassment. Appellant has not submitted any factual evidence to support her
allegations that she was harassed, mistreated or treated in a discriminatory manner by her
supervisors. She has alleged in general terms that management’s refusal to initially grant her
leave request and consider her physician’s recommendations and its perceived delay in
processing her claim constituted a form of harassment, but has not provided a description of
specific incidents or sufficient supporting evidence to substantiate the incidents which she
believed constituted harassment and discrimination. As such, appellant’s allegations constitute
mere perceptions or generally stated assertions of dissatisfaction with certain superiors at work
which do not support her claim for an emotional disability.10 For this reason, the Office properly
determined that these incidents constituted mere perceptions of appellant and were not factually
established. Appellant has not submitted evidence sufficient to establish that the employing
establishment engaged in a pattern of harassment and intimidation toward her or created a hostile
workplace environment.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.11 The Board finds that the Office properly
denied compensation for an alleged emotional condition in its August 14, 2009 and January 12,
2010 decisions.
CONCLUSION
The Board finds that the Office of Workers’ Compensation Programs properly found that
appellant failed to meet her burden of proof to establish that she sustained an emotional
condition in the performance of duty.

8

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

9

See George R. Ross, 43 ECAB 346 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

10

See Curtis Hall, 45 ECAB 316 (1994); Kathleen D. Walker, 42 ECAB 603 (1991).

11

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 3, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Haven, CT, Employer
__________________________________________

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

Docket No. 17-0653
Issued: July 20, 2017

Case Submitted on the Record

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

JURISDICTION
On January 31, 2017 appellant filed a timely appeal from a December 20, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated June 28, 2016 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 28, 2000 appellant, then a 52-year-old mark-up clerk, filed a traumatic
injury claim (Form CA-1) alleging that on September 27, 2000 she was in an employment1

5 U.S.C. § 8101 et seq.

related motor vehicle accident and that, as a result thereof, she sustained contusions of the left
hand, left arm, left leg, both knees, abdomen, right wrist, right hip, and upper left chest. She also
noted abrasions on her right outer hand and wrist. Appellant initially stopped work on
September 27, 2000 but returned to work on October 2, 2000. On November 27, 2000 OWCP
accepted appellant’s claim for contusion shoulder/arm, contusion of hands, contusion of chest
wall, and contusion of knee/lower leg.2 Appellant’s claim was later expanded to include
aggravation of bilateral knee osteoarthritis and crushing injury of the bilateral knees and legs.
Authorized bilateral total knee replacements were performed on October 22, 2003.
Appellant received intermittent wage-loss compensation and medical benefits on the
supplemental rolls from April 10, 2004 to October 25, 2008.
On January 30, 2008 appellant filed a claim for a schedule award (Form CA-7). By
decision dated November 12, 2008, OWCP granted 37 percent permanent impairment of each
lower extremity.
An authorized left knee patellar arthroplasty was performed on October 26, 2009.
On August 26, 2015 appellant filed a recurrence of disability claim (Form CA-2a)
beginning August 18, 2015 due to the accepted September 27, 2000 employment injury. She
noted that during surgery a hematoma was discovered in her right breast. Appellant indicated
that she had a prior mastectomy and implant. She noted that she had not had diagnostic studies,
and that therefore the underlying injury to her right breast was not realized or treated. Appellant
alleged that the only injury she ever received in the chest and abdomen were from the seat belt
and airbag deployment in her employment-related accident.
An operative note dated August 12, 2015 was prepared by Dr. Deborah Pan, a Boardcertified plastic surgeon. Dr. Pan related that appellant was status post implant reconstruction of
the right breast 30 years ago, and now presented with progressive pain and severe superior
displacement and capsular contracture of the right breast. She explained that appellant
underwent right breast implant removal, with immediate insertion of implant for reconstruction,
as well as abdominal scar excision to relieve painful tethering to the rectus abdominis muscle.
On October 14, 2015 OWCP advised appellant that a comprehensive medical report was
necessary from her treating physician which addressed how her current medical condition and
need for treatment was causally related to the original injury. Appellant was afforded 30 days to
submit the necessary medical evidence. No additional evidence was received.
By decision dated November 25, 2015, OWCP denied appellant’s claim for a recurrence.
It determined that she had not provided any medical opinion with sound reasoning which related
her large right hematoma in her chest area and the need for the right breast implant removal to
the accepted employment injury of September 27, 2000.
2

Appellant had prior claims for injury. In a June 8, 1999 claim, in OWCP File No. xxxxxx024, OWCP accepted
calcifying tendinitis of left shoulder. In a claim for an April 3, 2003 employment injury, File No. xxxxxx627,
OWCP accepted bilateral knee contusions, bilateral hand contusions, and sprain of left hip and thigh, and contusion
of left thigh.

2

On February 9, 2016 appellant requested reconsideration. In support of her request, she
submitted an October 29, 2015 report from Dr. Pan. Dr. Pan noted that a hematoma was
discovered during surgery on August 12, 2015 for right breast reconstruction revision due to
progressively severe and painful capsular contracture. She noted that material consistent with a
very old hematoma was encountered, and that the hematoma could have occurred any time in the
past 1 to 20 years if the original hematoma was significant and never initially addressed. Dr. Pan
indicated that she could not speculate how it had not been detected earlier. She noted that trauma
was the only viable explanation for this type of hematoma, and it was likely that the hematoma
was a major contributor to capsular contracture formation. Dr. Pan also noted that late detection
of the hematoma typically does not affect overall health.
By decision dated June 28, 2016, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision.
On September 29, 2016 appellant requested reconsideration and contended that the only
injuries she received to the chest and abdomen were from the September 27, 2000 employmentrelated accident. In support of her reconsideration request, she resubmitted the October 29, 2015
report from Dr. Pan. Appellant argued that OWCP erred when it indicated that Dr. Pan had
reported that the hematoma could have occurred anytime in the past 1 to 10 years. Rather,
Dr. Pan had clearly reported that the hematoma could have occurred anytime in the past 1 to 20
years.
Appellant also submitted a new September 21, 2016 follow-up report from Dr. Philip P.
Luchini, appellant’s Board-certified orthopedic surgeon, wherein he noted that appellant had
complained of left thumb painful crepitus with range of motion at the carpometacarpal joint, and
indicated that he administered an injection. Dr. Luchini diagnosed unilateral post-traumatic
osteoarthritis of first carpometacarpal joint, left hand. He noted that this was the result of
appellant’s employment injury. Appellant also submitted physical therapy notes, detailing
treatment from June 29 through July 29, 2016. One of the reports, the report from July 18, 2016,
was countersigned by Dr. John D. McCallum, a Board-certified orthopedic surgeon. In this
report, appellant’s diagnoses are listed as arthralgia of left knee, artificial left knee joint, chronic
left hip pain, and presence of artificial hip joint. The progress note indicated continued work on
appellant’s gait.
By decision dated December 20, 2016, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
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.4 When a claimant fails to meet one
3

5 U.S.C. § 28128(a).

4

20 C.F.R. § 10.606(b)(3).

3

of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.5
ANALYSIS
Appellant filed a claim for a recurrence alleging that on August 18, 2015 a hematoma
was discovered in her right breast, and that this was causally related to her accepted
September 27, 2000 employment-related motor vehicle accident. OWCP denied appellant’s
recurrence claim by decision dated November 25, 2015. She requested reconsideration, but on
June 28, 2016 OWCP denied modification of its prior decision. On September 26, 2016
appellant again requested reconsideration.
OWCP reviewed appellant’s request for reconsideration under the appropriate criteria for
timely filed reconsideration petitions. Appellant has not shown that OWCP erroneously applied
or interpreted a specific point of law, nor has she advanced a relevant legal argument not
previously considered by OWCP.6
OWCP had found that Dr. Pan noted that the hematoma could have occurred at any time
in the past 1 to 10 years. As noted by appellant, Dr. Pan actually noted that it could have
occurred any time in the past 1 to 20 years. Regardless, Dr. Pan did not clearly indicate a causal
relationship between the accepted employment incident and the hematoma in her breast
discovered 15 years later. OWCP’s factual error constituted harmless error.
Furthermore, appellant submitted no relevant and pertinent new evidence not previously
considered by OWCP. The underlying issue in this case is whether the hematoma in appellant’s
right breast was causally related to her accepted employment injury. In support of her
reconsideration request, appellant resubmitted the October 29, 2015 report by Dr. Pan. This
report is a duplicate of a previously submitted report. Evidence which is duplicative, cumulative,
or repetitive in nature is insufficient to warrant reopening a claim for merit review.7
The remaining evidence does not address the newly discovered hematoma. Dr. Luchini
treated appellant’s left thumb and did not provide any opinion on the hematoma. The physical
therapy report signed by Dr. McCallum also did not discuss the hematoma. As these reports do
not address the critical issue with regard to appellant’s hematoma, they do not constitute a basis
for reopening the case.8
Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(3). She did not submit
any evidence along with her request for reconsideration to show that OWCP erroneously applied
or interpreted a specific point of law or advances a relevant legal argument not previously

5

Id. at § 10.608(b).

6

See J.F., Docket No. 16-1233 (issued November 23, 2016).

7

Denis M. Dupor, 51 ECAB 482 (2000).

8

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen
the case for review of the merits.
Accordingly, as appellant has not met any of the criteria warranting reopening her claim
for further merit review, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2016 is affirmed.
Issued: July 20, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wayne, NJ, Employer
__________________________________________

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

Docket No. 17-1944
Issued: December 18, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from an August 4, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation pursuant to
5 U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016.
FACTUAL HISTORY
On April 25, 2006 OWCP accepted that appellant, then a 46-year-old letter carrier,
sustained a lumbar strain and aggravation of herniated disc at L5 and L5-S1 as a result of lifting
in the performance of duty. She also claimed a traumatic injury on January 19, 2005 which had
1

5 U.S.C. § 8101 et seq.

been accepted for a lumbar sprain/strain, under File No. xxxxxx303. Appellant returned to limitedduty work as a modified city carrier on May 3, 2006. OWCP subsequently accepted that she
sustained two recurrences of total disability on May 9 and 19, 2006. It placed appellant on the
periodic rolls and she received appropriate compensation benefits, including three authorized
lumbar surgeries on September 11, 2006, August 20, 2007, and June 22, 2009. Appellant
participated in a vocational rehabilitation program, but did not secure a job.
In an August 8, 2014 report, Dr. Arash Emami, a Board-certified orthopedic surgeon, noted
that appellant was status post spinal surgery and was not capable of returning to work as she had
difficulty with sitting, standing, and walking for more than 10 to 20 minutes at a time.
On February 18, 2015 OWCP referred appellant to Dr. Timothy Henderson, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of
her employment-related conditions. In his March 19, 2015 report, Dr. Henderson provided a
detailed medical history, reviewed appellant’s medical records, and performed a physical
examination. He opined that appellant suffered residuals of her accepted conditions, but did not
need further treatment. Dr. Henderson advised that appellant was capable of working in a fulltime sedentary position with a 10-pound lifting restriction.
Appellant underwent a functional capacity evaluation (FCE) on April 14, 2015, which
indicated that she was capable of lifting up to 25 pounds occasionally, 20 pounds frequently, and
10 pounds constantly in a full-time employment position.
In an April 20, 2015 addendum report, Dr. Henderson reviewed the April 14, 2015 FCE
report and concurred with appellant’s ability to perform full-time, light duty with a 25-pound
lifting restriction.
On May 29, 2015 Dr. Emami noted that appellant’s FCE was not available for his review
and requested a copy in order to be more accurate with regard to her work capacity.
In a November 5, 2015 letter, OWCP notified appellant that a conflict existed between the
medical opinion evidence between her treating physician, Dr. Emami, and its second opinion
physician, Dr. Henderson, regarding her continuing disability. It referred her to Dr. Michael
Wujciak, a Board-certified orthopedic surgeon, in order to resolve the conflict.
In a January 30, 2016 independent medical examination, Dr. Wujciak found that appellant
continued to suffer permanent residuals from her work-related conditions, but was not totally
disabled and could be gainfully employed with activities in the sedentary to light range. He opined
that appellant was capable of working sedentary duty for eight hours per day and light duty for
four hours per day. Appellant’s restrictions included lifting a maximum of 25 pounds with 10 to
15 pounds frequently and 20 pounds occasionally.
On March 8, 2016 the employing establishment offered appellant a full-time modified
customer care agent position which was available that day. The sedentary position required
pushing and pulling four hours each up to 20 pounds and lifting four hours per day with 10 to 15
pounds frequently and 20 pounds occasionally.

2

In a June 7, 2016 report, Dr. Emami opined that appellant was capable of returning to work
in a light-duty, part-time position which would be a more sedentary position. He provided the
following restrictions: no prolonged sitting, standing, and walking for more than 20 to 30 minutes
at a time and no lifting over 20 pounds.
By letter dated July 11, 2016, OWCP advised appellant that the customer care agent job
offer was consistent with her physical limitations and remained open. It afforded her 30 days to
accept the job or provide a reasonable, acceptable explanation for reusing the offer. OWCP noted
that, if she refused this employment, or failed to report to work when scheduled, without reasonable
cause, her compensation benefits would be terminated pursuant to 5 U.S.C. § 8106(c)(2). It noted
that her right to continued medical treatment would not be terminated.
In response, appellant refused the offer and resubmitted a June 7, 2016 report from
Dr. Emami providing a 20-pound lifting restriction.
In a September 29, 2016 letter, OWCP advised appellant that it had considered her reasons
for refusal and found them unacceptable. It afforded her 15 days in which to accept the position
or her compensation benefits would be terminated. OWCP noted that no further reasons for refusal
would be considered.
On October 6, 2016 appellant called OWCP to report that she had accepted the job offer,
but would be pursuing retirement and indicated that the employing establishment would be sending
in supporting documentation.
In an October 26, 2016 letter, the employing establishment notified appellant that she had
been scheduled to report to a call center to begin training for the customer care agent position she
accepted. The training was to be held from Monday through Friday from 8:00 a.m. to 4:30 p.m.
for four consecutive weeks commencing October 31, 2016.
On November 1, 2016 the employing establishment called OWCP to report appellant’s
intention of staying on retirement and not returning to work or attending the training session
identified in the October 26, 2016 notice.
By decision dated November 7, 2016, OWCP terminated appellant’s compensation
benefits effective that day as had she refused suitable employment.
On November 27, 2016 appellant requested an oral hearing by a representative of OWCP’s
Branch of Hearings and Review.
Appellant submitted a December 9, 2016 report from Dr. Emami who noted that she had
difficulty going back to work because it was more physically demanding than she could perform.
A telephonic hearing was held before an OWCP hearing representative on June 13, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
Subsequently, appellant submitted a June 16, 2017 report from Dr. Emami who diagnosed
spinal stenosis of lumbar region and failed back syndrome and reiterated his opinion that appellant

3

had difficulty going back to work because it was more physically demanding than she was able to
perform.
By decision dated August 4, 2017, OWCP’s hearing representative affirmed the prior
decision, noting that electing to receive retirement is not a valid reason for refusing an offer of
suitable work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.2 Section 8106(c)(2) of FECA provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.3 To justify termination of compensation, OWCP must
show that the work offered was suitable and must inform appellant of the consequences of refusal
to accept such employment.4 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
Before compensation can be terminated, however, OWCP has the burden of demonstrating
that the employee can work, setting forth the specific restrictions, if any, on the employee’s ability
to work, establishing that a position has been offered within the employee’s work restrictions and
setting forth the specific job requirements of the position.8 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, OWCP has the burden
of showing that the work offered to and refused by appellant was suitable.9

2

See Linda D. Guerrero, 54 ECAB 556 (2003).

3

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

4

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

5

See Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

8

See Linda Hilton, 52 ECAB 476 (2001).

9

Id.

4

Once OWCP establishes that the work offered is suitable, the burden shifts to the employee
who refuses to work to show that the refusal or failure to work was reasonable or justified.10 The
determination of whether an employee is physically capable of performing a modified assignment
is a medical question that must be resolved by medical evidence.11 OWCP procedures provide
that acceptable reasons for refusing an offered position include medical evidence of an inability to
do the work.12
ANALYSIS
The Board finds that OWCP properly terminated appellant’s compensation pursuant to
5 U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016.
OWCP accepted that appellant sustained a lumbar strain and aggravation of herniated disc
at L5 and L5-S1 while in the performance of duty. Dr. Emami, an attending Board-certified
orthopedic surgeon, found appellant totally disabled. Dr. Henderson, a Board-certified orthopedic
surgeon and second opinion physician, submitted an April 20, 2015 report finding that appellant
was able to perform full-time, light-duty work with a 25-pound lifting restriction. OWCP found a
conflict in medical opinion between Dr. Emami and Dr. Henderson and selected Dr. Wujciak, a
Board-certified orthopedic surgeon, as impartial medical examiner. On January 30, 2016
Dr. Wujciak concluded that appellant was capable of working full-time, sedentary duty with a
lifting restriction of 25 pounds with 10 to 15 pounds frequently and 20 pounds occasionally.
On March 8, 2016 the employing establishment offered appellant a full-time modified
customer care agent position which was available that day. The sedentary position required
pushing and pulling four hours each up to 20 pounds and lifting four hours per day with 10 to 15
pounds frequently and 20 pounds occasionally. OWCP found the position to be suitable work.
Appellant accepted the offer, but did not report to the position because she was electing to retire.
OWCP terminated her compensation benefits effective November 7, 2016 because she had refused
an offer of suitable work.
The Board finds that the offered limited-duty customer care agent position was within
appellant’s physical limitation as set forth by Dr. Wujciak on January 30, 2016.13 There is no
indication in the job offer as written that any of the described sedentary duties exceeded
Dr. Wujciak’s restrictions. Moreover, appellant submitted a June 7, 2016 report from her
attending physician, Dr. Emami, who opined that she was capable of going back to work in a lightduty, part-time position with a 20-pound lifting restriction. The Board further finds that the
March 8, 2016 job offer was procedurally correct, as it was made in writing, provided a detailed
description of the assigned duties and their physical requirements, and instructed appellant when

10

20 C.F.R. § 10.517(a).

11

See Gayle Harris, 52 ECAB 319 (2001).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)
(June 2013).
13

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

5

to report for work.14 The Board therefore finds that OWCP met its burden of proof to establish
that the position was suitable work.15
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), 20 C.F.R.
§ 10.516, and Board precedent,16 OWCP advised appellant on July 11, 2016 that it found the job
offer of modified customer care agent to be suitable and gave her an opportunity to provide reasons
for refusing the position within 30 days. It advised her in a September 29, 2016 letter that her
reason for refusing based her decision to elect retirement was insufficient and that she had 15
additional days to accept the offered position. The Board had long held that electing to retire is
not a justifiable reason to refuse an offer of suitable work.17 The Board finds that OWCP properly
followed the established procedures prior to the termination of compensation pursuant to section
8106(c)(2).18
In support of her claim, appellant submitted reports dated December 9, 2016 and June 16,
2017 from Dr. Emami who diagnosed spinal stenosis of lumbar region and failed back syndrome
and opined that she had difficulty going back to work because it was more physically demanding
than she could perform. It is well established that OWCP must consider preexisting and
subsequently-acquired conditions in evaluating the suitability of an offered position.19 At the time
that it terminated appellant’s compensation, however, Dr. Emami had advised that she was capable
of going back to work in a light-duty, part-time position with a 20-pound lifting restriction.
Therefore, the Board finds that the reports from Dr. Emami lack probative value and fail to
establish appellant’s claim that the offered position was not suitable.
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 properly terminated appellant’s compensation pursuant to 5
U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016.

14

See 20 C.F.R. § 10.507.

15

See Marilou Carmichael, 56 ECAB 451 (2005).

16

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

17

Robert P. Mitchell, 52 ECAB 116 (2000); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers
and Return to Work, Chapter 2.814.5(c) (June 2013).
18

C.H., Docket No. 17-0938 (issued November 27, 2017).

19

See supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, MEDIA CARRIER
ANNEX, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0845
Issued: July 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 21, 2016 appellant, through counsel, filed a timely appeal from a
November 13, 2015 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 to consider 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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective February 8, 2015; and (2) whether
appellant met her burden of proof to establish continuing disability after February 8, 2015.
FACTUAL HISTORY
On April 29, 2009 appellant, then a 53-year-old full-time window/distribution clerk, filed
a claim for a traumatic injury (Form CA-1) alleging that on April 28, 2009 she tripped on uneven
pavement and fell, spraining both wrists. She stopped work on April 29, 2009. OWCP accepted
appellant’s claim for sprain of both wrists, sprain of left knee, contusion of right knee,
tenosynovitis right hand, villonodual ulnar synovitis of the left ankle and foot, and left ankle
sprain. Appellant received intermittent wage-loss compensation benefits on the supplemental
rolls as of June 13, 2009.
She underwent an authorized right wrist arthroscopy on
December 3, 2009. Appellant returned to work for four hours a day on June 1, 2010, but stopped
work again on April 10, 2012 when she underwent an authorized left ankle arthroscopy,
debridement of synovitis lateral compartment and debridement of anterior talofibular ligament.
In a July 26, 2012 progress report, Dr. A. Lee Osterman, a physician Board-certified in
orthopedic surgery and surgery of the hand, noted that appellant was almost three years status
post debridement of an irreparable scapholunate tear of her right wrist, and that she had
undergone left ankle surgery on April 10, 2012. He noted that, at this point, appellant did have
defined diagnoses of chronic mechanical problems in her wrists, right more than left, with
defined scapholunate and lunatotriquetral injury on her right. Dr. Osterman noted elements of
tenosynovitis and low-grade carpal tunnel syndrome. He opined that appellant was stable and,
from an upper extremity point of view, he would allow her to return to work limited duty.
However, Dr. Osterman noted that she was still off work because she could not stand for
protracted periods of time because of her recent ankle surgery.
By report dated December 6, 2012, Dr. Osterman noted that appellant’s diagnoses
relative to her upper extremities remained unchanged. He noted that she had an irreparable
mechanical change in her wrist, and ongoing elements of median neuropathy. Dr. Osterman
opined that appellant was at maximum medical improvement (MMI) with regard to her wrist.
He reiterated that, from an upper extremity point only, she could perform sedentary light duty.
Dr. Osterman recommended further electrical studies.
In a February 6, 2013 report, Dr. Leroy Fleischer, a Board-certified internist, noted that,
despite surgery on her left ankle, appellant still complained of pain and swelling on an almost
daily basis. He noted that a recent magnetic resonance imaging (MRI) scan showed that bones
and ligaments appeared to be reasonably intact for her postoperative condition. Dr. Fleischer
indicated that appellant was having ongoing pain despite minimal signs on examination and a
reasonably normal MRI scan. He noted that it had been almost 10 months since her surgery, so
this raised the possibility that her symptoms are actually due to reflex sympathetic
dystrophy (RSD).

2

On April 1, 2013 Dr. Osterman diagnosed: (1) status post right wrist arthroscopy with
bilateral scapholunate pathology, (2) normal electromyogram (EMG) and nerve conduction
velocity (NCV) studies, and (3) bilateral carpometacarpal osteoarthritis. He noted that, although
the EMG/NCV testing did not reveal any underlying nerve damage, it was known that people
with scapholunate problems could have some intermittent numbness and tingling due to nerve
irritation.
In an April 17, 2013 medical report, Dr. Paul Horenstein, a Board-certified orthopedic
surgeon, reported that appellant presented with left ankle pain. He noted that she was one year
postsurgery and was still having trouble with pain and swelling. Orthopedically, Dr. Horenstein
found that appellant was stable without anatomic evidence regarding the cause of her pain. He
suspected nerve pain of unclear etiology similar to her upper extremity.
On May 3, 2013 OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second opinion regarding the status of her accepted work-related
conditions and her ability to return to work. In a May 30, 2013 report, Dr. Smith discussed
appellant’s April 28, 2009 work injury and medical history and opined that, with regard to the
accepted conditions, the sprains and contusion of the wrists and knees had resolved without
residuals. He also noted that the tenosynovitis of the right hand had resolved since Dr. Osterman
dealt with the condition surgically in 2009. With regard to the left ankle, Dr. Smith found that
the synovitis was dealt with in the surgical procedure performed by Dr. Horenstein, and that the
ankle sprain had resolved without residuals. He further opined that, at the present time, appellant
had an elevated level of symptomatology and there appeared to be a large functional component
to her symptoms given the lack of objective organic findings from the clinical examination.
Dr. Smith concluded that appellant had reached MMI with regard to all of the accepted
conditions from her employment incident and could return to regular-duty work without
restrictions. He also opined that there did not appear to be any additional requirement for
treatment, testing, or activity modification.
Appellant subsequently submitted a June 19, 2013 report wherein Dr. Horenstein noted
that appellant continued to experience sensitivity to light touch on the dorsal aspect of her left
foot, although she presented with no anatomical abnormalities. He referred her to pain
management for further treatment. In a note of the same date, Dr. Horenstein stated that
appellant would be held from all work until further pain management evaluation.
Appellant also submitted an April 23, 2013 report from Dr. Sheldon Lebovitz, an
osteopath, in which he interpreted an NCV study as showing significant electrophysiological
evidence of a moderate isolated peripheral nerve compromise of the left peroneal nerve at or
about the knee. Dr. Lebovitz noted that the injury affected the myelin and possibly axonal
components of the motor and sensory peripheral nerves.
He noted no current
electrophysiological evidence reflecting a polyneuropathic or nerve root injury.
Dr. Osterman noted in a March 6, 2014 report that he discussed treatment options with
appellant for her carpometacarpal osteoarthritis. He noted that, with regard to appellant’s right
wrist, she was at MMI but had irreparable tears objectively identified in her interosseous
ligaments. Dr. Osterman opined that from an upper extremity point of view, he would allow her

3

to do sedentary or light-duty work, as he had reported previously. He opined that appellant was
obviously disabled from work due to her lower extremity conditions.
OWCP placed appellant on the periodic compensation rolls as of March 9, 2014.
In a March 11, 2014 report, Dr. Horenstein diagnosed joint pain involving the left ankle
and foot. He noted no objective signs of complex regional pain syndrome (or RSD) but ongoing
nerve pain. Dr. Horenstein noted that appellant’s left ankle was at MMI.
Appellant subsequently submitted a February 27, 2014 report, wherein Dr. Curt Miller, a
Board-certified orthopedic surgeon, noted that appellant had no effusion and that she did not
have any laxity on examination. Dr. Miller noted that she did have a good deal of pain in her
foot on examination and pain in the knee. He noted that appellant may have developed RSD of
the left lower extremity.
On July 28, 2014 Dr. Miller noted that he was concerned that appellant may have a tear
of the left lateral meniscus. He recommended that appellant undergo an MRI scan.
On August 19, 2014 OWCP received an August 5, 2014 report of an MRI scan of
appellant’s left knee, wherein Dr. Andrew Gordon, a Board-certified diagnostic radiologist,
listed the following impressions: (1) degenerative fraying of the body of the lateral meniscus
and mild degenerative blunting of the posterior horn of the lateral meniscus, no discrete meniscal
tear; (2) mild tricompartmental osteoarthritis, most pronounced in the patellofemoral
compartment; (3) patellar enthesopathy, mild proximal patellar tendinopathy with mild reactive
bone marrow edema within the inferior pole of the patella; and (4) small Baker’s cyst.
In an August 6, 2014 report, Dr. Philip Moldofsky, a Board-certified diagnostic
radiologist, interpreted a nuclear bone scan triple phase as showing no evidence of RSD in the
lower legs/ankles.
By letter dated November 7, 2014, counsel for appellant noted his representation of
appellant, forwarded a new appointment of representation form, and requested that OWCP
provide all documents added to appellant’s file since November 16, 2009.
In a November 19, 2014 report, Dr. Bruce H. Grossinger, an osteopath, concluded that
appellant sustained right wrist and left foot and ankle injuries as well as RSD of the left lower
extremity. He noted that appellant remained disabled from gainful employment.
On November 18, 2014 OWCP received a November 12, 2014 report of investigation by
an agent for the employing establishment’s Office of the Inspector General (OIG) who had
conducted surveillance on appellant from April 18 through August 16, 2014 and observed
appellant performing activities which he concluded were inconsistent with her disability status.
This included observation of appellant carrying large items, bending for extended periods,
twisting, pushing, pulling, standing, walking, sitting, and driving.
The report noted that, on October 30, 2014, the OIG investigator had interviewed
Dr. Miller, who indicated that he thought appellant had returned to work in 2010. Dr. Miller
responded affirmatively when asked if appellant could perform her full-duty position. He noted
4

that appellant had a scheduled appointment in September 2014 to review MRI scan results, but
she had not attended the appointment. Dr. Miller also responded affirmatively when asked
whether appellant’s pain complaints were inconsistent with her functional capabilities. In a
November 13, 2014 report, he diagnosed left ankle pain and bilateral knee pain. Dr. Miller noted
that appellant has mild patella femoral arthritis. He related that there was no evidence of
meniscus tear based on the MRI scan and clinical examination. Dr. Miller opined that appellant
could return to full duty, except that she should refrain from repetitive kneeling and squatting.
He noted that he had never restricted her from work due to her knee condition. Dr. Miller
believed that appellant’s knees fully recovered from the work injury of 2009.
The OIG investigator interviewed Dr. Leroy Fleischer on October 31, 2014.
Dr. Fleischer noted that appellant walked with a slight limp and that appellant complained of
chronic left knee and bilateral wrist pain. He had diagnosed RSD, a chronic pain condition.
After reviewing the surveillance video, Dr. Fleischer confirmed that appellant had exceeded her
medical restrictions, that she could have performed her full-duty job during the surveillance
period, and that she had misrepresented her medical condition as her pain complaints were
inconsistent with her functional capabilities. He opined that appellant had recovered from all
work-related injuries and needed no further medical treatment.
On November 10, 2014 Dr. Osterman was interviewed by the OIG. He noted that he had
cleared appellant to return to work in 2010 or 2011. Dr. Osterman stated that, if appellant stayed
off work, it was because of her lower extremity injuries. After reviewing the surveillance video,
he opined that appellant could have performed her full-duty job during the surveillance period,
that her pain complaints were inconsistent with her functional capabilities, and that she had
exceeded her medical restrictions.
The OIG investigator reported that Dr. Horenstein reviewed the surveillance video on
November 11, 2014 and that, before it ended, Dr. Horenstein stated that he did not need to see
anymore, that he got the point, and that based on what he had seen appellant could return to
work. Dr. Horenstein told the investigator that the video showed appellant exceeding her
restrictions, that she had misrepresented her medical condition to him, that she could have
performed her full-duty job during the surveillance period, and that her pain complaints were
inconsistent with her functional capabilities. The OIG investigator indicated that when he asked
Dr. Horenstein whether it was true that appellant had no residuals of her work injury and no need
for further treatment, he replied “yes.” Dr. Horenstein signed the statement prepared by the
investigator on November 16, 2014.
On December 1, 2014 the OIG investigator interviewed Dr. Grossinger. Dr. Grossinger
told the investigator that the video showed that appellant was walking differently from when he
saw her and noted that the type of bending he observed appellant doing would be difficult to do
for someone with her types of complaints. He stated that he had not placed appellant under
restrictions, but that it was clear that appellant exceeded her preinjury job duties. Dr. Grossinger
confirmed that appellant could have performed the full-duty job during the surveillance period,
that her complaints were inconsistent with her functional capabilities, and that she
misrepresented her medical condition to him.

5

All of the treating physicians completed duty status reports (Form CA-17) returning
appellant to full-time, regular-duty work.
By letter dated December 4, 2014, OWCP sent appellant’s counsel a copy of the imaged
portion of appellant’s file via CD-ROM.3
On December 8, 2014 OWCP received a November 25, 2014 report from Dr. Horenstein
wherein he again noted appellant’s complaints of foot and ankle pain.
By letter dated December 11, 2014, OWCP notified appellant of its proposal to terminate
her wage-loss compensation and medical benefits as the medical evidence of record established
that she no longer had residuals or continuing disability stemming from her accepted work
injury.
On December 12, 2014 the OIG investigator contacted Dr. Fleischer who stated that,
when he saw appellant, he felt obligated to give her medical documentation to keep her off work
based on Dr. Grossinger’s report. The investigator stated that Dr. Fleischer never changed his
own opinion that appellant could work full duty and would like to withdraw the medical note
which restricted appellant from returning to work.
In a December 17, 2014 report, Dr. Grossinger noted that appellant had a normal EMG
study which did not support lumbar radiculopathy, plexitis or other nerve entrapment of
impingement. He diagnosed a left ankle orthopedic injury as well as RSD of the left lower
extremity with altered gait. Dr. Grossinger referred her for physical therapy. He noted that he
had reviewed surveillance video evidence of appellant engaging in various activities which were
in excess of her usual job as a clerk for the employing establishment. Dr. Grossinger reaffirmed
the active and ongoing nature of her neurological injuries, but stated that it appeared appellant
could work full-time, full duty in her preinjury position. He continued to prescribe medication.
By letter dated December 17, 2014, counsel acknowledged receipt of OWCP’s
December 11, 2014 correspondence. He noted that, pursuant to Board precedent, medical
information procured as a result of a visit to appellant’s attending physician without appellant’s
awareness or ability to comment on the surveillance was illegal, and that all medical information
procured as a result of a visit to appellant’s attending physicians without appellant’s awareness
or ability to comment on the surveillance video was illegal. By letter dated December 29, 2014,
counsel asked the employing establishment specifically for a copy of the investigative file,
including photos and video, if any were taken.
On January 5, 2015 Dr. Grossinger diagnosed orthopedic injuries to both wrists and
hands with tenosynovitis status post wrist surgery on December 3, 2009. He advised her to
continue with physical therapy and chiropractic care. Dr. Grossinger also opined that, by history,
appellant’s injuries stemmed from the work accident on April 28, 2009.

3

The letter was initially dated December 2, 2014. That date was struck through and changed to read December 4,
2014 and it noted that it included documents in the record through December 4, 2014.

6

In a January 8, 2015 note to file, the human resources manager for the employing
establishment stated that the video surrounding this claim was made available to appellant on
several occasions, but that she had refused to come to the employing establishment to receive or
review the video. In a separate internal note, also dated January 8, 2015, a Mr. Muldoon of the
employing establishment noted that appellant’ union representative had been made aware of the
surveillance video, that the surveillance video was made available for their review upon request,
but that no request was made.
In a report dated January 12, 2015, Dr. Osterman opined that appellant’s condition was
stable. He reviewed appellant’s position description and opined that, from an upper extremity
point of view, she could perform that job on a regular basis, but with restrictions against constant
grasping or ladder climbing and no lifting more than 20 pounds. Dr. Osterman noted that no
further treatment was planned for her right wrist damage or her flexor tenosynovitis.
By decision dated January 20, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits, finding that the medical evidence of record established that
appellant no longer had any residuals from her employment-related medical condition or
continued disability from work as a result of the April 28, 2009 employment injury.
OWCP subsequently received medical reports indicating that Dr. Jason Brajer continued
to perform multiple lumbar epidural sympathetic blocks from January 23 through
October 13, 2015 for RSD.
In a letter dated January 26, 2015, counsel requested that appellant’s claim be expanded
to include RSD as an accepted condition.
On January 27, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
At the hearing held on August 27, 2015, appellant discussed her work history and injury.
She also recounted her medical treatment and her visit with the second opinion physician.
Appellant also testified that she had not given the OIG permission to contact her treating
physicians and was not aware of the surveillance. She noted that she still experienced symptoms
relating to her work injuries in her foot, legs, and toes, and that her ankle still swelled. Counsel
argued that OWCP could not rely on the opinions of appellant’s physicians after in-person
contact by OIG agents, as it was well-established that the OIG was prohibited from having
personal contact with treating physicians. He also argued that the report of the second opinion
physician contained very little rationale and that, at a minimum, there was a conflict in medical
evidence.
In a November 13, 2015 decision, the hearing representative found that the report of the
second opinion physician, Dr. Smith, was sufficiently well-reasoned, ruled out continuing
disability, and addressed the claimant’s work capacity relative to the accepted conditions. The
hearing representative determined that there was insufficient medical evidence to overcome the
weight of Dr. Smith’s conclusion that the accepted conditions had resolved and that there was no
ongoing disability or related residuals of the accepted work injury.

7

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 Following a
proper termination of compensation benefits, the burden of proof shifts back to the claimant to
establish continuing employment-related disability.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that the claimant no longer has residuals of an employment-related
condition which requires further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for sprain of both wrists, sprain of left knee, contusion
of right knee, tenosynovitis right hand, villonodual ulnar synovitis of the left ankle and foot, and
left ankle sprain. It terminated appellant’s compensation benefits on January 20, 2015, effective
February 8, 2015. The hearing representative affirmed the termination of appellant’s medical
benefits and wage-loss compensation. In reaching this conclusion, she determined that the
opinion of the second opinion physician Dr. Smith should be accorded the weight of the medical
evidence.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 8, 2015, based on the well-rationalized
opinion of Dr. Smith. Dr. Smith was asked by OWCP for a second opinion regarding the status
of appellant’s employment-related conditions. In his May 30, 2013 report, he opined that
appellant’s employment-related conditions had resolved without residuals. Dr. Smith explained
that appellant had an elevated level of symptomology and that there appeared to be a large
functional component to her symptoms given the lack of objective organic findings from the
clinical examination. He indicated that there did not appear to be any additional requirement for
treatment, testing, or activity modification with regard to the accepted employment incident.
Dr. Smith’s opinion was based on a review of appellant’s medical record, including objective
studies, and his physical examination. His opinion was well rationalized and represents the
weight of the medical evidence.8
The reports of appellant’s treating physicians also support that she no longer had
residuals from the accepted employment injury. When Dr. Miller was interviewed by the OIG
investigator on October 30, 2014, he told the investigator that appellant’s pain complaints were
4

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

5

John F. Glynn, 53 ECAB 155 (2001).

6

See T.P., 58 ECAB 524 (2007).

7

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

M.K., Docket No. 15-1903 (issued May 6, 2016).

8

inconsistent with her functional capabilities as seen on the surveillance video. In his
November 13, 2014 report, he diagnosed left ankle and bilateral knee pain, and mild patella
femoral arthritis, but opined that appellant’s knees had fully recovered from the 2009 work
injury. The Board finds that Dr. Miller supported his opinion with medical rationale that
appellant was no longer disabled from her accepted conditions. Dr. Miller noted that, based on
the symptoms and activities appellant performed in the surveillance video, it was clear that
appellant’s pain complaints were inconsistent with her functional capacity.9 He concluded in his
November 13, 2014 report that appellant had recovered from the accepted injury. Dr. Miller’s
report, therefore, supports the finding that appellant no longer had residuals of the accepted
conditions.
Dr. Grossinger noted in his December 17, 2014 report that appellant had a normal EMG
study which did not provide supportive evidence of lumbar radiculopathy, plexitis, or other nerve
entrapment or impingement. He diagnosed a left ankle orthopedic injury as well as RSD of the
left lower extremity with altered gait. The Board notes that appellant’s claim has not been
accepted for RSD and would not, until accepted, be considered relevant to the termination of
compensation benefits for the accepted conditions.10
Dr. Grossinger acknowledged that the surveillance video showed appellant engaged in
various activities which were in excess of her usual job as a clerk for the employing
establishment, but he reaffirmed the active and ongoing nature of her neurological injuries and
continued appellant on prescription medication. He did not provide any objective findings to
substantiate his opinion. Dr. Grossinger also failed to explain how any of appellant’s diagnosed
conditions caused disability from her usual employment. Accordingly, his report is of
diminished value.11
In the March 6, 2014 report, Dr. Osterman noted that, from an upper extremity point of
view, appellant was allowed to perform light-duty work, but that she was disabled from work
due to her lower extremity conditions. However, when subsequently interviewed by the OIG
investigator, he indicated that her pain complaints were inconsistent with the activities shown on
the surveillance video. Dr. Horenstein, in his March 11, 2014 report, diagnosed joint pain
involving her ankle and foot yet, on November 16, 2014, after meeting with the OIG
investigator, he found that she had no residuals from her work injury and no need for further
treatment. These reports support that appellant no longer had residuals from her accepted
employment conditions.12
In his December 8, 2014 report, Dr. Fleischer indicated that appellant’s neurologist,
Dr. Grossinger, believed that appellant suffered from RSD, that Dr. Grossinger made some
changes to her treatment, and hopefully that, as a result, she would have less pain. He offered no
comment with regard to employment-related residuals. When interviewed by the investigator,
9

See P.M., Docket No. 16-1321 (issued January 10, 2017).

10

See M.B., Docket No. 16-0077 (issued June 1, 2016).

11

Supra note 9.

12

See G.M., Docket No. 14-2057 (issued May 12, 2015).

9

Dr. Fleischer opined, after viewing the surveillance video, that appellant had no residuals from
her work injury and no further need for medical treatment. As such, his report does not support
continuing residuals.13
As Drs. Lebovitz, Gordon, and Moldofsky only interpreted diagnostic, objective studies,
their reports do not provide a rationalized opinion as to whether appellant had residuals from her
accepted employment conditions.14
Appellant contended that she had not authorized OWCP to contact her physicians.
However, the Board notes that appellant was made aware of the existence of the surveillance
video within a reasonable amount of time prior to the January 20, 2015 OWCP decision
terminating her benefits. Counsel had requested a complete copy of the record by letter dated
November 7, 2014, and OWCP forwarded a copy of the record to counsel by letter dated
December 4, 2014. In a December 17, 2014 letter to OWCP, counsel acknowledged the
existence of the surveillance video. Furthermore, in a January 8, 2015 memorandum, a human
resources manager for the employing establishment indicated that the video had been made
available to appellant on several occasions, but that appellant had refused to come in to review it.
In a separate memorandum of the same date, a Mr. Muldoon, from the employing establishment,
indicated that appellant’s union representative had been made aware of the surveillance video,
that the surveillance video had been made available to them for review, and that they could
receive a copy upon request.
OWCP has the responsibility to make the claimant aware of surveillance video evidence
it has provided to a medical expert prior to any termination decision.15 If appellant requests a
copy of the videotape, one should be made available and the employee given a reasonable
opportunity to offer any comment or explanation regarding the accuracy of the recording.16 The
evidence of record indicates that counsel was sent a copy of appellant’s imaged file by letter
dated December 4, 2014, which would have included the surveillance evidence. Furthermore,
the record indicates that the employing establishment made the video available to appellant and
her union representative upon request, but no request was made. Accordingly, the Board finds
that OWCP properly handled the video evidence.17
OWCP therefore met its burden of proof to terminate appellant’s compensation benefits,
effective February 8, 2015.

13

Supra note 9.

14

Supra note 13.

15

A.P., Docket No. 13-0030 (issued March 18, 2013).

16

J.J., Docket No. 15-0475 (issued September 28, 2016).

17

Id.

10

LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifts to
appellant to establish continuing disability after that date causally related to her accepted
injury.18 To establish causal relationship between the accepted conditions as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background supporting such causal
relationship.19 Causal relationship is a medical issue and the medical evidence required to
establish causal relationship is rationalized medical evidence.20
ANALYSIS -- ISSUE 2
Given the Board’s finding that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective February 8, 2015, the burden shifts to appellant to
establish continuing disability after that date.21
The Board finds that the evidence of record is insufficient to establish continuing
disability after February 8, 2015. None of the medical evidence received after the termination of
benefits establishes that appellant has continuing disability or residuals from her accepted
employment injury. Dr. Brajer continued to administer epidural sympathetic blocks from
January 23 to July 21, 2015, however, this treatment was provided for the diagnosed RSD
condition. As previously stated, OWCP has not accepted appellant’s claim for RSD.22
Appellant also submitted a November 25, 2014 report wherein Dr. Horenstein indicated
that he treated appellant for foot and ankle pain, but he provided no explanation as to whether
appellant was disabled due to her accepted employment conditions.23 As such, appellant has not
met her burden of proof to establish continuing disability after the February 8, 2015 termination
of benefits.
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 and medical benefits, effective February 8, 2015. The Board further finds that
18

Manuel Gill, 52 ECAB 282 (2001).

19

R.D., Docket No. 16-0982 (issued December 20, 2016).

20

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

21

Supra note 20.

22

Supra note 10.

23

Supra note 20.

11

appellant failed to meet her burden of proof to establish continuing disability after
February 8, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2015 is affirmed.
Issued: July 25, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12