United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Canfield, OH, Employer
__________________________________________

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

Docket No. 07-1644
Issued: November 20, 2007

Case Submitted on the Record

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

JURISDICTION
On June 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 14, 2006 merit decision finding an overpayment of
compensation; the January 29, 2007 nonmerit decision denying her request for a prerecoupment
hearing and the February 7, 2007 merit decision suspending her entitlement to compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$3,573.50 for the period November 28, 2004 through July 9, 2005; (2) whether the Office
properly determined that appellant was at fault in the creation of the overpayment; (3) whether
the Office abused its discretion in setting the rate of recovery; (4) whether the Office properly
suspended appellant’s entitlement to compensation benefits effective February 7, 2007 pursuant
to 5 U.S.C. § 8123(d), on the grounds that she failed to submit to a scheduled medical
examination without showing good cause; and (5) whether the Office properly denied appellant’s
December 18, 2006 request for a prerecoupment hearing.

FACTUAL HISTORY
On April 21, 2004 appellant, a 33-year-old rural carrier, filed a traumatic injury claim
alleging that she injured her back while lifting mail from her car. On August 18, 2004 her claim
was accepted for lumbar strain and temporary aggravation of degenerative disc disease and she
was placed on the periodic rolls.
The Office determined that a conflict in medical opinion existed between appellant’s
attending physician, Dr. John L. Dunn, a treating physician, and the Office’s second opinion
physician, Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, as to whether she had
any continuing residuals causally related to her accepted injury. On February 27, 2006 the
Office notified appellant that she was being referred for an impartial medical evaluation in order
to resolve the conflict. The Office advised appellant of her responsibility to attend the
appointment and that, if she failed to do so without an acceptable reason, her compensation
benefits would be suspended in accordance with 5 U.S.C. § 8123(d). It informed appellant that
she had an appointment on March 8, 2006 at 12:00 p.m. with Dr. Michael Jurenovich, a Boardcertified osteopath, specializing in orthopedic surgery. Appellant was advised to contact the
Office prior to that time if it was necessary to reschedule the appointment. The notice was
properly addressed to appellant’s address of record and included Dr. Jurenovich’s address and
telephone number.
The Office was notified that appellant did not attend the scheduled medical examination
with Dr. Jurenovich. By letter dated October 10, 2006, the Office proposed to suspend
appellant’s compensation benefits on the grounds that she failed to attend the medical
examination scheduled for March 8, 2006. The Office afforded appellant 14 days to furnish her
reasons in writing, with supporting evidence, for failing to attend the examination. The Office
advised her that, if her reasons were deemed invalid, then she would be found to be in
obstruction of a medical examination and her compensation benefits would be suspended under
section 8123(d) of the Federal Employees’ Compensation Act until the obstruction ceased.
Appellant did not submit any evidence or argument in response to the Office’s letter of proposed
suspension.
By decision dated February 7, 2007, the Office suspended appellant’s compensation
benefits, effective that date. It found that appellant failed to attend the medical examination
scheduled for March 8, 2006, or to provide written evidence justifying her failure to attend the
examination.1
In a letter dated November 23, 2004, the Office outlined appellant’s entitlement to
compensation benefits, stating that she would receive compensation in the gross amount of
$549.28 every 28 days, commencing October 31, 2004. Appellant was advised that she should
1

The Board notes that appellant submitted additional evidence after the Office rendered its February 7, 2007
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35,
36n.2 (1952). Therefore, this new evidence cannot be considered by the Board on appeal. Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606(b)(2).

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immediately return any payment to which she was not entitled upon return to work. On
November 29, 2004 she notified the Office that she had returned to limited duty, four hours per
day. However, appellant continued to receive compensation from the Office in accordance with
the terms of its November 23, 2004 letter until she voluntarily resigned on July 8, 2005.
An automated computer payment system (ACPS) form, bearing a “run date” of
October 11, 2006, reflected compensation payments made to appellant for the period
November 28, 2004 through July 9, 2005, in the gross amount of $4,394.24. The form also
indicated that the amount of $28.80 was withheld for basic life insurance for the same period. A
separate worksheet, bearing the run date of October 5, 2006, reflected that appellant was entitled
to compensation for November 28, 2004 in the gross amount of $26.15.
In a letter dated October 11, 2006, the Office asked the employing establishment to
provide appellant’s leave analysis for the period November 28, 2004 through July 9, 2005. The
Office also requested information regarding the current hourly rate for the position held by
appellant on November 28, 2004.
In a preliminary overpayment decision dated October 11, 2006, the Office found that
appellant had incorrectly received compensation in the amount of $4,341.42 for the period
November 29, 2004 through July 9, 2005, due to the fact that she continued to receive
compensation following her return to part-time employment. In the memorandum accompanying
the preliminary finding, the Office indicated that it had credited the amount of $26.67 for basic
life insurance deductions, as well as the amount of $26.15 for compensation owed to appellant
for November 28, 2004, against the total gross payments made to her in the amount of $4,394.24,
resulting in a total overpayment of $4,341.42. The Office also made a preliminary determination
of fault in the creation of the overpayment, finding that appellant retained payments that she
knew or should have known were erroneous. The Office noted that appellant had been placed on
notice of her obligation to return any amounts to which she was not entitled by letter dated
November 23, 2004 and that she acknowledged her obligation to do so on November 29, 2004.
The Office advised appellant of actions available to her if she believed that she should receive a
waiver instead of repaying the overpayment, including requesting a prerecoupment hearing. The
Office further advised appellant to submit a detailed explanation of her reasons for seeking a
waiver; a completed Form OWCP-20; and supporting documents, to include copies of tax
returns, bank account statements, bills and cancelled checks and pay slips.
In a letter dated October 17, 2006, the employing establishment stated that appellant’s
earnings for the period November 28, 2004 through July 9, 2005 were as follows: $123.44 for
the period December 11 through 24, 2004; $61.72 for the period January 8 through 21, 2005;
$259.84 for the period May 28 through June 10, 2005; and $64.96 for the period June 11 through
24, 2005, for total payments of $509.96. Appellant’s hourly rate for the period was reportedly
$15.43. The record contains an employing establishment printout reflecting payments made to
appellant as described above.
By decision dated November 14, 2006, the Office finalized its decision that an
overpayment existed and that appellant was at fault in the creation or acceptance of the
overpayment. However, based upon the information provided by the employing establishment,
the Office found the total amount of the overpayment to be $3,573.50, after reducing the gross

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overpayment amount of $3,600.17 by $794.07, the additional compensation due based on
appellant’s part-time, limited-duty work schedule and by the amount of $26.67 for basic life
insurance withheld. The Office instructed appellant to repay the total amount within 30 days.
On December 18, 2006 appellant requested a prerecoupment hearing. She stated that she
did not realize that she was not entitled to the compensation received, as she worked only eight
hours per month.
By decision dated January 29, 2007, an Office hearing representative denied appellant’s
request for a hearing on the grounds that a final decision concerning overpayment is not subject
to the hearing provisions of section 8124(b) of the Act.
LEGAL PRECEDENT -- ISSUE 1
The Act2 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
When an overpayment has been made to an individual 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 the individual is entitled.4
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation for the period November 28, 2004 through July 9, 2005.
However, the Board finds that the case is not in posture for a decision regarding the amount of
overpayment.
Effective October 31, 2004, the Office began paying compensation benefits to appellant
for total disability, in the gross amount of $549.28 every 28 days. When appellant returned to
part-time employment on November 29, 2004, she was no longer entitled to receive
compensation benefits in the amount originally determined by the Office. Although she
informed the Office that she had returned to part-time employment, she continued to receive
compensation for total loss of wage-earning capacity until July 9, 2005.
The record reflects that appellant received compensation for the period November 28,
2004 through July 9, 2005 in the amount of $4,394.24, the amount she would have been entitled
to receive had she not resumed part-time employment. The record also reflects that she received
income in the amount of $509.96 during that period of time. Since appellant was not entitled to
receive compensation benefits for total disability after her return to part-time employment, the
Office properly determined that she received an overpayment of compensation. However, the
Office used an improper method to calculate the amount of overpayment, resulting in an
incorrect overpayment amount.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

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Based upon the information provided by the employing establishment, the Office found
the total amount of the overpayment to be $3,573.50, after reducing the gross amount of
$3,600.17 by $794.07, the additional compensation due based on appellant’s part-time,
limited-duty work schedule and by the amount of $26.67 for basic life insurance withheld. It
appears that the Office imputed income to appellant based upon her ability to work an
undetermined number of hours per week. The Board notes, however, that the Office did not
issue a decision establishing appellant’s wage-earning capacity after she notified the Office of
her part-time employment; nor did it adequately explain the basis for its overpayment
calculation. Although appellant informed the Office that she planned to return to work four
hours per day, the evidence of record establishes that she earned only $509.96 from her part-time
employment during the period in question, as opposed to compensation payments in the amount
of $4,394.24 to which she would have been entitled had she not returned to work. This case
must be remanded to the Office for a proper calculation of the overpayment amount based on
appellant’s actual earnings during the period in question.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act5 provides that adjustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience. Section 10.433 of the Office’s implementing regulations6
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in creating the overpayment that occurred
between November 28, 2004 and July 9, 2005 and was therefore not entitled to a waiver of the
overpayment amount.
Appellant returned to work on November 29, 2005, but admittedly continued to receive
compensation based on a total loss of wage-earning capacity. She was on notice, by virtue of the
Office’s November 23, 2004 letter, of her obligation to return any incorrect payments to the
Office and she acknowledged her obligation to do so on November 29, 2004. Appellant’s
5

5 U.S.C. § 8129(b).

6

20 C.F.R. § 10.433.

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actions also indicate that she was aware that she was receiving payments she knew to be
incorrect. She notified the Office of her return to work, signaling a change in her entitlement to
benefits. Yet, appellant continued to accept the erroneous payments. The Board has consistently
held that the Office’s erroneous payment of benefits does not excuse an employee from
accepting a payment that she knew or should have known to be incorrect.7 Under these
circumstances, the Board finds that the Office properly found that appellant was at fault in the
creation of the overpayment. Therefore, the overpayment was not subject to waiver.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made because of an error of fact or law, adjustment shall be made by decreasing later
payments to which an individual is entitled.8 However, where no further compensation benefits
are due an individual, the Board does not have jurisdiction and the recovery of an overpayment
remains within the discretion of the Office. The Board’s jurisdiction over recovery is limited to
review of those cases where the Office seeks recovery from continuing compensation under the
Act.9
ANALYSIS -- ISSUE 3
With respect to recovery of the overpayment, the Board notes that its jurisdiction is
limited to review of those cases where the Office seeks recovery from continuing compensation
benefits under the Act.10 Appellant was not in receipt of continuing compensation at the time the
final decision was entered in this matter. Therefore, this Board lacks jurisdiction to review
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 4
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.11 The determination of the need for an examination, the type of examination, the
choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office.12 The Office’s federal regulations, at section 10.320, provides that a
claimant must submit to examination by a qualified physician as often and at such time and
places as the Office considers reasonably necessary.13 Section 8123(d) of the Act and section
7

See Ricky Greenwood, 57 ECAB ___ (Docket No. 05-1739, issued March 10, 2006).

8

5 U.S.C. § 8129(a).

9

Terry A. Keister, 56 ECAB ___ (Docket No. 04-1136; issued May 23, 2005); see also Albert Pineiro, 51 ECAB
310 (2000).
10

See Terry A. Keister, supra note 9.

11

5 U.S.C. § 8123(a).

12

James C. Talbert, 42 ECAB 974, 976 (1991).

13

20 C.F.R. § 10.320.

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10.323 of the Office’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her entitlement to compensation is suspended until the
refusal or obstruction ceases.14 However, before the Office may invoke these provisions, the
employee is provided a period of 14 days within which to present in writing his or her reasons
for the refusal or obstruction.15 If good cause for the refusal or obstruction is not established,
entitlement to compensation is suspended in accordance with section 8123(d) of the Act.16
ANALYSIS -- ISSUE 4
Following appellant’s failure to attend a scheduled medical examination on March 8,
2006, the Office suspended her entitlement to compensation benefits, effective February 1, 2007,
pursuant to section 8123(d) of the Act. The Board finds that the suspension of benefits was
proper.17
The Board notes that the Office determined that a conflict in medical opinion existed
between appellant’s attending physician and the Office’s second opinion physician as to whether
she had any continuing residuals causally related to her accepted injury. The impartial medical
examination was reasonably necessary to determine whether appellant had continuing
employment-related residuals. Under section 8123 of the Act and its implementing regulations,
appellant was required to attend the examination.18
On February 27, 2006 the Office notified appellant that she was being referred for an
impartial medical evaluation in order to resolve the conflict in medical opinion between her
treating physician and the Office’s second opinion physician on the issue of continuing residuals.
The Office informed her of her obligations to attend and cooperate. The notice clearly explained
that appellant’s compensation benefits would be suspended for failure to report to or obstruction
of the examination. The Office advised appellant of the date and time of her scheduled March 8,
2006 appointment with Dr. Jurenovich. Appellant was also provided with Dr. Jurenovich’s
address and telephone number. As noted, she did not appear for the appointment, nor did she
attempt to reschedule the appointment prior to the designated time. Appellant’s refusal to submit

14

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
16

Id.; see Scott R. Walsh, 56 ECAB ___ (Docket No. 04-1962, issued February 18, 2005); Raymond C.
Dickinson, 48 ECAB 646 (1997).
17

The Board notes that appellant was not actually in receipt of compensation at the time when the Office issued
its decision suspending entitlement to compensation. However, section 8123(d) of the Act addresses not only an
employee’s receipt of benefits, but also her entitlement to benefits. The Board further notes that the February 7,
2007 decision suspended entitlement to benefits effective February 7, 2007. The Board surmises that the Office’s
reference to February 1, 2007 as the suspension date in the body of the decision, was a typographical error, harmless
in nature.
18

5 U.S.C. § 8123(d); 20 C.F.R. § 10.320.

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to the medical examination warrants suspension of entitlement to compensation unless she can
establish good cause for her failure to report at the scheduled time.19
The Board finds that appellant did not establish good cause for her failure to report to the
scheduled examination with Dr. Jurenovich. The Office notified her on October 10, 2006 that it
proposed suspension of her entitlement to compensation benefits. Appellant was given 14 days
to submit a valid reason for her failure to attend the scheduled medical appointment. She
provided no evidence to explain why she was unable to attend the scheduled medical
examination.
The Office, in its February 27, 2006 letter, appropriately directed appellant to report for
an impartial medical examination on March 8, 2006. Appellant failed to appear for the
examination on the scheduled date and did not provide adequate reasons for not complying with
the Office’s directive. The Office properly determined that appellant refused to submit to a
scheduled medical examination without good cause and properly suspended her right to
compensation benefits effective February 7, 2007.20
The Board finds that appellant received proper notice of her rights and responsibilities
and proper notice of the scheduled examination with Dr. Jurenovich. The Office followed
established procedures in suspending appellant’s entitlement to compensation under 5 U.S.C.
§ 8123(d). The Board will affirm the Office’s February 7, 2007 decision suspending entitlement
to compensation effective that same date.
LEGAL PRECEDENT -- ISSUE 5
Section 10.440(b) of the Office’s regulations provides that the only review of a final
decision concerning an overpayment is to the Board. The provisions of 5 U.S.C. § 8124(b)
(concerning hearings) and 5 U.S.C. § 8128 (concerning reconsiderations) do not apply to such a
decision.21 The Board has found that the implementation of this regulation is a proper exercise
of the Director’s discretion and that a claimant has no further right to review by the Office once a
final decision on the issue of overpayment has been issued.22
ANALYSIS -- ISSUE 5
On December 18, 2006 appellant requested a prerecoupment hearing, after the Office’s
November 14, 2006 overpayment decision. By decision dated January 29, 2007, the Office
denied her request for a hearing, based on its finding that a final overpayment decision is not
subject to the hearing provisions of section 8124. The Office’s regulations at section 10.440(b)

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
20

5 U.S.C. § 8123; see Maura D. Fuller, 54 ECAB 386 (2003).

21

20 C.F.R. § 10.440(b).

22

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

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provides that the only review of a final decision concerning an overpayment is by the Board.23
The regulations further provides that the hearing provisions of section 8124(b) do not apply to an
overpayment decision.24 The Board has found that the implementation of this regulation is a
proper exercise of the Director’s discretion and that a claimant has no further right to review by
the Office once a final decision on the issue of overpayment has been issued.25 In view of the
limitations on review rights set forth in section 10.440(b), the Board finds that the Office
properly denied appellant’s request for an oral hearing made after issuance of the final
overpayment decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation for the period
November 28 through July 9, 2005 and that she was at fault in the creation of the overpayment
and therefore not entitled to waiver. However, the case is not in posture for a decision regarding
the amount of overpayment and the case must be remanded to the Office for a proper calculation
in accordance with the terms of this decision. The Board further finds that, as appellant was not
in receipt of continuing compensation at the time the final decision was entered in this matter, it
lacks jurisdiction to review recovery of the overpayment. The Board also finds that the Office
properly suspended appellant’s entitlement to compensation benefits effective February 1, 2007,
as she failed to attend a scheduled medical examination without showing good cause for her
refusal and that the Office properly denied her request for a prerecoupment hearing after issuance
of a final overpayment decision.

23

20 C.F.R. § 10.440(b).

24

Id.

25

Charles E. Nance, supra note 22.

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ORDER
IT IS HEREBY ORDERED THAT the November 14, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact of overpayment and the issue of
fault. The decision is set aside and remanded to the Office for a determination as to the amount
of overpayment.
IT IS FURTHER ORDERED that the decisions of the Office of Workers’
Compensation Programs dated February 7 and January 29, 2007 are affirmed.
Issued: November 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.I., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CLEVELAND VETERANS ADMINISTRATION
MEDICAL CENTER, Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-1069
Issued: January 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 10, 2012 appellant filed a timely appeal from a January 3, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on August 6, 2010 in the performance
of duty.
FACTUAL HISTORY
On August 30, 2010 appellant, then a 56-year-old administrative support assistant, filed a
traumatic injury claim alleging that on August 6, 2010 he sustained a psychological condition in
1

5 U.S.C. § 8101 et seq.

the performance of duty. The employing establishment controverted the claim on the grounds
that he was not in the performance of duty at the time of the incident as he was on public
property walking to his car.2
A police report indicates that on August 6, 2010 at 2:30 p.m. appellant was robbed at
gunpoint while “walking from the hospital to the surface lot.” The employing establishment’s
police officer related:
“[Appellant] stated [that] he was walking from Mt. Sinai Drive through the grassy
field to get to his car parked in the surface lot. He stated [that] he noticed a group
of five males walking together. [Appellant] then saw four of them walk one
direction and the other continued to follow him. When he got behind the garage
and no one was around the male … pulled a handgun and told [him] to lie down
on the ground. Once [appellant] was on the ground the male went through his
pockets and took $730.00 cash and his cell phone.”
By letter dated September 16, 2010, OWCP requested further factual and medical
information, including a description of the distance between the employing establishment and the
parking lot and rules regarding parking lot use.
A copy of the employing establishment’s parking and traffic regulations indicate that
employees can use approved off-site parking if properly registered with the police and displacing
a decal. The employing establishment provided shuttle service from the off-site lots and the
work location.
In an e-mail dated October 5, 2010, Tiffany Sims, appellant’s supervisor, related that
appellant told her that he was robbed “last week while he was walking to the Mt. Sinai parking
garage.” She stated:
“After further reviewing the incident report and the time of the incident, I
reviewed [appellant’s] leave record. I found that he was not on any scheduled
leave, nor did he have any leave request pending during the time of the incident
(2:35 p.m.). In addition, [appellant’s] tour of duty does not end until 4:30 p.m.
Therefore, I do not know why he was in the area, when the incident occurred.”
An employing establishment pamphlet about parking indicates, “Only medical center
employees may park in the Mt. Sinai parking garage. Employees must display their [employing
establishment] parking permit in the passenger’s corner of their windshield. The shuttle bus runs
about every 15 minutes from the garage to the hospital’s main entrance.”
By letter dated October 5, 2010, Donald R. Sambrook, an employing establishment
official, indicated that appellant’s work hours were from 8:00 a.m. until 4:30 p.m. and the

2

The employing establishment initially inaccurately contended that the incident took place after work hours.

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robbery occurred at 2:35 p.m. Appellant was not on leave at the time of the incident and was not
fulfilling any work-related duties. Mr. Sambrook stated:
“The Mt. Sinai [p]arking [g]arage and surface lot is leased by the [employing
establishment]. Employees of our Wade Park Hospital park their personal
vehicles there and are able to be picked up by a[n] [employing establishment]
[s]huttle [b]us which takes them between the parking area and the [employing
establishment] facility. The parking area borders Mt. Sinai Drive and East 105th
Street. It is within a 5 [to] 10[-]minute walk to the [employing establishment]
facility.”
Mr. Sambrook asserted that the employing establishment was controverting the claim
because appellant “was not on official business at the time he was confronted by the armed
robbers on the Mt. Sinai grounds at 2:35 [p.m.]. [Appellant] had not submitted a leave request
requesting that he be excused from work.”
On October 8, 2010 appellant related that the employing establishment controlled the
parking lot and that its police patrolled the area. He asserted that he did not know the assailant.
By decision dated October 18, 2010, OWCP denied appellant’s claim after finding that he
did not establish that he sustained an injury in the course of his employment. It found that he
removed himself from coverage of FECA when he went to the parking garage during his work
shift. OWCP noted that the employing establishment leased the parking garage and provided
shuttle buses to the facility. It found that appellant had not explained why he went to the parking
garage at that time or why he did not take a shuttle bus.
On October 15, 2011 appellant requested reconsideration. In a letter dated November 22,
2011, he asserted that he was on sick leave at the time of the August 10, 2010 incident and
maintained that the employing establishment was “unable to provide any material evidence to the
contrary.”
By letter dated December 8, 2011, the employing establishment reiterated that appellant
was not on scheduled leave at the time of the incident. It submitted a timecard showing that he
was scheduled to work from 8:00 a.m. to 4:30 p.m. and that he had not requested leave.
In a decision dated January 3, 2012, OWCP denied modification of its October 18, 2010
decision. It found that he removed himself from coverage of FECA when he went to the garage
two hours before his shift ended without explanation. OWCP determined that appellant had not
established that he was on sick leave at the time of the robbery.
On appeal, appellant argued that a leave log showed that he was on approved sick leave
at the time of the incident.

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LEGAL PRECEDENT
FECA3 provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.5 In the course of employment relates to the elements of time, place and work
activity.6 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in his master’s business, at a place where he
may reasonably be expected to be in connection with his employment and while he was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto.
The Board has pointed out that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employing establishment contracted for the exclusive use by its employees of the parking
area, whether parking spaces on the lot were assigned by the employing establishment to its
employees, whether the parking areas were checked to see that no unauthorized cars were parked
in the lot, whether parking was provided without cost to the employees, whether the public was
permitted to use the lot and whether other parking was available to the employees. Mere use of a
parking facility, alone, is not sufficient to bring the parking lot within the premises of the
employing establishment. The premises doctrine is applied to those cases where it is
affirmatively demonstrated that the employer owned, maintained or controlled the parking
facility, used the facility with the owner’s special permission or provided parking for its
employees.7
An employee’s presence at the employing establishment’s premises during work hours,
or a reasonable period before or after a duty shift, is insufficient, in and of itself, to establish
entitlement to benefits for compensability. The claimant must also establish the concomitant
requirement of an injury arising out of the employment. This encompasses not only the work
setting, but also the causal concept that some factor of the employment caused or contributed to
the claimed injury. In order for an injury to be considered as arising out of the employment, the
facts of the case must show substantial employer benefit is derived or an employment
requirement gave rise to the injury.8

3

Supra note 1.

4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
6

D.L., 58 ECAB 667 (2007).

7

See L.L., Docket No. 12-194 (issued June 5, 2012); R.M., Docket No. 07-1066 (issued February 6, 2009).

8

See Cheryl Bowman, 51 ECAB 519 (2000); Shirlean Sanders, 50 ECAB 299 (1999); Charles Crawford, 40
ECAB 474 (1989).

4

ANALYSIS
Appellant alleged that he sustained a psychological condition as a result of being robbed
at gunpoint in a parking garage. OWCP found that he was not injured in the performance of duty
on August 6, 2010 as he had deviated from his regular employment duties.
Appellant had fixed hours and a fixed place of employment. He was injured during his
work tour behind a parking garage.9 The employing establishment indicated that appellant was
on the grounds of the parking garage at the time of the robbery. The parking garage was leased
for and used solely by employees of the employing establishment. Employees were assigned a
parking permit in order to use the garage. The employing establishment provided a shuttle bus to
take employees from the garage to the main entrance of the hospital. Under these circumstances,
the Board finds that the parking garage was part of the employing establishment’s premises.10
OWCP denied appellant’s claim because he left his work location prior to the end of his
tour of duty, thereby removing himself from the performance of duty. As discussed, the mere
fact that the employee was on the premises at the time of injury is not sufficient to establish
entitlement to compensation benefits. It must also be established that he or she was engaged in
activities which may be described as incidental to his or her employment, i.e., that he or she was
engaged in activities which fulfilled or were incidental to his or her employment duties. In Mary
Beth Smith,11 the employee left her office building to attend to her injured child who was located
in another building at the employing establishment’s day care center. When she entered the
other building, the employee stumbled over the carpet and fractured her left foot. The Board
stated:
“Although appellant obtained permission from her supervisor to leave the
building in which her workstation was located to attend to her injured child, her
injury cannot be characterized as a ‘special mission’ authorized by the [employing
establishment] to further the business or mission of the agency. Upon her
departure from her workstation, [she] was no longer engaged in her master’s
business, but in a personal mission which was not related to the fulfillment of her
employment duties or responsibilities. Whether a particular case is or is not
within the scope of FECA depends upon the general test of whether the particular
risk may be stated to be reasonably incidental to the employment, having in mind
all relevant circumstances and the conditions under which the work is required to
be performed.12
9

It is unclear exactly where the robbery occurred. The premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. See R.B., Docket
No. 11-1320 (issued September 5, 2012). In a letter dated October 5, 2012, Mr. Sambrook indicated that appellant
was on the grounds of the Mt. Sinai parking lot at the time of the robbery.
10

See D.L., 58 ECAB 217 (2007); Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004); Wilmar Lewis Prescott,
22 ECAB 318 (1971).
11

Mary Beth Smith, 47 ECAB 747 (1996).

12

Id. at 749.

5

In Robert A. Pszczolkowski,13 the claimant was injured during working hours in a parking
lot on the premises of the employing establishment when he left his building to get personal mail
from his vehicle and fell on ice. The Board held that he was not in the performance of duty as
his action was not reasonably incidental to employment but constituted a personal mission
unrelated to employment. The Board further found that obtaining his mail was not an activity
necessary for personal comfort or ministration.14
Appellant was injured at 2:30 p.m. behind a parking garage located around a 5- to
10-minute walk from his duty station. His tour of duty ended at 4:30 p.m. Appellant indicated
that he was on sick leave at the time of the injury. The employing establishment, however,
asserted that he had not submitted a leave request at the time of the robbery and was not
conducting any official business. Appellant has not submitted any evidence showing that he was
engaged in any duty reasonably incidental to his employment at the time of the robbery.
Accordingly, as he departed from his workstation for unknown reasons and without
authorization, he was not in the performance of duty at the time of the August 6, 2010 incident.
On appeal, appellant argued that a leave log showed that he was on approved sick leave
at the time of the incident and submitted supporting evidence. However, the Board cannot
consider evidence that was not before OWCP at the time of its decision.15 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 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
August 6, 2010 in the performance of duty.

13

Docket No. 01-1645 (issued April 11, 2002).

14

Id.

15

20 C.F.R. § 501.2(c)(1).

6

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
El Paso, AR, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1428
Issued: February 1, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 18, 2012 appellant, through her attorney filed a timely appeal from a
February 14, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying
an additional schedule award and from a May 17, 2012 nonmerit decision declining to reopen the
schedule award claim. The Board assigned Docket No. 12-1428. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merit and nonmerit issues of the case.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch,2 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.
On June 30, 2011 OWCP issued a merit schedule award decision granting appellant one
percent impairment of her left upper extremity. Appellant requested an oral hearing before an
OWCP hearing representative. She testified and later submitted a report dated January 13, 2012
from Dr. M. Stephen Wilson, an orthopedic surgeon. This report included an impairment rating
of appellant’s left upper extremity under the sixth edition of the American Medical Association,
1

5 U.S.C. § 8101 et seq.

2

41 ECAB 548 (1990). See also B.B., Docket No. 12-657 (issued November 13, 2012).

Guides to the Evaluation of Permanent Impairment.3
January 20, 2012.

OWCP received this report on

OWCP’s February 14, 2012 merit decision did not mention Dr. Wilson’s report. The
hearing representative’s decision specifically stated that no additional medical evidence was
submitted. Appellant requested reconsideration of the February 14, 2012 merit decision on
March 1, 2012 and resubmitted Dr. Wilson’s January 13, 2012 report. In its May 17, 2012
decision, OWCP declined to reopen appellant’s claim for consideration of the merits on the
grounds that Dr. Wilson’s report was considered in the February 14, 2012 decision and was
repetitious.4
The Board finds that OWCP, in the February 14 and May 17, 2012 decisions, did not
review the January 13, 2012 medical report from Dr. Wilson. For this reason, the case will be
remanded to OWCP to enable it to properly consider all the evidence submitted prior to these
decisions. Following such further development as OWCP deems necessary, it shall issue an
appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the May 17 and February 14, 2012 decisions of the
Office of Workers’ Compensation Programs are set aside. The case record is remanded to
OWCP for further proceedings consistent with this order of the Board.
Issued: February 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3

A.M.A., Guides, 6th ed. (2009).

4

Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review of the merits of
the claim by submitting in writing an application for reconsideration which sets forth arguments or evidence and
shows that OWCP erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by OWCP; or includes relevant and pertinent new evidence not previously considered by
OWCP. 20 C.F.R. § 10.606.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cedar Rapids, IA, Employer
__________________________________________

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

Docket No. 07-748
Issued: July 13, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed a timely appeal from an October 23, 2006 decision of
the Office of Workers’ Compensation Programs terminating his compensation benefits based
upon a refusal of suitable work and a January 12, 2007 nonmerit decision denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits under 5 U.S.C. § 8106(c) based on his refusal to accept an offer of suitable employment;
and (2) whether the Office properly refused to reopen his claim for further review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an October 21, 2004
decision, the Board reversed a January 20, 2004 decision by an Office hearing representative
who affirmed the termination of appellant’s compensation effective April 8, 2003 on the grounds
that he refused an offer of suitable work.2 The Board found that there was an unresolved conflict
in the medical opinion evidence between Dr. Henry W. Snead, an attending Board-certified
internist, that opined appellant was permanently disabled from working and Dr. Douglas M.
Cooper, a second opinion Board-certified orthopedic surgeon, who concluded that appellant was
capable of working eight hours per day with restrictions. The facts and the history contained in
the prior appeal are incorporated herein by reference.
The Office referred appellant to Dr. Michael Charles H. Longley, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence as to whether
appellant was capable of working with restrictions. On May 6, 2005 Dr. Longley reviewed a
history of injury and reported results on examination. He diagnosed lumbar spine degenerative
disc disease, lumbar spine stenosis, degenerative scoliosis, lumbosacral spondylolysis, acquired
spondylolisthesis, right leg pain, lumbago, low back pain and adult onset diabetes. Dr. Longley
concluded that appellant was capable of working with restrictions. He noted that appellant
would have problems with prolonged walking or standing “[g]iven his comorbidity of his left
ankle fusion.” Based upon appellant’s “significant lumbar dis[c] degeneration and moderate
lumbar spinal stenosis, Dr. Longley opined that he was able to perform light-duty work eight
hours a day with restrictions, which included occasional twisting and bending and no lifting
more than 20 pounds. With respect to his ability to drive, Dr. Longley noted:
“Given the fact that [appellant] is driving and appears to have normal mentation
despite his present medical usage, I do not believe that his present medical usage
should significantly impede his ability to return to gainful employment.”
In an attached work capacity evaluation form (OWCP-5C), Dr. Longley indicated that appellant
was capable of walking, bending/stooping and standing for up to two hours per day, pushing and
pulling up to 50 pounds, lifting up to 20 pounds and was able to drive to and from work.
In letters dated June 23 and July 18, 2005, the Office requested clarification from
Dr. Longley regarding appellant’s ability to drive and whether the conditions he diagnosed were
employment related.
On August 2, 2005 Dr. Longley responded that it was “difficult to directly relate
[appellant’s] present lumbar condition to a discrete work-related injury.” He opined that it was
1

Docket No. 04-1857 (issued December 21, 2004).

2

On June 19, 2000 appellant, a 55-year-old postmaster, filed an occupational disease claim alleging that his back
injury was employment related. He indicated that he had prior employment-related back injuries in 1978 and 1983.
The Office accepted appellant’s June 19, 2000 claim for bilateral aggravation of spinal stenosis at L3-4, L4-5 and
subsequently placed him on the periodic rolls for temporary total disability. The Office of Personnel Management
approved appellant’s disability retirement application on April 24, 2001. On February 10, 2002 appellant filed an
election form opting to receive benefits under the Act effective May 20, 2001.

2

more probable that appellant’s current back condition was more likely “secondary to progressive
disc degeneration” associated with his prior spinal problems. As to the work restrictions,
Dr. Longley stated that appellant’s “ankle fusion significantly restricts his ability to stand and
walk” and he “continues to take significant narcotic medications.” He indicated that appellant’s
ability to drive safely could potentially be impaired by the use of the narcotic medications.
Dr. Longley related that, “while his mentation may be unaffected it is undoubtable that
[appellant’s] reaction time would be significantly affected.” He stated that he could not
recommend that appellant be allowed to return to regular and consistent driving activities as part
of his occupation. On September 28, 2005 appellant elected to receive benefits effective April 9,
2003 under Federal Employees’ Compensation Act.
In a report dated October 10, 2005, Dr. Snead referred appellant to the Mayo Clinic for
evaluation due to his pain which has “become progressively worse and debilitating.
On January 5, 2006 the Office requested clarification from Dr. Longley on the issue of
whether appellant would be able to drive 25.32 miles to work one way.
In a report dated February 24, 2006, Dr. Snead indicated that appellant was using
Duragesic and that he had been advised not to drive while using this medication.
On April 18, 2006 the employing establishment offered appellant the position of
modified part-time flexible (PTF) clerk. The hours were 8:00 p.m. to 4:30 a.m. with Sunday and
Wednesday as nonscheduled workdays. The position was located at 300 Sycamore, Waterloo,
IA. Physical requirements of the position included intermittent sitting up to 8 hours per day,
intermittent walking, standing and bending up to 2 hours per day, pushing and pulling up to 50
pounds, no squatting, climbing, kneeling or twisting and no lifting more than 20 pounds.
In a letter dated April 28, 2006, appellant declined the offered position. He noted that the
date of injury was incorrect. Appellant contended that it would be wrong for him to accept the
position of modified clerk as he had been a postmaster when he left the employing establishment.
On May 3, 2006 the Office requested clarification from Dr. Longley on the issue of whether
appellant would be able to drive 50.64 miles going to and from work. On April 25 and May 5,
2006 Dr. Longley checked “yes” that appellant was able to drive the 50.64 miles to and from
work.
In a May 25, 2006 letter, the Office advised appellant that the offered modified mailing
requirements clerk position was suitable work within his medical restrictions. The Office
afforded appellant 30 days in which to either accept the position or provide good cause for
refusal. The Office also advised appellant that, under section 8106(c) of the Act, he would lose
his entitlement to monetary compensation if he refused suitable work.
In a June 13, 2006 letter, appellant reiterated that it would be unjust for the employing
establishment to force him to accept the position and work nights. He also stated that he was
having back surgery in September/October of that year.
In a September 14, 2006 letter, the Office advised appellant that the offered position was
found to be suitable work and remained available. It afforded appellant 15 days to accept the
position or incur the termination of his compensation benefits. The Office stated that no further
3

reasons for refusal would be considered. In response, appellant noted that he was unable to work
nights due to his diabetes and having to take his pain patches at night if he was working.
By decision dated October 23, 2006, the Office terminated appellant’s monetary
compensation benefits effective October 28, 2006 under section 8106(c) of the Act, on the
grounds that he refused an offer of suitable work. The Office found that the weight of the
medical evidence rested with Dr. Longley, who opined that appellant could return to limited-duty
work and was capable of driving to and from work. The Office further found that the offered
modified PTF clerk position was in keeping with the restrictions of Dr. Longley.
On January 3, 2007 appellant requested reconsideration. He noted that he was not
supposed to drive while wearing his pain patches which he used at night.
On January 12, 2007 the Office denied appellant’s request for reconsideration without
reviewing the merits of the case.
LEGAL PRECEDENT -- ISSUE 1
The Act provides at section 8106(c)(2) that a partially disabled employee who refuses or
neglects to work after suitable work is offered is not entitled to compensation.3 Once the Office
accepts a claim, it has the burden of justifying termination or modification of compensation
benefits under section 8106 for refusing to accept or neglecting to perform suitable work.4 The
Board has recognized that section 8106(c) serves as a penalty provision as it may bar an
employee’s entitlement to future compensation and, for this reason, will be narrowly construed.5
To establish that a claimant has abandoned suitable work, the Office must substantiate that the
position offered was consistent with the employee’s physical limitations and that the reasons
offered for stopping work were unjustified.6 The issue of whether an employee has the physical
ability to perform a modified position offered by the employing establishment is primarily a
medical question that must be resolved by the medical evidence of record.7
Section 10.517(a) of the Act’s implementing regulation provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has

3

5 U.S.C. § 8106(c)(2).

4

See Bryant F. Blackmon, 56 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Howard Y.
Miyashiro, 51 ECAB 253 (1999).
5

See Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004); H. Adrian Osborne,
48 ECAB 556 (1997).
6

See Wayne E. Boyd, 49 ECAB 202 (1997).

7

See John E. Lemker, 45 ECAB 258 (1993); Camillo R. DeArcangelis, 42 ECAB 941 (1991).

4

the burden of showing that such refusal or failure to work was reasonable or justified.8 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.9
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.10
ANALYSIS -- ISSUE 1
The initial question presented is whether the offered job was medically suitable. In the
prior appeal, the Board found a conflict in the medical evidence between Dr. Snead, the
attending physician, and the second opinion physician, Dr. Cooper, regarding appellant’s ability
to work. Dr. Snead opined that appellant was totally disabled, while Dr. Cooper found that he
could work full time within specified restrictions. The Act provides that, if there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make the
examination.11 The Office will select a physician who is qualified in the appropriate specialty
and who has no prior connection with the case.12
Dr. Longley, the impartial medical specialist, diagnosed lumbar spine degenerative disc
disease, lumbar spine stenosis, degenerative scoliosis, lumbosacral spondylolysis, acquired
spondylolisthesis, right leg pain, lumbago, low back pain and adult onset diabetes. He provided
an unequivocal opinion that appellant was capable of working eight hours in a light-duty position
and capable of driving to and from work. Dr. Longley attributed appellant’s condition to
progressive disc degeneration related to prior spinal problems. He indicated that appellant
should not lift more than 20 pounds, no more than 2 hours per day of standing, bending/stooping
and walking, pushing and pulling up to 50 pounds and was within 25.32 miles of his home. The
Board finds that he provided a reasoned medical opinion that is entitled to the special weight
accorded to a referee examiner.
The offered position did not require more than 20 pounds lifting. The restrictions for the
position included no lifting more than 20 pounds, 2 hours per day of standing, bending/stooping,
walking and pushing and pulling up to 50 pounds. Also, the position was located within 25.32 of
appellant’s home. The offered position conforms to the restrictions noted by Dr. Longley. The
Board finds that, based on the weight of the medical evidence, the offered position of modified
mail processing clerk was medically suitable.
8

20 C.F.R. § 10.517(a); Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004);
Ronald M. Jones, 52 ECAB 190 (2000).
9

20 C.F.R. § 10.516; Mary E. Woodard, 57 ECAB ___ (Docket No. 05-1023, issued November 14, 2005).

10

R.C., 58 ECAB ___ (Docket No. 06-1676, issued December 26, 2006).

11

5 U.S.C. § 8123(a). See S.G., 58 ECAB ___ (Docket No. 07-30, issued February 26, 2007).

12

20 C.F.R. § 10.321. See R.C., 58 ECAB ___ (Docket No. 06-1676, issued December 26, 2006).

5

The Office notified appellant of its finding that the modified secretary job offer was
suitable and of the consequences for not accepting a suitable offer. Appellant contended that the
position was not suitable as he had been a postmaster and it would be unjust to force him to
accept the position. The Office found that appellant’s reasons for refusing the position were not
in accord with established procedures, the Office provided appellant an additional 15 days to
accept the position prior to termination of compensation. Appellant alleged that the position was
not suitable because his medication made him unable to drive to work and his diabetes precluded
him from working at night. The Board notes that the duties of the offered position were within
his restrictions provided by Dr. Longley. Appellant did not submit medical evidence to establish
that working nights or duties of the position were outside his physical restrictions. The
employing establishment complied with the restrictions noted by Dr. Longley by offering the job
with restrictions on lifting, standing and the driving distance to and from work. The Office
obtained an additional opinion from Dr. Longley that appellant was capable of driving to work.
As the job complied with his physical restrictions, appellant failed to submit medical evidence to
establish that he was physically unable to perform the duties of the offered position or was
impaired from performing the job due to his medication or diabetes. The record is devoid of any
medical evidence supporting appellant’s contention that the medication he takes would prevent
him from performing the duties of the offered position or precluded him from driving to work or
working nights. The record is also devoid of any medical evidence supporting his allegation that
his diabetes precludes him from working a night shift. The Office properly terminated
appellant’s wage-loss compensation effective October 28, 2005 on the grounds that he refused an
offer of suitable work.13
LEGAL PRECEDENT -- ISSUE 2
The Act14 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.15 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.16
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.17
13

Mary E. Woodard, 57 ECAB ___ (Docket No. 05-1023, issued November 14, 2005); Joyce M. Doll, 53 ECAB
790 (2002).
14

5 U.S.C. § 8101 et seq.

15

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

16

20 C.F.R. § 10.605.

17

20 C.F.R. § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

6

An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.18 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.19
ANALYSIS -- ISSUE 2
Appellant disagreed with the finding that he refused an offer of suitable work and the
termination of his benefits. He requested reconsideration on January 3, 2007. However,
appellant did not make any specific argument in support of his request for reconsideration. He
did not submit any relevant and pertinent new evidence in support of his request. Appellant’s
reconsideration request failed to show that the Office erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by the Office.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his January 3, 2007 request for reconsideration
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective October 28, 2006. The Board further finds that the Office properly
denied his request for reconsideration pursuant to 5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

19

20 C.F.R. §10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005)

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 12, 2007 and October 23, 2006 are affirmed.
Issued: July 13, 2007
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 12-186
Issued: May 21, 2012

Case Submitted on the Record

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

JURISDICTION
On November 2, 2011 appellant filed a timely appeal from the October 5, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs’ (OWCP), which denied
reconsideration. As more than 180 days has elapsed between OWCP’s issuance of its
December 22, 2010 merit decision and the filing of the appeal on November 2, 2011 pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board only has jurisdiction to review the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s August 11, 2011 reconsideration
request pursuant to 5 U.S.C. § 8128(a) of FECA.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2000 appellant, a 49-year-old mail handler, filed an occupational
disease claim alleging that he sustained bilateral cubital tunnel syndrome as a result of repetitive
activity in his light-duty federal job. In the prior appeal,2 the Board found that he did not meet
his burden of proof. The medical evidence noted a possible cubital tunnel syndrome diagnosis
but did not support causal relationship with employment. The medical evidence showed a
diagnosis of lateral and medial epicondylitis but provided no rationalized opinion on causal
relationship. The medical evidence did not provide a complete history of appellant’s
employment activities. The Board affirmed the denial of his injury claim.
OWCP reviewed the merits of appellant’s case on December 22, 2010 and denied
modification of its prior denial. It found that appellant’s physician did not show knowledge of
his work duties. Further, appellant’s physician’s did not provide a firm diagnosis of cubital
tunnel syndrome, nor did they explain the relationship between any such condition and the
implicated work factors.
On August 11, 2011 appellant requested reconsideration. He argued that his bilateral
cubital tunnel syndrome was caused by performing the duties of a mail handler on the truck
terminal from May until June 2, 1997. Appellant submitted a May 20, 1997 routing slip
releasing him from temporary limited duty effective May 8, 1997 to his regular job assignment.
He submitted the position description describing the duties and responsibilities of a mail handler.
Appellant also submitted a September 16, 1997 functional capacity evaluation cover sheet
showing a diagnosis of bilateral carpal tunnel syndrome and providing a description of mail
handler duties.
In a decision dated October 5, 2011, OWCP denied appellant’s reconsideration request
without reviewing the merits of his case. It found that his letter, the functional capacity
evaluation coversheet and the copy of his position description failed to provide evidence of a
diagnosed medical condition arising out of his job duties.
On appeal, appellant argues the merits of his case, including how he was released to his
regular job assignment when he was, in fact, released to work with restrictions that would
gradually ease. He states that his cubital tunnel syndrome was a result of performing the duties
of a mail handler after being released from limited duty and placed back on his regular job.
Appellant addresses medical evidence discussed in the Board’s prior decision.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.3 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
2

Docket No. 08-1832 (issued January 21, 2009). The facts of this case, as set out in the Board’s prior decision,
are hereby incorporated by reference.
3

5 U.S.C. § 8128(a).

2

decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.4
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.5 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
Appellant timely sent his August 11, 2011 reconsideration request within one year of
OWCP’s December 22, 2010 merit decision denying his injury claim. The issue presented on
appeal, therefore, is whether his request met any of the requirements of 20 C.F.R. § 10.606(b)(2),
thereby requiring OWCP to reopen his case for a merit review.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law. He did not identify a specific point of law or show how OWCP erroneously applied or
interpreted it. Appellant did not advance a relevant legal argument not previously considered by
OWCP. He simply repeated his claim that his bilateral cubital tunnel was caused by performing
the duties of a mail handler on the truck terminal from May until June 2, 1997.
OWCP denied that claim because appellant’s physician did not show knowledge of his
work duties, did not provide a firm diagnosis of cubital tunnel syndrome for the elbows and did
not explain the relationship between any such condition and the implicated work factors. Rather
than submit a medical report from his physician addressing each of these deficiencies, appellant
submitted a routing slip releasing him from temporary limited duty to his regular job assignment,
a position description for mail handler and a functional capacity evaluation cover sheet showing
a diagnosis of bilateral carpal tunnel syndrome and providing a description of mail handler
duties. A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but the evidence appellant submitted was not pertinent or relevant. The evidence did
not come from a qualified physician and did not address the deficiencies OWCP found in its
most recent merit decision. It is appellant’s physician who must demonstrate an understanding
of the specific duties of his work duties; it is his physician who must provide a firm diagnosis of
cubital tunnel syndrome; and it is his physician who must soundly explain the relationship
between any diagnosed condition and the specific implicated work factors.

4

20 C.F.R. § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

3

Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, did not advance a relevant legal argument not previously considered by
OWCP and did not submit relevant and pertinent new evidence not previously considered by
OWCP. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. The Board will
affirm OWCP’s October 5, 2011 decision denying appellant’s request.
Appellant argues the merits of his case on appeal, but the question presented to the Board
is quite narrow: whether his August 11, 2011 reconsideration request met one of the three
standards for obtaining a merit review of his case. His argument that he was released to his
regular job assignment when he was, in fact, released to work with restrictions and his argument
that his cubital tunnel syndrome was a result of performing the duties of a mail handler after
being released from limited duty and placed back on his regular job, do not address the issue on
appeal. To the extent that appellant disagrees with the Board’s prior finding that the medical
opinion evidence was insufficient to establish a diagnosed condition causally related to factors of
his federal employment, decisions and orders of the Board are final as to the subject matter
appealed. The Board’s January 21, 2009 decision became final upon the expiration of 30 days
from the date of issuance.7
CONCLUSION
The Board finds that OWCP properly denied appellant’s August 11, 2011 reconsideration
request.

7

Id. at § 501.6(d).

4

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Francis J. Hurley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1789
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On July 20, 2011 appellant filed a timely appeal from an April 12, 2011 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 met its burden of proof to terminate appellant’s monetary
compensation effective August 30, 2010 on the grounds that she was no longer disabled due to a
May 6, 2009 employment injury.
On appeal, counsel asserts that OWCP did not meet its burden of proof to terminate
appellant’s wage-loss compensation because the opinion of the second opinion examiner was not
based on a proper factual and medical background. In the alternative, conflict in medical opinion
was created.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 6, 2009 appellant, then a 50-year-old part-time mail handler, was injured while
manually unloading trucks on the loading dock. She was taken to the hospital where she spent
the night.2 OWCP accepted that appellant sustained an employment-related left wrist sprain,
contusion of the left elbow, a bilateral shoulder sprain and a thoracolumbar sprain of the back.
Appellant did not return to work.
In reports dated May 12 to July 9, 2009, Dr. Olarewaju J. Oladipo, an orthopedic
surgeon, provided findings on examination and advised that he was treating appellant for acute
pain management. He diagnosed left elbow contusion, thoracolumbar sprain/strain, left wrist
sprain, bilateral shoulder sprain, and headache and advised that appellant could not work.
On July 20, 2009 OWCP requested that Dr. Oladipo provide an opinion regarding
appellant’s return to work and if she had reached maximum medical improvement. In a July 22,
2009 response, Dr. Oladipo listed his fee for reviewing appellant’s record. He provided
additional reports describing appellant’s physical findings and treatment. Dr. Oladipo diagnosed
metatarsalgia and limb edema.
By letter dated October 16, 2009, OWCP informed appellant that a medical management
nurse was assigned to facilitate her recovery. The nurse made numerous attempts to contact
appellant by telephone and correspondence. Appellant did not respond and the nurse visitation
case was closed.
In December 2009 OWCP scheduled a second opinion evaluation with Dr. Joel A.
Saperstein, a Board-certified orthopedic surgeon, at 10:30 a.m. on December 14, 2009.
Appellant did not attend the scheduled appointment.
On December 22, 2009 OWCP proposed to suspend her compensation benefits on the
grounds that she failed to appear for the examination scheduled with Dr. Saperstein.3
In a January 21, 2010 decision, OWCP finalized the proposed suspension effective
January 7, 2010.
Appellant subsequently submitted to examination. By report dated April 9, 2010,
Dr. Saperstein noted the history of injury, review of the medical record, and the statement of
accepted facts, and appellant’s complaint of constant back pain, worse when up and walking and
her job duties. Throughout the interview, appellant was very verbal and appeared distraught,
extremely fatigued and angry. Dr. Saperstein advised that she had a poor memory and did not
have an accurate recollection of the diagnoses made by Dr. Oladipo. On examination,
appellant’s heel-toe gait was normal, and there was no specific weakness of extensors of her toes
and no peripheral edema in the legs. Ankle motion was slightly limited. Peripheral circulation
was good, and calf measurement was equal bilaterally. Upper extremity and lower extremity
peripheral reflexes were normal. Neck and shoulder motion were normal in all directions and
2

The record contains the hospital report of discharge instructions.

3

Physical therapy services were discontinued on December 24, 2009 secondary to noncompliance. The physical
therapist noted that appellant stated that she was in too much pain to do physical therapy and would not return.

2

reflexes were intact. Appellant had a small cyst-like formation over the abductor tendons of the
right wrist. She had full motion about the elbow, wrist and hand on the left side. Dr. Saperstein
advised that appellant’s back demonstrated a somewhat increased lordosis, and she could only
flex forward holding her hands on her knees, and could not flex any further when standing,
although she was able to sit on the examining table with her knees flexed to 90 degrees. He
stated that she exhibited mild pain on extension and rotation of her back. Hip and knee
examinations were normal. Dr. Saperstein found no indication of radiculopathy and no
neurological deficit. He opined that appellant had subjective pain, not verified by any significant
objective findings, with significant Waddelian findings.
Dr. Saperstein diagnosed significant behavioral abnormality, with chronic unverifiable
back pain; back strain, resolved; shoulder, elbow and wrist pain, left, resolved; and cyst on the
right wrist, not related to the industrial trauma. He found that appellant did not have any
significant residuals of the accepted employment-related conditions.
There was no
documentation or indication that she had radiculopathy and no record that a magnetic resonance
imaging (MRI) scan study had been obtained. Dr. Saperstein advised that appellant was fully
recuperated from her multiple contusions and back strain, and suffered from a behavioral
abnormality of an unknown causation. He advised that she did not need further pain
management or further orthopedic treatment, and that the use of narcotic medication was
inappropriate. Dr. Saperstein recommended evaluation by a psychologist. He concluded that
appellant could return to work as a mail handler for 40 hours per week. In an attached work
capacity evaluation, Dr. Saperstein advised that she had reached maximum medical improvement
and could perform her usual job without restrictions.
Dr. Oladipo submitted reports with an additional diagnosis of left sacroiliac joint pain.
He advised that appellant could not return to work. On June 13, 2010 Dr. Oladipo noted her
complaints of low back pain, headache, bilateral elbow pain, upper back pain, left elbow
swelling, left wrist pain with swelling, bilateral foot pain and bilateral leg swelling. He stated
that appellant’s gait had improved and that right upper extremity and left elbow, wrist and
shoulder were normal on examination. Thoracolumbar spine examination demonstrated severe
tenderness over the paraspinal musculature and significant spasm with limited range of motion.
Straight leg raise was normal and there was no neurological deficit. Dr. Oladipo noted that
multiple radiological studies were reviewed and diagnosed left elbow contusion, thoracolumbar
sprain/strain, left wrist sprain, left shoulder sprain, right shoulder sprain, headache, bilateral
metatarsalgia, limb edema, left sacroiliac joint pain and myofascial syndrome. He advised that
appellant was unfit to return to work.
In a letter dated July 20, 2010, OWCP proposed to terminate appellant’s monetary
compensation on the grounds that the medical evidence, as characterized by Dr. Saperstein’s
report, established that she was no longer disabled due to her work-related conditions. Appellant
submitted an unsigned treatment note.4 In an attached disability slip, signed by Margarita
Hermosa, a nurse practitioner, advised that appellant was considered unfit to return to work.
Dr. Oladipo signed a similar slip on August 19, 2010.
4

Physical examination of the thoracolumbar spine demonstrated increased severity in tenderness in the paraspinal
musculature with localized tenderness in the sacroiliac joint and limited range of motion. Straight leg raise was
normal and there was no neurological deficit. Left elbow, wrist and shoulder were normal to examination, as was
the right upper extremity.

3

By decision dated August 23, 2010, OWCP finalized the termination of wage-loss
compensation, effective August 29, 2010. Appellant was still entitled to medical benefits for the
accepted condition.
Appellant, through her attorney, timely requested a hearing. In reports dated August 19,
2010 to January 6, 2011, Dr. Oladipo reiterated his previous findings and conclusions, including
that appellant’s upper extremity examination was normal and that she had significant tenderness
and spasm in the lumbar and sacroiliac region with decreased range of motion. He stated that
multiple radiological studies were reviewed and advised that she could not work.
At the January 19, 2011 hearing, appellant described her job duties. She stated that on
the date of injury she felt her back snap, her legs gave out, and she fell and blacked out for a few
minutes. Appellant was taken by ambulance to the hospital and was kept overnight and began
treatment with Dr. Oladipo shortly thereafter. She described constant, radiating back pain which
limited standing and walking. Appellant contended that Dr. Saperstein was extremely
unprofessional, conducted a very brief examination and did not examine her back. Her attorney
argued that Dr. Oladipo’s reports represented the weight of medical opinion. Appellant
submitted reports from Dr. Oladipo dated November 11, 2010 to March 17, 2011.
By decision dated April 12, 2011, an OWCP hearing representative found that the weight
of the medical evidence rested with the opinion of Dr. Saperstein and affirmed the August 23,
2010 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s monetary
compensation effective August 30, 2010. OWCP accepted that on May 6, 2009 appellant
sustained a wrist sprain, contusion of the left elbow, a bilateral shoulder sprain, and a
thoracolumbar sprain when she was injured while unloading postal trucks. Appellant did not
return to work and received wage-loss compensation.7 By decision dated August 23, 2010,
OWCP terminated her compensation effective August 30, 2010, on the grounds that the medical
evidence established that she could return to her regular duties.
OWCP terminated benefits based on Dr. Saperstein’s April 9, 2010 second opinion
evaluation. Dr. Saperstein noted the history of injury, reviewed the statement of accepted facts
5

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

6

Id.

7

Supra note 4.

4

and medical record and appellant’s complaint of constant back pain. He provided physical
examination findings, stating that she had no indication of radiculopathy and no neurological
deficit. Dr. Saperstein opined that appellant had subjective pain, not verified by any significant
objective findings, with significant Waddelian findings. He diagnosed significant behavioral
abnormality, with chronic unverifiable back pain; back strain, resolved; shoulder, elbow and
wrist pain, left, resolved; and cyst on the right wrist, not related to the industrial trauma.
Dr. Saperstein advised that appellant was fully recuperated from her multiple contusions and
back strain, and suffered from a behavioral abnormality with an unknown causation. He stated
that she had reached maximum medical improvement and was capable of returning to full-time
work as a mail handler with no restrictions and needed no further pain management or
orthopedic treatment.
Appellant submitted a number of medical reports in which Dr. Oladipo diagnosed
conditions that were not accepted as employment-related, i.e., headache, metatarsalgia, limb
edema, left sacroiliac pain and myofascial syndrome. It is her burden to provide rationalized
medical evidence sufficient to establish causal relation for conditions not accepted by OWCP as
being employment related.8 Dr. Oladipo did not provide adequate explanation as to how these
conditions were caused by the May 6, 2009 employment injury. Moreover, his diagnoses
regarding the upper extremities are not consistent with his findings on physical examination
since he explained that appellant had normal upper extremity examinations. While Dr. Oladipo
diagnosed spasm and tenderness of the thoracolumbar spine, he did not explain why the
thoracolumbar strain that occurred on May 9, 2009 continued to cause disability from work. He
advised that appellant could not return to work but provided no explanation for this conclusion.
Dr. Oladipo did not provide a rationalized explanation as to how or why the accepted
thoracolumbar sprain caused her continuing disability and his reports are of limited probative
value.9
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.10 The Board finds that the weight of the medical evidence
rests with the April 9, 2010 second opinion evaluation of Dr. Saperstein. Contrary to appellant’s
argument on appeal, Dr. Saperstein provided a comprehensive evaluation based on his review of
the statement of accepted facts and medical record, the history of injury, her complaints of
continued back pain and physical examination findings. He advised that she had recovered from
the injuries sustained on May 6, 2009, that there was no need for further treatment referable to
this injury, and that she could return to her usual job of mail handler without restrictions. The
Board finds that, as there is no reasoned contemporaneous medical evidence supporting
appellant’s claim for continuing disability, OWCP properly found that appellant had no disability
8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factor. The opinion of a physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factor identified by the
claimant. Sedi L. Graham, 57 ECAB 494 (2006).
10

C.B., Docket No. 08-1583 (issued December 9, 2008).

5

due to the May 9, 2009 employment injury and terminated her monetary compensation effective
August 30, 2010.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s monetary
compensation effective August 30, 2010.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

11

The Board notes that the reports from Ms. Hermosa do not constitute competent medical evidence as nurses
and physicians’ assistants are not “physicians” as defined under FECA and their opinions are of no probative value.
S.E., Docket No. 08-2214 (issued May 6, 2009).

6