United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________

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

Docket No. 18-0532
Issued: October 9, 2019

Case Submitted on the Record

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

JURISDICTION
On January 10, 2018 appellant filed a timely appeal from a July 18, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees ’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 18, 2017, the date of OWCP’s last decision, was
January 14, 2018. As that fell on a Sunday, and Monday, January 15, 2018 was a federal holiday, appellant had until
Tuesday, January 16, 2018 to file an appeal. See 20 C.F.R. § 501.3(f)(2). Because using January 18, 2018, the date
the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal right s, the date of the
postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). The date of the U.S. Postal Service postmark
is January 10, 2018, rendering the appeal timely filed. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish binaural
sensorineural hearing loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 8, 2017 appellant, then a 63-year-old lead shift operations supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss and tinnitus while
in the performance of duty. He explained that he worked in close proximity to equipment that
produced hazardous noise. Appellant further explained that, even in the control room, he was
exposed to very loud noise from turbines. He identified June 15, 2011 as the date he first became
aware of his claimed condition, and September 15, 2015 as the date he first realized its relation to
factors of his federal employment. Appellant voluntarily retired effective April 30, 2017.
OWCP received audiogram results dated September 12, 2016 and April 6, 2017.
At the request of the employing establishment, Whitney R. Mauldin, Ph.D., an audiologist ,
reviewed appellant’s federal and private sector occupational noise exposure, his reported
recreational exposure to firearms, as well as a series of audiograms from 1991 through 2017. In
an April 27, 2017 report, Dr. Mauldin concluded that appellant was not exposed to levels of
occupational noise that would be considered hazardous. Consequently, Dr. Mauldin found that
appellant’s current hearing loss was not work related.
After further development of the record regarding appellant’s occupational noise exposure,
OWCP prepared a June 8, 2017 statement of accepted facts (SOAF) and referred appellant to
Dr. Joseph A. Motto, a Board-certified otolaryngologist, for a second opinion evaluation.
In a July 12, 2017 report, Dr. Motto examined appellant and noted his exposure to noise.
He diagnosed mild high frequency symmetric sensorineural hearing loss at 4,000, 6,000, and 8,000
Hertz (Hz). Dr. Motto advised that the external auditory canals were dry and noted reduced drum
motility. He noted that there was no evidence of acoustic neuroma or Meniere’s disease.
Audiometric testing was conducted on the doctor’s behalf and testing at the frequency levels of
500, 1,000, 2,000, and 3,000 Hz revealed the following: right ear 15, 15, 15, and 15 decibels
(dBs); left ear 15, 20, 15, and 15 dBs. Dr. Motto noted the audiogram was within low normal
range with the exception of mild-high frequency loss beginning at 4,000 Hz. He further noted that
appellant developed hearing loss which was not consistent with noise-induced hearing loss.
Dr. Motto described the workplace exposure as of insufficient intensity and duration to have
caused the hearing loss. He provided a graph detailing appellant’s hearing loss. Dr. Motto opined
that the pattern of hearing loss was not typical of noise exposure and did not suggest that it was
causally related to his occupational exposure.
In a July 18, 2017 decision, OWCP denied the claim finding that the medical evidence of
record was insufficient to establish that appellant’s hearing loss was causally related to his
workplace noise exposure.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condit ion;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant ’s
specific employment factor(s). 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish binaural
sensorineural hearing loss causally related to the accepted factors of his federal employment.

3

Id.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 7.

10

Id.

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OWCP referred appellant to Dr. Motto a second opinion physician, who in a report dated
July 12, 2017, determined that appellant developed mild high frequency symmetric sensorineural
hearing loss at 4,000, 6,000, and 8,000 Hz. Dr. Motto noted there was no evidence of acoustic
neuroma or Meniere’s disease. Audiometric testing was conducted on the doctor’s behalf and he
noted the audiogram was within low normal range with the exception of mild high frequency loss
beginning at 4,000 Hz. Dr. Motto noted that he developed hearing loss which was not consistent
with noise-induced hearing loss. He described the workplace exposure as of insufficient intensity
and duration to have caused the hearing loss. Dr. Motto opined that the pattern of hearing loss was
not typical of noise exposure and did not suggest that it was causally related to his occupational
exposure.
The Board finds that Dr. Motto had specific knowledge of appellant’s employment factors
and opined, with rationale, that appellant’s hearing loss was not causally related to his federal
employment but was consistent with presbycusis and therefore carries the weight of the medical
evidence. As indicated, appellant must present medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors. 11 There is no other medical
evidence establishing causal relationship between appellant’s hearing loss and his federal
employment. Consequently, appellant has not met his burden of proof to establish his claim for
employment-related hearing loss.
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 appellant has not established binaural sensorineural hearing loss
causally related to the accepted factors of his federal employment.

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 18, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 9, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sandy Springs, OK, Employer
__________________________________________

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

Docket No. 14-1053
Issued: October 3, 2014

Case Submitted on the Record

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

JURISDICTION
On April 3, 2014 appellant filed a timely appeal of an October 22, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) concerning the termination of his
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective August 26, 2012 on the grounds that he no longer had
any residuals or disability causally related to his accepted employment-related injuries;
(2) whether appellant had any continuing employment-related residuals or disability after
August 26, 2012.
On appeal, appellant contends that OWCP erred in terminating his compensation benefits
as he continues to have residuals and disability from the accepted employment conditions. He
1

5 U.S.C. § 8101 et seq.

also argues that following the termination of his compensation there was a conflict in the medical
opinion evidence based on the newly submitted medical reports.
FACTUAL HISTORY
On September 30, 1993 appellant, then a 33-year-old maintenance custodian,2 filed a
traumatic injury claim alleging that on September 29, 1993 he injured his back, left leg, left hip,
rear end and testicles due to tripping and falling to the ground. OWCP accepted the claim for
cervical sprain, lumbar sprain, left ankle sprain, a herniated nucleus pulposus at L5-S1, bilateral
carpal tunnel syndrome, post-laminectomy syndrome, impotence of organic origin and thoracic
or lumbosacral neuritis or radiculitis. Appellant stopped work on December 15, 1993. By letter
dated March 16, 1995, OWCP placed him on the periodic rolls for temporary total disability and
authorized a lumbar discectomy and fusion, which was performed on August 16, 1994. A left
carpal tunnel release surgery was performed on April 22, 1997.3
On May 11, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Dennis E. Foster, a Board-certified orthopedic surgeon, to determine his current medical
resuduals and work capability status. The attached statement of accepted facts listed the
accepted conditions as cervical, lumbar and left ankle sprains, L5-S1 herniated disc,
postlaminectomy syndrome and bilateral carpal tunnel syndrome. OWCP informed Dr. Foster
that it had authorized a discetomy and fusion surgery and carpal tunnel release surgery.
In a May 29, 2012 report, Dr. Foster, reviewed the medical evidence, statement of
accepted facts and presented findings on physical examination. He concluded that appellant’s
accepted employment conditions had resolved and no further treatment was required for the
accepted employment injuries. In an attached work capacity evaluation form, he advised that
appellant was capable of working an eight-hour day with restrictions. Cervical range of motion
was 50 degrees extension, 35 degrees forward flexion and 85 degrees bilateral side rotation.
Dr. Foster reported left ankle range of motion as 15 degrees ankle dorsiflexion, 20 degrees
plantar flexion, 10 degrees eversion and 15 degrees inversion and lumbosacral range of motion
as 75 degrees forward flexion, 10 degrees extension and 15 degrees bilateral side lateral bending.
A physical examination revealed no paraspinous muscle spasm, mild discomfort on deep
palpation of the lumbar midline segment, negative straight leg raising. Dr. Foster opined that
appellant’s work-related injury had ceased, that no further medical treatment was required and
that appellant was capable of working eight hours a day with restricions.
On June 15, 2012 OWCP issued a notice proposing to terminate appellant’s wage-loss
and medical benefits based on Dr. Foster’s opinion. It found that Dr. Foster represented the
weight of the medical evidence establishing that his accepted conditions had resolved.

2

At the time of his injury appellant was working light-duty six hours per day due to a shoulder injury caused by a
nonemployment injury falling out of a tree during hunting season.
3

The report was dictated on April 22, 1997 and transcribed on April 23, 1997. No date of surgery is noted on the
report.

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In a report dated July 11, 2012, Dr. F. David Kondos, an attending Board-certified family
medicine physician, disagreed with the conclusions of Dr. Foster. He listed appellant’s medical
conditions, including bilateral carpal tunnel syndrome, chronic thoracic and lumbar back pain,
bilateral leg neuropathy, impotence and ankle instablity and pain. Dr. Kondos related that
appellant also had severe depression and continued to be totally disabled as a result of his
accepted work injuries.
By decision dated July 27, 2012, OWCP terminated appellant’s compensation benefits
effective August 26, 2012.
Subsequently OWCP received a Febraury 13, 2013 cervical magnetic resonance imaging
(MRI) scan and progress notes for the period November 12, 2012 to May 21, 2013 from
Dr. Kondos. Dr. Kondos provided physical findings and opined that appellant continued to be
totally disabled due to his employment injuries.
On July 24, 2013 counsel requested reconsideration of the July 27, 2012 decision
terminating his benefits.
By decision dated October 22, 2013, OWCP denied modification of the July 27, 2012
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS
OWCP accepted appellant’s claim for cervical sprain, lumbar sprain, left ankle sprain a
herniated disc at L5-S1, bilateral carpal tunnel syndrome, postlaminectomy syndrome, impotence
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, supra note 7; James F. Weikel, 54 ECAB 660 (2003).

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of organic origin and thoracic or lumbosacral neuritis or radiculitis. It paid wage-loss and
medical benefits. OWCP terminated appellant’s wage-loss compensation and medical benefits
effective August 26, 2012 finding that he no longer had any residuals or disability due to his
accepted employment conditions.
In terminating appellant’s compensation benefits, OWCP relied on the May 29, 2012
medical opinion of Dr. Foster, a second opinion Board-certified orthopedic surgeon. The Board
finds that Dr. Foster’s opinion is of diminished probative value and is insufficient to represent
the weight of the medical evidence.
OWCP referred appellant for a second opinion evaluation with Dr. Foster to determine
the nature and extent of his employment-related disability. In his May 29, 2012 report,
Dr. Foster concluded that appellant’s accepted employment injuries had resolved. He opined
that appellant had no residuals and required no further treatment for the accepted employment
conditions. Dr. Foster stated that appellant was capable of working an eight-hour day with
restrictions. The Board finds that in addressing causal relationship, he provided insufficient
medical rationale to support his conclusory opinion regarding whether appellant’s accepted
conditions had resolved. Dr. Foster provided a brief response to OWCP’s question and did not
explain how his examination supported his conclusion. He did not fully address each of the
accepted conditions. OWCP’s burden of proof to terminate compensation benefits must be based
on rationalized medical opinion evidence. Dr. Foster failed to provide adequate rationale to
support his conclusion that appellant’s accepted conditions had resolved. His report is of limited
probative value.9
Moreover, Dr. Foster’s opinion is also of diminished probative value as it is based on an
inaccurate statement of accepted facts. The Board has held that medical conclusions which are
based on inaccurate or incomplete histories are of little probative value.10 OWCP provided
Dr. Foster with appellant’s case file and a statement of accepted facts, but the statement of
accepted facts dated April 27, 2012 does not reflect that appellant’s claim was accepted for
impotence of organic origin and thoracic or lumbosacral neuritis or radiculitis. The statement of
accepted facts provided to Dr. Foster listed the accepted employment conditions to be cervical,
lumbar and left ankle sprains, L5-S1 herniated disc, postlaminectomy syndrome and bilateral
carpal tunnel syndrome. OWCP procedures indicate that the accepted conditions must be
included in a statement of accepted facts and when a second opinion specialist renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use
the statement of accepted facts as the framework in forming his or her opinion, the probative
value of the opinion is diminished.11

9

T.M., Docket No. 08-975 (issued February 6, 2009); T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi,
57 ECAB 418 (2006); see also S.D., 58 ECAB 713 (2007).
10

L.G., Docket No. 09-1692 (issued August 11, 2010); M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB
537 (2005) (medical conclusions based on an inaccurate or incomplete factual history are of diminished probative
value).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990). See Darletha Coleman, 55 ECAB 143 (2003); Richard O’Brien, 53 ECAB 234 (2001).

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Dr. Foster’s opinion that appellant had no continuing employment-related disability is,
therefore, based on an incomplete factual history. The Board finds that OWCP improperly relied
on Dr. Foster’s opinion to establish that appellant had no remaining disability or residuals from
the accepted employment injuries. OWCP failed to meet its burden of proof to terminate his
wage-loss and medical compensation benefits effective August 26, 2012.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss and medical
compensation benefits effective August 26, 2012.12
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2013 is reversed.
Issued: October 3, 2014
Washington, DC

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

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

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

12

In light of the Board’s disposition of the first issue, the second issue is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Warren, OH, Employer
__________________________________________

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Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-944 & 09-1352
Issued: June 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 26, 2009 appellant, through counsel, filed a timely appeal of the April 2 and
November 18, 2008 merit decisions of the Office of Workers’ Compensation Programs regarding
a schedule award. The Board assigned Docket No. 09-944. On April 28, 2009 appellant,
through counsel, filed a timely appeal from merit decisions of the Office dated April 23, 2008
and February 18, 2009 that terminated his entitlement to wage-loss and schedule award
compensation benefits for refusing suitable work. The Board assigned Docket No. 09-1352.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
schedule award and termination issues.
ISSUES
The issues are: (1) whether appellant has more than nine percent permanent impairment
of the left lower extremity for which he received a schedule award; and (2) whether the Office
properly terminated his compensation effective May 11, 2008 on the grounds that he refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c).

FACTUAL HISTORY
On June 15, 2004 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim alleging he injured his left ankle that day when he stepped into a depression in the grass.
The Office accepted the claim for left ankle fracture and sprain and accepted his October 2, 2004
claim for a recurrence of disability. It authorized left ankle surgery, which was performed on
April 25, 2005. By letter dated April 7, 2005, the Office placed appellant on the periodic rolls
for temporary total disability.
In an October 30, 2006 letter, Dr. Stephanie M. Galey, appellant’s treating physician,
requested authorization for a functional capacity evaluation to be performed to determine
appellant’s work capability and restrictions.
On April 20, 2007 the Office received an October 11, 2006 report from Dr. Galey, who
related that appellant stated he was unable to stand for more than 20 minutes without having
pain, that he was unable to go up stairs, has swelling in his ankle during the day and uses both a
cane and ankle brace. A physical examination revealed some venous discoloration, restricted
range of motion and some foot dysesthesias diffusely.
On June 12, 2007 the Office authorized a functional capacity evaluation. It was
performed on June 26, 2007 and a report issued on July 5, 2007. The report indicated that
appellant was capable of working four hours per day with restrictions. It noted restrictions of 25to 30-minute sitting duration during 4 hours; 5- to 10-minute standing duration for 1 hour;
occasional short distance walking for 1 hour; occasional above shoulder lifting of 12.6 pounds;
occasional lifting of 12.6 pounds from desk to chair; occasional pushing and pulling of 13.3
pounds and occasional carrying of 8.6 pounds.
On October 18, 2007 the Office referred appellant to Dr. Michael J. Jurenovich, an
orthopedic surgeon, to provide an opinion on whether appellant was capable of working an eighthour day. In a November 13, 2007 report, Dr. Jurenovich, based upon a physical examination,
review of the medical records, comprehensive functional capacity evaluation and statement of
accepted facts, concluded that appellant was capable of working an eight-hour day with
restrictions. A physical examination revealed negative drawer sign and fairly good left ankle
range of motion. Dr. Jurenovich reported appellant’s toe flexion and extension were fairly good.
In an attached work capacity evaluation form, he stated that appellant was capable of working an
eight-hour day with restrictions. The restrictions included three to four hours of standing,
bending/stooping, operating a motor vehicle at work and operating a motor vehicle to and from
work; four to five hours of reaching; three to four hours of pushing, pulling and lifting 10 to 20
pounds; three to four hours squatting and kneeling and two to three hours climbing.
On January 29, 2008 the employing establishment offered appellant the limited-duty
position of modified city letter carrier. The duties included two hours of scanning delivery
confirmation packages by route; four hours of casing and carrying auxiliary routes; one hour of
printing and verifying test reports from the prior day; and two to three hours of delivering late
arriving express mail. Physical restrictions of the position included two hours of standing; three
to four hours of walking, stooping and bending; and two to three hours of sitting and driving.

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The hours were from 4:30 a.m. to 2:30 p.m. with a two-hour lunch and the position was located
at Warren Main Post Office.
On February 14, 2008 the Office received appellant’s undated letter refusing the offered
position on the grounds that it went against the restrictions noted by Drs. Galey and
Dr. Nasimullah Rehmatullah, an orthopedic surgeon.
On February 15, 2008 the employing establishment offered appellant the limited-duty
position of modified city letter carrier with modified restrictions. The duties included one hour
of scanning delivery confirmation packages by route; 30 minutes of printing and verifying
delivery confirmation reports from the prior day; and two to three hours of delivering late
arriving express mail and four hours of carrying/casing auxiliary routes with less than 10 pounds.
Physical restrictions of the position included four hours of standing; three hours of pushing,
pulling and lifting 10 pounds; two to three hours of bending, stooping, walking, sitting and
driving and no squatting or kneeling. The hours were from 4:30 a.m. to 2:30 p.m. and the
position was located at Warren Main Post Office.
On February 23, 2008 appellant declined the offered position as the duties were beyond
his capability.
On February 26, 2008 appellant informed the Office that he was electing to receive
retirement benefits from the Office of Personnel Management (OPM) in lieu of compensation
benefits effective March 16, 2008.
On March 3, 2008 the Office noted it had received appellant’s letter declining the offered
position, noting that he had retired and was unable to perform the duties of the offered position.
It notified appellant that it found the modified city letter carrier position to be suitable. The
Office advised appellant that he had 30 days to accept the offer or provide reasons why he
believed the position was not suitable. Appellant did not accept the offer within the 30-day
period.
Appellant filed a claim for a schedule award and submitted a February 8, 2006 report
from Dr. John J. Vargo, an osteopath, in support of his request. Dr. Vargo provided findings on
physical examination and diagnosed a left ankle fracture and left ankle sprain. He reported
appellant used a cane to walk and had an antalgic limp. Dorsiflexion was 5 degrees, plantar
flexion 20 degrees, inversion 10 degrees and eversion 0 degrees. Dr. Vargo stated that appellant
had reached maximum medical improvement. Using Table 17-5, page 528 of the fifth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), he calculated a total 20 percent whole person impairment based upon appellant’s gait.
Dr. Vargo noted that no other condition may be considered when basing an impairment solely on
gait disturbance. He noted that appellant had an 11 percent whole person impairment based on
his loss of range of motion. In reaching this determination, Dr. Vargo used Table 17-11, page
537 to find a three percent impairment for plantar flexion, a six percent impairment for flexion
contracture and a zero percent impairment for extension. Using Table 17-12, page 537, he
concluded that appellant had one percent impairment for eversion. Dr. Vargo then combined
these percentages to find a total 11 percent lower extremity impairment due to loss of range of

3

motion. In concluding, he found a 20 percent whole person impairment due to the gait
derangement.
On March 31, 2008 an Office medical adviser calculated a nine percent impairment of
appellant’s left lower extremity. He concluded that using the gait derangement to determine
appellant’s impairment was not the optimal method as set forth on page 529 of the A.M.A.,
Guides. As gait determination was not the optimal method, the Office medical adviser made his
impairment determination based upon appellant’s ankle range of motion. His determination was
based on a seven percent for 0 degrees of dorsiflexion and 20 degrees plantar flexion, based on
Table 17-11 at page 537 of the A.M.A., Guides, a two percent for 10 degrees of inversion and 0
degrees of eversion, based on Table 17-12 at page 537.
By decision dated April 2, 2008, the Office granted appellant a schedule award based on
a nine percent impairment of the left lower extremity for 181.44 days, from March 16 to
September 13, 2008.
By letter dated April 3, 2008, the Office advised appellant that he had failed to provide
valid reasons for refusing to accept the limited-duty job and that, if he had not accepted the
position and arranged for a report date within 15 days of the date of the letter, his entitlement to
wage-loss and schedule award benefits would be terminated. It stated that no additional reasons
for refusal would be accepted.
In an April 21, 2008 letter, appellant’s counsel requested an oral hearing on the schedule
award issue before an Office hearing representative, which was held on August 15, 2008.
By decision dated April 23, 2008, the Office terminated appellant’s wage-loss
compensation and schedule award benefits on the grounds that he declined an offer of suitable
work.
On May 28, 2008 appellant and his counsel requested an oral hearing on the termination
issue before an Office hearing representative, which was held on November 24, 2008.
By decision dated November 18, 2008, the Office hearing representative affirmed the
April 2, 2008 schedule award decision on the grounds that the evidence established that appellant
had no more than a nine percent impairment of his left lower extremity.
By decision dated February 18, 2009, a second Office hearing representative affirmed the
Office’s April 23, 2008 decision, finding that the evidence of record demonstrated that appellant
had refused, without justification, an offered position that was medically, vocationally and
educationally suitable. He found the weight of the evidence rested with the opinion of the
second opinion physician, Dr. Jurenovich, as no contrary medical evidence was submitted
subsequently. The hearing representative noted that Dr. Galey, in her October 11, 2006 report,
deferred her opinion regarding appellant’s work capability pending a functional capacity
evaluation and no further information was received from her.

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left ankle fracture in the performance of
duty on June 15, 2004. Appellant underwent a left ankle surgery on April 25, 2005. He filed a
claim for a schedule award on March 12, 2008 and has the burden to establish by the weight of
the medical evidence that his employment injury caused permanent impairment to his right leg.
On appeal appellant’s counsel contends that the Office erred in failing to base his schedule award
on his gait disturbance which was higher than his loss of range of motion.
On February 8, 2006 Dr. Vargo found that appellant had a 20 percent whole person
permanent impairment due to gait abnormality using Table 17-5 and an 11 percent impairment
due to decreased range of motion using Tables 17-11 and 17-12 page 537. In reaching the 11
percent impairment determination, he used Table 17-11, page 537 to find a 3 percent impairment
for plantar flexion, a 6 percent impairment for flexion contracture and a 0 percent impairment for
extension. Using Table 17-12, page 537, Dr. Vargo concluded that appellant had one percent
impairment for eversion. He then combined these percentages to find a total 11 percent lower
extremity impairment due to loss of range of motion. Dr. Vargo noted that no other condition
may be considered when basing an impairment solely on gait disturbance. Thus, his
determination of a 20 percent whole person impairment was based solely on appellant’s gait
disturbance. The Board notes that a schedule award is not payable for an impairment of the
whole person.5 As Dr. Vargo’s opinion does not conform to the A.M.A., Guides, it is of
diminished probative value.6

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404; see I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009); A.A., 59 ECAB ___
(Docket No. 08-951, issued September 22, 2008).
5

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); D.H., 58 ECAB 358 (2007); Marilyn S.
Freeland, 57 ECAB 607 (2006) (the Act does not authorize schedule awards for permanent impairment of the whole
person).
6

Mary L. Henninger, 52 ECAB 408 (2001).

5

The Office medical adviser properly reviewed the medical record and found a nine
percent left lower extremity impairment. He concluded that using the gait derangement to
determine appellant’s impairment was not the optimal method as set forth on page 529 of the
A.M.A., Guides. As gait determination was not the optimal method, the Office medical adviser
made his impairment determination based upon appellant’s ankle range of motion. His
determination was based on a seven percent for 0 degrees of dorsiflexion and 20 degrees plantar
flexion, based on Table 17-11 at page 537 of the A.M.A., Guides, a two percent for 10 degrees of
inversion and 0 degrees of eversion, based on Table 17-12 at page 537. The Office medical
adviser properly combined the impairment ratings for loss of ankle range of motion.
The Board finds that the medical adviser properly applied the A.M.A., Guides to the
findings of Dr. Vargo in calculating an impairment rating of nine percent permanent impairment
of the left lower extremity. There is no other evidence of record, conforming with the A.M.A.,
Guides, indicating that appellant has any greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.7 Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.8 To justify termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.9 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.10
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.11 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.12 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.13
7

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

8

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).
9

T.S., 59 ECAB ___ (Docket No. 07-1686, issued April 24, 2008); Ronald M. Jones, 52 ECAB 190 (2000).

10

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

11

20 C.F.R. § 10.500(b).

12

Richard P. Cortes, supra note 10.

13

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

6

ANALYSIS -- ISSUE 2
As noted above, the Office accepted appellant’s claim for left ankle fracture and sprain
and authorized left ankle surgery, which was performed on April 25, 2005. By letter dated
April 7, 2005, it placed appellant on the periodic rolls for temporary total disability. Appellant
notified the Office by letter dated February 28, 2008 that he was electing to receive retirement
benefits from the OPM.
On appeal appellant’s counsel contends that the issue is not whether appellant refused an
offer of suitable work as he preferred to retire. He contends the issue is whether he is entitled to
monetary compensation for his schedule award. Contrary to appellant’s contention the issue of
whether he refused an offer of suitable work is relevant to the issue of whether he is entitled to
monetary compensation for his schedule award claim. As noted above, the penalty provision of
section 8106(c) of the Act bars a claim for a schedule award for the period after the termination
of compensation based on a refusal to accept an offer of employment.
The only relevant medical evidence in the record regarding the issue of appellant’s work
capability is a November 13, 2007 report from Dr. Jurenovich, a second opinion Board-certified
orthopedic surgeon. Dr. Galey, appellant’s treating physician, recommended a functional
capacity evaluation be performed to determine appellant’s work capability. She offered no
opinion as to appellant’s work capability or a report indicating she reviewed the June 26, 2007
functional capacity evaluation.
In a November 13, 2007 report, Dr. Jurenovich, a second opinion Board-certified
orthopedic surgeon, based upon a physical examination, review of the medical records,
functional capacity evaluation and statement of accepted facts, concluded that appellant was
capable of working an eight-hour day with restrictions. A physical examination revealed
negative drawer sign and fairly good left ankle range of motion. Dr. Jurenovich also reported
appellant’s toe flexion and extension were fairly good. He provided a comprehensive review of
the factual and medical evidence, detailed his findings on physical examination of appellant and
provided discussion for the conclusions he reached. Dr. Jurenovich concluded that appellant was
capable of working with restrictions of three to four hours of standing, bending/stooping,
operating a motor vehicle at work and operating a motor vehicle to and from work; four to five
hours of reaching; three to four hours of pushing, pulling and lifting 10 to 20 pounds; three to
four hours squatting and kneeling; and two to three hours climbing. The Board notes that there is
no other contemporaneous medical evidence of record relevant to the issue of appellant’s ability
to perform the duties of the position offered by the employing establishment. On the basis of
Dr. Jurenovich’s report, the employing establishment offered appellant the limited-duty position
of modified city letter carrier. The physical restrictions of the position included four hours of
standing; three hours of pushing, pulling and lifting 10 pounds; two to three hours of bending,
stooping, walking, sitting and driving and no squatting or kneeling, which were within
appellant’s work restrictions. In addition, the offer was in writing, included a description of the
duties of the position, the physical requirements of those duties and the date by which appellant

7

was to either accept the offer or submit his reasons for refusal.14 The Board finds that the Office
met its burden to establish that the position was suitable.
The issue of whether an employee has the physical ability to perform the duties of a
modified position offered by the employing establishment is primarily a medical question that
must be resolved by the medical evidence.15 The medical evidence provided by Dr. Jurenovich
establishes the suitability of the offered position, in that the job offered satisfied appellant’s
physical limitations.
In light of the foregoing, the Board finds that the job offered was medically and
vocationally suitable and the Office followed its procedures prior to termination of
compensation. Accordingly, the Board finds that the Office met its burden of proof to terminate
compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
nine percent permanent impairment of the left lower extremity, for which he received a schedule
award. The Board further finds that the Office met its burden of proof to terminate appellant’s
compensation and schedule award benefits as of May 11, 2008, based on appellant’s refusal to
accept suitable work.

14

20 C.F.R. § 10.507.

15

See Maurissa Mack, 50 ECAB 498 (1999).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 18, 2009 and November 18 and April 23, 2008 are
affirmed.
Issued: June 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waycross, GA, Employer
__________________________________________

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

Docket No. 13-2118
Issued: March 6, 2014

Case Submitted on the Record

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

JURISDICTION
On September 16, 2013 appellant, through his attorney, filed a timely appeal of an
August 7, 2013 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on February 7, 2010.
FACTUAL HISTORY
This case has previously been before the Board. The relevant facts are as follows. On
February 12, 2010 appellant, then a 38-year-old sales and systems distributor, filed a traumatic
injury claim alleging on February 7, 2010 he “passed out and hit [his] head on equipment.” He
1

5 U.S.C. § 8101 et seq.

claimed head trauma. The claim form indicated that appellant’s incident occurred during his
regular tour of duty at his duty station. On February 8, 2010 a coworker stated that appellant
collapsed on the floor on that date. He noted that appellant had a very large knot on the back of
his head. The fall was reported to his supervisor and appellant was driven home. The coworker
noted that appellant had a large lump on the back of his head.
By decision dated October 18, 2010, OWCP denied appellant’s claim finding that the
medical evidence was not sufficient to establish that a medical condition was diagnosed in
connection with the claimed event.
Appellant informed OWCP on October 27, 2010 that his teeth were dislodged during the
fall. Appellant, through his attorney, requested an oral hearing on October 29, 2010. He
testified at the oral hearing on March 21, 2011 and stated that he was working outside in
100-degree weather and as he was leaving work walked by a concrete picnic table and fainted.
Appellant alleged that he hit a concrete door and that his supervisors found him lying in a pool of
blood with his teeth knocked out.
By decision dated June 28, 2011, the hearing representative reviewed the medical
evidence and noted variances between appellant’s description of the employment events. He
concluded that appellant had blacked out and fell at work on February 7, 2010, but that the
medical evidence was not sufficient to establish that appellant’s work affected an underlying
medical condition on February 7, 2010.
In the September 5, 2012 decision, the Board found that as an unexplained fall while
appellant was engaged in activities incidental to his employment duties, an injury resulting from
the February 7, 2010 fall was compensable.2 The Board found that OWCP properly accepted
that he had an unexplained fall on February 7, 2010. The Board further found that OWCP had
properly concluded that appellant had not established any medical condition as a result of the
February 7, 2010 incident.
Following the Board’s decision, appellant requested reconsideration on July 25, 2013. In
support of his request he submitted a report dated May 15, 2013 from Dr. Milton Peavey, a
dentist, who stated that he first examined appellant on August 3, 2010 when he stated that he had
been in an accident at the employing establishment. Dr. Peavey noted that he removed a broken
tooth and provided appellant with a dental bridge. He stated that he had not previously examined
appellant, but found that the injuries were due to his recent fall.
By decision dated August 7, 2013, OWCP denied modification of its prior decisions
noting that the evidence regarding appellant’s February 7, 2010 fall did not support that he
sustained an injury to his teeth or mouth.

2

Docket No. 11-1826 (issued September 5, 2012).

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS
As the Board previously found, appellant has submitted evidence establishing that he
sustained an unexplained fall on February 7, 2010. The Board further finds that he had not
submitted sufficient factual and medical evidence to establish that the February 7, 2010 fall
resulted in an employment injury.
On his claim form appellant reported that he fell on February 7, 2010 and struck the back
of his head. His supervisor and a witness confirmed this injury. The facts indicate that appellant
fell inside the employing establishment building and perhaps struck his head on equipment. The
Board has previously denied his claim as he had failed to submit medical opinion evidence
providing a diagnosed head condition as a result of this fall.
At his previous oral hearing and on this request for reconsideration currently before the
Board, appellant describes a fall outside in extreme heat and alleges that he sustained damage to
3

5 U.S.C. §§ 8101-1893.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

7

John J. Carlone, 41 ECAB 354 (1989).

8

J.Z., 58 ECAB 529 (2007).

3

his teeth and mouth. He submitted a report from Dr. Peavey dated May 15, 2013 noting that he
first examined appellant on August 3, 2010 due to an alleged fall at work which allegedly
resulted in tooth injuries. The factual evidence and medical evidence in the record regarding his
February 7, 2010 fall does not support that he was outside, that he struck a picnic table or that he
sustained injuries to his mouth or teeth. Dr. Peavey’s report is not sufficiently factually detailed
to establish that appellant’s dental injuries resulted from the February 7, 2010 employment
incident.
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 appellant has not submitted sufficient factual and medical evidence
to establish that he sustained a traumatic injury on February 7, 2010.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.Q., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Farmington, MI, Employer
__________________________________________

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

Docket No. 12-475
Issued: July 2, 2012

Case Submitted on the Record

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

JURISDICTION
On January 3, 2012 appellant appealed a November 17, 2011 decision of the Office of
Workers’ Compensation Programs (OWCP) denying her request for review of the merits of her
claim. As more than 180 days has elapsed from the last merit decision of April 28, 2010 and 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 does not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of her claim on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence to OWCP after its November 17, 2011 decision. However, the Board lacks
jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

On appeal, appellant states that she knows that she filed her appeal after the one-year
deadline, but that she was not aware of the correct procedures and that she thought that the
employing establishment would follow through. She further contended that her injury became
worse as the year progressed.
FACTUAL HISTORY
On February 4, 2010 appellant, then a 47-year-old window clerk, filed an occupational
disease claim alleging that she suffered from severe pain in the right side of her neck and right
shoulder as a result of lifting and carrying full route tubs and trays from 6:30 a.m. to 8:00 a.m.
every day. In support of her claim, she submitted numerous doctors’ reports that addressed her
symptoms, discussed tests and discussed her ability to work.
By decision dated April 28, 2010, OWCP denied appellant’s claim as it found that the
medical evidence did not demonstrate that the claimed medical condition was related to the
established work events as required for coverage under FECA.
On August 16, 2011 appellant requested reconsideration. In an accompanying letter, she
stated that at the time of the injury she was not aware of what she was supposed to do and was
under the impression that management would handle everything. Appellant indicated that she
tried not to miss work for doctors’ appointments. She also submitted medical reports and
pictures of her work area that had previously been submitted. In addition, appellant submitted
statements from her colleagues that discussed her duties at work. In further support of her
reconsideration request, she submitted a June 21, 2010 report which listed the provider as
Dr. Shlomo Mandel, a Board-certified internist. The report reviewed appellant’s clinical and
radiographic findings and noted that she believed that her symptoms were the result of
cumulative trauma over many years at the employing establishment. The report further indicated
that it was a preliminary note and had not been reviewed by the senior physician. Further
evidence submitted after the April 28, 2010 decision included duty status reports dated April 14
and August 24, 2010 with an illegible signature. These reports note a diagnosis of cervicalgia.
The report noted that appellant believed her low back pain to be a result of repetitive lifting in
October 2009.
By decision dated November 17, 2011, OWCP denied reconsideration as appellant’s
request was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

2

OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 OWCP regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP decision.12
ANALYSIS
In its November 17, 2011 decision, OWCP properly determined that appellant failed to
file a timely application for review. The most recent merit decision is dated April 28, 2010.
Appellant’s request for reconsideration was dated August 16, 2011, more than one year after the
most recent merit decision. Accordingly, the Board finds that her request for reconsideration
was not timely filed.

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). OWCP’s procedures further provide: “The term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See supra note 8.

11

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

12

Leon D. Faidley, Jr., supra note 4.

3

The Board further finds that appellant failed to establish clear evidence of error. In order
to establish clear evidence of error, a claimant must submit evidence that is positive, precise and
explicit and must manifest on its face that OWCP committed an error.13 Appellant has not
submitted such evidence. OWCP denied her claim because the medical evidence did not
establish that the claimed medical condition was related to the established work events. The
statements by appellant and her colleagues with regards to her work duties are not relevant to this
issue. Evidence that is not germane to the issue on which the claim is denied is insufficient to
demonstrate clear evidence of error.14 Certain medical reports are duplicative of reports already
in the record. Material which is cumulative or duplicative of that already in the record has no
evidentiary value in establishing a claim.15 The Board notes that it is unclear who signed the
duty status reports of April 14 and August 24, 2011. Reports containing illegible signatures
cannot constitute competent medical evidence because it cannot be determined that the person
who signed it was a physician as defined under section 8101(2) of FECA.16 The Board notes that
the June 10, 2010 report attributed to Dr. Mandel does not appear to be signed or even reviewed
by him. Accordingly, this report cannot constitute competent medical evidence.
The term clear evidence of error is intended to represent a difficult standard.17 In order to
establish clear evidence of error, the evidence submitted must be of sufficient probative value to
raise a substantial question as to the correctness of OWCP’s decision.18 The evidence appellant
submitted on reconsideration fails to meet this standard.
On appeal, appellant asserts that she was unaware of the correct procedures and that she
thought the employing establishment would follow through. The Board notes that the appeal
rights attached to the April 28, 2010 decision clearly advised her of the one-year time limitation
for seeking further review before OWCP.19
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of her claim on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.

13

20 C.F.R. § 10.607(a); A.F., Docket No. 11-1297 (issued December 20, 2011).

14

K.M., Docket No. 12-68 (issued May 9, 2012).

15

A.F., supra note 13.

16

5 U.S.C. § 8101(2); see also J.C., Docket No. 11-1925 (issued April 24, 2012).

17

S.S., Docket No. 11-1579 (issued April 24, 2012).

18

See Veletta C. Coleman, 48 ECAB 367 (1997).

19

S.B., Docket No. 08-2464 (issued July 9, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2011 is affirmed.
Issued: July 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Louisville, KY,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0018
Issued: January 3, 2019

Case Submitted on the Record

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

JURISDICTION
On October 6, 2016 appellant, through counsel, filed a timely appeal from a July 27, 2016
merit decision of Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 20, 2015, based on his capacity to earn wages in the selected
position of a quality assurance manager.
FACTUAL HISTORY
On January 29, 1997 appellant, then a 45-year-old lock and dam equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that, while at work on that date, he was
pushing a pipe wrench to tighten a section of pipe that was being replaced when he felt a pop
in his back and pain from his right arm to his neck.3 OWCP accepted the claim for right
shoulder acromioclavicular strain, closed acromioclavicular dislocation, cervical strain,
aggravation of cervical radiculopathy, aggravation of cervical degenerative disc disease, and
adjustment disorder with depressed mood. Following his injury, appellant returned to work
on February 3, 1997, but stopped work again on February 13, 1997. He returned to a full-time
limited-duty position on August 18, 1997, but sustained a recurrence of total disability,
effective November 5, 1997. Appellant returned to a full-time limited-duty position on
January 12, 1998.
On December 1, 1998 appellant filed another traumatic injury claim (Form CA-1)
alleging that on August 6, 1998 he injured his right shoulder when he grabbed an electrical
cable that was falling out of the cable tray. OWCP assigned that claim File No. xxxxxx262
and accepted it for right shoulder acromioclavicular (AC) separation.4 On January 20, 1999 a
Mumford procedure was performed on appellant’s right shoulder. Appellant had two previous
right shoulder surgeries in June and November 1997. OWCP later expanded the acceptance
of appellant’s claim to include depression and aggravation of cervical radiculopathy.
Appellant was totally disabled from work from August 6, 1998 to February 28, 2000 when he
resumed work in a modified capacity as a construction inspector.5
In a January 14, 2013 report, Dr. Oliver C. James, III, a Board-certified internist,
indicated that appellant did not work despite being released to work.
In a March 1, 2013 work capacity evaluation (OWCP-5c), Dr. Jeffery Campbell, a
Board-certified family practitioner, opined that appellant was unable to ascend or descend
heights called for in his job. However, he explained that appellant was able to work for eight
hours per day with restrictions, which included no reaching above the shoulder, and no
repetitive movements of the elbows or wrists for zero hours, not to use his right arm and carry

3

OWCP assigned the claim File No. xxxxxx777.

4

OWCP File Nos. xxxxxx262 and xxxxxx777 have been administratively combined, with File No. xxxxxx777
serving as the master file.
5
On June 2, 2002 OWCP granted appellant a schedule award for 30 percent permanent impairment of the right
arm.

2

or lift any loads. Dr. Campbell also advised against pushing, pulling, and lifting. He also
indicated that these restrictions were permanent.
In a March 25, 2013 report, Dr. James indicated that appellant was functioning at a
high level with the use of the medicine.
On March 28, 2013 OWCP referred appellant for a second opinion, along with a
statement of accepted facts (SOAF), a set of questions and the medical record to Dr. Edward
Gregory Fisher, a Board-certified orthopedic surgeon.
In an April 18, 2013 report, Dr. Fisher noted appellant’s history of injury and treatment,
examined appellant, and provided findings. He determined that appellant was capable of
working eight hours a day in a light-duty job avoiding reaching overhead with his right upper
extremity. Dr. Fisher provided a weight limitation of lifting/pushing pulling/carrying 10
pounds frequently and 20 pounds occasionally. He opined that the restrictions were permanent
in duration and were due to the AC joint separation and the cervical radiculopathy.”
On May 22, 2013 a second opinion psychiatric examination was completed by
Dr. Gary S. Weinstein, a Board-certified psychiatrist. Dr. Weinstein indicated that appellant
denied symptoms of depression and had no dysphoria or significant anxiety. He found no
evidence of a thought disorder, with no hallucinations or delusions. Furthermore, appellant
was forward thinking with no suicidal or homicidal ideation or plans and his cognitions were
entirely intact. Dr. Weinstein opined, “[t]here is no psychological problem that would interfere
with his performance of the regular duties of a lock and dam equipment mechanic. [Appellant]
does not want any mental health treatment now and, based on my evaluation, does not need
treatment.”
On July 11, 2013 the employing establishment offered appellant the position of
construction control representative which was permanent and claimed to accommodate his medical
conditions. On July 26, 2013 appellant declined the offered position, asserting that he lived too
far away and would not be able to stay awake on the ride home, as he was on medication. On
July 30, 2013 OWCP referred him to a vocational rehabilitation counselor.
By letter dated August 9, 2013, OWCP informed the employing establishment that the
offered position was not suitable.
On February 7, 2014 the employing establishment rescinded the construction control
position and proposed to separate appellant from his federal employment. It explained that the
reason for this proposed separation was appellant’s physical inability to perform the duties of his
position.
Upon completion of rehabilitation services and based upon appellant’s age, experience,
education, medical restrictions, and a labor market survey, the rehabilitation counselor concluded
that appellant was capable of reemployment as a quality assurance manager, listed in the
Department of Labor, Dictionary of Occupational Titles (DOT# 012167014). The quality
assurance manager position was classified as a sedentary light position. The duties included:

3

planning; coordinating; and directing quality control program designed to ensure continuous
production of products, consistent with embellished standards. The physical requirements were
described as sedentary and included lifting up to 10 pounds occasionally, and some light lifting up
to 20 pounds. No climbing, balancing, stooping, kneeling, crouching, or crawling was required.
Additionally, it required some occasional reaching, handling, and fingering. The average weekly
earnings of a quality assurance manager were listed as $956.00 per week within a 50-mile radius
of the Milton, Kentucky area based on wage data from the Bureau of Labor Statistics, U.S.
Department of Labor, Occupational Outlook Handbook, 2010-2011. The hourly wage was $23.91
with an annual rate of $49,720.00. The vocational rehabilitation counselor determined that the
position was available in sufficient numbers on a full-time basis in appellant’s commuting area
based on a labor market survey.
In a November 4, 2014 memorandum, OWCP determined that vocational rehabilitation
was interrupted as clarification was needed regarding the reaching restriction.
A December 4, 2014 functional capacity evaluation (FCE), revealed that appellant was
capable of sedentary work.
On January 7, 2015 OWCP referred appellant for a second opinion, along with a SOAF, a
set of questions, and the medical record to Dr. John William Wolf, Jr., a Board-certified orthopedic
surgeon.
In a January 28, 2015 report, Dr. Jonathan D. Cole, a Board-certified clinical health
psychologist, recommended that appellant be weaned off Valium “as it increases depression,
decreases deep sleep, [and] decreases efficacy of opioids.”
In a report dated January 30, 2015, Dr. Wolf described appellant’s history of injury and
treatment, examined appellant, and provided his findings. He found that appellant had a noticeable
tremor in both hands, which appellant indicated that he had since childhood. Dr. Wolf found
excellent range of motion of his lumbar spine and that appellant was able to touch his toes with
his knees in full extension. Furthermore, he was able to reassume the erect position without
apparent pain. Regarding the cervical spine, Dr. Wolf found decreased range of motion in rotation
with slight asymmetry and that appellant was able to rotate 35 degrees to his right, but 45 degrees
to his left. He determined that attempted further rotation caused pain. Dr. Wolf determined that
appellant was able to flex comfortably until his chin rested on his chest and that extension was
painful beyond 5 to 10 degrees. Furthermore, there was tenderness to palpation over the entire
posterior aspect of the cervical spine. Dr. Wolf found no obvious muscle atrophy in the shoulder
girdle muscles and two deep pigmented areas of scarring over his left scapula. He explained that
both shoulders showed a full, pain-free range of passive motion. Dr. Wolf conducted muscle
testing and found no pain or weakness demonstrable with anterior flexion against resistance on
either side. However, he determined that there was tenderness to palpation over the anterior aspect
of the right shoulder. Dr. Wolf found sensory examination in the right upper extremity was
abnormal. He also noted appellant’s complaints of decreased sensation to light touch over the
entire brachium. Dr. Wolf found that the only area of relatively normal sensation to light touch
was a strip approximately two to three centimeters wide down the dorsal aspect of appellant’s
forearm. He explained that all other areas elicited a description that the area was either numb and

4

tingling, or had decreased sensation. Dr. Wolf found the same with the digits of appellant’s right
hand with varying degrees of decreased sensation. He concluded that appellant had essentially full
range of motion of his shoulder with decreased sensation in areas of his right upper extremity.
Dr. Wolf opined that these sensory changes in his right upper extremity were due to his cervical
spine problems rather than to his right shoulder problems. Regarding whether appellant’s cervical
degenerative disc disease and stenosis was caused or aggravated by his 1997 and 1998 work
injuries, he opined that it was likely that his cervical degenerative disc disease and cervical spinal
stenosis was aggravated by his 1997 and 1998 work injuries. Dr. Wolf opined that it was probable
that some of the symptoms that appellant exhibited after his two accepted work injuries were
manifestations of cervical disease. Regarding residuals and work ability, he explained that
appellant was “certainly qualified for a sedentary type of job without question. Dr. Wolf noted
that appellant can also do a job which is not physically demanding. He is unsuited, however, for
work overhead due to a combination of complaints of right shoulder pain and inability to extend
his cervical spine for any prolonged length of time as might be required if he were to be doing
work overhead.” Dr. Wolf also noted in the work capacity evaluation form that appellant was able
to perform four hours of reaching and reaching above the shoulder. Additionally, he could lift 20
to 25 pounds for eight hours per day.
By letter dated March 12, 2015, OWCP advised appellant that the selected position of a
quality assurance manager, DOT #012167014 in the amount of $956.00 per week, was suitable to
his restrictions and that he would receive 90 days of placement assistance to help him locate such
a position. It further advised appellant that his compensation would likely be reduced by the end
of this period to reflect his wage-earning capacity based upon a position that OWCP determined
to be within his restrictions and abilities.
In a May 5, 2015 cognitive behavioral therapy session note, Dr. Susan Snyder, a Boardcertified family practitioner, advised that Dr. James weaned appellant off opioids and Valium and
appellant would consider being medically treated for depression.
In a July 7, 2015 closure report, the vocational rehabilitation counselor noted that the
quality assurance manager position was reasonably available in appellant’s commuting area with
wages of $605.00 to $956.00 per week.
On July 7, 2015 OWCP proposed to reduce appellant’s wage-loss compensation
because the medical and factual evidence of record established that he was no longer totally
disabled. It found that he had the capacity to earn the wage of a quality assurance manager,
DOT #012167014, at the rate of $956.00 per week. OWCP provided appellant 30 days to
submit additional evidence or argument in support of any objection to the proposed reduction.
In a letter dated August 8, 2015, appellant indicated that he was unable to find employment
due to lack of experience, training, and education. He indicated that most of the positions required
special education and training. Appellant further argued that he would be precluded from these
positions as he would not be able to pass the drug testing due to his pain medications. He indicated
that he believed he was not qualified for the position. Additionally, there were no jobs with the
listed salary of $956.00.

5

In an August 6, 2015 report, Dr. James noted that appellant was seen for complaints of
neck pain and a significant peripheral neuropathy. He diagnosed: cervical disc disease; status post
anterior cervical discectomy and fusion; history of cervical radiculitis; and peripheral neuropathy.
Dr. James determined that appellant was clinically stable and doing well. He recommended
maintaining his medications.
By decision dated September 10, 2015, OWCP reduced appellant’s compensation benefits,
effective September 20, 2015, based on his ability to earn wages in the selected position of quality
assurance manager. Using the formula in Albert C. Shadrick,6 it noted that appellant’s salary on
the date his disability began on July 18, 2005 was $1,230.23 a week and the current adjusted pay
rate for his job on the date of injury was $1,179.16 a week as of June 30, 215. Appellant was
found currently capable of earning $956.00 per week, the pay rate of a quality assurance manager.
OWCP determined that he had an 81 percent wage-earning capacity or 19 percent loss of wageearning capacity, which resulted in an adjusted wage-earning capacity of $996.49 per week, or a
loss of wage-earning capacity of $233.74 per week, reduced by the basic, two thirds, compensation
rate to equal $155.83, and increased by cost-of-living adjustments of $186.75 per week. This
yielded a new compensation rate of $747.00 every four weeks. After subtracting insurance and
retirement premiums, OWCP concluded that the net compensation was equivalent to $211.44
every four weeks.
By letter dated October 1, 2015, appellant, through counsel, requested a telephonic hearing,
which was held before an OWCP hearing representative on June 6, 2016. Counsel argued that
appellant did not have the requisite skills to obtain the position of a quality assurance manager and
thus, he was not qualified for the position. Appellant testified to his experience as a builder,
welder, and laborer.
In an October 7, 2015 report, Dr. James repeated his prior findings and diagnoses and
continued to recommend follow-up treatment.
In a December 4, 2015 report, Dr. Melanie H. Ledford, a Board-certified physiatrist, saw
appellant on follow up. She noted similar findings to Dr. James. Dr. Ledford also saw appellant
on April 7 and May 25, 2016, where she provided findings and diagnoses.
By decision dated July 27, 2016, OWCP’s hearing representative affirmed the
September 10, 2015 decision, finding that the selected position of quality assurance manager
“fairly and reasonably” represented appellant’s wage-earning capacity.

6

5 ECAB 376 (1953).

6

LEGAL PRECEDENT
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.7
Section 8115(a) of FECA,8 provides in determining compensation for partial disability, the
wage-earning capacity of an employee is determined by his or her actual earnings if his or her
actual earnings fairly and reasonably represent his or her wage-earning capacity. Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of evidence
showing they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such measure.9 If the actual earnings do not fairly and reasonably represent
wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning capacity
is determined with due regard to the nature of the injury, the degree of physical impairment, their
usual employment, their age, their qualifications for other employment, the availability of suitable
employment, and other factors and circumstances which may affect the employee’s wage-earning
capacity in his or her disabled condition.10 Wage-earning capacity is a measure of the employee’s
ability to earn wages in the open labor market under normal employment conditions.11 The job
selected for determining wage-earning capacity must be a job reasonably available in the general
labor market in the commuting area in which the employee lives.12 In determining an employee’s
wage-earning capacity, OWCP may not select a makeshift or odd-lot position or one not
reasonably available on the open labor market.13
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in the
Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open labor
market, that fits that employee’s capabilities with regard to his or her physical limitation,
education, age, and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.14 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.15
7

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

8

5 U.S.C. § 8115.

9

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

10

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

11

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

12

Id.

13

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

14

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

15

Id. See supra note 6; codified at 20 C.F.R. § 10.403 (c)-(e).

7

ANALYSIS
OWCP accepted appellant’s claim for right shoulder acromioclavicular strain, closed
acromioclavicular dislocation, cervical strain, aggravation of cervical radiculopathy, aggravation
of cervical degenerative disc disease, and adjustment disorder with depressed mood. It
subsequently expanded the acceptance of the claim to include a right shoulder acromioclavicular
(AC) separation. On January 20, 1999 a Mumford procedure was performed on appellant’s right
shoulder. Appellant had two previous right shoulder surgeries in June 1997 and November 1997.
OWCP later expanded the acceptance of appellant’s claim to include depression and aggravation
of cervical radiculopathy.
An FCE was completed on December 4, 2014, which indicated that appellant could work
at a sedentary-to-light level for eight hours per day. On January 30, 2105 Dr. Wolf indicated that
appellant was qualified for a sedentary type of job without question. He opined that appellant was
unsuited, however, for work overhead due to a combination of complaints of right shoulder pain
and inability to extend his cervical spine for any prolonged length of time as might be required if
he were to be doing work overhead.
The medical evidence from January 30, 2015 supported that appellant was no longer totally
disabled and could perform light-duty work.
Appellant’s vocational rehabilitation counselor determined that appellant was able to
perform the position of a quality assurance manager. He noted that appellant had previous
experience and determined that state employment services showed the position was available in
sufficient numbers so as to make it reasonably available within appellant’s commuting area. The
position was described as light to sedentary and required occasional lifting of up to 10 pounds
frequently and 20 pounds occasionally, occasional stooping and crouching, and frequent reaching,
handling, fingering, and talking. It did not require climbing, balancing, kneeling, or crawling. The
Board notes that the position requires occasional lifting of up to 10 pounds frequently and 20
pounds occasionally, as well as occasional reaching. The Board finds that these physical activities
comply with the restrictions imposed by Dr. Wolf, who addressed appellant’s work ability and
determined that appellant was “certainly qualified for a sedentary type of job without question.”
Furthermore, Dr. Wolf indicated that appellant could perform a job which was not physically
demanding. He explained that appellant was unsuited for work overhead due to a combination of
complaints of right shoulder pain and opined that appellant had an “inability to extend his cervical
spine for any prolonged length of time as might be required if he were to be doing work overhead.”
However, the offered position does not indicate that there is any prolonged work overhead. The
Board also notes that Dr. Wolf indicated that appellant was able to perform four hours of reaching
and reaching above the shoulder. Additionally, appellant could lift 20 to 25 pounds for eight hours
per day.
The Board finds that the weight of the evidence of record establishes that appellant had the
requisite physical ability, skill, and experience to perform the offered position of quality assurance
manager. Therefore, OWCP properly reduced appellant’s compensation, effective September 20,
2015, based upon his capacity to earn wages as a quality assurance manager.

8

CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 20, 2015, based on his capacity to earn wages in the selected
position of a quality assurance manager.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 3, 2019
Washington, DC

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

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

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

9