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

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

Docket No. 08-574
Issued: August 5, 2008

Case Submitted on the Record

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

JURISDICTION
On December 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 29, 2007 merit decision denying appellant’s request for
authorization for surgery. Pursuant to 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 the Office abused its discretion in refusing to authorize appellant’s
request for surgery.
FACTUAL HISTORY
On May 24, 2002 appellant, then a 52-year-old rural letter carrier, filed an occupational
disease claim alleging that he sustained a knee injury as a result of performing his employment
duties. His claim was accepted on January 29, 2003 for aggravation of osteoarthritis in both
knees.

The Office received visit notes from Dr. E. Michael Holt, Board-certified in orthopedic
surgery, and Dr. Scott Smith, Board-certified in orthopedic surgery, dated from September 11,
2000 to May 14, 2003. In the March 5, 2003 visit, Dr. Holt recorded that he discussed total knee
arthroplasty of both knees with appellant. On June 9, 2003 appellant’s physician requested
authorization for bilateral knee replacements.
The Office consulted with its medical adviser in order to ascertain whether the proposed
surgery was both medically necessary and causally related to appellant’s accepted employment
injury. In a June 13, 2003 note, the medical adviser opined that the surgery request should be
denied on the grounds that the claimant’s physician stated that appellant had denied any injury,
and that appellant’s physician had opined that the aggravation had resolved. The medical adviser
also offered his own medical opinion that appellant’s arthritis was unrelated to his work, but
rather was the result of the natural progression of the disease.
On June 17, 2003 the Office determined that a second opinion evaluation was necessary
to determine whether the bilateral total knee replacement was related to his accepted bilateral
aggravation of osteoarthritis.
On July 28, 2003 appellant was evaluated by Dr. Thomas Koenig, a Board-certified
orthopedic surgeon. The July 28, 2003 work capacity evaluation restricted appellant to six hours
of work per day. In his July 28, 2003 report, Dr. Koenig opined that appellant’s bilateral total
knee replacement is no more necessary due to the incident of February 1, 2001, the “date” of the
injury used by the Office, than to any other day of appellant’s adult life. He continued “It is
much more likely that appellant’s bilateral total knee replacements are not due to one specific
injury but due to chronic wear and tear which would have occurred just as likely in the
workplace as at home.” Dr. Koenig concurred with Dr. Holt’s September 2, 2002 statement that
“I do feel his job situation did irritate his knee intermittently, but have told him that I cannot say
that his job accelerated his arthritic process or caused his arthritic process more than any
activities of daily living would have.” He concluded that it was his opinion that appellant would
have required bilateral total knee replacement regardless of whether or not he was injured and
that the work-related injury was not likely to have significantly altered appellant’s preexisting
course.
In an August 12, 2003 decision, the Office denied appellant’s request for bilateral total
knee replacement based on Dr. Koenig’s opinion that the requested surgery was not causally
related to the accepted work injury.
On September 10, 2003 appellant requested an oral hearing. The hearing was held on
March 23, 2004.
In a July 8, 2004 decision, the Branch of Hearings and Review found that Dr. Koenig’s
report was based upon an inaccurate statement of accepted facts which incorrectly indicated that
the claimant had sustained a traumatic injury on February 2, 2001. It set aside the August 12,
2003 decision and remanded the case to the Office for a new examination.
On January 31, 2005 appellant was informed that a second opinion evaluation was
scheduled for February 22, 2005 with Dr. Wayne L. McLemore, Board-certified in orthopedic

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surgery. The questions for the second opinion examiner inquired as to whether the bilateral total
knee replacement was medically necessary due to appellant’s work injury and whether it was
medically probable that the accepted aggravation of osteoarthritis had ceased? The second
opinion examiner was also asked to address whether the accepted aggravation was a temporary
or permanent aggravation, if it had not ceased. The definitions of occupational disease and
temporary and permanent aggravation were included. An addendum statement of accepted facts
with the physical requirements of appellant’s job was also provided.
In an April 13, 2005 report, Dr. McLemore opined that the total knee arthroplasties were
not necessitated by appellant’s job duties of braking, standing, pushing and walking. He opined
that the knee replacements were necessary due to the pain from the osteoarthritis which was at
the advanced and severely limiting level. Dr. McLemore opined that appellant’s prior right knee
surgery in 1973 and his obesity predisposed the knees to premature wear and advanced the
osteoarthritis with more import than his job activities. He also stated that it was probable that the
accepted aggravation had ceased and commented that a resurfaced joint no longer advances with
osteoarthritis and that all weight-bearing physical activity, whether on the job or not, caused
wear to progress the knee replacement components.
On June 17, 2005 the Office denied appellant’s request for bilateral total knee
arthroplasties based on Dr. McLemore’s opinion that the surgery was not causally related to
appellant’s work injury.
In a November 2, 2005 decision, the Office denied appellant’s claim for compensation
for the period June 24, 2005 to present on the grounds that no medical evidence was received to
support that appellant was disabled during the claimed time period.
On November 3, 2005 the Office issued a proposed termination of compensation and
medical benefits based on the February 22, 2005 report from Dr. McLemore who found that the
aggravation of osteoarthritis in both knees had resolved.
On January 15, 2006 appellant requested reconsideration of the June 17, 2005 decision.
In support a November 30, 2005 report, Dr. John W. Ellis, Board-certified in family medicine,
was submitted. In the report, he reviewed the case record and evaluated appellant. Dr. Ellis
disagreed with Dr. McLemore’s assessment noting that appellant had already underwent bilateral
total knee arthroplasties1 which was the only reason the joints had been resurfaced. He further
opined that were it not for the knee replacements appellant would still have the osteoarthritic
changes that were aggravated by his employment. Upon evaluation Dr. Ellis noted well-healed
surgical scars from open procedures in both knees. He diagnosed aggravation of osteoarthritis,
bilateral knees status post bilateral total knee arthroplasties and opined that appellant was
temporarily totally disabled for four months. In conclusion Dr. Ellis found that, if appellant had
not had knee replacements, he would still have ongoing arthritis changes and pain as a result of
his work-related job duties aggravating the preexisting osteoarthritis.
On March 7, 2006 the Office informed appellant that a conflict in medical evidence
existed and that a referee examination would be conducted on April 3, 2006 with Dr. William M.
1

There is no operation report from appellant’s surgery in the case record.

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Hovis, Board-certified in orthopedic surgery. The appointment was later rescheduled for
April 26, 2006. The Office identified the issue for the referee examiner of whether “appellant’s
preexisting condition of osteoarthritis was accelerated by his work injury” and included two
questions, whether the job duties accelerated his preexisting condition of bilateral osteoarthritis
of the knees and whether the bilateral total knee replacements were medically necessary and
related to his original work injury of February 1, 2001.
In his April 26, 2006 report, Dr. Hovis noted that appellant had bilateral total knee
arthroplasty performed by Dr. Holt on August 15, 2003. He opined that appellant’s job did not
materially contribute to, accelerate, or aggravate his osteoarthritic condition more than the
ordinary activities of daily living would. In response to the question about bilateral knee
replacements being medically necessary and related to the work injury Dr. Hovis responded that
appellant denied any injury to either knee at work.
In a July 13, 2006 merit decision, the Office denied modification of the previous decision
denial of appellant’s request for bilateral total knee replacement. It found that the weight of the
medical evidence was with Dr. Hovis, as he was a specialist, had reviewed the medical records
and had examined appellant.
On April 22, 2007 appellant, through his representative, requested reconsideration and
argued that the surgeries were medically necessary as stated by Drs. Holt, McLemore and Ellis
and that no true conflict among the medical evidence existed.
In a June 13, 2007 merit decision, the Office denied modification of the previous
decisions.
On September 7, 2007 appellant, through his representative, requested reconsideration
and argued that the Office’s phrasing of the issue and questions to the referee doctor, Dr. Hovis,
was a form of doctor shopping.
In an October 29, 2007 decision, the Office denied modification of the denied
authorization for bilateral knee replacements.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of “services, appliances and supplies prescribed or recommended by a qualified physician”
which the Office, under authority delegated by the Secretary, “considers likely to cure, give
relief, reduce the degree or the period of disability, or aid in lessening the amount of monthly
compensation.”2 In interpreting section 8103(a), the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time.3 The

2

5 U.S.C. § 8103(a).

3

Dale E. Jones, 48 ECAB 648, 649 (1997).

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Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.4
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.5 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.6 Therefore, in order to prove that
the surgical procedure is warranted appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for the Office to authorize payment.7
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 an examination.8 The implementing regulation states that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.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 proper factual and medical background, must be given special weight.10
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.11

4

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
5

See Dona M. Mahurin, 54 ECAB 309 (2003); see also Debra S. King, 44 ECAB 203, 209 (1992).

6

See Debra S. King, supra note 5; Bertha L. Arnold, 38 ECAB 282 (1986).

7

See Dona M. Mahurin, supra note 5; see also Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

5 U.S.C. §§ 8101-8193, 8123.

9

20 C.F.R. § 10.321.

10

Elaine Sneed, 56 ECAB 373 (2005).

11

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979). See also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.0810(11)(c)(1)-(2) (April 1993).

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ANALYSIS
The Board finds that the Office failed to undertake proper development of the medical
evidence. The Office erred by not requesting that Dr. Hovis provide a supplemental report.
Dr. Hovis’ report was not based on proper factual background. Appellant’s claim was for
occupational injury, not traumatic injury, therefore, the fact that appellant denied any specific
traumatic injury is irrelevant. His claim was accepted for aggravation of osteoarthritis in both
knees. The question at issue was whether the accepted condition necessitated surgery. Therefore
the issue of whether appellant’s work aggravated his preexisting condition is moot. The Office
has already accepted bilateral aggravation of osteoarthritis. By attempting the reevaluation of the
acceptance of the claim, the Office was actually attempting to rescind acceptance of the claim.
The Office can rescind its acceptance or terminate appellant’s claim but must do so through the
proper procedures. The Office should have clarified to Dr. Hovis that the issue for determination
was whether appellant’s accepted condition, aggravation of osteoarthritis of both knees,
contributed to the need for bilateral knee replacements.
On remand, the Office should further develop the medical evidence and obtain a
supplemental report from Dr. Hovis to address the issue of whether appellant’s accepted injury
contributed to the need for surgery. Following this and any other further development as deemed
necessary, the Office shall issue an appropriate merit decision on appellant’s request for surgery.
CONCLUSION
The Board finds that the Office did not properly develop the medical evidence and should
be remanded for further development.

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2007 decision of the Office of
Workers’ Compensation Programs is vacated and the case is remanded.
Issued: August 5, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

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

Docket No. 14-524
Issued: May 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 31, 2013 appellant, through her attorney, filed a timely appeal from a
November 15, 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 over the merits of this case.
ISSUE
The issue is whether appellant established an injury on July 25, 2011 in the performance
of duty.
FACTUAL HISTORY
On April 23, 2012 appellant, a 76-year-old medical clerk, filed a claim for traumatic
injury to her left hip, both knees and hands on July 25, 2011 when she tripped over a floor tile.
1

5 U.S.C. § 8101 et seq.

The employing establishment controverted the claim; the form contained a statement from
appellant’s supervisor, Amy Lesniewski, who asserted that her secretary had called one morning
during the year prior and told her that appellant had fallen at home and broken her hip.
Ms. Lesniewski also stated that appellant did not report or file a claim for the alleged injury
within 30 days.
By letter dated May 9, 2012, OWCP advised appellant to submit additional factual and
medical evidence in support of her claim. It asked that she submit the requested information in 30
days.
A July 26, 2011 hospital report received by OWCP on June 1, 2012 from Dr. Roberto
Garcia, a specialist in internal medicine, noted that appellant was admitted on July 26, 2011 with a
fractured left hip, which she sustained after falling due to chronic vertigo. On July 27, 2011
Dr. Garcia stated that appellant was having vertigo while sitting by her bed when she fell and
landed on her left side. He advised that she had left hip pain.
In a hospital report dated July 26, 2011, Dr. Robert M. Taylor, a specialist in physical
medicine and rehabilitation, advised that appellant was status post fall in her home and sustained
a left hip fracture. He related that she was sorting some items at her bedside in her home when
she fell and fractured her left hip.
On December 12, 2011 Dr. Benjamin T. Drury, a specialist in orthopedic surgery, stated
that he had treated appellant since she underwent a hemiarthroplasty for a femoral neck fracture
on July 26, 2011. Appellant was progressing well from the procedure and had a full range of
motion. Dr. Drury advised that she also underwent a right shoulder arthroscopy on November 3,
2011 for a right rotator cuff tear and subacromial bursitis. He related that appellant was
attending physical therapy to work on range of motion and strengthening. Dr. Drury stated that
she was unable to perform her usual job and was uncertain as to when she could return to work.
In an August 5, 2011 report, Dr. Taylor stated that appellant was admitted to the hospital
on July 26, 2011 following a fall with a left hip fracture. Appellant was admitted to the physical
rehabilitation unit on July 30, 2011 for occupational therapy and was scheduled for discharge on
August 13, 2011.
In a September 12, 2011 report, Dr. Garcia reiterated that appellant was disabled for work
and that her current disability began on July 25, 2011 when she fractured her hip. He submitted
periodic reports which documented his treatment of appellant.
In a report dated May 29, 2012, Dr. Garcia reiterated that appellant was treated for a left
hip fracture. He examined her in follow-up appointments on October 26, 2011, February 13 and
April 27, 2012.
By decision dated June 20, 2012, OWCP denied appellant’s claim. It found that she failed
to establish that she fell on July 25, 2011 at work, as alleged.
By letter dated September 13, 2012, appellant requested reconsideration.

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In a July 17, 2012 report, Dr. J. David De Lapp, a specialist in orthopedic surgery, stated
that appellant sustained a fall on July 25, 2011 while at work in a nursing office. Appellant related
that she took a hard fall to her left hip down the hallway at the employing establishment. She went
home to try to “tough out” the pain and got into bed. When appellant woke up the next morning
and stood up out of bed, she felt severe pain in her hip and fell to her knees. The following day her
daughter drove her to the hospital, where physicians diagnosed a fractured left hip. Dr. De Lapp
opined that, during her injury at the employing establishment, “in which she took such a big fall,”
appellant could have injured the left hip, torn her right rotator cuff, injured her right knee and
reinjured her lumbar spine. He asserted that she sustained a significant injury during her fall at
work on July 25, 2011. Dr. De Lapp concluded that appellant’s fall directly resulted in her current
left hip pain, right shoulder pain, right knee pain and lumbar spine pain. He was uncertain as to
whether she could return to full duty but stated that she could possibly perform modified light-duty
work.
In a July 2, 2013 report, Dr. Drury stated that he initially examined appellant on July 25,
2011 after she sustained a fall at work that resulted in a left femoral neck fracture. Appellant
underwent a hemiarthroplasty. Dr. Drury stated that it was a fairly clear-cut chain of events which
led from the fall to the surgical procedure and that he wanted to clarify that this was the case.
By letter dated September 30, 2013, the employing establishment controverted appellant’s
claim as she reported the injury some nine months after the alleged incident. Further, appellant’s
medical providers obtained histories on July 26 and 27, 2011 that she fell while at home. The
employing establishment advised that she called the nurse executive secretary on July 26, 2011
(time and attendance record) and requested leave due to a fall.
By decision dated November 15, 2013, OWCP denied modification of the June 20, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that 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 period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 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.4
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.
2

5 U.S.C. § 8101 et seq.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

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The employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place and in the manner alleged.5 The employee must also
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty,7 nor can OWCP find
fact of injury if the evidence fails to establish that the employee sustained an “injury” within the
meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to establish
the fact that an employee sustained an injury in the performance of duty, as alleged, but the
employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.8 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may cast doubt on an employee’s statements in determining
whether he or she has established his or her claim.9
ANALYSIS
The Board finds that appellant has not established fact of injury due to inconsistencies in
the evidence that cast serious doubt as to whether the July 25, 2011 incident occurred at the time,
place and in the manner alleged. She did not establish that she fell at work on July 25, 2011.
Appellant did not file a claim for injury until April 23, 2012, almost nine months after the
alleged incident. In a report dated July 26, 2011, the date after the alleged incident, Dr. Garcia
noted a history that she experienced vertigo while sitting by her bed at home. Appellant fell over
and landed on her left side. On July 26, 2011 Dr. Taylor’s hospital report stated that she was
status post fall in her home and sustained a left hip fracture due to the fall. He related that
appellant was sorting some items at her bedside at her home when she fell and fractured her left
hip. The contemporaneous accounts from the physicians contradict statements from appellant
and the reports from Drs. De Lapp and Drury, dated July 17, 2012 and July 2, 2013. In addition,
appellant’s supervisor stated on the CA-1 claim form that her secretary advised that appellant
called one morning within the past year prior and informed her that she had fallen at home and
broken her hip. The employing establishment also submitted a September 30, 2013 statement
asserting that, according to its time and attendance records, appellant called the nurse executive
secretary on July 26, 2011 and requested leave due to a fall.

5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

7

Pendleton, supra note 3.

8

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
9

See Constance G. Patterson, 42 ECAB 206 (1989).

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Based on the evidence of record, there are such discrepancies in the accounts of injury
appellant provided to raise uncertainty as to the time, place and in the manner in which she fell.
Appellant allegedly injured her left hip, neck, both knees and both hands during the July 25, 2011
work incident, but according to her supervisors she did not provide notification of a work injury to
the employing establishment almost nine months, and after initially advising that she had injured
her left hip during a fall at home.10 The record does not support that Drs. De Lapp and Drury had
an accurate history of the July 25, 2011 incident as they related differing accounts of how the
injury occurred or indicate any awareness that appellant had initially related that she injured her
left hip during a fall at home on July 25, 2011.11
The Board also notes that appellant failed to submit to OWCP a corroborating witness
statement in response to its request. This casts doubt on her assertion that she injured her left hip
in a fall at work on July 25, 2011. OWCP requested that appellant submit additional factual and
medical evidence explaining how she sustained injury to her left hip, neck, both hands and both
knees on the date in question. Appellant failed to submit such evidence. Given the inconsistencies
in the evidence regarding how she sustained her injury, the Board finds that there is insufficient
evidence to establish an injury in the performance of duty as alleged.12
For the reasons stated above, the Board finds that appellant did not meet her burden of
proof to establish fact of injury. Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly found that appellant failed to meet her burden of
proof to establish that she sustained an injury in the performance of duty on July 25, 2011.

10

Id.

11

See Geraldine H. Johnson, 44 ECAB 745 (1993).

12

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

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ORDER
IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate 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
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 13-1565
Issued: November 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 19, 2013 appellant, through her attorney, filed a timely appeal from a May 20,
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 over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her right knee
condition was causally related to an October 26, 2012 employment incident.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 29, 2012 appellant, then a 62-year-old sales associate, filed a traumatic injury
claim (Form CA-1) alleging that she injured her left knee and right leg on October 26, 2012 in
the performance of duty as a result of falling to the ground while getting out of a chair.
In an October 26, 2012 report, Dr. Ira B. Husky, a Board-certified emergency medicine
physician, diagnosed syncope and collapse, hypopotassemia, urinary tract infection and right
knee sprain. He noted that appellant did not remember the syncopal episode.
On October 26, 2012 Dr. Jonathan C. Royalty, a Board-certified internist, diagnosed right
knee pain, hypokalemia, chronic paroxysmal supraventricular tachycardia, syncope and chronic
unspecified essential hypertension.
Appellant also submitted physical therapy notes dated October 29, 2012.
In a November 14, 2012 letter, OWCP notified appellant of the deficiencies of her claim.
It afforded her 30 days for the submission of additional evidence.
Appellant submitted a November 29, 2012 narrative statement and a limited-duty job
offer from the employing establishment. She also submitted a November 15, 2012 report from
Dr. Frank R. Noyes, a Board-certified orthopedic surgeon, who diagnosed a right knee anterior
cruciate ligament tear, as well as medial and lateral meniscal tears. Dr. Noyes listed a history
that appellant fell on October 26, 2012 and experienced severe pain in her right knee. He
reported that appellant had a prior knee arthroscopy on her right knee in March 2010 for a torn
meniscus. Appellant also had a torn ligament in 1990, although she did not know which one.
By decision dated December 18, 2012, OWCP denied appellant’s claim. It found that
medical evidence was insufficient to establish a causal relationship between her knee or leg
conditions and the October 26, 2012 employment incident.
On December 20, 2012 appellant, through her attorney, requested an oral hearing before
an OWCP hearing representative by telephone. She submitted a narrative statement and a
limited-duty job offer from the employing establishment dated December 13, 2012.2 In a
December 27, 2012 report, Dr. Noyes opined that appellant sustained an injury to her right knee
with a disruption of the anterior cruciate ligament. He noted that “the history of a degenerative
tear of the medial meniscus of the right knee [was] mostly likely related to a prior condition.”
A telephonic hearing was held with an OWCP hearing representative on March 13, 2013.
Appellant provided testimony and the hearing representative held the case record open for 30
days for the submission of additional evidence.

2

On December 17, 2012 appellant, through her attorney, filed a claim for leave without pay for the period
December 13 to 14, 2012.

2

Appellant submitted an October 28, 2012 magnetic resonance imaging (MRI) scan of the
right knee. The MRI scan revealed a medial and lateral meniscus tear, postoperative changes of
the lateral meniscus, an anterior cruciate ligament (ACL) tear and a large Baker’s cyst.
By decision dated May 20, 2013, OWCP’s hearing representative affirmed the
December 18, 2012 decision. She found that the medical evidence did not adequately explain
causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 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
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.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. 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. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7

3

5 U.S.C. §§ 8101-8193.

4

OWCP regulations define 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. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

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

3

ANALYSIS
OWCP accepted that the employment incident of October 26, 2012 occurred at the time,
place and in the manner alleged. The issue is whether appellant’s right knee condition resulted
from the October 26, 2012 employment incident. The Board finds that appellant did not meet
her burden of proof to establish a causal relationship between the knee condition for which
compensation is claimed and the employment incident.
Dr. Noyes diagnosed right knee ACL tear, as well as medial and lateral meniscal tears.
He indicated that appellant fell on October 26, 2012 and experienced severe pain in her right
knee. Dr. Noyes also reported that she had a prior knee arthroscopy on her right knee in
March 2010 for a torn meniscus. Appellant also had a torn ligament in 1990, although she did
not know which one. On December 27, 2012 Dr. Noyes opined that appellant sustained an
injury to her right knee with a disruption of the ACL and that “the history of a degenerative tear
of the medial meniscus of the right knee [was] mostly likely related to a prior condition.” He did
not provide adequate medical rationale explaining how appellant’s right knee condition was
caused or aggravated by falling on the ground while getting out of a chair on October 26, 2012.
Dr. Noyes noted only that appellant’s condition occurred after falling at work. However, such
generalized statements do not establish causal relationship because they merely repeat the
employee’s allegations and are unsupported by adequate medical rationale explaining how this
physical activity actually caused the diagnosed conditions.8 Lacking thorough medical rationale
on the issue of causal relationship, Dr. Noyes’ reports are of limited probative value and
insufficient to establish that appellant sustained an employment-related injury in the performance
of duty on October 26, 2012.
On October 26, 2012 Dr. Husky diagnosed syncope and collapse, hypopotassemia,
urinary tract infection and right knee sprain; he also noted that appellant did not remember the
syncopal episode. On October 26, 2012 Dr. Royalty diagnosed right knee pain, hypokalemia,
chronic paroxysmal supraventricular tachycardia, syncope and chronic unspecified essential
hypertension. Neither physician addressed causal relationship. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9 Drs. Husky and Royalty failed to
address the issue of causal relationship between the October 26, 2012 employment incident and
the diagnosed conditions. Therefore, the Board finds that appellant did not meet her burden of
proof with these submissions.
The physical therapy notes dated October 29, 2012 do not constitute medical evidence as
they were not prepared by a physician.10 As such, the Board finds that appellant did not meet her
burden of proof with this submission.

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

4

The October 28, 2012 MRI scan is diagnostic in nature and therefore does not address
causal relationship. As such, the Board finds that it is insufficient to establish appellant’s claim.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the October 26, 2012 employment
incident, she has failed to meet her burden of proof to establish a claim.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the
reasons stated above, the Board finds the attorney’s arguments are not substantiated.
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 met her burden of proof to establish that her right
knee condition was causally related to an October 26, 2012 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pahrump, NV, Employer
__________________________________________

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

Docket No. 12-1006
Issued: October 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 5, 2012 appellant timely appealed the February 17, 2012 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP) which denied reconsideration of her
emotional condition claim. OWCP issued its most recent merit decision on June 17, 2011, which
is more than 180 days prior to the filing of this appeal. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction
extends only to the February 17, 2012 nonmerit decision.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 25, 2010 appellant, then a 54-year-old part-time flexible (PTF) clerk, filed a
claim (Form CA-2) for an employment-related anxiety disorder which arose on or about
September 27, 2010. She alleged a hostile environment which aggravated her anxiety disorder.
The employing establishment allegedly refused appellant’s request for an accommodation.
Appellant also alleged that her work schedule had been changed without cause and her hours
reduced. The lost hours were reportedly reassigned to other employees. Appellant did not
submit any medical evidence with her October 25, 2010 claim form.
On November 9, 2010 OWCP advised appellant that she needed to submit medical
evidence in support of her claimed emotional condition. It also requested that she describe in
further detail the particular work-related incidents or events that she believed either caused or
contributed to her claimed condition. OWCP afforded appellant 30 days to submit the requested
information.
OWCP subsequently received an undated report from an unidentified healthcare provider.
The form report indicated that appellant had been treated for anxiety, heel spurs and shoulder
pain. There was no date of injury or history of injury listed. OWCP also received May 30, 2008
treatment notes for left foot pain and exhaustion. It did not receive any additional information
regarding specific employment factors believed to have caused appellant’s claimed emotional
condition.
By decision dated December 21, 2010, OWCP denied appellant’s emotional condition
claim.
On January 10, 2011 appellant requested reconsideration. She submitted a December 16,
2010 statement that included 62 alleged incidents she believed caused or contributed to her
emotional condition. The incidents involved changes to appellant’s work schedule, time and
attendance matters, denial of overtime, alleged selective enforcement of workplace rules and
preferential treatment for some PTFs. Appellant also alleged that she had been subjected to
harassment, verbal abuse, intimidation, heightened scrutiny and retaliation. The alleged
retaliation was for having reported safety hazards and other workplace concerns. Appellant
accused her employer of tampering with the mail to make it appear as if she had not performed
her duties. The employing establishment also refused to accommodate her various physical and
psychiatric conditions. Appellant claimed that coworkers and managers had invaded her
personal space and had been falsely accused by coworkers and union stewards. Appellant, a
union steward, stated that management reportedly forced her to work on grievances when she
was off-duty. She also alleged that the employing establishment failed to promote PTF clerks to
available full-time regular positions, which reportedly violated a previous settlement agreement.
Appellant’s December 16, 2010 statement included a list of 15 grievances she had filed.
Appellant submitted statements from several coworkers attesting to perceived favoritism
and fraternization between management and certain employees. These included a statement
from Cindy Sanford who responded to several questions about certain supervisors and managers.
Appellant also submitted various medical records, including a lower extremity imaging study.

2

In a June 17, 2011 merit decision, OWCP denied modification of its December 21, 2010
decision. It found that appellant failed to provide probative evidence in support of her
allegations of harassment, intimidation, retaliation and heightened scrutiny. OWCP also found
that many of appellant’s allegations pertained to administrative actions which were not covered
under FECA absent evidence of error or abuse on the part of the employer. It determined that no
compensable employment factors had been established.
On November 18, 2011 appellant requested reconsideration. She reiterated her earlier
allegations of harassment, favoritism and a hostile work environment. OWCP subsequently
received a December 9, 2011 chronology of the previously implicated employment incidents that
allegedly caused or aggravated her emotional condition.2
Appellant submitted additional evidence which included a July 7, 2009 settlement
agreement between management and appellant in her capacity as union representative. Pursuant
to the settlement, management agreed that it was unacceptable and in violation of the law to
delay mail. Appellant also submitted a copy of a U.S. Code provision regarding delay or
destruction of the mail or newspapers, as well as a November 2, 2001 signed acknowledgment of
her responsibilities regarding security of U.S. mail.
OWCP also received a June 10, 2009 blog posting regarding an employee who
committed suicide at a postal facility. Appellant submitted a September 8, 2010 statement from
April Balsten, who noted that she did not know of current incidents or witness them. There was
also an undated statement from Ms. Sanford regarding discovery of misplaced mail on
September 23 and October 7, 2010. Appellant provided the minutes from a December 31, 2009
labor/management meeting and the agenda for a September 29, 2010 labor/management meeting.
She also submitted additional medical evidence.
By decision dated February 17, 2012, OWCP denied appellant’s November 18, 2011
request for reconsideration.
LEGAL PRECEDENT
OWCP has the discretion to reopen a case for review on the merits.3 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.4
When an application for reconsideration does not meet at least one of the above-noted

2

The December 9, 2011 statement was similar to appellant’s December 16, 2010 statement except that the recent
statement presented the alleged employment incidents in chronological order from September 8 through
December 6, 2010.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

3

requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5
ANALYSIS
Appellant’s November 18, 2011 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. She
submitted the appeal request form that accompanied OWCP’s June 17, 2011 merit decision.
Without elaboration, appellant placed a check on the appropriate line indicating that she was
seeking reconsideration. She submitted a November 18, 2011 statement and a December 9, 2011
chronology of events. Appellant reiterated numerous allegations previously set forth in her
December 16, 2010 statement. She did not advance a relevant legal argument not previously
considered by OWCP. Therefore, appellant is not entitled to a review of the merits based on the
first and second above-noted requirements under section 10.606(b)(2).6
The Board finds that appellant also failed to submit any relevant and pertinent new
evidence with her November 18, 2011 request for reconsideration. The recent medical evidence
she submitted is irrelevant as the underlying issue on reconsideration was whether she
established any compensable employment factors. While a traumatic event, the June 2009
workplace suicide at another postal facility is not relevant to the current claim. The statement of
Ms. Balsten, while new, is not relevant as she did not witness any incidents. The statement of
Ms. Sanford was essentially duplicative of prior statements of record. Because appellant did not
provide any new evidence that might arguably impact the prior decision, she is not entitled to a
review of the merits based on the third requirement under section 10.606(b)(2).7
CONCLUSION
The Board finds that OWCP properly denied appellant’s November 18, 2011 request for
reconsideration.

5

Id. at § 10.608(b).

6

Id. at § 10.606(b)(2)(i) and (ii).

7

Id. at § 10.606(b)(2)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 12-419
Issued: July 17, 2012

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 December 21, 2011 appellant filed a timely appeal from a December 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending his
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation for failure to
submit requested information regarding his employment activity.
FACTUAL HISTORY
On August 8, 2005 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a back injury on August 2, 2005 when he lifted a patient.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for a lumbar strain and appellant returned to a light-duty position. On
October 16, 2008 appellant filed a claim for compensation (Form CA-7), commencing
September 6, 2005, for loss of premium pay.
Appellant began receiving compensation benefits. On October 1, 2009 and October 10,
2010 OWCP requested that he complete a Form EN1032 regarding any employment activities
for the prior 15 months, information regarding dependents and receipt of any other income or
benefits.2
Appellant submitted completed EN1032 forms on November 2, 2009 and
November 1, 2010.
By letters dated October 3 and November 3, 2011, OWCP again requested that appellant
submit an EN1032 form. It advised him to submit the form within 30 days, and noted that
otherwise his benefits could be suspended pursuant to 20 C.F.R. § 10.528. Appellant did not
respond.
In a decision dated December 8, 2011, OWCP suspended appellant’s compensation for
failure to submit the requested information.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
OWCP requested that appellant submit an EN1032 form with respect to any employment
activity performed for the prior 15 months. It requested the information by letters dated
October 3 and November 3, 2011 and advised appellant to submit the form within 30 days or his
compensation could be suspended. The record does not establish that appellant responded prior
to December 8, 2011.

2

The form and cover letter are also referred to as CA-1032 form.

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528.

5

Id.; see also 20 C.F.R. § 10.525.

2

Based on the evidence of record,6 OWCP properly suspended appellant’s compensation
on December 8, 2011 pursuant to 20 C.F.R. § 10.528.7
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation for failure to
timely submit the requested evidence as to employment activity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2011 is affirmed.
Issued: July 17, 2012
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

6

The Board is limited to review of evidence that was before OWCP at the time of the December 8, 2011 decision.
20 C.F.R. § 501.2(c)(1). Any new evidence submitted on appeal cannot be considered by the Board on this appeal.
7

There are OWCP decisions dated January 30 and February 21, 2012 on the suspension issue. It is well
established that the Board and OWCP do not have concurrent jurisdiction over the same case, and OWCP decisions
that change the status of the decision on appeal are null and void. Douglas E. Billings, 41 ECAB 880, 895 (1990).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
U.S. GEOLOGICAL SURVEY, Lafayette, LA,
Employer
__________________________________________

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

Docket No. 11-1730
Issued: October 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 20, 2011 appellant filed a timely appeal from March 10 and July 12, 2011 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation for refusing suitable work. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation on the
grounds that he refused an offer of suitable work under 5 U.S.C. § 8106(c).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 12, 2010 appellant, then a 73-year-old laborer, filed a claim alleging that on
April 5, 2010 he sustained pain and swelling in the left groin in the performance of duty. He
stopped work on April 7, 2010. OWCP accepted the claim for a bilateral inguinal hernia without
obstruction or gangrene. On April 13, 2010 appellant underwent a left inguinal hernia repair and
on August 25, 2010 he underwent a right hernia repair. OWCP paid him compensation for total
disability beginning May 24, 2010.
By letter dated September 8, 2010, OWCP requested that Dr. Eric Amy, an attending
Board-certified surgeon, address whether appellant could work full time and provide a narrative
report discussing his current condition and any resulting disability. In response, Dr. Amy
indicated by checkmark that appellant could return to restricted duty with permanent restrictions.
In a work restriction evaluation dated September 30, 2010, Dr. Amy found that he could not
perform his usual employment but could work full time with restrictions of no lifting, pushing or
pulling over 20 pounds. In response to the question of whether appellant had other conditions to
consider prior to identifying a position, he stated, “Yes, [appellant] has a pulmonary condition
[for] which he sees another physician.”
On October 19, 2010 the employing establishment offered appellant a position as a
modified laborer working eight hours per day in an office lifting, pushing and pulling no more
than 10 pounds.
By letter dated November 29, 2010, OWCP notified appellant of its determination that
the offered position was suitable. It provided him 30 days to accept the position or provide a
written explanation for his refusal. OWCP advised appellant that, if he did not accept the offered
position and it did not find his refusal justified, it would terminate his compensation.
On December 7, 2010 appellant asserted that he was unable to accept the position due to
another work injury. He explained that a few months prior he received a diagnosis of respiratory
disease that was accepted by OWCP as work related in file number xxxxxx933. Appellant
related that the physician who treated him for his respiratory condition had not released him to
work and did not want him to resume work at the location of the job offer. He provided OWCP
with the name of his claims examiner for file number xxxxxx933. Appellant also submitted a
September 3, 2010 letter from OWCP advising him that it had accepted his occupational disease
claim in file number xxxxxx933 for a cough, pneumonitis, unspecified allergic alveolitis and
pneumonitis, emphysema, shortness of breath and nonspecific abnormal radiologic findings in
other intrathoracic organs.
On January 27, 2011 OWCP informed appellant that his reasons for refusing the position
were not valid and allowed him 15 days to accept the position or have his compensation
terminated.
On February 10, 2011 appellant advised OWCP that he had accepted the position on
February 2, 2011 but the employing establishment told him that he no longer had a job. On
March 10, 2011 the employing establishment notified OWCP that the offered position remained
available.

2

By decision dated March 10, 2011, OWCP terminated appellant’s compensation effective
March 13, 2011 after finding that he refused an offer of suitable work under section 8106(c). It
noted that he had an accepted pulmonary claim with a date of injury of February 18, 2010 under
another file number that was open for medical care. OWCP based its finding that the position
was suitable on Dr. Amy’s September 30, 2010 work restrictions.
On March 31, 2011 appellant requested an oral hearing and review of the written record.
He asserted that the offered position was not available after January 5, 2011. Appellant
discussed Dr. Amy’s finding that his lung condition should be considered prior to releasing him
for work.
On July 2, 2011 appellant again asserted that he could not return to work due to his lung
condition. He called the employing establishment following OWCP’s January 27, 2011 letter to
accept the position but was informed that the job was no longer available.
By decision dated July 12, 2011, following a review of the written record, an OWCP
hearing representative affirmed the March 10, 2011 decision.
On appeal appellant questions how OWCP expected him to accept the position when he
was unable to work due to another work injury. He notes that he was not diagnosed with a lung
condition until after his hernia repair.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 Section 8106(c)(2) of FECA3 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.4 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.5 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.6
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant

2

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

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

3

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.8
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.9 In other words,
to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision,
OWCP has the burden of showing that the work offered to and refused by appellant was
suitable.10
Once OWCP establishes that the work offered is suitable, the burden shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.11 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.12 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.13
ANALYSIS
OWCP accepted that appellant sustained a bilateral inguinal hernia due to an April 5,
2010 employment injury. Appellant underwent a left hernia repair on April 13, 2010 and a right
hernia repair on August 25, 2010. He received compensation for total disability from OWCP
until March 13, 2011, when it terminated his compensation for refusing an offer of suitable work.
In a work restriction evaluation dated September 30, 2010, Dr. Amy released appellant to
return to work full time with restrictions of no lifting, pushing or pulling over 20 pounds. He
advised that appellant had a pulmonary condition that should be considered prior to identifying a
work position.
On October 19, 2010 the employing establishment offered appellant a modified position
working in an office with no lifting, pushing or pulling over 10 pounds. Appellant declined the
position, asserting that he was unable to work because of an employment-related respiratory
condition. He referred OWCP to his claims examiner for the respiratory condition in file number
xxxxxx933. Appellant also submitted a September 3, 2010 letter from OWCP in file number
xxxxxx933 accepting his occupational disease claim for a cough, pneumonitis, unspecified
8

Id. at § 10.516.

9

See Linda Hilton, 52 ECAB 476 (2001).

10

Id.

11

20 C.F.R. § 10.517(a).

12

Gayle Harris, 52 ECAB 319 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(3) (July 1997).

4

allergic alveolitis and pneumonitis, emphysema, shortness of breath and nonspecific abnormal
radiologic findings in other intrathoracic organs. In its March 10, 2011 decision terminating
compensation, OWCP discussed its acceptance of his pulmonary disease claim under file number
xxxxxx933, with a February 18, 2010 date of injury. It did not, however, consider whether the
pulmonary condition prevented appellant from performing the offered position.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
monetary compensation. It is well established that before benefits can be terminated under
section 8106(c), OWCP has to demonstrate that the employee has the physical capacity to
perform the duties of the offered position.14 In reaching this determination, it must consider both
preexisting and subsequently acquired conditions.15 OWCP did not properly consider appellant’s
accepted claim for a respiratory condition before terminating compensation. Dr. Amy noted that
his respiratory condition should be considered prior to identifying a work position. Appellant
submitted evidence to OWCP showing that it had accepted numerous respiratory conditions as
employment related. As a penalty provision, section 8106(c)(2) must be narrowly construed.16
OWCP, consequently, did not discharge its burden of proof to justify the termination of
appellant’s compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation on the
grounds that he refused an offer of suitable work under section 8106(c).

14

See Sharon L. Dean, 56 ECAB 175 (2004).

15

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

16

See Karen Spurling, 56 ECAB 189 (2004); Christine P. Burgess, 43 ECAB 449 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the July 12 and March 10, 2011 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: October 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Absecon, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1149
Issued: June 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On May 14, 2018 appellant filed a timely appeal from an April 27, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1149.
This case has previously been before the Board.1 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On January 24, 2010 appellant, then a 44-year-old letter carrier, filed an emotional
condition claim (Form CA-2) for alleged workplace harassment. Her claimed condition reportedly
arose on or about January 2, 2010. OWCP assigned the claim File No. xxxxxx247. By decision
dated January 20, 2011, OWCP accepted appellant’s claim for major depressive disorder (single
episode, severe) and adjustment disorder (mixed anxiety and depressed mood).

1

Docket No. 12-1434, Order Remanding Case (issued February 27, 2013); Docket No. 14-1423 (issued
November 21, 2014); Docket No. 14-1423, Order Denying Petition for Reconsideration (issued April 22, 2015);
Docket No. 16-1868 (issued March 13, 2017); Docket No. 17-1621 (issued December 11, 2017).

On February 15, 2011 appellant filed an occupational disease claim (Form CA-2) for
traumatic stress, depression, and anxiety, which allegedly arose on or about January 1, 2010.
OWCP assigned that claim File No. xxxxxx420.
By decision dated April 4, 2011 OWCP denied appellant’s February 15, 2011 emotional
condition claim, in OWCP File No. xxxxxx420, finding that she had not established fact of injury.
Following a remand order from the Board, OWCP ultimately combined appellant’s two emotional
condition claims and designated File No. xxxxxx247 as the master file.2 Appellant has
subsequently filed multiple requests for reconsideration and appeals to the Board.
When appellant’s claim was last before the Board on its merits, it reviewed OWCP’s
August 17, 2016 decision which denied the acceptance of additional compensable factors of
employment as alleged. By decision dated March 13, 2017 the Board found that appellant had not
established additional compensable factors of employment in support of her emotional condition
claim.
On August 10, 2017 appellant filed a third occupational disease claim (Form CA-2)
alleging an emotional condition as a result of factors of her federal employment. By letter dated
September 13, 2017, OWCP assigned that claim OWCP File No. xxxxxx780, and advised it was
duplicative of her claim under File No. xxxxxx420. OWCP denied appellant’s claim in File No.
xxxxxx420 by decision dated November 8, 2017.
In a statement dated January 21, 2018, appellant referenced OWCP File Nos. xxxxxx420
and xxxxxx247 and indicated that she was requesting a “Director’s Review” following a
December 28, 2017 Board decision which was dismissed for lack of jurisdiction. By letter dated
February 6, 2018, OWCP noted that it had denied her claim under File No. xxxxxx780 on
November 8, 2017 and that she had since requested a hearing with OWCP’s Branch of Hearings
and Review in that claim file. It informed her that her only recourse under OWCP File Nos.
xxxxxx420 and xxxxxx247 was to file an appeal.
On April 8, 2018 appellant requested reconsideration with OWCP following the Board’s
March 13, 2017 decision. In support thereof she submitted a statement dated April 4, 2018,
reiterating that OWCP and the Board had failed to address a potential compensable work factor.
By decision dated April 27, 2018, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board has duly considered this matter and finds that OWCP improperly denied
appellant’s reconsideration request by applying the legal standard for cases where reconsideration
is untimely. The evidence of record reveals that appellant submitted a request for reconsideration
of the March 13, 2017 merit decision and submitted evidence in support of her request within the
required one-year time period. In a letter dated January 21, 2018, and received by OWCP on
January 29, 2018, appellant referenced File Nos. xxxxxx420 and xxxxxx247 and indicated that she
was requesting a “Director’s Review.” She asserted that neither OWCP nor the Board had
addressed her allegation about a November 18, 2010 incident regarding changes in her delivery
2

Docket No. 12-1434, Order Remanding Case (issued February 27, 2013).

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route and having trays out of order. Appellant also included copies of various documents and
correspondence from OWCP regarding her claims for wage-loss compensation. Although the
January 21, 2018 statement does not mention the word “reconsideration,” the Board has found that
there may be a request for reconsideration in situations where a letter does not contain the word
“reconsideration.”3 No special form is required as long as the request is made in writing, identifies
the decision and specific issues to be considered, and is accompanied by relevant and pertinent
new evidence or argument not previously considered.4 In this case, appellant explicitly noted File
Nos xxxxxxx420 and xxxxxx247, she requested a “Director’s Review” of her claim, and she
submitted additional evidence. Furthermore, in the April 1, 2018 appeal request form, she noted
that she had requested a review in January. Thus, the Board finds that appellant’s January 21,
2018 statement constituted a timely request for reconsideration.5
Although OWCP acknowledged receipt of the January 21, 2018 statement in its
February 6, 2018 letter, it did not review whether to grant or deny her reconsideration request.
Instead, OWCP referenced another claim and noted that appellant had requested a hearing with
OWCP’s Branch of Hearings and Review.
OWCP’s regulations are clear that when it receives a timely request for reconsideration, it
must determine whether to review the case on its merits.6 The Board finds that it did not do so in
this claim. Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for timely reconsideration requests.7 The clear evidence of error
standard utilized by OWCP in its April 27, 2018 decision is appropriate only for untimely
reconsideration requests.8 The Board will therefore set aside OWCP’s April 27, 2018 decision
and remand the case for an appropriate decision on appellant’s timely request for reconsideration.

3

Jack D. Johnson, 57 ECAB 593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994).

4

Id.

5

C.M., Docket No. 11-1988 (issued June 6, 2012).

6

See 20 C.F.R. §§ 10.606(b)(3) & 10.608.

7

See id. at § 10.606(b)(3).

8

Id. at § 10.607(b).

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IT IS HEREBY ORDERED THAT the April 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: June 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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Appearances:
James Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1810
Issued: January 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2013 appellant, through her representative, filed a timely appeal from a
February 4, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration on the grounds that it was untimely filed and failed to
establish clear evidence of error. The last merit decision of record was OWCP’s November 7,
2011 schedule award decision. Because more than 180 days elapsed from the most recent merit
decision to the filing of this appeal and, pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On November 8, 1991 appellant, then a 28-year-old mail clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed injuries as a result of her federal
employment duties. OWCP accepted the claim for right shoulder tendinitis, bilateral carpal
tunnel syndrome (CTS), left wrist tendinitis and left first dorsal compartment tenosynovitis.
By decision dated May 11, 1998, OWCP issued a schedule award for 10 percent
permanent impairment of the right arm. The February 12, 1998 report of the district medical
adviser (DMA) noted that appellant’s 10 percent right upper extremity impairment was due to
entrapment neuropathy of the median nerve at the wrist.
On September 19, 2011 appellant filed a new claim for a schedule award (Form CA-7).
In a May 4, 2011 report, Dr. Ellen Pichey, a DMA, found that appellant had five percent
impairment of the right and left arms due to her bilateral CTS, noting the date of maximum
medical improvement as March 16, 2009. In a November 7, 2011 note, Dr. Pichey reported that
the 5 percent impairment of the right arm was not an additional impairment to the previous 10
percent award. Because the original 10 percent award was based on CTS for the upper right
extremity, there was no additional impairment.
By decision dated November 7, 2011, OWCP granted appellant a schedule award for five
percent permanent impairment of the left arm. It found that she was not entitled to an increased
schedule award for the right arm as she had already received a schedule award for 10 percent
impairment.
Appellant submitted reports dated July 29, 2011 through November 30, 2012 from
Dr. Mathias A. Masem, Board-certified in orthopedic surgery, who addressed treatment of her
upper extremities and course of therapy. She also submitted an October 7, 2011 magnetic
resonance imaging scan of the right shoulder and a July 20, 2009 report from Dr. Binh Luu.
On November 5, 2012 appellant requested reconsideration of the November 7, 2011
OWCP decision. OWCP noted the appeal as having been received on November 8, 2012.
In a December 19, 2012 report, Dr. Pichey reviewed Dr. Masem’s March 20, 2012 report.
She determined that the total impairment of the right arm equaled 12 percent, 5 percent for right
CTS and 7 percent for a right shoulder rotator cuff tear/tendon rupture. Dr. Pichey concluded
that appellant had an additional seven percent impairment of the right arm.
By decision dated February 4, 2013, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.

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LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.4
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of an existing schedule award. When a
claimant is asserting that an original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. However, even if the term reconsideration is
used, when a claimant is not attempting to show error in the prior schedule award decision and
submits medical evidence regarding a permanent impairment at a date subsequent to the prior
schedule award decision, it should be considered a claim for an additional schedule award. A
claim for an additional schedule award may be based on new exposure to employment factors or
on the progression of an employment-related condition, without new exposure, resulting in
greater permanent impairment. OWCP should issue a merit decision on the schedule award
claim, rather than adjudicate an application for reconsideration.5
ANALYSIS
The Board finds that OWCP erroneously adjudicated appellant’s request for an additional
schedule award as a request for reconsideration under the clear evidence of error standard.
On November 8, 2012 appellant requested reconsideration of the November 7, 2011
OWCP schedule award decision. She submitted new evidence relating to her medical diagnosis
and schedule award claim. In a March 20, 2013 report, Dr. Masem, appellant’s treating
physician, provided additional findings.
On December 19, 2012 Dr. Pichey reviewed
Dr. Masem’s report and rated impairment of 12 percent: 5 percent for right CTS and 7 percent
for a right shoulder rotator cuff tear/tendon rupture. She advised that appellant had an additional
seven percent.
In its February 4, 2013 decision, OWCP denied appellant’s November 8, 2012 request for
reconsideration, finding that it was not timely filed and failed to present clear evidence of error.
3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
5

R.L., Docket No. 09-1948 (issued June 29, 2010); B.K., 59 ECAB 228, 229-30 (2007); Candace A. Karkoff, 56
ECAB 622, 625 (2005); Linda T. Brown, 51 ECAB 115, 115-16 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994);
see Leonard E. Redway, 28 ECAB 242, 246-47 (1977).

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The Board has held that a claimant may request a schedule award or increased schedule award
based on evidence of new exposure or medical evidence showing the progression of an
employment-related condition resulting in permanent impairment or increased impairment.6
Dr. Pichey provided an impairment rating for right shoulder rotator cuff tear/tendon rupture in
addition to the prior five percent rating for CTS.
As in Paul R. Reedy, the February 4, 2013 decision treated appellant’s claim as a request
for reconsideration. The Board finds, however, that she was not seeking reconsideration of the
previous schedule award determination, but submitted new evidence pertaining to additional
impairment of the upper right extremity.7 OWCP’s procedure manual states that, if a claimant is
seeking an increased schedule award due to increased impairment and/or additional exposure,
but not contesting the decision or prior award, this should not be treated as a reconsideration
request and OWCP should develop the issue of entitlement to an additional award.8
The Board finds that OWCP erroneously adjudicated appellant’s claim for an additional
schedule award as a request for reconsideration. It failed to issue an appropriate decision
regarding her claim for an increased schedule award.9 On remand, OWCP should review the
medical evidence and issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly adjudicated appellant’s schedule award claim as
a request for reconsideration.

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Id.

7

J.F., Docket No. 13-112 (issued November 6, 2013).

8

The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)
(October 2011).
9

E.T., Docket No. 13-1691 (issued September 25, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the February 4, 2013 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: January 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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