United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket Nos. 09-1046 & 09-1294
Issued: May 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On March 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decisions dated March 4, April 17 and August 6, 2008.1 It
was docketed as No. 09-1046. On April 20, 2009 appellant filed a timely appeal of a March 11,
2009 nonmerit decision. It was docketed as No. 09-1294. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the nonmerit issues.2

1

The date of the appeal was determined by the date on appellant’s appeal letter. The accompanying envelope has
no cancellation date on it. See 20 C.F.R. § 501.3(d)(3)(ii).
2

The last merit decision, affirming appellant’s pay rate for the selected position of a Cashier 2 was issued by the
Board on October 24, 2006. Docket No. 06-40 (issued October 24, 2006). On July 30, 2007 the Board granted the
Director’s petition for reconsideration for correction and denied appellant’s petition for reconsideration. Docket No.
06-40 (issued July 30, 2007). The absence of further review by the Office on the issue addressed by a Board
decision is res judicata and is not subject to further consideration by the Board on this appeal. See Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

ISSUES
The issues are: (1) whether the Office properly refused to reopen appellant’s case for
further review of the merits pursuant to 5 U.S.C. § 8128(a); and (2) whether the Office properly
refused to reopen his case for further review of the merits of his claim on the grounds that his
request was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that the prior decisions were based on errors of law and
inaccurate evidence concerning the suitability of the selected position.
FACTUAL HISTORY
This case has previously been before the Board. In a May 15, 2003 decision, the Board
affirmed Office decisions dated October 29, 2001 and January 28, 2002 which reduced
appellant’s compensation benefits effective August 15, 1999.3 The Board found that the selected
position of Cashier 2 represented his wage-earning capacity and that the position duties were not
of a repetitive nature. The Board also found that appellant failed to meet his burden of proof in
establishing a recurrence of disability on or after August 28, 2000 causally related to his accepted
March 15, 1982 employment injury.4 In a December 14, 2004 decision, the Board affirmed the
April 12, 2004 Office determination that modification of the wage-earning capacity was not
warranted.5 The Board remanded the case, however, on the calculation of appellant’s pay rate.
In an October 24, 2006 decision, the Board affirmed an April 5, 2005 Office decision regarding
appellant’s pay rate.6 The Board also found that the Office properly denied appellant’s request
for further merit review in decisions dated June 2 and September 15, 2005. On July 30, 2007 the
Board issued an order granting the Director’s petition for reconsideration for correction and
denying appellant’s petition for reconsideration.7 The facts of the case as set forth in the Board’s
prior decisions are incorporated herein by reference.
In a September 13, 2007 letter, appellant requested reconsideration. He contended that
the Office used an inaccurate and incorrect job description when it reduced his compensation
effective August 15, 1999 based on its determination that the selected position of Cashier 2
represented his wage-earning capacity.
By decision dated September 19, 2007, the Office denied appellant’s request for
reconsideration of the merits.

3

Docket No. 02-2265 (issued May 15, 2003). The Office issued its initial decision reducing the rate of
appellant’s compensation benefits based on his wage-earning capacity as a Cashier 2 on July 16, 1999.
4

On March 15, 1982 appellant, then a molder, injured his right hand in the performance of duty. The Office
accepted the claim for fracture of the fifth right metacarpal and authorized nerve entrapment surgery.
5

Docket No. 04-1438 (issued December 14, 2004).

6

Docket No. 06-40 (issued October 24, 2006).

7

Docket No. 06-40 (issued October 24, 2006), order denying petition for recon., and correction and denying
petition for recon. Docket No. 06-40 (issued July 30, 2007).

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Appellant requested reconsideration by letters dated September 22 and
December 3, 2007. He contended that the decisions of the Office and the Board contained errors
of law and that he was never provided with a decision based on an accurate job description for
the Cashier 2 position or sent a notice of proposed reduction of compensation. Appellant also
contended that the statement of accepted facts was incorrect.
By decision dated March 4, 2008, the Office denied appellant’s requests for
reconsideration of the merits.
In letters dated March 14 to April 9, 2008, appellant requested reconsideration of the
March 4, 2008 nonmerit decision. He reiterated that the Office used an inaccurate description of
Cashier 2 as the position was light duty rather than sedentary.
In a decision dated April 17, 2008, the Office denied appellant’s request for a merit
review.
On July 2 and 8, 2008 appellant requested reconsideration contending that the medical
and vocational evidence was deficient in establishing his ability to perform the duties of
Cashier 2. Specifically, he also argued that the medical opinions used by the Office violated
Americans with Disability Act and that it failed to develop and implement affirmative actions for
disabled employees as required by law.
In an August 6, 2008 decision, the Office denied appellant’s request for reconsideration
without merit review.
On August 11 and 19 and September 2, 2008 appellant again requested reconsideration
and reiterated arguments that the Office violated the law when it made its determination
regarding the selected position of Cashier 2. With his September 2, 2008 request appellant
submitted two pages of 29 C.F.R. § 1614.101 in support of his contention that the Office failed
to comply with federal regulations.
On September 17, 2008 appellant filed an appeal with the Board, requesting review of the
September 19, 2007 nonmerit decision. By order dated December 19, 2008, the Board granted
appellant’s request to dismiss the appeal and cancel oral argument.8
On February 17, 2009 appellant requested reconsideration and reiterated his contentions
regarding the inaccurate job description and that the Office failed to follow federal regulations.
On March 11, 2009 the Office denied appellant’s request for reconsideration on the basis
that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT -- ISSUES 1 & 2
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
8

Docket No. 08-2515 (issued December 19, 2008).

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employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.9 The burden of proof is on the party attempting to show modification.10 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.11
ANALYSIS -- ISSUE 1
The Office considered appellant’s correspondence in 2008 and 2009 as requests for
reconsideration of the prior wage-earning capacity determination under 5 U.S.C. § 8128(a). It
found the requests dated March 14 to July 8, 2008 were insufficient to warrant further merit
review. The requests dated August 6, 2008 to February 17, 2009 were found untimely filed and
that appellant did not establish clear evidence of error.
In his various correspondence to the Office, appellant used the term reconsideration.
However, in each case he asserted that the July 16, 1999 wage-earning capacity determination
was erroneously determined and that the constructed position of Cashier 2 was not suitable.
Appellant contended that the original wage-earning capacity determination was made in error
and warranted modification. He argued that the Office failed to properly interpret and apply
relevant case precedent and the medical evidence. Appellant seeks modification of the Office’s
July 16, 1999 wage-earning capacity determination. The Office erroneously considered his
contentions regarding the July 16, 1999 decision under 5 U.S.C. § 8128(a) rather than the legal
standard applicable for modification of the wage-earning capacity determination.
Appellant has requested modification of the July 16, 1999 wage-earning capacity
determination. The case will be remanded to the Office to adjudicate his request for
modification of the wage-earning capacity determination and issue an appropriate decision in the
case.
CONCLUSION
The Board finds that appellant requested modification of the July 16, 1999 wage-earning
capacity determination and that the Office applied an erroneous legal standard to his requests.

9

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).
10

Darletha Coleman, 55 ECAB 143 (2003).

11

W.W., 61 ECAB ___ (Docket No. 09-1934, issued February 24, 2010); Gary L. Moreland, 54 ECAB
638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005); Emmit Taylor, Docket No. 03-1780
(issued July 21, 2004). In Peoples and Taylor, the Board determined that the claimant’s request for reconsideration
of a wage-earning capacity determination constituted a request for modification of the decision. In both cases, the
Board set aside the Office’s decision denying the claimant’s reconsideration request as untimely and remanded for
the Office to adjudicate the issue of modification of a loss of wage-earning capacity determination.

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ORDER
IT IS HEREBY ORDERED THAT the March 11, 2009 and August 6, April 17 and
March 4, 2008 decisions of the Office of Workers’ Compensation Programs be set aside. The
case is remanded for further proceeding consistent with this decision.
Issued: May 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0871
Issued: December 1, 2016

Case Submitted on the Record

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

JURISDICTION
On March 6, 2015 appellant, through counsel, filed a timely appeal of a February 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability on April 28, 2014 causally related to her March 3, 1992 employment injury.
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.

On appeal counsel argued that when the employing establishment withdrew appellant’s
light-duty position, OWCP should have paid her claim as a recurrence of disability. He further
argued that the offered limited-duty position should have been evaluated by OWCP to determine
its suitability before the claim was denied as a recurrence of disability. Counsel argued that
appellant was entitled to two separate processes, the determination of whether a recurrence of
disability occurred, and then a determination of whether the offered position was suitable and
that without these two different analyses, appellant was denied due process under Maggie
Moore.3
FACTUAL HISTORY
This case has previously been before the Board on appeal.4 The facts and circumstances
surrounding the prior appeals are incorporated by reference. The relevant facts follow.
Appellant was 30 years old when she began working as a full-time rural mail carrier on
December 6, 1986. She filed an occupational disease claim (Form (CA-2) alleging that she
developed carpal tunnel syndrome due to her job duties of manually sorting mail and parcels,
loading her vehicle, delivering mail, and filing. Appellant first noticed pain in her right wrist on
March 3, 1992. OWCP accepted her claim for lesion of the ulnar nerve on June 9, 1992. It
expanded the accepted conditions to include bilateral ulnar neuropathy on November 9, 1992.
Appellant underwent cubital tunnel surgery on January 28, 1993 and returned to light
duty by February 16, 1994. She worked as a modified clerk beginning January 25, 1995 and
continued on May 27, 1998 for eight hours a day with an ergonomic workstation, answering
telephones utilizing a speaker phone which included taking messages and assisting customers,
completing time cards, recording volumes on forms, completing vehicle cards, recording postal
fuel purchases and entering data into the computer, ordering and storing supplies, recording sick
leave, keeping the lobby orderly and occasional typing and filing. Appellant’s filing was not to
exceed 20 minutes, her typing was not to exceed 20 minutes and she was to perform no repetitive
motion of the hands and arms with no lifting over 10 pounds.
OWCP accepted a recurrence of disability on February 22, 1999. Appellant returned to
work light duty six hours a day on March 8, 1999 performing desk and computer work.
By decision dated April 1, 2004, OWCP found that appellant’s light-duty position fairly
and reasonably represented her wage-earning capacity and reduced her compensation benefits
based on her actual earnings.
On May 7, 2009 appellant accepted a modified-duty position at the office in Leola, PA,
working six hours a day with Saturday and Sunday off. On August 11, 2010 she accepted a
modified-duty position at the Leola, PA, office with Saturday and Sunday off working six hours
a day.
3

41 ECAB 334 (1989), reaff’d on recon., 43 ECAB 818 (1992).

4

In a decision dated September 23, 1999, the Board found that appellant had no more than 16 percent impairment
of her left upper extremity. Docket No. 97-2779 (issued September 23, 1999).

2

Appellant again filed a claim for recurrence of disability (Form CA-7) on August 27,
2010 alleging that on August 16, 2010 the employing establishment withdrew her light-duty
position under the National Reassessment Process (NRP). OWCP denied her claim for
recurrence on October 26, 2010 and February 17, 2011.
Appellant appealed to the Board. In an Order Reversing Case in Part and Remanding
Case, the Board found that OWCP abused its discretion in determining appellant’s wageearning capacity based on a part-time position. The Board further remanded the case for OWCP
to determine if appellant’s employment-related residuals and disability continued.
5

OWCP issued a decision on March 22, 2012 authorizing retroactive compensation
benefits from August 16, 2010 through November 18, 2011.
Dr. Hartman examined appellant on February 28, 2013. He diagnosed lesion of the ulnar
nerve. Dr. Hartman opined that appellant could perform sedentary duty six hours a day, lifting
less than 10 pounds with limited overhead reaching and bending. He also opined that appellant
should limit repetitive activities with her upper extremities. Dr. Hartman recommended that
appellant work only in the morning and early afternoon and that she have a 10-minute break after
three hours to stretch.
On April 25, 2013 the employing establishment involuntarily reassigned appellant to the
Harrisburg office as full-time mail processing clerk. Subsequently, appellant accepted a
modified-duty position on June 21, 2013 at the Columbia office working six hours a day with
scheduled days off of Saturday and Sunday. This position required her to lift up to 10 pounds
intermittently for one hour, to perform fine manipulation working at her own pace from one to
three hours, to answer the phone for six hours a day, and to sit or stand to comfort standing one
hour and sitting three to four hours.
Dr. Hartman completed additional reports on May 9, July 24, September 17, and
October 30, 2013 diagnosing ulnar neuropathy. He noted that appellant could not perform
repetitive motions and should work six hours a day with usual rest periods. Dr. Hartman
indicated that appellant could lift 10 pounds intermittently and should work at shoulder level five
percent of the time. He noted that appellant should limit overhead and over the shoulder
working and should not work in the late afternoon or evening. Dr. Hartman recommended that
appellant alternate sitting, standing, and walking as well as changing position as needed. He
provided restrictions of standing one hour a day, sitting, three to four hours a day, and walking
one to two hours a day. Dr. Hartman also limited appellant’s driving to 30 minutes at a time. He
indicated that she should perform simple grasping and fine manipulation for one to three hours.
Dr. Hartman completed a narrative report and work restriction evaluation on October 31,
2013 and indicated that appellant could work six hours a day. He restricted her to sitting three
hours a day, walking one to two hours a day, standing one hour a day, reaching less than one
hour with no reaching above the shoulder, no twisting and bending and stooping less than one
hour each. Dr. Hartman further indicated that appellant should operate a motor vehicle for no
more than 30 minutes at work and 30 minutes to and from work. He limited her to pushing,
5

Docket No. 11-0865 (issued December 16, 2011).

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pulling, and lifting less than 10 pounds for one hour a day. Dr. Hartman indicated that appellant
could squat less than one hour a day and could not kneel, climb, or perform repetitive
movements of the wrists and elbows. He indicated that she should have breaks after three hours
for 10 minutes and that she should use a speaker phone.
Dr. Hartman repeated appellant’s diagnosis and restrictions on December 23, 2013 and
February 12, 2014. On April 23, 2014 he provided an office note which indicated that appellant
could continue sedentary duty for six hours a day. Dr. Hartman provided that appellant could lift
less than 10 pounds. He also found that appellant should limit overhead reaching, bending, and
lifting as well as repetitive activity with her upper extremities. Dr. Hartman indicated that
appellant could only work morning and early afternoon hours. He concluded that appellant’s
driving was limited to 30 minutes one way.
Dr. Hartman completed a duty status report on April 23, 2014 diagnosing ulnar
neuropathy. He indicated that appellant could work six hours a day performing sedentary duty.
Appellant’s restrictions were lifting and carrying up to 10 pounds for six hours a day. She was to
sit for three to four hours a day and stand for one hour. Appellant was to walk for one to two
hours a day and was not to climb, kneel, or twist. Dr. Hartman indicated that appellant could
bend, stoop, and squat for less than one hour a day. He provided that she could push and pull for
30 minutes and reach above the shoulder for 30 minutes. Appellant could perform grasping and
fine manipulation for one to two hours each. Dr. Hartman provided that appellant could drive a
vehicle for 35 to 40 minutes and could not operate machinery. He recommended an ergonomic
desk, stool, and chair, a speaker phone, and no sorting mail. Dr. Hartman indicated that
appellant required two days off in a row. He further found that appellant required a 15-minute
break after 2 hours and 30 minutes for lunch after 3 to 4 hours of work.
On April 28, 2014 the employing establishment offered appellant a modified position in
accountables, window, and retail working six hours a day. This position was located in the
Lancaster Main Office and became available on April 30, 2014 with scheduled days off of
Sunday and Wednesday. Appellant was required to work accountables for three hours a day and
to work window, retail, and unendorsed bulk business mail (UBBM) for three hours a day. She
was to perform sedentary to light work at her own work space. Appellant was to work at her
own pace to minimize any repetitive work and change positions to comfort. In accountable she
was to work at a desk using a pen and writing. Window/retail entailed working with customers
assisting with the automated postal center.
The physical requirements of the modified assignment were walking one to two hours a
day, sitting three to four hours a day, and standing one hour a day. Appellant could change
position as needed. She was to perform simple grasping one to three hours a day intermittently.
Appellant was to lift, push, and pull up to 10 pounds for one to six hours a day intermittently.
She was required to carry 10 pounds from one to four hours a day, occasionally. The position
required appellant to drive up to 30 minutes at a time. She was to perform no repetitive motion.
The position indicated that appellant was required to perform limited overhead and over the
shoulder work with no late afternoon or evening work.
Dr. Hartman reviewed this position on April 23, 2014 and modified the physical
requirements to indicate that appellant could perform on “very limited” overhead and over

4

shoulder work. He added the restriction that appellant could perform work at shoulder level only
five percent of her workday. Appellant accepted the position under protest on April 28, 2014
and requested modifications in accordance with her restrictions.
The employing establishment informed appellant that there was no work available within
her restrictions on April 28, 2014 after 2:25 p.m. Appellant requested leave without pay for this
35-minute absence.
In a letter dated April 30, 2014, appellant rescinded her acceptance of the job offer as she
believed that all the duties were not within her restrictions. She noted that she was initially given
the offer on April 23, 2014 and presented it to Dr. Hartman on that date. Appellant further noted
that she had requested that an ergonomic desk and chair be moved to the Lancaster Main Office
for her use. She noted that she was told that this request was unacceptable, and that she was
expected to sign the offer with no changes made. Appellant alleged that the duties were vague
and that UBBM required repetitive motion with the upper extremities as well as throwing and
pitching motions. She further alleged that a clerk was required to perform repetitive grasping if
sorting mail. Appellant noted in the Lancaster Main Office the accountables were stored with at
least one half of the shelves at or above shoulder level or above her head. She asserted that the
writing area in accountables was too high for her ergonomic chair. Appellant requested two
consecutive days off as she had in the past rather than split days off provided in the offer. She
noted that Dr. Hartman recommended a 15-minute break after 2 hours and a 30-minute lunch
after 3 to 4 hours. Appellant objected to the characterization of the work as sedentary to light
rather than merely sedentary. She noted that sedentary work involves lifting up to 10 pounds
occasionally while light work included exerting up to 20 pounds of force occasionally or 10
pounds frequently. Appellant noted that she could perform simple grasping for one to two hours
intermittently rather than one to three hours, pushing and pulling for one half an hour rather than
up to six hours and working at or above the shoulder for no more than five percent of her
workday. She asserted that her current temporary position was withdrawn and terminated.
Appellant filed a recurrence of disability on May 1, 2014 alleging on April 28, 2014 her
limited-duty position at the previous Columbia office had been withdrawn. She noted that the
offered position was not within her medical restrictions.
In a letter dated April 30, 2014, the employing establishment noted that appellant had
accepted the job offer under protest and duress. It noted that she submitted new medical
evidence to support her request for a lunch, two consecutive days off and different hours. The
employing establishment requested that OWCP provide a suitability ruling on the offered
position.
In a report dated May 5, 2014, Dr. Paul Vassil, a Board-certified family practitioner,
diagnosed Chiari malformation, chronic fatigue syndrome and reactive hypoglycemia. He noted
that appellant could work no more than six hours a day with a 30-minute lunch break preferably
after 3 hours as well as two consecutive days off to recover from the demands of her job.
Dr. Vassil also noted that appellant required daytime work only.
OWCP requested additional information from appellant and the employing establishment
on May 7, 2014. Appellant’s modified position on June 21, 2013 required lifting up to 10

5

pounds intermittently up to one hour, limited fine manipulation working at her own pace for two
to three hours, answering the telephone for six hours and sitting for three to four hours or
standing for one hour to her comfort. The employing establishment indicated that her previous
modified position entailed clerical duties such as lobby stock, insurance claims, telephone duties
and permit tracking.
By decision dated June 11, 2014, OWCP denied appellant’s claim for a recurrence of
disability finding that the offered position was within her work restrictions.
In a statement dated June 16, 2014, appellant alleged that her recurrence was due to the
withdrawal of her light-duty assignment. She noted that she worked six hours a day until her
permanent rehabilitation position was withdrawn at the Leola office on June 1, 2013. Appellant
was transferred to the Harrisburg office although the commute exceeded her driving restrictions.
She did not work in this position and returned to work on June 21, 2013 in a temporary limitedduty assignment at the Columbia office. This position was withdrawn on April 28, 2014 and
another temporary job was offered at the Lancaster office. Appellant alleged that the Lancaster
position was not within her physical restrictions. She claimed that modifications needed to be
made before she would accept the position. Appellant further noted that the employing
establishment had not notified her that the Lancaster position was still available after
April 28, 2014.
Appellant noted that following her accepted occupational disease claim, she underwent
two brain, head and neck surgeries for Arnold Chiari malformation. She alleged that her Chiari
malformation caused continual chronic pain, fatigue, sleep problems and muscle spasms,
degenerative disc disease, facet joint arthritis and reactive hypoglycemia.
In a report dated June 26, 2014, Dr. Hartman noted that appellant could return to
sedentary duty with no repetitive motion working six hours a day.
Counsel requested an oral hearing before OWCP’s Branch of Hearings and Review on
June 30, 2014. Appellant underwent a functional capacity evaluation on August 12, 2014. This
study found that appellant could work at a sedentary capacity for eight hours a day. The
functional capacity evaluation indicated that appellant employed partial submaximal effort. This
study demonstrated that appellant could lift less than nine pounds at waist height, carry less than
eight pounds and push less than 20 pounds.
In a statement dated September 8, 2014, appellant described her issues with the offered
limited-duty position. She alleged that she could not perform accountables for three hours a day
as this was too repetitive and involved drafting second notices for pieces of mail that the carriers
were unable to deliver. Appellant also alleged that the mail was stored in shelving from waist
height to over her head which exceeded her over the shoulder limitation. She also noted that she
was unable to sort mail. Appellant noted that she would need to be able to rotate her tasks to cut
down on the repetitive nature of the work. She noted that she required further clarification
regarding her duties at the window or in retail. Appellant also noted that UBBM required
repetitive grasping and motion with the upper extremities including repetitive through and
pitching motions. She noted that her previous limited-duty positions were more clerical and

6

administrative assistant-type duties which made it easier to pace herself and avoid repetitive
motions.
In a letter dated September 17, 2014, the employing establishment noted that it would
modify the April 28, 2014 job offer to provide appellant with a computer hutch and chair as well
as a 30-minute lunch. Appellant’s scheduled days off would be Saturdays and Sundays. She
accepted the modified position at the Lancaster office on September 17, 2014 which entailed
accountables, window, retail and UBBM working six hours a day. The position was described as
basically sedentary to light work with her own work space. Appellant was to work at her own
pace to minimize repetitive work. She was to change position to comfort. The accountables
duties required appellant to work at a desk using a pen and writing. Appellant’s window and
retail duties were working with customers assisting with the automated postal center.
Appellant testified at the oral hearing on January 9, 2015 and noted that on her last date at
the Columbia office she was offered the position at Lancaster to begin on the following Monday.
She alleged that she was not allowed to finish her work shift on April 28, 2014. Appellant noted
that the first offered position had been outside her restrictions as it did not include two
consecutive days off, a 30-minute lunch, and breaks every two hours as well as requiring
repetitive work at a light level rather than sedentary. She noted that her supervisor noted her
current position would be modified once she reached the worksite. Appellant noted that the
Lancaster office was within her driving restrictions.
The employing establishment responded to appellant’s testimony on February 3, 2015
and noted that appellant was initially provided with the limited-duty position on April 21, 2014.
Appellant addressed its allegations on February 17, 2015 and alleged that she had previously had
consecutive days off and a lunch break in her limited-duty position at Leola.
By decision dated February 27, 2015, OWCP’s hearing representative found that
appellant had not met her burden of proof to establish a recurrence of disability on
April 28, 2014. She found that appellant was offered a light-duty job on April 28, 2014 which
was within her medical restrictions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.6 When an
employee, who is disabled from the job she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence of record establish that she can
perform the light-duty position, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability and show that she
6

20 C.F.R. § 10.5(x).

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cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty requirements.7
OWCP regulations have codified this by noting that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury. An
employee is not entitled to compensation for any wage loss to the extent that evidence
establishes that an employee had medical work restrictions in place; that light duty within those
work restrictions was available; and that the employee was previously notified in writing that
such duty was available.8
If the claim for recurrence of disability for work is based on modification of the
claimant’s duties or physical requirements of the job, the claimant should be asked to describe
such changes. If the evidence establishes that the limited-duty position has changed such that it
no longer accommodates the claimant’s work restrictions, OWCP should accept the recurrence.9
ANALYSIS
The Board finds that appellant failed to meet her burden of proof in establishing a
recurrence of disability on April 28, 2014.
Appellant was working in a light-duty position at the Columbia office until
April 28, 2014. This position required working six hours a day with scheduled days off of
Saturday and Sunday. The position required her to lift up to 10 pounds intermittently for one
hour, to perform fine manipulation working at her own pace from one to three hours, to answer
the phone for six hours a day, and to sit or stand to comfort standing one hour and sitting three to
four hours.
On April 23, 2014 the employing establishment offered appellant a light-duty assignment
at the Lancaster Main Office with the physical requirements of walking from one to two hours a
day, sitting from three to four hours a day and standing for one hour a day, changing her position
as needed. Appellant was required to perform simple grasping for one to three hours a day
intermittently, to occasionally carry up to 10 pounds for one to four hours a day, to push and pull
up to 10 pounds occasionally from one to six hours a day and to lift up to 10 pounds
intermittently as tolerated for one to six hours a day. She was to drive no more than 30 minutes
at one time with no repetitive motion, limited overhead and over the shoulder work and no late
afternoon or evening work. Appellant did not have consecutive days off.
Appellant’s attending physician, Dr. Hartman, completed an office note and a work
restriction evaluation on April 23, 2014 as well as signing the physical requirements of the
modified assignment. He indicated that appellant could work six hours a day. Dr. Hartman
7

Terry R. Hedman, 38 ECAB 222 (1986).

8

20 C.F.R. § 10.500(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6.a(3) (June 2013).

8

restricted appellant’s sitting to three to four hours a day. The offered position required that
appellant sit for up to four hours a day, within her restrictions. Appellant was to reach for less
than one hour with no reaching above the shoulder. Dr. Hartman indicated that appellant could
reach above the shoulder for no more 30 minutes. The offered position indicated that appellant
would push and pull up to 10 pounds for one to six hours a day. This requirement was within
appellant’s restrictions as provided by Dr. Hartman on April 23, 2014 as he provided that she
could push and pull. The offered position also indicated that appellant should lift up to 10
pounds intermittently for one to six hours a day. This is within appellant’s restrictions as
provided by Dr. Hartman on April 23, 2014. Dr. Hartman also indicated that appellant should
have breaks after three hours for 10 minutes.
As the offered position complied with appellant’s established medical restrictions, the
Board finds that appellant has not met her burden of proof to establish a recurrence of disability
on April 28, 2014. In regard to counsel’s arguments on appeal, the Board has long held that
when an employee returns to a light-duty position or the medical evidence of record establish
that she can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative, and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. The burden is on the employee to establish that
the light duty is not appropriate, not on OWCP. The Board finds in this case, that appellant
failed to meet her burden of proof to establish a change in the nature and extent of the light-duty
requirements and has not established a recurrence of disability for the period claimed.
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 in establishing a
recurrence of disability as there was appropriate light duty available for her within her medical
restrictions beginning on April 28, 2014.

9

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.10
Issued: December 1, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

10


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

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

Docket No. 17-0375
Issued: May 7, 2018

Case Submitted on the Record

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

JURISDICTION
On December 9, 2016 appellant, through counsel, filed a timely appeal from an October 14,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than six
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On May 13, 2004 appellant, then a 42-year-old letter carrier, filed a traumatic injury claim
(Form CA-1), under OWCP File No. xxxxxx073, alleging that, on May 13, 2004, she sustained a
right shoulder injury due to reaching into a mailbox at work. She stopped work on May 13, 2004
and returned to limited-duty work on May 14, 2004 without wage loss. OWCP accepted
appellant’s traumatic injury claim for right shoulder sprain/strain and complete rupture of the
rotator cuff of her right shoulder.
Appellant stopped work on September 26, 2005 and, on that date, she underwent OWCPauthorized right shoulder surgery, including diagnostic arthroscopy with debridement and miniopen rotator cuff repair. On March 20, 2006 she returned to limited-duty work on a full-time basis
without wage loss.3
On March 13, 2013 appellant filed an occupational disease claim (Form CA-2), under
OWCP File No. xxxxxx469, alleging that she sustained a right shoulder injury due to performing
her federal employment duties. She indicated that she first realized on November 1, 2012 that her
claimed condition was caused or aggravated by factors of her federal employment. Appellant
stopped work on March 1, 2013 and returned to work shortly thereafter. OWCP accepted
appellant’s occupational disease claim for rotator cuff tear of her right shoulder. It administratively
combined appellant’s traumatic injury and occupational disease claims and designated OWCP File
No. xxxxxx073 as the master file.
Appellant stopped work on May 17, 2013 and received disability compensation on the
daily rolls beginning that same date.
The findings of a May 30, 2013 magnetic resonance imaging (MRI) scan of appellant’s
right shoulder showed a full-thickness supraspinatus tear, biceps tendinosis, and
infrascapular/subscapular tendinosis.
On August 1, 2013 appellant underwent OWCP-approved right shoulder surgery, including
arthroscopic subacromial decompression with rotator cuff repair.4
The findings of January 6, 2014 x-ray testing of appellant’s right shoulder revealed
moderate degenerative changes of her acromioclavicular joint with some inferior spurring.

3

Appellant received disability compensation on the daily rolls for her time off from work due to the surgery.

4

Appellant received disability compensation on the periodic rolls beginning September 22, 2013.

2

On June 18, 2015 appellant filed a claim for a schedule award (Form CA-7) alleging
permanent impairment due to her accepted work injury.
In a June 26, 2015 development letter, OWCP requested that appellant submit a medical
report addressing whether her injury-related condition had reached maximum medical
improvement (MMI) and containing a permanent impairment rating in accordance with the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 OWCP afforded appellant 30 days to respond.
Appellant submitted a December 12, 2014 report from Dr. Catherine Watkins Campbell,
an attending physician Board-certified in occupational and family medicine, who examined her on
October 13, 2014. Dr. Watkins Campbell indicated that, upon examination, appellant exhibited
the following measurements for active range of motion (ROM) of her right shoulder (three
attempts for each motion): 160, 167, and 167 degrees of abduction; 32, 28, and 26 degrees of
adduction; 153, 151, and 156 degrees of flexion; 62, 60, and 59 degrees of extension; 76, 70, and
76 degrees of internal rotation; and 98, 96, and 96 degrees of external rotation. Appellant had
mild-to-moderate glenohumeral tenderness of her right shoulder on palpation and mild anteriorposterior laxity of her right shoulder with pain on testing. Dr. Watkins Campbell opined that
appellant had 12 percent permanent impairment of her right upper extremity impairment under the
sixth edition of the A.M.A., Guides. She applied the diagnosis-based impairment (DBI) method
of rating permanent impairment under Table 15-5 (Shoulder Regional Grid) on page 403.
Dr. Watkins Campbell determined that appellant’s most impairing right shoulder diagnosis was
her right shoulder distal acromioplasty, and she found that this grade 1 condition yielded a default
value of 10 percent permanent impairment of the right upper extremity. She further determined
that appellant had a functional history grade modifier of 3 (based on a QuickDASH [Disabilities
of the Arm, Shoulder, and Hand] score of 68), and a physical examination grade modifier of 1
(based on mild range of motion deficits and mild instability findings). Dr. Watkins Campbell
noted that the clinical studies grade modifier was not applicable because no clinical studies were
utilized. She indicated that application of the net adjustment formula required movement two
spaces to the right of the 10 percent permanent impairment default value on page 403. Therefore,
appellant had a total right upper extremity permanent impairment of 12 percent.6
OWCP referred appellant’s case to Dr. Morley Slutsky, a Board-certified occupational
medicine physician serving as an OWCP medical adviser, and requested that he review the medical
evidence of record, including the December 12, 2014 report of Dr. Watkins Campbell. It requested
that Dr. Slutsky provide an opinion regarding appellant’s right shoulder permanent impairment
under the sixth edition of the A.M.A., Guides.
In a report dated September 20, 2015, Dr. Slutsky applied the DBI method of rating
permanent impairment under Table 15-5 (Shoulder Regional Grid) on page 403.7 He determined
5

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

6

Dr. Watkins-Campbell found that appellant had reached MMI as of September 24, 2014.

7
Dr. Slutsky indicated that, under the sixth edition of the A.M.A., Guides, the DBI method of rating permanent
impairment was preferred over the ROM method.

3

that appellant’s most impairing diagnosis was the full-thickness right rotator cuff tear of her right
shoulder with residual dysfunction. Dr. Slutsky opined that Dr. Watkins Campbell erred by using
a diagnosis (distal acromioplasty) which did not exist in the sixth edition of the A.M.A., Guides.
He found that appellant’s right rotator cuff tear (grade 1) yielded a default value of five percent
permanent impairment of the right upper extremity. Dr. Slutsky asserted that Dr. Watkins
Campbell’s functional history grade modifier of 3 was unreliable because it differed by 2 or more
grades from the score for the physical examination grade modifier or the clinical studies grade
modifier. Therefore, a functional history grade modifier would not be used in the case. Dr. Slutsky
further determined that appellant had a physical examination grade modifier of 1 (based on
tenderness on palpation and ROM findings for the right shoulder).8 He also noted that appellant
had a clinical studies grade modifier of 2 based on the right shoulder findings seen in a May 30,
2013 MRI scan and a January 6, 2014 x-ray test. Dr. Slutsky indicated that application of the net
adjustment formula required movement one space to the right of the five percent permanent
impairment default value on page 403. Therefore, appellant had a total right upper extremity
permanent impairment of six percent.9
By decision dated December 30, 2015, OWCP granted appellant a schedule award for six
percent permanent impairment of her right upper extremity. The award ran for 18.72 weeks from
October 13, 2014 to February 21, 2015 and was based on the permanent impairment rating of
Dr. Slutsky.
On January 20, 2016 appellant, through counsel, requested a telephone hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing, held on
August 30, 2016, counsel argued that Dr. Watkins-Campbell properly determined that appellant
had 12 percent permanent impairment of her right upper extremity. He asserted that Dr. Watkins
Campbell correctly applied the DBI method of rating permanent impairment by using the diagnosis
of status post distal acromioplasty because this diagnosis is essentially the same as status post
distal clavicle resection, a diagnosis found on Table 15-5 of the sixth edition of the A.M.A.,
Guides. Counsel also argued that Dr. Watkins Campbell properly calculated the grade modifiers.
By decision dated October 14, 2016, OWCP’s hearing representative affirmed OWCP’s
December 30, 2015 decision, noting that Dr. Slutsky properly calculated appellant’s right shoulder
permanent impairment and that the medical evidence of record failed to show that appellant has
more than six percent permanent impairment of her right upper extremity.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section 8107
8

Dr. Slutsky indicated that application of appellant’s right shoulder ROM findings to Table 15-35 on page 477
showed that appellant’s ROM findings were consistent with a physical examination grade modifier of 1.
9

Dr. Slutsky found that appellant had reached MMI as of October 13, 2014, the date of Dr. Watkins Campbell’s
examination.
10

See 20 C.F.R. §§ 1.1-1.4.

4

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.11 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.14
ANALYSIS
The issue on appeal is whether appellant has met her burden of proof to establish more than
six percent permanent impairment of her right upper extremity, for which she previously received
a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.15 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.16 In T.H., the Board concluded that OWCP physicians were at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cited to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.17
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the October 14, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.18
CONCLUSION
The Board finds that this case is not in posture for decision.

17

Supra note 15.

18

See FECA Bulletin No. 17-06 (issued May 8, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: May 7, 2018
Washington, DC

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

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

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

7


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

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Appearances:
Lonnie Boylan, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0543
Issued: August 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through her representative, filed a timely appeal from a
July 22, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 24, 2016.
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.

FACTUAL HISTORY
On July 17, 2012 appellant, then a 51-year-old rural route carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on July 12, 2012, she sustained a traumatic head injury as a
result of a vehicular accident. She stopped work on July 13, 2012.
By decision dated August 23, 2012, OWCP accepted her claim for open wound of the
scalp, right ankle sprain, closed injury of the liver and post-concussion syndrome. Appellant
received wage-loss compensation and medical benefits on the supplemental rolls as of
August 27, 2012 and on the periodic rolls as of May 5, 2013.
In a report dated August 21, 2014, Dr. Danielle Erb, Board-certified in physical medicine
and rehabilitation, examined appellant and diagnosed her with a mild traumatic brain injury with
symptoms of impaired balance, headaches, cognitive difficulty, convergence insufficiency,
exophoria, and deficiencies of pursuit eye movements. She also diagnosed appellant with an
aggravation of her left shoulder condition. Dr. Erb noted that appellant reported that she had
attempted to return to work, but that casing mail above or below her eye level was very
bothersome and caused her to become ill. Appellant reported double vision, vomiting, and
headaches. Dr. Erb opined that appellant was unable to work at that time.
In a report from the employing establishment’s Office of the Inspector General (OIG),
covering the period April 1 through September 30, 2014, an investigator noted that appellant was
observed driving on multiple occasions up to 12 miles; walking, bending, grocery shopping, and
carrying grocery bags.
By letter dated September 12, 2014, OWCP referred appellant for a second opinion
examination to determine whether she continued to have residuals of her accepted conditions. In
a report dated October 22, 2014, Dr. Lewis Almaraz, Board-certified in neurology, OWCP’s
second opinion physician, reviewed appellant’s medical records and history of injury and
performed an examination. He opined that appellant was not suffering any residuals of the
July 12, 2012 incident, and stated his belief that the accepted conditions resolved within three to
six months. Dr. Almaraz noted that appellant’s subjective complaints were not consistent with
objective findings, noting no evidence of intracranial bleeding or focal brain lesion. He found no
physical limitations and opined that appellant was capable of returning to gainful employment
without restrictions. In response to OWCP’s query regarding whether the surveillance of
appellant’s activities was consistent with her presentation and activity level during examination,
Dr. Almaraz noted that appellant had claimed she was unable to drive more than two miles. He
noted that given the surveillance video, there was a high likelihood that she was malingering and
that there may be other psychobiological factors playing a role. Dr. Almaraz recommended a
psychiatric evaluation. He reviewed the job description of a rural route carrier and concluded
that she was capable of performing the duties as described.
On October 21, 2014 OWCP proposed to terminate appellant’s compensation based on
the report of Dr. Almaraz. It found that the weight of the medical evidence rested with the report
of Dr. Almaraz.

2

On November 1, 2014 appellant requested a copy of her entire case record, including the
investigative report and digital versatile disc (DVD). She submitted a November 7, 2014 report
from Dr. Erb wherein he maintained that appellant had sustained a brain injury on July 12, 2012,
and that her ability to process visual information still suffered from the effects of this injury,
leading to frequent nausea. He noted that appellant’s job required a great deal of visual
processing while casing mail, in addition to driving. Dr. Erb explained that appellant had limited
her driving in her local neighborhood, although there was one incident involving picking up a car
from an auto repair shop with her husband that required her to drive for a longer distance in order
to return the vehicle. Dr. Erb further noted that Dr. Almaraz had not included an evaluation of
appellant’s fundi with an ophthalmoscope, which would be a typical part of a neurological
examination. He noted that he had released appellant to work on July 22, 2014, but that
difficulties in appellant’s visual processing system prevented her from working in her full-duty
position. Dr. Erb opined that appellant had residual difficulties from the incident of July 12,
2012 and that these difficulties precluded her from work as a rural route carrier.
OWCP provided appellant with the requested items on November 24, 2014.
On November 25, 2014 OWCP referred appellant to an impartial medical examiner to
resolve the conflict of medical opinion between Drs. Erb and Almaraz. In a referee report dated
March 10, 2015, Dr. Andrew Rose-Innes, Board-certified in neurology, reviewed appellant’s
history of injury and medical records, performed a physical examination, and diagnosed
appellant with medically stationary post-concussive syndrome, associated with persistent
subjective complaints. Dr. Rose-Innes reported a normal physical examination without objective
neurological conditions, although appellant did have a number of subjective complaints. He
noted that no further treatment was recommended for post-concussive syndrome. Dr. Rose-Innes
noted that appellant should be able to return to work for more than two hours per day, but that he
could not endorse her return to driving if she did not feel capable or secure. He suggested a
driving safety assessment be obtained. OWCP had asked Dr. Rose-Innes to review the
surveillance video of appellant from the OIG investigation, to which he replied, “I was not in
receipt of this DVD -- my understanding is that it shows [appellant] driving and going into and
out of stores -- this is quite within keeping with my essentially normal neurological examination
today.”
In an addendum report dated August 20, 2015, Dr. Rose-Innes noted that he had reviewed
the video of appellant’s activities between April and September 2014, which he described as
showing appellant driving on urban streets, entering and exiting the vehicle, and loading
groceries into the back seat. He noted that reviewing video of this type did not constitute an
objective evaluation of driving safety, and acknowledged that it was beyond the scope of his
medical assessment to draw a more definitive conclusion. Dr. Rose-Innes again recommended a
formal driving safety evaluation.
In a memorandum to the file dated September 10, 2015, OWCP found that the report
from the impartial medical examiner, Dr. Rose-Innes, was of diminished probative value. It
found that he had reported, before watching the surveillance video, that her behavior was in
keeping with his normal neurological examination; yet after watching the video, concluded that
he could not endorse her driving if she felt capable or secure. OWCP characterized this as a

3

contradiction and found that Dr. Rose-Innes had not provided any medical rationale regarding
restrictions on driving.
On September 23, 2015 OWCP referred appellant to a second impartial medical examiner
to resolve the conflict of medical opinion between Drs. Erb and Almaraz. In a report dated
December 1, 2015, Dr. Joseph J. Robin, Board-certified in neurology, reviewed appellant’s
history of injury and medical records, performed a physical examination, and diagnosed her with
a laceration of the scalp, concussion, and post-concussion symptoms of headache and dizziness,
all of which were related to the incident of July 12, 2012. Dr. Robin found that appellant had no
objective neurological findings related to her complaints, but that she continued to complain of
headaches and dizziness. He noted that it was beyond the scope of his evaluation to determine
whether appellant could work as a rural carrier. Dr. Robin related that “While she appears to be
normal in her ability to drive a car, I do not know what it entails to be a rural carrier and have
previously commented that she have a formal driving safety evaluation as to whether she could
perform this job.” He also noted that it was recommended that appellant have a psychiatric
evaluation to see if there are psychological factors that occurred as a result of the accident on
July 12, 2012 that are still playing a role in her inability to return to work as a rural mail carrier.
Dr. Robin explained that while there was no neurological objective evidence that
appellant would be restricted from returning to work, she subjectively felt that she could not
return to work as a mail carrier. He opined that appellant should be able to return to some form
of continuous gainful employment, in particular at a sedentary level. Dr. Robin concurred with
prior examiners that he was unable to endorse her returning to driving without a driving
assessment. He also recommended a psychiatric evaluation.
On May 26, 2016 OWCP again proposed to terminate appellant’s compensation. It found
that Dr. Robin had opined that her residuals had resolved and that there was no objective
neurologic reason to restrict her return to work. OWCP noted, “While Dr. Robin states that he is
unable to endorse your returning to driving and a driving assessment might be considered, as
well as a psychiatric evaluation may be reasonable to try to determine if there are any underlying
psychological issues that are preventing you from returning to work, this opinion is of
diminished probative value because they are outside the scope of this examiners medical
practice.”
By decision dated July 22, 2016, OWCP finalized the proposed termination of appellant’s
medical and wage-loss compensation, effective July 24, 2016.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or 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.4
3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.5 The implementing regulations provide 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 OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee or impartial examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6
To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.7 Medical rationale is a medically sound explanation for the opinion offered.8
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9
ANALYSIS
OWCP accepted that on July 17, 2012, appellant sustained an open wound of the scalp,
right ankle sprain, closed injury of the liver, and post-concussion syndrome in the performance
of duty. Effective July 22, 2016, it terminated appellant’s medical and wage-loss compensation
based on the referee medical report of Dr. Robin.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits because the medical evidence of record does not establish that
she no longer had residuals causing disability from work as a result of her July 12, 2012
employment injury. The conflict of medical opinion evidence remains unresolved.
OWCP referred appellant to Dr. Robin to resolve the conflict in medical opinion evidence
between appellant’s treating physician, Dr. Erb, and OWCP’s second opinion physician,
Dr. Almaraz, as to whether appellant had residuals of the accepted employment injury which
caused disability. As previously noted a well-rationalized report from an impartial medical
examiner that is based on a proper factual and medical background is entitled to special weight.10
In the case, however, OWCP incorrectly characterized Dr. Robin’s report as opining that
appellant suffered no residuals and could return to her date-of-injury position, despite the fact
5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

10

Id.

5

that Dr. Robin specifically opined that he could not endorse appellant’s return to driving without
a driving evaluation. Given that the position of rural carrier involves driving, Dr. Robin could
not endorse appellant’s return to her date-of-injury position. A report from an impartial medical
examiner must be sufficient to resolve the conflict of medical opinion evidence.11 Dr. Robin’s
report was insufficient to establish that appellant no longer had residuals of the accepted injury
which caused disability.
Dr. Robin’s referee report also contained the statement “As to whether [appellant] could
work as a rural carrier is still beyond the scope of my evaluation. While she appears to be
normal in her ability to drive a car, I do not know what it entails to be a rural carrier.” Due to
this statement, Dr. Robin’s report is not well rationalized as he lacks sufficient knowledge of the
job requirements of a rural carrier in relation to driving. Because his report is not well
rationalized, it is not entitled to the special weight normally afforded to the reports of referee
examiners.12
OWCP discounted Dr. Robin’s report regarding the necessity of a psychiatric evaluation,
by finding that Dr. Robin’s opinion is of diminished probative value because it was outside the
scope of his medical practice. When a physician recommends that further medical development
is warranted by referring a patient to another physician, it is typically because that physician
lacks the requisite expertise or equipment to perform the medical development on his or her own.
OWCP improperly discounted the parts of Dr. Robin’s report that did not resolve the conflict of
medical evidence,13 while accepting the elements that would support termination.14
OWCP did not meet its burden of proof to terminate appellant’s medical and wage-loss
benefits, based upon the report of Dr. Robin.15 The Board, therefore, will reverse OWCP’s
termination and will remand the case for proper reinstatement of compensation benefits.

11

See A.B., Docket No. 15-1947 (issued March 14, 2016).

12

Supra note 8.

13

Id.

14

The Board further notes that OWCP’s earlier action to set aside the referee report of Dr. Rose-Innes was based
on a similarly spurious rationale. OWCP claimed that Dr. Rose-Innes’ report was of diminished probative value
because he contradicted his earlier report in an addendum report. However, a close reading of the report shows that
there was no contradiction. In Dr. Rose-Innes’ March 10, 2015 report, he noted that while he had not seen the
surveillance video, the description of her behavior was consistent with his normal findings on examination. He also
noted in this report that he could not endorse appellant’s return to driving if she did not feel capable or secure. In
Dr. Rose-Innes’ August 20, 2015 addendum report, he again noted that he could not endorse appellant’s return to
driving. Stating that the video may be consistent with appellant’s ability to drive is consistent with a statement that
he could not endorse appellant’s return to driving if she did not feel capable or secure -- there is no contradiction
between those two statements. Moreover, OWCP later accepted the report of Dr. Robin which contained the same
language regarding appellant’s ability to drive and recommendation of a driving evaluation, but chose in its May 26,
2016 notice of proposed termination to disregard that part of Dr. Robin’s report.
15

See K.B., Docket No. 16-1146 (issued March 21, 2017).

6

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s wage-loss compensation and medical benefits for her accepted injuries, effective
July 24, 2016.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 1, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 16-0407
Issued: May 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 29, 2015 appellant, through counsel, filed a timely appeal from a
September 15, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 8, 2014 because he refused an offer of suitable
work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 12, 2011 appellant, then a 50-year-old meat inspector, filed a traumatic
injury claim (Form CA-1) alleging that on December 5, 2011 he sustained a left ankle injury
when he slipped on a drain cover. OWCP accepted that appellant sustained a stress fracture of
his left tibia/fibula, left ankle sprain, and left peroneal nerve injury.2 Appellant stopped work on
December 8, 2011 and received disability compensation on the daily roll beginning
January 23, 2012. He returned to modified duty on a part-time basis in July 2012.
On July 1, 2013 Dr. Steven Howell, a Board-certified orthopedic surgeon, performed
OWCP-authorized decompression surgery on the common and deep peroneal nerves of
appellant’s left knee and foot. Appellant stopped work after undergoing this surgery.
In a December 31, 2013 report, Dr. Howell indicated that appellant could work eight
hours per day with restrictions including sitting for eight hours per day, walking/standing for
three hours, reaching for eight hours, reaching above the shoulders for eight hours, twisting for
eight hours, bending/stooping for three hours, operating a motor vehicle at work and to/from
work for eight hours, engaging in repetitive movements of the wrists and elbows for eight hours,
pushing/pulling for three hours, lifting 12 pounds for three hours, squatting/kneeling for three
hours, and climbing for three hours.3
On February 20, 2014 appellant filed a claim for a schedule award (Form CA-7) due to
his December 5, 2011 employment injury.
In a March 3, 2014 report, Dr. Alan Snodgrass, an attending Board-certified family
practitioner, reported findings on physical examination including limitation of left ankle motion.
He indicated that appellant had subjective complaints of experiencing pain upon any degree of
standing, walking, or climbing. Dr. Snodgrass noted that appellant was unable to maintain his
balance upon slick surfaces and could not walk without slipping. He opined that instability and
limited motion of appellant’s left ankle placed him at risk for additional injury.4
On June 26, 2014 the employing establishment offered appellant a modified position as a
food inspector. The duties involved inspecting slaughtered poultry to make sure that it was fit
for human consumption.5 The physical requirements of the permanent job offer included
optional sitting/standing for a combined total of up to 8 hours per day, walking less than 30
minutes, lifting up to 5 pounds, no squatting, no crawling, no crouching, no kneeling, very
occasional bending/stooping, occasional balancing/climbing stairs for less than 3 minutes at a
2

The findings of December 8, 2011 x-ray testing of appellant’s left foot showed no acute osseous abnormality,
minimal degenerative changes, moderate-sized plantar calcaneal spur, and probable forefoot soft tissue swelling.
3

In another December 31, 2013 report, Dr. Howell indicated that appellant had 10 percent permanent impairment
of his left lower extremity.
4

In a March 3, 2014 note, Dr. Snodgrass indicated that appellant could not return to work due to left ankle
instability.
5

The record contains descriptions of the food inspector position from earlier in 2014, but it does not appear that
the position was formally offered to appellant at that time.

2

time, and frequent fine manipulation, simple grasping, and firm hand grasping. Appellant did
not accept the food inspector position offered by the employing establishment.
In an August 28, 2014 letter, OWCP advised appellant of its determination that the food
inspector position offered by the employing establishment was suitable. It noted that the medical
opinion of Dr. Howell showed that appellant was physically able to perform the position.
OWCP informed appellant that his compensation would be terminated if he did not accept the
position or provide good cause for not doing so within 30 days of the date of the letter.
Appellant did not respond to OWCP’s August 28, 2014 letter within the allotted period.
In an October 6, 2014 decision, OWCP terminated appellant’s wage-loss and schedule
award compensation, effective October 8, 2014 because he refused an offer of suitable work. It
found that the food inspector position was vocationally and physically suitable and that he did
not provide good cause for refusing the position.
By decision dated December 5, 2014, OWCP granted appellant a schedule award for 10
percent permanent impairment of his left lower extremity. The award ran for 21.86 weeks from
May 8 to October 7, 2014. OWCP indicated, “On October 6, 2014 this office notified [appellant]
by letter that your entitlement to compensation for wage loss and schedule award has been
terminated effective October 8, 2014 for refusal of suitable work, in accordance with 5 U.S.C.
§ 8106(c)(2). Therefore, payment of your award ends on October 7, 2014.”
Appellant, through counsel, requested a telephone hearing before an OWCP hearing
representative. During the June 26, 2015 hearing, counsel argued that the opinion of
Dr. Snodgrass showed that appellant could not work as a food inspector. Counsel noted that the
percentage of impairment awarded was not in dispute.
By decision dated September 15, 2015, the hearing representative affirmed OWCP’s
termination of appellant’s wage-loss and schedule award compensation, effective
October 8, 2014. He indicated that the opinion of Dr. Snodgrass did not show that appellant was
physically unable to perform the duties of the food inspector position offered by the employing
establishment. The hearing representative further found that the proper termination action under
section 8106(c)(2) of FECA dictated that both appellant’s wage-loss and schedule award
compensation were terminated, effective October 8, 2014.6
LEGAL PRECEDENT
It is well settled that once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.7 Section 8106(c)(2) of FECA provides
that a partially disabled employee who refuses or neglects to work after suitable work is offered
6

The hearing representative indicated that he was affirming OWCP’s December 5, 2014 decision, which found
that appellant was not entitled to schedule award compensation after October 7, 2014. He did not make any
determination regarding the percentage of impairment awarded on December 5, 2014 and this matter is not currently
before the Board.
7

See Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

to, procured by, or secured for the employee is not entitled to compensation.8 Section
8106(c)(2) 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.9 The Board has held that section 8106(c)(2) of FECA serves as a bar to receipt of
further compensation for a period of disability arising from the accepted employment injury.
This includes cases where a claimant who has had compensation terminated under 5 U.S.C.
§ 8106(c)(2) claims later periods of disability for conditions that were accepted prior to the
termination.10 The Board has also held that termination under section 8106(c)(2) of FECA
serves as a bar to receipt of compensation in the form of schedule award compensation.11
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.12 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.13
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.14
Determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, and the employee’s qualifications to perform such work.15
OWPC procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.16
ANALYSIS
OWCP accepted that on December 5, 2011 appellant sustained a stress fracture of his left
tibia/fibula, left ankle sprain, and left peroneal nerve injury. On July 1, 2013 Dr. Howell, a
Board-certified orthopedic surgeon, performed OWCP-authorized decompression surgery on the
common and deep peroneal nerves of appellant’s left knee and foot. Appellant stopped work
8

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

9

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

10

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

11

See Pete F. Dorso, 52 ECAB 424 (2001).

12

20 C.F.R. § 10.517(a).

13

Id. at § 10.516.

14

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB
818 (1992).
15

20 C.F.R. § 10.500(b).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).

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after this surgery. By decision dated December 5, 2014, OWCP granted appellant a schedule
award for 10 percent permanent impairment of his left lower extremity. The award ran for 21.86
weeks from May 8 to October 7, 2014.
The Board finds that OWCP properly terminated appellant’s wage-loss and schedule
award compensation, effective October 8, 2014, because he refused an offer of suitable work.
On June 26, 2014 the employing establishment offered appellant a modified position as a
food inspector. The position involved inspecting slaughtered poultry to make sure that it was fit
for human consumption.17
The evidence of record shows that appellant is capable of performing the food inspector
position offered by the employing establishment and determined to be suitable by OWCP in
August 2014. In determining that appellant was physically capable of performing the food
inspector position, OWCP properly relied on the opinion of Dr. Howell, an attending Boardcertified orthopedic surgeon. On December 31, 2013 Dr. Howell indicated that appellant could
work eight hours per day with restrictions, including sitting for eight hours per day,
walking/standing for three hours, and reaching for eight hours.18 The Board finds that these
work restrictions would fit into the work restrictions of Dr. Howell and allow appellant to
perform the physical duties of the food inspector position offered by the employing
establishment.
Appellant submitted a March 3, 2014 report in which Dr. Snodgrass, an attending
Board-certified family practitioner, indicated that he had subjective complaints of experiencing
pain upon any degree of standing, walking, or climbing. Dr. Snodgrass noted that appellant was
unable to maintain his balance upon slick surfaces and could not walk without slipping.19
However, his opinion does not contain medical rationale in support of his conclusions regarding
appellant’s ability to work. The Board has held that a medical report is of limited probative value
on a medical matter if it contains a conclusion regarding that medical matter which is unsupported
by medical rationale.20 Dr. Snodgrass generally indicated that instability and limited motion of
appellant’s left ankle placed him at risk for additional injury. He did not provide any opinion
explaining how specific findings on physical examination and diagnostic testing supported
limitations which would prevent appellant from working in the food inspector position offered

17

The physical requirements of the permanent job offer included optional sitting/standing for a combined total of
up to 8 hours per day, walking less than 30 minutes, lifting up to five pounds, no squatting, no crawling, no
crouching, no kneeling, very occasional bending/stooping, occasional balancing/climbing stairs for less than
3 minutes at a time, and frequent fine manipulation, simple grasping, and firm hand grasping.
18

Dr. Howell also recommended restrictions of reaching above the shoulders for eight hours per day, twisting for
eight hours, bending/stooping for three hours, operating a motor vehicle at work and to/from work for eight hours,
engaging in repetitive movements of the wrists and elbows for eight hours, pushing/pulling for three hours, lifting
12 pounds for three hours, squatting/kneeling for three hours, and climbing for three hours.
19

In a March 3, 2014 note, Dr. Snodgrass indicated that appellant could not return to work due to left ankle
instability.
20

C.M., Docket No. 14-88 (issued April 18, 2014).

5

by the employing establishment. Dr. Snodgrass only noted that appellant’s complaints were
subjective in nature and he did not provide an objective basis for their existence.21
The record does not reveal that the food inspector position offered by the employing
establishment was temporary in nature.22 Appellant has not alleged that he was not vocationally
capable of performing the food inspector position and the record reveals that he was in fact
vocationally capable of performing the food inspector position as he was working as a meat
inspector for the employing establishment at the time of his December 5, 2011 employment
injury.
The Board finds, therefore, that OWCP has established that the food inspector position
offered by the employing establishment is suitable. As noted above, once OWCP has established
that a particular position is suitable, the employee who refuses or neglects to work after suitable
work has been offered to him has the burden of showing that such refusal to work was justified.23
Appellant did not respond to OWCP’s August 28, 2014 preliminary suitability determination and
the evidence of record does not justify his refusal of the food inspector position.
The Board notes that OWCP properly terminated both appellant’s wage-loss and
schedule award compensation effective October 8, 2014. As noted above, section 8106(c)(2) of
FECA serves as a bar to receipt of further compensation for a period of disability arising from
the accepted employment injury as well as a bar to receipt of schedule award compensation
arising from the accepted employment injury.24
For these reasons, OWCP properly terminated appellant’s wage-loss and schedule award
compensation effective October 8, 2014 because he refused an offer of suitable work.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 8, 2014, because he refused an offer of suitable
work.

21

Moreover, there is no indication in the record that the food inspector position required walking on slippery
floors.
22

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c)(2) cannot be applied. See Federal
(FECA) Procedure Manual, supra note 16 at Chapter 2.814.4c(5), 9 (June 2013).
23

See supra note 12.

24

See supra notes 10 and 11.

6

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 25, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
_________________________________________

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

Docket No. 11-1327
Issued: December 16, 2011

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 May 2, 2011 appellant filed a timely appeal of a November 16, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) finding that he abandoned his request for a
hearing.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 nonmerit decision. The last merit
decision of record was OWCP’s June 18, 2010 decision. Because more than 180 days elapsed
from the last merit decision to the filing of this appeal on May 2, 2011, the Board lacks
jurisdiction to review the merits of this case.3
ISSUE
The issue is whether appellant abandoned his request for an oral hearing before OWCP’s
hearing representative.

1

OWCP reissued the earlier decision dated November 10, 2010.

2

5 U.S.C. § 8101 et seq.

3

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On December 16, 2009 appellant, a 52-year-old rural route carrier, sustained an injury in
the performance of duty on December 5, 2009 while lifting a large package in the performance
of duty. OWCP accepted his claim for sprain of the back, lumbar region.
In a decision dated June 18, 2010, OWCP denied appellant’s request to expand his claim
for a hernia.
On June 28, 2010 appellant requested a telephonic hearing before an OWCP hearing
representative.
By letter dated August 27, 2010, OWCP notified appellant that his hearing would be held
on October 14, 2010 at 10:00 a.m. eastern time. Appellant was given a toll-free number 1-800857-3197 and a pass code 16416. The notice was mailed to his address of record. However,
appellant did not contact OWCP on the date of the hearing or thereafter.
By decision dated November 16, 2010, OWCP found that appellant abandoned his
requested hearing. The decision noted that the hearing was scheduled for October 14, 2010, but
he failed to appear as instructed. The decision also found that there was no indication that
appellant contacted OWCP either prior or subsequent to the scheduled hearing to explain his
failure to participate. Based on these factors, OWCP concluded that he abandoned his oral
hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, the OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.6
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

See Michelle R. Littlejohn, 42 ECAB 463 (1991). It is presumed in absence of evidence to the contrary that a
notice mailed to an individual in the ordinary course of business was received.

2

decision finding that the claimant has abandoned his request for a hearing and return the case to
the district OWCP.7
ANALYSIS
By decision dated June 18, 2010, OWCP denied appellant’s request to expand his claim
for a hernia. Appellant timely requested a telephonic hearing. In an August 27, 2010 letter,
OWCP advised him that a hearing was scheduled for October 14, 2010 at 10:00 a.m. eastern
time. It instructed appellant to telephone a toll-free number and enter a pass code to connect
with the hearing representative. He did not telephone at the appointed time. Appellant did not
request a postponement of the hearing or explain his failure to appear at the hearing within 10
days of the scheduled hearing date of October 14, 2010.8 The Board, therefore, finds that he
abandoned his request for a hearing.
CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2011
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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
8

Id.

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