United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-320
Issued: August 10, 2010

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 November 18, 2009 appellant, through his attorney, filed a timely appeal of a May 28,
2009 nonmerit decision of the Office of Workers’ Compensation Programs denying his request
for reconsideration. Because more than 180 days elapsed from issuance of the most recent merit
decision on December 15, 2008 to the filing of the appeal, the Board lacks jurisdiction to review
the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 17, 2004 appellant, then a 45-year-old mail handler and tugger operator,
filed a traumatic injury claim alleging that he sustained a right pinky finger injury when his hand
became caught between two postal containers on that date. He stopped work on the date of
injury. By letter dated March 21, 2005, the Office accepted appellant’s claim for closed right

fracture of the neck of the fifth metacarpal bone. On October 7, 2006 appellant returned to fulltime modified-duty work. On November 20, 2006 he filed a claim for a schedule award.
On June 26, 2008 the Office found a conflict in medical opinion between Dr. Ajay K.
Misra, an attending Board-certified neurologist, and Dr. Frank M. Hudak, a Board-certified
orthopedic surgeon and Office referral physician, regarding the extent of appellant’s permanent
impairment. In a December 14, 2006 medical report, Dr. Misra listed his range of motion
measurements regarding appellant’s right fingers and advised that appellant had causalgia or
reflex sympathetic syndrome. In an April 17, 2007 report, Dr. Hudak found that appellant had
23 percent impairment of the right upper extremity based on the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
By letter dated August 4, 2008, the Office referred appellant, together with a statement of
accepted facts and the case record, to Dr. Edmunde A.C. Stewart, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an August 25, 2008 report, Dr. Stewart
advised that appellant sustained 23 percent impairment of the right upper extremity based on the
A.M.A., Guides. On October 5, 2008 an Office medical adviser agreed with Dr. Stewart’s rating
of impairment to the right upper extremity.
In a decision dated December 15, 2008, the Office granted appellant a schedule award for
23 percent impairment of the right upper extremity based on Dr. Stewart’s opinion.
On March 14, 2009 appellant, through counsel, requested reconsideration of the
December 15, 2008 decision. He submitted a duplicate copy of Dr. Misra’s December 14, 2006
report.
By decision dated May 28, 2009, the Office denied appellant’s request for
reconsideration, finding that it neither raised substantive legal questions nor included new and
relevant evidence and, thus, it was insufficient to warrant further merit review of his claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,1 the Office’s regulations provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.2 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.3 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
1

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
2

20 C.F.R. § 10.606(b)(1)-(2).

3

Id. at § 10.607(a).

2

ANALYSIS
Appellant’s March 14, 2009 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office. Consequently, the
Board finds that appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. He resubmitted Dr. Misra’s December 14, 2006 report. This evidence
was previously of record and reviewed by the Office. Duplicative evidence does not warrant
reopening a case for further merit review.4
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his March 14, 2009 request for reconsideration.5
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).
5

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

3

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
SOUTH SUBURBAN GENERAL MAIL
FACILITY, Bedford Park, IL, Employer
__________________________________________

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

Docket No. 16-0363
Issued: June 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal from a June 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). In computing a time period, the date of the event from which the designated period of time begins to
run shall not be included while the last day of the period so computed shall be included unless it is a Saturday, a
Sunday, or a legal holiday. 20 C.F.R. § 501.2(f)(2). See also John B. Montoya, 43 ECAB 1148 (1992). One
hundred and eighty days from June 22, 2015, the date of OWCP’s last decision was Saturday, December 19, 2015.
The next business day after December 19, 2015 was Monday, December 21, 2015, the date the Clerk of the
Appellate Boards received the appeal. It is therefore timely filed.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her loss of
wage-earning capacity determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on or before October 19, 1992 appellant, then a 30-year-old mail
processing machine operator, sustained lumbar disc herniations at L4-5 and L5-S1 due to
repetitive lifting and bending in the performance of duty. She underwent an L5-S1 fusion in
1993. On April 6, 1994 appellant underwent a posterior L4-5 fusion with screw and plate
instrumentation. OWCP approved both surgical procedures.
Dr. William A. Earman, Jr., an attending osteopathic physician Board-certified in
orthopedic surgery, opined on July 7, 1995 that appellant had reached maximum medical
improvement. Appellant required permanent physical restrictions due to her postsurgical status.
Dr. Earman limited lifting to 20 pounds, with no bending, stooping, or twisting. Appellant also
required frequent changes of position. Dr. Edward G. Nicholson, an attending osteopathic
physician Board-certified in family practice, reduced her lifting limitation to 10 pounds due to
lumbar instability.
On December 30, 1996 appellant accepted a permanent job offer as a modified mail
processor in the cancellation division, working from 3:00 p.m. to 11:30 p.m. Monday through
Friday. The position complied with her permanent medical restrictions of no lifting over 10
pounds, no bending or twisting, and the ability to sit or stand at will, sorting one ounce mail
rejected from a cancellation machine. The employing establishment explained that it offered the
position because of contractual obligations to provide “work available to employees injured on
the job.” It noted the tasks required in the job and the physical requirements.
By decision dated May 15, 1997, OWCP determined that appellant had no loss of wageearning capacity as she had worked in the modified mail processor position at retained pay for
more than 60 days.
From June 2000 through 2005, appellant continued working as a modified mail processor
under the limitations specified in the December 30, 1996 position description. In 2002, OWCP
assigned a vocational rehabilitation counselor to her case to assist the employing establishment
in obtaining a prescribed ergonomic chair.
On August 23, 2006 appellant accepted a full-time modified reassignment position in the
cancellation unit. She had no production quota and could work at her own pace. Appellant was
allowed to change positions at will, with lifting limited to five pounds. In reports from June 8,
2007 to December 6, 2010, Dr. Yolanda Escalona, an attending Board-certified internist,

2

affirmed appellant’s work restrictions against lifting more than five pounds, with no kneeling,
bending, stooping, or twisting.
Appellant claimed wage-loss compensation beginning September 13, 2010. She claimed
80 hours of wage-loss compensation for the period December 6 to 17, 2010. On the reverse side
of the claim forms, the employing establishment wrote “NRP [National Reassessment Process],
No Work Available.” By decision dated January 13, 2011, OWCP denied appellant’s claim for a
recurrence of disability as the medical evidence did not establish a spontaneous worsening of the
accepted lumbar conditions.
The employing establishment placed appellant in “stand by” status on February 4, 2011.
In a March 4, 2011 letter, it advised her that, under the limited-duty guidelines of NRP, there was
no work available within her restrictions as of that day. A review of area operations
demonstrated that there were no necessary tasks within the medical restrictions due to appellant’s
accepted injuries available in her commuting area. Appellant was not to report for duty until
work could be found for her. The employing establishment instructed her to claim wage-loss
compensation under FECA. Appellant claimed compensation for total disability commencing
March 4, 2011.
Appellant submitted reports dated from March 2011 through October 2012, from
Dr. Holly Carobene, an attending physician Board-certified in pain management, diagnosing
cervical and lumbar radiculopathy. Dr. Carobene administered lumbar epidural injections.
Dr. Escalona affirmed prior work restrictions through November 3, 2011.
In a February 22, 2012 letter, appellant contended that the May 15, 1997 loss of wageearning capacity determination was in error as it was based on a makeshift job specifically
designed to accommodate her work limitations and was not available on the open labor market.
In an April 5, 2012 letter, OWCP advised appellant of the evidence needed to establish
that the May 15, 1997 loss of wage-earning capacity determination should be modified. It noted
that she must submit factual evidence that the original determination was in error or that she had
been vocationally retrained. Alternatively, appellant was to submit medical evidence
demonstrating a material worsening of the accepted conditions such that she could no longer
perform the permanent modified-duty position. OWCP afforded her 30 days to submit such
evidence.
Appellant submitted April 17 and 24, 2012 reports from Dr. Carobene reiterating prior
work restrictions.
By decision dated July 23, 2012, OWCP denied appellant’s claim for wage-loss
compensation beginning March 4, 2011 as the medical evidence failed to establish a worsening
of the accepted conditions such that she was totally disabled for work.
On August 16, 2012 appellant requested an oral hearing before an OWCP hearing
representative, held on November 27, 2012. At the hearing, she asserted that the May 15, 1997
loss of wage-earning capacity decision was erroneous as it was based on a makeshift position.
Appellant submitted physical therapy notes and an October 2, 2012 report from Dr. Carobene
noting administration of a left L5 nerve root block.
3

By decision dated February 11, 2013, an OWCP hearing representative affirmed the
July 23, 2012 decision, finding that appellant had presented insufficient medical evidence to
establish a material worsening of the accepted condition. She further found that the evidence
failed to establish that the May 15, 1997 loss of wage-earning capacity determination was
erroneous. Appellant then appealed to the Board.
During the pendency of the prior appeal, appellant submitted claims for wage-loss
compensation from February 4 to September 27, 2013.3
In an August 26, 2013 letter, an employing establishment human resources manager
asserted that the “Rehabilitation Modified Assignment offered to and accepted by [appellant] on
December 30, 1996, was a makeshift position. The loss of wage-earning capacity determination
issued on May 15, 1997, as a result of this makeshift position appears to have been made in
error.”
By decision and order issued September 10, 2013,4 the Board set aside the February 11,
2013 decision, finding that OWCP had not addressed FECA Bulletin No. 09-0005 or fully follow
the procedures outlined therein for claims, such as this, in which limited-duty positions were
withdrawn pursuant to NRP. The Board remanded the case for additional development,
including a review of the medical evidence to determine if it established continuing work-related
disability. A de novo decision was to follow.
On October 21, 2013 appellant claimed wage-loss compensation from October 14
to 25, 2013.
In an October 22, 2013 letter, OWCP advised appellant to submit additional evidence
regarding the requested modification of the May 15, 1997 loss of wage-earning capacity
determination, establishing that the original rating was in error, that she had been retrained or
rehabilitated, or that the accepted condition had materially worsened. It afforded her 30 days to
submit such evidence. Appellant did not submit evidence within the allotted time.
By decision dated December 11, 2013, OWCP denied modification of the May 15, 1997
loss of wage-earning capacity determination, finding that there was “no information of record
that either implies or contends that the loss of wage-earning capacity decision was without any
factual basis at the time it was issued,” that appellant had been retrained, or that the accepted
condition had materially worsened.
Appellant disagreed and on January 9, 2014 requested an oral hearing. She submitted a
February 19, 1997 personnel action form (SF-50) and a June 8, 2004 human resources form
noting her return to work on December 30, 1996 in a permanent limited-duty assignment as a
3

By decision dated September 24, 1998, OWCP granted a schedule award for 11 percent permanent impairment
of the right lower extremity due to the accepted lumbar disc herniations. By decision dated February 27, 2013,
OWCP denied appellant’s claim for a schedule award for extremity impairment related to accepted lumbar disc
displacement. It found that she had not submitted medical evidence establishing that the accepted condition caused
a ratable impairment of a scheduled member.
4

Docket No. 13-0993 (issued September 10, 2013).

4

modified mail processor. Appellant also provided a copy of the March 4, 2011 letter advising
her that the limited-duty position had been eliminated under the NRP.
At the hearing, held May 14, 2014, appellant contended that the August 26, 2013
employing establishment letter confirming that the December 30, 1996 job offer was for a
makeshift position established that the original determination was in error. She also asserted that
the termination of her permanent limited-duty position constituted a recurrence of disability
requiring modification of the May 15, 1997 loss of wage-earning capacity determination.
Appellant noted that she was approved for disability retirement, effective October 15, 2013.
By decision dated August 6, 2014, an OWCP hearing representative set aside OWCP’s
December 11, 2013 decision and remanded the case for additional development on whether the
December 30, 1996 job offer was for a bona fide or makeshift position. Following such
development, OWCP was to issue a de novo decision regarding whether the May 15, 1997 loss
of wage-earning capacity determination should be modified.
In an August 28, 2014 letter, appellant asserted that the December 30, 1996 job offer was
a position not available on the open labor market. The job offer was created solely to
accommodate her physical restrictions. “It was never available for bid or application by any
other employee, and would cease to exist once [appellant] left.”
In a September 17, 2014 e-mail, an employing establishment health and resources
manager explained that appellant’s “rehab Job Modified Mail Processor Job … effective
December 30, 1996, was created specifically for [appellant] and in strict compliance with her
medical restrictions.” Appellant’s duties were not associated with an organized work unit, but
instead charged to a separate operations code classification for “Rehabilitation.” The manager
noted that although appellant performed her duties “in an isolated location within the building,”
her assigned tasks were an “essential part of the mail processing operation” that were “currently
performed today” under a new classification code, with duties “absorbed into the various mail
processing units, charged to the regular productive mail processing operation associated with the
type of mail being processed, and where the damaged mail occur[s].”
By decision dated November 17, 2014, OWCP denied modification of the May 15, 1997
loss of wage-earning capacity determination, finding that the September 17, 2014 e-mail from
the employing establishment proved that the December 30, 1996 job offer was for a bona fide
position. As appellant’s assigned tasks were “essential in the mail processing operation,” they
were not makeshift. Therefore, the May 15, 1997 loss of wage-earning capacity determination
was not issued in error.
Appellant disagreed, and in a December 10, 2014 letter requested an oral hearing, held
April 29, 2015. At the hearing, she asserted that if her job tasks as a modified mail processor
were essential as asserted by the employing establishment in the September 17, 2014 e-mail, then
her position should not have been eliminated under the NRP.
The employing establishment submitted comments to the hearing transcript. In a
May 20, 2015 letter, a health and resources manager newly alleged that appellant’s permanent
modified assignment was not eliminated, but that she “removed herself from her job assignment

5

when on February 20, 2010 she stopped work on total disability for [File No.] xxxxxx591 and
underwent arthroscopic repair of her left shoulder.” The manager asserted that appellant
“reported for duty February 4, 2011 with restrictions for” nonoccupational lumbar and cervical
spine conditions. She contended that appellant was sent home on March 4, 2011 not because
there was no work available within the permanent restrictions due to the accepted conditions, but
because of the additional restrictions for the nonindustrial complaints.
By decision dated June 22, 2015, an OWCP hearing representative affirmed the
November 17, 2014 decision denying modification of the May 15, 1997 loss of wage-earning
capacity determination. The hearing representative found that appellant had not established that
the December 30, 1996 position was makeshift, that the accepted conditions had materially
worsened, or that she had been retrained or vocationally rehabilitated.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination.5
Once the wage-earning capacity of an injured 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.6 OWCP’s procedures provide
that, “[i]f a formal loss of wage-earning capacity decision has been issued, the rating should be
left in place unless the claimant requests resumption of compensation for total wage loss. In this
instance the CE [claims examiner] will need to evaluate the request according to the customary
criteria for modifying a formal loss of wage-earning capacity.”7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time
(unless the claimant was a part-time worker at the time of injury), or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.9

5

See Sharon C. Clement, 55 ECAB 552 (2004).

6

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (June 2013). See Harley Sims, Jr., 56 ECAB 320 (2005).
8

Selden H. Swartz, 55 ECAB 272, 278 (2004).

9

Supra note 7 at Part 2 -- Claims, Reemployment: Modification of Loss of Wage-Earning Capacity Decisions,
Chapter 2.1501(3)a (June 2013).

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Additionally, a makeshift or odd-lot position designed to meet an injured employee’s particular
needs will not be considered representative of one’s wage-earning capacity.10
Assuming the position is both vocationally and medically suitable and conforms to the
above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after she has successfully performed the required duties for at least 60 days.11
ANALYSIS
OWCP accepted that appellant sustained L4-5 and L5-S1 disc herniations in the
performance of duty. Appellant underwent L5-S1 fusion with plate fixation in 1993, and a
posterior L4-5 fusion in 1994. On December 30, 1996 she returned to work in a permanent
rehabilitation position as a full-time modified mail handler, within permanent restrictions offered
by her attending physicians. OWCP issued a May 15, 1997 loss of wage-earning capacity
determination, based on appellant’s actual earnings in the modified mail handler position.
On August 23, 2006 appellant accepted another full-time modified mail handler position
within her permanent work limitations. The position had no production quota and allowed her to
work at her own pace. The employing establishment terminated that position, effective
March 14, 2011 under the NRP. Appellant requested modification of the May 15, 1997 loss of
wage-earning capacity determination, contending that it was erroneous as it was based on a
makeshift position. OWCP denied modification by decisions dated June 22, 2015, finding that
the December 30, 1996 position was bona fide.
It is axiomatic that an employee with an occupational injury may require job
modifications or accommodations in order to return to work. The Board has long recognized that
an employing establishment may accommodate an employee’s work-related medical restrictions
by modifying the way a job is performed, if the assigned tasks of that position are those of a
regular job, available in the community or open labor market, that would have been performed
by another employee.12 However, the Board has also held that a job created specifically for a
claimant, composed of odd-lot tasks within an employee’s medical restrictions, is makeshift.13
In A.J., the Board set forth criteria for determining whether an offered position was
makeshift and not a regular position. These criteria include: (1) lack of an official title or
position description; (2) strict limitations which indicated that the claimants would not be able to
secure a position in the community-at-large with such limited duties; (3) a lack of meaningful
tasks; and (4) a job that is temporary in nature.14 In this case, the December 30, 1996 job offer,
upon which the loss of wage-earning capacity was based, was for a permanent position with a
10

A.J., Docket No. 10-0619 (issued June 29, 2010).

11

Supra note 7 at Chapter 2.815.5(e) (June 2013).

12

L.C., Docket No. 13-1934 (issued September 29, 2014), Jeffrey T. Hunter, 52 ECAB 503 (2001).

13

P.G., Docket No. 14-1797 (issued September 16, 2015).

14

Supra note 10.

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job title and detailed description. It thus meets the first and fourth criteria under A.J. The
physical restrictions, including the 10-pound lifting limitation, prohibition on bending and
stooping, and the ability to sit or stand at will, are not overly strict. Lifting restrictions as low as
five pounds have not been found to preclude finding a similar position in the community at
large.15 The modified mail handler position thus meets the second criterion.
The modified mail handler position also met the third criterion, whether the job required
meaningful tasks, such that it was a “regular” position that would have been performed by
another employee. Appellant was assigned to process one-ounce mail rejected by a cancellation
machine. The employing establishment explained in its September 17, 2014 letter that, at the
time of the assignment on December 30, 1996, these tasks were an “essential part of the mail
processing operation” for handling damaged mail. It added that these tasks were still performed
in the regular mail processing operation. The Board finds that the employing establishment’s
explanation supports that the permanent, modified position was not makeshift.16
The Board notes that, in the August 26, 2013 letter, an employing establishment human
resources manager asserted that the December 30, 1996 job offer was for a makeshift position.
However, the employing establishment did not explain how the modified mail handler position
did not meet the four criteria under A.J., or why it was not a regular position that would have
been performed by another employee. Therefore, this letter is insufficient to establish that the
position was makeshift, or that the May 15, 1997 loss of wage-earning capacity determination
was otherwise in error.
On appeal, appellant describes severe financial and personal hardships. She contends that
she meets all criteria for modifying a loss of wage-earning capacity determination under the
Board’s holding in Elmer Strong.17 Appellant alleges that the May 15, 1997 loss of wageearning capacity determination was erroneous as it was based on a makeshift position. As found
above, the Board finds that the modified mail handler position was bona fide.
Appellant also argues that the employing establishment’s withdrawal of her light-duty
position under the NRP from March 4, 2011 to October 15, 2013 constituted a recurrence of
disability. However, the employing establishment submitted a May 20, 2015 letter explaining
that she voluntarily stopped work on February 20, 2010, and was sent home on March 4, 2011
due to additional restrictions imposed for nonoccupational complaints. Additionally, appellant
asserts that the accepted condition worsened with no intervening injury, and that she was
vocationally rehabilitated through OWCP’s vocational rehabilitation program. However, she did
not submit sufficient evidence to establish either argument.
Appellant may request modification of the loss of wage-earning determination, supported
by new evidence or argument, at any time before OWCP.
15

T.P., Docket No. 14-1207 (issued November 7, 2014).

16

L.C., supra note 12.

17

17 ECAB 226 (1965) (where the Board held that the three criteria for modification of a standing loss of wageearning capacity determination were: (1) a material change in the nature and extent of the injury-related condition;
(2) the employee has been retrained or vocationally rehabilitated; and (3) the original determination was in error).

8

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that a loss of
wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2015 is affirmed.
Issued: June 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 12-907
Issued: October 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 14, 2012 appellant filed a timely appeal of the December 9, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he abandoned
his hearing request. As more than 180 days have elapsed from the issuance of the last merit
decision dated June 29, 2011 to the filing of the current appeal on March 14, 2012, the Board has
no jurisdiction over the merits of the case.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.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
a hearing.
1

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 54-year-old letter carrier, sustained a right knee
medial meniscus tear due to factors of his federal employment.
On June 9, 2011 appellant filed a claim for a schedule award.
By decision dated June 29, 2011, OWCP granted appellant a schedule award for nine
percent permanent impairment of the left lower extremity.
On July 21, 2011 appellant requested an oral hearing before an OWCP hearing
representative arguing that the schedule award should have been for the right lower extremity.
In an October 6, 2011 notice, the Branch of Hearings and Review scheduled a telephonic
hearing for 1:00 p.m. eastern time on November 15, 2011. It provided appellant with a toll-free
telephone number and the pass code for accessing the hearing. OWCP advised him that
postponement of the hearing would only be permitted upon receipt of documentation showing
his nonelective hospitalization or that the death of a spouse, parent or child prevented his
attendance. The notice was mailed to appellant’s address of record.
On November 15, 2011 appellant failed to call the toll-free number to participate in the
telephonic hearing.
By decision dated December 9, 2011, an OWCP hearing representative found that
appellant failed to appear at the hearing and had abandoned his request. There was no evidence
that he contacted OWCP prior to or subsequent to the scheduled hearing.
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.3 Unless
otherwise directed in writing by the claims examiner, an 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.4 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.5
Section 10.622(f) of OWCP’s regulations provide that a claimant who fails to appear at a
scheduled hearing may request in writing within 10 days after the date set for the hearing that
another hearing be scheduled.6 Where good cause for failure to appear is shown, another hearing
3

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

4

20 C.F.R. § 10.617(b).

5

See M.B., Docket No. 10-1077 (issued March 17, 2011).

6

20 C.F.R. § 10.622(f).

2

will be scheduled and conducted by teleconference. The failure of the claimant to request
another hearing within 10 days, or the failure of the claimant to appear at the second scheduled
hearing without good cause shown, shall constitute abandonment of the request for a hearing.
Where good cause is shown for failure to appear at the second scheduled hearing, review of the
matter will proceed as a review of the written record. Where it has been determined that a
claimant has abandoned his or her right to a hearing, OWCP will issue a formal decision finding
that the claimant has abandoned his or her request for a hearing.7
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.
The record establishes that, on October 6, 2011, in response to appellant’s timely request
for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of the
scheduled telephonic hearing to be held on November 15, 2011 at 1:00 p.m. eastern time. The
hearing notice was properly mailed to appellant’s last known address of record. In the absence
of evidence to the contrary, a letter properly addressed and mailed in the due course of business
is presumed to have arrived at the mailing address in due course. This is known as the mailbox
rule.8 The Board finds that the notice was sent more than 30 days prior to the scheduled hearing
date of November 15, 2011. The record establishes that appellant did not call at the appointed
time. Further, he did not request a postponement of the hearing prior to November 15, 2011 or
subsequently explain his failure to appear at the hearing within 10 days of the scheduled hearing.
The Board finds that appellant abandoned his request for a hearing.
On appeal appellant argues the merits of his claim. As more than 180 days have elapsed
from the issuance of OWCP’s last merit decision dated June 29, 2011 to the filing of the current
appeal on March 14, 2012, the Board concludes that it has no jurisdiction over the merits of the
case.9 Thus, appellant’s arguments are not substantiated.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
8

See e.g., Kenneth E. Harris, 54 ECAB 502 (2003).

9

See supra note 1.

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ORDER
IT IS HEREBY ORDERED THAT the December 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BROCKTON VETERANS ADMINISTRATION
MEDICAL CENTER, Brockton, MA, Employer
__________________________________________

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

Docket No. 12-1702
Issued: January 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 13, 2012 appellant filed a timely appeal of the April 25, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left hip injury causally related to the accepted
factors of her federal employment.
FACTUAL HISTORY
On August 31, 2010 appellant, then a 63-year-old spinal cord injury health technician,
filed an occupational disease claim alleging that in February 2010 she first became aware of a
1

5 U.S.C. § 8101 et seq.

protrusion of the acetabulum in her left hip. She further alleged that in March 2010 she first
realized that her condition was caused by constant wear and tear from providing care to patients
while working over 25 years in the spinal cord injury unit at the employing establishment.
Appellant stopped work on September 27, 2009.
In a September 14, 2010 medical report, Dr. George C. Brown, a Board-certified
orthopedic surgeon, obtained a history that appellant sustained a right knee injury at work for
which she underwent total knee replacement surgery in the spring of 2009. Appellant had
increasing pain in her left hip on weight bearing and ambulation for the past several years.
Dr. Brown listed findings on x-ray and physical examination. He diagnosed end stage
osteoarthritis with protrusion acetabulum of the left hip. Dr. Brown stated that appellant
believed that the compensatory gait she developed after her right knee injury was the cause of
her left hip osteoarthritis.2 He requested authorization to perform total left hip replacement.3
By letter dated October 6, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the factual and medical evidence she needed
to submit to establish her claim. OWCP also requested that the employing establishment submit
any medical evidence regarding treatment appellant received at its medical facility.
By letter dated October 18, 2010, the employing establishment controverted appellant’s
claim. It noted that she filed a prior claim under OWCP File No. xxxxxx021 and her attempt to
expand acceptance of her claim to include left hip arthritis and left hip arthroplasty. The
employing establishment further noted that OWCP, in a July 28, 2010 letter, denied authorization
for left hip replacement based on a July 6, 2010 opinion of Dr. William D. Shea, a Boardcertified orthopedic surgeon and OWCP’s referral physician. It contended that the current claim
under File No. xxxxxx275 was not compensable under FECA as it was repetitious of appellant’s
prior claim under File No. xxxxxx021 and, thus, she failed to offer any new and material medical
evidence.
Also, on October 18, 2010 appellant stated that as a spinal cord injury nurse assistant for
over 29 years she provided total patient care to quadriplegics and paraplegics which included but
was not limited to bowel care, transfers, dressing, bathing and feeding the patients. She
contended that these activities involved strenuous physical demands which included pulling,
pushing and lifting on a daily basis throughout her entire tour of duty.
In a February 3, 2010 report, Dr. John W. Golberg, a Board-certified orthopedic surgeon,
noted that appellant was recovering from right knee surgery. She was also treated by
Dr. Arthur P. Carriere, a Board-certified orthopedic surgeon, for lumbar disease. Dr. Golberg
advised that radiographic evidence showed significant degenerative changes and acetabular
deformity in the left hip. He stated that hip arthroplasty was required as soon as possible due to
2

Appellant filed a prior claim for a September 1, 2007 right knee injury under File No. xxxxxx021 which OWCP
accepted for degeneration of lumbar or lumbosacral intervertebral disc, right knee osteoarthrosis and medial
meniscus tear. It authorized a February 1999 right knee arthroscopy and October 5, 2010 total right knee
arthroplasty. OWCP denied appellant’s request to expand her claim to include left hip osteoarthritis and total left
hip replacement surgery. This claim is not before the Board on the present appeal.
3

By letter dated July 28, 2010, OWCP denied authorization of the requested left hip surgery.

2

progressive and destructive changes in the joint. Dr. Golberg opined that this condition was
probably substantially aggravated by appellant’s recovery from right knee surgery. He
concluded that her leg condition probably contributed to the worsening of her left hip condition,
although it was not necessarily directly related as the only cause of her hip condition.
In an August 10, 2010 report, Bernard Hendriksen, a physician’s assistant, advised that
appellant had osteoarthritis in her left hip.
In a November 30, 2010 decision, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence was insufficient to establish that her left hip condition was
causally related to the established work duties.
On December 15, 2010 appellant requested an oral hearing before an OWCP hearing
representative.
In an operative report, Dr. Brown indicated that appellant underwent total left hip
reconstruction on October 20, 2010. In a May 18, 2011 report, he advised that she was doing
nicely five months post total left hip replacement surgery. Dr. Brown noted appellant’s belief
that working many years on her feet contributed to the severe osteoarthritis in her left hip, which
necessitated replacement in October 2010. He advised that she would remain off work for three
months. Dr. Brown concluded that appellant had a genuine claim regarding the association of
her employment with her past and present daily work activities.
In a June 22, 2011 decision, an OWCP hearing representative affirmed the November 30,
2010 decision. While the hearing representative found that OWCP did not specifically describe
the work duties as factual, appellant failed to submit sufficient medical evidence establishing that
her left hip condition was causally related to factors of her employment.
On November 21, 2011 appellant requested reconsideration.
In an August 22, 2011 report, Dr. Brown found that appellant was still doing nicely 10
months post total left hip replacement. She was walking without a limp and range of motion of
the left hip was excellent with a flexion and extension arc of 100 degrees. Appellant’s bilateral
leg lengths were equal. X-rays of the left hip showed excellent position of prostatic components.
There was good apparent consolidation of the allograft material on the acetabular side.
Dr. Brown noted that appellant worked on her feet on hard surfaces for many years. He opined
that this work duty significantly contributed to the osteoarthritis process in her left hip and thus,
concluded that the left total hip replacement should be compensable.
In a December 21, 2011 report, Dr. Carriere noted appellant’s complaint of lower back
pain and buttock pain bilaterally. He listed physical examination findings and diagnosed
lumbosacral degenerative disc disease with stenosis. Dr. Carriere stated that this was an old
work-related problem. He concluded that appellant remained totally unemployable.
In an April 25, 2012 decision, OWCP denied modification of the June 22, 2011 decision.
It found that appellant failed to submit rationalized medical evidence establishing a causal
relationship between her left hip condition and the established work duties.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.7 Neither the fact that appellant’s
condition became apparent during a period of employment nor, her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.8
ANALYSIS
OWCP accepted that appellant performed the work duties of a spinal cord injury health
technician, as alleged. The Board finds, however, that the medical evidence submitted is
insufficient to establish that her left hip condition was caused or aggravated by her work-related
duties.
While Dr. Brown’s May 18 and August 22, 2011 reports found that working on hard
surfaces for many years significantly contributed to appellant’s left hip osteoarthritis for which
she underwent total hip replacement on October 20, 2010, he failed to provide a sufficiently
rationalized medical opinion explaining how the established work duties caused or contributed to
the diagnosed condition and resultant surgery. Dr. Brown’s September 14, 2010 report found
4

5 U.S.C. §§ 8101-8193.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7

I. J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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that appellant had osteoarthritis with protrusion acetabulum of the left hip. However, he did not
provide a basis for his conclusions relative to his opinion addressing whether the established
work duties would cause or contribute to the diagnosed left hip condition. Medical evidence,
which does not offer any opinion regarding the cause of an employee’s condition, is of limited
probative value.9 Appellant expressed her belief that her left hip condition was caused by the
work-related right knee injury for which she underwent total knee replacement in the spring of
2009.10 As noted, the Board has held that a claimant’s belief that her condition was caused by
her employment is insufficient to establish causal relationship.11 For the stated reasons, the
Board finds that Dr. Brown’s reports are insufficient to establish appellant’s claim.
Dr. Golberg’s February 3, 2010 report found that significant degenerative changes in
appellant’s left hip were “probably” substantially aggravated by her recovery from right knee
surgery although the leg condition was not necessarily the only cause of her hip condition. He
advised that hip arthroplasty was required due to this condition. Dr. Golberg’s opinion regarding
causal relationship is speculative in nature and unsupported by rationalized medical evidence
explaining the cause of appellant’s left hip condition and need for surgery.12 A mere conclusion
without the necessary rationale explaining how and why the physician believes that a claimant’s
accepted exposure could result in a diagnosed condition is not sufficient to meet a claimant’s
burden of proof.13 For the stated reasons, the Board finds that Dr. Golberg’s report is insufficient
to establish appellant’s claim.
Dr. Carriere’s December 21, 2011 report found that appellant had lumbosacral
degenerative disc disease with stenosis and she remained totally unemployable. He noted that
the diagnosed condition was an old work-related problem. Dr. Carriere did not provide an
opinion addressing the relevant issue of whether the established work duties caused or
contributed to appellant’s claimed left hip condition.14 Further, he did not provide an opinion
addressing whether or how the established work duties would cause or contribute to appellant’s
lumbar condition and resultant disability.15 The Board finds that Dr. Carriere’s report is
insufficient to meet appellant’s burden of proof.

9

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

10

As noted in footnote 2, appellant’s claim for a left hip condition as a consequence of her accepted right knee
condition under OWCP File No. xxxxxx021 was denied by OWCP and is not on appeal before the Board.
11

Kathryn Haggerty, supra note 8.

12

Leslie C. Moore, 52 ECAB 132 (2000).

13

Beverly A. Spencer, 55 ECAB 501 (2004).

14

See cases cited, supra note 9.

15

Id.

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The report from Mr. Hendriksen, a physician’s assistant, has no probative value in
establishing that appellant sustained an injury due to the established work duties because a
physician’s assistant is not considered a physician as defined under FECA.16
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left hip condition causally related to the accepted employment
factors. Appellant did not meet her burden of proof.
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 failed to establish that appellant sustained a left hip
injury causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

16

George H. Clark, 56 ECAB 162 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazelwood, MO, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0112
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 1, 2021, appellant through counsel, filed a timely appeal from a
September 7, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0112.
In a letter dated March 7, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0112 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Elsinore, CA, Employer
__________________________________________

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Appearances:
John G. Ferrell, for the appellant
No appearance, for the Director

Docket No. 08-590
Issued: August 12, 2008

Oral Argument June 12, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2007 appellant filed a timely appeal from the March 16, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case. The Board also has jurisdiction to review the Office hearing
representative’s September 11, 2007 merit decision affirming the denial of compensation.
ISSUE
The issue is whether the medical conditions for which appellant claims compensation are
causally related to her federal employment.
FACTUAL HISTORY
On March 25, 2004 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim alleging that the pain in her arms and shoulders was a result of her federal
employment. On April 14, 2004 Dr. Frederic Butler, a specialist in occupational medicine,
reported: “The patient was initially evaluated at Kaiser Medical Center for pain reportedly

involving her shoulders, hands and arms. The patient states she reaggravated her injury after
casing mail through overhead reaching and lifting packages.” Dr. Butler examined appellant and
diagnosed bilateral rotator cuff strain, bilateral wrist strain and cervical strain. He indicated with
a mark that his findings and diagnoses were consistent with appellant’s account of injury or onset
of illness. Dr. Butler stated: “Condition is work related.”
On July 1, 2004 the Office accepted appellant’s claim for bilateral wrist and rotator cuff
strains and cervical strain.1
On December 2, 2004 appellant filed a separate claim for injury to her lower back
vertebrae and nerve damage: “As a letter carrier I do a lot of lifting, twisting, bending, pushing,
pulling, braking the vehicle.” On February 9, 2005 the Office accepted this claim for lumbar
sprain/strain, displacement of lumbar intervertebral disc without myelopathy, and thoracic or
lumbar intervertebral disc degeneration.2
Because the two case files involved similar injuries, the Office “doubled” or consolidated
them in March 2006, with OWCP File No. 13-2101703 serving as the master file.
On April 27, 2004 Dr. Alvin M. Yee, a specialist in anti-aging and regenerative medicine,
also a specialist in occupational and sports medicine, saw appellant to evaluate occupational
injuries to her neck, shoulders, arms, wrists, back, hips and legs reported on March 25, 2004. He
described appellant’s duties as a letter carrier in some detail. Dr. Yee noted that appellant began
to notice pain in the subject body parts progressively while engaged in her various duties. He
noted appellant’s head-on collision in a postal vehicle in 1986 and her subsequent and current
complaints. Dr. Yee described his findings on physical examination and review diagnostic
studies. He diagnosed: (1) cervical disc displacement; (2) cervical radiculopathy; (3) right
rotator cuff tear (distal supraspinatus); (4) bilateral shoulder impingement syndrome; (5) bilateral
carpal tunnel syndrome; (6) bilateral medial epicondylitis; (7) thoracic sprain/strain; (8) right
knee sprain/strain; (9) lumbar disc displacement; and (10) lumbar radiculopathy. Dr. Yee
offered the following opinion on causation:
“It does appear based on the information available to me at this time and the
information provided by the patient that her conditions are caused by, due to, and
arising out of the work activities for the [employing establishment] while working
as a letter carrier.
“Neck and Upper Back:
“With regards to the neck and upper back, in 1986 while delivering mail on her
route, the patient was involved in a head on collision in her postal vehicle
resulting in whiplash to her neck. The patient did not receive any therapy and was
1

OWCP File No. 13-2101703.

2

OWCP File No. 13-2118698. On March 22, 2006 the Office informed appellant’s congressman that the
accepted industrial conditions were: cervical disc syndrome, cervical radiculopathy, right rotator cuff sprain,
bilateral shoulder impingement, bilateral carpal tunnel syndrome, bilateral medial epicondylitis, thoracic spine
sprain, right knee sprain, displacement of the lumbar disc and lumbosacral radiculitis.

2

returned to her regular duties after two weeks. She states that the neck pain never
resolved completely. After a trauma such as this, the patient’s continuing
complaints can be attributed to resultant edema, petechial-type hemorrhage, and
the formation of adhesions with eventual scar tissue causing chronic nerve root
irritation. In addition, [she] has been working as a letter carrier for the last 19
years, which requires the patient to perform approximately three to four hours of
casing. The patient states that[,] when she is casing the mail, she is required to
repetitively turn and move her neck up and down approximately 45 degrees and
90 degrees to read the addresses on the mail while casing. In addition, she states
that she is constantly twisting and turning her neck back and forth while she is
casing the letters into their appropriate case. This repetitive flexing and extending
of the neck has contributed to the disc protrusions at the levels of C3-C4, C4-C5,
C5-C6 and C6-C7, which can be seen on MRI [magnetic resonance imaging]
[scan]. The repetitive flexing and extending of the neck has stretched and caused
microtears in the soft tissue of the cervical spine including the surrounding
musculature, ligaments and other soft tissue structures, resulting in edema and
inflammation. The inflammation of these structures narrows the space with which
the nerves pass through contributing to the numbness and tingling the patient
experiences down her arms, to her elbows, wrists, and fingers, bilaterally.
“Right and Left Shoulders:
“The right and left shoulder pathologies are caused by a cumulative trauma with
repetitive motion with the sorting and casing of letters. When the patient
constantly pushes, pulls, and lifts tubs of trays full of mail weighing up to 25
[pounds], it creates an increased biomechanical stress to the tendons of the rotator
cuff of the shoulder, making it more susceptible to a tear. In addition, the
repetitive pushing and pulling of hampers weighing between 200 and 300
[pounds] combined with the repetitive overhead movements required when casing
has resulted in the fibers of the supraspinatus tendon to become inflamed,
weakened and torn. This can clearly be seen on MRI [scans] of the right shoulder
taken on May 26, 2004.
“In addition, when the patient elevates her right and left shoulder with the
decreased joint space of the acromioclavicular joint demonstrated on x-rays, it can
further narrow the space where the tendons, ligaments, arteries and nerves pass
through. This results in compression and impingement of these structures,
therefore causing a sharp pain in the right and left shoulders.
“Right and Left Wrists and Elbows:
“The right and left wrist and elbow pathologies are caused by cumulative trauma
from repetitive flexing and extending as well as repetitive radial and ulnar
deviation, which is required by the patient while working as a letter carrier.
“The patient states that when she works as a letter carrier she is required to sort
approximately 1[,]500 to 3[,]000 pieces of mail, which may vary on any given

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day. She states as she is preparing to case the letters she lifts trays of letters
weighing approximately 15 to 20 pounds, places them on a ledge, and grabs a
handful of letters with her left hand which can be approximately 100 pieces and
then takes one letter at a time with her right hand holding the letters between her
thumb and index finger and then place it into its appropriate case. She also lifts
tubs of mail, which can weigh between 25 to 50 pounds. In addition, she also
pushes gurney, which can weigh between 300 to 400 pounds. She states that she
cases mails for approximately four to six hours and performs these motion five
days a week. The casing which she performs requires repetitive movement of the
wrist which has caused inflammation and compression on the structures of the
carpal tunnel including the median nerve resulting in numbness in the hands and
fingers and therefore resulting in carpal tunnel on the right and left wrist.
“In addition, the repetitive extending and flexing of the wrist required when
casing mail has irritated the common flexor musculature located on the inner
aspect of the elbow. The repetitive movement has caused inflammation resulting
in a chronic strain of the tendons and ligaments attaching to the medial
epicondyle. Severely sprained ligamentous tissue results in the formation of
fibrous scar tissue causing tightness, stiffness, decreased range of motion and pain
in the injured area.
“Lumbar spine:
“The lumbar pathology was caused by the repetitive bending, reaching, lifting and
squatting, which are required when the patient performs her duties as a letter
carrier. When the patient lifts the trays and tubs full of mail which can weigh
between 15 to 50 pounds, the soft tissue of the lumbar spine including the
surrounding musculature, ligament, and other soft tissue structures are stretched
and over-stretched resulting in edema and inflammation. The inflammation of
these structures causes further narrowing of the space to which the nerves pass
through and causes radiating pain in the distribution of the L4, L5 and S1
dermatome, which travels down the anterior lower thigh, top of the foot, outside
of the foot, great toe and small toe. This is consistent with nerve conduction
velocity and electromyography findings in addition to the patient’s
symptomology.
“Right Knee:
“With regards to the right knee, the patient has been working as a letter carrier for
approximately 19 years, which requires her to case mail. She mentions that when
she is casing her mail, she performs repetitive bending when lifting trays or
parcels from the floor to her workstation. In addition, the patient explains that
when delivering the mail, she would climb approximately 200 steps a day while
carrying a shoulder satchel on her right shoulder which weighed between 35 and
45 pounds. These activities over time have caused repetitive high stress and
increased loading onto the right knee, which has caused irritation and
degeneration of the musculature and tendons, which attach to the patella and tibia.

4

Consequently, her muscles and ligaments have become weak which has
predisposed the patient to premature degeneration and has strained the
surrounding musculature of the right knee, which can be seen on the patient’s
x-rays and the patient’s symptomatology.”
On October 13, 2004 Dr. Janet Dunlap, a consulting Board-certified orthopedic surgeon
and spinal specialist, related appellant’s history and complaints. She stated that appellant
worked as a letter carrier for 20 years:
“This job entails repetitive bending, twisting, reaching forward with her arms to
deliver mail, and heavy lifting. Approximately four years ago, [appellant] began
to develop the gradual onset of burning pain in the lower back and medial thighs,
with burning in the left anterior thigh. She has developed a numbness and dead
sensation in the anterior aspect of the left thigh. The symptoms go to the
knees but not distally. Symptoms are aggravated with standing and walking.
[Appellant] has a sensation that the right knee is weak and give way, for the last
six months. She has also a 6[-] to 12[-]month history of numbness in the right
hand including all five digits but the symptoms have improved over the last two
months since she has not been doing her mail route. [Appellant] gets aching pain
in her neck which radiates into the upper arms and forearms bilaterally. She has a
sensation of weakness in the hands with gripping or using them. [Appellant’s]
main complaint is that of the low back and thigh, right greater than left. She
notices increased shoulder pain with reaching, and reports that she has been
diagnosed with a ‘rotator cuff problem.’ [Appellant] reports that she was
diagnosed with tendinitis in that area in approximately 1992. She has had five
months of physical therapy for her neck and back, as well as treatment with antiinflammatory medications. Diagnostic studies have included x-rays and MRI
scan but unfortunately, these were not available for the appointment today.”
Dr. Dunlap reviewed medical records from June to September 2004 and described her
findings on physical examination. She diagnosed: (1) multilevel lumbar disc degeneration and
stenosis, by report; (2) low back pain with bilateral lumbar radiculitis, without neurologic defect;
(3) multilevel cervical disc degeneration with foraminal stenosis; (4) bilateral cervical radiculitis,
by report, without neurologic deficit or myelopathy; (5) right carpal tunnel syndrome; (6) left
rotator cuff impingement syndrome; (7) acromioclavicular synovitis; and (8) right rotator cuff
impingement syndrome with concomitant cuff tear.
Dr. Dunlap reported that appellant had stenosis in both the cervical and lumbar, which
adequately explained her radicular-type symptoms in all four extremities.
This was
superimposed on rotator cuff pathology and right carpal tunnel syndrome. “These degenerative
changes are largely age related,” she stated. Dr. Dunlap addressed causal relationship:
“Patient’s symptoms have been aggravated by her work activities on a cumulative traumatic
basis, with repetitive bending, twisting, and lifting over 20 years as a [l]etter [c]arrier.”
On December 8, 2004, however, Dr. Dunlap reported that appellant had diffuse somatic
complaints of uncertain etiology. She noted that appellant’s subjective complaints involving the
neck and back and extremities circumferentially outweighed the objective findings and “are not

5

quite classic for stenosis.” On February 9, 2005 Dr. Dunlap narrowed her diagnoses to
(1) multilevel lumbar disc degeneration and stenosis, (2) low back pain with bilateral lumbar
radiculitis without neurological deficit, (3) multilevel cervical disc degeneration with foraminal
stenosis, and (4) bilateral cervical radiculitis, without neurological deficit or myelopathy. She
reported that appellant clearly had multilevel preexisting degenerative changes, which caused
some of her disability. But Dr. Dunlap also attributed half of appellant’s disability to work
exposure alone.
On April 24, 2006 Dr. Ghassan S. Tooma, an orthopedic surgeon specializing in hand and
upper extremity surgery, noted the basic physical demands of appellant’s position and her current
complaints. He reported his findings on physical examination, reviewed diagnostic studies and
diagnosed the following: (1) right shoulder impingement syndrome with supraspinatus
tendinopathy and supraspinatus tear; (2) bilateral carpal tunnel syndrome; and (3) C3-4, C4-5
and C6-7 discogenic disease and spondylosis with varying degrees of central and neural
foraminal stenosis. Dr. Tooma reported: “Causation is felt to be industrial in nature with regards
to her right shoulder and bilateral wrist conditions related to repetitive cumulative trauma to the
right shoulder and both wrists and hands.”
Appellant claimed compensation for total disability from July 17 to September 1, 2006.
On July 17, 2006 Dr. Tooma related appellant’s complaints and on physical examination noted a
positive impingement sign at the right shoulder, no change in range of motion, and pain with
rotation of her neck, but not specifically a positive Spurling test. Repeating his diagnoses from
April 24, 2006, he placed appellant on temporary total disability “at this time, since with the
condition she is in, it is unlikely that she is able to perform duties even with modifications.”
The Office referred appellant, together with medical reports and a statement of accepted
facts for the consolidated cases,3 to Dr. Joseph Pierce Conaty, a Board-certified orthopedic
surgeon, for a second opinion evaluation. On December 18, 2006 Dr. Conaty reviewed the
statement of accepted facts, the medical records submitted and the history of appellant’s current
illness. He reported his findings on physical examination and reviewed x-rays. Dr. Conaty
diagnosed: (1) mild bilateral carpal tunnel; (2) strain/sprain, thoracic, recovered; (3) medial
epicondylitis, recovered; (4) strain/sprain, right rotator cuff, secondary to ongoing aging
degenerative process; (5) displacement of the cervical disc, without myelopathy, ongoing
degenerative process; and (6) displacement of the lumbar intervertebral disc, without
myelopathy, recovered. He commented:
“The findings in respect to the issue of carpal tunnel demonstrate a minimally
positive Phalen’s test. In respect to the cervical degenerative problem, this is
noted with the restriction of range of motion and x-ray and MRI [scan] changes of
degenerative disc disease. The shoulder tear is noted with objective MRI [scan]
3

The statement of accepted facts indicated that the Office accepted appellant’s March 25, 2004 claim for
(1) strain/sprain of shoulder and upper arm, rotator cuff, bilateral, (2) strain/sprain of wrist, bilateral, and (3) neck
strain/sprain. The statement of accepted facts indicated that the Office accepted appellant’s December 2, 2004 claim
for (1) bilateral carpal tunnel syndrome, (2) thoracic back strain/sprain, (3) medial epicondylitis, (4) right
shoulder/rotator cuff strain/sprain, (5) displacement of cervical intervertebral disc without myelopathy, and
(6) displacement of lumbar intervertebral disc without myelopathy.

6

changes and limited rage of motion. It is my opinion that these are ongoing,
aging degenerative problems and not specifically work related.”
Asked whether his diagnosis of appellant’s condition was medically connected to the
factors of employment described in the statement of accepted facts, Dr. Conaty responded: “This
is all the result of an aging process. It is my opinion that aggravation is not indicated as a result
of an ongoing degenerative process.” He added that appellant’s nonindustrial disabilities were
problems referable to the degenerative changes of the cervical spine and the rotator cuff tear on
the right. Asked whether appellant continued to suffer residuals of her accepted injuries,
Dr. Conaty stated: “She continues to suffer residuals, but not from the injury. I consider this all
an aging ongoing process.”
In a decision dated March 16, 2007, the Office denied appellant’s claim of wage loss
from July 17 to September 1, 2006. It noted appellant March 25, 2004 injury and the acceptance
of strain/sprains of the shoulders, wrists and neck. Although Dr. Tooma diagnosed cervical
discogenic disease and multilevel spondylosis with varying degrees of central and neural
foraminal stenosis, the Office noted that he provided no medical rationale as to how factors of
appellant’s federal employment contributed to the diagnosed condition. It also noted that
Dr. Conaty felt appellant’s cervical condition was an ongoing degenerative problem related to
aging and thus not related to the March 2004 employment injury. The Office denied appellant’s
claim of compensation from July 17 to September 1, 2006 on the grounds that her physician’s
medical rationale was not sufficient to establish that she was totally disabled for work due to the
accepted conditions.
In a decision dated September 11, 2007, an Office hearing representative affirmed the
denial of appellant’s claim for wage loss from July 17 to September 1, 2006. The hearing
representative noted that the Office accepted appellant’s March 25, 2004 claim for bilateral
rotator cuff strains, wrist strains and cervical strain. He noted that it appeared appellant’s
ongoing disability had little or nothing to do with these accepted conditions. Although appellant
had asked the Office to update her accepted conditions, the hearing representative found no basis
to do so; there was no evidence that appellant’s cervical spondylosis or stenosis or carpal tunnel
syndrome or degenerative conditions were in any way causally related to appellant’s federal
employment. The hearing representative concluded that the medical evidence failed to establish
that appellant was totally disabled from July 17 to September 1, 2006 due to the accepted workrelated injury of March 25, 2004.4
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.5 A
claimant seeking benefits under the Act has the burden of proof to establish the essential

4

The hearing representative found that the sworn statement of Dr. Rodney D. Henderson established that he
never released appellant to return to work in July 2005.
5

5 U.S.C. § 8102(a).

7

elements of her claim by the weight of the evidence,6 including that she sustained an injury in the
performance of duty and that any specific condition or disability for work for which she claims
compensation is causally related to that employment injury.7
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury, and must explain from a medical perspective how the current
condition is related to the injury.8
While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence.9 It must obtain any evidence that is
necessary for the adjudication of the case which is not received when the notice or claim is
submitted. The Office is responsible for providing the claimant information about the
procedures involved in establishing a claim, including detailed instructions for developing the
required evidence, and upon initial examination of the case should request all evidence necessary
to adjudicate the case.10 When the Office undertakes to develop the medical aspects of a case, it
must exercise extreme care in seeing that its administrative processes are impartially and fairly
conducted.11
ANALYSIS
Appellant claimed compensation for total disability from July 17 to September 1, 2006.
She therefore has the burden of proof to establish that she was totally disabled for work during
this period as a result of her accepted employment injury. The Office has denied compensation
for this period because the medical evidence did not establish that appellant was totally disabled
as a result of her March 25, 2004 injury, which the Office accepted for various strains.
The Office also accepted a second employment injury in 2004. It accepted appellant’s
December 2, 2004 claim for lumbar sprain/strain, displacement of lumbar intervertebral disc
without myelopathy, and thoracic or lumbar intervertebral disc degeneration. In its statement of
accepted facts, the Office states that it accepted this claim for bilateral carpal tunnel syndrome,
thoracic back strain/sprain, medial epicondylitis, right shoulder/rotator cuff strain/sprain,

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

9

Mary A. Barnett (Frederick E. Barnett), 17 ECAB 187, 189 (1965).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3.c (April 1993).

11

William N. Saathoff, 8 ECAB 769 (1956) (finding that the deficiency in the medical evidence adduced was
attributable to the Office, then known as the “Bureau of Employees’ Compensation”).

8

displacement of cervical intervertebral disc without myelopathy, and displacement of lumbar
intervertebral disc without myelopathy.
The Office consolidated these cases in March 2006. So when appellant claimed
compensation for total disability from July 17 to September 1, 2006, the issue was not, as the
Office adjudicated, whether she was totally disabled as a result of her March 25, 2004
employment injury. The issue was broader. The issue was whether she was totally disabled by
either her March 25 or December 2, 2004 employment injuries. By considering only the first
injury, the Office limited the issue to mere strains. But appellant also had accepted conditions
that included disc displacement, disc degeneration and apparently bilateral carpal tunnel
syndrome and medial epicondylitis. Indeed, the Office informed appellants’ congressman that
the accepted conditions included cervical disc syndrome, cervical radiculopathy, right rotator
cuff sprain, bilateral shoulder impingement, bilateral carpal tunnel syndrome, bilateral medial
epicondylitis, thoracic spine sprain, right knee sprain, displacement of the lumbar disc and
lumbosacral radiculitis. These are the same diagnoses that Dr. Yee reported on April 27, 2004,
when he offered medical rationale to support that appellant had a number of conditions that were
causally related to the specific physical demands of her employment as a letter carrier.
Because the Office too narrowly adjudicated appellant’s claim for wage loss, the Board
will set aside the Office’s March 16 and September 11, 2007 decisions and remand the case for
further development and adjudication. The medical management of this case became complex
after the Office’s initial acceptance of simple strains on July 1, 2004, so the Office must first
clarify what medical conditions it has accepted as causally related to appellant’s federal
employment. If the Office accepts that Dr. Yee presented sound medical rationale to establish that
his 10 diagnoses are causally related to the duties appellant performed as a letter carrier, it must
include those medical conditions in its statement of accepted facts. It should also determine
whether Dr. Dunlap and Dr. Tooma presented sufficient medical reasoning to establish that the
conditions they diagnosed were caused or aggravated by repetitive, cumulative trauma in the
course of appellant’s federal employment. If so, the Office should identify those diagnoses as
accepted conditions. Further, it should amend the statement of accepted facts to include a detailed
description of the physical demands of appellant’s position, similar to the details Dr. Yee provided.
This will help to give any referral physician a proper factual background upon which to render an
opinion on appellant’s claim for compensation.
Having sought a second opinion, the Office has the responsibility to obtain an evaluation
that will resolve the issue involved in the case.12 The Board finds that Dr. Conaty’s opinion is
insufficient because the statement of accepted facts was lacking, because he did not offer sound
medical reasoning, and because he did not address the issue of disability for the specific period
claimed. After clarifying the accepted conditions and amending the statement of accepted facts,
the Office shall further develop the medical opinion evidence to determine whether appellant was
totally disabled for work from July 17 to September 1, 2006 as a result of her accepted medical

12

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); see also Milton Lehr, 45 ECAB 467 (1994) (where the Board
remanded the case to the Office for a medical opinion, and the opinion obtained from the attending physician was
not sufficient to resolve the issue, the Board found that the Office should obtain a supplemental report from the
attending physician curing the deficiency and resolving the issue in the case).

9

conditions. The Office shall then issue an appropriate final decision on appellant’s entitlement to
compensation for wage loss during the period of disability claimed.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 11 and March 16, 2007 decisions of
the Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action consistent with this opinion.
Issued: August 12, 2008
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1631
Issued: May 1, 2009

Case Submitted on the Record

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

JURISDICTION
On May 20, 2008 appellant filed a timely appeal from an April 11, 2008 decision of the
Office of Workers’ Compensation Programs terminating her compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.d(3), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2) on the grounds she refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on October 31, 1990 appellant, then a 51-year-old sheet metal
mechanic, sustained a fractured left patella and abrasions of the forehead and right knee when
she tripped and fell on a sidewalk. Dr. Frank B. Kelly, an attending Board-certified orthopedic
surgeon, performed open reduction and internal fixation of the left patella on November 1, 1990,
with removal of hardware on July 23, 1991. Appellant returned to light-duty work for four hours

a day on February 21, 1991. She returned to full-time light duty on January 15, 1992.1 Dr. Kelly
submitted periodic progress notes and work restrictions through March 1995, diagnosing posttraumatic arthritis of the left knee.
Appellant stopped work on December 4, 1995 and was separated from the employing
establishment due to disability effective January 25, 1996. She received benefits on the daily
rolls.2 Appellant’s case was placed on the periodic rolls effective February 1, 1998.
Dr. Joseph E. Slappey, Jr., an attending Board-certified orthopedic surgeon, submitted
February 18 and April 1, 1998 reports diagnosing right plantar fascial pain.
On March 2, 2006 the Office obtained a second opinion from Dr. Jeffrey A. Field, a
Board-certified orthopedic surgeon, who found appellant able to perform limited-duty work with
restrictions. On February 13, 2006 the employing establishment offered appellant a job as a
modified clerk, but did not provide a position description.
Following additional development, the Office authorized a second-opinion examination
by Dr. Alexander M. Doman, a Board-certified orthopedic surgeon, who submitted a July 17,
2007 report based on a statement of accepted facts and the medical record. Dr. Doman
diagnosed mild left patellofemoral pain. He opined that appellant could perform full-time lightduty work, with sitting and standing limited to four hours a day, climbing limited to two hours a
day and no squatting.
In November 2007, the Office referred appellant to a vocational rehabilitation counselor
to initiate a reemployment plan. In a November 7, 2007 report, the counselor reviewed
appellant’s vocational and medical history. The counselor noted that appellant did not wish to
return to work due to her age.
On January 8, 2008 the employing establishment offered appellant a full-time position as
a modified clerk. The required duties included answering the telephone, photocopying and
filing. Lifting, pulling and pushing were limited to 10 pounds. Appellant could sit or stand as
needed and was not required to climb or squat. The employing establishment instructed
appellant regarding the deadline for accepting or refusing the position, and when and where to
report for duty. Appellant did not respond to the job offer.
In a January 9, 2008 report, the vocational counselor noted that appellant would refuse
the offered modified clerk position as she did not wish to return to work.
By letter dated February 1, 2008, the Office advised appellant that the offered modified
clerk position was suitable work within the restrictions set forth by Dr. Doman. It afforded her
30 days to accept the position or provide a written explanation for her refusal. The Office noted
1

The Office issued wage-earning capacity determinations on April 23, 1991 and March 4, 1992, based on
appellant’s actual earnings. By decision dated May 7, 1992, it granted appellant a schedule award for a 12 percent
permanent impairment of the left lower extremity.
2

By decision dated October 25, 1995, the Office initially denied compensation for the period August 15, 1995
onward. It vacated this decision on October 23, 1996.

2

that, if appellant failed to report for work or present adequate justification for her refusal, her
compensation would be terminated.
In a February 11 and March 28, 2008 reports, the vocational rehabilitation counselor
stated that appellant continued to refuse the offered position and would elect retirement benefits.
The counselor encouraged her to contact the Office directly to explain her reasons for refusing
the job offer. Appellant did not do so.
In an April 11, 2008 telephone memorandum, the employing establishment advised the
Office that the offered modified clerk position remained open and available. Appellant did not
report for work.
By decision dated April 11, 2008, the Office terminated appellant’s monetary
compensation under section 8106(c)(2) of the Act on the grounds that she refused an offer of
suitable work. It found that the offered modified clerk position was suitable work within the
restrictions set forth by Dr. Doman, the second opinion examiner. Appellant did not respond to
the offer, provide reasons for her refusal or submit any medical evidence indicating that the
offered position was not suitable work. The Office noted that she remained entitled to medical
benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may terminate compensation under section
8106(c)(2) of the Act, which provides that a partially disabled employee who refuses or neglects
to work after suitable work is offered to, procured by or secured for the employee is not entitled
to compensation.”4 To justify termination of compensation, the Office must show that the work
offered was suitable and must inform the claimant of the consequences of refusal to accept such
employment.5 For conditions not accepted by the Office as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.6 Once the Office establishes that the work offered was suitable, the burden of proof
shifts to the employee who refuses to work to show that such refusal was reasonable or justified.7
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.8

3

Linda D. Guerrero, 54 ECAB 556 (2003); Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

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

5

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

6

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

7

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

8

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

3

Section 10.517(a) of the Act’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.9 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.10
The issue of whether an employee has the physical ability to perform a modified position offered
by the employing establishment is primarily a medical question that must be resolved by medical
evidence.11
ANALYSIS
The Office accepted that, on October 31, 1990, appellant sustained a fractured left patella
and abrasions of the right knee and forehead. She received total disability compensation
beginning in February 1996.
The Office obtained a second opinion report on July 17, 2007 from Dr. Doman, a Boardcertified orthopedic surgeon, who found appellant able to perform full-time light-duty work with
sitting and standing limited to four hours a day, climbing limited to two hours a day and no
squatting. On January 8, 2008 the employing establishment offered appellant a modified clerk
position within the restrictions set forth by Dr. Doman. The Board finds that Dr. Doman’s report
established that the offered position was within appellant’s physical limitations.12 Also, the offer
was in writing, described the assigned duties and their physical requirements and instructed
appellant when to report for work.13 The Board finds that the Office met its burden to establish
that the position was suitable work.14
As appellant did not respond to the offer, the Office advised her in a February 1, 2008
letter of the Act’s penalty provisions for refusing suitable work. The Board finds that the Office
complied with its procedural requirements in advising her that the position was suitable work and
allowing her to accept the job or justify her refusal. Appellant did not report for duty or respond
with reasons for refusing the offered position.15 Therefore, the Office terminated her

9

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

10

20 C.F.R. § 10.516.

11

Kathy E. Murray, 55 ECAB 288 (2004).

12

Richard P. Cortes, 56 ECAB 2000 (2004).

13

See 20 C.F.R. § 10.507.

14

Marilou Carmichael, 56 ECAB 451 (2005).

15

The Office complied with its regulation at 20 C.F.R. § 10.516 by sending the February 1, 2008 letter affording
her 30 days to accept the position, soliciting her reasons for refusal and advising her of the Act’s penalty provision at
5 U.S.C. § 8106(c)(2). As appellant did not provide the Office with her reasons for refusing the job offer, the Office
was not obligated to send appellant a second letter affording her an additional 15 days to accept the job without
penalty. 20 C.F.R. § 10.516, codifying the notification procedure set forth in Maggie L. Moore, 42 ECAB 484
(1991), reaff’d on recon., 43 ECAB 818 (1992).

4

compensation benefits by decision dated April 11, 2008. Accordingly, it met its burden of proof
to terminate appellant’s compensation based on her refusal of suitable work.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation under
section 8106(c)(2) of the Act as she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 11, 2008 is affirmed.
Issued: May 1, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5