United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Norfolk, VA, Employer
__________________________________________

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Appearances:
Gregory Klein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1108
Issued: October 16, 2017

Case Submitted on the Record

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

JURISDICTION
On April 27, 2017 appellant, through counsel, filed a timely appeal from a November 10,
2016 nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated October 15, 2015, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its November 10, 2016 decision.
However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued
its final decision. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts as presented in the Board’s
prior decision are incorporated herein by reference. The relevant facts pertaining to this appeal
are as follows.
In January 1999, OWCP accepted that appellant, then a 45-year-old administrator,
sustained the condition of multiple chemical sensitivities due to exposure to substances in the
workplace, including Basidiospore, Penicillium, and Aspergillus strains of fungi/mold.
In a March 3, 2011 decision,5 the Board affirmed OWCP’s August 12, 2009 decision as
modified to reflect that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective July 11, 2004, but that there was a conflict in the
medical opinion evidence regarding continuing work-related residuals after July 11, 2004 which
required remanding the case to OWCP for further development. The Board found that the
April 23, 2004 report of Dr. Elizabeth Ann Raitz-Cowboy, a Board-certified pulmonary
specialist serving as an OWCP referral physician, justified the termination of appellant’s
wage-loss compensation and medical benefits effective July 11, 2004 because it contained a
well-rationalized medical opinion finding that appellant’s work-related residuals had ceased.6
However, the Board found that there was a conflict in the medical opinion evidence between the
medical opinion of Dr. Raitz-Cowboy and that of Dr. Allan Lieberman, an attending Boardcertified occupational medicine physician.7 The Board remanded the case to OWCP for referral
of appellant to an impartial medical specialist for an examination and opinion regarding whether
she continued to have residuals of the accepted multiple chemical sensitivities condition after
July 11, 2004. The Board directed OWCP to issue an appropriate decision on her claim after
carrying out this development.

4

Docket No. 10-0328 (issued March 3, 2011).

5

Id.

6

The Board noted that Dr. Raitz-Cowboy indicated in her April 23, 2004 report that pulmonary function testing
performed on appellant was within normal limits and that a chest x-ray was also within normal limits. Dr. RaitzCowboy did not see any signs of multiple chemical sensitivities or anything to support the diagnosis of toxic
encephalopathy, noting that all heavy metal levels were negative. She indicated that there was one discussion of
perhaps a mild restrictive disease on a set of breathing tests from October 2000, but noted that even these limited
results were not reproduced in the more current test results.
7

In reports dated November 9, 2004 and October 11, 2005, Dr. Lieberman indicated that specific testing with the
individual molds identified in the environmental analyses of appellant’s workplace provoked many of the signs and
symptoms complained about by appellant. He posited that the allergens that she was exposed to in the workplace
were adequate to cause her to suffer from the accepted multiple chemical sensitivities condition after July 11, 2004.

2

On remand, OWCP referred appellant to Dr. Kyle Enfield, a Board-certified internist, for
an impartial medical examination and opinion regarding whether she had residuals of her
accepted employment injury on or after July 11, 2004.8
In an October 11, 2013 report, Dr. Enfield provided an opinion that appellant had
idiopathic environmental intolerance or multiple chemical sensitivities based on her symptom
history and noted that there was a temporal relationship between her symptom history and work
exposure. He noted, “However, I cannot establish causation,” and recommended that appellant
be seen by a physician who was Board-certified in toxicology or occupational/environmental
medicine.
OWCP determined that, given the opinion expressed by Dr. Enfield in his October 11,
2013 report, it was necessary to refer appellant to another impartial medical specialist.9 In
August 2015, it referred her to Dr. Donald J. McGraw, a Board-certified occupational medicine
physician, for an impartial medical examination and opinion regarding whether she had residuals
of her accepted employment injury on or after July 11, 2004.
In a September 15, 2015 report, Dr. McGraw discussed appellant’s factual and medical
history and reported the findings of the examination he conducted on that date. He noted that she
was dermatologically intact with no erythema, edema, or any type of lesions, and that her chest
was clear to auscultation. Dr. McGraw indicated that his medical interview and physical
examination of appellant detected no objective clinical abnormalities of any type and advised
that her strong emotional convictions regarding her described clinical problems were not
supported objectively by findings on clinical examination. He noted that, while appellant
claimed allergies to a number of agents including sulfa, formaldehyde, molds, mildews, tobacco,
smoke, fragrances, and perfume, there was no objective clinical evidence to support those
allergies. Dr. McGraw noted that she did not use prophylactic anti-allergenic medication to
block any type of allergic reaction. He discussed medical literature concerning multiple
chemical sensitivities and recounted his own experiences evaluating patients who had been
diagnosed with this condition by other physicians. Dr. McGraw discussed his inability to find
objective evidence of multiple chemical sensitivities in these patients, noting that many of the
offending agents identified with this condition, including Penicillium and Cladosporium
fungi/mold, were ubiquitous in the environment. He indicated that he was unable to identify any
disabling medical condition after July 11, 2004, which was in any way related to appellant’s
accepted condition of multiple chemical sensitivities. Dr. McGraw indicated that he could not
identify any objective clinical evidence to support physical limitations from work after
July 11, 2004.
In an October 30, 2015 decision, OWCP determined that appellant was not entitled to
further wage-loss compensation and medical benefits after the termination of such benefits

8

Appellant’s appearance at the impartial medical examination with Dr. Enfield was delayed by appellant’s own
request to not attend the examination until she had recovered from a nonwork-related broken right leg.
9

Another delay occurred due to OWCP’s difficulty in finding an appropriate medical specialist whose office was
close to appellant’s home.

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effective July 10, 2014.10 It found that the weight of the medical evidence regarding residuals of
the accepted employment injury rested with the well-rationalized September 15, 2015 report of
Dr. McGraw.
In a September 12, 2016 letter received on September 19, 2016, appellant noted that the
appeal rights associated with an October 30, 2015 letter with an enclosed “Notice of Decision”
provided that a reconsideration request must be signed, dated, and received within one calendar
year of the date of the decision. She asserted that the “Notice of Decision” had no date and
requested that OWCP provide the date of the “Notice of Decision.”11
In an October 25, 2016 letter received on November 1, 2016, counsel requested
reconsideration of OWCP’s October 30, 2015 decision.12 He argued that Dr. McGraw’s previous
court appearances and publications clearly establish that he was not an impartial medical
examiner and instead was a professional witness who testified only on behalf of employing
establishments or insurance companies against the interests of injured workers. Counsel noted
that a search through the Lexis legal research service revealed that Dr. McGraw participated in
litigation in 14 different cases, and that in each case he was hired by the employing
establishment/insurance company and submitted an opinion which was favorable to the party that
was paying his bill rather than the injured worker. He felt that these cases showed that
Dr. McGraw had a documented history of bias against injured workers. Counsel summarized
Dr. McGraw’s role in the 14 cases, which were heard in the U.S. District Court for the Western
District of Pennsylvania or the Commonwealth Court of Pennsylvania, providing brief notations
such as, “Dr. McGraw testified that the employee was not disabled,” “[employing establishment]
requested that Dr. McGraw perform a fitness[-]for[-]duty evaluation,” and “[employing
establishment] retains Dr. McGraw to testify that employee’s workplace injury did not cause him
to die.”13
In his October 25, 2016 letter, counsel also argued that further evidence of Dr. McGraw’s
bias was provided by his article entitled “Multiple Chemical Sensitivities -- Modern Medical
Conundrum or Old Story with a New Title?” which was published by the American College of
10

OWCP actually indicated that it had terminated appellant’s wage-loss compensation and medical benefits
effective January 12, 2004, but this was not an accurate description of the issue at hand because she had not received
wage-loss compensation and medical benefits since January 10, 2004 and the Board, in its March 3, 2011 decision
had affirmed OWCP’s termination of such benefits effective January 10, 2004. As noted below, after termination or
modification of compensation benefits, clearly warranted on the basis of the evidence, the burden for reinstating
compensation benefits shifts to appellant. See infra notes 23 through 25. Therefore, OWCP effectively found in its
October 30, 2015 decision that appellant did not meet her burden of proof to establish entitlement to wage-loss
compensation and medical benefits after January 10, 2014.
11

The record does not contain any response by OWCP to this letter. As discussed infra, appellant subsequently
submitted the appeal request form that accompanied OWCP’s October 30, 2015 decision. The top portion of the
appeal request form identified appellant, her OWCP file number, and noted the date of the decision as
“October 30, 2015.”
12

The record also contains a form, signed on October 28, 2016 and received on November 1, 2016, in which
appellant requested reconsideration of OWCP’s October 30, 2015 decision.
13

The record contains copies of the fourteen cases referenced by counsel.

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Occupational and Environmental Medicine. He asserted that, in this article, Dr. McGraw opined
that “the parade of patients” diagnosed with multiple chemical sensitivities did not have such a
condition and that the diagnosis of multiple chemical sensitivities constituted an unsubstantiated
theory which fell under the category of “fringe medicine.” Counsel indicated that he was
providing a copy of this article, but the article was not, in fact, submitted to the case record. He
also discussed a May 26, 2016 report of Dr. Bettina Herbert, an attending Board-certified
physical medicine and rehabilitation physician, which he characterized as containing an opinion
that appellant continued to suffer from work-related multiple chemical sensitivities causing
disability from work. However, the record does not contain a copy of a May 26, 2016 report of
Dr. Herbert.
In a November 10, 2016 decision, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error. It found that her
reconsideration request was untimely because it was received on November 1, 2016, a date more
than one year after the issuance of its October 30, 2015 merit decision. OWCP found that the
evidence appellant submitted in support of her untimely reconsideration request failed to
demonstrate clear evidence of error in its October 30, 2015 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his or her own motion or on
application. The Secretary, in accordance with the facts found on review, may end, decrease or
increase the compensation awarded; or award compensation previously refused or
discontinued.14
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.15 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP in
its most recent merit decision. To demonstrate clear evidence of error, a claimant must submit
evidence relevant to the issue that was decided by OWCP. The evidence must be positive,
precise, and explicit and must be manifest on its face that OWCP committed an error.16

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested
decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Id. Timeliness is
determined by the document receipt date of the request for reconsideration as indicated by the “received date” in the
Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
16

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

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To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.17 The Board
notes that clear evidence of error is intended to represent a difficult standard.18 Evidence that
does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to demonstrate clear evidence of error.19 It is not enough merely to establish that the
evidence could be construed so as to produce a contrary conclusion.20 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.21 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.22
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.23 OWCP may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.24 After
termination or modification of compensation benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative, and substantial evidence
that he or she had an employment-related disability which continued after termination of
compensation benefits.25
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”26 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of

17

Annie L. Billingsley, 50 ECAB 210 (1998).

18

R.K., Docket No. 16-0355 (issued June 27, 2016).

19

Jimmy L. Day, 48 ECAB 652 (1997).

20

Id.

21

Id.

22

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

23

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

24

Id.

25

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

26

5 U.S.C. § 8123(a).

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such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.27
ANALYSIS
The Board finds that OWCP properly determined that appellant’s November 1, 2016
request for reconsideration was untimely filed. For OWCP decisions issued on or after
August 29, 2011, the date of the application for reconsideration is the received date as recorded
in iFECS.28 The most recent merit decision was OWCP’s October 30, 2015 decision and
appellant had one year from that date to timely file for reconsideration. The last day of the oneyear filing period fell on Sunday, October 30, 2016. Therefore, appellant had until Monday,
October 31, 2016 to timely request reconsideration.29 Because her request was not received by
OWCP until November 1, 2016, it was untimely filed. Consequently, appellant must
demonstrate clear evidence of error by OWCP with respect to its October 30, 2015 decision.30
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in issuing its October 30, 2015 decision. Appellant did not submit the type of
positive, precise, and explicit evidence which manifests on its face that OWCP committed an
error in its October 30, 2015 decision.31 In support of the reconsideration request, counsel
submitted an October 25, 2016 letter in which he presented various arguments on behalf of
appellant. He argued that Dr. McGraw’s previous court appearances and publications clearly
establish that he was not an impartial medical examiner and instead was a professional witness
who testified only on behalf of employing establishments or insurance companies against the
interests of injured workers. Counsel noted that Dr. McGraw participated in litigation in 14
different cases, and that in each case he was hired by the employing establishment/insurance
company and submitted an opinion which was favorable to the party that was paying his bill
rather than the injured worker. He felt that these cases showed that Dr. McGraw had a
documented history of bias against injured workers and, therefore, his opinion could not serve as
the weight of the medical evidence regarding work-related residuals after July 11, 2004.32
Counsel summarized Dr. McGraw’s role in the 14 cases, which were heard in the U.S. District
Court for the Western District of Pennsylvania or the Commonwealth Court of Pennsylvania, and
submitted copies of the case to the record.
The Board finds that this evidence and argument fails to demonstrate clear evidence of
error by OWCP in its October 30, 2015 decision. The evidence and argument submitted by
counsel on behalf of appellant did not raise a substantial question concerning the correctness of
27

R.S., Docket No. 08-1158 (issued January 29, 2009).

28

Supra note 15 at Chapter 2.1602.4; see C.B., Docket No. 13-1732 (issued January 28, 2014).

29

See id. at Chapter 2.1602.4b.

30

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

31

See supra note 16.

32

See supra notes 26 and 27, regarding the weight accorded well-rationalized reports of impartial medical
specialists.

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OWCP’s decision.33 Counsel did not adequately explain how the mere fact that the submitted
court cases addressed medical opinions of Dr. McGraw, which he believed were unfavorable to
the claimants in those cases, showed bias on the part of Dr. McGraw. The Board has carefully
reviewed the court cases and notes that they do not establish evidence of bias by Dr. McGraw
against injured workers. Nor did counsel explain how the facts of these cases, totally unrelated
to the present case, proved bias against appellant by Dr. McGraw when producing his
September 15, 2015 report in his role as an impartial medical specialist. Counsel also made
reference to an article authored by Dr. McGraw which he felt showed that he did not accept the
validity of the diagnosis of multiple chemical sensitivities, but he did not submit a copy of this
article or adequately explain how it established bias with respect to appellant.34 Moreover, the
Board has carefully reviewed the September 15, 2015 report of Dr. McGraw and notes that it
does not show any bias against appellant.
The Board finds that appellant’s application for review does not show on its face that
OWCP committed error when it found in its October 30, 2015 decision that appellant was not
entitled to wage-loss compensation and medical benefits on or after July 11, 2004.35 As noted
above, clear evidence of error is intended to represent a difficult standard.36 In essence, appellant
has simply challenged the sufficiency of the opinion of Dr. McGraw by claiming bias, but such a
generalized, unsupported argument would not show on its face that OWCP committed error in its
October 30, 2015 decision.37
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s October 30, 2015 decision and OWCP properly
determined that appellant did not show clear evidence of error in that decision.

33

See supra note 19.

34

Counsel also discussed a May 26, 2016 report of Dr. Herbert, an attending physician, which he characterized as
containing an opinion that appellant continued to suffer from work-related multiple chemical sensitivities causing
disability from work. However, the record does not contain a copy of a May 26, 2016 report of Dr. Herbert and
counsel’s mere characterization of this report would not show clear evidence of error in OWCP’s October 30, 2015
decision.
35

See S.F., Docket No. 09-0270 (issued August 26, 2009). On appeal, counsel provided similar arguments
claiming bias by Dr. McGraw, but he does not provide any convincing argument that the evidence of record
supports such finding of bias.
36

See supra note 16.

37

As noted above, to show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision. See supra note 17. Even if, for the sake of argument, appellant had shown that
Dr. McGraw was biased and that his opinion could not represent the weight of the medical evidence, there would
still be a continuing conflict in the medical evidence regarding whether appellant established work-related disability
or need for medical care on or after July 11, 2004 and she would not have shifted the weight of the evidence in her
favor. See supra notes 26 and 27.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VETERANS
ADMINISTRATION MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 19-0156
Issued: May 23, 2019

Case Submitted on the Record

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

JURISDICTION
On October 29, 2018 appellant filed a timely appeal from a July 23, 2018 merit decision
and a September 19, 2018 nonmerit 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
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged; and (2) whether OWCP properly denied her
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 18, 2018 appellant, then a 49-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she sustained post-traumatic stress disorder (PTSD) and
depression causally related to factors of her federal employment. She attributed her condition to
a charge nurse telephoning the employing establishment’s police prior to an October 21, 2017
meeting. Appellant did not stop work.
In a development letter dated February 8, 2018, OWCP notified appellant that the evidence
submitted was insufficient to establish her emotional condition claim. It requested that she submit
a detailed description of the employment factors that she believed caused or contributed to her
illness, factual evidence corroborating any workplace incidents, and a report from her attending
psychiatrist or clinical psychologist addressing causation. OWCP afforded appellant 30 days to
submit the necessary evidence.
Thereafter, OWCP received an October 21, 2017 investigative report from the employing
establishment’s police. The name of the individual who had telephoned the police was redacted
in the investigative report. The investigating officer who completed the report indicated that the
police had dispatched officers to standby during a meeting with a hostile employee. At the
meeting, appellant discussed the working relationship between managers and staff. She became
irritated when the parties brought up past situations and she then left the room. After appellant
left, the person who had telephoned the police asked what would happen if appellant went to her
vehicle and got a gun. The officers inquired whether she had ever threatened anyone with a gun
and the individual responded in the negative. The officers advised the individual not to make
unsubstantiated statements for effect and “to handle things that are administrative in the proper
manner and not to exaggerate the circumstances that have not yet presented themselves.”
Appellant also submitted a January 5, 2018 work status report by Dr. Stanley Kuo Yu, a
Board-certified gastroenterologist, who provided a diagnosis of acute stress disorder and removed
her from work for the period January 5 through 10, 2018.
In a report dated January 11, 2018, Cary Devin Glass, Ph.D., a clinical psychologist, noted
that since October appellant had been reporting trouble at work including harassment by multiple
people at work. He diagnosed major depressive disorder recurrent episode, anxiety, history of
post-traumatic stress disorder due to occupational problems or work circumstances.
In a proposed 10-day suspension dated January 3, 2018, the employing establishment
charged appellant with inappropriate conduct on October 21, 2017 when she switched assignments
without the proper authority. It asserted that she had used profanity on October 21, 2017 toward
P.S., the charge nurse, and raised her voice talking to two charge nurses after P.S. had telephoned
the police about her conduct. Appellant also asked M.V. on October 21, 2017 to step outside the

2

facility and told her that she did not like how she gave her a break sheet. The employing
establishment additionally charged appellant with carelessness in her work duties. It advised that
on October 14, 2017 C.E., the charge nurse, asked her to look for a missing patient. Appellant
neglected to tell C.E. that she had found the patient and responded angrily when he informed her
that he had located the patient. On or around October 21, 2017, a nurse found one of her patients
smelling of urine. He related that he had asked for help, but his nurse assistant failed to respond.
Appellant used profanity when the charge nurse informed her of the patient’s comments. The
employing establishment also charged her with delay in patient care when around October 20,
2017 she had failed to set up a patient’s lunch tray and had neglected to move a patient after he
requested to return to bed.
In a response dated January 8, 2018, appellant asserted that there was no policy against
switching assignments. She denied using profanity on October 21, 2017, raising her voice on
October 21, 2017, or asking M.V. to leave the facility. Appellant advised that she had just sat
down after locating the patient on October 14, 2017 when C.E. came by and told her that he had
found the patient. She denied failing to provide proper patient care and related that at the meeting
with the police officers, she had not raised her voice or become confrontational.
On February 8, 2018 the employing establishment suspended appellant for 10 days after it
sustained the charges in the proposed suspension. It indicated that it had considered her written
reply to the proposed suspension in reaching its determination.
In a statement dated February 12, 2018, appellant related that before she had arrived at
work on October 21, 2017 she had asked a coworker to switch assignments because she was
uncomfortable working with P.S. P.S. became confrontational after she told her she had changed
assignments even though management had previously allowed staff to switch assignments if both
parties agreed. Appellant asked P.S. and C.E., the charge nurses, to meet with her regarding “their
unprofessional and hostile actions towards me.” P.S. telephoned the police before the meeting.
Appellant maintained that the police report demonstrated that P.S. and C.E. “made false
accusations, slanderous remarks against my character that could have gotten me seriously hurt had
the police officers not have witnessed the meeting themselves and observed me to be
nonconfrontational….” She asserted that P.S. had sexually and verbally harassed her after she
learned of her sexual orientation. Appellant indicated that she had advised management of the
harassment.
In an undated statement received by OWCP on March 6, 2018, appellant related that P.S.
had made sexual advances towards her that had become more aggressive over time. Coworkers
had observed the harassment, but were afraid of retaliation.
The employing establishment, in a March 7, 2018 response, controverted appellant’s claim
contending that she filed her claim after it issued a proposed disciplinary action.
In a report dated March 13, 2018, appellant’s treating psychiatrist, Dr. Elena Ortiz Portillo,
Board-certified in psychiatry, noted that appellant would benefit from being transferred to a
different unit or department with her employer. She placed appellant off work for the period
March 15 through 21, 2018.

3

By decision dated July 23, 2018, OWCP denied appellant’s emotional condition claim,
finding that she had not established a compensable employment factor.
On August 27, 2018 appellant requested reconsideration. In an August 10, 2018 statement,
she related that after she had informed management she had been sexually harassed she had
difficulty performing her employment duties “due to the fear of retaliation, continuing harassment
from upper management, and judgment of others.” Appellant advised that management had not
investigated her complaints of sexual harassment or contacted witnesses. She maintained that
upper management had threatened her job, issued false accusations, suspended her, falsified her
time, changed her work shifts, prevented her from attending classes for her nursing degree, and
written her up for doing her work duties. Appellant cited provisions of the Whistleblower
Protection Act.
By decision dated September 19, 2018, OWCP denied appellant’s request for
reconsideration, finding that she had not raised an argument or submitted evidence sufficient to
warrant reopening her case for further merit review pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.4 To establish an emotional condition in the performance of
duty, the claimant must submit the following: (1) medical evidence establishing an emotional
condition; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or an illness has
some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation.7 When an employee experiences emotional stress in carrying
out his or her employment duties and the medical evidence establishes that the disability resulted
from an emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability results
3

Id.

4

G.G., Docket No. 18-0432 (issued February 12, 2019).

5

B.Y., Docket No. 17-1822 (issued January 18, 2019).

6

28 ECAB 125 (1976).

7

See G.R., Docket No. 18-0893 (issued November 21, 2018).

4

from his or her emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.8
Allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim.9 Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.10 Personal perceptions alone
are insufficient to establish an employment-related emotional condition.11 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.13 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.14
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.15
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.16
Mere perceptions of harassment are not compensable under FECA.17
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and factors. OWCP denied her emotional condition claim because she had
8

Supra note 6.

9

See B.O., Docket No. 17-1986 (issued January 18, 2019).

10

Id.

11

M.R., Docket No. 18-0305 (issued October 18, 2018).

12

A.C., Docket No. 18-0507 (issued November 26, 2018).

13

See M.C., Docket No. 18-0585 (issued February 13, 2019).

14

See S.K., Docket No. 18-1648 (issued March 14, 2019).

15

Id.

16

S.B., Docket No. 18-1113 (issued February 21, 2019).

17

Id.

5

not established a compensable employment factor. The Board must, thus, initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of FECA.18
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Cutler.19 Rather, she has alleged error and abuse in administrative matters
by the employing establishment and harassment by her supervisor.
Appellant alleged that the employing establishment erred in issuing her a 10-day
suspension for inappropriate conduct and carelessness in her work duties. As a general rule, a
claimant’s reaction to administrative or personnel matters falls outside the scope of FECA.20 The
Board has long held that disputes regarding the assignment of work,21 handling of compensation
claims,22 and disciplinary matters,23 are administrative functions of the employing establishment
and, absent error or abuse, are not compensable.24 Absent evidence establishing error or abuse, a
claimant’s disagreement or dislike of such a managerial action is not a compensable factor of
employment.25
Appellant has not provided sufficient evidence to substantiate her allegations of error or
abuse by the employing establishment in an administrative matter. The employing establishment
suspended her for 10 days based on its finding that she had switched assignments without
authorization, used profanity to a charge nurse, asked another nurse to step outside the facility,
failed to notify a charge nurse that she had located a missing patient, and failed to provide timely
patient care. While appellant denied the allegations, she has not submitted any evidence, such as
an admission of error of finding of fault, establishing that the employing establishment acted
unreasonable in administrative matters.26
Appellant also alleged that P.S., a charge nurse, sexually harassed her after she learned of
her sexual orientation. She maintained that the harassment increased over time. Appellant also
contended that P.S. verbally harassed her and retaliated against her after she reported the
harassment to management.

18

See E.S., Docket No. 18-1493 (issued March 6, 2019).

19

Supra note 6.

20

F.C., Docket No. 18-0625 (issued November 15, 2018).

21

See M.C., supra note 13.

22

C.V., Docket No. 18-0580 (issued September 17, 2018).

23

Supra note 5.

24

See G.G., supra note 4.

25

Supra note 18.

26

See B.O., supra note 9.

6

Disputes and incidents alleged as constituting harassment and discrimination by managers
and coworkers may constitute compensable employment factors if they are established as
occurring and arising from appellant’s performance of her regular duties.27 The Board has held
that unfounded perceptions of harassment do not constitute an employment factor.28 For
harassment to give rise to a compensable disability under FECA, there must be evidence that
harassment did in fact occur.29 Appellant has not provided any evidence such as witness statements
supporting her allegations or sexual or verbal harassment by P.S.30 As there is no factual evidence
to support her allegations of sexual or verbal harassment, she has not established a compensable
work factor with respect to those allegations.31
Appellant also contended that P.S. harassed her by telephoning the police on
October 21, 2017. An October 21, 2017 redacted investigative report from the employing
establishment’s police advised that it had dispatched two police officers to attend a meeting at the
request of an individual who believed that she might become hostile. The officers indicated that
appellant became annoyed when the parties discussed past incidents and left the room. The person
who called the officers to the meeting questioned what would happen if she returned with a gun.
The officers cautioned the individual not to make uncorroborated statements or exaggerate
circumstances. While the investigative report does not establish that appellant had become hostile
or threatening during the October 21, 2017 meeting, neither does it establish harassment by
management in requesting that the police attend the meeting. Additionally, complaints concerning
the manner in which a supervisor performs his or her duties as a supervisor, or the manner in which
a supervisor exercises his or her supervisory discretion fall, as a rule, outside the scope of coverage
provided by FECA.32 This principle recognizes that a supervisor or manager in general must be
allowed to perform his or her duties, and that employees will at times dislike the actions taken, but
mere disagreement or dislike of a supervisory or management action will not be actionable, absent
evidence of error or abuse.33
The Board, therefore, finds that appellant has not established a compensable employment
factor under FECA. Appellant has thus not met her burden of proof to establish that she sustained
an emotional or stress-related condition in the performance of duty.34
On appeal appellant contends that she could not concentrate after reporting that she had
been sexually harassed, and that her PTSD negatively affected her work capacity. As explained
27

D.B., Docket No. 18-1025 (issued January 23, 2019).

28

A.C., Docket No. 18-0484 (issued September 7, 2018).

29

See F.C., supra note 20.

30

Id.

31

See M.C., supra note 13; see also S.B., Docket No. 11-0766 (issued October 20, 2011).

32

See G.G., supra note 4.

33

Id.

34

See F.C., supra note 20.

7

above, however, she has not met her burden of proof to substantiate sexual harassment or a
compensable work factor.35 Consequently, as appellant has not established a compensable
employment factor, the Board need not consider the medical evidence of record.36
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.37
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.38
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.39 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.40 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.41
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

35

See S.B., supra note 16.

36

See G.G., supra note 4.

37

5 U.S.C. § 8128(a).

38

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

39

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b.
40

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

41

Id. at § 10.608(b); A.C., Docket No. 17-1616 (issued November 27, 2018).

8

The underlying issue on reconsideration is whether appellant has established an emotional
condition in the performance of duty, as alleged. On reconsideration, she described her challenges
fulfilling the duties of her employment due to her fear of harassment and retaliation. Appellant
maintained that management threated her job, made false accusations against her, changed her
time and work shifts, and prevented her from attending classes. However, while she made
generally allegations against management, she did not discuss a point of law or advance a relevant
legal argument regarding a compensable work factor in this case.42 Appellant referenced the
Whistleblower Protection Act, however, this statute is not relevant to the issue at hand, which is
whether she has established an injury under FECA.43 The Board, therefore, finds that she did not
show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and
relevant legal argument not previously considered. Thus, appellant is not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).44
The Board further finds that appellant did not submit any evidence with her reconsideration
request. As she did not submit relevant and pertinent new evidence, appellant has failed to satisfy
the third requirement under section 10.606(b)(3).45
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by it, or submit relevant
and pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R.
§ 10.608(b), OWCP properly declined to review the merits of appellant’s claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged. The Board further finds that OWCP properly
denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

42

See B.Y., supra note 5.

43

See B.W., Docket No. 18-1415 (issued March 8, 2019) (the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case).
44

See B.Y., supra note 5.

45

See F.C., supra note 20.

9

ORDER
IT IS HEREBY ORDERED THAT the September 19 and July 23, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 23, 2019
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gastonia, NC, Employer
__________________________________________

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

Docket No. 19-1788
Issued: March 17, 2020

Case Submitted on the Record

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

JURISDICTION
On August 27, 2019 appellant filed a timely appeal from an August 15, 2019 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

1
The Board notes that following the August 15, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2014 appellant, then a 48-year-old supervisor/letter carrier, filed a
traumatic injury claim (Form CA-1) alleging that on September 27, 2014 he sustained lower back
and bilateral leg, knee, and foot injuries when a coworker drove off in vehicle as appellant was
opening the back door to get inside while in the performance of duty.3 OWCP accepted the claim
for lumbar and neck sprains. Appellant stopped work on the date of injury, but returned to work
on December 26, 2014. He stopped work again on February 6, 2015, and returned to light-duty
work on July 5, 2016.
On March 12, 2019 appellant filed a claim for a schedule award (Form CA-7) alleging
permanent impairment of his whole body, including his back, legs, and neck.
In a March 15, 2019 development letter, OWCP advised appellant that the evidence of
record was insufficient to establish his schedule award claim as no medical evidence had been
received. It indicated that his claim had been accepted for lumbar and neck sprains. OWCP
requested that appellant provide a medical report from his attending physician which included a
statement that the accepted condition had reached maximum medical improvement (MMI) and an
impairment rating utilizing the appropriate portions of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 OWCP
explained that the The Guides Newsletter, Rating Spinal Nerve Extremity Impairment using the
sixth edition (July/August 2009) (The Guides Newsletter) was to be used to rate spinal impairment.
It afforded appellant 30 days to submit the necessary evidence.
On April 15, 2019 OWCP received a June 1, 2015 impairment rating from Dr. Ian D.
Archibald, a Board-certified orthopedic surgeon, who diagnosed cervical, thoracic, and lumbar
back injury with right leg radicular pain. Dr. Archibald found no major structural problems based
on review of a magnetic resonance imaging (MRI) scan. Appellant reported episodes of right leg
tingling, pain, numbness, and giving way, occasional neck problems, and back issues.
Dr. Archibald opined that appellant’s recovery had plateaued. Using the fifth edition of the
A.M.A., Guides,5 he determined that appellant had eight percent whole person impairment based
on radicular complaints.
In an evaluation for permanent impairment form dated April 10, 2019, Dr. Archibald again
found eight percent permanent impairment of appellant’s back and noted that he had reached MMI.

3

OWCP assigned the present claim OWCP File No. xxxxxx326. Under appellant’s claim in OWCP File No.
xxxxxx269, OWCP accepted left lower and upper extremity conditions, neck and thoracic sprains, and a concussion
due to a November 30, 2005 employment injury. On January 18, 2018 OWCP administratively combined the present
claim with OWCP File No. xxxxxx269, with the latter serving as the master file.
4

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

5

A.M.A., Guides (5th ed. 2001)

2

By decision dated May 31, 2019, OWCP denied appellant’s schedule award claim, finding
that he had not met his burden of proof to establish employment-related permanent impairment of
a scheduled member or function of the body.
On July 10, 2019 appellant requested reconsideration and submitted additional medical
evidence.
Dr. Archibald, in a July 29, 2015 report, determined that appellant had two percent
permanent impairment of the lumbar spine. Using the sixth edition of the A.M.A., Guides, Table
17-4, Lumbar Spine Regional Grid,6 Dr. Archibald explained that appellant had findings consistent
with a chronic lumbar sprain/strain or diagnosis class of 1 which equaled two percent permanent
impairment. Next, he assigned a class 3 for severe problems for functional history, a grade two
for physical examination findings, and a zero grade modifier for clinical studies based on a normal
MRI scan, resulting in no adjustment to the default value of two percent.
In a June 24, 2019 report, Dr. Archibald explained that he had provided an impairment
rating for appellant’s lumbar condition using the sixth edition of the A.M.A., Guides in 2015.
Based on a review of OWCP’s May 31, 2019 decision, which explained that FECA did not provide
for permanent impairment for the spine, and that a schedule award must be based on a spinal nerve
injury which affected the extremities, he concluded that appellant had no permanent impairment
as there was no involvement of his lower extremities. Dr. Archibald related that he had explained
these facts to appellant.
By decision dated August 15, 2019, OWCP denied modification of the May 31, 2019
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

6

A.M.A., Guides 570.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

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

3

It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.11 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence which
shows that the impairment has reached a permanent and fixed state and indicates the date on which
this occurred, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.12
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole.13 Furthermore, the back is specifically excluded from the definition of
organ under FECA.14 The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter
offers an approach to rating spinal nerve impairments consistent with sixth edition methodology.
For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP’s procedures indicate that The Guides Newsletter is to be applied.15 The Board has
recognized the adoption of this methodology for rating extremity impairment, including the use of
The Guides Newsletter, as proper in order to provide a uniform standard applicable to each
claimant for a schedule award for extremity impairment originating in the spine.16
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her federal employment.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In support of his claim, appellant submitted reports from Dr. Archibald. Initially,
Dr. Archibald attempted to rate appellant’s whole body impairment or permanent impairment of
appellant’s lumbar spine. In a June 1, 2015 report, Dr. Archibald utilized the fifth edition of the
A.M.A., Guides and opined that appellant had eight percent whole person permanent impairment.
Whole person impairment ratings, however, are of no probative value as whole person permanent

11

D.F., Docket No. 18-0730 (issued August 21, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

12

Supra note 10 at Chapter 2.808.5 (March 2017); see also B.J., Docket No. 19-0960 (issued October 7, 2019).

13

K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
14
See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziania, 48
ECAB 572 (1997).
15

Supra note 10.

16

E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

17

G.S., supra note 14; Veronica Williams, 56 ECAB 367 (2005).

4

impairment ratings are not permitted under FECA.18 This report lacks probative value as he neither
used the sixth edition of the A.M.A., Guides nor The Guides Newsletter in calculating appellant’s
permanent impairment.19
In a July 29, 2015 report, Dr. Archibald referred to the sixth edition of the A.M.A., Guides,
Table 17-4 on page 470 to find a two percent permanent impairment of the lumbar spine. On an
impairment rating form dated April 10, 2019, Dr. Archibald concluded that appellant had eight
percent permanent impairment of his back. As previously noted neither FECA nor its regulations
provide for a schedule award for impairment to the back.20 Furthermore, the back is specifically
excluded from the definition of organ under FECA.21 Therefore, this report is also insufficient to
establish appellant’s schedule award claim.
In a June 24, 2019 report, Dr. Archibald found that appellant had no permanent impairment
under FECA as there was no involvement of his lower extremities due to a spinal nerve
impairment. As Dr. Archibald’s report negates permanent impairment, it is insufficient to establish
appellant’s schedule award claim.22
As the medical evidence of record does not establish permanent impairment of a scheduled
member or function of the body, in accordance with either the sixth edition of the A.M.A., Guides
or The Guides Newsletter, appellant has not met his burden of proof to establish his schedule award
claim.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure, or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

18

C.S., Docket No. 19-0851 (issued November 18, 2019); Marilyn S. Freeland, 57 ECAB 607 (2006).

19

A.R., Docket No. 17-1504 (issued May 25, 2018).

20

K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004)
21

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziania, 48
ECAB 572 (1997).
22
L.G., Docket No. 16-0792 (issued June 24, 2016) (the Board held that when a medical report finds no permanent
impairment it is insufficient to establish a claim for a schedule award).

5

ORDER
IT IS HEREBY ORDERED THAT the August 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2020
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OCCUPATIONAL HEALTH CLINIC,
Gainesville, FL, Employer
__________________________________________

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

Docket No. 17-0723
Issued: September 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 13, 2017 appellant filed a timely appeal from an October 28, 2016 merit
decision and a January 26, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award benefits effective February 5, 2016
as she refused an offer of suitable work under section 8106(c)(2) of FECA; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. The relevant facts of that
decision are incorporated herein. The facts relevant to the current appeal are set forth below.
On May 29, 2005 appellant, then a 47-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on May 28, 2005 she injured her right hand due to constant repositioning
of a patient with feeding tubes pursuant to the physicians orders
On November 28, 2005 OWCP denied appellant’s claim finding that she had failed to
submit sufficient evidence to establish a diagnosed condition due to the accepted employment
incident. Appellant, through counsel, requested reconsideration on December 1, 2005. By
decision dated January 17, 2006, OWCP found that she had not established a causal relationship
between her bilateral wrist conditions and her employment. Counsel requested reconsideration.
By decision dated June 20, 2006, OWCP denied modification of its prior decision.2 By Order
Remanding Case, dated October 31, 2006,3 the Board remanded appellant’s claim to OWCP for
reassemblage of the record and issuance of an appropriate decision.4
In a decision dated November 3, 2006, OWCP found that appellant had not submitted
sufficient medical evidence to establish a causal relationship between her accepted employment
activities on May 28, 2005 and her right wrist condition. Counsel appealed to the Board. In its
August 6, 2007 decision, the Board affirmed this decision.5
Counsel requested reconsideration on August 5, 2008. On October 23, 2008 OWCP
accepted appellant’s claim for right wrist strain, but found that she had no disability due to this
condition after August 18, 2005. On February 23, 2009 it accepted the additional condition of
volar intercalated segmental instability (VISI) deformity of the right wrist secondary to ligament
injury. On September 15, 2009 counsel requested that a diagnosed emotional condition be
accepted as causally related to her work injury. OWCP denied this request in a January 22, 2010
decision. After counsel requested an oral hearing, in a March 16, 2010 decision, an OWCP
hearing representative found that the issue was not in posture for a decision and remanded the
claim for further development by OWCP.
OWCP accepted appellant’s claim for a temporary aggravation of depression for the
period May 28, 2005 through October 5, 2010. In a decision dated March 29, 2011, it terminated
medical and wage-loss benefits for her mental condition effective October 5, 2010. OWCP
noted that benefits for other accepted conditions were not terminated. Following counsel’s
request for an oral hearing, on January 11, 2012 OWCP’s hearing representative affirmed the
March 29, 2011 decision. Appellant elected FECA benefits from December 16, 2005 through
October 6, 2010 rather than disability retirement benefits. On February 20, 2012 counsel filed on
2

This decision, however, was not in the record at the time of appellant’s initial appeal to the Board.

3

Order Remanding Case, Docket No. 06-1740 (issued October 31, 2006).

4

On September 27, 2006 the Office of Personnel Management granted appellant disability retirement.

5

Docket No. 07-0502 (issued August 6, 2007).

2

her behalf claims for compensation (Form CA-7) for the period beginning October 6, 2010. By
decision dated April 6, 2012, OWCP paid wage-loss benefits beginning October 6, 2010. It
thereafter placed appellant on the periodic compensation rolls.
Dr. Roger D. Powell, a Board-certified orthopedic surgeon, examined appellant on
December 1, 2008 and opined that she was not capable of pulling and pushing heavy patients due
to her wrist condition. He also reported that she had chronic pain due to a herniated disc and
bipolar personality disorder. Dr. Powell found that appellant could use her right hand, but could
not lift patients. He completed a work capacity evaluation on April 14, 2014 and indicated that
she could not perform her usual job and could not work eight hours a day, but could work in a
limited-duty position.
In a note dated April 14, 2014, Dr. Powell noted that appellant had experienced several
nonemployment-related illnesses including cancer. He diagnosed right wrist injury. Dr. Powell
found limited range of motion, mild tenderness over the distal radius, and minimal swelling. He
completed an additional work capacity evaluation and again found that appellant could not work.
Dr. Powell indicated that his restrictions were permanent. He noted that appellant could not
reach for more than one hour, could not reach above the shoulder on the right, and restricted her
repetitive movements of her wrists to 15 minutes within an hour. Dr. Powell further restricted
her pushing and pulling to five pounds on the right side and indicated that she could not climb
ladders.
Dr. Powell completed another report on April 28, 2014 and noted appellant’s ongoing
right wrist conditions. He diagnosed extensor carpi ulnaris (ECU) tenosynovitis. Dr. Powell
indicated that appellant had difficulty with heavy lifting and would be unable to lift 50 pounds.
He found that she could stand eight hours a day, sit eight hours a day, and walk intermittently for
eight hours a day. Dr. Powell reported that appellant could not kneel, bend, or stoop as she could
not push up on the right wrist. He found that she could not push or pull for eight hours a day, but
could climb stairs intermittently. On April 28, 2014 Dr. Powell examined appellant due to pain
on the ulnar aspect of her right wrist and provided a cortisone injection. He provided a second
injection on May 28, 2014 due to her moderate discomfort from ECU tenosynovitis.
In November 14 and December 1, 2014 notes, Dr. James W. Berk, Board-certified in
family and sports medicines, diagnosed lumbar degenerative disc disease with facet arthropathy.
He noted that appellant reported chronic low back pain with moderate-to-severe pain in the low
back. Dr. Berk listed the additional conditions of lung cancer and history of chronic pain
syndrome. He examined appellant and found that she was able to get up from a seated position
without difficulty. Dr. Berk diagnosed L5-S1 facet arthropathy and spinal stenosis L4-5.
On January 8, 2015 the employing establishment offered appellant a permanent full-time
position as an information receptionist. This position required lifting up to five pounds, sitting
up to eight hours a day, standing and walking up to one hour intermittently, and intermittent
reaching above the shoulder and fine manipulation.
Appellant refused the job offer on February 3, 2015 and asserted that she had developed
additional conditions which prevented her from returning to work. These alleged new conditions
included lumbar degenerative disc disease with severe facet arthrosis L5-S1. Appellant alleged

3

that she was not capable of sitting for long periods of time, walking long distances, and driving
two hours to and from the employing establishment. She noted that she was receiving treatment
for kidney stones and had been diagnosed with lung cancer which required periodic treatment.
Dr. Powell completed a duty status report on November 17, 2014 and indicated that
appellant could perform the duties of an information receptionist.
On June 16, 2015 OWCP referred appellant, a statement of accepted facts, and list of
questions for a second opinion evaluation with Dr. George C. Hochreiter, an osteopath.
Dr. Powell completed a work capacity evaluation on June 29, 2015 and provided
restrictions for appellant’s right hand only. He found that appellant could reach above the
shoulder for one hour a day and that she could perform repetitive movements of the wrists for
one hour. Dr. Powell also restricted appellant’s repetitive pushing of the right hand. He noted
that she required a 10-minute break every hour. Dr. Powell reported that appellant underwent
back surgery on May 17, 2015 with additional required restrictions. He completed a note on
June 29, 2015 and again diagnosed ECU tenosynovitis and ulnar wrist pain on the right.
Dr. Powell opined that appellant could work light duty with no long-term repetitive motion and
no lifting more than 10 pounds on the right. He found that she would require frequent breaks.
On June 30, 2015 appellant asserted that it would be difficult for her to travel more than
60 miles to the second opinion examination due to her recent back surgery which had occurred
on May 17, 2015. She requested a second opinion examination with a physician closer to her
residence. OWCP scheduled an additional appointment with Dr. Hochreiter on August 10, 2015.
In a report dated September 16, 2015, Dr. Hochreiter diagnosed postoperative ulnar
shortening and four corner fusion of the right wrist with persistent discomfort. He found that
appellant had continuing symptoms of her right wrist condition including tenderness to palpation
and mildly limited motion. Dr. Hochreiter opined that these conditions were causally related to
the accepted employment injury. He found that appellant was not totally disabled, but did have
right wrist limitations with pinching grip. Dr. Hochreiter also noted that she had other
limitations because of her back. He indicated that appellant would be restricted with lifting,
pushing, and pulling. Dr. Hochreiter found that she could lift up to 30 pounds rarely, 20 pounds
occasionally, and 15 pounds frequently. He determined that appellant could lift 20 pounds up to
three hours in an eight-hour day. Dr. Hochreiter opined that appellant could push and pull 40
pounds up to three hours in an eight-hour day. He completed the work capacity evaluation with
these restrictions and noted that she could work eight hours a day at the light strength level.
On October 30, 2015 the employing establishment again offered appellant the position of
information receptionist at the Lake City Veteran Affairs Medical Center. Appellant’s tour of
duty would be from 8:00 a.m. to 4:30 p.m. or eight hours a day. The position was classified as
sedentary with eight hours of sitting, although she was free to stand or change positions as
frequently as needed. The position could infrequently require lifting file folders up to one pound
in weight, but no pushing, pulling, squatting, reaching, or reaching above the shoulder was
required. The duties were welcoming visitors by greeting them in person or on the telephone,
answering or referring inquiries from visitors and staff, and directing visitors to the clinic areas.
The position did not require use of the fax or copy machine, computer skills, or typing work.

4

In a letter dated November 5, 2015, appellant noted that she had a subsequently arising
back condition and noted difficulty in making the drive from her home to the employing
establishment. By letter dated November 9, 2015, the employing establishment addressed her
concerns noting that the offered position was sedentary, and required lifting only up to one
pound. It noted no pushing, pulling, squatting, reaching, or reaching above the shoulders was
required. The employing establishment also reported that, based on computer calculations, it
was located 33 miles from appellant’s home.
On November 17, 2015 OWCP informed appellant that the offered position of
receptionist was suitable based on the medical evidence. It also noted that the position remained
available. OWCP reviewed appellant’s listed concerns and noted that the lifting requirements of
the position were within the restrictions imposed by both Drs. Powell and Hochreiter. OWCP
further noted that she was capable of working eight hours a day in accordance to both physicians.
It addressed appellant’s alleged additional medical conditions and noted that there was no
medical evidence of record supporting her inability to perform the offered position due to these
conditions. OWCP afforded her 30 days to accept the position or offer her written reasons for
refusal.
On December 11, 2015 appellant provided additional medical evidence in support of her
claim of limitations on sitting and driving. Dr. Laurel Ann Warwicke, a physician Boardcertified in radiation oncology, examined appellant on October 5, 2012 and diagnosed poorly
differentiated squamous cell carcinoma in the lung or stage IIIA nonsmall cell lung cancer. She
recommended chemotherapy.
On September 8, 2015 Dr. Prathima Reddy, a Board-certified physiatrist, examined
appellant due to severe low back pain following a motor vehicle accident which had occurred in
2006. She found limited range of motion in the lumbar spine and diagnosed degenerative lumbar
intervertebral disc and post-laminectomy syndrome in the lumbar area. Dr. Reddy noted that
appellant had a lumbar decompression with fusion at L4-5, and that appellant had persistent
lower back pain due to L5-S1 degenerative disc and facet arthritis.
Appellant submitted a November 11, 2015 chest computerized tomography scan which
demonstrated no evidence of lung cancer recurrence or metastasis. She also submitted a
November 17, 2015 note from a nurse practitioner.
Dr. Robert G. Valentine, a pain management physician, examined appellant on
December 1, 2015 due to low back pain. He diagnosed lumbosacral spondylosis, degenerative
lumbar intervertebral disc, post-laminectomy syndrome, and diabetes.
In a letter dated January 14, 2016, OWCP informed appellant that it found the offered
position of receptionist suitable on November 17, 2015 and had afforded her 30 days to accept
the position or provide her reasons for refusal. It reviewed the evidence submitted since the
November 17, 2015 letter and found that it did not address her disability for work in the offered
position of receptionist due to any diagnosed condition. OWCP informed appellant that the
evidence submitted did not establish that the offered position was not suitable work. It afforded
her an additional 15 days to accept the offered position and noted that if she refused the position
her entitlement to wage-loss compensation and schedule award benefits would be terminated.

5

Appellant responded on January 20, 2016 and noted that the records she submitted were
not exhaustive. She asserted that she was not asked to provide records that specifically
addressed her inability to perform the offered position. Appellant noted that on January 6, 2016
she underwent a nerve ablation on her lower back and that Dr. Rosario suspected bone spurs.
She contended that there were other factors that affected her wage-earning capacity. On
January 31, 2016 appellant again alleged that OWCP was ignoring her other medical conditions
in finding the receptionist position suitable work. She alleged additional conditions including the
inability to see at night, social phobia and anxiety, limitations due to her back pain, drowsiness
due to medications, and heel spurs. Appellant asserted that OWCP had an obligation to develop
the medical evidence to determine all her work restrictions including nonwork-related
conditions.
By decision dated February 4, 2016, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits effective February 5, 2016 as she had
refused suitable work in accordance with 5 U.S.C. § 8106(c)(2). It noted that the decision did
not affect coverage of her medical benefits which were still authorized if needed to treat her
accepted work-related conditions.6
Appellant requested an oral hearing on February 18, 2016. She argued that her benefits
were wrongly terminated as OWCP did not consider her work restrictions due to her back injury.
In a note dated February 17, 2016, Dr. Valentine found that appellant had a great deal of low
back pain which severely limited her activities and her ability to sit. He noted that she was
unable to sit longer than an hour without having to lie down to relieve her back pain. Appellant
also submitted notes from a physical therapist.
Dr. Paul W. Snider, a physician Board-certified in emergency medicine, examined
appellant on October 9, 2006 due to progressive low back pain. He diagnosed lumbar strain.
Appellant underwent a lumbar epidural injection on May 12, 2007. She underwent a lumbar
magnetic resonance imaging (MRI) scan on May 14, 2007. Dr. Steven A. Reid, a Boardcertified neurosurgeon, examined appellant on July 16, 2007 following a September 20, 2006
motor vehicle accident when a sport utility vehicle backed into the passenger door of appellant’s
car. He reviewed a May 14, 2007 lumbar MRI scan which showed a central and left paracentral
disc protrusion at the L5-S1 level with posterior displacement of the descending S1 nerve root.
Appellant reported increased symptoms when sitting or walking. On December 4, 2007 Dr. Reid
recommended an L5-S1 microsurgical hemilaminotomies with discectomy.
In a letter dated March 2, 20016, appellant changed her request for an oral hearing to a
request for a review of the written record. In a June 30, 2016 decision, a hearing representative
found that there was no medical evidence of record supporting her disability for work in the
offered receptionist position and affirmed the December 4, 2016 decision.
On October 11, 2016 appellant requested reconsideration and noted that she underwent a
laminectomy with fusion on May 15, 2015. On October 10, 2016 Dr. Valentine diagnosed
6

In a February 16, 2016 preliminary decision, OWCP found that appellant received a $268.33 overpayment for
the period February 5 through 6, 2015 as her compensation was terminated on February 5, 2016. It administratively
terminated this debt on March 24, 2016.

6

severe low back pain limiting activity and even sitting. He noted that the sitting issue suggested
a discogenic component, compatible with her L5-S1 degenerative disc disease. Dr. Valentine
diagnosed intractable lumbar pain due to degenerative disc disease L5-S1. He opined, “Sitting
increases intradiscal pressure, intensifying pain in a sensitized lumbar disc. Therefore,
[appellant] is unable to tolerate prolonged sitting and is restricted to sitting no more than one
hour before lying down, or 30 minutes before standing. She is unable to engage in prolonged
sitting. This precludes employment in a typical sedentary position unless accommodations can
be made for the previously noted position changes.”
By decision dated October 28, 2016, OWCP denied modification of its prior decisions. It
noted that the offered position allowed appellant to stand or change positions as frequently as
needed. OWCP found that there was no rationalized medical evidence supporting her claim that
the offered position was not suitable.
Appellant requested reconsideration on December 9, 2016. She disagreed with OWCP’s
assessment of the medical evidence and alleged that she would be required to drive four hours
round trip to the employing establishment.
By decision dated January 26, 2017, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that her letter neither raised substantive legal questions nor
included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
It is well settled that once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.7 As OWCP in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), OWCP must establish that she refused an
offer of suitable work. Section 8106(c) of FECA8 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. OWCP’s regulations provide that OWCP shall advise
the employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter the finding of suitability. If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that she has 15 days in which to accept the offered work
without penalty.9
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.10 Section 10.517(a) of FECA’s implementing regulations provide that an
7

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

8

5 U.S.C. § 8106(c)(2).

9

20 C.F.R. § 10.516.

10

D.C., Docket No. 16-1665 (issued April 13, 2017); Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson,
46 ECAB 1002 (1995).

7

employee who refuses or neglects to work after suitable work has been offered or secured, has
the burden of showing that such refusal or failure to work was reasonable or justified.11 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.12
OWCP has the burden of demonstrating that the employee can work, setting forth the
specific restrictions, if any, on the employee’s ability to work, establishing that a position has
been offered within the employee’s work restrictions and setting for the specific job
requirements of the position.13 It is well established that OWCP must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.14 After
termination or modification of benefits clearly warranted, on the basis of the evidence, the
burden for reinstating benefits shifts to the employee.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award benefits effective February 5, 2016
under section 8106(c)(2) of FECA.
OWCP accepted appellant’s claim for right wrist strain and VISI deformity of the right
wrist secondary to ligament injury. On October 30, 2015 the employing establishment offered
her a position as an information receptionist at Lake City Veteran Affairs Medical Center. The
position was classified as sedentary with hours of sitting, although she was free to stand or
change positions as frequently as need. The position required lifting file folders up to one pound
in weight, but no pushing, pulling, squatting, reaching, or reaching above the shoulder was
required. This position was within the restrictions set by both appellant’s attending physician
and OWCP’s referral physician, Dr. Hochreiter for her right arm. However, in his September 16,
2015 report, Dr. Hochreiter noted that appellant had other limitations because of her back.
Dr. Powell also noted opined on June 29, 2015 that she underwent back surgery on May 17, 2015
and that she would require additional restrictions due to her back conditions beyond those
offered for her right arm.
OWCP informed appellant that the position was suitable on November 17, 2015. The
Board notes, however, that the medical evidence clearly reflects that she was receiving medical
treatment for a subsequently arising back condition. Dr. Hochreiter indicated that he had not
reviewed the offered position prior to determining whether appellant was capable of performing
the position.16 Dr. Hochreiter and Dr. Powell had both indicated that she had additional
11

20 C.F.R. § 10.517(a).

12

Id. at § 10.516.

13

See Linda Hilton, 52 ECAB 476 (2001).

14

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

15

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

16

Y.A., 59 ECAB 701 (2008).

8

restrictions due to her back condition. OWCP’s procedures provide that the claimant must be
taken as a whole person. If a nonwork-related condition results in work restrictions, those must
be considered. The Board finds that OWCP failed to establish a suitable work position as it did
not develop the medical evidence to determine whether appellant was capable of performing the
position of receptionist given her subsequently arising back condition. As a penalty provision,
section 8106(c)(2) must be narrowly construed.17 OWCP did not discharge its burden of proof to
justify the termination of appellant’s wage-loss compensation and schedule award benefits.18
CONCLUSION
The Board finds that OWCP failed to meet its burden to terminate appellant’s entitlement
to wage-loss compensation and schedule award benefits effective February 5, 2016 as she
refused an offer of suitable work under section 8106(c)(2) of FECA.
ORDER
IT IS HEREBY ORDERED THAT January 26, 2017 and October 28, 2016 decisions
of Office of Workers’ Compensation Programs are reversed.
Issued: September 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

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

18

Due to the disposition of this issue, it is not necessary for the Board to address the nonmerit issue on appeal.

9