United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McGUIRE AIR FORCE BASE, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1208
Issued: October 24, 2008

Case Submitted on the Record

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

JURISDICTION
On March 18, 2008 appellant filed a timely appeal from the March 21, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied an increased schedule
award. 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
December 19, 2007 merit decision affirming the denial.
ISSUE
The issue is whether appellant has more than a 50 percent permanent impairment of his
left lower extremity.
FACTUAL HISTORY
On the prior appeal,1 the Board found that appellant had more than an eight percent
impairment of his left lower extremity and was therefore entitled to a greater schedule award.
On remand, the Office issued a schedule award for an 11 percent total impairment of the left
1

Docket No. 00-1643 (issued April 3, 2001).

lower extremity. The facts of this case, as set forth in the Board’s prior decision, are hereby
incorporated by reference.2
Appellant underwent a total left knee replacement on March 25, 2002, which the Office
authorized. On February 1, 2004 he filed a claim for an increased schedule award. On June 7,
2004 the Office issued a schedule award for a 50 percent total impairment of the left lower
extremity. In a decision dated April 3, 2006, an Office hearing representative found a conflict in
medical opinion and remanded the case for referral to an impartial medical specialist.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Howard Zeidman, a Board-certified orthopedic surgeon, who examined
appellant on November 16, 2006.
Dr. Zeidman related appellant’s history and current
complaints. He reviewed appellant’s record and described his findings on physical examination.
Dr. Zeidman determined that appellant had a 45 percent impairment of the left lower extremity.
He based this on 40 points for pain, 21 points for range of motion and 25 points for stability,
minus 5 points for extension lag, for a total of 85 points.
The Office medical adviser reviewed Dr. Zeidman’s evaluation and found that the
addition actually amounted to 81 points, which represented a fair result from the total knee
replacement or a 50 percent impairment of the left lower extremity.
In a decision dated March 21, 2007, the Office denied an increased schedule award, as
appellant had already received compensation for a 50 percent impairment of his left lower
extremity.
On October 19, 2007 an Office hearing representative affirmed, finding that
Dr. Zeidman’s opinion, as reviewed by the Office medical adviser, represented the weight of the
medical evidence and established that appellant had no more than a 50 percent total impairment
of his left lower extremity. On appeal, appellant’s attorney argues that Dr. Zeidman did not
properly evaluate the impairment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.4

2

On February 22, 1994 appellant, then a 46-year-old aircraft mechanic, slipped on a patch of ice. The Office
accepted his claim for a torn medial meniscus. He underwent a partial medial meniscectomy and abrasion
chondroplasty of the medial femoral condyle and patella. The Office later accepted left knee osteoarthritis.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

2

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.5 When 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 such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
ANALYSIS
Table 17-33, page 547 of the A.M.A., Guides covers impairment of the lower extremity
due to a total knee replacement. A good result from such surgery represents 37 percent
impairment. A fair result represents 50 percent impairment. A poor result represents 75 percent
impairment. The evaluating physician places the claimant in one of these broad categories based
on the point system described in Table 17-35, page 549.
Under this point system, the presence of pain is rated as mild, moderate or severe. These
are subjective classifications. The evaluating physician must consider the patient’s history and
current complaints and clinical findings. Dr. Zeidman, the Board-certified orthopedic surgeon
and impartial medical specialist, found that appellant’s pain was best described as mild.
Appellant complained of only occasional pain and swelling. He told Dr. Zeidman that these
were “not too bad” and were associated with increased activity, such as long-standing or
walking. Dr. Zeidman assigned 40 points for pain, which placed appellant near the middle of the
mild classification. The Board finds this reasonable.
Points for range of motion are not subjective. The claimant receives one point for every
five degrees of motion. Appellant’s range of motion was 105 degrees, so Dr. Zeidman correctly
assigned 21 points.
As for stability, anteroposterior movement of less than five millimeters is worth 10
points, and mediolateral movement of five degrees or less is worth 15 points. Dr. Zeidman
reported no instability on physical examination, so he correctly assigned 25 points for stability.
From the sum of 86 points, one must subtract points for flexion contracture, extension lag
and alignment deformity. Dr. Zeidman reported no flexion contracture or alignment deformity
(x-rays showed the knee replacement well aligned). He did report an extension lag of five
degrees. This is worth five points.
Appellant’s total score under the point system is 81 points. Under Table 17-33, page 547
of the A.M.A., Guides, this places appellant in the broad “fair results” category (50 to 84 points),
which means he has a 50 percent impairment of his left lower extremity.7 The Board finds that
5

5 U.S.C. § 8123(a).

6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

7

Appellant’s 81 points places him quite high in the broad “fair results” category, only four points away from
“good results.” So even if Dr. Zeidman had assigned the fewest points possible in the subjective mild pain
classification (30), appellant’s left knee replacement would still be found to have given him fair results with no
entitlement to an increased award.

3

Dr. Zeidman’s opinion as the impartial medical specialist is based on a proper history and is
sufficiently well reasoned that it must be accorded special weight in determining the extent of
appellant’s permanent impairment. As appellant has already received compensation for a 50
percent impairment of his left lower extremity, he is entitled to no additional award. The Board
will affirm the Office decisions denying an increased schedule award.
CONCLUSION
The Board finds that appellant has no more than a 50 percent permanent impairment of
his left lower extremity. The weight of the medical evidence establishes that he is not entitled to
an increased schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 19 and March 21, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 24, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 07-2022
Issued: February 25, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant timely appealed a June 14, 2007 merit decision of the Office
of Workers’ Compensation Programs denying modification of the termination of his wage-loss
and schedule award benefits effective June 2, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective June 2, 2006 pursuant to 5 U.S.C. § 8106(c)(2) on the grounds that he refused
an offer of suitable work; and (2) whether the Office properly terminated appellant’s entitlement
to schedule award benefits effective June 2, 2006 on the grounds that he refused an offer of
suitable work.
FACTUAL HISTORY
On December 11, 2004 appellant, then a 54-year-old letter carrier, filed a claim for a right
shoulder and spinal conditions caused by his job. The Office accepted his claim for right

shoulder strain and impingement with partial tear and arthritis and authorized appropriate
surgery, which he underwent on August 25, 2005. Appellant stopped work on December 8, 2004
and did not return. The Office placed him on the periodic rolls. Appellant retired on medical
disability in April 2006.
In an April 5, 2006 work capacity evaluation, Dr. Allen Deutsch, a Board-certified
orthopedic surgeon and appellant’s treating physician, indicated that appellant was able to work
eight hours a day with lifting restrictions of no more than 20 pounds. He advised that such
restrictions were permanent.
On April 6, 2006 the employing establishment offered appellant a modified position as a
city letter carrier effective April 12, 2006. The position required appellant to case mail one to
two hours a day while standing/bending to lift tubs of flats/trays of letters at carrier case up to 20
pounds and drive a government vehicle to deliver mail four to six hours a day.
Appellant declined the position on April 11, 2006, asserting that he had high blood
pressure and diabetes. He also noted that he had elected retirement under the Civil Service
Retirement System effective April 18, 2006.1
In an April 21, 2006 telephone conference regarding appellant’s return to work, the
Office noted that Dr. Deutsch found that appellant was able to work eight hours with restrictions
and described the employing establishment’s April 6, 2006 job offer. Appellant advised that his
application for disability retirement had been approved the Office of Personnel Management
(OPM) and he was not going to accept the job offer. The Office noted that the job offer was still
available and, if appellant was not going to accept the job offer, the Office could terminate his
right to receive compensation for wage loss and a schedule award.
In an April 21, 2006 letter, the Office advised appellant that the offered position was
suitable work within his medical restrictions and the employing establishment confirmed that the
position remained available to him. The Office afforded him 30 days to either accept the offer or
provide good cause for refusal. The Office further advised appellant that he would lose his
entitlement to compensation if he refused suitable work.
In a response, appellant contended that he had medically retired. He stated that
Dr. Deutsch had found him permanently disabled and submitted a May 3, 2006 report by
Dr. Deutsch. Appellant asserted that he could not work because of his other medical conditions.
In his May 3, 2006 report, Dr. Deutsch advised that appellant was released to retirement but not
released to work. He advised that appellant was unable to perform the duties which were
required of him at the employing establishment. Dr. Deutsch stated that appellant was on
permanent restrictions of no lifting, pulling, pushing or reaching which prevented him from
returning to his previous employment.
On May 12, 2006 appellant filed a claim for a schedule award.

1

Appellant’s application was dated April 7, 2006.

2

In a letter dated May 16, 2006, the Office informed appellant that his reasons for refusing
the position were unacceptable. It allotted him 15 days to accept the position or have his
entitlement to wage-loss and schedule award benefits terminated. Appellant did not accept the
position. On June 2, 2006 the employing establishment verified that the offered position
remained available.
By decision dated June 2, 2006, the Office terminated appellant’s entitlement to wageloss and schedule award benefits effective June 2, 2006 on the grounds that he refused an offer of
suitable work under 5 U.S.C. § 8106(c)(2). It found that the weight of the medical evidence
rested with Dr. Deutsch’s April 5, 2006 examination and that appellant did not provide good
cause for refusing the position, which remained open and available to him.
In an August 29, 2006 letter, appellant requested reconsideration. He advised that he
wanted to receive Federal Employees’ Compensation Act benefits and taken off OPM
(retirement) benefits. Appellant also stated that the Office did not address Dr. Deutsch’s May 3,
2006 letter stating that he could not work, or discuss the issue of permanent impairment and his
schedule award claim. He submitted duplicative copies of evidence already of record, including
Dr. Deutsch’s May 3, 2006 letter.
By decision dated June 14, 2007, the Office denied modification of its June 2, 2006
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits. In this case, the Office terminated appellant’s
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.2 To justify termination of
compensation, the Office must show that the work offered was suitable and must inform
appellant of the consequences of refusal to accept such employment.3 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.4
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.5 It is well
established that the Office must consider preexisting and subsequently acquired conditions in

2

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

3

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

4

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

5

20 C.F.R. § 10.500(b).

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the evaluation of suitability of an offered position.6 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.7
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling, the weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination,
the accuracy and completeness of the physician’s knowledge of the facts and medical history,
the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.8 Office procedures state that acceptable reasons for refusing an offered
position include withdrawal of the offer, medical evidence of inability to do the work or travel
to the job or the claimant found other work which fairly and reasonably represents his or her
earning capacity (in which case compensation would be adjusted or terminated based on
actual earnings). Furthermore, if medical reports document a condition which has arisen
since the compensable injury and the condition disables the employee, the job will be
considered unsuitable.9
Section 10.516 of the Code of Federal Regulations states that the Office will advise the
employee that the work offered is suitable and provide 30 days for the employee to accept the
job or present any reasons to counter the Office’s finding of suitability.10 Thus, before
terminating compensation, the Office must review the employee’s proffered reasons for
refusing or neglecting to work.11 If the employee presents such reasons and the Office finds
them unreasonable, the Office will offer the employee an additional 15 days to accept the job
without penalty.12

6

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

7

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

8

See Connie Johns, 44 ECAB 560 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
10

20 C.F.R. § 10.516.

11

See Sandra K. Cummings, 54 ECAB 493 (2003); see also Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992) and 20 C.F.R. § 10.516 which codifies the procedures set forth in Moore.
12

Id.

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ANALYSIS -- ISSUE 1
The Office terminated appellant’s entitlement to wage-loss compensation benefits
effective June 2, 2006 on the grounds that he refused an April 6, 2006 offer of suitable work.
The Office found that the weight of the medical evidence, as represented by Dr. Deutsch’s
April 5, 2006 report, established that the position was within appellant’s physical capabilities. In
an April 5, 2006 report, Dr. Deutsch found that appellant required permanent restrictions of
lifting no more than 20 pounds.
The employing establishment’s April 6, 2006 modified city letter carrier job offer
involved duties of casing mail and driving and delivering the mail. The listed restrictions limited
lifting to one to two hours a day of no more than 20 pounds. The Board notes that these
restrictions are within those set forth by Dr. Deutsch in his April 5, 2006 report. Therefore, the
Board finds that the position offered appellant on April 6, 2006 was suitable work within his
physical restrictions.
The Board further finds that the Office complied with its procedural requirements in
advising appellant that the position was found suitable, providing him with the opportunity to
accept the position or provide his reasons for refusing the job offer and notifying him of the
penalty provision of section 8106(c).13 In its April 21, 2006 letter, the Office notified appellant
of its finding that the modified city letter carrier position was suitable and of the consequences
for not accepting a suitable offer. The Office additionally confirmed that the position remained
available. Appellant rejected the offered position on April 11, 2006 and, during the April 21,
2006 teleconference, asserted that his retirement application had been approved. Retirement,
however, is not considered an acceptable reason for refusing an offer of suitable work.14
Appellant also rejected the position on the grounds that he could not work due to his various
medical conditions (which are presumably preexisting and/or subsequently acquired). However,
he submitted no medical evidence which found him to be totally disabled from his various
medical conditions.
The Office, in its May 16, 2006 letter, advised appellant that it had determined that the
offered position was suitable and based on Dr. Deutsch’s April 5, 2006 restrictions. He had 15
days to accept the position. However, appellant again rejected the position because he had
retired on disability. As noted, retirement is not considered an acceptable reason for refusing an
offer of suitable work.15 Appellant also contended that he could not perform the offered position
as it was not within the restrictions given by Dr. Deutsch in his May 3, 2006 report. In his
May 3, 2006 report, Dr. Deutsch opined that appellant had permanent restrictions of no lifting,
pulling, pushing or reaching and he could not return to his previous employment. He also stated
that appellant was only released to retirement. This report, however, does not address
appellant’s ability to perform the April 6, 2006 offered modified position or provide a sufficient
13

See Bruce Sanborn, 49 ECAB 176 (1997).

14

Robert P. Mitchell, 52 ECAB 116 (2000) (where the claimant chose to receive disability retirement benefits
rather than accept a position offered by the employing establishment).
15

Id.

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explanation with objective evidence to explain why the physician had changed his mind with
regard to appellant’s lifting restriction to show that the April 6, 2006 position was now
unsuitable. Therefore, this report is insufficient to establish appellant’s assertion that the offered
position was beyond his physical capacities. The record is also devoid of any evidence that
appellant is totally disabled from his various other medical conditions. Therefore, appellant has
not established a reasonable basis for refusing the offered position. As the weight of the medical
evidence established that he could perform the duties of the offered position, appellant did not
offer sufficient justification for refusing the position. The Board finds that the Office met its
burden of proof to terminate appellant’s compensation for wage loss effective June 2, 2006, as he
refused an offer of suitable work.16
LEGAL PRECEDENT -- ISSUE 2
Office regulations provide that in a termination under section 8106(c) of the Act a
claimant has no further entitlement to compensation under sections 8105, 8106 and 8107 of the
Act which includes payment of continuing compensation for permanent impairment of a
scheduled member.17 The Board has found that a refusal to accept suitable work constitutes a
bar to receipt of a schedule award for any impairment which may be related to the accepted
employment injury.18
ANALYSIS -- ISSUE 2
Appellant filed a claim for a schedule award on May 12, 2006. The Office terminated
appellant’s entitlement to schedule award compensation benefits effective June 2, 2006 on the
grounds that he refused an offer of suitable work.
In this case, the Office properly found that appellant was not entitled to a schedule award
under 5 U.S.C. § 8107 as he refused an offer of suitable work. With regard to schedule awards,
the Board has held that monetary compensation payable to an employee under section 8107 are
payments made from the Employees’ Compensation Fund and are, therefore, subject to the
penalty provision of section 8106(c).19 The Board, therefore, finds that appellant’s refusal to
accept suitable work constitutes a bar to his receipt of a schedule award for any impairment
which may be related to the accepted employment injuries following the June 2, 2006
termination decision. Additionally, contrary to appellant’s assertions, the Office properly
advised him of the penalty provision of section 8106(c) in its April 21, 2006 letter and
teleconference and in its May 16, 2006 letter.

16

Karen L. Yaeger, 54 ECAB 323 (2003).

17

See 20 C.F.R. § 10.517.

18

Stephen R. Lubin, 43 ECAB 564 (1992).

19

Id. See Sandra A. Sutphen, 49 ECAB 174 (1997).

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CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
disability compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment. The
Board also finds that the Office properly denied appellant’s entitlement to schedule award
compensation as section 8106(c) of the Act serves as a bar to further compensation for disability
arising from the accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 14, 2007 is affirmed.
Issued: February 25, 2008
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 10-295
Issued: September 15, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal of the May 14, 2009 decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration. Because
more than one year has elapsed from the last merit decision dated March 7, 2007 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of his case pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that his request was untimely filed and failed to establish clear evidence of error.

1

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

FACTUAL HISTORY
On March 21, 1993 appellant, then a 52-year-old electronics technician, filed a claim for
an occupational injury. He alleged that he developed chronic myelocytic leukemia due to
exposure to asbestos, mercury, vehicle exhaust fumes, welding and paint fumes, cleaning
chemicals and other toxic materials at work. By decisions dated January 23, 2002, March 19,
2003, May 4, 2004, April 11 and May 18, 2006, March 7, 2007 and March 24, 2008, the Office
denied appellant’s claim.
On March 19, 2009 appellant requested reconsideration. He submitted a copy of a
March 19, 2009 letter to his Congressman requesting that he submit a reconsideration request on
his behalf and a March 19, 2009 inquiry from the Congressman to the Office. No medical
evidence was submitted.
By decision dated May 14, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the request was untimely and failed to establish clear
evidence of error in the last merit decision dated March 7, 2007.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence on the part of the Office in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.2
To establish clear evidence of error, a claimant must submit evidence relevant to the issue, which
was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.3
ANALYSIS
The merits of appellant’s case are not before the Board. His request for reconsideration
was dated March 19, 2009, more than one year after the Office’s March 7, 2007 merit decision
and, therefore, is not timely. The issue to be determined is whether appellant demonstrated clear
evidence of error in the Office’s March 7, 2007 decision.
The Office’s merit decision on March 7, 2007 denied appellant’s claim for leukemia
because the medical evidence was insufficient to establish causal relationship between his
condition and factors of his federal employment. The two March 19, 2009 letters submitted with
appellant’s request for reconsideration from appellant and his Congressman were not medical
evidence addressing the issue of causal relationship. As such, the letters did not raise a

2

20 C.F.R. § 10.607.

3

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

2

substantial question as to the correctness of the Office’s March 7, 2007 merit decision or
establish clear evidence of error.
Because appellant’s untimely request for reconsideration did not demonstrate clear
evidence of error in the March 7, 2007 merit decision, the Office properly denied his untimely
request for reconsideration.
On appeal, appellant argues the merits of his claim and contends that the Office did not
properly develop it. As noted, the March 7, 2007 merit decision is not within the Board’s
jurisdiction. The issue is whether he submitted with his request for reconsideration medical
evidence establishing clear evidence of error in the Office’s March 7, 2007 merit decision.
Appellant submitted no medical evidence. The Office properly denied his untimely
reconsideration request in its May 14, 2009 decision.
CONCLUSION
The Board finds that the Office properly denied his request for reconsideration on the
grounds that it was untimely and failed to demonstrate clear evidence of error in the March 7,
2007 merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2009 is affirmed.
Issued: September 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
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__________________________________________ )
R.M., Appellant

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0342
Issued: July 30, 2020

Case Submitted on the Record

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

JURISDICTION
On December 2, 2019 appellant, through counsel, filed a timely appeal from a July 15,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral carpal
tunnel syndrome (CTS) causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 2, 2016 appellant, then a 60-year-old sheet metal worker, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral CTS due to factors
of his federal employment including assembling approximately 700 helmet brackets a day. He
noted that the assembly work required torqueing small screws. Appellant first became aware of
his condition on January 2, 2015 and realized that it was causally related to his federal employment
on December 17, 2015. He did not immediately stop work.
Appellant was treated in the employing establishment health clinic by Dr. Richard A.
Lippin, Board-certified in occupational medicine, on December 17, 2015 for numbness in both
hands that appellant attributed to repetitive work assembling helmet brackets. Dr. Lippin
diagnosed “bilateral strain injury, overuse syndrome, rule out [CTS], and blindness.” In a
December 17, 2015 work-related injury and illness report, appellant reported that he was building
helmet brackets when his symptoms commenced. Dr. Lippin diagnosed repetitive strain injury
and prescribed a brace. In a work restrictions form, he again diagnosed repetitive strain injury and
returned appellant to work with no excessive repetitive use of hands.
On February 3, 2016 appellant was treated by Christine H. Fick, a registered nurse, for
repetitive strain injury that he attributed to assembling helmet brackets at work.
In a development letter dated December 27, 2016, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the type of factual
and medical evidence needed and provided a questionnaire for his completion. In a separate letter
of the same date, OWCP also requested additional information from the employing establishment.
It afforded both appellant and the employing establishment 30 days to respond.
In an undated narrative statement, appellant indicated that he was responsible for helmet
bracket assembly, which required inserting two screws into a bracket, torqueing them by hand,
inserting a rubber grommet, bagging the bracket and ballistic screw, and stapling and labeling each
bag. He noted performing this job since 2013, nine hours a day initially assembling 750 brackets
per day until January 5, 2016 when the ergonomic team recommended he cut back to 250 brackets
a day. Appellant indicated being visually impaired.
In a statement dated January 20, 2017, W.L., appellant’s supervisor, indicated that
appellant reported his injury on December 17, 2015. He clarified that appellant was required to
assemble 250 brackets a day over a 9-hour day, but he voluntarily worked a 12-hour day with
overtime assembling 700 brackets. Ergonomic audits were performed once a year. Attached was
a position description for a sheet metal worker.
An electromyogram (EMG) dated December 5, 2013 revealed bilateral median
neuropathies at the wrists, moderate left and mild right and suspected mild left C7 radiculopathy.

2

Appellant was evaluated by Dr. John T. Rich, a Board-certified orthopedist, on
December 16, 2013, who diagnosed bilateral CTS. Dr. Rich performed steroid injections into both
carpals and prescribed splints.
Appellant was treated by Dr. Patrick D. Conaboy, Board-certified in family medicine, from
July 1, 2016 to January 30, 2017 for bilateral CTS. He was treated with braces, injections, and
work modification without resolution of symptoms.
On February 2, 2017 Dr. Casey J. Burke, a Board-certified orthopedist, evaluated appellant
for bilateral hand pain, numbness, and tingling occurring from overuse. An x-ray of the wrists
revealed bilateral carpometacarpal (CMC) joint narrowing. Dr. Burke diagnosed CTS and
recommended bilateral CTS releases.
By decision dated March 2, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between his bilateral CTS and
the accepted factors of his federal employment.
On March 23, 2017 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. On February 13, 2017 Dr. Burke performed a right
carpal tunnel release and tenosynovectomy of the flexor tendons and carpal tunnel. He diagnosed
right CTS.
In a letter dated March 21, 2017, Dr. Conaboy indicated that appellant had complaints of
bilateral hand pain for years and failed conservative treatment and underwent CTS releases. He
opined that appellant’s carpal tunnel “could be” attributed to the repetitive use of appellant’s hands
associated with his employment as a sheet metal worker.
By decision dated July 5, 2017 an OWCP hearing representative affirmed the
March 2, 2017 decision.
On October 23 2017 appellant requested reconsideration. In support of his request, he
submitted an October 4, 2017 report from Dr. Conaboy who indicated that appellant was
responsible for assembling helmet brackets which required fine manipulation using screws.
Dr. Conaboy noted that appellant would average 700 helmets a day and opined that “it is believed
that [appellant’s] carpal tunnel can be contributed to this.”
By decision dated January 19, 2018, OWCP denied modification of the July 5, 2017
decision.
On April 2, 2018 appellant requested reconsideration. He submitted a March 1, 2018 note
from Dr. Conaboy who opined that appellant’s job of repetitive fine manipulation directly
contributed to his bilateral CTS.
By decision dated June 29, 2018, OWCP denied modification of the January 19, 2018
decision.
OWCP received a January 18, 2012 report from Dr. Lippin who performed a
preemployment physical and noted that appellant was blind and met the requirements for a job

3

accommodated sheet metal worker. Dr. Lippin noted no history of hand pain. In reports dated
February 28 and March 3, 2017, he advised that appellant was status post right carpal tunnel
release on February 13, 2017 and diagnosed CTS, right upper limb. Dr. Lippin referenced reports
from Dr. Conaboy as supporting causal relationship of the diagnosed CTS and the repetitive use
of appellant’s hands associated with his employment as a sheet metal worker. In a report dated
December 17, 2015, appellant stated that he worked on helmet brackets which required torqueing
small screws down. In reports dated April 11, 2017 and July 16, 2018, Dr. Lippin diagnosed CTS,
bilateral upper limbs, status postsurgery in 2017, pain in the bilateral hands, and legal blindness.
Appellant reported working as a sheet metal worker assembling helmet brackets since 2013 which
caused pain in the dorsum of both hands.
On March 7, 2017 Dr. Burke performed a left carpal tunnel release and diagnosed left CTS.
On April 28, 2017 appellant was reevaluated status post carpal tunnel release on February 13 and
March 7, 2017. Dr. Burke diagnosed bilateral CTS. On October 11, 2018 appellant presented
with symptoms of tenderness of the mid shaft of the right and left thumb metacarpal. Dr. Burke
diagnosed bilateral CTS, pain of the bilateral wrists, mass of the wrist, and osteoarthrosis of the
CMC joint of the thumb. He performed a steroid injection to the bilateral thumb CMC joint.
An EMG performed on November 1, 2018 revealed mild residual median mononeuropathy
at the wrists predominately on the left side with minimal findings on the right.
On December 17, 2018 appellant requested reconsideration. In a report dated
December 28, 2018, Dr. Burke reviewed the most recent EMG findings and diagnosed bilateral
CTS, mass of the wrist, and osteoarthrosis of the CMC joint of the thumb.
On April 15, 2019 Dr. Daniel Shust, a Board-certified family practitioner, examined
appellant for a history of bilateral CTS. Appellant reported performing repetitive hand motions
using a screw driver for nine hours daily, turning approximately 1,500 screws in that time period.
Dr. Shust noted positive Tinel’s and Phalen’s signs and positive EMG pre- and post-surgery which
demonstrated bilateral CTS. He noted that it was well known in medical literature and
occupational health and safety data that repetitive hand motions are risk factors for CTS. Dr. Shust
opined that appellant had CTS due to his employment risk factors.
By decision dated March 15, 2019, OWCP denied modification of the prior decision. On
April 16, 2019 appellant requested reconsideration.
On May 13, 2019 Dr. Burke diagnosed bilateral CTS and mass of the left wrist by EMG
and recommended a hand therapy evaluation. Appellant attended occupational therapy treatment
on May 17, 2019.
By decision dated July 15, 2019, OWCP denied modification of the prior decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.10
ANALYSIS
The Board finds that this case is not in posture for decision.

3

Id.

4

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7
See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
8

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

E.W., supra note 4; Gary L. Fowler, 45 ECAB 365 (1994).

5

In support of his claim, appellant submitted medical reports from his attending physicians
who consistently diagnosed upper extremity conditions including bilateral CTS, for which he
underwent surgery on February 13 and March 7, 2017 with Dr. Burke.
In a March 1, 2018 note, Dr. Conaboy opined that appellant’s job of repetitive fine
manipulation directly contributed to his bilateral CTS. In a subsequent letter, he opined that
appellant’s carpal tunnel could be attributed to the repetitive use of his hands associated with his
employment as a sheet metal worker. In a prior October 23, 2017 report, Dr. Conaboy had noted
the fine manipulation required of appellant’s job working with an average of 700 helmets a day
and noted these duties were sufficient to contribute to the bilateral CTS.
In April 15, 2019, Dr. Shust reported that appellant performed repetitive hand motions
using a screw driver for nine hours daily, turning approximately 1,500 screws during the time
period his CTS developed. He explained that repetitive hand motions, as performed by appellant
in his position, are risk factors for CTS and that based upon appellant’s duties the injury was work
related.
In addition, appellant’s supervisor, W.L., indicated that appellant reported that at the time
he developed his injury he was required to assemble 250 brackets a day over a 9-hour day, but he
voluntarily worked a 12-hour day with overtime assembling 700 brackets. He confirmed that
ergonomic audits were performed once a year and is consistent with appellant’s statement that on
January 5, 2016 the ergonomic team had recommended appellant cut back to 250 brackets a day
due to overuse of his upper extremities.
The Board finds that the medical reports, when read together, contain a complete factual
history confirming the accepted employment factors and accurately note the medical history and
course of treatment for the bilateral CTS for which he underwent surgery. The Board finds that
the opinions, while insufficiently rationalized to meet appellant’s burden of proof, are sufficient,
given the absence of opposing medical evidence, to require further development of the record as
to whether his upper extremity conditions are causally related to the accepted factors of his federal
employment.11
It is well established that, proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. OWCP has an obligation to see that justice is
done.12 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations
at section 10.121.13
The case will therefore be remanded to OWCP for further development of the medical
evidence and a referral to an appropriate medical specialist for an examination and opinion on the
issue of whether appellant sustained bilateral CTS or other upper extremity conditions causally
11

G.M., Docket No. 19-0657 (issued September 13, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
12

S.C., Docket No. 19-0920 (issued September 25, 2019).

13

20 C.F.R. § 10.121.

6

related to the accepted factors of his federal employment. After this and other such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 30, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

7


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

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

Docket No. 11-2010
Issued: April 13, 2012

Case Submitted on the Record

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

JURISDICTION
On September 7, 2011 appellant filed a timely appeal from the June 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied an increased
schedule award. 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 is entitled to an increased schedule award.
FACTUAL HISTORY
On July 29, 2003 appellant, then a 45-year-old postal clerk, filed an occupational disease
claim alleging that the duties of her position caused carpal tunnel syndrome. OWCP accepted
her claim for bilateral carpal tunnel syndrome. Appellant underwent wrist surgeries in 2007.
OWCP also accepted tenosynovitis.
1

5 U.S.C. § 8101 et seq.

On April 29, 2008 OWCP granted a schedule award for a 10 percent impairment of each
upper extremity under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001).
Following further surgeries in 2009 and 2010, appellant claimed an increased schedule
award. OWCP referred her to Dr. Sofia M. Weigel, a Board-certified physiatrist, for an
evaluation of impairment. Using Table 15-23, page 449 of the A.M.A., Guides (6th ed. 2009),
Dr. Weigel found that appellant had a five percent impairment of each upper extremity due to
residual carpal tunnel syndrome, which she identified as the primary impairing diagnosis.
OWCP’s medical adviser reviewed Dr. Weigel’s calculations and agreed that appellant
had a five percent impairment of each upper extremity.
In a decision dated November 30, 2010, OWCP denied appellant’s claim for an increased
schedule award. It noted that she had previously received compensation for a 10 percent
impairment of each upper extremity and Dr. Weigel’s evaluation did not establish greater
impairment.
Appellant submitted an impairment evaluation from Dr. Emile Mathurin, Jr., a Boardcertified physiatrist, who found that appellant had a six percent impairment of each upper
extremity.
Another OWCP medical adviser reviewed Dr. Mathurin’s calculations and found the six
percent rating acceptable, but as before, appellant was compensated for a greater impairment.
In a decision dated June 28, 2011, OWCP denied appellant’s claim for an increased
schedule award. It explained that Dr. Mathurin’s evaluation showed only a six percent
impairment of each upper extremity. As this was less than her 10 percent rating, OWCP found
that appellant was not entitled to additional compensation.
On appeal, appellant noted that her first evaluation was done under the fifth edition of the
A.M.A., Guides, and the second evaluation was done under the sixth -- two different scales for
two different losses. She states that the first surgeries were for bilateral carpal tunnel syndrome,
while the second surgeries were for bilateral carpal tunnel syndrome and tenosynovitis.
Appellant was diagnosed on January 26, 2011 with digital flexor tendinitis, for which she was
now receiving treatment from Dr. Mathurin.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 Such loss or loss of use is known as permanent

2

5 U.S.C. § 8107.

2

impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.3
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome in the
performance of her duties. Under the fifth edition of the A.M.A., Guides, it issued a schedule
award for a 10 percent impairment of each upper extremity due to the accepted medical
condition.
Impairment ratings for carpal tunnel syndrome are now determined using Table 15-23,
page 449 of the sixth edition of the A.M.A., Guides, which became effective May 1, 2009.
Under Table 15-23, impairment ratings range from zero to nine percent of the upper extremity.
Even the most severe carpal tunnel syndrome can never receive an impairment rating that is
more than nine percent.
The practical effect of this limit is that appellant has already received the most
compensation possible for her carpal tunnel syndrome. Evaluations from Dr. Weigel, the
second-opinion physiatrist and Dr. Mathurin, the attending physiatrist, show that her current
impairment is in the moderate range of five or six percent. This evidence does not establish that
appellant is entitled to additional compensation for her carpal tunnel syndrome. Indeed, she has
already received the maximum schedule award allowed. The Board will therefore affirm
OWCP’s June 28, 2011 decision denying appellant’s claim for an increased award.
As OWCP procedures explain, if a claimant who has received a schedule award under a
previous edition of the A.M.A., Guides is found, under the sixth edition, to have a lower
impairment rating than was originally awarded, a finding should be made that the claimant has
no more than the percent impairment originally awarded, that the evidence does not establish an
increased impairment and that OWCP has no basis for declaring an overpayment.4
Appellant adds that her second wrist surgeries were for tenosynovitis in addition to carpal
tunnel syndrome. Diagnosis-based impairment is the primary method of evaluation for the upper
limbs. In most cases only one diagnosis will be appropriate. If a patient has two significant
diagnoses, for instance, rotator cuff and biceps tendinitis, the examiner should use the diagnosis
with the highest causally related impairment rating for the impairment calculation.5 Selecting the
optimal diagnosis requires judgment and experience. Typically one diagnosis will adequately
characterize the impairment and its impact on activities of daily living.6 Dr. Weigel identified
appellant’s carpal tunnel syndrome as the primary impairing condition. In that regard, the Board
3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
4

Id. at Chapter 2.808.7.b(4) (January 2010).

5

A.M.A., Guides 387.

6

Id. at 389.

3

notes that, under Table 15-3, page 395 of the A.M.A., Guides, the highest diagnosis-based rating
a claimant may receive for wrist tendinitis is two percent.7 Thus, it appears Dr. Weigel correctly
identified the primary impairing condition.
As for the diagnosis of digital flexor tendinitis, OWCP has not accepted the diagnosis as
causally related to appellant’s federal employment. Dr. Mathurin mentioned giving her an
injection for the trigger finger of the third digit, but he offered no impairment rating for digital
stenosing tenosynovitis (trigger digit) under the digit regional grid at page 392 of the A.M.A.,
Guides. As the matter remains unadjudicated, the issue is not ripe for Board review.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award for her
accepted carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
7

A lacerated wrist or ruptured tendon maxes out at seven percent.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
GENERAL SERVICES ADMINISTRATION,
NCR PUBLIC BUILDING SERVICE,
Kansas City, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1117
Issued: June 20, 2019

Case Submitted on the Record

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

On May 10, 2018 appellant filed an appeal from a February 6, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 18-1117.
By letter dated May 23, 2017, appellant advised OWCP of a change of address.
By notice dated September 21, 2017, OWCP made a preliminary determination that an
overpayment of $46,152.84 was created for the period from April 1, 2011 through March 4, 2017
because appellant was paid dual compensation under the Federal Employees’ Compensation Act1
(FECA) and from the Social Security Administration (SSA) without an appropriate offset creating
a prohibited dual benefit. It found that he was with fault in the creation of the overpayment because
he accepted a payment that he knew or reasonably should have known was incorrect. OWCP
informed him of his review rights and instructed him to complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.

1

5 U.S.C. § 8101 et seq.

The proposed notice was sent to appellant’s former address and not to the updated address provided
on May 23, 2017.
On October 11, 2017 the preliminary overpayment determination was returned to OWCP
by the U.S. Postal Service, marked as “vacant”, “unable to forward,” and “return to sender.”
On November 6, 2017 OWCP reissued the preliminary September 21, 2017 overpayment
decision and mailed the notice to appellant’s current address of record.
Although properly addressed, based on the information provided by appellant, the U.S.
Postal Service returned OWCP’s November 6, 2017 decision as undeliverable.2 It noted on the
envelope: return to sender, not deliverable as addressed, unable to forward. OWCP received the
undelivered document on November 20, 2017.
By decision dated February 6, 2018, OWCP finalized its preliminary determination finding
that an overpayment of $46,152.84 was created for the period from April 1, 2011 through March 4,
2017 because appellant was paid dual compensation under FECA and SSA without an appropriate
offset. It found that appellant was at fault in the creation of the overpayment and failed to respond
to its preliminary notice. OWCP further determined that the overpayment would be collected by
deducting $300.00 monthly from his continuing compensation benefits.
OWCP’s procedures require that it provide written notice informing the individual of the
existence and amount of the overpayment before seeking recovery or adjusting benefits.3 It must
additionally advise the individual whether he is at fault in the creation of the overpayment,4 his
right to challenge the fact or amount of the overpayment, his right to contest the preliminary
finding of fault in the creation of the overpayment and, if applicable, his right to request a waiver
of recovery of the overpayment.5 OWCP must provide a preliminary finding of overpayment
within 30 days that clearly identifies the reason the overpayment occurred and the basis for any
fault finding.6
On November 6, 2017 OWCP mailed appellant a properly addressed notice of preliminary
overpayment determination. The mailbox rule provides that proper and timely mailing of a
document in the ordinary course of business raises a rebuttable presumption of receipt by the
addressee.7 As a rebuttable presumption, receipt will not be presumed, however, when there is

2

C.C., Docket No. 14-0745 (issued July 29, 2014).

3

20 C.F.R. § 10.431(a).

4

Id. at § 10.431(b).

5

Id. at § 10.431(d).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(June 2009).
7

M.C., Docket No. 12-1778 (issued April 12, 2013); J.M., Docket No. 12-0543 (issued March 12, 2013).

2

evidence of nondelivery, and the presumption may also be rebutted by other evidence that supports
that the addressee did not receive the correspondence.8
The record in this case contains direct evidence of nondelivery of the November 6, 2017
preliminary overpayment determination.9 Although properly addressed to appellant’s last known
address, the U.S. Postal Service returned the notice to OWCP as undeliverable and unable to
forward.10 OWCP received the nondelivered preliminary overpayment determination on
November 20, 2017. Despite receiving the notice as undeliverable, it made no further attempt to
reissue the preliminary determination. The Board finds that the returned envelope constitutes
evidence of nondelivery and rebuts the presumption of receipt.11 Because appellant had not
received the November 6, 2017 preliminary overpayment determination, he was not afforded an
opportunity to challenge the fact and amount of overpayment and to request a waiver of recovery
of the overpayment.12
As OWCP did not comply with the procedural rights afforded to appellant under its
regulations, the Board finds that it improperly issued its final overpayment decision without proper
notice.13 Consequently, the February 6, 2018 decision is hereby set aside.14 Accordingly,

8

Id.

9

J.B., Docket No. 17-1164 (issued September 11, 2017).

10

K.N., Docket No. 16-1412 (issued December 20, 2016).

11

See M.U., Docket No. 09-0526 (issued September 14, 2009).

12

Supra note 9.

13

L.G., Docket No. 17-0004 (issued April 17, 2017).

14
20 C.F.R. §§ 10.431, 10.432; see also K.H., Docket No. 11-0603 (issued September 27, 2011); K.G., Docket No.
08-2135 (issued April 16, 2009).

3

IT IS HEREBY ORDERED THAT the February 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: June 20, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


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

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

Docket No. 15-1011
Issued: August 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 31, 2015 appellant, through counsel, filed a timely appeal from a February 18,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On January 24, 2014 appellant, then a 57-year-old rural carrier, filed an occupational
disease claim alleging that he sustained bilateral torn rotator cuffs in the performance of duty.

1

5 U.S.C. § 8101 et seq.

He noted becoming aware of his condition on December 12, 2013. Appellant stopped work on
January 22, 2014.
In an undated statement, appellant advised that his shoulder pain began in October 2013
while loading trays of mail and lifting heavy parcels into his postal vehicle. He noted that since
that time he continued to work six days per week. However, by December 2, 2013 his pain was
unbearable. Appellant advised that he repeatedly told his supervisors that he needed to take off
work for a doctor’s appointment, but his request was ignored. He noted that he became aware
that his condition was related to his federal employment on January 13, 2014 after his physician
informed him that his rotator cuffs tore over a period of several months.
By letter dated February 7, 2014, OWCP notified appellant that evidence was insufficient
to establish his claim. He was instructed to return a questionnaire substantiating the factual
element of his claim and was advised of the type of medical evidence needed
In a February 9, 2014 statement, appellant attributed his condition to stacking and loading
heavy trays on October 15, 2013. He noted that he felt a burning pain in both shoulders each
time he lifted trays and parcels. Appellant advised that after the incident he requested leave to
see his physician, but his requests were denied. He noted that he continued to work six days a
week following the incident and that lifting trays, loading heavy parcels, driving his postal
vehicle, and other job-related duties contributed to his condition.
On December 23, 2013 Dr. Steven Jones, Board-certified in orthopedic surgery, advised
that appellant related that he had been experiencing significant pain since October, but he did not
indicate a specific injury. He noted that appellant related that he had pain prior to that, but it
became intensely worse. On physical examination of the right shoulder Dr. Jones found
subacromial space tenderness, mild tenderness in the acromioclavicular (AC) joint, decreased
power with external rotation, impingement, and rotator cuff tenderness. Examination of the left
shoulder revealed AC joint tenderness, subacromial space tenderness, good passive range of
motion, decreased active range of motion, and rotator cuff impingement-type findings. Shoulder
x-rays revealed type III acromial osteophyte of the left, AC joint arthritis in both shoulders, and
subacromial osteophytes suggestive of rotator cuff tears in both shoulders. Dr. Jones assessed
rotator cuff impingement, tendinitis, and possible rotator cuff tear.
In January 2, 2014 reports, Dr. William Conrad, a Board-certified diagnostic radiologist,
advised that a right shoulder magnetic resonance imaging (MRI) scan revealed a full thickness
mildly retracted supraspinatus tear, infraspinatus tendinopathy with intrasubstance tear and
myotendinous cyst, thinned biceps tendon with probable split tear and medial subluxation into
partially torn superior fibers of the subscapularis tendon, and moderate AC joint degenerative
change. An MRI scan of the left shoulder revealed a full thickness retracted supraspinatus tear,
medially dislocated biceps tendon with a moderate grade partial tear of the subscapularis tendon,
infraspinatus tendinopathy tear, mild glenohumeral and moderate AC joint degenerative changes.
Dr. Jones, on January 13, 2014, advised that MRI scans of both shoulders revealed
bilateral rotator cuff tears, with the left being a little worse with 3.5 cm of retraction versus 3.0
centimeters in the right side. He noted that appellant required surgery on both shoulders and that
he recommended one surgery at a time with each requiring six months of healing.

2

In a February 19, 2014 surgical report, Dr. Jones advised that appellant underwent an
arthroscopic rotator cuff repair, arthroscopic biceps tenodesis, and arthroscopic anterior
acromionectomy. On February 20, 2014 he advised that appellant was experiencing pain after
surgery and recommended that appellant begin early movement. Dr. Jones continued to note
appellant’s status.
On February 22, 2014 a supervisor for the employing establishment advised that
appellant only worked for three days after being transferred to his current duty station on
November 29, 2013. She stated that initially appellant reported a problem with high blood
pressure and later reported his shoulder problem. The supervisor noted that appellant was not at
work on December 2, 2013, the date he listed as when he became aware of his condition.
By decision dated May 5, 2014, OWCP denied the claim because medical evidence was
insufficient to establish that appellant’s conditions were causally related to the accepted work
duties.
By letter dated May 8, 2014, appellant, through counsel, requested a telephone hearing.
In a May 3, 2014 report, Dr. Jones advised that he first saw appellant on December 23,
2013 for bilateral shoulder pain. He stated that appellant did not indicate a specific injury at that
time. Dr. Jones noted that appellant wrote on the history form that the injury occurred in
October, but failed to describe how it happened. He acknowledged that appellant currently
claimed that he had a specific injury on October 15, 2013 while lifting trays and parcels of mail
weighing up to 75 pounds. Dr. Jones noted that appellant did not create any record of his
incident or report the injury to his supervisor. He opined that a rotator cuff tear could certainly
come by chronically deficient rotator cuffs over time and become aggravated by heavy lifting, a
fall, or any other activity that might put stress on the shoulder. Dr. Jones further opined that
medically there was no way to determine the causation of rotator cuff tear by evidence that can
be found by diagnostic testing or surgery. He noted that the cause of a rotator cuff tear is usually
determined by history and reiterated that the history as given by appellant had been provided.
On December 2, 2014 an oral hearing took place. Counsel argued that Dr. Jones’ May 3,
2014 report was sufficient to establish causation in the claim. He also contended that there was a
specific injury on October 15, 2013. The hearing representative noted the difference between an
occupational disease and traumatic injury and advised appellant to file a Form CA-1 if he was
alleging a traumatic injury claim. Images from a July 30, 2014 right shoulder rotator cuff repair
were submitted. Several medical reports unrelated to the claimed conditions were also
submitted.
By decision dated February 18, 2015, an OWCP hearing representative affirmed the
May 5, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

3

limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS
Appellant claimed that he sustained bilateral rotator cuff tears as a result of loading trays
and lifting heavy parcels. The record makes clear that appellant loaded trays and lifted parcels of
mail as a part of his job. However, the medical evidence is insufficient to establish that the
medical condition was causally related to the accepted work conditions.
In a May 3, 2014 report, Dr. Jones advised that appellant did not indicate a specific injury
initially, but later claimed that he was injured on October 15, 2013 lifting trays and heavy parcels
of mail. Dr. Jones stated that a rotator cuff tear could certainly be aggravated by heavy lifting, a
fall, or any other activity that might put stress on the shoulder. Dr. Jones further opined that
medically there was no way to determine the cause of rotator cuff tear by evidence found by
diagnostic testing or surgery. He noted that the cause of a rotator cuff tear is usually determined
by history. Dr. Jones’ May 3, 2014 report is insufficient to discharge appellant’s burden of
proof. Although he opined that a rotator cuff tear “could certainly” result from heavy lifting, his
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

4

support for causal relationship is equivocal at best. The Board has held that medical opinions
which are speculative or equivocal are of diminished probative value.7 Furthermore, it appears
that Dr. Jones was referencing a traumatic incident instead of work factors occurring over a
period of time. Appellant’s claim is for an occupational disease and not a traumatic injury.8
Other reports by Dr. Jones are also insufficient to discharge appellant’s burden of proof as they
do not address causal relationship.9
Multiple diagnostic and disability status reports were submitted. However, they are
insufficient to discharge appellant’s burden of proof as they do not offer an opinion on causal
relationship.10 There is no other medical evidence of record addressing how appellant’s work
factors caused or contributed to a diagnosed medical condition.
Consequently, appellant has offered insufficient medical evidence to establish his claim.
As noted, causal relationship is a medical question that must be established by probative medical
opinion from a physician.11 The physician must accurately describe appellant’s work duties and
medically explain the pathophysiological process by which these duties would have caused or
aggravated his condition.12 Because appellant has not provided such medical opinion evidence
in this case, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

7

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
8

See 20 C.F.R. § 10.5(q) (an occupational disease or illness means a condition produced by the work
environment over a period longer than a single workday or shift); 20 C.F.R. § 10.5(ee) (a traumatic injury means a
condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday
or shift). As noted, infra, on December 2, 2014 a hearing representative advised appellant to file a CA-1 if he was
alleging a traumatic injury claim.
9

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical opinions that do not state an opinion on causal relationship are
of little probative value).
10

Id.

11

See supra note 5.

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket
No. 11-237 (issued September 9, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Asheville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-409
Issued: October 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On December 21, 2011 appellant filed a timely appeal of a July 20, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision suspending her compensation benefits.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to suspend appellant’s compensation
benefits in accordance with 5 U.S.C. § 8123 on the grounds that she refused to cooperate with a
scheduled medical examination.
On appeal, appellant contends that OWCP has failed to pay her retroactively for the
period that her compensation was suspended as she underwent a second opinion medical
examination on December 2, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 6, 1988 appellant, then a 34-year-old secretary/medical clerk, filed a traumatic
injury claim alleging injury to her neck and back that day when she slipped and fell on a wet
floor. OWCP accepted the claim for chronic low back pain, chronic low back strain, myalgia
and myositis, lumbago and low back strain myofascial pain syndrome. By letter dated
October 16, 1991, it placed appellant on the periodic rolls effective September 12, 1988.2
On May 22, 2007 appellant accepted an employing establishment limited-duty job offer
as an information receptionist working four hours per day. She started the position on July 23,
2007, stopped on October 19, 2007 and did not return. OWCP accepted appellant’s recurrence
claim and placed her on the periodic rolls for temporary total disability effective
October 28, 2007.
By letter dated February 9, 2010, OWCP informed appellant that an appointment for a
second opinion evaluation had been scheduled with Dr. C. Sanford Carlson, a Board-certified
orthopedic surgeon, for March 2, 2010 at 11:30 a.m. On April 14, 2010 it was informed that she
did not show up for the appointment with Dr. Carlson.
On April 15, 20103 OWCP informed appellant that a second opinion examination was
necessary and would be scheduled. It informed her that she had not shown up for a previously
scheduled appointment on March 2, 2010. Appellant was advised that her full cooperation with
the examination was required or her right to compensation would be suspended until the refusal
stopped.
By letter dated May 19, 2010, OWCP informed appellant that an appointment for a
second opinion evaluation had been scheduled with Dr. Sidney Wallace, a Board-certified
orthopedic surgeon, on July 14, 2010 at 1:00 p.m.
In a June 10, 2010 letter, Dr. Jay H. Warrick, a treating Board-certified internist and
rheumatologist, diagnosed fibromyalgia and myofascial pain syndromes, which were totally
disabling. He found that appellant was disabled from all work. Dr. Warrick stated that OWCP’s
requests for additional information and evaluations by other physicians caused her significant
anxiety and stress, which exacerbated her physical symptoms. He stated that requiring appellant
to undergo further diagnostic testing or evaluation was potentially counter-productive and
inappropriate due to the fact that the condition had been established for more than 20 years.
On July 16, 2010 the scheduling agency informed OWCP that appellant did not attend the
scheduled appointment with Dr. Wallace.
On July 26, 2010 OWCP received the June 28, 2010 report of Dr. Richard H. Mays, a
treating Board-certified family practitioner, who diagnosed fibromyalgia with myofascial pain

2

Appellant resigned from the employing establishment effective September 12, 1988.

3

The letter is undated, but both the received date and author date are noted as April 15, 2010.

2

syndrome and chronic back as the result of a July 1988 fall. Dr. Mays concluded that appellant
was totally disabled and was permanently unemployable.
In a letter dated July 27, 2010, OWCP proposed to suspend appellant’s compensation
benefits on the grounds that she failed to appear for the examination scheduled with Dr. Carlson
on March 2, 2010 or an examination scheduled with Dr. Wallace on July 14, 2010. Appellant
was informed of the penalty provision of section 8123(d) of FECA and was given 14 days to
provide in writing good cause for her failure to appear. She was also advised to contact OWCP
immediately if she intended to report for a rescheduled examination with Dr. Wallace.
By letter dated August 23, 2010, appellant stated that she did not attend the July 14, 2010
appointment as it conflicted with a previously scheduled dental appointment. She contended that
the March 2, 2010 appointment was not valid as she never received a letter informing her of the
appointment. Appellant also argued that the July 14, 2010 scheduled appointment was invalid as
the notification she received contained no signature or date.
On September 1, 2010 OWCP informed appellant that another appointment for a second
opinion evaluation had been rescheduled with Dr. Wallace for November 3, 2010 at 1:00 p.m.
On November 4, 2010 it was informed that she did not show up for her November 3, 2010
appointment with Dr. Wallace.
On December 17, 2010 OWCP issued a notice proposing to suspend appellant’s
compensation on the grounds that she failed to appear for the examination scheduled with
Dr. Wallace on November 3, 2010. Appellant was informed of the penalty provision of section
8123(d) of FECA and was given 14 days to provide in writing good cause for her failure to
appear. She was also advised to contact OWCP immediately if she intended to report for a
rescheduled examination with Dr. Wallace.
In a January 7, 2011 decision, OWCP finalized the proposed suspension effective
January 16, 2011. It found that appellant did not attend the appointment scheduled for
November 3, 2010 or provide good cause for her failure to appear. OWCP informed her that
wage-loss compensation would be reinstated after she attended and fully cooperated with an
examination.
In a letter dated January 11, 2011, appellant stated that she had a conflicting medical
appointment on November 3, 2010 and was sick that day. She contended that the letters sent by
OWCP regarding the second opinion referrals were invalid. Appellant submitted a work/school
excuse from Dr. Mays stating that he examined her on November 3, 2010.
On February 4, 2011 appellant requested an oral hearing before an OWCP hearing
representative that was held on May 4, 2011.
On February 4, 2011 Dr. Mays wrote a letter stating that he was appellant’s treating
physician and he saw her on November 3, 2010 for severe pain. According to appellant, her pain
was so severe that it “was almost impossible for her to walk to get into the doctor’s
appointment.”

3

In a second February 4, 2011 letter, Dr. Mays stated that he saw appellant that day for
fibromyalgia with myofascial pain syndrome and chronic back pain due to a fall, with fatigability
and chronic malaise. He opined that appellant was totally disabled and unemployable for the
remainder of her life.
In a letter dated May 24, 2011, appellant argued that she should not be required to
undergo a second opinion evaluation as she has been disabled for over 22 years. She also
contended that no further medical examination was required as both her attending physicians,
Drs. Mays and Warrick, certified her to be permanently and totally disabled from any type of
work.
By decision dated July 20, 2011, an OWCP hearing representative affirmed the
January 7, 2011 OWCP decision, finding that appellant did not attend the medical examinations
scheduled with Dr. Wallace or provide acceptable reasons for her failure to attend.4 It found
appellant’s reason for missing her appointment on November 3, 2010 unacceptable as there was
no evidence in the record reflecting when the November 3, 2010 appointment with Dr. May was
made or that she attempted to resolve the conflicting medical appointments. The hearing
representative also found it notable that she kept her appointment with Dr. May, but was too
unwell to attend the appointment with Dr. Wallace that same day.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.5
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.6
OWCP’s federal regulations at section 10.320 provide that a claimant must submit to
examination by a qualified physician as often and at such time and places as OWCP considers
reasonably necessary.7 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations
provide that, if an employee refused to submit to or obstructs a directed medical examination, his
or her compensation is suspended until the refusal or obstruction ceases.8 However, before
OWCP may invoke these provisions, the employee is provided a period of 14 days within which

4

The Board notes that appellant has submitted new evidence with her appeal to the Board. However, the Board
may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
5

5 U.S.C. § 8123(a).

6

C.S., Docket No. 09-1597 (issued February 4, 2010); J.T., supra note 4; Dana D. Hudson, 57 ECAB 298 (2006);
James C. Talbert, 42 ECAB 974 (1991).
7

20 C.F.R. § 10.320; see J.C., Docket No. 09-609 (issued January 5, 2010); J.T., supra note 4; Walter L. Jordan,
57 ECAB 218 (2005).
8

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323. See J.C., id.; Sharon Handy, 57 ECAB 446 (2006); Maura D. Fuller
(Judson H. Fuller), 56 ECAB 383 (2005).

4

to present in writing his or her reasons for the refusal or obstruction.9 If good cause for the
refusal or obstruction is not established entitlement to compensation is suspended in accordance
with section 8123 of FECA.10
ANALYSIS
The Board finds that appellant refused to submit to the scheduled November 3, 2010
second opinion examination with Dr. Wallace. OWCP properly suspended appellant’s
compensation benefits pursuant to section 8123 of FECA. It properly exercised its discretion
when it directed appellant to attend a second opinion evaluation with Dr. Wallace, a Boardcertified orthopedic surgeon to obtain an assessment of her employment-related condition,
medical treatment and continuing disability.
By letter September 1, 2010, OWCP informed appellant that a second opinion evaluation
was needed and that one had been rescheduled with Dr. Wallace for November 3, 2010. It sent
that notice to her address of record.
Appellant did not attend the scheduled appointment on November 3, 2010. In a
December 17, 2010 notice, OWCP afforded her 14 days to provide good cause in writing for her
failure to attend the scheduled November 3, 2010 examination. Appellant was advised of the
penalty provision of section 8123(d) of FECA for failure to attend such an examination.
The Board has recognized OWCP’s responsibility in developing claims.11 Section 8123
authorizes an employee who claims disability as a result of federal employment to undergo a
physical examination as OWCP deems necessary. The determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners
are matters within the province and discretion of OWCP. The only limitation on this authority is
that of reasonableness.12 The referral to an appropriate specialist in appellant’s area at OWCP’s
expense was not unreasonable. In this case, OWCP did not abuse its discretion by referring
appellant for a second opinion examination to assess the residuals and disability related to her
employment-related conditions.
The Board finds that appellant failed to attend the scheduled medical examination on
November 3, 2010 and did not provide good cause for her failure within 14 days of the
December 17, 2010 notice of proposed suspension. Appellant stated that she did not attend the
November 3, 2010 appointment because she was ill and saw Dr. May that day. However, she
submitted no evidence documenting the time of the November 3, 2010 medical appointment with
Dr. May or when she scheduled her medical appointment with Dr. May or that she attempted to
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.13(d) (September 2010). See J.C., supra note 7; Dana D. Hudson, supra note 6; Lynn C. Huber, 54 ECAB
281 (2002).
10

See J.C., supra note 7; Dana D. Hudson, id.; Scott R. Walsh, 56 ECAB 353 (2005).

11

Scott R. Walsh, id.

12

20 C.F.R. § 10.320; see J.T., supra note 6.

5

reschedule the appointment with Dr. Wallace. The only evidence submitted was a note from
Dr. May that she saw him on November 3, 2010. OWCP’s letter sent to appellant informing her
of the second opinion appointments contained a telephone number to contact if there was a
problem. As noted, there is no evidence that she contacted OWCP to either cancel or reschedule
the second opinion appointments. Appellant also contended that the letter scheduling the
examination was invalid as it was not signed; but the letters were sent by OWCP in the ordinary
course of business and those letters were on OWCP letterhead.13 They were valid and
constituted a reasonable exercise of OWCP’s discretion under section 8123 of FECA to schedule
medical appointments. The Board finds that OWCP properly suspended her compensation
benefits effective January 16, 2011.14
In a May 24, 2011 letter, appellant argued that a second opinion evaluation was not
appropriate as no medical issues existed and as she had been found totally disabled by her
attending physicians, Dr. May and Dr Warrick. She also argued that, according to OWCP
procedure, a referral for a second opinion evaluation was inappropriate as evaluations by
physicians other than attending physicians is only required when determining an employee’s
permanent impairment, ability to return to light-duty or full-duty work or other issues.
The Board addressed similar arguments regarding the appropriateness of OWCP-directed
medical examinations in Eva M. Morgan15 and Donald E. Ewals.16 The Board rejected similar
arguments in both cases and held that OWCP may require a beneficiary to submit to
examinations by an OWCP referral physician as frequently and at such times and places that
OWCP deems to be reasonably necessary. The Board has reviewed the brief treatment notes of
Drs. May and Warrick which found appellant to be totally and permanently disabled from all
work. The physicians failed to provide any supporting rationale, physical findings or adequate
explanation as to why appellant was permanently disabled. The reports of record are not
sufficient justification for appellant’s refusal to cooperate with the examination arranged by
OWCP with Dr. Wallace.
On appeal, appellant contends that, although she underwent an examination on
December 11, 2010, OWCP has failed to pay compensation for the period suspended. The Board
has held that compensation for the period in which the employee refuses to undergo a reasonably
requested medical examination by OWCP is forfeited.17 As appellant refused to attend the
scheduled examination, OWCP properly found that she forfeited compensation effective
January 16, 2011 for the period of the obstruction. Based upon the forfeiture of her
13

See Joseph R. Giallanza, 55 ECAB 186 (2003).

14

J.T., supra note 6.

15

47 ECAB 400 (1996).

16

51 ECAB 428 (2000).

17

Maura D. Fuller (Judson H. Fuller), supra note 8; William G. Saviolidis, 37 ECAB 174 (1985). The employee
will forfeit compensation otherwise paid or payable under FECA for the period of the refusal or obstruction and any
compensation already paid for that period will be declared an overpayment and will be subject to recovery pursuant
to 5 U.S.C. § 8129. 20 C.F.R. § 10.323 (the penalties for failing to report for or obstructing a second opinion or
referee).

6

compensation benefits for that period, OWCP properly denied her request for retroactive
compensation during this period.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective January 16, 2011, as she failed to attend the scheduled medical examination without
showing good cause for her refusal.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 20, 2011 is affirmed.
Issued: October 11, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

18

When the claimant actually reports for the examination, payment retroactive to the date on which the claimant
agreed to attend the examination may be made. E.B., 59 ECAB 298 (2008); C.S., Docket No. 11-1366 (issued
December 12, 2011).

7