United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SIERRA NEVADA HEALTHCARE SYSTEM,
Reno, NV, Employer
__________________________________________

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

Docket No. 16-1476
Issued: December 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2016 appellant filed a timely appeal from a May 10, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision dated December 18, 2014, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2014 appellant, then a 57-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that she strained a muscle in her neck and upper back when assisting
a nurse move a patient from a bed to a chair. She did not stop work.
Appellant was treated by Dr. Charles Romick, a Board-certified family practitioner, on
June 26, July 1, 9, and 14, 2014 for neck, right shoulder, and upper back pain. She reported that
on June 24, 2014 she assisted a nurse transfer a patient from a bed to a chair and believed that
this action caused her problem. Dr. Romick diagnosed neck and thoracic sprain and
recommended physical therapy. He opined that he could not directly relate appellant’s condition
to the work activity described. Appellant was evaluated for physical therapy on July 22, 2014.
On October 6, 2014 appellant was treated by Dr. Kenneth Pitman, Board-certified in pain
medicine, for right neck, shoulder, and scapula pain. Appellant reported that on June 24, 2016
she was assisting a patient from a standing to a sitting position and injured her shoulder and
cervical area. Dr. Pitman diagnosed chronic neck pain, status post lifting injury at work on
June 24, 2014, remote history of motor vehicle neck injury, and bilateral radiculopathy.
By letter dated November 18, 2014, OWCP advised appellant that her claim was
originally received as a simple, uncontroverted case which resulted in minimal or no time loss
from work. It indicated that appellant’s claim was administratively handled to allow medical
payments up to $1,500.00, but the merits of the claim had not been formally adjudicated. OWCP
advised that because a claim for wage loss was received her claim would be formally
adjudicated. It requested that appellant submit additional information including a comprehensive
medical report from her treating physician which included a reasoned explanation as to how the
specific work factors or incidents identified by appellant had contributed to her claimed neck and
upper back injury.
Appellant submitted reports from Dr. Romick dated July 23 to October 2, 2014 who
treated her in follow-up for neck, right shoulder, and upper back pain. Appellant reported that on
June 24, 2014 she assisted a nurse transfer a patient from a bed to a Geri chair. She did not recall
any pain to these areas prior to this time. Appellant noted having exacerbation of pain after
physical therapy and after four treatments her therapy was put on hold. Dr. Romick noted
tenderness of the right neck, right scapula and trapezius, and intact strength and sensation. He
diagnosed neck and thoracic sprain. Dr. Romick opined that he could not directly relate
appellant’s problems to the work activity described as she performs these activities on a daily
basis as part of her position. A magnetic resonance imaging (MRI) scan which revealed C5-6
and C6-7 degenerative disc space narrowing with degenerative retrolisthesis and C5-6 and C6-7
moderate disc osteophyte complex.
By decision dated December 18, 2014, OWCP denied appellant’s claim as the medical
evidence did not support that she had a medical condition causally related to the accepted factors
of her employment incident.
In an appeal form dated March 6, 2015, appellant requested an oral hearing before an
OWCP hearing representative. She submitted a February 7, 2015 witness statement from a

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registered nurse who assisted appellant transfer the patient on June 24, 2014. Appellant
indicated that the patient sat down slowly into the recliner chair while holding on to appellant
landing heavily in the chair and she was jolted.
Appellant submitted clinical summaries from an unknown health care provider dated
February 5, and 23, and April 20, 2015 where appellant was seen in follow up after epidural
steroid block and facet injections. She reported the pain was diminished 10 to 20 percent. The
provider diagnosed chronic neck pain, cervicogenic headache, degeneration of the intervertebral
disc, cervicothoracic, cervical disc displacement, cervical spinal stenosis, and cervical radiculitis.
By decision dated July 31, 2015, OWCP denied appellant’s request for an oral hearing. It
found that the request was untimely filed. Appellant was informed that her case had been
considered in relation to the issues involved, and that the request was further denied for the
reason that the issues in this case could equally well be addressed by requesting reconsideration
from OWCP and submitting evidence not previously considered.
In an appeal request form dated February 16, 2016, and received on February 23, 2016,
appellant requested reconsideration. She submitted reports from Dr. Romick dated June 26 to
October 2, 2014 and a June 15, 2015 report from a nonspecific health care provider, all
previously of record.
By decision dated May 10, 2016, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.2 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.3 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.4
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP must reopen the case for merit review.5

2

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a).

4

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).

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To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,6 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.7 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.9 As appellant’s request for
reconsideration was not received by OWCP until February 23, 2016, more than one year after
issuance of the last merit decision by OWCP on December 18, 2014, it was untimely filed.
Consequently, she must demonstrate clear evidence of error by OWCP denying her claim for
compensation.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP. In an appeal request form dated February 16, 2016 and received on February 23, 2016,
appellant disagreed with OWCP’s decision denying her claim for compensation. The Board
notes that, while appellant addressed her disagreement with OWCP’s decision denying her claim
for a traumatic injury, her disagreement does not demonstrate clear evidence of error as it does
not raise a substantial question as to the correctness of OWCP’s most recent merit decision
which denied appellant’s claim for a traumatic injury.
The Board notes that the underlying issue is medical in nature and that on reconsideration
appellant did not submit additional medical evidence. The Board notes that clear evidence of
error is intended to represent a difficult standard. The submission of a detailed well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.10
Appellant submitted reports from Dr. Romick dated June 26 to October 2, 2014 and a
June 15, 2015 report from an unidentified health care provider. OWCP had previously
6

Dean D. Beets, 43 ECAB 1153 (1992).

7

Leona N. Travis, 43 ECAB 227 (1991).

8

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

9

20 C.F.R. § 10.607(a).

10

D.G., 59 ECAB 455 (2008).

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considered this evidence and appellant, in submitting these documents, did not explain how this
evidence was positive, precise, and explicit in manifesting on its face that OWCP committed an
error in denying her claim for compensation.11 This evidence is insufficient to raise a substantial
question as to the correctness of OWCP’s decision and thus, these reports are insufficient to
discharge appellant’s burden of proof.
The Board finds that OWCP properly found that appellant’s February 16, 2016 appeal
request form received on February 23, 2016 was untimely filed and failed to demonstrate clear
evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2016
Washington, DC

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

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

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

11

See A.M., Docket No. 10-526 (issued November 8, 2010).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 17-0589
Issued: November 15, 2017

Case Submitted on the Record

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

JURISDICTION
On January 23, 2017 appellant filed a timely appeal from a January 4, 2017 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish intermittent periods of
total disability commencing June 1, 2016 as a result of the accepted April 5, 2013 employment
injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the January 4, 2017 decision. However, since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On May 30, 2014 appellant, then a 48-year-old coal and rail equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that on April 5, 2013 he twisted his left knee when
he slipped on ice while on his way to turn on equipment at work. He stopped work and returned
on April 6, 2014. OWCP accepted appellant’s claim for left knee chondromalacia patellae.
Appellant stopped work again on January 25, 2016.3
Dr. Daniel R. Johnson, an osteopath specializing in orthopedic surgery, related in a
February 29, 2016 report that appellant complained of left knee pain. He indicated that on
April 5, 2013 appellant hyper-extended his left knee while at work. Dr. Johnson reviewed
appellant’s diagnostic testing results and conducted an examination of appellant’s left knee. He
reported diffuse tenderness over the patella and patellar tendon and tenderness to palpation along
the medial aspect. Range of motion was full and strength was decreased. Dr. Johnson diagnosed
ligamentous laxity of the knee, left knee pain, and derangement of the medial meniscus. He
indicated that appellant “may do sit down job only at work.” Dr. Johnson provided a duty status
report, which related that appellant could return to work eight hours a day with restrictions of
continuous sitting for eight hours and no standing, walking, climbing, kneeling, bending,
stooping, twisting, pulling, pushing, or simple grasping.
Appellant submitted a February 2, 2016 letter by Edward Constantine, a human resources
officer for the employing establishment. Mr. Constantine advised appellant that, due to a
reduction-in-force (RIF) action, his position would be abolished and he would be reassigned to
the position of coal and rail equipment operator effective April 4, 2016. Appellant also
submitted a March 30, 2016 letter, which informed him that, due to personnel actions, his RIF
had been cancelled.
In an April 20, 2016 e-mail, Rupert R. Smith, an Air Force Mission Support Officer,
indicated that he was making a change to appellant’s alternate work assignment due to
Dr. Johnson’s February 29, 2016 Form CA-17. He noted that appellant’s office-type work
would be changed to answering telephones and filling out and filing documents as assigned by
himself or another supervisor. Mr. Smith explained that appellant would work 8 hours of his
normal 10-hour shift performing the above-described office work. He indicated that the last two
hours of appellant’s shift would be put into “ATAAPS” as code for OWCP. Mr. Smith further
informed appellant that he was authorizing him to use annual leave at his leisure.

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On January 27, 2016 appellant filed a notice of recurrence claim (Form CA-2a) alleging that on January 25,
2016 he sustained a recurrence of disability causally related to the April 5, 2013 employment injury. He explained
that over time his condition continued to degrade and the pain increased in both his knees. Appellant stopped work.
He also filed a claim for wage-loss compensation (Form CA-7) for total disability for the period February 7 to
March 5, 2016. In a decision dated May 11, 2016, OWCP denied appellant’s claim for a recurrence on January 27,
2016 and for total disability from February 7 to March 5, 2016. It found that the evidence submitted was
insufficient to establish that he was disabled from work due to a material worsening of his April 5, 2013
employment injury. Appellant’s claims for recurrence of disability on January 27, 2016 and disability compensation
from January 25 to March 5, 2016 are not currently before the Board.

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Appellant received treatment from Samuel DeBlauw, a certified physician assistant. In a
May 3, 2016 progress note, Mr. DeBlauw indicated that appellant complained of
gastroesophageal reflux disease (GERD) and acid reflux that had worsened over the last two
weeks and of pain with any motion of his knees. He reported that appellant did not think he
should have to work due to his chronic knee pain. Mr. DeBlauw diagnosed GERD, chronic pain
due to injury, and tear of the left knee meniscus. In a May 12, 2016 note, he and Robin T.
Carter, a registered nurse, reported that appellant had worked “only [three] days in the past
[three] weeks.” They related appellant’s complaints that: “I can’t work because of the pain.”
Appellant also submitted progress notes by Mr. DeBlauw dated May 22 to December 15, 2015
for treatment for low back pain, right greater than left. He also provided drug testing results
dated June 26, 2015.
In a May 31, 2016 progress note, Laura Catalano, a certified physician assistant,
indicated that appellant was referred for anterior cruciate ligament repair and meniscus repair
surgery. She reported that his original injury occurred in 2013 when he slipped on ice at work.
Ms. Catalano noted that appellant wanted her to complete paperwork for workers’ compensation
so that he did not have to go to work. Appellant informed her that Dr. Johnson did not listen to
him when he told him that he was not able to sit for 10 hours. Ms. Catalano reviewed appellant’s
history and diagnosed chronic left knee pain. She explained to him that she was unable to say
that he could not sit at work. Ms. Catalano indicated that appellant would not be able to walk,
squat, knee, or climb, but he should be able to sit at work. She provided a Form CA-17, which
indicated that he could work with restrictions of sitting for 10 hours.
Appellant submitted physical therapy notes dated May 9 to June 2, 2016.
On June 24, 2016 appellant underwent various diagnostic tests. In a June 24, 2016 left
knee magnetic resonance imaging (MRI) scan report, Dr. Leslie R. Bryant, a Board-certified
diagnostic radiologist, diagnosed moderate medial compartment joint space narrowing. He
indicated that appellant’s condition had progressed from his previous MRI scan. In a June 24,
2016 left knee x-ray examination, Dr. Max Walker, a Board-certified diagnostic radiologist,
noted mild degenerative changes.
In a June 24, 2016 report, Dr. Eric Kian Bee Lim, a Board-certified orthopedic surgeon,
indicated that appellant injured his left knee in April 2013 when he slipped on some ice at work.
He noted that appellant had a history of a left knee arthroscopy in 2010. Dr. Lim indicated that
appellant complained of a combination of aching and sharp pain with associated instability since
the original injury. He reported that appellant was previously cleared for a desk/sitting job, but
appellant stated that he could not do it. Dr. Lim reviewed appellant’s history and provided
physical examination findings. He reported no swelling of the left knee and global pain
throughout to palpation. Dr. Lim indicated global pain to McMurray’s testing. Range of motion
was 0 to 130 degrees. Dr. Lim diagnosed mild-to-moderate degenerative changes in the medial
compartment of appellant’s left knee and associated recurrent medial meniscus tear. He
recommended no surgery and that appellant should continue conservative measures. Dr. Lim
reported that he did not see a physical reason why appellant could not perform his current job
description.

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Appellant was treated by Nathaniel D. Grimes, a community health aide, and
Dr. Deborah J. Minnick-Sheridan, an osteopath specializing in family medicine. In a June 27,
2016 progress note, Dr. Minnick-Sheridan related complaints of bilateral knee pain for the last
three years due to injury. She related that appellant was walking on snow when he slipped on a
patch of ice, his left leg went straight out to the side, and he heard a very loud pop. Upon
physical examination, Dr. Minnick-Sheridan observed no tenderness in the femur or knee to
palpation, no crepitus, no swelling, and no deformities. She reported pain in the sides of hips
and just below the patella with active and passive range of motion. Dr. Minnick-Sheridan
recommended continued physical therapy.
Mr. DeBlauw continued to treat appellant. In progress notes dated June 28 to July 19,
2016, he related appellant’s complaints of muscle tightness in the bilateral lower back radiating
to the hips, continued left knee pain, and GERD. Examination of appellant’s back showed
midline tenderness of the spine and negative straight leg raise testing. Examination of the lower
extremities revealed 5/5 motor examination bilaterally and positive deep tendon reflexes.
Mr. DeBlauw diagnosed tear of the left knee meniscus, essential hypertension, GERD without
esophagitis, and back muscle spasms.
In a September 29, 2016 Form CA-17, Mr. DeBlauw noted a diagnosis of left knee
meniscus tear. He indicated that appellant was able to resume work with restrictions of sitting
for 10 hours and standing, bending, stooping, twisting, and reaching above the shoulder for 2
hours.
Mr. Smith provided an October 12, 2016 memorandum, in which he indicated that
appellant’s alternate work assignment was “nonproductive work.” He explained his reasons for
coming to this conclusion and requested that the Civilian Personnel Office address appellant’s
situation because the employing establishment had “no productive and meaningful work” for
appellant.
On November 14, 2016 appellant submitted a Leave Buy Back Worksheet Certification
and Election form for the period August 25 to October 25, 2016. He noted a date of injury of
April 5, 2013 and indicated that he stopped work on August 25, 2016.
On November 22, 2016 appellant filed a claim for intermittent wage-loss compensation
(Form CA-7) during the period June 1 to November 12, 2016. In various time analysis forms
(Forms CA-7a), he requested 10 hours of compensation on each of the following dates: June 7,
8, 9, 13, 14, 15, 16, 20, 21, 22, 23, 27 and 28, 2016; July 5, 11 and 19, 2016; August 8, 24 and
25, 2016; September 6, 7, 12, 19, 20, 21 and 22, 2016; October 20, 26, 27 and 31, 2016; and
November 1, 2, 3, 7, 8, 9 and 10, 2016. Appellant also requested eight hours on July 13, 2016;
seven hours on August 23 and October 3 and 19, 2016; six hours on July 25 and September 29,
2016; five hours on October 6, 2016; four hours on August 4, 2016; three hours on July 26 and
28, 2016; two hours on June 29, 2016; and one hour on June 6 and October 17, 2016. He
indicated that his reason for using leave was “restrictions.” Appellant also provided another
Form CA-7a, which indicated that his reason for leave use was “employer had nothing for me to
do within my restrictions.”

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Appellant submitted another time analysis form (Form 7a), which requested 10 hours of
leave on each of the following dates: August 25, September 29, and October 25, 2016. He
indicated that his reason for leave was “general illness due to pain management treatment.”
On November 30, 2016 OWCP received a Form CA-7 from appellant requesting
disability compensation for the period November 13 to 26, 2016.
By letter dated December 1, 2016, OWCP informed appellant that it received his claims
for intermittent disability compensation, effective June 1, 2016 and continuing. It advised him
that the evidence of record was insufficient to support his claim and requested additional
evidence to establish a material worsening of his condition to the extent that he was unable to
work on the claimed dates.
Appellant submitted an October 21, 2016 medical record by Mr. DeBlauw who noted that
appellant was seen for workers’ compensation paperwork. Mr. DeBlauw indicated that appellant
needed to be seen monthly. He conducted an examination and noted no changes in appellant’s
previous condition. Mr. DeBlauw diagnosed tear of the left knee meniscus.
In a December 20, 2016 letter, Jake Malouf, a registered nurse, reported that appellant
was seen in their clinic on December 6, 2016. He noted that he was attaching an attending
physician’s report (Form CA-20) and Form CA-17.
Appellant submitted a December 19, 2016 Form CA-20 by Dr. Jason Capo, a Boardcertified orthopedic surgeon. Dr. Capo related that appellant injured his knee at work more than
five years ago and experienced swelling and instability. He noted that appellant had a history of
arthritis. Dr. Capo reported examination findings and a diagnosis of bilateral medial
compartment arthritis -- all on the left. He reported “unknown” regarding whether appellant’s
condition was caused or aggravated by his employment activity. Dr. Capo indicated that
appellant was partially disabled beginning April 1, 2013. He noted that appellant could resume
light work with restrictions of not standing, walking, or climbing for an extended period of time.
Dr. Capo also provided a Form CA-17 with appellant’s work restrictions. Appellant also
resubmitted the June 24, 2016 diagnostic testing results.
By decision dated January 4, 2017, OWCP denied appellant’s claims for intermittent
disability compensation beginning June 1, 2016, finding that the medical evidence of record
failed to establish that he was totally disabled from work on the claimed dates as a result of his
accepted April 5, 2013 employment injury. It further determined that the medical evidence did
not provide objective or clinical findings that showed a worsening of his accepted condition to
support that he was unable to work on the claimed dates.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for

4

Supra note 1.

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which compensation is claimed is causally related to the employment injury.5 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.6
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.8 When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she was in too much pain to work, without objective findings
of disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.9
For each period of disability claimed, the employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10
ANALYSIS
OWCP accepted that on April 5, 2013 appellant twisted his left knee when he slipped on
ice while on his way to turn on equipment at work. It accepted his claim for left knee
chondromalacia patellae. On November 22, 2016 appellant filed a claim for intermittent wageloss compensation for the period June 1 to November 12, 2016. In a January 4, 2017 decision,
OWCP denied his claim for disability compensation for intermittent dates beginning June 1,
2016 because the medical evidence of record was insufficient to establish total disability on the
specific dates claimed. The Board finds that appellant has failed to establish that he was disabled
on intermittent dates beginning June 1, 2016 as a result of the accepted April 5, 2013
employment injury.
The Board notes that the evidence of record substantiates that on January 25, 2016
appellant stopped work. The evidence of record further reveals that on February 29, 2016

5

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
7

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

8

Dean E. Pierce, 40 ECAB 1249 (1989).

9

See Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Amelia S. Jefferson, supra note 7.

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Dr. Johnson restricted appellant to sedentary work duties to eight hours. In March 2016,
appellant was offered an alternate work assignment performing sedentary, office work.
During the period of disability claimed, appellant received medical treatment from
Dr. Lim. In a June 24, 2016 report, Dr. Lim related that in April 2013 appellant sustained a left
knee injury at work and continued to complain of pain and associated instability. He noted that
appellant was cleared for a sedentary desk job, but appellant believed that he could no longer
work. Upon physical examination, Dr. Lim observed pain throughout appellant’s left knee to
palpation, but no swelling. He diagnosed mild-to-moderate degenerative changes in the medial
compartment of appellant’s left knee and associated recurrent medial meniscus tear. Dr. Lim
reported that he did not see a physical reason why appellant could not perform his current job
description. The Board finds that his report is insufficient to establish appellant’s claim for
intermittent disability beginning June 1, 2016 as he did not relate that appellant was totally
disabled from work on any of his claimed dates of disability. On the contrary, Dr. Lim
determined that appellant could in fact perform his current sedentary job position. It is not
enough for a physician to simply confirm that appellant reported being unable to work on certain
dates. This would allow an employee to self-certify his or her disability.11
Likewise, Dr. Capo also indicated in his December 19, 2016 Form CA-20 that appellant
was partially disabled beginning April 1, 2013 and could resume light work with restrictions of
not standing, walking, or climbing for an extended period of time. As neither Dr. Lim, nor
Dr. Capo provided an opinion that appellant was totally disabled from work, their reports are
insufficient to establish that appellant was totally disabled on the specific dates claimed
beginning June 1, 2016 due to the accepted April 5, 2013 employment injury.12
The Board further notes that Dr. Lim provided a diagnosis of left knee degenerative
changes and medial meniscus tear and Dr. Capo noted a diagnosis of bilateral knee medial
compartment arthritis. None of these conditions, however, have been accepted by OWCP as
causally related to the April 5, 2013 employment injury. For conditions not accepted by OWCP
as being employment related, it is the employee’s burden of proof to provide rationalized
medical evidence sufficient to establish causal relationship, not OWCP’s burden of proof to
disprove such relationship.13
In a June 27, 2016 progress note, Dr. Minnick-Sheridan accurately described the April 5,
2013 employment injury and noted appellant’s complaints of knee pain for the past three years.
She provided examination findings and recommended continued physical therapy. Dr. MinnickSheridan, however, did not offer an opinion on appellant’s inability to work. The Board has
found that medical evidence which does not offer any opinion regarding the cause of disability is
of limited probative value on that issue.14
11

A.J., Docket No. 10-2407 (issued July 25, 2011).

12

See M.C., Docket No. 16-1238 (issued January 26, 2017).

13

G.A., Docket No. 09-1253 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
14

J.H., Docket No. 15-1877 (issued May 3, 2016); Michael E. Smith, 50 ECAB 313 (1999).

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Likewise, Dr. Bryan’s June 24, 2016 left knee MRI scan report and Dr. Walker’s left
knee x-ray examination report also failed to address appellant’s inability to work on the claimed
dates. Because these physicians failed to address the issue of intermittent disability on specific
dates beginning June 1, 2016, their reports are insufficient to establish appellant’s disability
claim.15
Appellant also received treatment from Mr. DeBlauw, a certified physician assistant who
provided various progress notes dated May 12 to October 21, 2016. These reports are of no
probative value, however, because physician assistants are not considered physicians as defined
under FECA.16
The Board notes that appellant submitted another Form CA-7a and indicated that his
reason for leave use was “employer had nothing for me to do within my restrictions.” Appellant
submitted an October 12, 2016 memorandum by Mr. Smith who requested that the Civilian
Personnel Office address appellant’s alternate work assignment because the employing
establishment no longer found his assignment productive and meaningful. The Board finds,
however, that the evidence of record does not establish that a modified-duty job was withdrawn
or that the employing establishment was unable to accommodate his restrictions. The Board
notes that the October 12, 2016 memorandum did not formally withdraw appellant’s alternate
work assignment. It merely brought up the employing establishment’s concerns about
appellant’s work assignment and requested that the Civilian Personnel Office address these
concerns.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish intermittent
periods of total disability commencing June 1, 2016 as a result of the accepted April 5, 2013
employment injury.

15

Supra note 11.

16

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
17

If appellant were receiving medical treatment for his accepted left knee condition he could be paid wage-loss
compensation medical services and reasonable time spent traveling to and from the medical provider’s location.
Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998);
see also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

8

ORDER
IT IS HEREBY ORDERED THAT the January 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
FACILITY, Duluth, GA, Employer
__________________________________________

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Appearances:
Misty Wenger, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0586
Issued: September 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 4, 2021 appellant, through her representative, filed a timely appeal from a
December 21, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from the last merit decision dated November 21,

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.

2019 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s December 17, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On October 4, 2019 appellant, then a 54-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on October 8, 2016 she sustained injuries to her right side due to falling
out of her postal vehicle while in the performance of duty. She did not stop work.
In a statement dated October 4, 2019, appellant indicated that on October 8, 2016 she was
exiting her postal vehicle when her foot missed the bumper, causing her to fall backward onto her
hand in an attempt to break her fall. She tried to treat her symptoms at home initially, and then
sought chiropractic care due to ongoing numbness and tingling in her right hand, shoulder and leg.
Appellant noted that she was subsequently referred to a medical doctor and continued to work
despite ongoing pain in her shoulder and lower back.
In support of her claim, appellant submitted medical evidence including treatment notes
from Dr. Jason R. Hoover, a chiropractor, dated October 17 through November 29, 2016 for neck
and back pain. Appellant also included a medical note dated September 30, 2019 from Dr. Fiona
Baldwin, a family practitioner, indicating that she reported recurrent neck, shoulder and low back
pain and hip pain for three years following a fall at work in October 2016. Dr. Baldwin diagnosed
low back, hip, and neck pain.
In development letters dated October 15 and 29, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary,
and requested a narrative medical report from her treating physician containing a detailed
description of findings and a diagnosis, explaining how her work activities caused, contributed to,
or aggravated her medical conditions. It afforded appellant 30 days to submit the necessary
evidence.
In a November 8, 2019 medical note, Dr. Baldwin indicated that appellant reported
recurrent neck, shoulder, low back, and hip pain due to a fall at work in October 2016, and that
she had undergone magnetic resonance imaging studies which showed chronic tendinitis and
bursitis of the right shoulder and degenerative disease of the cervical and lumbar spine and knees.
She provided diagnoses of bursitis and tendinitis of the right shoulder and degenerative disease of
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the December 21, 2020 decision, OWCP received additional evidence. The
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

the cervical spine, lumbar spine, and knees. Dr. Baldwin opined that it would be reasonable to
assume that appellant’s conditions stem from her history of a fall and were aggravated by ongoing
repetitive job duties such as bending, twisting, and reaching.
In a separate statement dated November 13, 2019, appellant provided additional details
regarding her treatment.
By decision dated November 21, 2019, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis in connection
with her accepted employment incident. It concluded that the requirements had not been met to
establish an injury on October 8, 2016 causally related to the accepted employment incident.
OWCP continued to receive medical evidence, including a December 7, 2020 report of
Dr. Miguel E. Stubbs, an internal medicine specialist, who recounted the history of the accepted
October 8, 2016 employment incident, as well as subsequent occupational disease claims .
Dr. Stubbs opined that the October 2016 injury caused limitations on her ability to perform her job
duties and that repetitive strain injuries over time due to highly repetitive work activities such as
reaching, pushing, pulling, lifting, and carrying compounded those injuries.
On December 17, 2020 appellant requested reconsideration of OWCP’s November 21,
2019 decision.
By decision dated December 21, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It referenced the reconsideration request and a report from Dr. Stubbs dated December 7, 2020.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP ’s
decision for which review is sought. 5 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 6
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 7
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP ’s most recent merit

4
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).

3

decision was in error. 8 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.9 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP ’s
decision.12
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.13 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP. 14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s
reconsideration was untimely filed.

request for

The last merit decision was issued on November 21, 2019. As her request for
reconsideration was not received by OWCP until December 17, 2020, more than the one-year time
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12

C.M., Docket No. 19-1211 (issued August 5, 2020).

13

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

14

D.S., Docket No. 17-0407 (issued May 24, 2017).

4

limitation, pursuant to 20 C.F.R. § 10.607(a), the Board finds that the request for reconsideration
was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP
in denying the claim. 15 The Board further finds that, in its December 21, 2020 decision, OWCP
summarily denied appellant’s request for reconsideration without complying with the review
requirement of FECA and its implementing regulations. 16 As noted above section 8124(a) of
FECA provides that OWCP shall determine and make a finding of fact and make an award for or
against payment of compensation. 17 Its regulations at 20 C.F.R. § 10.126 provide that the decision
of the director of OWCP shall contain findings and facts and a statement of reasons. 18 As well,
OWCP’s procedures provide that the reasoning behind OWCP’s evaluation should be clear enough
for the reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.19 In the December 21, 2020 decision, it denied appellant’s December 17, 2020
reconsideration request, finding it was untimely filed as it was received more than a year following
the most recent merit decision dated November 21, 2019. It referenced the reconsideration request
and a report from Dr. Stubbs dated December 7, 2020, but failed to analyze this evidence as to
whether it was sufficient to demonstrate clear evidence of error.
The Board will therefore set aside OWCP’s December 21, 2020 decision and remand the
case for findings of fact and a statement of reasons, to be followed by an appropriate decision on
appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

15
20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
16

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
17

5 U.S.C. § 8124(a).

18

20 C.F.R. § 10.126.

19

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

5

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2020 decision of the Office of
Workers Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 13-1058
Issued: October 21, 2013

Case Submitted on the Record

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

JURISDICTION
On March 27, 2013 appellant filed a timely appeal from a March 1, 2013 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $8,867.44 for the period May 26, 2010 to June 2, 2012; and
(2) whether she was at fault in the creation of the overpayment and, therefore, not entitled to
waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 21, 2004 appellant, then a 44-year-old registry clerk, filed a traumatic injury
claim alleging that on January 8, 2004 she sprained her neck and lower back when she lifted
heavy parcels while working on the window. OWCP accepted her claim for cervical and lumbar
sprain.
Appellant stopped work and filed claims for wage-loss compensation, Form CA-7,
beginning February 24, 2004. She identified two daughters as dependents and listed the dates of
birth as July 17, 1986 and March 11, 1990. OWCP paid wage-loss compensation at an
augmented rate of 75 percent of her weekly pay. On June 24, 2004 appellant was placed on the
periodic rolls at the augmented rate of 75 percent of her weekly pay.
On July 19, 2005 appellant was approved for disability retirement.
The record reflects that appellant submitted affidavits of earnings and employment (Form
CA-1032) beginning November 30, 2004. The forms explained the circumstances under which
she would be entitled to augmented compensation for her dependent children. Compensation for
a dependent may be claimed for an unmarried child, including an adopted child or stepchild who
lived with her and was under 18 years of age. Appellant was advised that compensation for a
dependent child may continue after the 18th birthday only if the dependent was unmarried and
either incapable of self-support due to a mental or physical disability or a full-time student. The
forms noted that compensation was payable until age 23 for an unmarried child who had reached
age 18, had not completed four years of education beyond high school and was a full-time
student at an approved educational institution.
Appellant completed subsequent CA-1032 forms dated April 10, 2006 to
January 2, 2011. She listed her daughter, with a date of birth of March 11, 1990, as a dependent.
By letters dated January 18 and November 20, 2008 and July 2, 2009, OWCP again
advised appellant of the circumstances under which she was entitled to augmented compensation
for her dependent children. It requested additional information to determine whether her
daughter, born on March 11, 1990, had eligibility for compensation beyond her 18th birthday.
OWCP informed appellant that verification that her daughter was pursuing a full-time course of
study at an accredited school, college or university was needed at least twice each year.
In a January 21, 2008 student dependency form, an official at Satellite Academy High
School verified that appellant’s daughter was enrolled as a full-time student from
September 2007 through June 2009.
In a September 8, 2009 student dependency form, an official for the Registrar’s Office of
York College verified that appellant’s daughter was enrolled as a full-time student at York
College from August 28 to December 13, 2009. Her expected date of completion of the course
of study was September 2013.
In a February 14, 2012 Form CA-1032, appellant listed her daughter and grandson, with a
date of birth of June 12, 2005, as dependents.

2

In a February 27, 2012 letter, OWCP advised appellant that further information was
necessary to determine her daughter’s dependency status following December 2009 and her
grandson’s dependency status. It advised her that, in order for her grandson to be considered a
dependent, she needed to provide OWCP with formal adoption documents because legal
adoption was the only condition under which a grandchild could be considered a dependent for
the augmented compensation rate. OWCP also stated that appellant needed to submit
certification of her daughter’s status as a full-time student.
On May 30, 2012 OWCP adjusted appellant’s compensation rate to the statutory 66 2/3
percent beginning June 3, 2012. Appellant did not respond to the February 27, 2012 letter.2
On August 21, 2012 OWCP issued a preliminary decision that appellant received an
overpayment in the amount of $10,758.69 for the period December 14, 2009 to June 2, 2012. It
determined that she received compensation at the augmented 75 percent rate for dependents after
her last remaining dependent became ineligible for benefits. OWCP found that appellant was at
fault in creating the overpayment because she knew or should have known that on and after
December 14, 2009 she was in receipt of payment at a rate to which she was not entitled. It
provided a memorandum containing a calculation of the overpayment totaling $10,758.69.3
Appellant was informed of her options if she wished to challenge the fact and amount of the
overpayment or to request waiver of recovery of the overpayment. If she wished a waiver of the
overpayment, she was advised to submit financial information and a completed overpayment
recovery questionnaire (OWCP-20) within 30 days.
On August 26, 2012 appellant requested a prerecoupoment hearing and submitted a
completed overpayment questionnaire. She contended that the overpayment occurred through no
fault of her own and requested waiver. Appellant contended that, although her daughter no
longer attended school, she still remained a dependent in her household. She explained that she
did not report any changes because her daughter and grandson still lived with her and were
dependent on her. Appellant reported no monthly income and noted that she supported two
daughters and a grandson. Her monthly expenses were listed as a total of $3,067.49, including
$1,315.49 for rent, $400.00 for food, $152.00 for utilities and $1,000.00 for “other.” Appellant
reported that her various debts included a $200.00 monthly installment payment for a $2,498.43
U.S. Barclay card. She stated that she had $40.00 cash on hand, $35.47 in her checking account
and $550.00 in her savings account. Appellant submitted bank statements, an August 6, 2012
rent receipt for $1,315.49, a utility bill for $152.27, a T-Mobile phone bill for $256.89 and a
monthly car payment of $416.00.
In a December 18, 2012 prerecoupoment hearing, appellant stated that her daughter was
enrolled as a full-time student until June 2010. She believed that her daughter would be covered
2

On July 12, 2012 OWCP issued a preliminary decision proposing to terminate appellant’s compensation for
wage-loss and medical compensation benefits because the medical evidence established that appellant’s January 8,
2004 injury-related disabilities had resolved. By decision dated August 13, 2012, it finalized the termination
decision.
3

The overpayment worksheet indicated that from December 14, 2009 to December 18, 2010 appellant received
an overpayment of $4,342.52. From December 19, 2010 to January 14, 2012 she received an overpayment of
$4,697.21. From January 15 to June 2, 2012 appellant was overpaid $1,718.96.

3

until she was 22 years of age and was unaware that her daughter had to be enrolled in college
after her 18th birthday in order to be considered a dependent. The hearing representative advised
appellant to obtain documentation of her daughter’s last day of full-time college attendance.
Regarding her grandson, appellant explained that she did not adopt him but that he lived with her
and was dependent on her. She stated that she received a net income of $616.00 a month and
noted that she lived with her grandson and two daughters who all worked and supported each
other. The hearing representative reviewed the financial documents she had provided and
clarified her financial assets.
In a January 7, 2013 letter, an official for the Registrar’s Office of York College noted
that appellant’s daughter was enrolled as a full-time student from August 28, 2009 to
May 25, 2010.
In a February 28, 2013 memorandum, an OWCP hearing representative modified the
amount of overpayment to $8,867.44 for the period May 26, 2010 to June 2, 2012. He noted that
the initial overpayment of $10,758.69 covered the period December 14, 2009 to June 2, 2012,
but appellant presented documentation of her daughter’s full-time enrollment as a student
through May 25, 2010. The hearing representative reported that appellant should have received
$1,891.25 from December 14, 2009 to May 25, 2010 at the augmented rate. He subtracted that
amount from the original overpayment of $10,758.69 to modify the overpayment amount of
$8,867.44.
By decision dated March 1, 2013, an OWCP hearing representative finalized the
overpayment in the amount of $8,867.44 for the period May 26, 2010 to June 2, 2012. Appellant
received compensation based on the 75 percent augmented compensation rate instead of the 66
2/3 percent basic rate. The hearing representative further found that she was at fault in the
creation of the overpayment because she knew or should have known that she was not entitled to
augmented compensation during that period.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 If the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 of his or her monthly pay. A disabled employee
is entitled to an augmented compensation rate of 75 percent if he or she has one or more
dependents.5
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either 18 years of
age or over 18 years of age and incapable of self-support due to physical or mental disability.6 A
4

5 U.S.C. § 8102.

5

O.R., 59 ECAB 432 (2008).

6

5 U.S.C. § 8110(a).

4

child is also considered a dependent if he or she is an unmarried student under 23 years of age
who has not completed four years of education beyond the high school level and is currently
pursuing a full-time course of study at a qualifying college, university or training program.7
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was disbursed
at the 75 percent augmented rate and the compensation that should have been disbursed at the
66 2/3 percent basic rate constitutes an overpayment of compensation.8
ANALYSIS -- ISSUE 1
Appellant does not contest the fact or amount of the overpayment. She initially claimed
her daughter, who was born on March 11, 1990, as a dependent and OWCP paid wage-loss
compensation at the augmented rate of 75 percent beginning February 24, 2004. Although
appellant’s daughter reached the age of 18 on March 11, 2008, she was still an eligible dependent
because she attended high school full time until she graduated in June 2009. After graduating
from high school, the evidence of record confirms that her daughter was enrolled on a full-time
basis at York College until May 25, 2010. After May 25, 2010 there is no evidence that
appellant’s daughter was enrolled as a full-time student for the 2010 fall semester. The Board
finds, therefore, that she was no longer a dependent as defined under FECA.
Appellant also claimed her grandson, born on June 12, 2005, as a dependent. The Board
notes, however, that a child and grandchild are not synonymous. A grandchild is not specifically
recognized as an eligible dependent for purposes of augmented compensation.9 Although
appellant’s grandchild may be living with her, she did not provide any documentation or
evidence that she legally adopted her grandson. In addition, appellant stated at the hearing that
she did not formally adopt her grandson. Accordingly, the Board finds that her grandson was not
a dependent as defined under FECA.
Appellant was entitled to compensation at the basic rate following May 25, 2010.10
OWCP initially calculated that she was overpaid $4,342.52 from December 14, 2009 to
December 18, 2010; $4,697.21 from December 19, 2010 to January 14, 2012; and $1,718.96
from January 15 to June 2, 2012 for a total of $10,758.69. On March 1, 2013 an OWCP hearing
representative modified this determination to reflect that appellant was properly paid at the
augmented rate from December 14, 2009 to May 25, 2010. He calculated that she should have
been paid an additional $1,891.25 from December 14, 2009 to May 25, 2010 at the augmented
rate. The hearing representative subtracted that amount from the original overpayment of
$10,758.69 to modify the overpayment amount of $8,867.44. Appellant does not dispute the
calculation of overpayment. The Board finds that OWCP properly determined the fact and
amount of the overpayment.
7

E.G., 59 ECAB 599 (2008).

8

Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

9

P.D., Docket No. 9-1007 (issued February 17, 2010).

10

W.M., Docket No. 11-2000 (issued May 21, 2012).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.11
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who-Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.”12
The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from OWCP are proper.13 Whether or not
OWCP determines that an individual was at fault with respect to the creation of the overpayment
depends on the circumstances surrounding the overpayment.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment based on the third
criterion, that she accepted payments which she knew or should have known to be incorrect. It
must show, therefore, that when she received the compensation in question, she knew or should
have known that the payment was incorrect.15
The Board finds that appellant was at fault in creating the overpayment. The CA-1032
forms provided information regarding the status of dependents for augmented compensation.
Appellant was advised that she could claim an unmarried child or stepchild under 18 years of
age. In order to claim compensation for a dependent child after he or she turns 18 years old he or
she must be unmarried and incapable of self-support due to a mental or physical disability or
11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.433(a).

13

Id.

14

Id. at § 10.433(b).

15

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

6

enrolled as a full-time student. Appellant was also notified that a claimant with no dependents
was paid at the 66 2/3 percent basic rate, not the 75 percent augmented rate. The evidence
establishes that beginning February 24, 2004 appellant received compensation at the augmented
rate as her daughter was under the age of 18. On March 11, 2008 appellant’s daughter turned
18 years old, but she was still eligible as a dependent because she was enrolled as a full-time
student until May 25, 2010. While appellant alleged that she did not realize that her daughter
needed to be a full-time student in order to be a dependent, the record contains CA-1032 forms
and letters informing her of the requirements, for her daughter to be considered as a dependent.
After May 25, 2010, appellant knew or reasonably should have known that she was not entitled
to augmented compensation because her daughter was no longer enrolled as a full-time student
and her grandson was not her stepchild. There is also no evidence to support that appellant’s
daughter was unable to support herself because of a mental or physical disability. Appellant
testified at the hearing that both her daughters worked and earned income. In addition, the
CA-1032 forms also explicitly state that an unmarried child or stepchild, not grandchild, may be
considered dependent. The Board finds, therefore, that OWCP properly determined that
appellant was at fault in the creation of the overpayment because she knew or should have
known that after May 25, 2010 she was no longer entitled to compensation at the augmented rate.
On appeal, appellant contended that she was never informed that unless her daughter was
enrolled in school she had to be taken off as a dependent. She requested a waiver because of
income hardship. Although appellant contends that she was not aware of the qualifications of
dependency status after a dependent turned 18 years old, the record confirms that she received
various CA-1032 forms from April 10, 2006 to January 2, 2011 and letters dated January 18 and
November 20, 2008 and July 2, 2009, which explained the circumstances under which she was
entitled to augmented compensation for her dependent children. The Board finds, therefore, that
she knew or should have known that the payments made at the augmented rates after her
daughter was not enrolled in school were incorrect in view of the CA-1032 forms that she
signed.16 Because appellant is at fault in creating the overpayment, she is not eligible for waiver
of recovery and OWCP is required by law to recover the overpayment.17
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of $8,867.44 from May 26, 2010 to June 2, 2012 as she continued to receive compensation at the
augmented rate instead of the basic rate. The Board further finds that appellant was at fault in
creating the overpayment.

16

See P.M., Docket No. 13-2 (issued March 25, 2013).

17

Supra note 10; see also L.J., 59 ECAB 264 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2013
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 08-955
Issued: November 10, 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 February 13, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 18, 2007 and January 24, 2008 merit decisions, concerning the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
July 18, 2008 on the grounds that she refused an offer of suitable work.

FACTUAL HISTORY
The Office accepted that on September 20, 1992 appellant, then a 49-year-old clerk,
sustained aggravation of lumbar disc displacement when she lifted an eight-pound mail tray and
turned to place it on a ledge.1 It paid her compensation for periods of disability.2
On November 11, 1992 Dr. Young H. Kim, an attending Board-certified neurosurgeon,
performed laminectomy and discectomy surgery at L3, L4 and L5, which was authorized by the
Office. On January 28, 1994 appellant returned to light-duty work for the employment
establishment. On February 4, 1994 she stopped work. On March 24, 1994 appellant underwent
authorized laminectomy, discectomy and disc replacement surgery at L4.
Appellant received treatment from several physicians over the years and in 2000 she
came under the care of Dr. John P. Conomy, a Board-certified neurologist. On March 30, 2006
the Office asked Dr. Conomy to address whether appellant had continuing residuals of her
employment injury. Dr. Conomy responded that appellant was totally and permanently disabled
due to her employment injury.
On September 7, 2006 Dr. Karl V. Metz, a Board-certified orthopedic surgeon and an
Office referral physician, discussed appellant’s factual and medical history and the findings on
examination and diagnostic testing. He noted that appellant showed tenderness to palpation at
L5 and stated that there was marked guarding during the lumbar spine examination. The sensory
examination was normal and her legs had 5/5 strength. Dr. Metz concluded that, although
residuals of appellant’s employment injury prevented her from performing her regular work, she
was capable of working four hours per day in sedentary work with occasional lifting of up to
10 pounds and no repetitive, bending, kneeling, squatting, lifting, pushing or pulling. The work
would allow her to change positions frequently.
On November 1, 2006 Dr. Conomy stated that appellant suffered pain, weakness, sensory
loss and reflex disturbances in her legs. He indicated that she was unable to work because of her
neurologic condition with impairment from multiple nerve roots and chronic pain. Dr. Conomy
indicated that appellant’s nerve injuries and the affects of medication, which caused drowsiness,
prevented her from being gainfully employed.
On January 30, 2007 the employing establishment offered appellant a position as a
modified mail processing clerk for four hours per day. The position involved casing mail and
looking for improperly sorted letters. The work could be performed seated and appellant would
not be required to lift items weighing more than about one ounce. On February 7, 2007 appellant
declined the offered position contending that her physical condition prevented her from
performing the duties of the position. On March 1, 2007 she elected civil service retirement
benefits with the Office of Personnel Management (OPM) effective May 1, 2007.
1

The clerk position required appellant to lift up to 80 pounds.

2

Appellant sustained a work-related L5 disc herniation on November 26, 1976, which resulted in a laminectomy
at this level being performed in 1977. In 1979 she underwent disc replacement surgery. Appellant also had
nonwork-related degenerative disc disease of the cervical spine.

2

The Office determined that there was a conflict in the medical opinion between
Dr. Conomy and Dr. Metz regarding appellant’s ability to work. In order to resolve the conflict,
the Office referred her, pursuant to section 8123(a) of the Federal Employees’ Compensation
Act, to Dr. James Shaer, a Board-certified orthopedic surgeon, for an impartial medical
examination.3
On March 26, 2007 Dr. Shaer described appellant’s factual and medical history and
detailed findings on examination and diagnostic testing. He found that examination revealed that
appellant had normal sensation and 5/5 strength in her legs. Appellant exhibited some limitation
of back motion but there were no paravertebral muscle spasms upon palpation of the lumbar
spine. She expressed discomfort on straight leg raising and hip rotation. Dr. Shaer indicated that
he had reviewed the duties of the modified mail processing clerk position and concluded that the
job was appropriate for appellant. He noted that her physical examination was highly subjective
with respect to pain and that she had signs of symptom exaggeration. Dr. Shaer indicated that
stimuli which would not be considered noxious were considered very debilitating to appellant
and elicited expressions of marked discomfort. He stated that he was familiar with the
medications taken by appellant, including Neurontin, Norco, Mobic, Halcion and Prozac.
Dr. Shaer noted that Halcion and Norco could cause marked drowsiness but stated that she would
be able to perform the modified mail processing position because the duties of the job would not
require much in the way of critical thought.
In a May 17, 2007 letter, the Office advised appellant of its determination that the
modified mail processing clerk position offered by the employing establishment was suitable. It
informed her that her compensation would be terminated if she did not accept the position or
provide good cause for not doing so within 30 days of the date of the letter. Appellant did not
respond to this letter within the allotted time.
In a June 18, 2007 letter, the Office advised appellant that she did not provide good cause
for not accepting the modified mail processing clerk position offered by the employing
establishment. It informed her that her compensation would be terminated if she did not accept
the position within 15 days of the date of the letter. In June 20 and 25, 2007 letters, appellant
advised the Office that she was opting to take a disability retirement. She indicated that
Dr. Shaer suggested that she stop taking certain medications but asserted that she would
experience increased pain without taking them.4
In a July 18, 2007 decision, the Office terminated appellant’s compensation effective
July 18, 2007 on the grounds that she refused an offer of suitable work. It found that the weight
of the medical evidence regarding appellant’s ability to work rested with the well-rationalized
opinion of Dr. Shaer.

3

The record contains a February 21, 2007 report of Dr. John Collis, an attending Board-certified neurosurgeon,
but the report does not contain any opinion on appellant’s ability to work.
4

Appellant submitted a June 5, 2007 report in which Dr. Kim described an epidural injection she received in her
lumbar spine.

3

Appellant requested a hearing before an Office hearing representative. At the
November 14, 2007 hearing, she testified that she was on disability retirement and was not
physically capable of working. Appellant’s attorney asserted that the employing establishment
had indicated that they were reevaluating everyone on limited-duty work and implied that the
position offered to appellant would probably be eliminated. He asserted that the employing
establishment had not made a “good faith offer” to appellant. Counsel argued that the employing
establishment could not accommodate the claimant in 1995. He asserted that the physical
limitations of the offered position were not specific enough to clarify what appellant would be
physically required to do and claimed that the position could require lifting, bending and pushing
which were not specified in the job description. Counsel argued that the task of casing could not
be performed while being seated in a chair.5
In a January 24, 2008 decision, the Office hearing representative affirmed the July 18,
2007 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Act provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”6 However, to justify such termination, the Office must show that the work
offered was suitable.7 An employee who refuses or neglects to work after suitable work has been
offered to her has the burden of showing that such refusal to work was justified.8
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”9 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.10
ANALYSIS
The Office accepted that on September 20, 1992 appellant sustained aggravation of
lumbar disc displacement when she lifted a mail tray and turned to place it on a ledge. On
5

Appellant resubmitted copies of Dr. Collis’ February 21, 2007 report and Dr. Kim’s June 5, 2007 report. She
also submitted a January 10, 2008 report in which another attending physician described the application of
lumbosacral blocks.
6

5 U.S.C. § 8106(c)(2).

7

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

8

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

9

5 U.S.C. § 8123(a).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

November 11, 1992 appellant underwent laminectomy and discectomy surgery at L3, L4 and L5,
which was authorized by the Office. On March 24, 1994 she underwent authorized
laminectomy, discectomy and disc replacement surgery at L4.
On January 30, 2007 the employing establishment offered appellant a position as a
modified mail processing clerk for four hours per day. The position involved casing mail and
looking for improperly sorted letters. The work could be performed seated and appellant would
not be required to lift items weighing more than one ounce. The Office determined that the
offered position was suitable based on the opinion of Dr. Shaer, a Board-certified orthopedic,
who served as an impartial medical examination.
The evidence of record shows that appellant is capable of performing the modified mail
processing clerk position offered by the employing establishment in January 2007 and
determined to be suitable by the Office in May 2007. In determining that she is physically
capable of performing the offered position, the Office properly relied on the opinion of
Dr. Shaer. It found that a conflict in the medical opinion arose between Dr. Conomy, an
attending a Board-certified neurologist, and Dr. Metz, a Board-certified orthopedic surgeon
acting as an Office referral physician, regarding her capacity for work.11 In order to resolve the
conflict, the Office properly referred appellant, pursuant to section 8123(a) of the Act, to
Dr. Shaer for an impartial medical examination and an opinion on the matter.12
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Shaer, the impartial medical specialist selected to resolve the
conflict in the medical opinion.13 The March 26, 2007 report of Dr. Shaer establishes that
appellant could perform the modified mail processing clerk position.
On March 26, 2007 Dr. Shaer described appellant’s factual and medical history and
detailed her findings on examination and diagnostic testing. He indicated that examination
revealed that appellant had normal sensation and 5/5 strength in her legs. Appellant exhibited
some limitation of back motion but there were no paravertebral muscle spasms upon palpation of
the lumbar spine. She expressed discomfort on straight leg raising and hip rotation. Dr. Shaer
indicated that he had reviewed the duties of the modified mail processing clerk position and
concluded that the job was appropriate for appellant.
The Board has carefully reviewed the opinion of Dr. Shaer and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Shaer’s opinion is based on a proper factual and medical
history in that he had the benefit of an accurate and up-to-date statement of accepted facts,
11

In a September 7, 2006 report, Dr. Metz concluded that, although residuals of appellant’s employment injury
prevented her from performing her regular work, she was capable of working four hours per day in sedentary work
with occasional lifting of up to 10 pounds and no repetitive, bending, kneeling, squatting, lifting, pushing or pulling.
In contrast, Dr. Conomy indicated in March 30 and November 1, 2006 reports that appellant’s accepted employment
injury rendered her totally disabled from work.
12

See supra note 9 and accompanying text.

13

See supra note 10 and accompanying text.

5

provided a thorough factual and medical history and accurately summarized the relevant medical
evidence.14 He provided medical rationale for his opinion by explaining that there were limited
objective findings on examination given that appellant had a highly subjective physical
examination with respect to pain. Dr. Shaer posited that appellant had signs of symptom
exaggeration and indicated that stimuli which would not be considered noxious were considered
very debilitating to her and elicited expressions of marked discomfort. He explained that
appellant’s use of medications would not prevent her from performing the offered position.
Dr. Shaer noted that Halcion and Norco could cause marked drowsiness but stated that appellant
would be able to perform the modified mail processing position because the duties of the job
would not require much in the way of critical thought.
The Board finds that the Office has established that the modified mail processing clerk
position offered by the employing establishment is suitable. As noted, once the Office has
established that a particular position is suitable, an employee who refuses or neglects to work
after suitable work has been offered to her has the burden of showing that such refusal to work
was justified. The Board has carefully reviewed the evidence and argument submitted by
appellant in support of her refusal of the modified mail processing clerk position and notes that it
is not sufficient to justify her refusal of the position.
Appellant, through her attorney, argued that the modified mail processing clerk position
did not represent a “good faith offer” because it was felt that the employing establishment would
have eliminated the position at some point. She also believed that the job description of the
offered position did not describe all the required job duties. However, appellant did not submit
evidence supporting these contentions.15 She submitted several reports of attending physicians,
including a February 21, 2007 report of Dr. Collis, an attending Board-certified neurosurgeon
and a June 5, 2007 report of Dr. Kim, another attending Board-certified neurosurgeon. The
reports were not relevant to the main issue of the present case because they did not contain any
opinion on appellant’s ability to work.
For these reasons, the Office properly terminated appellant compensation effective
July 18, 2008 on the grounds that she refused an offer of suitable work.16
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
July 18, 2008 on the grounds that she refused an offer of suitable work.

14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

15

Appellant asserted that Dr. Shaer suggested that she stop taking certain medications but indicated that she
would have increased pain without taking them. Dr. Shaer actually noted that appellant could take all her usual
medications and still would be able to perform the offered position.
16

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing her with an opportunity to accept the modified mail processing clerk position
after informing her that her reasons for initially refusing the position were not valid; see generally Maggie L. Moore,
42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 24, 2008 and July 18, 2007 decisions are affirmed.
Issued: November 10, 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

7