United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION, MEDICAL
CENTER, East Orange, NJ, Employer
__________________________________________

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

Docket No. 09-389
Issued: October 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 24, 2008 appellant filed a timely appeal from an August 7, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
affirming the January 9 and February 7, 2008 merit decisions of the Office that terminated her
entitlement to wage-loss and schedule award compensation benefits. Pursuant to 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 the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2) on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On June 25, 2004 appellant, a 66-year-old nurse, alleged that she experienced dizziness
after being struck on the head by a patient on April 4, 2003. This claim was accepted for left
capsulitis of the shoulder, myalgia and myositis of the neck and shoulder. Appellant stopped

work on April 4, 2003 and returned to work in a limited-duty capacity on April 28, 2003. She
filed for recurrence of disability on October 5, 2003. This claim was accepted for cervical
radiculopathy and herniated disc at C6-7. Following further development, the Office accepted
appellant’s claim for bilateral carpal tunnel syndrome.
In an October 18, 2004 report, Dr. Yan Chun Zhang, a Board-certified neurologist,
diagnosed appellant with cervical radiculopathy, carpal tunnel syndrome and left supraspinator
tendinitis. Because of her cervical radiculopathy and lumbosacral radiculopathy with disc
bulging, he recommended that she avoid heavy lifting. Dr. Zhang also asserted that appellant
was permanently disabled.
The Office referred appellant, together with a statement of accepted facts and a list of
questions, to Dr. David Rubinfeld, a Board-certified orthopedic surgeon, for a second opinion
evaluation. By report dated February 21, 2006, Dr. Rubinfeld noted that appellant had returned
to work on January 13, 2006 performing limited duties. He reported that physical examination
and an electromyogram (EMG) revealed carpal tunnel in both hands. Dr. Rubinfeld opined that
appellant’s carpal tunnel was produced by repetitive activity involved in computer work. He
noted that bilateral carpal tunnel release was indicated. Dr. Rubinfeld opined that appellant was
able to perform her normal work but had to limit repetitive hand use to two hours per day. He
asserted that her disability was due to carpal tunnel syndrome and was not related to her other
accepted conditions.
To resolve the conflict of medical opinion concerning appellant’s diagnosis and her
continued disability, the Office referred her, the entire medical record including the statement of
accepted facts, together with a list of questions, to Dr. Robert Greenblum, a Board-certified
orthopedic surgeon for a referee examination.
By report dated November 13, 2006,
Dr. Greenblum reviewed the history of injury and the medical evidence of record. He noted that
appellant was injured at work on April 4, 2003 when she was struck by a patient and she
subsequently fell to the floor onto her hands and knees. Dr. Greenblum noted that appellant
stated that she has been living with her injuries for years with only minimal improvement and
that she has been unable to work for the past couple of years because of her injuries.
Dr. Greenblum reported that examination revealed mild limitation of motion of the neck
in all directions. He noted that there was diffuse tenderness in the neck region as well as in all
the paracervical musculature and trapezia bilaterally. Examination of appellant’s left shoulder
revealed abduction and forward elevation were both greater than 135 degrees and that internal
rotation appeared to be grossly within normal limits. Examination of both wrists revealed 60
degrees of dorsi and palmar flexion. Dr. Greenblum reported that appellant was able to move
both wrists and that sensation appeared to be intact. He noted that a magnetic resonance imaging
(MRI) scan of her left shoulder revealed hypertrophic degenerative changes in the
acromioclavicular joint region with some mild impingement. An MRI scan of appellant’s
cervical spine, performed October 7, 2003, revealed degenerative changes with some foraminal
encroachments along with evidence of central disc herniation at the C6-7 levels. Finally,
Dr. Greenblum reported that results from an EMG and nerve conduction study (NCS) conducted
July 23, 2004 were consistent with bilateral nerve entrapment in her wrists. Noting the presence
of central disc herniation at C6-7 level, Dr. Greenblum diagnosed appellant with bilateral carpal
tunnel syndrome.

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Responding to the Office’s questions, Dr. Greenblum opined that appellant had recovered
from the injuries to her neck, shoulder and lower left extremity that she sustained on
April 4, 2003. Concerning appellant’s wrists, however, he noted that the EMG and NCS
demonstrated the presence of bilateral carpal tunnel syndrome, which he attributed to the type of
work she performed and which may have been exacerbated by her fall on April 4, 2003.
Dr. Greenblum opined that her injuries were directly related to the April 4, 2003 incident and
that continued treatment for both wrists was indicated. He opined that appellant had sustained
some mild permanent disability regarding the range of motion of her neck region. As to
appellant’s carpal tunnel, Dr. Greenblum opined that further treatment was indicated and that she
may need to undergo surgical release to relieve her symptoms because she had exhausted
conservative treatments.
Dr. Greenblum opined that, although appellant was unable to perform the full duties of
her employment as a nurse, she was able to perform her usual job for eight hours per day with
restrictions. He limited work activities involving bending/stooping and twisting to a maximum
of two hours per day. Dr. Greenblum restricted activities involving lifting, pulling and pushing
to no more than 10 pounds and for no more than two hours per day. Also restricted to a
maximum of two hours per day were activities involving repetitive movements, squatting,
kneeling and climbing.
By letter dated May 2, 2007, the employing establishment offered appellant a limitedduty assignment as a nurse. The position limited activities requiring repetitive wrist and elbow
movements to two hours per day. Activities requiring pushing, pulling and lifting were limited
to 10 pounds and no more than two hours per day. Also limited to two hours per day were
activities requiring squatting, kneeling, climbing, twisting and bending/stooping.
In an April 27, 2007 report (Form CA-20), Dr. Zhang diagnosed appellant with carpal
tunnel syndrome and opined that this condition was caused or aggravated by her employment.
He checked the box indicating that she had not been advised to return to work.
By letter dated May 4, 2007, appellant reported that she could neither accept nor reject
the offered position. She stated that she was in the process of contacting her physician to discuss
with him whether the position was suitable.
By decision dated May 8, 2007, the Office notified appellant that it found the offered
position suitable to her work capabilities as defined by Dr. Greenblum’s report. It noted that,
upon acceptance of this position, she would be paid compensation based upon the difference (if
any) between the pay of the offered position and the pay of the position on the date of injury.
Appellant could accept the position with no penalty. The Office also advised her that she had 30
days from the date of its letter during which she must either accept the position or provide an
explanation of the reasons for not accepting it. Finally, it notified appellant that, if she failed to
accept the position and failed to demonstrate that such failure was justified, her compensation
would be terminated.
In a letter dated May 21, 2007, appellant, through her attorney, submitted two medical
reports that her attorney asserted demonstrated that appellant was still disabled as a result of her
April 4, 2003 employment injury and that the offered limited-duty position was not suitable

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work. In a May 14, 2007 report, Dr. Zhang noted that an EMG and nerve conduction velocity
revealed radiculopathy and carpal tunnel syndrome. He diagnosed appellant with bilateral carpal
tunnel syndrome, left shoulder cervical radiculopathy and a left shoulder injury. Because
appellant reported poor functioning at her prior writing job, Dr. Zhang opined that she was not
able to return to work. In subsequent reports, CA-20 forms, Dr. Zhang again diagnosed
appellant with carpal tunnel syndrome and checked the box indicating that she was not able to
return to work.
By decision dated June 25, 2007, the Office notified appellant that the offered position
had been evaluated and found to be suitable and within the restrictions identified by the medical
evidence of record. It noted that it had reviewed the recently submitted evidence and found it
insufficient to change its determination concerning the suitability of the offered position. The
Office advised appellant that, under the penalty provisions of the Federal Employees’
Compensation Act, a partially disabled employee who refuses to seek or neglects to accept
offered suitable work is not entitled to compensation. It notified her that, if she did not accept
the offered position or failed to report for work when scheduled, her compensation benefits
would be terminated within 15 days. It noted that appellant would retain her entitlement to
medical care.
Appellant submitted a report (Form CA-20) signed by Dr. Zhang bearing a date that is
illegible. Dr. Zhang diagnosed her with carpal tunnel syndrome and checked the box indicating
that she was not able to return to work. Appellant also submitted a series of CA-20 forms dated
August 1, September 17, November 2 and December 10, 2007 in which Dr. Zhang again
diagnosed her with carpal tunnel syndrome and checked the box indicating that she was not able
to return to work.
Appellant did not accept the offered position, and by decision dated January 9, 2008, the
Office terminated compensation, effective January 9, 2008, because the evidence established that
she refused suitable work. The Office acknowledged receipt of the report from Dr. Zhang and
arguments submitted by appellant’s attorney but found this evidence unpersuasive as
Dr. Zhang’s medical report made no mention of her limitations nor furnished a medical rationale
with his opinion. It found the weight of the medical evidence to rest with Dr. Greenblum. This
decision was amended and reissued on February 7, 2008.
Appellant disagreed and, through her attorney, requested an oral hearing. A hearing was
conducted on May 15, 2008, at which she and her attorney were present. Appellant testified that
the offered positions were not suitable work. She stated that she attempted to return to work in a
light-duty capacity for four hours per day. Appellant testified that she could not perform the
duties associated with this position because of her condition. She would not push gurneys
because they exceeded the restrictions provided by her physician and that after a period of time
she developed severe pain in her neck and shoulders and dizziness whenever she moved her
head. Appellant testified that she still experiences pain in her hands and that both of her hands
were swollen, a condition that only becomes worse with use. She testified that she has difficulty
driving. Appellant noted that her husband drove her to the hearing and that during the drive she
experienced muscle spasms in her neck.

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Appellant’s attorney argued that the offered position did not match the medical
restrictions. He argued that the offered position was essentially a full-time nursing position that
involved repetitive motions throughout the day and therefore there was no way the position could
be successfully performed with a two-hour restriction on repetitive motions. Appellant’s
attorney also argued that the offered position was the same position she unsuccessfully attempted
to do for four hours per day in February 2006. He argued that appellant could not do this
position in February 2006 and that an eight-hour position would also not be suitable. Appellant’s
attorney argued that Dr. Greenblum’s report was based on a December 1, 2005 statement of
accepted facts and therefore did not reflect a year of activity which included appellant’s
unsuccessful attempt to return to work in February 2006. He also argued that Dr. Greenblum’s
report established that appellant was not capable of performing the full duties as a nurse and
therefore the offered position was not suitable work as it was a full eight-hour nursing position.
By note dated June 9, 2008, the employing establishment reported that the offered
position prepared patients for procedures and required a basic assessment involving
documentation that was abbreviated and templated requiring only the point and click of the
mouse to complete. The employing establishment noted that it was aware of appellant’s
limitations and that assistance was provided to appellant. It noted that the offered position was
very modified compared to that of a regular nurse. The employing establishment acknowledged
that the restrictions included a 10-pound lifting, pulling and pushing limitation and therefore
reported that appellant would not be required to push a gurney. It reported that the offered
position involved duties that allowed for nonrepetitive motion of her wrists and elbows such as
escorting ambulatory patients to procedure areas, speaking with patients, providing education
and performing patient callbacks. The employing establishment noted that the preprocedure
requirements consisted mostly of patient interviews and completion of necessary consent forms,
preprocedure checklists and laboratory results.
Responding to her attorneys’ arguments, the employing establishment reported that the
offered position was not a full-time position and conformed with the restrictions provided by
Dr. Greenblum. It asserted that the position it offered in February 2006 was based on the
limitation provided by appellant’s attending physician. The employing establishment noted that
the only restriction at that time limited her lifting to 25 pounds and a four-hour workday. The
position that was currently being offered to appellant was based on the restrictions identified by
Dr. Greenblum. The employing establishment asserted that under no circumstances would
appellant be expected to work beyond her physical limitations.
In a June 24, 2008 note, appellant asserted that her physician, Dr. Zhang, did not release
her to the offered position. She alleged that she experienced constant pain in her shoulder and
neck as well as swelling in both hands and dizziness. Appellant reported that she has difficulty
ambulating due to pain in her left hip and swelling in her left knee. She alleged that the offered
position was the same position she unsuccessfully attempted to perform in 2006. Appellant
argued that she could not tolerate the position in 2006 and did not believe that she could tolerate
it now.
By decision dated August 7, 2008, the hearing representative found that the evidence of
record demonstrated that appellant had refused, without justification, an offered position that was

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medically, vocationally and educationally suitable.
January 9 and February 7, 2008 decisions.

Consequently, it affirmed the Office’s

LEGAL PRECEDENT
Section 8106(c)(2) of the Act states that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him is not entitled to compensation.1 The Office has authority under this section to
terminate compensation for any partially disabled employee who refuses or neglects suitable
work when it is offered. Before compensation can be terminated, however, it has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.2 In other words, to justify termination of compensation under 5 U.S.C. § 8106(c)(2),
which is a penalty provision, the Office has the burden of showing that the work offered to and
refused or neglected by appellant was suitable.3
With respect to the procedural requirements of termination under 5 U.S.C. § 8106(c), the
Board has held that the Office must inform appellant of the consequences of refusal to accept
suitable work and allow her an opportunity to provide reasons for refusing the offered position.4
If appellant presents reasons for refusing the offered position, the Office must inform the
employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
her a final opportunity to accept the position.5
Office regulations state that the Office shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter the Office’s finding of suitability. If the employee presents such reasons and
the Office determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.
At that point in time, the Office’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.6
Once the Office advises a claimant that his or her reasons for refusing an offered position
are unacceptable and that he or she has 15 days to accept the position or have compensation
terminated, the claimant submits further reasons and supporting evidence at his or her own risk.

1

5 U.S.C. § 8106(c)(2).

2

M.L., 57 ECAB 746, 750 (2006); Frank J. Sell, Jr., 34 ECAB 547, 552 (1983).

3

M.L., supra note 2; Albert Pineiro, 51 ECAB 310, 312 (2000).

4

Alfred Gomez, 53 ECAB 149, 150 (2001); see Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon.,
43 ECAB 818, 824 (1992).
5

Id.

6

20 C.F.R. § 10.516.

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Nevertheless, it must consider the reasons and evidence and can then concurrently reject them as
unacceptable and terminate compensation.7
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. It terminated
her compensation effective February 7, 2008 because she refused suitable work. The Board
finds that the Office met its burden of proof in terminating appellant’s compensation under 5
U.S.C. § 8106(c)(2) for refusal of suitable employment effective February 7, 2008 and that she
did not establish that her refusal of suitable work was justified.
In developing the medical evidence, the Office properly referred appellant to
Dr. Greenblum, a Board-certified orthopedic surgeon, for an impartial medical examination
because a conflict of medical opinion arose between Dr. Rubinfeld, the Office’s second opinion
physician, and Dr. Zhang, appellant’s attending physician. 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.8
The Board finds that Dr. Greenblum’s opinion is well rationalized and based on a proper factual
and medical history.
Dr. Greenblum accurately summarized the relevant medical evidence, provided detailed
findings on examination and reached conclusions about appellant’s condition, which comported
with his findings.9 He reported that the EMG and NCS demonstrated the presence of bilateral
carpal tunnel syndrome that he attributed to the type of work appellant did and which may have
been exacerbated by her fall on April 4, 2003. Dr. Greenblum opined that her injuries were
directly related to the April 4, 2003 incident and that continued treatment for both wrists was
indicated. He recognized that appellant was unable to perform her full duties of her employment
as a nurse.
In a work capacity evaluation, Dr. Greenblum noted that appellant had reached the point
of maximum medical improvement. He also reported that she was able to perform her usual job
for eight hours per day with restrictions. Work activities involving bending/stooping and
twisting were restricted to a maximum of two hours per day. Dr. Greenblum restricted activities
involving lifting, pulling and pushing to no more than 10 pounds and for no more than two hours
per day. Also restricted to a maximum of two hours per day were activities involving repetitive
movements, squatting, kneeling and climbing. The Board finds Dr. Greenblum’s report is
detailed, well rationalized and based on a proper factual background and therefore is entitled to
the special weight accorded an impartial medical examiner.10

7

Melvin James, 55 ECAB 406, 409 (2004); C.W. Hopkins, 47 ECAB 725, 727-28 (1996).

8

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

9

Manuel Gill, 52 ECAB 282 (2001).

10

Darlene R. Kennedy, 57 ECAB 414 (2006).

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On May 2, 2007 the employing establishment offered appellant an eight-hour per day
limited-duty position as a nurse that was consistent with Dr. Greenblum’s November 13, 2006
report. The position limited activities requiring repetitive wrist and elbow movements to two
hours per day. Activities requiring pushing, pulling and lifting were limited to 10 pounds and no
more than two hours per day. Also limited to two hours per day were activities requiring
squatting, kneeling, climbing, twisting and bending/stooping. The Board notes that the
requirements of the modified nurse position are within the work restrictions set by
Dr. Greenblum. Accordingly, the Board finds that the medical evidence of record establishes
that at the time the job offer was made appellant was capable of performing the modified
position.11
Prior to terminating compensation under 5 U.S.C. § 8106(c), the Office must first inform
the claimant of the consequences of refusal to accept suitable work and allow the claimant an
opportunity to provide reasons for refusing the offered position. If the claimant presents reasons
for refusing the offered position, it must inform the claimant if it finds the reasons inadequate to
justify the refusal of the offered position and afford the claimant a final opportunity to accept the
position. If the Office fails to inform appellant of whether or not the reasons offered were
sufficient to justify refusal of the suitable work position, it has failed to meet the procedural
requirements of section 8106(c)(2).12
On May 8, 2007 the Office advised appellant that the offered position was suitable and
conformed to the work limitations provided by Dr. Greenblum. It allowed appellant 30 days to
accept the position or provide her reasons for refusal. The Office advised that an employee who
refuses an offer of suitable work without reasonable cause is not entitled to compensation.
Appellant rejected the offered position and, through counsel, submitted additional reports which
counsel argued established that the offered position was not medically suitable.
By decision dated June 25, 2007, the Office notified appellant that the offered position
had been evaluated and found to be suitable and within the restrictions identified by the medical
evidence of record. It noted that it had reviewed the recently submitted evidence and found it
insufficient to change its determination concerning the suitability of the offered position. The
Office notified appellant that, if she did not accept the offered position or failed to report for
work when scheduled, her compensation benefits would be terminated within 15 days. The
Board finds the Office has satisfied the procedural requirements of section 8106(c)(2).13
The Board has carefully reviewed the medical evidence and appellant’s arguments in
support of her refusal of the modified nurse position and finds that they are not sufficient to
support her refusal of the position. Appellant’s attorney argues that the Office failed to establish
that the offered position was medically and vocationally suitable work. He asserted that
appellant’s testimony established that the offered position was not medically suitable and that the
11

See John E. Lemker, 45 ECAB 258 (1993).

12

Howard Y. Miyashiro, 51 ECAB 253 (1999); Maggie L. Moore, supra note 4, reaff’d on recon., 43 ECAB
818 (1992).
13

Id.

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offered position was essentially the same modified light-duty position that appellant
unsuccessfully attempted to perform in February 2006. Appellant was unable to perform the
position then and, counsel asserted, she definitely could not perform these duties now,
particularly eight hours per day.
The Board finds that the evidence of record does not support appellant’s view. The
determination 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.14 While counsel argued Dr. Zhang’s reports established that appellant is
permanently disabled from work and therefore the offered position is not suitable, the Board
finds Dr. Zhang’s medical reports, as appellant’s treating physician, created the conflict of
evidence that required the referral to the impartial medical specialist. Although, Dr. Zhang’s
medical reports are insufficient to overcome the weight accorded Dr. Greenblum’s reports.15
Appellant has not shown that her refusal to work was justified. The weight of the medical
evidence continues to support that her accepted conditions did not prevent her from performing
the job she was offered.
Furthermore, the record does not establish that the offered position is essentially the same
as the position that appellant unsuccessfully attempted in February 2006. The record reflects
that, to date, appellant has not accepted the offered position, returned to work or attempted to
return to work. Thus, appellant’s assertion that the offered position is essentially the same as the
one she was offered in February 2006 lacks an adequate foundation because she has not reported
for duty and has no first-hand knowledge to support her assessment.
Appellant’s attorney argued that Dr. Greenblum’s report did not confirm that appellant
could perform the offered position because it was based on an out-dated statement of facts.
Counsel argued that the statement of facts furnished to Dr. Greenblum was a year old by the time
he evaluated appellant and did not include the fact that she unsuccessfully attempted to return to
work in February 2006. The Board notes in this regard that Dr. Greenblum questioned appellant
regarding her work history since the accepted injury. Furthermore, Dr. Greenblum was provided
with the entire medical record, which included the February 21, 2006 report of the second
opinion physician who noted that appellant had returned to work in a limited-duty position.
The Office was not required, under its procedural manual, to include in the statement of
facts that appellant had unsuccessfully attempted to return to work in February 2006.16 In
securing the opinion of a medical specialist, the Office’s procedures note that a statement of
accepted facts and questions are to be prepared by the claims examiner for use by the
physician.17 Specifically, the claims examiner is required to correctly set forth the relevant facts
of the case, including the employee’s date-of-injury, age, job held when injured, the mechanism
14

Robert Dickinson, 46 ECAB 1002 (1995).

15

See Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy Sidwell, 41 ECAB 857 (1990).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.12
(October 2005).
17

Id.

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of injury and any conditions claimed or accepted by the Office.18 The procedural manual also
provides that appellant’s employment history, including periods of return to full or light duty, is
not an essential issue that must be provided in a statement of facts.19
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment effective
February 7, 2008 and that she did not establish that her refusal of suitable work was justified.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review and the Office is affirmed.
Issued: October 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

18

Id. Other information pertaining to medical treatment received the employee’s personal habits and off-duty or
family activities may be included as the case warrants.
19

Federal (FECA) Procedure Manual, supra note 16 at Chapter 2.809.13 (October 2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 10-1998
Issued: September 19, 2011

Case Submitted on the Record

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

JURISDICTION
On July 29, 2010 appellant timely appealed the July 15, 2010 merit decision of the Office
of Workers’ Compensation Programs (OWCP), which denied modification of a prior decision
that terminated wage-loss compensation and medical benefits. Pursuant to the Federal
Employees’ Compensation Act1 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective May 12, 2010.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its July 15, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, a 50-year-old transportation security officer, was injured on December 5, 2009
when she fell from a 20-inch high platform and landed on her back. OWCP accepted her claim
for cervical, thoracic and lumbar sprains. Appellant stopped work the day of her injury. She
received continuation of pay through January 19, 2010. Afterwards, OWCP paid wage-loss
compensation from January 20 through February 1, 2010.
After initially receiving treatment in the emergency room, appellant sought treatment
from Dr. Mark M. Weisberg, a Board-certified family practitioner, who examined her on
December 10, 2009, and noted that she had been injured in a fall on December 5, 2009.
Dr. Weisberg diagnosed cervical strain, thoracic strain, lumbar strain and contusion of the
lumbar region. He recommended physical therapy and advised appellant to return for follow-up
in five days. Dr. Weisberg saw appellant on three more occasions through December 28, 2009.
Medication and physical therapy did not improve appellant’s condition, and therefore,
Dr. Weisberg referred her to an orthopedic/spine surgeon.
Dr. Thomas L. Vater, an orthopedic surgeon, examined appellant on January 11, 2010.
His impression was cervical, thoracic and lumbar back pain, with lumbar radiculopathy.
Dr. Vater noted that appellant’s condition was secondary to a fall. He ordered magnetic
resonance imaging (MRI) scans of the cervical, thoracic and lumbar spine. Dr. Vater also
indicated that appellant was able to perform limited-duty work, one to two hours per day.3
After reviewing appellant’s January 25, 2010 MRI scans, Dr. Vater indicated that she
could work full time with restrictions beginning February 1, 2010.4 He noted that the scans did
not reveal any surgical lesions. Also, there was no instability and no cord compression
secondary to disc herniations. However, there was evidence of degenerative disease.5
Dr. Vater’s diagnosis remained the same -- cervical, thoracic and lumbar back pain, with lumbar
radiculopathy to the lower extremities. Because surgical intervention was not an option, he
referred appellant to physical medicine and rehabilitation. Dr. Vater specifically recommended a
Dr. Victor B. Klausner.
In a report dated February 10, 2010, Dr. Klausner indicated that appellant sustained
contusions of the left hip, left shoulder, lumbar spine and scalp on December 5, 2009.6 He
believed all of appellant’s employment-related conditions had since resolved, and thus, she did
not require further medical treatment. From a physiological standpoint, Dr. Klausner released
3

Appellant’s limitations included lifting up to five pounds, no climbing ladders/stairs, no kneeling, no
bending/stooping, no bending at the waist, no sitting and no driving. Dr. Vater also indicated that appellant should
be able to change positions as needed and she should avoid reaching above shoulders.
4

With the exception of the number of hours worked and the ability to reach above shoulders, the restrictions
remained unchanged from January 11, 2010.
5

The MRI scan of the thoracic spine revealed spondylosis and scoliosis. The January 25, 2010 lumbar MRI scan
showed advanced spondylosis due to acquired degenerative changes upon a background of scoliosis. The latest
cervical MRI scan revealed disc dessication throughout the cervical spine with mild loss of disc height at C4-5 level,
and more pronounced disc space narrowing at C5-6 level.
6

Although not a physiatrist, Dr. Klausner is Board-certified in both Family Medicine and Sports Medicine.

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appellant to full duty without restrictions. He also noted a high degree of symptom
magnification and psychological pathology with panic disorder and somatization disorder, which
were reportedly nonindustrial.7 Dr. Klausner further diagnosed preexisting thoracolumbar
scoliosis with degenerative disc disease, osteoarthritis, mild stenosis and physical
deconditioning. Lastly, he diagnosed preexisting migraine headache.
Dr. James S. Bertie, a family practitioner, examined appellant on February 27, 2010 and
diagnosed chronic pain secondary to trauma.8 He noted that appellant had fallen on the job on
December 5, 2009. Dr. Bertie placed appellant on restricted duty from February 27 to March 12,
2010, with no pulling, no lifting and no constant shifting.
Appellant reported to work on March 13, 2010 and after a few hours she was transported
to the emergency room (ER) via ambulance. She was treated for acute low back pain, right acute
sciatica and cervical radiculopathy. The ER treatment records indicated that appellant had
previously fallen at work in December 2009.9
Appellant had a follow-up visit with Dr. Weisberg on March 16, 2010. He diagnosed
cervical strain and lumbar strain. Appellant was advised that she could return to work on
March 17, 2010 with a five-pound lifting restriction. She was also advised to sit 100 percent of
the time.
Dr. Weisberg referred appellant to Dr. Firooz Mashhood, a physiatrist, who examined her
on March 25, 2010. He did not request any additional studies or review any of the previous
x-rays or MRI scans. Dr. Mashhod noted that appellant was involved in an employment-related
fall on December 5, 2009. On physical examination, he noted that appellant was not in any acute
pain, but she demonstrated moderate pain behavior. Dr. Mashhood diagnostic impressions were
status post industrial-related scalp contusion with complaint of headache and status post
industrial-related lumbar spine contusion with complaint of low back pain, without objective
findings. His nonindustrial-related findings included pain and disability behavior and positive
Waddell sign. Dr. Mashhood explained that there was a lot of pain behavior and disability
behavior, and restricted range of motion, but no objective findings to support any structural
damage. He further noted that he had explained to appellant that soft tissue injuries were selflimiting and usually healed within six to eight weeks. Dr. Mashhood believed her prognosis was
good with respect to the industrial-related injury of December 5, 2009, but in reference to her
pain and disability behavior, appellant’s prognosis was poor. He stated that appellant’s pain and
disability behavior had nothing to do with the injuries sustained on December 5, 2009.

7

Dr. Klausner’s physical examination reportedly revealed 5/5 Waddell signs and eight distinct signs of symptom
magnification. He did not believe appellant “psychologically fit” to return to work as a transportation security
officer. Dr. Klausner characterized her as “psychologically unstable,” and encouraged appellant to seek psychiatric
treatment immediately.
8

Additional x-rays were obtained on February 27, 2010, which revealed degenerative disc disease at C5-6 and
scoliosis in the thoracic and lumbar spine.
9

Another set of x-rays were obtained that showed mild spondylotic changes in the cervical spine and mild
levoscoliosis of the lumbar spine.

3

Dr. Mashhood recommended physical therapy and limited duty with restrictions of no lifting
over 20 pounds and no bending more than seven times per hour.10
In a decision dated May 12, 2010, OWCP terminated compensation and medical benefits
based on Dr. Klausner’s February 10, 2010 opinion.11 On May 18, 2010 appellant requested
reconsideration.
By decision dated July 15, 2010, OWCP considered the merits of the claim, but denied
modification. It found that the weight of the evidence, as represented by Dr. Klausner’s report,
established that all of appellant’s accepted medical conditions had resolved.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.12 Having determined that an employee has a disability
causally related to her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the
employment.13 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability.14 To terminate authorization for medical
treatment, OWCP must establish that the employee no longer has residuals of an employmentrelated condition which require further medical treatment.15
ANALYSIS
The Board finds that OWCP improperly terminated appellant’s compensation and
medical benefits based upon Dr. Klausner’s February 10, 2010 report. The May 12, 2010
decision characterized Dr. Klausner as appellant’s “treating physician” based on the single
encounter on February 10, 2010. Dr. Klausner himself, however, characterized his involvement
as merely a “Consultation.” OWCP made no specific mention of the Dr. Weisberg, who actually
treated appellant at the time. Neither the May 12 nor July 15, 2010 decision referred to any of
Dr. Weisberg’s various reports.
OWCP’s reliance on Dr. Klausner’s report is also questionable in light of the fact that he
did not specifically comment on any of the accepted conditions in the case. He believed
appellant sustained various contusions as a result of her December 5, 2009 employment injury.
However, based on Dr. Weisberg’s opinion, OWCP accepted appellant’s claim for cervical,
thoracic, and lumbar sprains. While Dr. Klausner may have legitimately believed that appellant
10

OWCP later denied authorization of the requested physical therapy.

11

OWCP did not provide appellant prior notification of its intent to terminate her compensation and medical
benefits.
12

Curtis Hall, 45 ECAB 316 (1994).

13

Jason C. Armstrong, 40 ECAB 907 (1989).

14

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

15

Calvin S. Mays, 39 ECAB 993 (1988).

4

had a psychological condition unrelated to her employment injury, he offered no salient
explanation for his apparent disagreement with OWCP’s acceptance of the claim for various
sprains. Contrary to OWCP’s finding, Dr. Klausner’s report does not establish that appellant’s
accepted conditions have ceased. Dr. Weisberg examined appellant both before and after
Dr. Klausner’s February 10, 2010 consultation and Dr. Weisberg continued to diagnose cervical
and lumbar strains as recently as March 16, 2010. Moreover, three of the four physicians who
examined appellant subsequent to Dr. Klausner apparently did not find a psychological disorder.
Under the circumstances, OWCP has not provided a legitimate basis for deferring to
Dr. Klausner’s February 10, 2010 report. Moreover, it failed to provide appellant appropriate
notice in advance of its May 12, 2010 decision terminating compensation and medical benefits.16
Accordingly, OWCP did not meet its burden to terminated compensation and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden to terminate compensation and
medical benefits effective May 12, 2010.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

See 20 C.F.R. §§ 10.540 and 10.541.

5


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

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

Docket No. 17-1498
Issued: August 1, 2018

Case Submitted on the Record

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

JURISDICTION
On June 28, 2017 appellant, through counsel, filed a timely appeal from an April 20, 2017
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 the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its April 20, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish lumbar conditions
causally related to her accepted September 26, 2015 employment incident.
FACTUAL HISTORY
On October 1, 2015 appellant, then a 47-year-old rural carrier, filed a Form CA-2a, notice
of recurrence, under OWCP File No. xxxxxx218, for medical treatment and lost time from work
beginning September 26, 2015 due to her work-related injury of February 8, 2011.4 On her CA-2a
claim form, she stated that, on September 25, 2015 she pulled a back muscle in the same area.
Appellant stopped work on September 26, 2015 and sought medical treatment. She indicated that
her back pain had been on and off, but had now worsened. No documentation was received with
the CA-2a claim form.
By development letter dated October 16, 2015, OWCP noted that appellant had claimed
that she sustained an injury on September 26, 2015, when she lifted a tray of mail to load her
vehicle and heard her back pop. It advised her that, based on her description of the September 26,
2015 incident,5 she was claiming a new traumatic injury due to new work factors, not a recurrence
of the February 8, 2011 employment injury. OWCP informed appellant that the evidence
submitted was insufficient to establish her traumatic injury claim. It requested that she respond to
an attached questionnaire in order to substantiate the factual elements of her claim and provide
medical evidence to establish a diagnosed condition as a result of her employment. OWCP
afforded appellant 30 days to submit the requested information.
On October 19, 2015 OWCP received an authorization for examination and/or treatment
(Form CA-16) from the employing establishment.
In a September 26, 2015 verification of treatment note, Helen M. Hesslon, a nurse
practitioner, indicated that appellant was seen on September 26, 2015. She further indicated that
appellant could return to work on September 29, 2015 without any restrictions.
In an October 5, 2015 progress note, Gail Longmire, a family nurse practitioner, noted that
appellant developed back pain at work while lifting on September 25, 2015. Appellant was treated
at an urgent care center the next day and physical therapy was recommended. Ms. Longmire
provided an assessment of unspecified dorsalgia. Appellant was to remain off work until evaluated
by physical therapy. Ms. Longmire also signed an October 5, 2016 duty status report, Form
CA-17.

4

Under OWCP File No. xxxxxx218, appellant filed a traumatic injury claim with date of injury of February 8, 2011
for back strain. Appellant has additional claims related to her back. These include OWCP File No. xxxxxx754 with
a date of injury of August 29, 2011 and OWCP File No. xxxxxx137 with a date of injury February 5, 2014.
5

OWCP referred to the work incident as occurring on September 26, 2015.

2

An October 5, 2015 note from Ms. Longmire indicated that appellant was treated and
unable to work on October 5, 2015. It noted that appellant could return to work post physical
therapy visit, with no restrictions.
On November 20, 2015 OWCP received an undated report from Dr. Hong Yu, a geriatric
specialist. Dr. Yu noted that appellant was first treated on October 5, 2015 for an on-the-job injury.
He indicated that her lumbosacral spine x-rays showed minimal disc space narrowing inferiorly
with loss of the usual lumbar lordosis. Dr. Yu diagnosed lower back pain with sciatica. He noted
that appellant indicated that she carried and lifted up to 75 pounds repeatedly throughout her ninehour work shifts. Dr. Yu opined that this injury “could have been sustained on the job.”
By decision dated November 20, 2015, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the established employment incident of September 26, 2015. It noted that Dr. Yu’s
opinion was of diminished probative value as, without any explanatory rationale, it was speculative
and inconclusive in nature. OWCP noted that diagnoses of pain (dorsalgia, sciatica) were
subjective symptoms and not a diagnosed medical condition. It further found that documents from
a nurse or nurse practitioner were of limited probative value unless the report was countersigned
by a physician.
On December 21, 2015 requested reconsideration. Appellant submitted copies of evidence
previously of record.
In an undated statement which OWCP received on November 30, 2015, appellant
described the events of September 25 and 26, 2015. She indicated that she was on her mail route
exchanging trays of mail, which weighed 30 to 40 pounds. As she lifted the mail tray up, appellant
felt a sharp pain in the left lower part of her back. As there was only 20 minutes left on her route,
she thought that she could finish her route. However the sharp pain was still there when appellant
got out of the vehicle to deliver the last package. It was hard for her to get out of the mail truck
and that she walked very stiffly when delivering the package. When appellant returned to the
office, her supervisor asked her to work her day off, Saturday, September 26, 2015. She told him
that she could not take any packages as it was hard for her to get out of the mail truck because of
her back. Appellant’s supervisor agreed to get help for her. Appellant related that, after working
that Saturday, her back pain worsened and she went to urgent care. She noted that she had
previously injured her back doing the same thing at the same job, but the employing establishment
indicated that they were going to treat this injury as a new claim.
In a December 15, 2015 report, Dr. Yu indicated that he had treated appellant since
October 5, 2015 for her back pain which was caused by her work as a rural mail carrier. He
provided a history of the employment events, noting that appellant had to twist from the waist to
pick up the heavy mail tray which weighed 25 to 50 pounds. When she lifted the tray, appellant
felt a sharp pain in her left and right lower back which caused pain in her lower obliques and
bilateral latissimus dorsi muscle and lumbar spine. Dr. Yu related that this information
documented how appellant’s injury occurred during her work as a rural mail carrier. He also
opined that appellant was entitled to workers’ compensation benefits for this injury.

3

By decision dated February 23, 2016, OWCP denied modification of its November 20,
2015 decision, finding that the medical evidence from Dr. Yu failed to establish that the accepted
work incident of September 26, 2015 caused or aggravated the condition noted on appellant’s
lumbar spine x-ray.
On August 22, 2016 appellant requested reconsideration.
A June 20, 2016 magnetic resonance imaging (MRI) of the lumbar spine indicated mild
multilevel disc degenerative change and moderate facet degenerative change at L4-5 without
significant neural impingement or narrowing of the central canal or neural foramina.
In a July 25, 2016 note, Tracy McLeod, a family nurse practitioner, reviewed appellant’s
chart. She opined that the September 26, 2015 events caused appellant’s lumbago and neuropathy
symptoms.
By decision dated November 3, 2016, OWCP denied modification of its February 23, 2016
decision. It found that no new medical evidence from a qualified physician was submitted which
established that appellant’s current medical conditions were causally related to the accepted
September 26, 2015 employment incident.
Appellant requested reconsideration on February 27, 2017. Letters pertaining to
appellant’s counsel’s representation were received along with a request for a copy of the case
record and a November 21, 2016 payment statement from the employing establishment.
Duplicative evidence previously of record was also received.
In a February 15, 2016 report, Dr. Neil Allen, a Board-certified internist and neurologist,
noted that on September 26, 2015 appellant reportedly experienced severe back pain after lifting
and carrying heavy parcels from her delivery vehicle while on duty as a rural carrier. He concluded
that appellant’s case should be updated to include strain/sprain of the lumbar spine. Dr. Allen
noted that lumbar sprain/strains were most frequently caused by forceful straightening from a
crouched position, as one would perform when lifting or repetitively extending from a bent
position similar to that described by appellant. The repetitive, forceful muscular contractions
required to stabilize the spine while lifting parcels on September 26, 2015 resulted in the
overstretching and microscopic tearing of the ligaments and musculature of appellant’s lumbar
spine. The surrounding soft tissues reacted and became inflamed, painful and stiff, which
restricted both function and mobility within the affected area. Dr. Allen noted that in some cases
individuals could also experience radiating symptoms into the buttocks and thighs. He opined
that, based upon the injury mechanism described by appellant, her injury resulted from the
repetitive occupational trauma she suffered during the performance of her regular work duties on
September 26, 2015.
By decision dated April 20, 2017, OWCP denied modification of its February 15, 2016
decision. It found that Dr. Allen’s report lacked a medical opinion with sufficient detailed
explanation addressing how the assessed lumbar strain/sprain was due to the September 26, 2015
traumatic injury as opposed to the preexisting injuries or conditions for which appellant had
previously filed claims.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA6 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.9 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such a causal relationship.10 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. 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.11
ANALYSIS
The Board finds that appellant failed to establish a lumbar condition causally related to the
accepted September 26, 2015 employment incident.
OWCP accepted that on September 26, 2015 appellant experienced back pain after lifting
up a heavy tray of mail while loading her delivery vehicle. In order to establish a causal
6

Supra note 2.

7

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

8

Michael E. Smith, 50 ECAB 313 (1999).

9

Elaine Pendleton, supra note 7.

10

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

11

James Mack, 43 ECAB 321 (1991).

5

relationship between a diagnosed condition and the accepted employment incident, appellant must
submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such causal relationship.12
In an undated report, Dr. Yu noted that appellant was first treated on October 5, 2015 and
diagnosed with lower back pain with sciatica for the on-the-job injury. He indicated that the
lumbosacral spine x-rays showed minimal disc space narrowing inferiorly with loss of the usual
lumbar lordosis. Dr. Yu noted that appellant indicated that she lifted and carried up to 75 pounds
repeatedly throughout her nine-hour shifts. He opined that this injury “could have been sustained
on the job.” In a December 15, 2015 report, Dr. Yu provided a history of the accepted work
incident and noted that the information documented how appellant’s injury occurred during her
work as a rural mail carrier. He concluded that appellant’s back pain was caused by her work as
a rural mail carrier and that she was entitled to workers’ compensation benefits for this injury.
While Dr. Yu found that appellant had lower back pain with sciatica, the Board has
consistently held that pain is a symptom, not a compensable medical diagnosis.13 It is also noted
that Dr. Yu generally repeated appellant’s allegations pertaining to the employment incident. Such
generalized statements do not establish causal relationship because they merely repeat appellant’s
allegations and are unsupported by adequate medical rationale explaining how this physical
activity actually caused the diagnosed conditions as indicated on the lumbar spine x-rays.14
Moreover, Dr. Yu failed to provide a detailed medical history or discuss whether there was any
prior treatment for the back.15 An unequivocal, well-rationalized opinion is particularly warranted
as it remains unclear if appellant’s claimed injury was caused by the September 26, 2015
employment incident or was a preexisting condition.16 The Board has held that medical evidence
that fails to offer a rationalized opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.17 Thus, Dr. Yu’s reports are of limited
probative value and are insufficient to meet appellant’s burden of proof.18
In his February 15, 2016 report, Dr. Allen diagnosed strain/sprain of the lumbar spine. He
noted that the history of appellant’s September 26, 2015 incident and opined that appellant’s injury
resulted from the repetitive occupational trauma she suffered during the performance of her regular
work duties on September 26, 2015 as it was both reasonable and expected based upon the
mechanism described by the appellant. However, Dr. Allen did not provide sufficient medical
rationale based on a full medical history of appellant’s prior conditions and/or injuries to her
12

T.H., 59 ECAB 388 (2008); James Mack, 43 ECAB 321 (1991).

13

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

14

K.W., Docket No. 10-98 (issued September 10, 2010).

15

James Mack, supra note 12.

16

See J.C., Docket No. 11-1980 (issued July 18, 2012).

17

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

18
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).

6

back.19 As noted, an unequivocal, well-rationalized opinion is particularly warranted as it remains
unclear if appellant’s injury was caused by the employment incident or was a preexisting
condition.20 The Board has held that medical evidence that fails to offer a rationalized opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.21 Thus, Dr. Allen’s report is of limited probative value is insufficient to meet
appellant’s burden of proof.22
Other medical evidence of record, including diagnostic test reports, are of limited probative
value as they do not specifically address whether appellant’s diagnosed conditions are causally
related to the accepted employment incident.23
The medical reports from a nurse or nurse practitioner have no probative medical value in
establishing appellant’s claim as neither one is a physician as defined under FECA.24
The Board finds that appellant failed to submit rationalized medical evidence sufficient to
support her allegation or warrant further development that she sustained a lumbar condition
causally related to the accepted September 26, 2015 employment incident.
On appeal counsel alleges that OWCP’s decision is wrong as a matter of law as it created
a fictional burden of proof. For the reasons discussed above, the Board finds that appellant has
not met her burden of proof.25

19

See supra note 14.

20

See supra note 15.

21

See C.B., supra note 17.

22

See L.M., supra note 18.

23

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).
24

See 5 U.S.C. § 8101(2); 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); L.D., 59 ECAB
648 (2008) (a nurse practitioner is not considered a physician as defined under FECA).
25

The Board notes that a Form CA-16, authorization for examination and/or treatment, was issued by the employing
establishment on October 19, 2015. When the employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300; D.H.,
Docket No. 17-0520 (issued April 23, 2018); Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure
Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).

7

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 10.607.26
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a lumbar
condition causally related to the accepted September 26, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 20, 2017 is affirmed.
Issued: August 1, 2018
Washington, DC

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

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

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

26
The Board notes that appellant may separately file a new occupational disease claim for lumbar conditions caused
by her lifting duties.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-350
Issued: June 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 25, 2007 merit decision concerning an overpayment of
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.
ISSUES
The issues are: (1) whether appellant received a $1,611.11 overpayment of compensation
for the period January 29, 2006 to August 4, 2007; and (2) whether the Office abused its
discretion by refusing to waive recovery of the overpayment.
FACTUAL HISTORY
The Office accepted that on March 29, 2005 appellant, then a 41-year-old supervisor of
transportation security screening, sustained a low back sprain and right shoulder sprain/strain

when she carried and tossed luggage. She stopped work on August 7, 2005 and the Office paid
her compensation for extended periods of disability.
The record contains documents, including monthly payment reports, detailing the
compensation that appellant received between January 29, 2006 and August 4, 2007. These
documents reveal that her compensation was calculated based on a pay rate derived from her pay
on August 7, 2005 totaling $595.78.1 A December 15, 2005 Office document indicated that this
figure was comprised of $529.78 of base pay, $39.60 of night differential pay and $26.40 of
Sunday pay.
In late July 2007, appellant returned to full-time work for the employing establishment.
She did not receive disability compensation from the Office after August 4, 2007.2 The record
contains employing establishment documents from August 2007 confirming that appellant was
entitled to receive $529.78 in base pay and $26.40 of Sunday pay on August 7, 2005. The
documents show, however, that appellant actually was entitled to receive $11.55 of night
differential pay on August 7, 2005 rather than the $39.60 figure used in prior pay rate
calculations for determining her compensation. Therefore, her total pay on August 7, 2005 was
$567.72 rather than $595.78.
In a September 7, 2007 letter, the Office advised appellant of its preliminary
determination that she received a $1,611.11 overpayment of compensation for the period
January 29, 2006 to August 4, 2007.3 It indicated that she received an incorrect amount of Office
compensation during this period because an improper pay rate calculation occurred due to the
fact that she was only entitled to receive $11.55 of night differential pay on August 7, 2005 (the
date her pay rate was fixed) rather than the $39.60 figure actually used in pay rate calculations.4
The Office indicated that it had determined that appellant was not at fault in the creation of the
overpayment and provided her an opportunity to contest the fact and amount of the overpayment
as well as to request waiver of the overpayment. It requested that she compete and return an
attached form concerning her finances and advised her that failure to submit the requested
information within 30 days of the date of the letter would result in denial of waiver of the
overpayment. Appellant did not respond.
In an October 25, 2007 decision, the Office finalized its preliminary determination that
appellant received a $1,611.11 overpayment of compensation for the period January 29, 2006 to
August 4, 2007. It found she was not at fault in the creation of the overpayment but that the
1

The Office based appellant’s pay rate on her pay on August 7, 2005, the date she first sustained disability due to
the accepted employment injury.
2

It appears that appellant earned more in the job she returned to than she did in her date-of-injury job.

3

In this notice and other documents, the Office actually stated that the $1,611.11 overpayment was created
between January 29, 2006 to June 4, 2007. However, the payment reports and other documents in the record show
that the Office only inadvertently indicated that the overpayment was created between January 29, 2006 to
June 4, 2007.
4

The Office attached worksheets showing that appellant actually received $35,299.77 between January 29, 2006
and August 4, 2007 but was only entitled to receive $33,688.66 for this period when the figure for night differential
was corrected.

2

overpayment was not subject to waiver as she had not responded within the allotted time to its
preliminary notice of overpayment by submitting the requested financial information.5
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act6 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.7 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”8
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”9 Section 8101(4) of
the Act defines “monthly pay” for purposes of computing compensation benefits as follows:
“[T]he monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater....”10
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $1,611.11 overpayment of compensation for the
period January 29, 2006 to August 4, 2007. Appellant received compensation between
January 29, 2006 and August 4, 2007 that was calculated based on a pay rate derived from pay

5

The Office also determined that the overpayment would be recovered through payments of $125.00 per month.
As recovery from continuing compensation benefits under the Act is not involved in this case, the Board has no
jurisdiction over the amount the Office determined that appellant should repay each month. Levon H. Knight,
40 ECAB 658, 665 (1989).
6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8102(a).

8

5 U.S.C. § 8129(a).

9

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
10

5 U.S.C. § 8101(4).

3

on August 7, 2005 totaling $595.78.11 The Office presented documents from the employing
establishment showing that appellant actually was entitled to receive $11.55 of night differential
pay on August 7, 2005 rather than the $39.60 figure used in prior pay rate calculations for
determining her compensation. The record also contains documents which show that appellant
received $35,299.77 in Office compensation for the period January 29, 2006 to August 4, 2007
whereas she was only entitled to receive $33,688.66 for this period when the correct figure for
night differential on August 7, 2005 is used. Therefore, the Office properly determined that
appellant received a $1,611.11 overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.12 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”13 When the Office finds a
claimant to be without fault in the matter of the overpayment, then, in accordance with section
8129(b), the Office may only recover the overpayment if it is determined that recovery of the
overpayment would neither defeat the purpose of the Act nor be against equity and good
conscience.
Section 10.438 of the Office’s regulations provides:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the [Act] or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”14

11

This figure was comprised of $529.78 of base pay, $39.60 of night differential pay and $26.40 of Sunday pay.
The Office based appellant’s pay rate on her pay on August 7, 2005, the date she first sustained disability due to the
accepted employment injury. See supra notes 9 and 10 and accompanying text concerning when to assess monthly
pay for pay rate calculation purposes. Appellant has not challenged the Office’s use of the date August 7, 2005, the
date when her disability began and the record does not otherwise show that use of this date was improper.
12

See Robert Atchison, 41 ECAB 83, 87 (1989).

13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.438.

4

ANALYSIS -- ISSUE 2
The Board finds that the Office did not abuse its discretion by refusing to waive recovery
of the overpayment. The Office properly determined that appellant did not establish entitlement
to waiver of the overpayment under the above-described standards. Appellant did not provide
sufficient financial information within the appropriate time period to show that she was entitled
to waiver of the overpayment. In its September 7, 2007 preliminary notice of overpayment, the
Office indicated that it had determined that appellant was not at fault in the creation of the
overpayment and provided her an opportunity to contest the fact and amount of the overpayment
as well as to request waiver of the overpayment. It requested that appellant compete and return
an attached form concerning her finances and advised her that failure to submit the requested
information within 30 days of the date of the letter would result in denial of waiver of the
overpayment. However, appellant did not submit the requested financial information within the
allotted time and, under 20 C.F.R. § 10.438, the Office properly denied waiver of the $1,611.11
overpayment.15
CONCLUSION
The Board finds that appellant received a $1,611.11 overpayment of compensation for the
period January 29, 2006 to August 4, 2007. The Board further finds that the Office did not abuse
its discretion by refusing to waive recovery of the overpayment.

15

See supra note 14 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 25, 2007 decision is affirmed.
Issued: June 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, ROSWELL
CROSSTOWN ANNEX, Roswell, GA, Employer
__________________________________________

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

Docket No. 07-619
Issued: June 14, 2007

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 January 3, 2007 appellant filed a timely appeal from a November 30, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs, that denied her request for an oral
hearing and a September 19, 2006 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award issue and the nonmerit decision.
ISSUES
The issues are: (1) whether appellant has more than seven percent permanent impairment
of the right arm, for which she received a schedule award; and (2) whether the Office properly
denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On November 4, 2005 appellant, then a 46-year-old letter carrier, sustained a right arm
injury when she attempted to move a case of mail. She stopped work on November 4, 2005 and
returned on November 14, 2005. The Office accepted the claim for bilateral shoulder bursitis
and a right rotator cuff tear.

A December 15, 2005 magnetic resonance imaging (MRI) scan of appellant’s right
shoulder noted a diffuse increased signal throughout the rotator cuff consistent with underlying
tendinosis. Dr. Jerry Domescik, a Board-certified radiologist, diagnosed diffuse tendinosis of the
rotator cuff associated with a near full thickness tear involving the supraspinatus tendon at its
attachment to the greater tuberosity and down projecting degenerative changes of the
acromioclavicular joint compromising the subacromial space consistent with clinical
impingement. In a January 3, 2006 report, Dr. Wing K. Chang, a Board-certified physiatrist and
appellant’s treating physician, diagnosed bilateral rotator cuff tendinitis, right greater than left,
right rotator cuff tear and neck and upper back myofascial pain. He noted that appellant had
positive signs of impingement and continuing weakness in her right rotator cuff.
In a January 11, 2006 report, Dr. Douglas H. Murray, a Board-certified orthopedic
surgeon and associate of Dr. Chang, diagnosed right shoulder pain with overlapping neck pain as
well as a significant partial thickness rotator cuff tear. He noted the results of the December 15,
2005 MRI scan and reported that appellant’s active range of motion for the right shoulder was
170 degrees of flexion with pain and 30 degrees of external rotation.
In a May 17, 2006 report, Dr. Murray provided an impairment rating. He measured
100 degrees of active flexion of the right shoulder, 140 degrees of passive flexion, 100 degrees
of abduction, 90 degrees of internal rotation and 90 degrees of external rotation. Dr. Murray also
noted that appellant’s rotator cuff strength was slightly diminished and that she had minimally
positive impingement symptoms. He concluded:
“[Appellant’s] impairment rating according to the [American Medical
Association, Guides to the Evaluation of Permanent Impairment, fifth edition
(A.M.A., Guides)] is seven percent whole person. This is obtained with the range
of motion above, using [F]igure 16-40 for flexion, 16-46 for rotation and 16-43
for abduction. Table 16-35 is used for some weakness on [flexion] and then the
upper extremity impairment of 9 percent for motion and 3 percent for weakness
gives a 12 percent upper extremity impairment, which is 7 percent whole person
regarding her shoulder injury.”
On July 31, 2006 appellant requested a schedule award.
In an August 2, 2006 report, an Office medical adviser reviewed Dr. Murray’s
impairment rating and calculated appellant’s impairment based upon loss of range of motion.
Using Dr. Murray’s measurements, he found that 140 degrees of flexion corresponded to a three
percent impairment and 100 degrees of abduction corresponded to a four percent impairment
rating for the right arm. The Office medical adviser found that appellant’s adduction and
extension were normal and also noted that 90 degrees of internal and external rotation
corresponded to no permanent impairment. He added the impairment values from flexion and
abduction to determine that appellant had seven percent permanent impairment of the right arm.
The Office medical adviser explained that he relied upon the A.M.A., Guides, fifth edition, pages

2

476-79 in his calculations.1 He found that appellant reached maximum medical improvement on
May 17, 2006, the date of Dr. Murray’s examination.
On August 9, 2006 the Office informed Dr. Murray of the medical adviser’s rating of
seven percent permanent impairment of appellant’s right arm. It requested his opinion on this
determination.
Dr. Murray responded on August 23, 2006. Although he stated that he had explained
why the Office should find that appellant had 12 percent permanent impairment of the right arm,
he added: “I think seven percent impairment is fine. I think it would be better to just seal it at
seven percent and say I agree with it and allow them to close the case.”
On September 26, 2006 the Office granted appellant a schedule award for seven percent
permanent impairment of the right arm.
On October 30, 2006 appellant requested an oral hearing. She provided an October 11,
2006 report from Dr. Murray and an October 24, 2006 report from Dr. Chang.
By decision dated November 30, 2006, the Office denied appellant’s oral hearing request
as untimely filed. The Office also declined to grant a discretionary hearing, advising that the
matter could be equally well addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
ANALYSIS -- ISSUE 1
The Board finds that appellant has no more than seven percent impairment of the right
arm. The record reflects that the Office accepted appellant’s claim for bilateral shoulder bursitis
and right shoulder rotator cuff tear. On May 17, 2006 appellant’s physician, Dr. Murray, found
that appellant had 12 percent impairment of the right arm. He measured 100 degrees of active
flexion, 140 degrees of passive flexion, 100 degrees of abduction, 90 degrees of internal rotation
1

A.M.A., Guides 476-79 (fifth edition).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

See id.

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and 90 degrees of external rotation. Dr. Murray stated that his findings for flexion, rotation and
abduction equated to nine percent impairment for loss of range of motion, under the A.M.A.,
Guides. He also advised that appellant had weakness on forward elevation that warranted three
percent impairment.
On August 2, 2006 the Office medical adviser calculated that appellant had seven percent
impairment of the right arm. He relied upon Dr. Murray’s measurements of 140 degrees of
flexion, 100 degrees of abduction and 90 degrees of internal and external rotation, in determining
appellant’s impairment rating. Pursuant to the A.M.A., Guides, Figure 16-40 on page 476,
which measures impairment based on loss of flexion and extension, 140 degrees of flexion
corresponds to a three percent impairment rating.5 Because Dr. Murray measured appellant’s
shoulder extension as normal, no additional impairment rating was warranted extension.6 The
A.M.A., Guides, Figure 16-43 on page 477, measures loss of range of motion based on abduction
and adduction.7 Pursuant to Figure 16-43, appellant’s 100 degrees of abduction corresponds to a
four percent impairment rating.8 As Dr. Murray measured appellant’s adduction as normal, no
additional impairment rating was warranted based on abduction and adduction.9 The A.M.A.,
Guides, Figure 16-46 on page 479, measures impairment based on internal and external
rotation.10 Pursuant to Figure 16-43, 90 degrees of internal and external rotation corresponds to
no impairment.11
The Board finds that the Office medical adviser properly calculated appellant’s
impairment rating at seven percent; three percent impairment based on loss of flexion and four
percent impairment based on loss of abduction.12 Dr. Murray’s initial impairment rating of 12
percent for appellant’s right arm did not comport with the A.M.A., Guides. He did not explain
how appellant’s range of motion measurements yielded nine percent impairment under the
A.M.A., Guides. When the Office gave Dr. Murray an opportunity to comment on the Office
medical adviser’s calculations, he concurred with the medical adviser’s finding of seven percent
impairment. Dr. Murray also recommended that the Office award appellant three percent
impairment based on weakness under Table 16-35 of the A.M.A., Guides.13 However, the
A.M.A., Guides state that the use of such a method for calculating impairment is appropriate
only in a rare case where the loss of strength represents an impairing factor that has not been
considered adequately by other methods. This section of the A.M.A., Guides states that
5

Supra note 1 at 476, Figure 16-40.

6

Id.

7

Id. at 477, Figure 16-43.

8

Id.

9

Id.

10

Id. at 479, Figure 16-46.

11

Id.

12

Id. at 476-477, Figures 16-40, 16-43.

13

Id. at 510.

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“decreased strength cannot be rated in the presence of decreased motion.”14 Dr. Murray did not
explain how his inclusion of weakness in appellant’s impairment rating comported with the
A.M.A., Guides or why it would be appropriate in appellant’s case.
The Board finds that appellant has no more than a seven percent permanent impairment
of the right arm, for which she has received a schedule award.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.15 Section 10.615 of the federal regulation
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.16 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.17
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,18 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.19 Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of Board precedent.20
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for an oral hearing on
the grounds that it was untimely filed. The Office issued its schedule award decision on
September 26, 2006. Appellant requested an oral hearing on October 30, 2006, more than 30
days after the date of issuance of the decision appealed.

14

Id. at 508.

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615.

17

20 C.F.R. § 10.616(a).

18

5 U.S.C. §§ 8101-8193.

19

Marilyn F. Wilson, 52 ECAB 347 (2001).

20

Teresa M. Valle, 57 ECAB __ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

5

On appeal, appellant contends that “standard business practice” allowed for five days for
her to receive the decision and also stated that it was not mailed until October 11, 2006. The
Act, however, states that a request must be made within 30 days from the date of issuance of the
decision, not from the date appellant receives the decision.21 Moreover, the evidence indicates
that the decision was properly addressed and therefore it is presumed to have been received by
appellant.22
After it determined that appellant’s request was untimely, the Office exercised its
discretion by denying appellant’s request for a hearing. The Office determined that appellant’s
case would be best served by her submission of a request for reconsideration along with new
supporting evidence. The Board finds that the Office acted within its discretion in denying
appellant’s hearing request as untimely, because she failed to file the request within the statutory
time frame.
CONCLUSION
The Board finds that appellant has no more than seven percent permanent impairment of
the right arm, for which she received a schedule award. The Office properly denied appellant’s
request for an oral hearing.23

21

See 5 U.S.C. § 8124(b)(1). See also 20 C.F.R. § 10.616(a) (the hearing request must be sent within 30 days of
the date of the decision for which a hearing is sought).
22

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

23

Following the Office’s September 19, 2006 decision, appellant submitted additional evidence to the Office.
However, as the Office has not considered this evidence in reaching a decision, the Board may not consider it for the
first time on appeal. See 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the November 30 and September 19, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 14, 2007
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, DeWITT POST
OFFICE, DeWitt, MI, Employer
__________________________________________
Appearances:
Anita Lewallen, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1439
Issued: March 19, 2021

Case Submitted on the Record

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

On July 1, 2020 appellant, through her representative, filed an appeal from a January 6,
2020 letter of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 20-1439.
On March 14, 2017 appellant, then a 61-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 13, 2017 she sustained a right shoulder injury as a result
of opening a door while in the performance of duty. She did not stop work. By decision dated
May 17, 2018, OWCP accepted her claim for sprain of the right rotator cuff capsule, initial
encounter. It ultimately expanded the acceptance of appellant’s claim to include the following:
strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm initial
encounter; and other specified disorders of tendon, left shoulder.

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.

On May 15, 2018 appellant filed claims for compensation (Form CA-7) for disability
commencing May 3, 2018. By decision dated June 20, 2018, OWCP denied her claim as the
medical evidence did not establish causal relationship to the accepted March 13, 2017 employment
injury. Appellant, through her representative, requested reconsideration on July 10, 2019 and
submitted additional evidence. By decision dated October 8, 2019, OWCP denied appellant’s
reconsideration request finding that it was untimely filed and that the submitted evidence did not
demonstrate clear evidence of error on the part of OWCP in the issuance of its June 20, 2018 merit
decision.
By letter dated and received by OWCP on December 17, 2019 appellant again requested
reconsideration, indicating that this request “is being made following [OWCP’s] decision dated
October 8, 2019 in which [OWCP] determined that the previously submitted appeal, dated June 17,
2019, was untimely received.” She contended that she had “uploaded” her reconsideration request
and additional evidence to OWCP’s portal on June 17 and 18, 2019, prior to the expiration of the
one-year time limitation from the issuance of the June 20, 2018 OWCP decision. Appellant
concluded, therefore, that OWCP erred in denying her reconsideration request as untimely filed.
With her December 17, 2019 reconsideration request appellant again submitted additional
evidence.
In response to appellant’s reconsideration request, OWCP replied on January 6, 2020 that
it had previously denied her request from the June 20, 2018 merit decision on October 8, 2019 as
untimely filed and failing to demonstrate clear evidence of error. OWCP pointed out, as it
indicated it had done in its October 8, 2019 decision, that the only avenue appeal available to
appellant was an appeal to the Board. It concluded, therefore: “No further action will be taken
upon this reconsideration claim. You may file an appeal to ECAB within 180 days of this office’s
October 8, 2019 decision if you so choose.”
The Board, having duly considered the matter, notes that 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.2 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director
of OWCP shall contain findings of fact and a statement of reasons.3 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.4
OWCP, in its January 6, 2020 letter, it declined to review appellant’s December 17, 2019
reconsideration request by stating that “[n]o further action will be taken.” The Board concludes
that the January 6, 2020 correspondence was, in effect, a final adverse decision. As such, OWCP
was required to provide findings of fact and a statement of reasons. However, the only explanation
it provided for declining to take further action on her claim was that it had previously apprised her
that her only avenue of appeal following the issuance of its October 18, 2019 decision was to this
Board. There was no supporting citation. The Board will therefore set aside OWCP’s January 6,
2

5 U.S.C. § 8124(a).

3

20 C.F.R. § 10.126.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

2

2020 decision and remand the case for an appropriate decision on appellant’s reconsideration
request, which provides detailed reasons for accepting or rejecting the reconsideration request.5
Accordingly,
IT IS HEREBY ORDERED THAT the September 10, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 19, 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

5

See supra note 2.

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