United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Haven, CT, Employer
__________________________________________

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

Docket No. 15-0839
Issued: July 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 2, 2015 appellant filed a timely appeal from a February 2, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on November 25, 2014 in the
performance of duty.
FACTUAL HISTORY
On November 26, 2014 appellant, then a 64-year-old labor custodian, filed a traumatic
injury claim alleging that on November 25, 2014 he injured his right side and right lower back

1

5 U.S.C. § 8101 et seq.

when a coworker put him in a headlock. He did not stop work. The employing establishment
did not controvert the claim.
In a return to work slip dated November 26, 2014, a nurse practitioner indicated that
appellant could resume work with restrictions of no lifting over 20 pounds for one week.
By letter dated December 16, 2014, OWCP requested that appellant submit a detailed
report from his attending physician addressing the causal relationship between any diagnosed
condition and the identified work incident. It advised him that reports from nurse practitioners
and physician assistants did not constitute competent medical evidence under FECA.
In a duty status report dated December 16, 2014, Dr. Rachel E. Laff, a Board-certified
internist, diagnosed a musculoskeletal strain and checked “yes” that the history of injury given
by appellant corresponded to that on the form of him being put in a headlock. She opined that he
could perform light duty pending completion of physical therapy. Dr. Laff provided work
restrictions.
By decision dated February 2, 2015, OWCP denied appellant’s claim after finding that
the medical evidence was insufficient to show that he sustained a diagnosed condition as a result
of the accepted November 25, 2014 employment incident. It found that the signature on the
December 16, 2014 duty status report was illegible and thus it could not determine whether it
constituted competent medical evidence. OWCP further found that the December 16, 2014 duty
status report was insufficient to show that appellant sustained a specific diagnosed condition.
On appeal appellant argues that Dr. Laff cosigned the medical reports he submitted for
consideration.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 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.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.5 Second, the
2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

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employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.7
ANALYSIS
Appellant alleged that he sustained an injury to his right side and lower back on
November 25, 2014 when a coworker placed him in a headlock. OWCP accepted that the
incident occurred at the time, place, and in the manner alleged. The issue is whether the medical
evidence establishes that appellant sustained an injury as a result of this incident.
The Board finds that appellant has not established that the November 25, 2014
employment incident resulted in an injury. The determination of whether an employment
incident caused an injury is generally established by medical evidence.8
Appellant submitted a November 26, 2014 disability certificate from a nurse practitioner.
However, a nurse or nurse practitioner is not considered a “physician” under FECA and thus
cannot render a medical opinion.9
In a form report dated December 16, 2014, Dr. Laff diagnosed a musculoskeletal strain
and checked “yes” that the history of injury obtained from appellant corresponded to that on the
form of appellant having been placed in a headlock. The Board has held, however, that an
opinion on causal relationship which consists only of a physician checking “yes” to a medical
form question on whether the claimant’s condition was related to the history given is of little
probative value. Without explanation or rationale for the conclusions reached, such report is
insufficient to establish causal relationship.10 Dr. Laff did not provide any rationale for her
opinion and thus her form report is insufficient to meet appellant’s burden of proof.
While OWCP determined that the signature on the December 16, 2014 report from
Dr. Laff was illegible and thus was not competent medical evidence, it further found that the
report itself did not adequately describe a diagnosed condition. Dr. Laff failed to explain the
mechanism by which appellant being put in a headlock caused a musculoskeletal strain or
specifically identify the area of the body that sustained the strain. There is also no indication in
the record that the remaining treatment note submitted prior to OWCP’s February 2, 2015
decision was cosigned by Dr. Laff.
6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

8

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

9

5 U.S.C. § 8101(2); Vincent Holmes, 53 ECAB 468 (2002).

10

Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
“yes” in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).

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An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.11 The record does not contain a physician’s report in which the physician reviewed
those factors of employment identified by him as causing his condition, take these factors into
consideration, consider the findings upon examination, consider the medical history, explain how
employment factors caused or aggravated any diagnosed condition, or present medical rationale
in support of his opinion.12 Appellant failed to submit such evidence and therefore failed to meet
his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
November 25, 2014 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 6, 2015
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
11

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

12

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Desert Island, ME, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-209
Issued: July 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2008 appellant, through her attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ decision dated October 17, 2008 which denied her
request for merit review. Because more than one year has elapsed between the last merit
decision dated September 22, 2006 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 22, 2004 appellant, then a 55-year-old part-time flexible clerk, filed an
occupational disease claim for lumbar spine stenosis and bilateral knee osteoarthritis due to
standing, walking, bending, lifting, twisting and sitting in the performance of duty. She
submitted a form report dated November 22, 2004 from Dr. Starie Seay, a family practitioner,

diagnosing spinal stenosis. Dr. Seay stated that repetitive lifting and bending had likely caused
or contributed to this condition.
The Office requested additional factual and medical information in a letter dated
December 2, 2004. In a report dated December 8, 2004, Dr. Seay stated that appellant’s work
activities at the employing establishment had resulted in a severe increase in her preexisting low
back pain and progressive worsening of her symptoms. She opined that appellant’s work had
both contributed to her underlying medical condition and exacerbated her symptoms. Appellant
submitted a statement on December 13, 2004 and detailed her employment activities, including
pulling cages and bending over and lifting items weighing up to 70 pounds. She noted that her
back pain began on October 1, 2001.
By decision dated February 23, 2005, the Office denied appellant’s claim finding that she
failed to submit the necessary medical opinion evidence to establish a causal relationship
between her diagnosed back condition and her employment duties.
Appellant requested an oral hearing on March 10, 2005. In a report dated June 14, 2005,
Dr. Seay recommended that appellant maintain low level physical activity with short walks. She
opined that appellant was totally disabled for her date-of-injury position and recommended a
surgical evaluation. On November 16, 2005 Dr. Julie A. Long, a Board-certified orthopedic
surgeon, indicated that appellant was partially disabled and could sit with opportunities to stand
and move as needed.
Appellant testified at the oral hearing on July 11, 2006. She stated that she began
working at the employing establishment in 1989 lifting up to 70 pounds, standing and bending.
Appellant stopped work on November 22, 2004. Following the oral hearing, she submitted the
March 30 and April 6, 2005 notes from Dr. Gary J. Correnti, a Board-certified neurosurgeon,
who diagnosed spinal stenosis at L4-5 and central disc herniation at L5-S1 with bilateral lumbar
radiculopathy. Dr. Correnti stated that appellant’s findings were degenerative in nature and
unrelated to a specific injury. He recommended surgery. In a report dated July 18, 2006,
Dr. Karyn L. Woelflein, Board-certified in physical medicine and rehabilitation, diagnosed
chronic pain syndrome, chronic low back pain and spinal stenosis.
By decision dated September 22, 2006, the hearing representative affirmed the
January 23, 2005 decision. Although appellant established that she performed the specific
employment duties alleged, she did not submit sufficient rationalized medical opinion evidence
to establish a causal relationship between her back condition and her accepted employment
duties.
In letters dated December 1, 2006 and received by the Office on December 5, 2006 and
October 23, 2007, appellant, through her attorney objected to the hearing representative’s
decision. On July 21, 2008 counsel requested reconsideration on behalf of appellant. He alleged
that the hearing representative failed to mention all of appellant’s treatments, inaccurately
summarized medical reports regarding her knee conditions, improperly concluded that the record
did not contain rationalized medical opinion evidence in support of her claim and inaccurately
described when appellant’s supervisor was aware of her back condition. Appellant resubmitted
Dr. Seay’s November 22 and December 8, 2004 reports.

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By decision dated October 17, 2008, the Office declined to reopen appellant’s claim for
consideration of the merits finding that the outstanding issue in the claim was whether the
medical opinion evidence was sufficiently rationalized to meet her burden of proof.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.3
ANALYSIS
The Office denied appellant’s occupational disease claim for spinal stenosis and bilateral
knee osteoarthritis on February 23, 2005. The hearing representative affirmed this decision on
September 22, 2006. Counsel disagreed with this decision but failed to specifically mention any
of the available appeal rights. He requested reconsideration on July 21, 2008. The Office
proceeded to treat his request as a timely request for reconsideration.
Appellant’s attorney alleged numerous factual errors in the hearing representative’s
September 22, 2006 decision. As noted, however, perceived factual errors are not sufficient to
require the Office to reopen appellant’s claim for reconsideration of the merits. Counsel also
resubmitted the November 22 and December 8, 2004 reports of Dr. Seay. These reports were
considered by the Office in reaching the February 23, 2005 and September 22, 2006 decisions
and do not constitute relevant and pertinent new evidence. The remainder of the medical
evidence submitted did not provide an opinion on the causal relationship between appellant’s
back or knee conditions and her employment duties and was therefore not relevant to the
underlying issue of the case. As appellant failed to submit either relevant legal argument or
relevant and pertinent new evidence, the Office properly declined to reopen her claim for
consideration of the merits.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits.

1

5 U.S.C. §§ 8101-8193, § 8128(a).

2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the October 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Levittown, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1852
Issued: August 23, 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 August 30, 2017 appellant, through counsel, filed a timely appeal from an April 13,
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 this case.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

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP issued its April 13, 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 has met her burden of proof to modify OWCP’s January 20,
2016 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On April 24, 1991 appellant, then a 34-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a right shoulder injury while placing mail into a mailbox
on that date. OWCP accepted that appellant sustained a right shoulder strain, right brachial plexus
neuropathy, and right thoracic outlet syndrome during the performance of her federal duties.
Appellant stopped work on April 26, 1991. Thereafter she returned to modified part-time work
intermittently until July 14, 1997, when she stopped work and did not return. On May 30, 1997
OWCP expanded acceptance of the claim to include right thoracic outlet syndrome.4 Effective
August 16, 1997, it placed appellant on the periodic compensation rolls for total disability resulting
from the accepted employment injury.5
In 2001 appellant came under the care of Dr. Scott M. Fried, an osteopath and Boardcertified orthopedic surgeon, for ongoing problems with her upper extremities.
OWCP referred appellant for vocational rehabilitation in June 2012, following an April 20,
2012 second opinion examination by Dr. Robert Draper, a Board-certified orthopedic surgeon,
who concluded that appellant was capable of working eight hours per day and lifting up to 50
pounds. As the employing establishment was unable to accommodate appellant, the vocational
rehabilitation counselor identified several positions which were medically suitable and reasonably
available, including the constructed position of sales attendant, a position listed in the Department
of Labor’s Dictionary of Occupational Titles (DOT) and bearing the DOT # 299.677.010. The
physical duties of the position included: obtaining merchandise from stockroom when
merchandise was not on the floor, arranging stock on shelves or racks in sales area, inventorying
stock, keeping merchandise in order, and marking or ticketing merchandise. The position was
characterized as light duty, which meant an occasional strength level of no greater than 20 pounds.
On May 14, 2014 OWCP referred appellant to Dr. Noubar Didizian, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether she continued to suffer
from work-related residuals and whether she was capable of working eight hours per day as a sales
attendant. In his June 25, 2014 report, Dr. Didizian opined that appellant no longer had any workrelated residuals of the accepted conditions and no longer required any medical treatment. He
noted that appellant had multiple diagnoses which were not related to the accepted injury.
Dr. Didizian opined that appellant had reached maximum medical improvement and was capable
of working eight hours a day as a sales attendant, DOT # 299.677.010.

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OWCP also authorized surgery for right brachial plexus neuropathy. However, the case record does not indicate
that appellant underwent the authorized surgical procedure.
5
On February 4, 1998 OWCP notified counsel that a left brachial plexopathy condition was not work related and
denied a requested surgery.

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In his reports dated July 31 and September 3, 2014, Dr. Fried diagnosed right shoulder
capsulitis, left shoulder rotator cuff tendinitis and capsulitis, carpal tunnel median neuropathy of
the bilateral upper extremities, radial neuropathy of right, sympathetically-mediated pain
syndrome of the bilateral upper extremities with reactive depression, fibromyalgia syndrome,
brachial plexopathy/cervical radiculopathy right and left with long thoracic neuritis, and bilateral
posterior occipital neuralgia. He opined that appellant continued to struggle with symptoms from
the work-related injury as well as the overuse symptoms on the left. Dr. Fried also opined that
appellant remained limited and could not return to regular work activities.
OWCP determined that a conflict of medical opinion existed between Dr. Fried and
Dr. Didizian with regard to whether she continued to suffer residuals from the work injury and was
capable of returning to work in any capacity. It referred appellant, along with the medical record
and a statement of accepted facts (SOAF), to Dr. Andrew Sattel, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
The SOAF, at the time of Dr. Sattell’s referral, was dated April 11, 2012 with an addendum
dated May 14, 2014. The April 11, 2012 SOAF listed the accepted conditions as a right shoulder
strain and brachial plexus neuropathy. Concurrent conditions listed which were not accepted as
work related included: carpal tunnel syndrome, hypothyroidism, endometriosis, headaches,
fracture of coccyx (1997 motor vehicle accident), and a torn right rotator cuff in March 1990, “a
year prior to the work injury.” The May 14, 2014 addendum noted that appellant was examined
on April 20, 2012 by Dr. Draper, that her current treating physician was Dr. Fried, and that she
had remained off work completely since 1996.
In his November 19, 2014 report, Dr. Sattel noted the history of injury, his review of the
medical records, and presented examination findings. He noted that there was no x-ray or magnetic
resonance imaging scan films for personal review. Based on the present history obtained and the
medical records provided, Dr. Sattel indicated that appellant was provided with an impression of
right shoulder pain and brachial plexopathy -- thoracic outlet at the time of her initial incident and
subsequent evaluations. He indicated that the right shoulder had some residual symptoms of
impingement and the present objective findings for peripheral neuropathy or brachial plexopathy
were unremarkable. Dr. Sattel indicated that, while appellant had some point tenderness over the
supra and infraclavicular fossa, it did not reproduce paresthesias and the remaining evaluation for
peripheral neuropathy was unremarkable. From an orthopedic standpoint, he opined that appellant
had achieved maximum medical improvement and there was no need for further diagnostic
workup, outpatient therapy, or any surgical intervention. Dr. Sattel opined that appellant could
perform light work activities with restrictions, minimizing overhead work with the right arm,
particularly with resistance. A November 19, 2014 estimated physical capacities form indicated
that appellant could work eight hours a day in a light-duty capacity with no overhead lifting with
her right arm.
In a December 17, 2014 letter, OWCP informed counsel that appellant was examined by
Dr. Sattel on November 19, 2014 and that he would be provided a copy of the report once it was
received. It enclosed the SOAFs, questions, the conflict statement, and a copy of the referral letter
to Dr. Sattel.
In a January 7, 2015 letter, Dr. Sattel indicated that he was provided with a SOAF which
included a synopsis of appellant’s diagnoses and various physical activities observed from
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October 6, 2009 through November 23, 2011. He indicated that a review of the SOAF would not
alter his November 19, 2014 opinion.
On January 15, 2015 OWCP requested that Dr. Sattel provide a supplemental report
regarding appellant’s work capabilities and complete the work capacity evaluation (OWCP-5c)
form. In a January 28, 2015 supplemental report, Dr. Sattel stated that he reviewed SOAFs dated
April 11, 2012 and May 14, 2014 which did not alter his opinion that appellant was capable of
working a full eight-hour day. In a January 28, 2015 OWCP-5c form, Dr. Sattel indicated that
appellant could work sedentary to light duty, up to 20 pounds lifting or carrying, with no overhead
lifting with right arm.
On June 25, 2015 OWCP reopened appellant’s case in vocational rehabilitation to update
the availability and wages of the previously identified position of sales attendant. On July 10,
2015 the vocational rehabilitation counselor indicated that the sales attendant position, which was
classified as light duty, existed in reasonable numbers and was reasonably available for appellant.
An undated salary of $16,950.00 was also provided.
On September 29, 2015 OWCP issued a notice of proposed reduction in appellant’s wageloss compensation under 5 U.S.C. §§ 8106 and 8115. It advised appellant that she was only
partially disabled and that the position of sales attendant was medically and vocationally consistent
with her medical limitations and work experience. OWCP found that appellant was capable of
earning wages at the rate of $325.96 per week as a sales attendant and that the position was
reasonably available within her commuting area. It provided an attachment detailing the
application of the Shadrick formula,6 which has been codified at 20 C.F.R. § 10.403. Appellant
was afforded 30 days to submit evidence and argument challenging the proposed action.
In an October 7, 2015 report, Dr. Fried continued to report on appellant’s bilateral upper
extremity conditions.
An October 7, 2015 neuromusculoskelatal ultrasound procedure report indicated positive
scans for carpal tunnel and compression neuropathy, brachial plexus left, brachial plexus right. No
significant change in the right shoulder was noted.
On October 15, 2015 counsel acknowledged receipt of the September 29, 2015 notice of
proposed reduction, although he had not been provided a copy by OWCP. He requested a copy of
Dr. Sattel’s report, with evidence that he had been properly selected as an impartial medical
examiner. By letters dated November 10 and 13, 2015, OWCP provided the requested
information.
In an October 20, 2015 report, Dr. Sofia Lam, a Board-certified anesthesiologist,
diagnosed cervical sprain/strain, brachial plexopathy, right more than left side, cervical
radiculopathy, and cervical facet joint pathology bilaterally. Cervical transforaminal epidurals and
facet joint injections were recommended.
On November 20, 2015 counsel requested a copy of the Labor Market Survey, the
vocational information, and a copy of the September 29, 2015 notice of proposed reduction. He
6

Albert C. Shadrick, 5 ECAB 376 (1953).

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advised that he was not copied on the September 29, 2015 notice of proposed reduction. On
December 15, 2015 OWCP mailed copies of the requested information to appellant and counsel.
In a January 4, 2016 letter, counsel requested that OWCP reissue the notice of proposed
reduction with full appeal rights as they were not issued with the proposed decision. He also
argued that, since he was not notified of the September 29, 2015 notice of proposed reduction, that
decision was not considered valid under 20 C.F.R. § 10.127.
By decision dated January 22, 2016, OWCP reduced appellant’s compensation, effective
February 2, 2016, based on her capacity to earn wages as a sales attendant, DOT # 299.677.010,
at the rate of $325.96 per week. It found that the evidence of record showed that appellant was
vocationally and physically capable of working as a sales attendant, based on Dr. Sattel’s reports
which were accorded the weight of the medical evidence. OWCP applied the Shadrick formula to
adjust her compensation.
On January 13, 2017 counsel requested reconsideration. He stated that appellant had
accepted conditions of brachial plexus neuropathy, bilateral thoracic outlet syndrome, and right
shoulder strain. Counsel alleged that the SOAFs did not include the thoracic outlet syndrome as
an accepted condition. He also indicated that, while the SOAF noted several concurrent
conditions, it did not indicate other conditions which had been diagnosed prior to her accepted
injury. Counsel also alleged that the proposed position of sales attendant was constructed before
Dr. Sattel’s referee examination and that Dr. Sattel was not asked, nor did he comment on, the
propriety of the position proposed. He also argued that, while he received copies of Dr. Sattel’s
referee reports and the labor market study, he never received a description of the proposed position
and the information from the rehabilitation counselor from 2013 through 2015. Counsel further
contended that the demands of the sales attendant position were not medically suitable to the
restrictions of both Dr. Fried and Dr. Sattel and that appellant’s other conditions must be
considered as they prevented her from being gainfully employed. In a January 17, 2017 letter, he
referenced Dr. Fried’s January 16, 2017 report as support that the constructed position was outside
of appellant’s medical capacities. Appellant also provided a January 12, 2017 letter, in which she
provided reasons why she was unable to perform the duties of the constructed position.
Reports of ultrasound examination of appellant’s right brachial plexus and right median
nerve and carpal tunnel dated January 13, 2017 were provided along with a January 28, 2016 note
from the Suburban Pain Control Center.
Dr. Fried reported on appellant’s condition in reports dated November 10 and
December 22, 2016, and February 14, 2017. In his January 16, 2017 report, he disagreed with
Dr. Sattel’s opinion that appellant could perform light-duty work with restrictions of overhead
lifting of her right arm. Dr. Fried indicated that Dr. Sattel’s opinion was not well rationalized or
supported by the medical evidence. Specifically, Dr. Sattel did not offer objective evidence which
discounted or discussed the previously submitted evidence of ongoing pathology as well as
appellant’s limitations in multiple notes, reports, and examinations as recent as
November 10, 2016. Dr. Fried indicated that Dr. Sattel noted positive findings in the right
shoulder, but he found appellant did not have objective findings of peripheral neuropathy or
brachial plexopathy despite positive EMG nerve conduction studies and neuromusculoskeletal
ultrasound evaluations of record, of which he was aware. Additionally, Dr. Sattel did not perform
the standard tests on the right side to evaluate for brachial plexus injury including Ross test,
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Hunter’s test, Wright’s test, Adoson’s test, or any of the other elevated arm stress tests. Thus,
Dr. Fried concluded that Dr. Sattel could not fairly opine as to whether or not a brachial plexus
injury on the right side existed or not. He also reviewed the job description for sales attendant and
opined that appellant was unable to perform such a job with her accepted conditions. Specifically,
Dr. Fried indicated that the constructed position fell outside of the limitations as outlined on the
functional capacity evaluation. He opined that appellant had ongoing evidence of her accepted
work injuries which disabled her from regular work and activities.
By decision dated April 13, 2017, OWCP denied modification of its January 22, 2016
LWEC determination. It found that appellant had failed to submit evidence sufficient to satisfy
the criteria for modification and that the weight of the medical opinion evidence rested with
Dr. Sattel.
On appeal counsel asserts that the SOAF provided to the impartial medical specialist failed
to include all the accepted conditions and therefore the LWEC determination was erroneous.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.8 Chapter
2.1501 of OWCP’s procedures contains provisions regarding the modification of a formal LWEC.9
The relevant part provides that a formal LWEC will be modified when: (1) the original rating was
in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated.10 It further provides that the party seeking modification of a formal
LWEC decision has the burden to prove that one of these criteria has been met.11
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 The implementing regulations
provide that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and OWCP
7

Katherine T. Kreger, 55 ECAB 633 (2004).

8

Sue A. Sedgwick, 45 ECAB 211 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
10

Id. at Chapter 2.1501.3(a) (June 2013).

11

Id. at Chapter 2.1501.4 (June 2013).

12

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

6

will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.13 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well-rationalized and based upon a proper
factual background, must be given special weight.14
OWCP’s procedures provide as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [district medical adviser], second
opinion specialist, or referee physician renders a medical opinion based on an
SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”15
ANALYSIS
The Board finds that appellant has established that the January 20, 2016 LWEC
determination was erroneously issued.
The Board finds that Dr. Sattel’s opinion was based on an inaccurate SOAF. In securing
the opinion of a medical specialist, Chapter 2.809.3 of OWCP’s procedures provides that a SOAF
and development questions are to be prepared by the claims examiner for use by the physician.16
The claims examiner is required to set forth the relevant facts of the case, including the employee’s
date of injury, age, job held when injured, the mechanism of the injury, and any conditions claimed
or accepted by OWCP.17 Dr. Sattel was provided a SOAF dated April 11, 2012 with an addendum
dated May 14, 2014. The April 11, 2012 SOAF listed the accepted conditions only for a right
shoulder strain and brachial plexus neuropathy. It did not include the accepted right thoracic outlet
syndrome, which was accepted in 1997. The April 11, 2012 SOAF was therefore improper as it
did not include all the accepted conditions. The May 14, 2014 addendum to the SOAF only noted
that appellant was examined by Dr. Draper on April 20, 2012 and that Dr. Fried was her treating

13

20 C.F.R. § 10.321; S.R., Docket No. 09-2332 (issued August 16, 2010); Elaine Sneed, 56 ECAB 373 (2005).

14

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.3
(September 2009).
17

Id.; see A.C., Docket No. 09-0389 (issued October 7, 2009).

7

physician, this SOAF did not list any accepted conditions. Dr. Sattel’s report is, therefore, not
entitled to the special weight of the medical evidence.18
Once OWCP undertakes development of the record, it has the responsibility to do so in a
proper manner.19 Given the error on the SOAF on which Dr. Sattel’s report was based, it should
not have afforded his opinion special weight on the issue of appellant’s wage-earning capacity.
Thus, appellant has shown that the January 20, 2016 LWEC determination was erroneous.20
CONCLUSION
The Board finds appellant has met her burden of proof to modify the January 20, 2016
LWEC determination.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, at Chapter 2.809 explains that
the SOAF is one of the most important documents a claims examiner (CE) prepares. It is the written summary of the
CE’s findings of facts. It serves as a factual frame of reference for the medical specialist, the CE or other case reviewer.
When it is used by physicians who base their medical opinions solely on the information presented in the SOAF, the
outcome of a claim may depend on its completeness and accuracy. Therefore, the SOAF must clearly and accurately
address the relevant information.
19

Melvin James, 55 ECAB 406 (2004).

20
In light of this disposition, the Board will not review the evidence submitted on reconsideration to determine
whether the other criteria for modification have been met.

8

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2017 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 23, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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Appearances:
Daniel Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0503
Issued: July 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 4, 2017 appellant, through counsel, filed a timely appeal from August 12 and
November 18, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last OWCP merit decision dated June 3, 2015
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s requests for
reconsideration were insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On August 18, 2010 appellant, then a 40-year-old mail handler, filed a claim for
occupational disease (Form CA-2) alleging neck, arm, and knee injuries as a result of his federal
employment duties of loading and unloading trucks. He stopped work as of June 17, 2010.
Appellant underwent a left elbow ulnar nerve release on June 25, 2010.
OWCP accepted the claim on October 7, 2010 for lesion of the left ulnar nerve. In
addition, it expanded the accepted conditions to include neck sprain, bilateral knee derangement,
displacement of cervical intervertebral disc without myelopathy, and brachial neuritis or
radiculitis. OWCP initially paid wage-loss and medical compensation benefits on the
supplemental rolls and later appellant was placed on the periodic rolls as of December 19, 2010.
On February 13, 2013 the employing establishment offered appellant a full-time position
as a customer care agent. The physical requirements of the position were reported as sitting up
to eight hours with some standing, simple grasping up to eight hours intermittently,
pushing/pulling of a computer mouse up to eight hours, and fine manipulation using a keyboard
up to eight hours.
OWCP prepared a statement of accepted facts (SOAF) dated April 4, 2013 and referred
appellant, along with a description of the customer care agent position, to Dr. G.B. Ha’Eri, a
Board-certified orthopedic surgeon, for a second opinion examination and a determination of
appellant’s work capacity. In a report dated May 1, 2013, Dr. Ha’Eri provided a history and
results on examination. He opined that appellant was not capable of performing the customer
care agent position as it required that he repeatedly use his hands eight hours per day with no
breaks.
The record indicates that on May 28, 2013 appellant underwent C4-6 anterior
microdiscectomy and interbody fusion surgery. In a toxicology report dated August 13, 2013, he
tested positive for one prescription drug, Tapentadol, and for THC-COOH. The report indicated
that the referring physician was Dr. Hrair Darakjian, a Board-certified orthopedic surgeon.
On December 24, 2013 OWCP prepared a new SOAF and again referred appellant to
Dr. Ha’Eri for a second opinion examination. In a December 24, 2013 letter, the employing

3

Docket No. 15-1494 (issued December 24, 2015).

2

establishment clarified that while in the offered customer care agent position appellant could sit
or stand as needed for comfort and there was no continuous typing.
In a report dated February 5, 2014, Dr. Ha’Eri provided a history and results on
examination. He diagnosed left elbow cubital tunnel syndrome, bilateral knee patellofemoral
stress syndrome, cervical sprain/strain, and aggravation of preexisting multilevel cervical
degenerative disc disease and protrusions, giving rise to neck pain and upper extremity
radiculopathies, left worse than right. Dr. Ha’Eri opined that the degenerative cervical condition
had been permanently aggravated by the employment injury. He indicated that the cervical
surgery had failed and appellant continued to have neck pain and stiffness associated with
bilateral upper extremity radiculopathy. As to the offered position, Dr. Ha’Eri reported: “It is
my opinion that the claimant is able to return to a sedentary work as long as he has 15 minutes of
break every two hours. The job offer of customer care agent was reviewed and it seems a
suitable position for him.” Dr. Ha’Eri also provided physical restrictions that included one hour
reaching above shoulder, 10 pounds pushing, pulling and lifting, and two hours of repetitive
movements of the wrist and elbows.
In a toxicology report dated March 17, 2014, appellant tested positive for two
nonprescribed substances: THC-COOH and 7-Aminoclonazepam.
On March 28, 2014 the employing establishment offered appellant the full-time customer
care agent position. Appellant refused the job offer, indicating that it was not medically suitable.
He submitted an April 3, 2014 report from Dr. Darakjian, who provided a history and results on
examination, indicating that he had reviewed records, including the job of customer care agent.
Dr. Darakjian diagnosed status post cervical anterior interbody fusion with residual
radiculopathy, and status post left cubital tunnel syndrome. He reported that appellant continued
to take pain medication, Nucynta (Tapentadol) and Neurontin (Gabapentin), and was currently
managing his pain well with this medication.
According to Dr. Darakjian, the medication made appellant drowsy, and he had difficulty
sitting in one position more than 45 minutes at a time. He reported that appellant was unable to
perform repetitive movements, such as typing on a keyboard or using a computer mouse more
than 15 minutes at a time. Dr. Darakjian opined that appellant “is not capable of performing the
duties of customer care agent for a call center due to the length of time needed to focus, sit, and
use the hands to operate the computer. He remains totally disabled.”
By letter dated April 18, 2014, OWCP advised appellant that it found the job offer of
customer care agent suitable. It found that Dr. Ha’Eri represented the weight of the medical
evidence. Appellant was advised of the provisions of 5 U.S.C. § 8106(c)(2) and further advised
that if he failed to accept the position he should provide written explanation of reasons within 30
days.
Appellant submitted a letter on May 8, 2014 and asserted that the SOAF was not entirely
accurate as he was only a supervisor from 2004 to 2006 for a couple of months a year.4 He again
4

The December 24, 2013 SOAF had indicated that appellant worked as a supervisor in the year prior to his
injury.

3

opined that the job offered was not medically suitable based on the evidence. The record
contains a toxicology report dated May 12, 2014, indicating positive results for Zolpidem and 7Aminoclonazepam. In a toxicology report dated June 5, 2014, appellant tested positive for
Tramadol, Zolpidem, and 7-Aminoclonazepam.
By letter dated June 27, 2014, OWCP advised appellant that the reasons for refusing the
job offer were not acceptable. It advised that he had had an additional 15 days to accept the
position or his entitlement to wage-loss compensation and schedule award benefits would be
terminated.
On August 4, 2014 appellant submitted a July 3, 2014 report from Dr. Darakjian, who
provided results on examination. Dr. Darakjian noted that he had found in his April 3, 2014
report that appellant could not perform the customer care agent position, and his opinion
remained unchanged.
By decision dated July 16, 2014, OWCP terminated appellant’s compensation benefits
and entitlement to a schedule award, effective July 16, 2014, pursuant to 5 U.S.C. § 8106(c)(2).
It found Dr. Ha’Eri represented the weight of the medical evidence, as there was no evidence
from a treating physician disputing his findings directly. With regard to medications, OWCP
found that the toxicology reports dated May 12 and June 5, 2014 did not reflect any positive tests
for the prescribed medications, but August 13, 2013 and March 17, 2014 reports were positive
for marijuana use. It noted that Dr. Darakjian had not addressed these results.
In a report dated August 28, 2014, Dr. Darakjian indicated that appellant continued to
report neck pain. He stated that appellant reported that the prescribed medication of Nucynta and
Gabapentin made him sleepy. Dr. Darakjian stated that appellant was disabled “as he is not able
to do even the modified duties that have been provided to him due to the fact that he has
difficulty with prolonged sitting, repetitive use of the hands, typing, focusing and concentrating
on his work.”
Appellant requested a telephonic hearing with an OWCP hearing representative, which
was held on March 18, 2015. At the hearing, he argued that acceptance of his claim should be
expanded to include a permanent aggravation of the cervical condition. By decision dated
June 3, 2015, the hearing representative affirmed the July 16, 2014 suitable work termination.
He found that OWCP met its burden of proof to terminate compensation for refusal of suitable
work.
On June 30, 2015 appellant filed a timely appeal to the Board. The Board affirmed the
June 3, 2015 hearing representative’s decision on December 24, 2015.5 The Board reviewed the
evidence and found that Dr. Ha’Eri had provided a rationalized medical opinion that appellant
could perform the offered customer care agent position.
Appellant, through counsel, requested reconsideration on February 22, 2016. In a report
dated October 1, 2015, Dr. Darakjian provided a history and results on examination. He opined
that appellant was totally disabled.
5

Supra note 2.

4

By decision dated April 7, 2016, OWCP found that the reconsideration request was
insufficient to warrant merit review.
On May 20, 2016 appellant, through counsel, again requested reconsideration. Counsel
argued that Dr. Ha’Eri’s report was insufficient to establish that appellant could perform the
offered position, because he had referred to limiting repetitive motion. According to counsel, the
customer case agent position required repetitive motion and pushing/pulling. Appellant
submitted a July 7, 2016 report from Dr. Darakjian. Dr. Darakjian provided results on
examination and opined that appellant could not work in a position that required sitting for more
than 20 to 30 minutes at a time.
By decision dated August 12, 2016, OWCP declined to review the merits of the claim. It
found the evidence and argument was insufficient to warrant merit review pursuant to 5 U.S.C.
§ 8128(a).
On August 22, 2016 appellant, through counsel, again requested reconsideration.
Counsel again argued that the offered job required repetitive motion. He also argued that the
reports from Dr. Darakjian showed that appellant was taking prescribed medications. Counsel
asserted that Tramadol corresponded to a prescribed medication, and OWCP should have sought
clarification from an OWCP medical adviser.
Appellant submitted a July 7, 2016 report from Dr. Darakjian, who reported that
appellant complained of constant neck pain. Dr. Darakjian wrote that a urine test showed
positive findings for Tramadol, which was a byproduct of prescribed Nucynta, Clonazepam, and
Zolpidem. Appellant also submitted a September 1, 2016 report from Dr. Darakjian, who
provided results on examination.
By decision dated November 18, 2016, OWCP declined to review the merits of the claim.
It found appellant had not met any of the requirements to warrant a merit review of the case
under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”7 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the

6

5 U.S.C. § 8128(a) (provides that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
7

20 C.F.R. § 10.606(b)(3).

5

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.8
The submission of a new medical report does not itself require reopening the claim for
merit review.9 The evidence must address the particular issue involved in the case.10
ANALYSIS
In the present case, the Board has jurisdiction to review appellant’s two nonmerit
reconsideration decisions, dated August 12 and November 18, 2016.
The Board finds that appellant has failed to show that OWCP erroneously applied or
interpreted a specific point of law. Counsel argued that the evidence from Dr. Ha’Eri did not
show that the customer care agent position was medically suitable. He argued that the job
required repetitive motion pushing/pulling, and Dr. Ha’Eri had limited repetitive movement of
the wrist and elbow, as well as pushing and pulling.
It is well established that where the legal argument presented has no reasonable color of
validity, OWCP is not required to reopen the case for merit review.11 As the Board explained in
the prior decision, Dr. Ha’Eri specifically indicated in his February 5, 2014 report that he had
reviewed the customer care agent position requirements. The facts of the case indicate that
Dr. Ha’Eri had initially reviewed the job in his May 1, 2013 report, and at that time found it was
not suitable as he had to use his hands repeatedly for eight hours per day without breaks. Later
on February 5, 2014 based on a new SOAF, Dr. Ha’Eri indicated that appellant could return to
sedentary work so long as he had 15-minute breaks every two hours. The Board found in its
prior decision that Dr. Ha’Eri had provided a rationalized medical opinion, based on a complete
background, that appellant could perform the offered position. Dr. Ha’Eri clearly and
unequivocally found that appellant could perform the offered job.
Counsel also raised an argument with respect to medications. Dr. Darakjian had reported
that appellant was taking pain medications in his April 4, 2014 report. This argument was
discussed by the Board in the prior decision.12
On reconsideration appellant argued that medication found on a June 5, 2014 toxicology
test, Tramadol, was a byproduct of prescribed medications. The relevant issue in the case was
whether appellant could perform the customer care agent position. Whether or not Tramadol
may be a byproduct of a prescribed medication is not the issue. The question was how the taking
8

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

9

See Kevin M. Fatzer, 51 ECAB 407 (2000).

10

Richard L. Ballard, 44 ECAB 146 (1992).

11

See Norman W. Hanson, supra note 8.

12

Findings made in prior Board decisions are res judicata absent any further review by OWCP under section
8128 of FECA. See H.G., Docket No. 16-1191 (issued November 25, 2016).

6

of a prescribed medication prohibited his performance of the offered job. The Board finds the
argument raised has no reasonable color of validity.13
As to the submission of new and pertinent medical evidence, the Board finds appellant
did not meet this standard. Appellant submitted a July 7, 2016 report from Dr. Darakjian that
briefly referred to Tramadol as a byproduct of prescribed medications. Again, the underlying
issue was whether the medications appellant was taking prior to the July 16, 2014 termination
would have rendered the offered position unsuitable. Dr. Darakjian did not discuss the issue.
The Board accordingly finds that appellant has failed to meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered by OWCP. OWCP
properly denied the reconsideration request without merit review in this case.
On appeal counsel reiterates the arguments raised before OWCP that appellant had
submitted a new legal argument and relevant evidence. He also appears to argue the August 12,
2016 OWCP decision was a review of the merits because it found the evidence was insufficient
to overturn the prior decision. The August 12, 2016 decision clearly indicated that it was
denying merit review of the claim. OWCP found that the evidence submitted was irrelevant to
the underlying issue and not sufficient to warrant a merit review.
For the reasons discussed above, the Board finds that appellant did not meet the
requirements for a merit review of the claim.
CONCLUSION
The Board finds OWCP properly determined that appellant’s requests for reconsideration
were insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a).

13

Supra note 11.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 18 and August 12, 2016 are affirmed.
Issued: July 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plano, TX, Employer
__________________________________________

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

Docket No. 19-0432
Issued: July 23, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from a November 2, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for a
stair climber/stair lift and a walk-in tub.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 2, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 1, 2010 appellant, then a 56-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained bilateral pain and stiffness in both knees as
a result of repetitive job duties. She noted that she first became aware of her claimed condition on
April 4, 2010 and related it to her federal employment on October 29, 2010. On the reverse side
of the claim form the employing establishment noted that appellant stopped work on
November 22, 2010.
On January 12, 2011 OWCP accepted appellant’s claim for bilateral unspecified
derangement of her knees and left knee medial meniscus tear. Appellant underwent left total knee
replacement surgery on January 9, 2012 and total right knee replacement surgery on
October 8, 2012. She returned to full-time limited-duty work on July 14, 2014.
By decision dated January 26, 2016, OWCP granted appellant a schedule award for 23
percent permanent impairment of the left lower extremity and 25 percent permanent impairment
of the right lower extremity.
In a report dated February 24, 2017, Dr. Christopher R. Mann, an osteopath, noted
appellant’s history of injury and treatment, and requested medical authorization for a stair
climber/stair lift and a walk-in tub/safety rails. He indicated that her home was situated such that
her bedroom was upstairs, and she had no option of living on the ground floor so as to avoid
ascending and descending stairs. Dr. Mann opined that the single-leg lift on multiple stairs,
multiple times per day was highly suspect for causing persistent stress on the knee as it tended to
put harsh medial pressure on the knee and possibly induce the varus angle into the knee. He
requested that the stair climber/stair lift be installed, and indicated that it would significantly
reduce the risk of falling on the stairs, and reduce any mechanical abnormal stress on the knees
when going up and down to and from her bedroom. In addition, Dr. Mann requested that a “stepin tub” or safety rails be installed to facilitate bathing safely.
On July 28, 2017 OWCP asked its district medical adviser (DMA) for an opinion regarding
the medical necessity of the requested durable medical equipment (DME) including the stair
climber/stair lift and walk-in tub. With its request, it listed a statement of accepted facts and two
questions.
In a September 27, 2017 report, Dr. William Tontz, Jr., a Board-certified orthopedic
surgeon, serving as the DMA, noted appellant’s history of injury and accepted medical conditions.
He answered “yes” to the question of request for whether the stair/climber lift and walk-in tub was
causally related to the accepted medical conditions; however, he responded “no” with regard to
whether the stair/climber lift and walk-in tub was medically necessary.
On November 1, 2017 appellant filed a notice of recurrence (Form CA-2a) indicating that
she stopped work on September 14, 2017 due to a worsening of her accepted conditions. On
November 7, 2017 OWCP accepted appellant’s recurrence claim, effective September 14, 2017.
OWCP found a conflict in the medical opinion evidence between appellant’s attending
physician, Dr. Mann, and its DMA, Dr. Tontz, regarding the medical necessity of the requested

2

stair/climber lift and walk-in tub. On December 13, 2017 it referred appellant to Dr. Adam Carter,
Board-certified in physical medicine and rehabilitation, for a referee examination to resolve the
conflict.
In a report dated January 2, 2018, Dr. Carter determined that the DME request was causally
related to appellant’s accepted employment-related injuries. With regard to whether the equipment
was medically necessary, he noted that appellant owned a walk-in shower with a shower bench
and a hand-held shower head, and that she ascended and descended her stairs at home with bilateral
canes at a modified independent level. Dr. Carter related that, given appellant’s high level of
independent function, he believed it was most reasonable that appellant be authorized bathing rails
for safety. He indicated that appellant did not require a walk-in tub. Dr. Carter also noted that he
believed the stair climber/stair lift would debilitate her further. He determined that, based on her
physical examination and medical history, appellant was sufficiently independent and did not need
the walk-in tub and stair climber/stair lift.
On February 21, 2018 OWCP requested that Dr. Carter address whether appellant required
another total left knee arthroscopy due to the accepted injury.
By decision dated February 22, 2018, OWCP denied appellant’s requested authorization
for a walk-in tub and stair climber/stair lift, finding that the evidence of record did not support that
it was medically necessary to address the effects of her employment-related condition.
In a supplemental report dated February 26, 2018, Dr. Carter opined that appellant did
require another total left knee arthroscopy as she had aseptic loosening of the left knee prosthesis.
He also noted that appellant’s initial total left knee arthroscopy was necessitated by her
employment injury that the joint had worn out over time, and needed to be replaced. Dr. Carter
concluded that appellant’s proposed total left knee arthroscopy was medically necessary and
causally related to her accepted employment injury.
In a report dated April 12, 2018, Dr. Mann reiterated his request for authorization of a stair
climber/stair lift and walk-in tub. He indicated that, in light of appellant’s need for a second total
knee replacement of both knees, it furthered her need to have the equipment installed in her home.
Dr. Mann pointed to multiple medical literature references in arguing that appellant would be at a
huge risk for further injury should OWCP deny the equipment. He noted that exerting any type of
force on her knees postsurgery was not recommended, and should be avoided as there was a
legitimate risk the stress on the prosthesis could have caused it to become aseptically loosened.
Dr. Mann reiterated that it was highly likely that the stress placed on her surgically-repaired knees
from ascending and descending stairs caused her need for a subsequent surgery. He indicated that
current biomechanical literature supported his view that appellant’s regular exposure to excessive
contact and shear forces directly contributed to the simultaneous aseptic loosening of both
prosthesis over time.
On May 7, 2018 appellant underwent a revision of left total knee arthroplasty.
On September 5, 2018 appellant requested reconsideration of the February 22, 2018
decision regarding her request for medical equipment.

3

By decision dated November 2, 2018, OWCP denied modification of its February 22, 2018
decision, finding that the weight of medical evidence rested with the referee physician, Dr. Carter.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.6 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It, therefore,
has broad administrative discretion in choosing means to achieve this goal. The only limitation on
OWCP’s authority is that of reasonableness.7 In order to be entitled to reimbursement for medical
expenses, a claimant must establish that the expenditures were incurred for treatment of the effects
of an employment-related injury by submitting rationalized medical evidence that supports such a
connection and demonstrates that the treatment is necessary and reasonable.8
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.9
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.10 This is called a referee examination and OWCP will
3

Supra note 1.

4
5 U.S.C. § 8103; G.A., Docket No. 18-0872 (issued October 5, 2018); see Thomas W. Stevens, 50 ECAB
288 (1999).
5

G.A., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

M.B., Docket No. 17-1679 (issued February 8, 2018); see D.K., 59 ECAB 141 (2007).

7

See A.W., Docket No. 16-1812 (issued March 15, 2017).

8

M.G., Docket No. 18-0099 (issued April 26, 2018); see Debra S. King, 44 ECAB 203 (1992).

9

M.G., id.; see Minnie B. Lewis, 53 ECAB 606 (2002).

10
5 U.S.C. § 8123(a); C.L., Docket No. 17-0230 (issued April 24, 2018); R.S., Docket No. 10-1704 (issued May 13,
2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

4

select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11 When there exists opposing 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.12
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained an employment-related bilateral unspecified
derangement of her knees, left knee medial meniscus tear, and bilateral localized primary lower
leg osteoarthritis. On January 9, 2012 appellant underwent left total knee replacement surgery.
On October 8, 2012 she underwent right total knee replacement surgery.
In his report dated February 24, 2017, Dr. Mann requested medical authorization for a stair
climber/stair lift and a walk-in tub/safety rails. He requested that the stair climber/stair lift be
installed, as it would significantly reduce the risk that she would fall on the stairs, and reduce
mechanical abnormal stress on the knees when ascending and descending stairs from her bedroom.
In addition, Dr. Mann requested that a “step-in tub” or safety rails be installed to facilitate bathing
safely.
On July 28, 2017 OWCP asked its DMA for an opinion regarding the medical necessity of
the requested DME including the stair climber/stair lift and walk-in tub. In his September 27, 2017
report, Dr. Tontz indicated that the requested authorization for medical equipment was causally
related to the accepted conditions; however, he also determined that the equipment was not
medically necessary as appellant did not need such equipment to function at her normal level.
OWCP determined that there was a conflict of medical opinions between Drs. Mann and
Tontz and on December 13, 2017 it properly referred appellant to Dr. Carter for a referee
examination to resolve the conflict.
In his January 2, 2018 report, Dr. Carter determined that the DME request was causally
related to appellant’s accepted employment-related injury. However, he concluded that, because
appellant owned a walk-in shower with a shower bench and a hand-held shower head, and because
she was able to ascend and descend her stairs at home with bilateral canes at a modified
independent level, the requested DME was not medically necessary.13 Dr. Carter indicated that
neither a walk-in tub nor a stair climber/stair lift were medically necessary.
The Board finds that Dr. Carter sufficiently explained that appellant did not medically need
a walk-in bath as her home was equipped with a walk-in shower. OWCP properly denied
11

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006); C.L., id.

12

See C.L., supra note 10; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

13
Dr. Carter also related that, given appellant’s “high level of independent function,” he believed it was most
reasonable for the bathing rails for safety. OWCP did not thereafter deny authorization for bathing rails.

5

authorization of the walk-in bath tub based upon this rationalized opinion of the impartial medical
examiner which is afforded the special weight.14
With regard to the request for stair climber/stair lift OWCP subsequently requested that
Dr. Carter address whether appellant required a second total left knee total arthroscopy causally
related to the accepted employment injury. However, prior to receipt of Dr. Carter’s supplemental
report, OWCP denied appellant’s request for the stair climber/stair lift on February 22, 2018.
Dr. Carter opined in his February 26, 2018 report that appellant did require a second total left knee
arthroscopy causally related to her accepted employment injury as her first prosthesis had worn
out. Appellant underwent the authorized left-knee revision on May 7, 2018. On September 5,
2018 she requested reconsideration of the denial of her request for medical equipment. OWCP
did not thereafter ask Dr. Carter to clarify whether the requested stair climber/stair lift was
medically necessary following appellant’s May 7, 2018 revision of left total knee arthroplasty.
The Board notes that proceedings under FECA are not adversarial in nature and OWCP is
not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done.15 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.16
On remand OWCP shall request that Dr. Carter clarify his opinion regarding appellant’s
request for authorization of the stair climber/stair lift in light of his opinion that appellant required
a second authorized total left knee arthroscopy. After such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Supra note 13.

15

T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

16

Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of
Worker’s Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: July 23, 2019
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 14-951
Issued: September 2, 2014

Case Submitted on the Record

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

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from a February 10, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
October 31, 2013 on the grounds that she refused suitable work under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On June 12, 2003 appellant, then a 42-year-old clerk, filed a traumatic injury claim
alleging that on May 16, 2003 she was forced to work outside of her light-duty position and
injured her right shoulder. OWCP accepted the claim for sprain of the right shoulder, right upper
1

5 U.S.C. §§ 8101-8193.

arm rotator cuff, bicipital tenosynovitis, right disorder of the bursae and tendinitis of the right
shoulder. It paid wage-loss benefits. Under subsidiary file number xxxxxx748, OWCP accepted
the conditions of bilateral carpal tunnel syndrome and degenerative arthritis of both thumbs and
hands.
By decision dated November 14, 2008, OWCP granted a schedule award for 48 percent
impairment of the right arm.2 The period of the award ran 49.92 weeks from December 5, 2007
through November 18, 2008. Appellant missed partial days from work as of September 28, 2012
and stopped work completely as of October 13, 2012. OWCP retained her on the periodic
compensation rolls as of October 13, 2012. On March 21, 2013 appellant was referred to
OWCP’s vocational rehabilitation program. She underwent a functional capacity evaluation on
May 9, 2013.
In a July 12, 2013 report, Dr. Jay M. Brooker, a Board-certified orthopedic surgeon,
reported that the functional capacity evaluation showed that appellant could function at a light
category of work, carrying 20 pounds or less intermittently, which was the extent of work he had
limited. Appellant’s symptoms would remain stable as long as she adhered to her physical
restrictions. Dr. Brooker opined that, while the functional capacity evaluation recommended that
she have work conditioning, he did not recommend it as it would probably aggravate her
condition.
On July 24, 2013 the employing establishment offered appellant a position as a modified
sales, service and distribution associate. The duties of the modified assignment included
scanning, sorting and writing notices for two hours a day; being a lobby director and assisting
customers five hours a day and restocking the lobby one hour a day. The physical requirements
included: sitting, standing, walking, kneeling, climbing, bending, stooping, and twisting, lifting,
carrying, pushing and pulling 10 to 20 pounds; no reaching or repetitive use of wrists and elbows
for eight hours a day.
On August 8, 2013 appellant accepted the July 24, 2013 job offer, but failed to report to
work.
In an August 13, 2013 letter, OWCP advised appellant that the job offer was suitable and
in accordance with her medical restrictions as provided by Dr. Brooker. It noted that on
August 13, 2013 the employing establishment confirmed that the position remained open and
available to her. OWCP allowed appellant 30 days to accept the position or provide her reasons
for refusal. Appellant was advised that an employee who refuses an offer of suitable work
without reasonable cause was not entitled to compensation. She was also advised that the fact
that she was participating in an OWCP-sponsored vocational rehabilitation program was not a
valid reason for refusing a suitable offer of employment. Appellant did not respond to OWCP’s
August 13, 2013 letter.
OWCP received additional medical reports from Dr. Brooker. On August 26, 2013
Dr. Brooker noted a follow-up for rotator cuff syndrome and stated that appellant was not yet
2

OWCP noted that as it previously paid 32 percent impairment of the right upper extremity, appellant would
receive 16 percent impairment under the current claim.

2

able to return to work. On August 25, 2013 he reported that she had a flare-up of pain.
Examination revealed a positive drop arm test and weakness to abduction, positive impingement.
An August 29, 2013 work slip indicated that appellant called on August 1, 2013 for an
appointment, but could not be scheduled until August 26, 2013 as the doctor was out of town. In
the September 13, 2013 report, Dr. Brooker advised that she could return to work in three weeks.
In the September 13, 2013 note, he noted that an injection helped appellant’s pain and that she
was working on her exercises to restore her mobility and strength. Dr. Brooker noted that she
had a chronic rotator cuff tear and would always have restrictions in terms of repetition and
lifting and usage of the shoulder. He kept appellant off work for another three weeks.
In an October 9, 2013 report, Dr. Brooker opined that appellant could resume light duty
as of November 1, 2013. In the October 9, 2013 report, he noted her pain had improved and she
was functioning more effectively. Dr. Brooker noted that the examination revealed mildly
positive drop arm test, weakness to abduction and adduction. Appellant had negative Speed’s
and Yergasun’s test and was intact neurologically and vascularly. She was cleared for light duty
in three weeks’ time, around the beginning of November.
By decision dated October 31, 2013, OWCP terminated appellant’s entitlement to
monetary compensation effective October 31, 2013 that she refused suitable work.3 It
determined that her reasons for failing to report to the offered position were not justified because
the job was suitable based on Dr. Brooker’s July 12, 2013 work restrictions. Appellant did not
provide sufficient medical evidence or argument as to why she could not perform the duties of
the July 24, 2013 suitable job offer.
Appellant returned to work on November 16, 2013 for eight hours a day on a modified
distribution assistant assignment.
On November 13, 2013 appellant requested reconsideration of OWCP’s October 31,
2013 decision. In a November 13, 2013 statement, she noted that she received a letter indicating
her compensation was terminated as of October 31, 2013 due to failure to report for suitable
work. Appellant stated that she was under her doctor’s care from August 26 to October 31, 2013
and released to return to limited duty on November 1, 2013. She stated that the modified job
offered to her had been assigned to another employee due to her inability to work.
In a November 13, 2013 work status note, Dr. Brooker indicated that appellant was
completely incapacitated from all job duties from August 26 through October 31, 2013 and was
returned to limited duty on November 1, 2013.
In a December 4, 2013 letter, the employing establishment advised that the initial job
offer of July 24, 2013 was sent out to appellant, who replied on August 10, 2013 that she was
experiencing a bad reaction from her medication and had an appointment with her doctor on
August 26, 2013. It noted that the job duties contained in the July 24, 2013 job offer were not

3

The record contains an October 10, 2013 decision terminating appellant’s compensation for wage-loss and
schedule award benefits effective October 10, 2013 on the basis that she refused suitable work. However, it does
not appear that OWCP issued this decision.

3

given to another employee. Although appellant had signed the job offer, her manager waited
over a month to find out why she did not return to work as scheduled.4
By decision dated February 10, 2014, OWCP denied modification of its October 31, 2013
decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered to, procured by or secured
for him; is not entitled to compensation.5 However, to justify such termination, OWCP must
show that the work offered was suitable.6 An employee who refuses or neglects to work after
suitable work has been offered to [her] has the burden of showing that such refusal to work was
justified.7”
When OWCP informs a claimant that it has determined that a given offered position is
suitable and invites him or her to write and give reasons for not accepting, OWCP acknowledges
that its determination is not yet final and that a reasonable explanation may support the
claimant’s refusal of the position and result in the continuation of his or her compensation for
disability. Certain explanations will, of course, justify a claimant’s refusal to accept an offer of
employment. OWCP’s procedure manual itself lists a number of reasons that are considered
acceptable.8 If a claimant refuses the employment offered and provides such a reason, OWCP
will consider his or her refusal justified and will continue his or her compensation for disability.9
If a claimant chooses to respond within 30 days and gives reasons for not accepting the
offered position, OWCP must consider these reasons before it can make a final determination on
the issue of suitability. Only after it has made a final determination on the issue of suitability can
OWCP afford the claimant an opportunity to accept or refuse an offer of suitable work. Only
after it has finalized its decision on suitability can OWCP notify the claimant that refusal to
accept shall result in the termination of compensation, as the language of 5 U.S.C. § 8106(c)
clearly mandates.10

4

OWCP received medical reports concerning appellant’s bilateral thumb carpometacarpal joint osteoarthrosis and
left hand surgery were received. Additional reports from Dr. Brooker did not address the issue of refusal of suitable
work.
5

5 U.S.C. § 8106(c)(2).

6

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

7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5 (June 2013).
9

Id.

10

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

4

OWCP’s regulations provide that OWCP shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter OWCP’s finding of suitability. If the employee presents such reasons, and
OWCP determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.
At that point in time, OWCP’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.11 After providing the 30-day and 15-day notices, OWCP
will terminate the employee’s entitlement to further wage-loss compensation and schedule award
benefits.12 However, the employee remains entitled to medical benefits.13
ANALYSIS
The Board finds that OWCP properly terminated appellant’s compensation on the
grounds that she refused suitable work under 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant had several right shoulder conditions, bilateral hand and
bilateral carpal tunnel syndrome. It terminated her monetary compensation effective October 31,
2013 based on her failure to accept suitable work.
The Board finds that the offered modified sales, service and distribution associate
position was within appellant’s physical limitations as set forth by Dr. Brooker on July 12, 2013.
Dr. Brooker advised that she could work at a light category of work carrying 20 pounds or less
intermittently. There is no evidence of record in the job offer as written that any of the described
duties exceeded his restrictions. The physical requirements of the job offer included: sitting,
standing, walking, kneeling, climbing, bending, stooping and twisting, lifting, carrying, pushing
and pulling 10 to 20 pounds; no reaching or repetitive use of wrists and elbows for 8 hours a day.
There is also no dispute that appellant meets the qualifications of the positon.
The Board further finds that OWCP complied with its procedural requirements in
advising appellant that the position was found suitable, providing her with the opportunity to
accept the position or provide her reasons for refusing the job offer and notifying her of the
penalty provision of section 8106(c). The Board notes that appellant never responded to
OWCP’s August 13, 2013 suitability determination letter requesting that she submit evidence
supporting her refusal of the offered employment during the 30-day period specified by the
letter. Appellant did not provide OWCP with any response as to why the position was not
suitable. At the time of termination, there was no medical evidence to establish that she could
not perform the duties of the offered position.
Although additional reports from Dr. Brooker indicated that appellant could not return to
work until the end of October 2013 because of a flare-up of pain and difficulty with usage of her
shoulder, he failed to support that she could not perform the duties of the offered position. The
11

20 C.F.R. § 10.516.

12

Id. at § 10.517(b).

13

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, supra note 10; S.B., Docket No. 14-441 (issued
June 24, 2014).

5

Board finds that OWCP properly terminated appellant’s compensation benefits on the grounds
that she refused an offer of suitable work.
Appellant subsequently indicated that she was under physician’s care from August 26 to
October 31, 2013 and released to light duty on November 1, 2013. While Dr. Brooker opined in
a November 13, 2013 work status note that appellant was incapacitated from all job duties from
August 26 through October 31, 2013 and was returned to limited duty on November 1, 2013, he
provided insufficient medical rationale as to why she was incapacitated for that period or how
her flare-up of pain and difficulty with usage of her shoulder prevented her from performing the
light duties of the offered position. Such an explanation is needed to support that appellant was
disabled from performing the offered position to reverse the sanction decision. Furthermore,
contrary to appellant’s assertion, the employing establishment indicated on December 4, 2013
that the job duties contained in the July 24, 2013 job offer were not given to another employee.
The Board finds that her arguments are without merit and that she failed to provide an acceptable
reason for neglecting to work in the suitable work position. Thus, OWCP properly denied
modification of its sanction decision.
On appeal, appellant argues that she did accept the job offer but was unable to start until
her doctor released her from care. As discussed, Dr. Brooker provided no medical rationale as to
why she was incapacitated from all job duties during that period or how her flare-up of pain and
difficulty with usage of her shoulder prevented her from performing the duties of the offered
position as of October 31, 2013.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation effective October 31, 2013 on the grounds that she refused an offer of suitable
work.

6

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7