United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Gainesville, FL, Employer
__________________________________________

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

Docket No. 16-1665
Issued: April 13, 2017

Case Submitted on the Record

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

JURISDICTION
On August 17, 2016 appellant, through counsel, filed a timely appeal from a July 26,
2016 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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the July 26, 2016 decision. Since the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not
consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
benefits effective October 29, 2015 as she refused an offer of suitable work under 5 U.S.C.
§ 8106(c).
FACTUAL HISTORY
On June 22, 1989 appellant, then a 48-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on June 5, 1989 she felt a sharp pain in her left hip radiating
down to her left leg when she lifted a patient into an ambulance. She stopped work and returned
to light duty on October 27, 1989. OWCP accepted appellant’s claim for lumbar strain and
aggravation of degenerative disc disease.
Appellant stopped work again on February 12, 1990 and filed a claim for recurrence of
disability. She underwent lumbar surgery on July 16, 1990 and continued to seek medical
treatment for her accepted June 5, 1989 employment injury. Appellant was placed on the
periodic rolls as of June 16, 2002.
Dr. John Stevenson, a Board-certified neurological surgeon, submitted office notes dated
January 23 to June 19, 2015, which he related appellant’s complaints of continued back and leg
pain. He noted that she had regular steroid epidural injections, which provided good relief.
Dr. Stevenson indicated that appellant had known preexisting multilevel degenerative disc
disease and degenerative facet disease. Upon examination, he observed normal muscle tone and
strength in both lower extremities. Sensory function was intact. Vance Amos, a certified
physician assistant for Dr. Stevenson completed a work capacity evaluation form, which found
appellant not capable of working.
On April 13, 2015 OWCP referred appellant, the case file, a statement of accepted facts,
and a series of questions to Dr. Steven J. Lancaster, for a second opinion examination to
determine the nature and extent of her disability. In a June 12, 2015 report, Dr. Lancaster
accurately described the June 5, 1989 employment injury and reviewed her medical history. He
noted that appellant continued to receive medical treatment for her back and bilateral lower
extremity symptoms and received epidural injections every three months. Upon examination of
her lumbar spine Dr. Lancaster observed no paraspinal spasms, but he noted complaints of pain
in the low back, left buttock, and sacroiliac area. Straight leg raise testing was negative
bilaterally and sensation was full. Dr. Lancaster reported that examination of appellant’s hips
showed in both hips internal and external rotation to 40 degrees and flexion to 90 degrees.
Examination of appellant’s knees showed range of motion in both knees to 120 degrees with no
instability. Dr. Lancaster diagnosed herniated nucleus pulposus at L4-5 with radiculopathy and
status post total knee replacement bilaterally.
Dr. Lancaster responded to OWCP’s questions and related that appellant’s accepted
condition of lumbar sprain would have resolved approximately six months after the June 5, 1989
employment injury. He reported that the accepted condition of aggravation of degenerative disc
disease was permanent and still persisted. Dr. Lancaster opined that appellant could work in a
modified-duty capacity, but not at her previous level of heavy lifting. He advised that she could

2

sit for eight hours, walk and stand for three hours, and push, pull, or lift up to 20 pounds for three
hours. Dr. Lancaster completed a work capacity evaluation form which outlined appellant’s
work restrictions.
In a June 29, 2015 magnetic resonance imaging (MRI) scan report of the lumbar spine,
Dr. Richard E. Kinard, a Board-certified diagnostic radiologist, noted no overall significant
change with appellant’s small central disc extrusion T12-L1. He observed resolution of the
previous L4-5 disc protrusion with mild right foraminal stenosis and moderate degenerative disc
disease. Dr. Kinard further reported moderate left foraminal and extraforaminal disc protrusion
L3-4, causing mild displacement of the left exiting L3 nerve root unchanged, and small
foraminal disc-osteophyte complex L5-S1 on the left changed.
Dr. Stevenson provided results of a July 30, 2015 examination and noted that appellant
was doing well with her intermittent epidural steroid injections. He noted that she had a normal
neurological examination. Dr. Stevenson related that a recent MRI scan showed multilevel
degenerative disc and joint disease with minimal nerve compromise. He recommended that
appellant continue with epidural steroid injections as needed. Dr. Stevenson completed a work
capacity evaluation form, which noted that she was not able to work.
By letter dated August 12, 2015, OWCP contacted the employing establishment and
provided a copy of Dr. Lancaster’s June 12, 2015 second opinion report. It determined that the
weight of the medical evidence rested with the second opinion physician. OWCP requested that
the employing establishment determine whether a job position was available to accommodate
appellant’s restrictions and if so, to provide a written job offer to her.
On August 13, 2015 the employing establishment provided a job offer of information
receptionist position, GS-03, step 10. The duties involved welcoming visitors in person or on the
telephone, answering or referring inquiries from visitors and staff, and directing visitors to clinic
areas. No computer or typing skills or use of fax or copy machine were required. The
employing establishment noted that the job offer for information receptionist was provided
pursuant to Dr. Lancaster’s June 12, 2015 second opinion report. It related that the physical
demands of the job position required sitting, with the discretion to stand or change positions as
frequently as needed, infrequently lifting file folders weighing up to one pound, and no pushing,
pulling, squatting, reaching, or reaching above the shoulders.
Appellant declined the job offer for the position of information receptionist on
September 2, 2015.
On September 14, 2015 OWCP verified with the employing establishment that the
August 13, 2015 job offer remained available.
In a letter dated September 16, 2015, OWCP advised appellant that the position of
information receptionist offered by the employing establishment in a notice dated August 13,
2015 was found to be suitable to her capabilities and was currently available. It found that the
weight of the medical evidence rested with Dr. Lancaster, the second opinion examiner, because
he provided medical rationale for his opinion on the nature and extent of her accepted conditions.
OWCP determined that the position of information receptionist was within the restrictions set

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forth by Dr. Lancaster in his June 12, 2015 report. It provided appellant 30 days to accept the
position or provide written reasons for her refusal. OWCP informed her that if she failed to
accept the offered position and failed to demonstrate that the refusal of the offer of suitable work
was justified, her compensation would be terminated pursuant to 5 U.S.C. § 8106(c)(2).
Appellant did not respond within the allotted 30-day time period.
By decision dated October 29, 2015, OWCP terminated appellant’s compensation and
entitlement to claim a schedule award effective October 30, 2015 as she refused an offer of
suitable work under section 8106(c)(2). It noted that she had not responded to the proposed
termination of her compensation within the allotted 30-day time period. OWCP determined that
the weight of medical evidence rested with the June 12, 2015 report of Dr. Lancaster, who
determined that appellant was capable of working within the restrictions of the modified job
offer. It found that her failure to report to the offered position were not justified.
On November 9, 2015 appellant, through counsel, requested a telephone hearing before
an OWCP hearing representative.
In a February 23, 2016 note, Dr. Stevenson indicated that appellant continued to
complain of low back pain and radiating left leg pain down the calf. He noted that she had
lumbar degenerative disc disease and moderate degenerative disc disease at L4-5 with facet
arthrosis, moderate left foraminal stenosis with an extraforaminal disc protrusion causing
posterior displacement of the left L3 nerve root.
Dr. Stevenson recommended
electromyography/nerve conduction velocity studies (EMG/NCV) to evaluate appellant’s
radiating leg pain and to rule out radiculopathy. He completed a work capacity evaluation which
indicated that she was not able to work.
Appellant began to receive medical treatment from Dr. Prathmia Reddy, Board-certified
in physical medicine and rehabilitation. In a March 8, 2016 treatment note, Dr. Reddy related
appellant’s complaints of low back pain radiating down the left leg. She reviewed appellant’s
history and provided results on examination. Dr. Reddy observed that appellant’s lumbar spine
was limited in flexion and extension. Examination of appellant’s hip revealed full range of
motion and normal pedal pulses bilaterally. Dr. Reddy diagnosed radiculopathy of the lumbar
region. She indicated that she would “defer work restrictions and MMI [maximum medical
improvement] to Dr. Stevenson.” Dr. Reddy provided an EMG/NCV report, which indicated a
normal study with no evidence of lumbar radiculopathy.
In treatment notes dated April 7 to July 5, 2016, Dr. Reddy noted appellant’s complaints
of pain in the lower back radiating to the buttocks and legs. Upon physical examination, she
observed limited lumbar range of motion in flexion and extension and tenderness and spasm.
Dr. Reddy reported full range of motion of the bilateral hip, knee, and ankle. She diagnosed
radiculopathy of the lumbar region, low back pain, and sacroilitis. Dr. Reddy explained that
since appellant was not considering surgical intervention she was at MMI with future palliative
and conservative care. She opined that appellant had 10 percent whole person impairment.
Dr. Reddy related that appellant was disabled and that she would defer work restrictions to
Dr. Stevenson.

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On April 18, 2016 appellant filed a claim for a schedule award (Form CA-7).
On June 13, 2016 a hearing was held. Appellant testified about the education she had
received and the jobs she had held before she worked for the employing establishment. She
noted that she had worked for the employing establishment as a nursing assistant for 19½ years
and that she still experienced lower back pain and pain in her left buttocks that radiated down her
left leg, which continued to require her to still take various pain medications. Appellant noted
that she had other nonwork-related medical conditions which required coronary bypass surgery
and two knee replacement surgeries, but that it was just her back condition which currently
caused limitations. She explained that she could not work as an information receptionist because
there were some mornings when she could not get out of bed. Appellant related that she could
not get out of bed until about nine o’clock and took pain medication to help her relax. She noted
that she would not make it to work on time and she would not be able to be there every day.
Appellant believed that she would not be able to sit all day long if not taking medication because
she needed to lie down and let it wear off. She pointed out that she also had difficulties with
various activities of daily living such as cleaning the house.
Appellant also provided a treatment note from Dr. Robert G. Valentine, an
anesthesiologist and pain medicine specialist. In the June 2, 2016 examination note,
Dr. Valentine related her complaints of low back pain radiating down the left leg. He reviewed
appellant’s history and conducted an examination. Dr. Valentine observed limited range of
motion in flexion or extension and pain with end range extension. He diagnosed other
intervertebral disc degeneration of the lumbar region, lumbar radiculopathy, low back pain and
sacroilitis, and other lumbar region spondylosis. Dr. Valentine reported that appellant was not
able to resume work and was permanently and totally disabled.
By decision dated July 26, 2016, an OWCP hearing representative affirmed the
October 29, 2015 decision finding the weight of the medical evidence rested with Dr. Lancaster,
who found that appellant was capable of performing the duties of the offered information
receptionist position. She found that OWCP properly terminated appellant’s compensation
pursuant to 5 U.S.C. § 8106(c)(2).
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.4 Section 8106(c)(2) of FECA provides
that a partially disabled employee who refuses or neglects to work after suitable work is offered
to, procured by, or secured for the employee is not entitled to compensation.5 To justify
termination of compensation, OWCP must show that the work offered was suitable, that the
employee was informed of the consequences of refusal to accept such employment, and that she

4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

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

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was allowed a reasonable period to accept or reject the position or submit evidence to provide
reasons why the position is not suitable.6
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.7 Section 10.517(a) of FECA’s implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured, has the burden
of showing that such refusal or failure to work was reasonable or justified.8 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.9
OWCP has the burden of demonstrating that the employee can work, setting forth the
specific restrictions, if any, on the employee’s ability to work, establishing that a position has
been offered within the employee’s work restrictions and setting for the specific job
requirements of the position.10 After termination or modification of benefits clearly warranted
on the basis of the evidence, the burden for reinstating benefits shifts to the employee.11
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain and aggravation of degenerative
disc disease as a result of a June 5, 1989 employment injury. Appellant stopped work on
February 12, 1990 and did not return. OWCP terminated her compensation effective October 30,
2015 pursuant to 5 U.S.C. § 8106(c)(2) because she refused an offer of suitable work. The
Board finds that OWCP met its burden of proof to terminate appellant’s compensation benefits
based upon her refusal to accept a suitable position within her medical restrictions.
Appellant was referred to Dr. Lancaster, the second opinion physician, to determine the
nature and extent of her work capacity and disability. In a June 12, 2015 report, Dr. Lancaster
provided an accurate history of injury and provided findings on physical examination. In
response to OWCP’s questions, he explained that appellant’s accepted lumbar sprain would have
resolved approximately six months after the accepted June 5, 1989 injury. Dr. Lancaster
reported that she continued to suffer from residuals of the accepted aggravation of degenerative
disc disease, but that she could work in a modified-duty capacity. He determined that appellant
could sit for eight hours, walk and stand for three hours, and push, pull, or lift up to 20 pounds
for three hours.

6

See Ronald M. Jones, 52 ECAB 190 (2000). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.4 (June 2013).
7

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

8

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

9

Id. at § 10.516.

10

See Linda Hilton, 52 ECAB 476 (2001).

11

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

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On August 13, 2015 the employing establishment offered appellant a position working as
an information receptionist which required eight hours of sitting, with the discretion to stand or
change positions as frequently as needed, infrequent lifting of file folders weighing up to one
pound, and no pushing, pulling, squatting, reaching, or reaching above the shoulders. The
employing establishment noted that no computer or typing skills or use of fax or copy machine
were required.
The Board has held that the issue of whether an employee has the physical ability to
perform a modified position offered by the employing establishment is primarily a medical
question that must be resolved by medical evidence.12 Appellant has testified that it is her back
condition which limited her ability to accept the modified position. In this case, OWCP properly
determined that the physical demands of the position of information receptionist were within the
restrictions set forth by Dr. Lancaster in his June 12, 2015 second opinion report.13 The Board
finds, therefore, that the medical evidence has established that appellant is physically able to
perform the position of information receptionist.14 As the offered position of information
receptionist was suitable, OWCP met its burden of proof to terminate appellant’s claim pursuant
to 5 U.S.C. 8106(c)(2).15
Appellant was treated by Dr. Stevenson who indicated in a July 30, 2015 office note that
she continued to complain of low back pain. Dr. Stevenson related that she was currently doing
well with intermittent epidural steroid injections. He reported that a recent diagnostic
examination revealed multilevel degenerative disc and joint disease with minimal nerve
compromise. Dr. Stevenson completed a work capacity evaluation form and indicated that
appellant was not able to work. The Board finds, however, that he did not provide any rationale
for his finding that she was unable to work nor did he provide an opinion on the relevant issue of
whether she could perform the duties of an information receptionist offered on
August 13, 2015.16 Likewise, Dr. Kinard’s June 29, 2015 MRI scan report also failed to contain
an opinion on the relevant issue of whether appellant could not perform the duties of the
specified position.17
The certified physician assistant completed work capacity evaluation forms dated
January 23 to June 19, 2015, which noted that appellant was not capable of working. His notes,

12

T.M., Docket No. 16-0065 (issued April 4, 2016); Kathy E. Murray, 55 ECAB 288 (2001).

13

Supra note 10.

14

The Board has held that in order to justify termination or modification of compensation benefits when a
position is selected to represent suitable work, OWCP must show that a claimant has the physical ability to perform
the position. T.M., supra note 14; M.R., Docket No. 09-1811 (issued April 12, 2010).
15

Supra note 6.

16

K.S., Docket No. 16-0401 (issued July 12, 2016).

17

Id.

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however, do not constitute competent medical evidence as a physician assistant is not considered
a physician under FECA.18
Subsequent to OWCP’s termination of compensation, appellant submitted a February 23,
2016 office note by Dr. Stevenson. Dr. Stevenson diagnosed lumbar degenerative disc disease,
moderate degenerative disc disease at L4-5 with facet arthrosis, and moderate left foraminal
stenosis with an extraforaminal disc protrusion causing posterior displacement of the left L3
nerve root. He provided a work capacity evaluation form, which indicated that appellant was not
able to work. Dr. Stevenson did not, however, provide any medical rationale or explanation for
why she was not able to work or why she was unable to perform the duties of an information
receptionist.19 Similarly, in his June 2, 2016 examination note, Dr. Valentine did not offer any
explanation for his determination that appellant was totally disabled.20
In examination notes dated March 8, to July 5, 2016, Dr. Reddy reviewed appellant’s
history and provided physical examination findings. She diagnosed radiculopathy of the lumbar
region. Dr. Reddy noted that she would “defer work restrictions and MMI to Dr. Stevenson.”
The Board notes that she did not provide any opinion on appellant’s work capacity or ability to
perform the duties of an information receptionist. Dr. Reddy’s examination notes, therefore, are
of limited probative value and are insufficient to establish that appellant could not physically
perform the offered job position.21
On appeal counsel alleges that OWCP’s decision was contrary to fact and law. Despite
his argument, however, the record establishes that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation benefits pursuant to 5 U.S.C. § 8106(c) because she refused
an offer of suitable work.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
benefits effective October 29, 2015 as she refused an offer of suitable work under 5 U.S.C.
§ 8106(c).

18

Section 8101(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. As physician assistants are not “physicians” as defined by FECA, their medical opinions are of no
probative medical value. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
19

The Board has held that medical conclusions unsupported by rationale are of diminished probative value. See
Jacquelyn L. Oliver, 48 ECAB 232 (1996).
20

Id.

21

The Board has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition or disability is of limited probative value. C.B., Docket No. 09-2027 (issued May 12, 2010);
J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D., 58 ECAB 149 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
McLean, VA, Employer
__________________________________________

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

Docket No. 20-0393
Issued: May 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 10, 2019 appellant, through counsel, filed a timely appeal from a
November 8, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider 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
OWCP continued to receive evidence following its November 8, 2019 decision. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional condition of Achilles
tendinitis causally related to her accepted October 7, 2015 employment injury; (2) whether OWCP
has met its burden of proof to terminate appellant’s entitlement to wage-loss compensation and
medical benefits, effective June 13, 2019, as she no longer had residuals or disability causally
related to her accepted employment injury; and (3) whether appellant has met her burden of proof
to establish continuing employment-related disability or residuals, on or after June 13, 2019, due
to the accepted employment injury.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 41-year-old assistant city carrier, filed a traumatic
injury claim (Form CA-1) alleging that on October 7, 2015 she sustained injuries to her left ankle
when she stepped in a hole while delivering mail in the performance of duty. She stopped work
on the date of injury. OWCP accepted the claim for left ankle sprain. It paid appellant intermittent
wage-loss compensation from February 9 to April 1, 2016.
An October 8, 2015 x-ray of appellant’s left ankle revealed a tiny, well-corticated fragment
in the anterior ankle on the lateral view, which might represent sequela of old trauma and no other
fractures.
A January 26, 2016 magnetic resonance imaging (MRI) scan of appellant’s left ankle read
by Dr. Paul Cooper, a Board-certified orthopedic surgeon, demonstrated peroneal tendinopathy,
injury to the anterior and inferior tibiotalar ligament and possibly anterior talar fibular and
calcaneofibular ligament, posterior tibial tendinopathy, and Achilles tendinopathy. Dr. Cooper
noted that there had been prior injury to the anterior inferior tibiofibular ligament and also to the
anterior talofibular and calcaneofibular ligaments.
Appellant received a schedule award for two percent permanent impairment of the left
lower extremity for the period from October 28 to December 7, 2018. This schedule award was
based upon an October 28, 2018 report from Dr. Robert Macht, a general surgeon, who provided
a permanent impairment rating for appellant’s left ankle sprain, based upon her ligament injury.
Dr. Macht also noted that her January 2016 MRI scan showed tendinopathy of the peroneal tendon,
posterior tibialis tendon, and Achilles tendon, and injury to the anterior, inferior, tibiofibular
ligament, anterior talofibular ligament, and calcaneofibular ligaments.
On October 30, 2018 OWCP prepared a statement of accepted facts (SOAF) which noted
appellant’s history of injury on October 7, 2015 and that her claim was accepted for left ankle
sprain. It also related that she had undergone conservative medical treatment and that she had been
released to limited-duty work on March 9, 2016.
On October 30, 2018 OWCP referred appellant and the SOAF to Dr. D. Burke Haskins, a
Board-certified orthopedic surgeon, for a second opinion examination to determine the nature and
status of her work-related injuries. Dr. Haskins was asked to provide diagnoses for appellant’s
conditions, explain the causes of her subjective and objective findings, and provide an opinion as
to whether her diagnoses were causally related to the accepted employment injury.

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In a November 13, 2018 report, Dr. Haskins noted that he reviewed appellant’s history of
injury, medical treatment, and the SOAF. He indicated that her October 8, 2015 x-rays of the left
ankle revealed no definite acute abnormality, however, her January 26, 2016 left ankle MRI scan
did demonstrate peroneal tendinopathy and injury to the anterior and inferior tibiotalar ligament
and possibly the anterior talar fibular and calcaneofibular ligament. Dr. Haskins provided
examination findings for the lower extremity of no atrophy; no ankle swelling; full range of motion
(ROM); some tenderness of the ankle, Achilles tendon, and other regions; intact sensation; no
obvious joint effusion; and intact peroneals. He noted that when asked to stand, appellant was able
to stand on her heels, but was unable to stand on her left toes. In response to OWCP’s inquiries,
Dr. Haskins diagnosed left ankle sprain and found that appellant had reached maximum medical
improvement (MMI). He noted appellant’s subjective complaint of pain following an ankle sprain.
Dr. Haskins opined that appellant could return to all normal activity and work and also noted that
she had no preexisting conditions.
In a February 26, 2019 report, Dr. Cooper diagnosed Achilles tendon pain.
By notice dated March 21, 2019, OWCP advised appellant that it proposed to terminate
her entitlement to wage-loss compensation and medical benefits based on Dr. Haskins’ opinion
that the accepted conditions had ceased without residuals. It afforded her 30 days to submit
additional evidence.
A March 20, 2019 MRI scan interpreted by Dr. Cali Lubrant, a radiologist, noted findings
of new edema within the flexor hallucis longus muscular belly and distal soleus muscle, as well as
minimally increased signal within the superomedial portion of the spring ligament. Dr. Lubrant
also noted that the findings were otherwise similar to the January 26, 2016 MRI scan.
Dr. Cooper reported on March 29, 2019, that he reviewed appellant’s March 11, 2019 bone
scan and March 20, 2019 MRI scan. He noted that her ankle was structurally stable and there was
no evidence of reflex sympathetic dystrophy. Dr. Cooper also noted that appellant’s symptoms
were not in proportion to her bone scan and MRI scan findings, and due to the hypersensitivity
and burning nature of her pain, she had been referred for further evaluation.
A May 15, 2019 electromyography (EMG) scan of appellant’s left lower extremity was
read by Dr. Kevin F. Fitzpatrick, a Board-certified physiatrist, as within normal limits and with no
abnormalities.
On June 3, 2019 OWCP received a September 19, 2017 x-ray report from Dr. Michael
Nellamattathil, a radiologist, which revealed mild degenerative changes of the talonavicular joint
and no acute radiographic abnormalities.
By decision dated June 13, 2019, OWCP finalized the termination of appellant’s
entitlement to future wage-loss compensation and medical benefits, effective June 13, 2019,
finding that Dr. Haskins’ report was entitled to the weight of the medical evidence.
On June 18, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on October 2, 2019.
Appellant testified that she continued to experience pain, throbbing, aching, and tenderness of the
ankle. She denied prior problems with her ankle and subsequent injuries. Appellant noted that
she had stopped work on February 2, 2019. Counsel argued that the evidence supported continued
symptoms of the work injury and that the second opinion physician found that appellant had global
3

tenderness, including the Achilles tendon, posterior tibial region, anterior medial malleolar,
anterior medial joint line, anterior joint line, lateral malleolar, and perineal region. He argued that
the termination of benefits was premature and the case should be expanded to include Achilles
tendinitis.
In a November 30, 2018 report, Dr. Cooper indicated that radiographs obtained on that date
were unremarkable. He diagnosed tendinopathy and left ankle pain.
In a July 12, 2019 report, Dr. Cooper noted that there was no evidence of a new fracture or
dislocation and that appellant’s symptoms were primarily neurogenic in etiology. He diagnosed
left foot pain and found that she was stable from an orthopedic perspective and no further treatment
was needed. Dr. Cooper referred appellant to a pain management specialist for evaluation.
In an October 17, 2019 report, Dr. David King, a Board-certified internist, noted
appellant’s history of injury. He explained that appellant was seen for possible nerve compression
or nerve entrapment in the ankle area and diagnosed complex regional pain syndrome involving
the ankle. Dr. King noted that appellant failed oral medication and pain management. He opined,
“[i]t is clear upon reviewing all the documentation in her evaluations from the different specialists
that she is unable to continue to perform the work as a letter carrier due to this particular longstanding abnormality. Due to the nature of it being mostly nerve damage or compression or
entrapment all yet to be fully determined this condition has been refractory to most treatments at
this time clinically she is not able to perform the task as a mail carrier.”
By decision dated November 8, 2019, OWCP’s hearing representative affirmed the
June 13, 2019 decision, finding that Dr. Haskins’ report was entitled to the weight of the medical
evidence.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4 To establish causal relationship between a condition and the
employment event or incident, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background, supporting such a causal relationship.5 The
opinion of the physician must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.

4

See C.C., Docket No. 19-1948 (issued January 8, 2021); D.F., Docket No. 19-1257 (issued July 12, 2020).

5

Id.

6

See M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).

4

OWCP referred appellant to Dr. Haskins for a second opinion examination to determine
the nature and status of her work-related injuries and asked him to provide diagnoses for
appellant’s conditions, explain the causes of appellant’s subjective and objective findings, and
provide an opinion as to whether appellant’s diagnoses were causally related to the accepted
employment injury. He indicated that October 8, 2015 x-rays of appellant’s left ankle revealed no
definite acute abnormality and his examination findings did not find residuals of the accepted left
ankle sprain. Dr. Haskins diagnosed a left ankle sprain, resolved, and found that appellant was at
MMI. However, he also noted that the January 26, 2016 MRI scan demonstrated peroneal
tendinopathy, injury to the anterior and inferior tibiotalar ligament, and possibly anterior talar
fibular and calcaneofibular ligament, posterior tibial tendinopathy, and Achilles tendinopathy.
Dr. Haskins offered no opinion as to the cause of these MRI scan findings in relation to the
accepted work injury. The Board finds Dr. Haskins noted appellant’s January 26, 2016 MRI scan
findings, but did not provide complete responses to OWCP’s questions regarding appellant’s
diagnosed conditions and their causal relationship to the accepted employment injury. As
Dr. Haskins failed to provide an opinion as to whether appellant’s claim should be expanded to
include additional conditions based on the MRI scan, his opinion is of diminished probative value.7
His report is insufficient to resolve whether appellant’s claim should be expanded to include
Achilles tendinitis, or any other left foot condition.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.8 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician, it had the duty to secure an
appropriate report addressing the relevant issues.9 The case will be remanded to OWCP for further
development of the medical evidence. On remand OWCP shall prepare an updated SOAF and
should obtain a supplemental opinion from Dr. Haskins. If Dr. Haskins is unavailable or unwilling
to provide a supplemental opinion, OWCP shall refer appellant, to another second opinion
physician in the appropriate field of medicine for a rationalized opinion. After this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.10 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

7

See C.C., supra note 4; D.F., supra note 4.

8

See D.M., Docket No. 19-1181 (issued December 2, 2019).

9

S.S., Docket No. 18-0397 (issued January 15, 2019); Richard F. Williams, 55 ECAB 343 (2004).

10

J.T., Docket No. 20-0482 (issued November 3, 2020); see R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Paul L. Stewart, 54 ECAB 824 (2003).

5

the employment.11 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.12
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.13 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 13, 2019.
OWCP has undertaken development of the medical record by referring appellant to a
second opinion physician to determine whether the acceptance of appellant’s claim should be
expanded and whether she had residuals or disability related to her accepted October 7, 2015
employment injury. As OWCP has not resolved the issue of whether acceptance of appellant’s
claim should be expanded and therefore whether her residuals and/or disability due to all of her
accepted conditions had ceased, the Board finds that it has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.15

11

See J.T., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
12

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
13
A.T., Docket No. 20-0334 (issued October 8, 2020); A.G., Docket No. 19-0220 (issued August 1, 2019); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
14

A.T., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

15

C.S., Docket No. 20-0621(issued December 22, 2020).

6

CONCLUSION
The Board finds that this case is not in posture for decision on the issue of claim expansion.
The Board further finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits.16
ORDER
IT IS HEREBY ORDERED THAT November 8, 2019 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

16

In light of the Board’s disposition of the first two issues, Issue 3 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 10-1900
Issued: May 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 13, 2010 appellant filed a timely appeal from the June 1, 2010 merit decision of
the Office of Workers’ Compensation Programs denying her claim for periods of disability.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained work-related disability for
intermittent periods between January 7 and March 4, 2009.
FACTUAL HISTORY
On October 14, 2008 appellant, then a 51-year-old housekeeping aid, filed an
occupational disease claim alleging that she sustained a respiratory condition due to her work
1

5 U.S.C. § 8101 et seq.

environment. She started working in the paper shredder room in January 2008 and began to
experience a cough and chest congestion. At first, appellant experienced these symptoms about
once a month, but by March or April 2008 she was being treated for respiratory infections every
three weeks.
On October 14, 2008 appellant was released to work by her attending physicians with
restrictions from exposure to paper dust from shredding or cleaning solutions and on
November 8, 2008 she was released to work without restrictions.
In a November 18, 2008 report, Dr. William L. Eschenbacher, an attending Boardcertified pulmonologist, who worked for the employing establishment, recommended that
appellant limit her exposure to irritant materials, such as paper shredding and strong cleaning
products. He was not certain that she had asthma, but noted that it appeared from her history of
symptoms resulting from her exposure to paper shredding areas that paper dust was irritating her
and causing her symptoms of cough, shortness of breath and chest tightness. Dr. Eschenbacher
posited that the same could be said of appellant’s exposure to cleaning products. Appellant had
stated that if a given cleaning product was mild she did not have the same problem.
In an April 9, 2009 decision, the Office accepted that appellant sustained work-related
general allergic rhinitis. It prepared a statement of accepted facts (SOAF) dated April 9, 2009,
which noted that she started at the employing establishment in September 2007 and that from
then until January 2008 she was assigned duties which involved the use of common cleaning
agents to clean work areas. The SOAF stated that appellant’s smoking history included using
cigarettes since she was a teenager at a rate of about one pack a day. Her duties since
January 2008 involved shredding paper with 30 percent of the work consisting of collecting
paper products and 70 percent of the work consisting of shredding the collected paper products
in a room with an open door and an operating fan.
On June 1, 2009 appellant filed a claim for wage-loss compensation (Form CA-7)
alleging leave buyback and leave without pay for the period September 25 to November 7, 2008.
She filed another Form CA-7 on October 22, 2009 claiming leave without pay and a leave
buyback for the period October 7, 2008 to March 4, 2009. The Office compensated appellant for
the 8 hours of leave without pay she claimed on October 10, 2008 and for the 64 hours of the
leave buyback she claimed from September 25 to November 7, 2008.
The Office referred appellant to Dr. Jonathan Bernstein, a Board-certified allergist, for a
second opinion evaluation. In an August 20, 2009 report, Dr. Bernstein discussed her history of
work exposure and reported the findings of his July 28, 2009 examination. Appellant reported
that she had been smoking about two packs of cigarettes a day for 35 years but now was down to
half a pack a day. Dr. Bernstein stated that she denied trouble with exposure to cleaning
materials, but reported that she missed over 300 hours during the prior year due to her exposure
in the shredding room. He noted that appellant had stage 1 breast cancer in remission, stage
2 melanoma, hypertension and high cholesterol and reported that her peak expiratory flow was
420, a result which showed that her lung flow was not significantly diminished. Dr. Bernstein
indicated that her records were not helpful in determining whether she had asthma versus chronic
obstructive lung disease from smoking that was irritated by dust exposure. He recommended
spirometry, before and after bronchodilators, to be followed by a methacholine challenge test to

2

assess her airway hyperresponsiveness, which was a central indicator of asthma. Dr. Bernstein
also recommended skin testing for allergies.
Dr. Bernstein arranged for the recommended testing on August 31, 2009. In a
September 3, 2009 report, he noted when he saw appellant in July 2009 her physical examination
was essentially unremarkable. Dr. Bernstein advised that her skin patch testing for seasonal and
year-round allergens was negative and that her methacholine challenge test was significantly
positive for airway hyperresponsiveness. He stated that appellant’s overall baseline lung
function test was not consistent with chronic obstructive lung disease even though she was a
heavy smoker. Dr. Bernstein opined that her findings were consistent with asthma and
recommended that she cease smoking as this activity affected her overall lung function. He
recommended that she avoid the paper shredding room as dusty situations could trigger her
underlying asthma.
In a September 11, 2009 report, Dr. Eschenbacher stated that he had seen appellant on
two occasions for her lung disease -- October 8 and 29, 2008. Appellant had been diagnosed
with asthma with symptoms that were worsened by exposures in the workplace, especially while
shredding paper. Dr. Eschenbacher noted that her outside methacholine challenge test revealed
increased bronchial responsiveness consistent with the diagnosis of asthma. He stated that
appellant was “ill with respiratory problems due to her asthma” on October 7 and 31 and
November 4 to 7, 2008, January 7, 27, 28 and 29 and March 4, 2009.
Dr. Bernstein provided a supplemental report dated October 15, 2009 noting that
appellant’s evaluation did not reveal allergic rhinitis but rather showed nonallergic rhinitis, a
condition which was typically triggered by irritants such as dust, chemicals or weather changes.
He stated that it was unclear from her history whether she had these problems prior to working in
the shredding room, but it was likely that her nonallergic rhinitis was aggravated by her
workplace exposures. Regarding the question regarding residuals, Dr. Bernstein stated that
appellant had essentially improved since being removed from the shredding room and noted that
she had not complained of symptoms since she avoided this environment. He stated that her
smoking would continue to aggravate her condition.
The Office compensated appellant for leave buyback from October 29 to
November 5, 2009. In an October 27, 2009 letter, it advised her that additional evidence was
needed to support her claim for intermittent periods of disability between January 7 and
March 4, 2009. The Office requested that appellant submit the requested evidence within 30
days of the day of the letter.
In a January 21, 2010 decision, the Office denied appellant’s claim for 33.5 hours of
wage loss for the period January 7 to March 4, 2009. It noted that she had been advised in an
October 27, 2009 letter that medical evidence to support her inability to work for this period was
needed. The Office found that appellant did not submit medical documentation to support the
period of disability.
Appellant requested a telephonic hearing before an Office hearing representative. At the
April 7, 2010 hearing, she testified that during the period January 7 to March 4, 2009 she was out
of work on an intermittent basis. Appellant would get respiratory infections which had rapid

3

onsets. She testified that she was in a recovery mode and was out of the paper shredding room
during this period, but her breathing was not back to normal. Appellant engaged in cleaning
duties during this period and several of the cleaners aggravated her condition. She advised that
she did not go to a physician each time she was off work during the period January 7 to
March 4, 2009. Appellant testified that she saw Dr. Eschenbacher on a sporadic basis and did
not see him every time she had symptoms. During the period in question she quit smoking, but
acknowledged that she still smokes about a half a pack a day. Counsel contended that the
practice of medicine did not permit a patient like appellant to see a physician every time she had
a respiratory problem. He suggested that the Office had the burden to show that her problems
during the period in question were not work related.
In a June 1, 2010 decision, the Office hearing representative affirmed the January 21,
2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 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 the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained 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 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
The Office accepted that appellant sustained general allergic rhinitis due to exposure to
substances, including shredded paper, in the workplace. Appellant claimed that this work-related
condition caused disability for intermittent periods between January 7 and March 4, 2009.5 The
Board finds that she did not submit sufficient medical evidence to establish that she became
disabled for intermittent periods between January 7 and March 4, 2009.

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

5

Appellant claimed 33.5 hours of disability during this period.

4

In a September 11, 2009 report, Dr. Eschenbacher, an attending Board-certified
pulmonologist, who worked for the employing establishment, indicated that appellant was “ill
with respiratory problems due to her asthma” for January 7, 27, 28 and 29 and March 4, 2009.
He noted that she had been diagnosed with asthma with symptoms that were worsened by
exposures in the workplace, especially while shredding paper.
The Board finds that the opinion of Dr. Eschenbacher does not establish that appellant
had work-related disability between January 7 and March 4, 2009. There is no evidence that
appellant was actually examined on the dates identified by Dr. Eschenbacher,6 who did not
provide any objective clinical findings of her condition on the claimed dates between January 7
and March 4, 2009 or an opinion as to whether she was disabled due to her accepted rhinitis on
those dates. Appellant’s claim has only been accepted for general allergic rhinitis. The record
does not contain rationalized medical evidence supporting the acceptance of any additional
work-related condition such as asthma.
Appellant did not submit a medical opinion based on objective findings which
demonstrated that she was disabled from work during the claimed periods due to the accepted
work injury. Therefore, the Office properly found that she did not meet her burden of proof to
establishment entitlement to wage-loss compensation for intermittent periods between January 7
and March 4, 2009.7
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained work-related disability for intermittent periods between January 7 and March 4, 2009.

6

Dr. Eschenbacher stated that he had seen appellant on two occasions -- October 8 and 29, 2008.

7

Counsel suggested the Office has the burden to show that appellant’s problems during the period in question
were not work related. However, it is appellant’s burden to show entitlement to compensation for specific periods.
See supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Waterville, ME, Employer
__________________________________________

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

Docket No. 09-1236
Issued: March 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 14, 2009 appellant filed a timely appeal from the November 13, 2008 merit
decision of the Office of Workers’ Compensation Programs, which found that her actual earnings
showed no loss of wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation for wage loss
to zero based on her actual earnings.
FACTUAL HISTORY
On March 17, 2004 appellant, a part-time flexible field representative, sustained an injury
in the performance of duty when she slipped on an icy step. The Office accepted her claim for a
torn meniscus and bone bruise in her right knee and a bruised left heel. Appellant received
compensation for temporary total disability on the periodic rolls.

Appellant worked in her date-of-injury job substantially the whole year immediately
preceding the injury at a pay rate of $14.10 an hour. Her work schedule that year was
intermittent. Appellant worked 255 days, or 1,132.75 hours, and she received $12,111.29 in
gross pay, exclusive of overtime.
From February to December 2004, appellant worked as a customer service representative
for L.L.Bean, Inc. In November 2004 she worked as a costume designer for Waterville High
School.
On October 8, 2008 appellant notified the Office that she earned $10.52 an hour and
$9,669.17 that year to date as a part-time customer service representative. She added that she
earned $3,890.00 for the year as a costume designer.
In a decision dated November 13, 2008, the Office reduced appellant’s compensation for
wage loss. It noted earnings from L.L.Bean, Inc. of $5,414.19 in 2004, $8,300.66 in 2005,
$8,148.59 in 2006, $8,034.78 in 2007 and $9,669.17 in the first 40 weeks of 2008. The Office
divided appellant’s 2008 earnings by 40 to find an average weekly salary of $241.73.
The Office further noted earnings from the high school of $791.00 in 2004, $927.00 in
2005, $3,754.00 in 2006 and $3,890.00 for the year 2008.1 It divided appellant’s 2008 earnings
by 52 to find an average weekly salary of $74.81.
The Office found that the duties of the two part-time positions fairly and reasonably
represented appellant’s wage-earning capacity. It determined that the average weekly earnings
from both jobs ($316.54) exceeded the current pay rate of her date-of-injury job ($259.34,
effective November 3, 2008). The Office therefore reduced appellant’s compensation for wage
loss to zero.
On appeal, appellant contends that the Office based its decision on income from a parttime job. She repeated how her hours and pay rate fluctuated during the year and how she now
had fewer hours than the Office calculated. Appellant asked the Board to review her request for
authorization for two surgeries and payment for follow-up care for surgery the Office did
approve. She submitted a notification of personnel action showing the pay rate of a field
representative effective January 4, 2009.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3

1

Appellant disclosed that she worked for the high school in 2007 but did not disclose her earnings.

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

2

When an employee cannot return to the date-of-injury job because of disability due to
work-related injury, but does return to alternative employment with an actual wage loss, the
Office must determine whether the earnings in the alternative employment fairly and reasonably
represent the employee’s wage-earning capacity. The Office should consider whether the kind of
appointment and tour of duty are at least equivalent to those of the job held at the time of injury.
Unless it is, it may not consider the work suitable. Reemployment may not be considered
suitable when the job is part time, unless the claimant was a part-time worker at the time of
injury.4
Generally, wages actually earned are the best measure of a wage-earning capacity and in
the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.5
When the Office learns of actual earnings that span a lengthy period of time, for example,
several months or more, it should determine compensation entitlement by averaging the earnings
for the entire period, determining the average pay rate, and compare the average pay rate for the
entire period to the pay rate of the date-of-injury job in effect at the end of the period of actual
earnings. The Office’s procedure manual explains:
“For example, the Office learns on October 1, 2002 that the claimant, injured on
June 5, 1997, returned to work on September 1, 1998 and worked intermittently
through September 1, 2002 when he ceased work. On September 1, 2002 the pay
rate for the claimant’s date[-]of[-]injury job was $500[.00] per week. The
claimant grossed $40,000[.00] during the four years (208 weeks) he worked from
September 1, 1998 through September 1, 2002, for an average rate of $192.30 per
week. When [determining wage-earning capacity], the pay rate of $192.30 would
be compared to the pay rate of $500[.00].”6
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.7 After it has determined that an employee has disability
causally related to her federal employment, it may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.8

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7.a (July 1997). See K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11, 2009) (finding
that the Office properly determined wage-earning capacity from a part-time job where the claimant was working
part time at the time of injury).
5

Don J. Mazurek, 46 ECAB 447 (1995).

6

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.814.7.d(4).

7

Harold S. McGough, 36 ECAB 332 (1984).

8

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

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ANALYSIS
Appellant received compensation for wage loss on the basis that her March 17, 2004
employment injury disabled her from returning to work and earning the wages she was receiving
as a field representative for the employing establishment, but she was not totally disabled for all
work. The record establishes that appellant had earnings from L.L.Bean, Inc. and Waterville
High School dating back to 2004. This demonstrated her capacity to earn wages following her
federal employment injury.
The Office determined that her earnings fairly and reasonably represented her wageearning capacity. Wages actually earned are generally the best measure of an employee’s wageearning capacity. They will be accepted as such measure in the absence of evidence to the
contrary. Appellant’s actual earnings were in part-time employment, but she was a part-time
employee at the time of her injury in federal service. Therefore, it was proper for the Office to
consider her actual earnings as a customer satisfaction representative and costume designer.
Appellant’s appointment and tour of duty in those positions were at least equivalent to those of
her temporary part-time flexible job as a field representative. As she demonstrated her capacity
to earn wages in those positions over a lengthy period of time, the Office properly accepted her
actual earnings as the best measure of her wage-earning capacity.
The Office compared her actual earnings to the current pay rate of the date-of-injury job.
For the actual earnings from L.L.Bean, Inc., the Office divided her most recent earnings,
$9,669.17 to date in 2008, by 40 weeks. This appears inconsistent with its procedures. Where
the Office has wage information spanning several years, as in this case, the procedure manual
states that the Office should average the earnings for the entire period, not just the most recent
months with the highest salary. Had it averaged appellant’s actual earnings from 2004 through
October 2008, the average pay rate would be less than its finding of $241.73.9
For the actual earnings from Waterville High School, appellant reported on October 8,
2008 that she had earned $3,890.00 for the year. The Office divided not by 40, as it did with her
other earnings, but by 52. The Office did not explain its calculation. And again, save for 2007,
the Office had wage information going back to 2004 but did not average appellant’s earnings for
the entire period. Had the Office done so, the average pay rate would be less than its finding of
$74.81.
The Office has not shown that it properly calculated the average pay rate from appellant’s
actual earnings following her employment injury. It bears the burden of proof to justify its
reduction of appellant’s compensation, and it has not established that she no longer has
disability, or the incapacity, because of an employment injury, to earn the wages she was
receiving at the time of injury. The Board finds that the Office has not met its burden of proof.
The Board will reverse the Office’s November 13, 2008 decision.

9

See Christine P. Burgess, 50 ECAB 444, 446-47 (1999) (finding that the Office properly determined the
claimant’s average weekly pay rate by totaling her earnings from November 19, 1978 to November 8, 1985 and
dividing by the number of weeks during that period, as outlined in the Office’s procedure manual).

4

Addressing appellant’s concerns on appeal, the Board notes that the Office may consider
her actual earnings in part-time employment because she was a part-time employee at the time of
injury. A proper calculation of her average weekly pay rate will account for seasonal or other
fluctuations during the year, and the Office will compare the average to the current pay rate of
her date-of-injury job as of the end of the period in question.10 That she no longer earns what she
used to or now works fewer hours may be reflected in the Office’s calculations. As for
authorization from the Office for surgeries or payment for follow-up care, the Board has no
jurisdiction to review these matters. The Office has issued no final decision which the Board
may review.
CONCLUSION
The Board finds that the Office has not met its burden of proof to reduce appellant’s
compensation for wage loss to zero. It did not properly calculate her average weekly pay rate
from actual earnings.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 2, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

The Board has no jurisdiction to review the SF-50 notice of personnel action appellant submitted on appeal, as
that evidence was not in the record before the Office at the time of its November 13, 2008 decision.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE ARMY, WESTERN
REGIONAL CONTRACTING OFFICE,
Fort Lewis, WA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-280
Issued: October 8, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant, through her representative, filed a timely appeal from an
August 14, 2009 decision of the Office of Workers’ Compensation Programs that denied her
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment that occurred after September 14, 2001.1

1

By decision dated July 10, 2008, Docket No. 07-1873 (issued May 4, 2007), the Board denied appellant’s claim,
adjudicated under Office file number xxxxxx799, which she sustained an emotional condition causally related to
factors of employment that occurred up to and including September 14, 2001.

On appeal, appellant attorney asserts the fact that she worked voluntary overtime, was not
given a performance appraisal and could not handle her normal job functions, are compensable
factors of employment.
FACTUAL HISTORY
On July 21, 2006 appellant, then a 48-year-old contract specialist, filed a (Form CA-2),
occupational disease claim, alleging that she sustained an emotional condition causally related to
factors of her federal employment. She previously stopped work on October 6, 2003 and was
removed from employment effective October 14, 2005. By letter dated August 16, 2006, the
Office informed appellant of the evidence needed to support her claim. Appellant was given 30
days to respond.
In a September 14, 2006 letter, Barbara J. Adkins, injury compensation program
administrator at the employing establishment, controverted the claim. She noted that no
supporting documentation had accompanied the claim and that appellant was on annual leave,
sick leave or leave-without-pay for most of the period from August to December 2003.
Ms. Adkins noted that appellant requested overtime on August 21, 2003 but the request was
denied because she had been absent for most of the pay period. She explained that overtime was
routinely approved at the employee’s request based on their individual workload. Multiple
attempts were made to support appellant in completing contracting actions and finding tools to
assist her and accommodate her request for reduced hours. Ms. Adkins stated that appellant had
difficulty completing complex contracts and provided a copy of her position description.
By decision dated September 21, 2006, the Office denied the claim.
On July 27, 2007 appellant requested reconsideration. She provided a diary of events
occurring from September 17, 2001 to December 22, 2003 and described her medical condition.
From September 24, 2001 to June 16, 2002 she worked in the food services division, was given
no work and was then transferred. Appellant stated that she was “hit hard” when told in
August 2003 that she had to work additional hours, noting that she had voluntarily worked 200
hours overtime since October 1, 2002 and was being treated negatively by management. On
October 6, 2003 her medical provider advised that she should work only six-hour days.
Appellant did not get an award at the end of the fiscal year and, in November 2003 she filed an
Equal Employment Opportunity Commission (EEOC) complaint. She requested Family and
Medical Leave Act (FMLA) leave beginning December 22, 2003 and has not worked since.
Appellant provided employee records, including time sheets from June 19, 2002 to April 2, 2005,
overtime records from July 28, 2002 to September 6, 2003, leave used for fiscal years 2002
through 2005, with schedules showing that she worked 145.25 hours of overtime from July 28,
2002 through November 11, 2003 and 175.25 overtime hours from January 12 through
September 6, 2003. She submitted a copy of testimony given on April 4, 2003 at an EEOC factfinding conference. Appellant stated that she was given no job description or performance
appraisal while working in food services, but that she received appropriate pay and transferred to
another employing establishment.

2

Judith A. Crown, a deputy director in food services, testified that the position description
from appellant’s previous employment in public works was used because she was the first fulltime employee in the position. A specific position description was not developed because the
position was evolving and appellant was moved into a different organization until she transferred
in June 2002. Ms. Crown acknowledged that her agency did not complete a performance
appraisal when appellant transferred and, to her knowledge, food services was not contacted by
her new agency. Appellant submitted an EEOC no fault settlement agreement signed on
December 18, 2003. The settlement agreement awarded her $50,000.00 and $3,000.00 in
attorney’s fees regarding several claims filed. In August 28, 2002 and August 18, 2003 e-mails,
Captain Steven R. Belk, chief of the western regional contracting office, advised that, as the end
of the fiscal year was approaching, he expected that all employees would work overtime. In the
2003 e-mail, he noted that the previous year had been “rough” regarding workload and staffing.
In a September 17, 2001 report, Dr. Richard Ling, a Board-certified internist, advised that
appellant had significant stressors at work and diagnosed acute anxiety. On April 2, 2002
Dr. Russell D. Hicks, a Board-certified internist, diagnosed major depressive disorder, single
episode. By report dated November 23, 2005, Dr. John P. Haws, Board-certified in psychiatry,
advised that appellant was first seen in June 2002 with an initial diagnosis of situational
depression, changed in January 2003 to prolonged adjustment disorder, which progressed to
major depression disorder in March 2003. In a March 16, 2006 report, Dr. Jeff Bremer, Ph.D., a
clinical psychologist, noted conducting mental status and psychological examinations. He
diagnosed major depression, single episode, without psychotic features, chronic; anxiety
disorder; dysomnia, amotivation, anergia, gastric bypass scheduled, psychosocial stressors and
financial stressors. Dr. Bremer advised that appellant could not return to her employment or
similar placement. On April 14, 2007 he advised that his clinical impressions were unchanged
and that she could not work an eight-hour day due to her chronic symptoms of depression and
anxiety, but could work from two to four hours daily.2
By decision dated September 5, 2007, the Office denied modification of the
September 21, 2006 decision.
On October 1, 2007 appellant, through her attorney, filed an appeal with the Board. In an
order dated May 12, 2008, the Board granted the Director’s motion to remand the case to the
Office. The Director noted that when appellant’s claims were bifurcated, all evidence relevant to
the claimed factors that occurred after September 14, 2001 were not associated with the record.
On remand, the Board instructed the Office to review all claimed employment factors that
occurred after September 14, 2001 and issue a de novo decision.3
On August 8, 2008 the Office asked appellant to provide additional information about her
claim. In a September 8, 2008 response, appellant reported that she began working in the
department of logistics for food services on September 23, 2001 in a dark, smelly, room with
mice and no desk, computer, telephone or office supplies. She was given nothing to do for nine
months and was not provided performance standards. In June 2002, she began another job
2

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004).

3

Docket No. 08-16 (issued May 12, 2008).

3

dealing with medical providers and noted that the employing establishment lost 40 percent of its
staff in 2003 causing an increased workload for everyone. Appellant began working six hours a
day in October 2003 but was not permitted to work overtime by occupational health. She was
never counseled about poor performance and no assistance was given to her. In a November 6,
2008 decision, the Office denied appellant’s claim, finding that she did not establish a
compensable factor of employment.
Appellant, through her attorney, timely requested a hearing that was held on
May 26, 2009. At the hearing, she reiterated that in the nine months she worked at logistics she
had nothing to do and did not receive a performance appraisal. Appellant applied for and
transferred to a new job beginning in June 2002. She stated that her workload increased in 2003
due to loss of staff and that her assigned contracts had a due date, which required overtime to get
the work done. Appellant was under medical care for her depression during the period and, in
September 2003, her counselor advised her to cut her workday to six hours and not work
overtime. Her attorney argued that she had established four compensable factors of employment:
the lack of work at food services; that she was not given a performance appraisal by logistics
there; that she had difficulty handling her normal job duties in early 2003; and that she had to
work a tremendous amount of overtime. Appellant resubmitted evidence regarding her overtime
hours.
In a August 14, 2009 decision, an Office hearing representative found no compensable
employment factors and affirmed the November 26, 2008 decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board noted
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under the Federal Employees’ Compensation Act.6 There are
situations where an injury or illness has some connection with the employment but nevertheless
does not come within coverage under the Act.7 When an employee experiences emotional stress
in carrying out his or her employment duties and the medical evidence establishes that the
disability resulted from an emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
4

Ronald K. Jablanski, 56 ECAB 616 (2005).

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

See Robert W. Johns, 51 ECAB 137 (1999).

4

the employee’s disability results from his or her emotional reaction to a special assignment or
other requirement imposed by the employing establishment or by the nature of the work.8 A
claimant must support his or her allegations with probative and reliable evidence. Personal
perceptions alone are insufficient to establish an employment-related emotional condition.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.10 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.11
ANALYSIS
Appellant alleged that she was overworked, stating how upset she became when told on
August 18, 2003 that overtime was expected. Her reaction upon receiving the memorandum
would be considered self-generated as she did not work overtime after that date and began
working six-hour days. Appellant provided extensive records including time sheets and overtime
schedules, showing that she worked 145.25 hours of overtime from July 28, 2002 through
November 11, 2003 and 175.25 overtime hours from January 12, 2003 through
September 6, 2003. The Board has held that overwork, when substantiated by sufficient factual
information to corroborate the claimant’s account of events, may be a compensable factor of
employment.12 While the employing establishment noted that the overtime was voluntary, as
shown by Captain Belk’s August 2002 and August 2003 e-mails, the evidence establishes that
the job was heavy and demanding, due in part to understaffing. Appellant’s overtime, even if
voluntary, is related to the performance of her regular or specially assigned duties and constitutes
a compensable employment factor.13 The argument on appeal that she had difficulty performing
her normal job duties in early 2003 is too general in nature to be compensable, as appellant did
not explain what aspects of her job at that time, other than overwork, caused stress.
Appellant alleged that, while working in food services logistics from September 14, 2001
to June 2002, she was given little work to do. The Board note that the assignment of work is an
administrative function of a supervisor and, absent error or abuse, frustration at not being
assigned what an employee may consider meaningful work is not a compensable factor of
employment but is frustration from not being permitted the particular work desired.14 Similarly,
8

Lillian Cutler, supra note 5.

9

Roger Williams, 52 ECAB 468 (2001).

10

Charles D. Edwards, 55 ECAB 258 (2004); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

Kim Nguyen, 53 ECAB 127 (2001).

12

Bobbie D. Daly, 53 ECAB 691 (2002).

13

Ezra D. Long, 46 ECAB 791 (1995).

14

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

5

the fact that she was not given performance standards is not compensable. Ms. Crown explained
that appellant was the first full-time employee at the particular job in the division and they were
crafting her duties. Appellant used the position description from her prior employment in public
works. She transferred to another employing establishment within the year. An employee’s
emotional reaction to an administrative or personnel matter is generally not covered by workers’
compensation.15 Where the evidence demonstrates that the employing establishment either erred
or acted abusively in the administration of personnel matters, coverage may be afforded.16 The
record, however, does not establish that management acted erroneously in these administrative
matters.17 The record supports that appellant was not given a performance appraisal prior to
transferring in June 2002 and Ms. Crown acknowledged that one should have been given.
Appellant successfully transferred to another agency within the department with a promotion,
and the new agency did not ask for an appraisal of her performance. The Board finds that the
facts in evidence do not rise to the level of error or abuse.18
Appellant submitted an EEOC global settlement agreement signed by her on
December 18, 2003; however, the parties agreed that neither party admitted to misconduct or
wrong doing. There are no findings or admissions to show that the employing establishment
erred. Appellant, therefore, did not establish harassment or discrimination on the part of the
employing establishment.19
Appellant established a compensable factor of employment regarding overwork, as
characterized by extensive overtime from July 28, 2002 through September 6, 2003. The Office
did not review the medical evidence. The case will, be remanded to the Office to analyze the
medical evidence.20 After such further development deemed necessary, the Office shall issue an
appropriate decision on the merits of this claim.

15

L.S., 58 ECAB 249 (2006).

16

J.C., 58 ECAB 594 (2007).

17

See Beverly R. Jones, 55 ECAB 411 (2004).

18

G.S., 61 ECAB ___ (Docket No. 09-764, issued December 18, 2009).

19

For harassment or discrimination to give rise to a compensable disability, there must be evidence introduced
which establishes that the acts alleged or implicated by the employee did, in fact, occur. Unsubstantiated allegations
of harassment or discrimination are not determinative of whether such harassment or discrimination occurred. A
claimant must establish a factual basis for his or her allegations that the harassment occurred with probative and
reliable evidence.19 With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other employing establishments, such as
the EEOC, which is charged with statutory authority to investigate and evaluate such matters in the workplace.
Rather, in evaluating claims for workers’ compensation under the Act, the term “harassment” is synonymous, as
generally defined, with a persistent disturbance, torment or persecution, i.e., mistreatment by co-employees or
workers. Mere perceptions and feelings of harassment will not support an award of compensation. James E. Norris,
52 ECAB 93 (2000).
20

Tina D. Francis, 56 ECAB 180 (2004).

6

CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that she sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings
consistent with this opinion of the Board.
Issued: October 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7