United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marshall, MN, Employer
__________________________________________

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

Docket No. 06-1768
Issued: January 3, 2007

Case Submitted on the Record

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

JURISDICTION
On July 27, 2006 appellant filed a timely appeal of an April 11, 2006 merit decision of
the Office of Workers’ Compensation Programs. 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 has established an injury in the performance of duty on
August 14, 1993.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated August 30, 2004, the
Board affirmed a February 12, 2004 Office decision finding that appellant’s request for
reconsideration was untimely and did not establish clear evidence of error in the denial of his
claim.1 The prior Board decision provided a history of the case which is incorporated in this
1

Docket No. 04-1178 (issued August 30, 2004).

decision. To summarize, appellant filed a CA-1 form on January 10, 1996 for an injury on
August 14, 1993. He stated that he caught his foot and fell off a loading dock, injuring his knee.
The employing establishment indicated that on January 4, 1996 appellant’s employment was
terminated on October 30, 1993 and he had never reported the alleged injury to the employing
establishment. On February 6, 1996 appellant submitted a copy of a letter dated September 5,
1993 describing a fall off the loading dock on August 14, 1993 and a fall on September 4, 1993.
He alleged that he also sent a copy to the employing establishment injury compensation office.
The employing establishment responded in a February 26, 1996 memorandum that the
postmaster had not been notified of an employment injury and appellant stated that he injured his
knee outside of employment. According to the employing establishment injury compensation
office, they did not receive notification of injury until the claim was filed.
With respect to medical evidence, appellant submitted a September 14, 1995 report from
Dr. Derryl Moon, a chiropractor, and a February 22, 1996 form report (CA-20) from Dr. Terry
Seeman, an orthopedic surgeon, who provided a history of appellant falling off a loading dock at
work. Dr. Seeman diagnosed moderate osteoarthritis medial joint line of the right knee and mild
varus deformity with degenerative meniscal tear. He checked a box “yes” that the condition was
employment related.
As noted above, the Board detailed the history of the case in its prior decision. On
January 19, 2006 the Office received a request for reconsideration and additional evidence. The
medical evidence included 2004 treatment notes from Dr. Robert Suga, an orthopedic surgeon.
By decision dated April 11, 2006, the Office reviewed the case on its merits. The Office
found that the evidence was insufficient to establish an injury in the performance of duty on
August 14, 1993.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury, and generally this can be established only by
medical evidence.4
It is well established that a claimant cannot establish fact of injury if there are
inconsistencies in the evidence that cast serious doubt as to whether the specific event or incident
2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

2

occurred at the time, place and in the manner alleged.5 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury and failure to obtain medical treatment may, if otherwise unexplained, cast
sufficient doubt on employee’s statements in determining whether a prima facie case has been
established.6
ANALYSIS
The Office did not accept that an incident occurred as alleged on August 14, 1993. In its
prior decision, the Board reviewed the evidence regarding the alleged incident. Although the
standard of review was clear evidence of error, the Board noted the limited probative value of
witness statements, such as from Mr. Boklep, that were given years after the alleged incident and
did not provide relevant specifics regarding the incident. A coworker, Valerie Downing, stated
in February 1997 that appellant informed her by telephone of an injury on August 14, 1993,
although she did not witness the alleged incident and did not provide additional relevant detail.
The evidence of record reveals actions that are inconsistent with the occurrence of the alleged
incident. Appellant did not, for example, seek medical treatment in a timely manner. The first
medical report with a history of an August 13, 1993 incident is a September 14, 1995
chiropractor’s report.7 Appellant apparently was not treated by a physician under the Act for the
alleged injury until February 1996, when he was seen by Dr. Seeman. With respect to
notification of the injury, appellant submitted a copy of a September 5, 1993 letter, but there is
no evidence that it was received by appellant’s supervisors or the employing establishment. A
supervisor reported only that appellant discussed an injury outside of employment. Appellant
did not pursue a claim for an injury on August 14, 1993 until he submitted a claim form in
December 1995 to the employing establishment.
Under these circumstances, the Board finds there are inconsistencies in the evidence that
cast serious doubt as to whether an incident occurred as alleged. The Board finds the evidence is
not sufficient to establish an incident in the manner alleged. It is also noted that, if appellant
were to establish the occurrence of an employment incident, he would still need to submit
probative medical evidence on causal relationship between a medical condition and the
employment incident. In view of the delay in seeking treatment, it is particularly important to
have a reasoned medical opinion on causal relationship. Appellant has not met his burden of
proof in this case.
CONCLUSION
The evidence of record is not sufficient to establish that appellant sustained an injury in
the performance of duty on August 14, 1993.
5

Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).

6

Edward W. Malaniak, 51 ECAB 279, 280 (2000).

7

The report is of no probative medical value since a chiropractor is a physician only to the extent that he
diagnoses a subluxation; see Mary A. Ceglia, 55 ECAB 626 (2004). The report is cited with respect to a factual
finding that appellant provided a history of an August 14, 1993 incident.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 11, 2006 is affirmed.
Issued: January 3, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Beach, CA, Employer
__________________________________________

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

Docket No. 17-0790
Issued: May 22, 2018

Case Submitted on the Record

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

JURISDICTION
On February 28, 2017 appellant filed a timely appeal from an October 25, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated August 24, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 25, 2010 appellant, then a 52-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging injuries to her left shoulder, neck, and lower back due to her
job requirements which included bending, twisting, and lifting while casing mail as well as
1

5 U.S.C. § 8101 et seq.

walking and carrying a mailbag on her left shoulder while delivering mail. She did not stop work
at that time.
In November 2010, OWCP initially accepted appellant’s claim for adhesive capsulitis of
her left shoulder, sprain of her left shoulder/upper arm (rotator cuff), and chondromalacia of her
left knee patella.2
In December 2009, appellant began to receive medical treatment from Dr. Edward
Mittleman, an attending Board-certified orthopedic surgeon. On January 14, 2010 Dr. Mittleman
indicated that she reported that she had developed left shoulder pain approximately eight months
prior and later developed neck, low back, and lower extremity symptoms. He diagnosed cervical
disc syndrome, lumbar disc protrusion with radiculopathy, and left shoulder tendinitis and
impingement, and indicated that appellant could perform modified work with restrictions including
no lifting more than 20 pounds.3
Appellant also received treatment from Dr. Charles Herring, a Board-certified orthopedic
surgeon, and Dr. Hosea Brown, III, a Board-certified internist. On September 10, 2010
Dr. Herring examined her and recommended that she undergo left shoulder surgery. Dr. Brown
authored a November 8, 2010 report containing the diagnoses of left shoulder tendinitis with
radiculopathy, full-thickness left rotator cuff tear, multilevel cervical disc herniations with
radiculopathy, and lumbar disc protrusion with radiculitis. He determined that appellant was
totally disabled from work.
In a November 23, 2010 report, Dr. Gary L. Baker, an attending Board-certified
anesthesiologist and pain medicine physician, noted that appellant complained of neck pain
radiating into her left upper extremity and low back pain radiating into her right lower extremity.
Dr. Baker diagnosed several conditions, including cervical radiculopathy, lumbar radiculopathy,
patellar chondromalacia, and the left shoulder conditions of adhesive capsulitis, internal
derangement, and rotator cuff sprain/strain.
OWCP referred appellant for a second opinion examination to Dr. Ghol B. Ha’Eri, a
Board-certified orthopedic surgeon. It asked him to provide an opinion regarding her ability to
work.
In a December 8, 2010 report, Dr. Ha’Eri indicated that appellant presently complained of
neck pain radiating into her left upper extremity, left shoulder pain, and lower back pain radiating
down to her left thigh. He diagnosed rotator cuff tear/tendinitis, glenohumeral joint
chondromalacia, and mild acromioclavicular joint degeneration of the left shoulder, disc
degeneration with mild protrusions at C4 through C7, and disc protrusion (posterior right
paracentral) at L4-5. Dr. Ha’Eri advised that appellant’s cervical condition was not related to
employment factors. He determined that she had partial disability due to her work-related left
shoulder and back conditions since December 17, 2009. Dr. Ha’Eri completed a work capacity
evaluation form (Form OWCP-5c) on December 8, 2010 in which he indicated that appellant could
2

Appellant periodically stopped work beginning in late-2010 and received compensation on the daily rolls for
intermittent periods of disability beginning November 27, 2010.
3
Dr. Mittleman continued to treat appellant on a periodic basis and he provided a similar account of her condition
and disability in reports dated May 14 and October 11, 2010.

2

perform modified-duty work on a full-time basis with restrictions, including no lifting, pushing,
or pulling more than 10 pounds, no walking for more than two hours per day, no standing for more
than two hours per day, and no engaging in squatting, kneeling, or climbing.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Ha’Eri, who found appellant capable of modified-duty work, and Dr. Brown, who found that
she was totally disabled from work. It referred her to Dr. Edward Green, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion regarding whether she had
disability due to an employment-related condition.
In a May 5, 2011 report, Dr. Green discussed appellant’s factual and medical history and
detailed his physical examination findings. He provided several diagnoses including cervical spine
degenerative disc disease, left shoulder impingement, left rotator cuff tear, and lumbar spine
degenerative disc disease. Dr. Green indicated that appellant’s cervical condition was due to
preexisting osteoarthritis and degenerative disc changes. He advised that the prior findings on
physical examination and diagnostic testing showed that she had been totally disabled between
early-November and early-December 2010, but that she only had partial disability after that time
period. Dr. Green completed a Form OWCP-5c on May 5, 2011 in which he indicated that
appellant could perform modified-duty work on a full-time basis with restrictions, including no
lifting, pushing, or pulling more than 10 pounds, no walking for more than two hours per day, no
standing for more than two hours per day, and no engaging in squatting, kneeling, or climbing.4
Appellant stopped work in mid-2011 and she filed a claim for compensation (Form CA-7)
alleging that she had disability for the period July 27 to September 16, 2011 due to her accepted
work injuries.
On December 29, 2011 Dr. Herring performed OWCP-approved left shoulder surgery
including arthroscopic rotator cuff repair and subacromial decompression.
By decision dated April 18, 2012, OWCP denied appellant’s claim for wage-loss
compensation for the period July 27 to September 16, 2011, finding that she failed to submit
medical evidence sufficient to establish employment-related disability for this period.
On September 14, 2012 appellant requested reconsideration of OWCP’s April 18, 2012
decision.5 She submitted a September 6, 2012 report from Dr. Mittleman, who asserted that her
present cervical condition was employment related and recommended that OWCP accept the
conditions of lumbar disc protrusion and cervical spine degenerative disease.

OWCP requested that Dr. Green provide a supplemental report clarifying whether he felt that appellant’s
continuing cervical and lumbar conditions were related to her work. On March 22, 2012 Dr. Green responded and
indicated that her cervical and lumbar conditions were preexisting and nonindustrial in nature. He posited that
appellant’s disability was not related to an employment-related condition.
4

5
OWCP had received an August 2, 2012 letter in which appellant’s union representative requested that the accepted
conditions be expanded to include several cervical conditions.

3

In a December 4, 2012 duty status report (Form CA-17), Dr. Herring indicated that
appellant could return to full-time work with restrictions including lifting/carrying no more than
seven pounds.
By decision dated December 13, 2012, OWCP denied modification of its April 18, 2012
decision denying appellant’s claim for wage loss for the period July 27 to September 16, 2011.
However, in another December 13, 2012 decision, it expanded the accepted conditions to include
displacement of lumbar intervertebral disc without myelopathy.
In February 2013, appellant returned to part-time work for the employing establishment
and, in May 2013, she began working in the full-time position of customer care agent.6 By decision
dated June 20, 2014, OWCP adjusted her wage-loss compensation to reflect her ability to earn
wages as a customer care agent.
On August 20, 2013 appellant requested reconsideration of OWCP’s December 13, 2012
decision which had denied wage-loss compensation and, by decision dated October 28, 2013,
OWCP denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
In a September 15, 2014 report, Dr. Basimah Khulusi, an attending Board-certified
physical medicine and rehabilitation physician, posited that appellant’s cervical condition was
related to factors of her federal employment.
In January 2015, appellant began working approximately 6 hours per day (instead of
approximately 10 hours per day) on each of her four workdays per week in accordance with the
recommendation of Dr. Khulusi.
OWCP referred appellant’s case to Dr. Leonard A. Simpson, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser. It asked him to indicate whether her cervical
condition was related to employment factors.
In a report dated February 25, 2015, Dr. Simpson noted that the medical evidence of record
showed that appellant had multilevel cervical degenerative disc disease with disc protrusion and
some degree of central and foraminal stenosis. He recommended that OWCP not expand the
accepted conditions to include a cervical condition at the current time. Dr. Simpson indicated that
there was conflict in the medical opinion evidence regarding whether appellant sustained an
employment-related cervical condition and he recommended that she be referred to an impartial
medical specialist.
Appellant continued to work approximately six hours per day on each of her four workdays
per week, and she filed claims for compensation for partial disability covering the period January 9
to April 3, 2015.

6

Appellant worked four days per week and each of the workdays were approximately 10 hours long.

4

In an April 9, 2015 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim for partial disability for the period January 9 to
April 3, 2015.
Appellant submitted an April 6, 2015 report in which Dr. Khulusi diagnosed various left
shoulder and low back conditions as well as multilevel cervical disc herniations with
radiculopathy. Dr. Khulusi recommended that she continue with her modified work without
specifying the number of hours she could work per week.
In a May 4, 2016 report, Dr. Khulusi expressed her opinion that appellant’s cervical
conditions were employment related and requested that OWCP expand the accepted conditions to
include cervical spine degenerative disease (aggravation), cervical spine chronic myofascial strain,
and cervical radiculopathy. She posited that appellant’s duties as a city letter carrier over the
course of 10 years, including carrying a heavy mail satchel, using her arms to sort/case mail, and
pushing mail hampers, caused the diagnosed cervical conditions. Dr. Khulusi noted that appellant
demonstrated cervical spasms and limited range of motion of her cervical spine, and posited that
she should not work more than six hours per day. She asserted that, because OWCP had not
accepted “the diagnosis of the neck condition,” it had continued to deny “the disability
compensation.”
By decision dated August 10, 2015, OWCP denied appellant’s claim for disability
compensation for the period January 9 to April 3, 2015. It found that she failed to submit medial
evidence, with objective findings, which established that she had increased disability for this
period due to a worsening of her accepted employment conditions.
In an appeal request form dated July 27, 2016, received on the same date, appellant
requested reconsideration of OWCP’s August 10, 2015 decision.
Appellant submitted an August 24, 2015 report from Dr. Brown who reported that she
complained of left shoulder, low back, and neck discomfort which she rated at the level of 7 out
of 10. Dr. Brown reported his findings upon physical examination, including cervical spasms, and
diagnosed various left shoulder, cervical spine, left knee, and low back conditions. He found that
appellant had returned to modified work on August 24, 2015 in accordance with restrictions
delineated in a Form CA-17 he completed on that date. In an August 24, 2015 Form CA-17,
Dr. Brown diagnosed left rotator cuff tear and indicated that she could return to work, but had to
sit and stand as needed and take a 15-minute break every two hours.7
In an October 5, 2015 report, Dr. Khulusi reported physical examination findings for
appellant’s left shoulder and low back and diagnosed various left shoulder, cervical spine, left
knee, and low back conditions. She indicated that appellant could return to modified work on
October 5, 2015 and noted that she would continue her “on the same restrictions on the job.” In
January 26 and April 26, 2016 reports, Dr. Khulusi provided similar assessments of appellant’s
medical condition. In the January 26, 2016 report, she indicated that appellant could return to

7
In an August 16, 2016 report, Dr. Brown provided a similar assessment of appellant’s medical condition, but he
did not provide an opinion on her ability to work.

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modified work on January 26, 2016 and noted that she would continue her “on the same restrictions
on the job.”
In an October 13, 2015 report, Dr. Herring provided physical examination findings for
appellant’s left shoulder and diagnosed several left shoulder and cervical spine conditions. With
respect to her work status, he indicated, “Please see the [Form] CA-17.” On January 12, 2016
Dr. Herring noted that appellant exhibited left shoulder weakness, cervical muscle tightness/
tenderness, and limited range of motion of the cervical spine. Regarding her work status, he noted,
“Modified duty per [Form] CA-17 of primary treating physician.”8
In a report dated July 21, 2016, Dr. Khulusi asserted that she had already provided the
medical arguments which showed that appellant’s cervical conditions were caused by her work at
the employing establishment. She noted that Dr. Simpson, an OWCP medical adviser, had
indicated on February 25, 2015 that there was a conflict in the medical opinion evidence regarding
whether she sustained an employment-related cervical condition and recommended that she be
referred to an impartial medical specialist. Dr. Khulusi noted that, because OWCP had not
followed Dr. Simpson’s recommendation, there was a conflict in the medical opinion evidence
regarding whether appellant sustained an employment-related cervical condition which not been
resolved. She recommended that appellant be evaluated by an impartial medical specialist.
Appellant also submitted notes of physical therapists describing physical therapy sessions
in 2015 and 2016.
By decision dated October 25, 2016, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument
she submitted in support of her reconsideration request was irrelevant or immaterial to her claim
for increased disability due to an accepted employment condition. In particular, OWCP indicated
that the question of whether appellant had an employment-related cervical condition was not
currently before it on reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.9
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.10 If OWCP determines
8

In an August 2, 2016 report, Dr. Herring noted that appellant had retired from the employing establishment. A
document from September 2016 indicates that appellant had applied for benefits from the Social Security
Administration.
9

5 U.S.C. § 8128(a).

10
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

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that at least one of these requirements is met, it reopens and reviews the case on its merits.11 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.12
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.13 For OWCP decisions issued on or after
August 29, 2011, the date of the application for reconsideration is the “received date” as recorded
in the Integrated Federal Employee’s’ Compensation System (iFECS).14 If the last day of the oneyear time period is a Saturday, Sunday, or a legal holiday, it will still consider a request to be
timely filed if it is received on the next business day.15
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record16 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.17
ANALYSIS
OWCP issued a decision on August 10, 2015, and it received appellant’s request for
reconsideration on July 27, 2016. Appellant’s request was timely filed because it was received
within one year of OWCP’s August 10, 2015 decision.18
The issue presented on appeal is whether appellant’s July 27, 2016 request for
reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to
reopen the case for further review of the merits of the claim.
The Board finds that appellant’s request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered by OWCP.
Appellant submitted various medical reports in support of her reconsideration request. The
Board notes that the underlying issue in this case is whether she met her burden of proof to establish
11

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

12

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

13

20 C.F.R. § 10.607(a).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987, there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP decision for which review is sought.
15

Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

16

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

17

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

18

See supra notes 13 through 15.

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partial disability for the period January 9 to April 3, 2015 due to her accepted employment
conditions, and this is a medical issue which must be addressed by relevant medical evidence.19 A
claimant may be entitled to a merit review by submitting relevant and pertinent new evidence, but
the Board finds that appellant did not submit any such evidence in this case.
Although appellant submitted several medical reports, dated between April 6, 2015 and
July 21, 2016, none of these reports address the relevant issue of this case, i.e., whether she has
disability for the period January 9 to April 3, 2015 due to her accepted employment conditions.
The Board has carefully reviewed these reports and notes that none of them contain an opinion
regarding her claimed partial disability for the period January 9 to April 3, 2015. These reports do
not require OWCP to reopen appellant’s case for merit review, because the Board has held that the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.20
In an August 24, 2015 report, Dr. Brown indicated that appellant could return to work on
that date, but had to sit and stand as needed and take a 15-minute break every two hours. In an
October 5, 2015 report, Dr. Khulusi indicated that she could return to modified work on October 5,
2015 and noted that he would continue her “on the same restrictions on the job.” In the January 26,
2016 report, he indicated that appellant could return to modified work on January 26, 2016 and
noted that he would continue her “on the same restrictions on the job.” In a January 12, 2016
report, Dr. Herring noted with respect to her work status, “Modified duty per [Form] CA-17 of
primary treating physician.” However, he did not identify any particular Form CA-17. As noted,
none of the reports submitted by appellant in support of her reconsideration request relate to the
claimed period of partial disability (January 9 to April 3, 2015), a period which was denied by
OWCP in its August 10, 2015 decision.21
In support of her reconsideration request, appellant also submitted reports in which
Dr. Khulusi argued that she had an employment-related cervical condition.22 However, these
reports do not require OWCP to reopen her case for merit review because they are irrelevant to the
main issue of on reconsideration, i.e., her claim for partial disability between January 9 and
April 3, 2015 due to an accepted employment condition. The Board notes that OWCP did not
19
See Bobbie F. Cowart, 55 ECAB 746 (2004). OWCP accepted appellant’s claim for adhesive capsulitis of her
left shoulder, sprain of her left shoulder/upper arm (rotator cuff), chondromalacia of her left knee patella, and
displacement of lumbar intervertebral disc without myelopathy. In 2013, appellant began working as a customer care
agent for the employing establishment which involved her working four days per week for approximately 10 hours
each workday. She only worked approximately six hours each workday for the period January 9 to April 3, 2015 and
she claimed that she had partial disability due to a worsening of her employment-related conditions.
20

See supra note 17.

21

Appellant also submitted reports of an attending physical therapist, but these reports are not relevant because the
main issue of this case is medical in nature. The Board has held that physical therapists are not physicians within the
meaning of FECA and their reports do not constitute probative medical evidence. See S.T., Docket No. 17-0913
(issued June 23, 2017) (a physical therapist is not a physician under FECA).
In a May 4, 2016 report, Dr. Khulusi expressed her opinion that appellant’s cervical conditions were employment
related and requested that OWCP expand the accepted conditions to include cervical spine degenerative disease
(aggravation), cervical spine chronic myofascial strain, and cervical radiculopathy. In a report dated July 21, 2016,
she asserted that there was a conflict in the medical opinion evidence regarding whether appellant sustained an
employment-related cervical condition and recommended that she be referred to an impartial medical specialist.
22

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develop the matter of whether appellant had an employment-related cervical condition and OWCP
specifically indicated in its last merit decision, dated August 10, 2015, that it was not considering
the matter at that time. As noted above, the Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.23
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2018
Washington, DC

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

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

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

23

See supra note 17.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hilliard, Fl, Employer
__________________________________________

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)

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

Docket No. 11-1736
Issued: July 9, 2012

Case Submitted on the Record

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

JURISDICTION
On July 20, 2011 appellant, filed a timely appeal from a June 20, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) adjusting his compensation based on a
wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective July 3,
2011 based on his capacity to earn wages in the constructed position of customer service
representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 27, 2008 appellant, then a 45-year-old air traffic control specialist, filed a
traumatic injury claim alleging post-traumatic stress disorder in the performance of duty. OWCP
accepted the claim for post-traumatic stress disorder. By letter dated December 16, 2008,
appellant was placed on the periodic rolls for temporary total disability.
On February 1, 2009 work capacity evaluation form for psychiatric/psychological
conditions OWCP-5a form Naomi T. Jacobs, Ph.D., a treating clinical psychologist, opined that
appellant was unable to return to his date-of-injury job, but was capable of working four hours a
day. On September 10, 2009 she reported that he continued to meet the criteria for
post-traumatic stress disorder, but was capable of working a low stress job.
On a March 10, 2010 OWCP-5a form, Dr. Jacobs indicated that appellant was capable of
working an eight-hour day in a low stress job. She stated that the job could not be associated
with the former employing establishment.
On March 18, 2010 OWCP referred appellant for vocational rehabilitation.
In correspondence dated May 15, 2010, OWCP informed appellant that a plan had been
developed by his rehabilitation counselor to return him to work as an order clerk or a similar
position. It noted the weekly wages as $380.00.
In a telephone conference held on July 7, 2010, the claims examiner informed appellant
that OWCP would provide 90 days of placement services for the period March 30 to
June 29, 2010. She advised him that if no job was found, that a reduction in his wage-loss
compensation would be based on his ability to earn wages as an order clerk or similar position
with weekly wages of $380.00.
On July 29, 2010 OWCP closed vocational rehabilitation services for appellant. The
vocational rehabilitation specialist identified the position of customer service representative as
within appellant’s work restrictions. He noted an entry level hourly rate of $11.10 for the
position of customer service representative. The duties of customer service representative
included opening accounts, correcting records and explaining and processing investments and/or
other financial services.
On January 12, 2011 OWCP referred appellant for a second opinion evaluation with
Dr. Anjali Pathak, a Board-certified psychiatrist. In a January 27, 2011 report, Dr. Pathak opined
that appellant had residuals of his accepted chronic post-traumatic stress disorder, chronic pain
and lower back pain due to a nonemployment-related bulging disc. With respect to functional
limitations from appellant’s accepted post-traumatic stress disorder, he noted that there was
significant improvement in appellant’s symptoms and that he was able to function “[a]s long as
he is not exposed to stimuli that remind him of his error.” Dr. Pathak stated that appellant was
unable to return to work at the employing establishment as this would trigger the post-traumatic
stress disorder. He found that appellant was capable of work provided he did not have to make
decisions about the lives of other people and was not in charge. Dr. Pathak concluded that
appellant was capable of returning to a low stress job initially working part time and leading to

2

full time. In an attached work capacity evaluation form, he indicated that appellant was capable
of working eight hours a day with restrictions. The restrictions included clear and predictable
job responsibilities, no management and no making decisions regarding people’s welfare.
On May 11, 2011 OWCP issued a notice proposing to reduce appellant’s wage-loss
benefits based on his ability to earn weekly wages of $449.60 in the position of customer service
representative.
In a letter dated June 6, 2011, appellant disagreed with the proposal to reduce his
compensation based on his ability to earn weekly wages of $449.60. He noted that
correspondence from OWCP informed him that his compensation would be reduced based on his
ability to earn weekly wages of $380.00 as an order clerk. Appellant related that the position of
order clerk had also been identified as suitable by his vocational rehabilitation counselor.
By decision dated June 20, 2011, OWCP finalized the reduction of appellant’s
compensation, effective July 3, 2011, finding that he was capable of performing the duties of
customer service representative, Department of Labor’s Dictionary of Occupational Titles (DOT)
No. 239.262-014. It noted that his weekly pay rate when injured was $2,624.83 and that the
current pay rate for job and step when injured was $2,808.79. OWCP found that appellant was
capable of earning $449.60 a week, that the adjusted wage-earning capacity a week was $419.79,
that the percentage of new wage-earning capacity was 75 percent, that the loss in wage-earning
capacity amount a week was $2,204.86, leaving appellant with a compensation rate of $1,653.65
or $1,738.75 a week when increased by applicable cost-of-living adjustments. This resulted in a
new compensation rate every four weeks of $6,955.00, less health benefits premium of $398.40
and optional life insurance of $118.50, for a net compensation every four weeks of $6,400.60
beginning on July 3, 2011.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of
wage-earning capacity.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regards to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of

2

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
3

20 C.F.R. §§ 10.402, 10.403.

3

suitable employment and other factors and circumstances which may affect his wage-earning
capacity in his disabled condition.4
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fit the employee’s capabilities with regards to his
physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick5 and codified by regulation at 20 C.F.R. § 10.4036
should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning
capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay
rate of the position selected by OWCP, by the current pay rate for the job held at the time of the
injury.7
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions.8 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.9
ANALYSIS
OWCP accepted that appellant sustained post-traumatic stress disorder due to work
factors occurring August 27, 2008. Appellant was placed on the periodic rolls for temporary
total disability by letter dated December 16, 2008. On September 10, 2009 Dr. Jacobs,
appellant’s treating psychologist, concluded that he was capable of working full time in a low
stress job.
Based on Dr. Jacobs’ opinion, OWCP referred appellant for vocational rehabilitation. It
identified the selected position of customer service representative and referred him on
4

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 584
(1996).
5

5 ECAB 376 (1953).

6

20 C.F.R. § 10.403.

7

Id. at § 10.403(d).

8

James Henderson, Jr., 51 ECAB 268 (2000).

9

Id.

4

January 12, 2011 for a second opinion evaluation with Dr. Pathak to determine his work
capacity. OWCP concluded that the position of customer service representative was medically
and vocationally appropriate based on Dr. Pathak’s January 27, 2011 opinion. It reduced
appellant’s wage-loss compensation effective July 3, 2011 based on his ability to perform the
selected customer service representative position.
The Board finds that the evidence establishes that appellant is capable of performing the
duties required of a customer service representative for eight hours a day. Dr. Pathak found that
appellant was capable of working in a low stress job provided that the position had clear and
predictable job responsibilities and did not involve any management responsibilities or decisions
regarding people’s welfare. Moreover, appellant was not to be exposed to any stimuli reminding
him of his error. The position of customer service representative identified by the rehabilitation
specialist comports with Dr. Pathak’s restrictions. OWCP considered the proper factors, such as
availability of suitable employment and appellant’s physical limitations, usual employment and
age and employment qualifications, in determining that the position of customer service
representative represented his wage-earning capacity.10 The weight of the evidence of record
establishes that appellant had the requisite physical ability, skill and experience to perform the
position of customer service representative and that such a position was reasonably available
within the general labor market of his commuting area.
OWCP properly determined appellant’s loss of wage-earning capacity in accordance with
the formula developed in Shadrick11 and codified at section 10.403 of OWCP’s regulations.12 It
found that his salary on August 27, 2008 the date of injury, was $2,624.83 a week; that the
current adjusted pay rate for his job on the date of injury was $2,808.79; and that he was
currently capable of earning $449.60 a week as customer service representative. OWCP then
determined that appellant had a 75 percent wage-earning capacity, which resulted in an adjusted
wage-earning capacity of $419.97 a week. It concluded that, based upon a 75 percent rate, his
new compensation rate was $1,653.65, increased by cost-of-living adjustment to $1,738.75 a
week and that his net compensation for each four-week period would be $6,400.60. The Board
finds that OWCP correctly applied the Shadrick formula and therefore properly found that the
position of customer service representative reflected appellant’s wage-earning capacity.
CONCLUSION
The Board finds that OWCP properly determined that the constructed position of
customer service representative represented appellant’s wage-earning capacity.

10

James M. Frasher, 53 ECAB 794 (2002).

11

Supra note 5.

12

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated a June 20, 2011 is affirmed.
Issued: July 9, 2012
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0938
Issued: November 27, 2017

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 March 16, 20172 appellant, through counsel, filed a timely appeal from a
September 21, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 21, 2016, the date of OWCP’s last decision, is
March 20, 2017. Since using March 27, 2017, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date
of the U.S. Postal Service postmark is March 16, 2017, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
schedule award benefits, effective January 14, 2015, pursuant to 5 U.S.C. § 8106(c)(2).
On appeal counsel contends that the medical evidence established that appellant was
totally disabled due to narcotic analgesics and anti-spasmodics which caused enough sedation
that she is incapable of gainful employment.
FACTUAL HISTORY
On June 24, 2012 appellant, then a 50-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a low back injury when lifting tubs of mail
to the shelf in the performance of duty. She stopped work on that date.
Appellant’s attending physician, Dr. Geoffrey Stewart, a Board-certified orthopedic
surgeon, examined appellant on July 19, 2012 and noted her history of a prior back fusion for
scoliosis. He reported that appellant was bent over lifting a mail tub which was heavier than it
appeared and experienced immediate onset of severe low back pain with a pop in her back.
Dr. Stewart reviewed x-rays and found that appellant had a fracture through the distal portion of
her internal fixation device with severe back pain and fusion mass disruption. He attributed this
fracture to appellant’s work-related injury. Dr. Stewart recommended a revision lumbosacral
interbody fusion.
On August 13, 2012 OWCP accepted appellant’s claim for lumbar sprain. In a letter
dated August 29, 2012, it placed her on the periodic rolls, effective August 25, 2012.
On August 30, 2012 Dr. Stewart provided further history of appellant’s back condition
noting that on January 15, 2008 he performed a surgical decompression and curve correction
with instrumented arthrodesis T5-S1. Appellant returned to work and on August 19, 2010
reported symptoms following work at the employing establishment. Dr. Stewart found a
hardware failure at L4-5 with broken rods and performed a revision of segmental instrumentation
and fusion from L3 through S1 on September 8, 2010. He noted that on June 24, 2012 appellant
lifted a tub of mail at work and immediately experienced back pain. Appellant’s x-rays
demonstrated a fracture through the distal portion of her right rod with recurrent deformity of the
spine drifting to the left and disruption of her fusion mass. Dr. Stewart found appellant totally
disabled, attributed appellant’s current condition to her employment injury of June 24, 2012, and
recommended further back surgery.
On January 10, 2013 OWCP expanded appellant’s claim to include lumbosacral
radiculitis. It approved her request for spine surgery on January 30, 2013. On February 4, 2013
Dr. Stewart performed surgical removal of spinal instrumentation from L3 through S1,
3

5 U.S.C. § 8101 et seq.

2

reinsertion of the spinal fixation device, exploration of the spinal fusion L3 through S1, revision
bilateral hemilaminectomy at L3, and bone grafting for fusion.
On April 3 and August 27, 2013 Dr. Stewart completed work capacity evaluations (Form
OWCP-5c) and provided work restrictions indicating that appellant could not work. He
indicated that she could sit, walk, and stand for less than one hour each day and provided a 10pound restriction on pushing, pulling, and lifting. Dr. Stewart also indicated that appellant could
not reach, reach above the shoulder, twist, bend, stoop, or operate a motor vehicle. He restricted
her squatting, kneeling, and climbing.
In a letter dated December 3, 2013, OWCP referred appellant for a second opinion
evaluation with Dr. Jonathan Black, a Board-certified orthopedic surgeon, to determine whether
appellant was capable of performing her date-of-injury position. Dr. Black completed a report
on January 7, 2014 and described appellant’s history of injury and spine surgeries. He found
tenderness to palpation along the spine, decreased range of motion in the lumbar spine, normal
motor strength in the lower extremities, and intact sensation. Dr. Black opined that appellant
was at profound risk for further hardware failure as she smoked two packs of cigarettes a day.
He determined that appellant’s work-related injury did not cause the pseudoarthrosis, but instead
aggravated a preexisting pseudoarthrosis. Dr. Black noted that appellant had subjective
complaints of pain in line with her clinical findings and noted that she had an expected amount
of ongoing discomfort. He completed a work capacity evaluation (Form OWCP-5c) on
January 9, 2019 and found that appellant could not return to her date-of-injury position.
Dr. Black indicated that appellant could work eight hours a day and provided a lifting restriction
of 10 pounds for three hours a day.
On January 16, 2014 Dr. Stewart opined that appellant was totally disabled due to
ongoing back pain with bilateral dysesthesias.
OWCP found a conflict of medical opinion between Dr. Stewart and Dr. Black regarding
appellant’s capacity to work. On April 15, 2014 it referred appellant for an impartial medical
examination with Dr. Diana Carr, a Board-certified orthopedic surgeon, to resolve this conflict.
In a note dated April 24, 2014, Dr. Stewart found that appellant’s x-rays demonstrated a
fracture of the left rod, but that her alignment was unchanged and well maintained. He opined
that appellant was totally disabled.
Dr. Carr completed a report on May 7, 2014 and reviewed the statement of accepted facts
(SOAF) and medical records. She found that appellant had no tenderness over the scar or
paravertebral muscles with no evidence of spasm. Dr. Carr found that appellant’s motor and
sensory examinations were normal. She noted that appellant had developed chronic pain
syndrome and suggested that appellant’s difficulty walking might be due to spinal claudication
secondary to scarring or narrowing after multiple attempts at back fusion. Dr. Carr opined that
appellant should not have a job requiring repetitive bending or twisting and should perform
sedentary work with variable positioning either sitting or standing. She completed a work
capacity evaluation (Form OWCP-5c) on May 12, 2014 and found that appellant could not
perform her date-of-injury position. Dr. Carr found that appellant could work eight hours a day
with restrictions on sitting, walking, and standing for a total of eight hours with varying

3

positions. She opined that appellant could not twist and could bend or stoop only rarely.
Dr. Carr restricted appellant’s squatting and kneeling to one to two hours a day with no weight.
She also indicated that appellant should not push, pull, or lift over 10 pounds and that she could
lift for only four hours a day.
OWCP referred appellant for vocational rehabilitation services on August 28, 2014.
Appellant informed the vocational rehabilitation counselor that she was approved for disability
retirement by the Office of Personnel Management (OPM).
Appellant had additional x-rays on September 2, 2014 due to increased back pain. These
studies revealed that appellant’s left spinal rod was broken in two places.
On September 24, 2014 the employing establishment offered appellant a modified
position as a mail processing clerk. The duties of the position were standing, sitting, and
walking for a total of eight hours in the various positions, no twisting or bending, pushing or
pulling up to 10 pounds for eight hours a day, lifting up to 10 pounds for four hours, and
squatting or kneeling for one to two hours a day.
Appellant contacted her vocational rehabilitation counselor on October 16, 2014 and
indicated that she did not intend to return to work and was taking her OPM disability retirement.
In a letter dated November 12, 2014, OWCP informed appellant that the September 24,
2014 offered position of modified mail processing clerk constituted suitable work based on
Dr. Carr’s restrictions. It determined that Dr. Carr’s report was entitled to special weight as it
was based on an accurate history of injury and was well reasoned. OWCP informed appellant
that the position was still available and afforded her 30 days to accept the position or offer her
reasons for refusal. It instructed appellant of the penalty provisions of 5 U.S.C. § 8106(c) and
noted that retirement was not a valid reason for refusing an offer of suitable employment.
On November 19, 2014 appellant elected Federal Employees’ Retirement System (FERS)
benefits rather than FECA benefits. She submitted a note dated January 22, 2015 from
Dr. Stewart, who opined that she was totally disabled.
In a November 20, 2014 letter, counsel noted that Dr. Stewart indicated that appellant
was totally disabled and that appellant had elected OPM benefits. On October 23, 2014
Dr. Stewart opined that appellant was totally disabled. He diagnosed chronic ongoing back pain
with lower extremity dysesthesia, multiple spine surgeries, and hardware failure to a broken left
rod. Dr. Stewart listed appellant’s medications as Ibuprofen, Soma for spasms, Dendracin lotion,
Norco, and Lyrica. On December 10, 2014 counsel noted that the employing establishment
separated appellant from service on September 13, 2014 and that appellant had filed for OPM
benefits. He requested clarification.
OWCP, by letter dated December 17, 2014, noted that appellant had refused to accept the
offered position. It again informed her that retirement was not a valid reason for refusing an
offer of suitable employment. OWCP instructed appellant that she was expected to accept the
offered position and return to work if medically capable. It noted that the offered position was
still available and afforded her a period of an additional 15 days to accept and report to the
position. OWCP asserted that if appellant did not accept and report to the position during the
4

allotted period, her entitlement to wage-loss compensation and schedule award benefits would be
terminated. Appellant neither accepted the offered position, nor reported for duty within the time
allotted.
By decision dated January 14, 2015, OWCP terminated appellant’s entitlement to wageloss compensation and schedule award benefits, effective January 14, 2015, as she refused an
offer of suitable work in accordance with 5 U.S.C. § 8106(c)(2). It noted that the offered
position was within appellant’s established work restrictions as determined by Dr. Carr, the
impartial medical examiner.
Appellant timely requested a review of the written record from OWCP’s Branch of
Hearings and Review. In a July 14, 2015 decision, an OWCP hearing representative affirmed the
January 14, 2015 termination decision. She found that OWCP properly determined that the
offered position was suitable based on Dr. Carr’s work restrictions. The hearing representative
found that Dr. Stewart’s reports did not overcome the special weight accorded Dr. Carr as the
impartial medical specialist and were not rationalized. She noted that the fact that appellant was
already retired was not a sufficient reason to refuse suitable work.
On July 23, 2015 Dr. Stewart noted that there were no changes in appellant’s symptoms
and that his medications provided adequate relief of pain without side effects. He continued to
prescribe Ibuprofen, Soma, Norco, and Lyrica. In a note dated January 21, 2016, Dr. Stewart
reduced appellant’s medications to Soma and Dendracin lotion. On April 21, 2016 Dr. Stewart
again included Ibuprofen and Norco within appellant’s prescriptions.
Counsel requested reconsideration on July 12, 2016. He submitted additional medical
evidence and contended that Dr. Stewart established that appellant was totally disabled. In a
note dated July 12, 2016, Dr. Stewart described appellant’s history of injury and found, “Since
the time of her injury [June 24, 2012] and revision surgery she has required narcotic analgesics,
anti-inflammatories, and antispasmodics on a regular basis. It is my opinion that she is
permanently and totally disabled by her condition…. Additionally it is my opinion that she
required narcotic analgesics and antispasmodics on an ongoing around-the-clock basis to control
her symptoms and that her use of these controlled substances causes enough sedation that she is
incapable of gainful employment on that basis.”
By decision dated September 21, 2016, OWCP denied modification of the July 14, 2015
decision. It found that the medical evidence of record did not contain sufficient reasoning to
establish that appellant was totally disabled due to required controlled substances.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 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

4

Mohamed Yunis, 42 ECAB 325, 334 (1991); G.R., Docket No. 16-0455 (issued December 13, 2016).

5

that it is no longer related to the employment.5 5 U.S.C. § 8106(c)(2) provides in pertinent part,
“A partially disabled employee who (2) refuses or neglects to work after suitable work is offered
... is not entitled to compensation.” It is OWCP’s burden to terminate compensation under
section 8106(c) for refusing to accept suitable work or neglecting to perform suitable work.6 To
justify such a termination, OWCP must show that the work offered was suitable7 and must
inform appellant of the consequences of refusal to accept such employment.8 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.9
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.10
According to OWCP’s procedure, a job offer must be in writing and contain a description of the
duties to be performed and the specific physical requirements of the position. Section 10.517(a)
of FECA’s implementing regulations provides that an employee who refuses or neglects to work
after suitable work has been offered or secured by the employee has the burden of showing that
such refusal or failure to work was reasonable or justified.11 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.12
After termination or modification of benefits clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant.13
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to 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 who shall make
an examination and resolve the conflict of medical evidence.14 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and

5

Id.

6

Henry P. Gilmore, 46 ECAB 709 (1995); D.S., Docket No. 16-1593 (issued December 21, 2016).

7

John E. Lemker, 45 ECAB 258 (1993); D.S., id.

8

G.R., supra note 4.

9

Joan F. Burke, 54 ECAB 406 (2003); G.R., supra note 4.

10

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

11

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

12

20 C.F.R. § 10.516.

13

K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller 47 ECAB 673, 679 (1996); see also
George Servetas, 43 ECAB 424 (1992).
14

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

6

who has no prior connection with the case.15 In situations where there are 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 on a proper factual background, must be given special weight.16
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
schedule award benefits, effective January 14, 2015, pursuant to 5 U.S.C. § 8106(c).
OWCP accepted appellant’s claim for lumbar sprain, lumbosacral radiculitis, and
authorized spine surgery including surgical removal of spinal instrumentation L3-S1, reinsertion
of the spinal fixation device, exploration of spinal fusion L3 through S1, revision bilateral
hemilaminectomy at, L3, and bone grafting for fusion. Dr. Stewart continued to support that
appellant was totally disabled for work following the February 4, 2013 surgery.
OWCP referred appellant for a second opinion evaluation with Dr. Black, who reported
on January 9, 2019 that appellant could work eight hours a day and provided a lifting restriction
of 10 pounds for three hours a day. Due to the disagreement between Drs. Stewart and Black
regarding appellant’s disability from work and work restrictions, the Board finds that OWCP
properly determined that there was a conflict of medical evidence requiring referral to an
impartial medical examiner. OWCP referred appellant to Dr. Carr to resolve this conflict. In her
May 7, 2014 report, Dr. Carr reviewed the SOAF, reviewed the medical record, and examined
appellant. She found that appellant could perform light-duty work and provided work
restrictions.
Dr. Carr found that appellant could work eight hours a day with restrictions on sitting,
walking, and standing for a total of eight hours with varying positions. She opined that appellant
could not twist and could bend or stoop only rarely. Dr. Carr restricted appellant’s squatting and
kneeling to one to two hours a day with no weight. She also indicated that appellant should not
push, pull, or lift over 10 pounds and that she could lift for only four hours a day. On
September 24, 2014 the employing establishment offered appellant a modified position as a mail
processing clerk. The physical duties of the position comported with the work restrictions
established by Dr. Carr. The Board finds that Dr. Carr’s report was sufficiently detailed and well
reasoned to resolve the conflict of medical opinion evidence and establish appellant’s work
restrictions. Dr. Carr’s report is entitled to the special weight accorded to an impartial medical
examiner.17 The weight of the medical evidence establishes that appellant was no longer totally
disabled from work and had the physical capacity to perform the duties listed in the
September 24, 2014 job offer. Thus, OWCP properly relied on Dr. Carr’s opinion in finding the
mail processing clerk position suitable.

15

R.C., 58 ECAB 238 (2006).

16

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

17

R.C., Docket No. 15-1889 (issued July 11, 2016).

7

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), 20 C.F.R.
§ 10.516, and Board precedent,18 OWCP advised appellant on November 12, 2014 that it found
the job offer of modified mail processing clerk to be suitable and gave her an opportunity to
provide reasons for refusing the position within 30 days. It advised her in a December 17, 2014
letter that her reason for refusing based on OPM’s acceptance of her claim for disability
retirement was insufficient19 and that she had 15 additional days to accept the offered position.
The Board finds that OWCP followed the established procedures prior to the termination of
compensation pursuant to section 8106(c)(2).
The Board finds that the position was medically and vocationally suitable and OWCP
complied with the procedural requirements of section 8106(c)(2). OWCP, therefore, met its
burden of proof to terminate appellant’s compensation benefits based on her refusal to accept
suitable work.
The Board has explained that, if a claimant requests reconsideration of a suitable work
termination, the issue remains whether appellant has established that she was unable to perform
the duties of the offered position, as of the date of the termination.20
Appellant requested reconsideration and submitted a note from Dr. Stewart dated July 12,
2016 in which he found that since June 24, 2012 appellant has had required narcotic analgesics,
anti-inflammatories, and antispasmodics on a regular basis and that her use of these controlled
substances caused enough sedation that she is incapable of gainful employment on that basis. A
medical report is of limited probative value on a given medical question if it is unsupported by
medical rationale.21 Dr. Stewart did not provide any medical reasoning supporting his opinion
that appellant was disabled due to her use of Ibuprofen, Lyrica, Soma, or Norco. He did not
specify which of appellant’s prescribed medications caused drowsiness and did not explain why
appellant could not perform the offered position due to these medications. Furthermore, as
Dr. Stewart was on one side of the conflict that Dr. Carr resolved, the additional reports from
Dr. Stewart, which lack probative value as previously noted, are insufficient to overcome the
special weight accorded Dr. Carr’s report as the impartial medical specialist or to create a new
conflict with it.22
Accordingly, the Board finds the evidence submitted insufficient evidence to establish
that appellant’s refusal to accept the suitable job offer was justified. It is appellant’s burden of
proof and she has not met her burden in this case.

18

See supra note 10.

19

The Board had long held that electing to retire is not a justifiable reason to refuse an offer of suitable work.
Robert P. Mitchell, 52 ECAB 116 (2000); R.C., supra note 17. See Federal (FECA) Procedure Manual, Part 2 -Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(c) (June 2013).
20

K.J., supra note 13; J.J., Docket No. 14-0952 (issued September 2, 2014).

21

T.F., 58 ECAB 128 (2006).

22

R.R., Docket No.16-0595 (issued August 5, 2016); R.C., supra note 17; Dorothy Sidwell, 41 ECAB 857,
874 (1990).

8

CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective January 14, 2015, pursuant to 5 U.S.C.
§ 8106(c)(2), and that appellant has not established that her refusal of the offered position was
justified.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2017
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
__________________________________________
W.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Asheville, NC, Employer
__________________________________________

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

Docket No. 15-93
Issued: May 26, 2015

Case Submitted on the Record

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

JURISDICTION
On October 16, 2014 appellant filed a timely appeal from an August 1, 2014 merit
decision and an August 25, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a traumatic right foot injury in the
performance of duty; and (2) whether OWCP properly denied reconsideration under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 6, 2014 appellant, then a 32-year-old supply clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 22, 2014 he sustained a crush injury to his right foot
when four bottles of frozen soda fell from the top shelf of a vending machine he was servicing
and landed on his right foot. Appellant’s supervisor controverted the claim, asserting that the
vending machine did not freeze the bottles. Also, appellant had been involved in an “incident
prior where he said product had fallen and video showed this was not the case.” The supervisor
noted that appellant did not report the injury until after his termination. Appellant was
“counseled many times on performance issues and was aware of management’s knowledge of
theft of product and probability of his removal.”
In a March 10, 2014 letter, OWCP advised appellant to submit factual evidence
corroborating the January 22, 2014 incident, and medical evidence diagnosing a right foot injury
caused by that incident. It afforded him 30 days to submit such evidence. Appellant did not
timely provide additional evidence.
By decision dated April 15, 2014, OWCP denied the claim finding that fact of injury had
not been established. It found that the factual record did not support that the January 22, 2014
incident occurred at the time, place, and in the manner alleged. OWCP also noted that appellant
failed to provide any medical evidence.
Appellant requested reconsideration on May 21, 2014, asserting that he was still under
medical treatment but had not received a diagnosis. He provided an April 11, 2014 patient intake
form and reports dated from April 28 to June 9, 2014 from a physician assistant. Appellant also
submitted a July 7, 2014 report from Dr. Mark R. Hedrick, an attending Board-certified
orthopedic surgeon, who related appellant’s account of a “large frozen bottle type object” falling
on appellant’s right foot on January 22, 2014. Dr. Hedrick noted appellant’s vague pain
complaints in the absence of any objective findings. He opined that appellant would recover
fully six to twelve months from the date of injury.
By decision dated August 1, 2014, OWCP denied modification of its prior decision,
finding that, although Dr. Hedrick had established the presence of a crush injury of the right foot,
his opinion did not overcome the factual inconsistencies in the claim or its controversion.
Appellant again requested reconsideration on April 19, 2014, asking that OWCP call him.
He did not submit additional evidence.
By decision dated August 25, 2014, OWCP denied to review the merits of his claim as
appellant’s April 19, 2014 letter, the only evidence submitted in support of the request, did not
contain new, relevant evidence or raise a substantive legal question.
LEGAL PRECEDENT -- ISSUE 1
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
2

5 U.S.C. §§ 8101-8193.

2

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
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
An employee has not met his or her burden of proof in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.6 Second, the employee must submit sufficient evidence, generally only in the form of
medical evidence, to establish that the employment incident caused a personal injury.7
ANALYSIS -- ISSUE 1
Appellant claimed that he sustained a crush injury of the right foot when frozen bottles of
soda fell from a vending machine. He did not submit factual corroboration of this incident, or
explain why he waited from January 22 to March 6, 2014 to file his claim. The employing
establishment controverted the claim, contending that the bottles could not have been frozen, that
appellant falsified a similar incident, and that he did not file the claim until after his termination
for misconduct. The Board finds that appellant’s statements are insufficient to establish fact of
injury due to the conflicting evidence regarding the time, place, and manner in which the alleged
incident occurred.8
Dr. Hedrick, an attending Board-certified orthopedic surgeon, diagnosed a crush injury of
the right foot related to a frozen bottle falling on appellant’s foot on January 22, 2014. However,
as appellant failed to establish the threshold issue of fact of injury, it is premature to address the
secondary issue of causal relationship by reviewing the medical evidence in this case.
On appeal, appellant contends that he was injured at work and that the employing
establishment intended to send him to a specialist. He asserts that for various reasons a
“situation happened,” he sought medical care on his own from a physician. As stated above, the
evidence submitted was insufficient to prove that the claimed January 22, 2014 incident occurred
as alleged. The Board notes that there is no evidence of record that the employing establishment
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

See Caroline Thomas, 51 ECAB 451, 455 (2000).

3

authorized any medical treatment related to this claim or that appellant received medical
treatment contemporaneous to January 22, 2014.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.10 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.11
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.12 He or she need only
submit relevant, pertinent evidence not previously considered by OWCP.13 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.14
ANALYSIS -- ISSUE 2
Appellant requested reconsideration by an April 19, 2014 letter, asking that OWCP
telephone him. He did not provide additional evidence or argument.
The Board finds that OWCP appropriately denied reconsideration as appellant failed to
submit any new, relevant evidence or argument. Appellant’s April 19, 2014 letter did not
address the critical issue of fact of injury. Therefore, it is not a basis for reopening the case.15

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

12

Helen E. Tschantz, 39 ECAB 1382 (1988).

13

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

14

Annette Louise, 54 ECAB 783 (2003).

15

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has failed to establish a traumatic right foot injury in the
performance of duty. The Board further finds that OWCP properly denied reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 25 and 1, 2014 are affirmed.
Issued: May 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Humble, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0166
Issued: March 8, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 12, 2020 appellant filed an appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of Appellate Boards docketed
the appeal as Docket No. 21-0166.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s authority
is limited to appeals, which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the most recent OWCP decision, dated May 8, 2020, was
November 4, 2020. As appellant did not file an appeal with the Board until November 12, 2020,
more than 180 days after the May 8, 2020 decision, the Board finds that the appeal docketed as
No. 21-0166 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant
has not offered a reason to explain her failure to timely file an appeal with supporting
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

Id. at § 501.3(e).

documentation sufficient to establish compelling circumstances. Because there is no final adverse
decision issued by OWCP within 180 days of the filing of this appeal over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0166 must
be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0166 is dismissed.
Issued: March 8, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 13-1485
Issued: January 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 10, 2013 appellant, through his attorney, filed a timely appeal from the April 8,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
his psychiatric injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this merit decision.2
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On April 9, 2003 appellant, a 47-year-old mail processing clerk, filed an occupational
disease claim alleging that the pain on the bottom of his feet was a result of repetitive activities at
1
2

5 U.S.C. § 8101 et seq.

Appellant filed a separate appeal from OWCP’s April 1, 2013 decision to reduce his compensation under
5 U.S.C. § 8113(b). The Board will review that decision under Docket No. 13-1396.

work, including standing, walking and lifting. OWCP accepted his claim for aggravation of
bilateral plantar fasciitis.3
In April 2006, appellant accepted a reassignment offer. He was able to work until
September 2008, when he received notice that work was no longer available for him as a result
of the National Reassessment Process (NRP). Appellant’s limited duty having been withdrawn,
he received compensation for wage loss on the periodic rolls.
In June 2009, Dr. Bernard L. Frankel, a Board-certified psychiatrist, evaluated appellant
and diagnosed a recurrent, moderately severe major depression. OWCP asked appellant for
clarification, including his reason for believing that his emotional condition was employment
related.
In a July 2009 report, Dr. Frankel provided appellant’s self-report findings, used to assess
and plan treatment. He described appellant’s presenting symptoms:
“[Appellant] endorsed symptoms of moderately severe Major Depressive
Disorder, with frequent thinking he’d be better off dead, but no suicidal ideation,
intent or plan. (It would hurt his wife, a breast cancer survivor and 15-year-old
son too much.) [Appellant’s] self-esteem was greatly impaired, together with
feeling useless and guilty for not being able to keep a job. He believes [that] he
will not be able to keep house and he does n[o]t seem himself as ever being able
to work again.”
OWCP asked Dr. Frankel for clarification regarding the history of onset, social and
family history and whether any specific work factors contributed to the diagnosis. It requested
detailed reasoning.
On November 23, 2009 Dr. Frankel explained that appellant endorsed symptoms of major
depressive disorder starting in 1986 with the death of his mother, followed by his youngest
brother’s suicide in 1991 and his father’s death in 2001. Appellant was more or less continually
depressed during these 15 years but was never treated for it until his primary care physician
prescribed medication in June 2008. His depressive symptoms worsened after he lost his job.
According to appellant:
“Things have been unstable since I was sent home from my job at the post office.
They terminated me because they said they can no longer accommodate my
disabilities. I’m on workers comp. I feel depressed and insecure. It’s like I’ve
lost everything. I feel useless. I don’t enjoy life anymore. I’m working with an
attorney but things are going to take time. In the meantime, my life is very
unhappy.”

3

Appellant has had other employment injuries: a left wrist/thumb de Quervain’s tenosynovitis as a result of
repetitive work activities in 1994 (OWCP File No. xxxxxx878); a cervical strain, right shoulder strain and right
trapezius strain as a result of repetitive activities in 1998; and an acute exacerbation of preexisting lumbar
degenerative disc disease as a result of prolonged standing during a week of training in 2006.

2

Dr. Frankel noted that appellant’s chronic back pain made him more depressed. He
added, however, that he had no time in his few sessions with appellant to provide a detailed
analysis with identification of specific work factors. Dr. Frankel could provide no further
information than his belief that appellant’s conflicts with coworkers and the eventual loss of his
job contributed significantly to the onset or exacerbation of his depression.
Appellant’s representative advised that some time ago “we requested that the claim be
upgraded to include claimants psychiatric problem” and that to date he had received no official
notice.
In an August 31, 2012 decision, OWCP denied appellant’s emotional condition claim. It
found that the evidence failed to establish the emotional injury as consequential to any
established orthopedic injuries.
During a December 11, 2012 hearing before an OWCP hearing representative, appellant
testified that he had no psychological problems prior to aggravating his bilateral plantar fasciitis
in 2003. Appellant confirmed that he was working and did not have any psychological
problems. He added that being sent home from work because they could no longer
accommodate him caused him to become depressed. Having his job taken away was the reason
appellant’s psychological problem became acute and active. NRP, he confirmed, was the factor
of employment that caused his psychological condition.
In a February 14, 2013 decision, the hearing representative affirmed the denial of
appellant’s emotional condition claim. She found that he failed to establish that his psychiatric
condition was consequential to his accepted employment injuries. The hearing representative
noted that appellant could file a new claim for an emotional condition causally related to
conflicts with coworkers or administrative actions taken at the employing establishment.
On March 28, 2013 appellant requested reconsideration. He submitted a March 18, 2013
report from Dr. Frankel, who stated that it was his opinion that appellant’s chronic, recurrent
major depressive disorder of severe intensity “was definitely caused by the loss of his job with
the U.S. Postal Service in 2009.”
In an dated April 8, 2013 decision, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that his allegation that the loss of his job
contributed to his psychiatric condition was a new factor for which he must file a new claim.
“You would then have to prove that the loss of your job was a work factor that occurred in the
performance of duty, rather than a reaction to an administrative action.” OWCP added that
Dr. Frankel’s reference to conflicts with coworkers was also a new intervening factor breaking
the chain of causation. “You would have to file a new claim and provided (sic) a detailed
statement establishing the facts of how the conflict occurred, what happened, what was said,
etc.”
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.4 When an employee experiences
4

5 U.S.C. § 8102(a).

3

emotional stress in carrying out his or her employment duties or has fear and anxiety regarding
his or her ability to carry out his or her duties and the medical evidence establishes that the
disability resulted from his or her 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
the employee’s disability resulted from his or her emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of his or her work. By
contrast, there are disabilities having some kind of causal connection with the employment that
are not covered under workers’ compensation because they are not found to have arisen out of
employment, such as when disability results from an employee’s fear of a reduction-in-force or
frustration from not being permitted to work in a particular environment or to hold a particular
position.5
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.6
ANALYSIS
Appellant attributed his emotional condition to losing his job under NRP; to being
terminated because the employing establishment could no longer accommodate his disabilities.
He advised Dr. Frankel, an attending psychiatrist, that things became unstable when he was sent
home from his job. Dr. Frankel, in turn, found that appellant felt uselessness and guilty for not
being able to keep a job. Although appellant had endorsed symptoms of major depressive
disorder starting in 1986, he did not receive treatment until 2008. His depressive symptoms
worsened after he lost his job.
Dr. Frankel made a reference to unspecified conflicts with coworkers. Neither he nor
appellant made clear that they were attributing the cause of the psychiatric condition to the loss
of employment. Appellant testified that he was able to work without psychological problems,
but losing his job caused him to become depressed. NRP was the factor of employment that
caused his psychological condition to become acute and active. Dr. Frankel unequivocally found
that appellant’s chronic, recurrent major depressive disorder of severe intensity “was definitely
caused by the loss of his job with the U.S. Postal Service in 2009.”
As noted earlier, workers’ compensation does not cover an emotional reaction to an
administrative or personnel action unless the evidence shows error or abuse on the part of the
employing establishment. Sending appellant home under NRP was an administrative or
personnel action. He is thus attributing his emotional condition to something that is generally
not covered by workers’ compensation. An exception can be made in cases of administrative
error or abuse, but there is no evidence that the exception applies in this case. The worsening of
appellant’s emotional condition after being sent home from work is, therefore, something that
lies outside the scope of FECA’s coverage. Accordingly, the Board finds that he has not met his

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991).

4

burden to establish that he sustained an emotional condition in the performance of duty. The
Board will affirm OWCP’s April 8, 2013 decision.7
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

E.g., T.E., Docket No. 08-1955 (issued March 5, 2009) (where the record failed to substantiate any impropriety
in the handing of the claimant’s termination, the Board found that the claimant had not established a compensable
factor of employment).

5