United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HARLEY VETERANS
ADMINISTRATION HOSPITAL, Tampa, FL,
Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1113
Issued: May 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated May 24, 2006 and January 8, 2007 that terminated his
compensation benefits and denied medical appliances. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to justify termination of
appellant’s compensation benefits effective June 28, 2005 for his accepted orthopedic conditions;
(2) whether appellant established that he had any continuing disability relating to his accepted
orthopedic conditions after June 28, 2005; (3) whether appellant met his burden of proof in
establishing that he was totally disabled from January 31 to February 25, 2005 causally related to
his accepted employment condition; and (4) whether the Office abused its discretion in denying
authorization for a contour pillow, mattress and prescribed medication.

FACTUAL HISTORY
On September 15, 1999 appellant, then a 49-year-old psychiatrist, sustained injury when
he slipped on wet stairs and injured his neck and back. He was a part-time temporary employee
whose term expired on September 19, 1999. The Office accepted the claim for cervical strain
and aggravation of lumbar vertebral fracture at L1, postconcussive syndrome, anxiety disorder
and psychosexual dysfunction. Appellant stopped work on September 15, 1999 and returned to
part-time work in the private sector in April 2002.1
Appellant came under the care of Dr. Luis G. Figueroa, a Board-certified neurologist,
who first treated him in 1999 and diagnosed post-traumatic cervical myofascial pain syndrome,
postconcussion syndrome, probable Barre-Lieu syndrome and post-traumatic headache. In
reports from March 2, 2000 to December 4, 2002, Dr. Figueroa noted persistent sexual
dysfunction and features consistent with frontal lobe syndrome. He noted that appellant’s
cognitive difficulties dramatically improved and, in June 2002, he returned to work six hours per
day at a private clinic. On October 5, 2002 appellant began working 10 hours per week. In
reports dated February 10, 2000 to September 10, 2001, Dr. Robert Rosen, a clinical
psychologist, diagnosed cognitive disorder and adjustment disorder with mixed anxiety and
depressed mood. Dr. Kenneth P. Botwin, a Board-certified physiatrist, treated appellant from
February 23, 2000 to June 7, 2003. He diagnosed status post work-related injury with persistent
but improving cervicothoracic lumbar pain, headaches and sexual dysfunction. Other reports
dated May 1, 2002 to June 7, 2003 noted appellant’s complaint of neck and back pain and
recommended acupuncture, physical therapy and a cervical contoured pillow. A June 24, 2002
lumbar spine magnetic resonance imaging (MRI) scan revealed mild post-traumatic anterior
wedge compression of L1, Schmorl’s node, degenerative disc disease at T12-L1 and minimal
desiccations of L4-5 and L5-S1 discs.
On April 8, 2003 the Office referred appellant to Dr. V.G. Raghavan, a Board-certified
orthopedic surgeon, for a second opinion. In a May 5, 2003 report, Dr. Raghavan discussed
appellant’s work history and indicated that physical examination was essentially normal. He
opined that the cervical strain and the aggravation of the L1 compression fracture were due to the
September 15, 1999 work injury and that these conditions had resolved. Dr. Raghavan noted that
appellant’s orthopedic condition had reached maximum medical improvement and he could work
full time with restrictions on lifting more than 20 pounds.
On April 8, 2003 the Office referred appellant to Dr. Bala I. Rao, a Board-certified
psychiatrist, for a second opinion. In a report dated July 1, 2003, Dr. Rao noted that appellant
was alert, cooperative, oriented to time, place and person, his speech was clear and coherent and
his insight and judgment were good. He diagnosed adjustment disorder with mixed emotional
features, postconcussion syndrome, history of head and back injury in 1999 and stresses related
to changes and adjustments. Dr. Rao opined that appellant’s postconcussion syndrome resulted
from the September 15, 1999 injury and indicated that from a psychiatric standpoint appellant
could return to work full time without restrictions.

1

Appellant did not receive wage-loss compensation after he returned to part-time work.

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The Office found that a conflict of medical opinion arose between Drs. Botwin and
Figueroa, for appellant, and Dr. Raghavan, for the Office, regarding whether appellant had
residuals of his work-related orthopedic injuries and whether he could return to work full time.
To resolve the conflict the Office referred appellant to Dr. Howard L. Schuele, a Boardcertified orthopedic surgeon, selected as the impartial medical specialist. In an August 28, 2003
report, Dr. Schuele reviewed the record and the history of appellant’s work-related injury and
medical treatment. He noted that the low back showed no signs of spasm or list, full range of
motion, equal power of extensor hallucis longus, negative straight leg raises and no sign of
atrophy. With regard to the cervical spine, there was full range of motion, the wrists, biceps,
triceps, jerks, pulses and grasps are equal right and left with no pathologic reflexes. Dr. Schuele
diagnosed paracervical ligamentous strain and sprain on the left, lumbosacral ligamentous
muscle strain and sprain, central low back and compression fracture at L1, healed. He noted that
subjective and objective evidence showed that appellant’s physical injuries had resolved as
appellant had full range of motion of the neck and back, deep tendon reflexes were intact, and
there were no pathologic reflexes and no tension signs. Dr. Schuele opined that, orthopedically,
appellant could resume his date-of-injury job as a psychiatrist without permanent work
restrictions. He noted that recent MRI scans for appellant’s neck and back were ordered and
would be available in one week.
Appellant submitted August 12 and November 11, 2003 reports from Dr. Botwin who
noted that appellant experienced worsening pain in the neck and low back and diagnosed
cervicothoracic myofascial pain, T1 compression fracture, secondary to occupational injury.
Reports from Dr. Figueroa dated August 12 to November 11, 2003, noted appellant complaints
of severe pain in the spinal axial region and depression.
On November 12, 2003 the Office proposed to terminate compensation benefits for
appellant’s accepted cervical strain and aggravation of lumbar vertebral fracture at L1.
By decision dated December 19, 2003, the Office terminated appellant’s compensation
benefits for the accepted cervical strain and aggravation of lumbar vertebral fracture at L1. It
found that the weight of the medical evidence established that appellant had no continuing
orthopedic disability resulting from his accepted employment injury. The Office noted that
appellant remained entitled to compensation benefits for the accepted psychiatric conditions of
postconcussive syndrome, anxiety disorder and psychosexual dysfunction.
Appellant requested an oral hearing and submitted a January 16, 2004 attending
physician’s report from Dr. Figueroa who diagnosed cognitive disorder, postconcussion disorder
and pain disorder. Dr. Figueroa checked a box “yes” that appellant’s condition was due to the
September 15, 1999 fall at work. He noted that appellant could work 10 hours a week. On
April 20, 2004 Dr. Figueroa noted that appellant could work 20 hours per week. Also submitted
were April 6 to August 3, 2004 reports from Dr. Botwin who noted that appellant’s neck
symptoms were improved after facet joint injections and diagnosed cervical myofascial pain,
thoracolumbar myofascial pain and L1 compression fracture.
On October 18, 2004 a hearing representative set aside the December 19, 2003 decision
and remanded the case for the Office to request that Dr. Schuele clarify whether appellant had

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residuals of the paracervical ligamentous muscle strain and review the findings of the MRI scan
he referenced in his August 28, 2003 report.
On March 1, 2005 appellant claimed total disability from January 31 to
February 25, 2005. He submitted reports from Dr. Botwin dated January 18 to March 2, 2005.
Dr. Botwin diagnosed cervicothoracic myofascial pain, lumbar degenerative joint disease,
cervical degenerative joint disease and L1 compression deformity and noted that a lumbar MRI
scan revealed an old compression fracture with Schmorl’s nodule formation and a possible left
neurofibroma in L1-2. On March 4, 2005 the Office advised appellant that he must submit
medical evidence establishing his disability for the claimed period. In a March 29, 2005 report,
Dr. Figueroa diagnosed closed head injury, frontal lobe syndrome, cervicothoracic and lumbar
myofascial pain syndrome and history of L1 compression fracture. Appellant submitted an
April 12, 2005 report from Dr. Donald A. Smith, a Board-certified neurosurgeon, who diagnosed
probable neurofibroma or schwannoma in the left L1-2 neural foramen.
On April 4, 2005 the Office requested a supplemental report from Dr. Schuele. In an
April 13, 2005 response, Dr. Schuele noted that the MRI scan examinations were ordered by
appellant’s treating physicians and advised that he had no need to review the reports as he based
his conclusions on the history, physical examination and data at the time of examination. In a
letter dated April 20, 2005, the Office requested that Dr. Schuele clarify the basis of his opinion.
In a report dated April 28, 2005, Dr. Schuele noted that he based his opinion that appellant’s
conditions of paracervical ligamentous strain and sprain on the left, lumbosacral ligamentous
muscle strain and sprain, central low back and compression fracture at L1 had resolved on the
objective findings upon physical examination. He specifically noted that appellant’s back
examination revealed no spasms, full range of motion, deep tendon reflexes were intact and
equal, power of the musculature was intact, there were no tension signs with straight leg raises,
no atrophy and no weakness as appellant was able to heel walk, toe walk and do deep knee
bends. Dr. Schuele further noted that the neck examination revealed full range of motion, deep
tendon reflexes were intact and no pathological reflexes were present.
In a letter dated May 12, 2005, appellant requested that the Office approve the
prescription medication Namenda prescribed by Dr. Figueroa for his cognitive problems and
reimburse him for an orthopedic pillow and mattress.
On May 19, 2005 the Office proposed to terminate compensation for appellant’s accepted
cervical strain and aggravation of lumbar vertebral fracture at L1 on the grounds that
Dr. Schuele’s reports established no orthopedic residuals of the employment injury.
Appellant disputed the proposed termination of benefits and requested expansion of his
claim to include cervicothoracic myofascial pain syndrome, lumbar myofascial pain syndrome
and thoracolumbar myofascial pain syndrome. In a June 15, 2005 letter, he indicated that he was
only able to work part time since August 20, 2003 because of his head trauma and brain injury.
Appellant submitted a July 30, 2002 report from Dr. Rosanna Garner, a Board-certified
neurologist and psychiatrist, who noted that appellant had an automobile accident on
March 29, 1999. Dr. Garner also noted the work injury on September 15, 1999 and diagnosed
traumatic brain injury with residual frontal lobe impairment. Appellant submitted a report from
Dr. Gary K. Arthur, a Board-certified psychiatrist, dated November 26, 2002. Dr. Arthur noted

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that, following the March 29, 1999 automobile accident, appellant experienced mild cognitive
difficulties and pain but was able to work 10 hours per week. He opined that appellant had
residuals from his September 15, 1999 work injury but could work 15 to 20 hours weekly. On
January 18, 2005 Dr. Figueroa diagnosed impairment of concentration, postconcussion disorder
and cognitive disorder and opined that appellant’s partial disability was permanent.
By decision dated June 28, 2005, the Office terminated appellant’s compensation benefits
effective June 28, 2005 for the accepted cervical strain and aggravation of lumbar vertebral
fracture at L1. The Office found that Dr. Schuele’s opinion established that appellant had no
continuing orthopedic disability due to these accepted conditions.
In a decision dated June 29, 2005, the Office denied appellant’s request for the
prescription medication Namenda, as it was not a treatment for his accepted condition. It also
denied reimbursement for a contour pillow and mattress, as Dr. Botwin did not address the basis
of appellant’s need for those items.
Appellant requested an oral hearing and submitted reports from Dr. Eric J. Carbonell, a
Board-certified neurologist, dated April 8, 2005 to April 12, 2006. Dr. Carbonell treated
appellant for post-traumatic stress disorder, anxiety disorder, depression and insomnia. In
reports dated June 8, 2005 to March 6, 2006, Dr. Figueroa treated appellant for postconcussive
syndrome and frontal lobe syndrome. He prescribed the medication Namenda for appellant’s
cognitive difficulties. Other reports from Dr. Botwin dated July 12 to December 19, 2005, noted
neck and low back pain.
In a decision dated July 18, 2005, the Office denied appellant’s claim for compensation
for the period January 31 to February 25, 2005.
On July 27, 2005 appellant requested an oral hearing which was held on
January 25, 2006. He testified that he returned to part-time employment in the private sector in
2002. From June 28, 2005 to May 13, 2006 Dr. Rosen treated appellant for depression and
insomnia. Dr. Diana L. Pollack, a Board-certified neurologist, treated appellant from March 30
to April 27, 2006 for cognitive dysfunction and progression of dementia.
In a decision dated May 24, 2006, the hearing representative affirmed the Office
decisions of June 28 and 29 and July 18, 2005.
On October 4, 2006 appellant requested reconsideration. He submitted reports from
Dr. Figueroa dated March 6 to December 6, 2006. On June 14, 2006 Dr. Figueroa diagnosed
postconcussion syndrome manifested primarily as a frontal lobe syndrome and opined that this
condition was related to appellant’s September 15, 1999 work injury. On September 5, 2006 he
diagnosed frontal lobe syndrome and postconcussion syndrome causing cognitive deficits.
Dr. Figueroa opined that the accident of September 15, 1999 caused an aggravation and
worsening of appellant’s cognitive difficulties and he was totally disabled from September 15,
1999 to June 15, 2002 and partially disabled after June 15, 2002.
In a January 8, 2007 decision, the Office denied modification of its May 24, 2006
decision. The Office found that the medical evidence did not support employment-related total
disability from January 31 to February 25, 2005, or the need for reimbursement for an orthopedic
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pillow and mattress or for the prescription drug Namenda. The Office noted that appellant
remained entitled to benefits for the accepted psychiatric conditions of postconcussive syndrome,
anxiety disorder and psychosexual dysfunction.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for orthopedic conditions of cervical strain and
aggravation of lumbar vertebral fracture at L1. The Office subsequently developed the medical
evidence and determined that a conflict in medical opinion existed between appellant’s attending
physicians, Drs. Botwin and Figueroa, who disagreed with Dr. Raghavan an Office referral
physician concerning whether appellant had continuing work-related orthopedic residuals.
Consequently, the Office referred appellant to Dr. Schuele to resolve the conflict.5
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.6
The Board finds that the opinion of Dr. Schuele is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related orthopedic conditions resolved. In an August 28, 2003 report,
Dr. Schuele reviewed appellant’s history, reported findings and noted that both subjective and
objective medical evidence established that his physical injuries resolved. He noted findings
upon physical examination of full range of motion of both the neck and back, deep tendon
reflexes were intact, no pathologic reflexes and no tension signs. Dr. Schuele diagnosed
paracervical ligamentous strain and sprain on the left, lumbosacral ligamentous muscle strain and
sprain, central low back and compression fracture at L1, healed. He opined that, from an
orthopedic standpoint, appellant could not resume his date-of-injury job as a psychiatrist without
2

Gewin C. Hawkins, 52 ECAB 242 (2001).

3

Mary A. Lowe, 52 ECAB 223 (2001).

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

See 5 U.S.C. § 8123(a).

6

Solomon Polen, 51 ECAB 341 (2000).

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permanent work restrictions. In supplemental reports dated April 13 and 28, 2005, Dr. Schuele
noted that he based his opinion that appellant’s conditions had resolved on the objective findings
made upon physical examination. He reiterated that appellant’s back examination revealed no
spasms, full range of motion, deep tendon reflexes were intact and equal, power of the
musculature was intact, there were no tension signs with straight leg raises, no atrophy and no
weakness as appellant was able to heel walk, toe walk and do deep knee bends. Dr. Schuele
further noted that the cervical examination revealed full range of motion, deep tendon reflexes
were intact and no pathological reflexes were present. He found no basis on which to attribute
any continuing orthopedic residuals to the September 15, 1999 work injury.
Appellant submitted reports from Dr. Botwin dated August 12, 2003 to March 2, 2005,
who noted that appellant had worsening symptoms and offered diagnoses. Reports from
Dr. Figueroa dated August 12, 2003 to March 29, 2005, noted that appellant’s condition was
essentially stable but he experienced pain and depression. On January 16, 2004 he diagnosed
cognitive disorder, postconcussion disorder and pain disorder and opined that appellant’s
condition was caused by the September 15, 1999 fall. However, neither Drs. Botwin nor
Figueroa specifically explained how the accepted orthopedic conditions caused or contributed to
continuing disability. Additionally, Drs. Botwin and Figueroa were on one side of a conflict that
was resolved by Dr. Schuele. Their reports do not otherwise provide new findings or medical
rationale sufficient to establish that any continuing orthopedic residuals was causally related to
the September 15, 1999 work injury.7
The Board finds that Dr. Schuele had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. He is a specialist in the appropriate field. At the time
benefits were terminated, Dr. Schuele opined that appellant had no residuals or disability
attributable to his accepted orthopedic conditions. His opinion is found to be probative evidence
and reliable. The Board finds that Dr. Schuele’s opinion represents the weight of the medical
evidence and is sufficient to support the Office’s termination of appellant’s benefits for the
accepted conditions of cervical strain and aggravation of lumbar vertebral fracture at L1 effective
June 28, 2005.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that he had continuing disability causally related to his
accepted employment injury.8 To establish a causal relationship between the condition, as well
as any disability claimed and the employment injury, the employee must submit rationalized
medical opinion evidence, based on a complete factual background, supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
7

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).
8

Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424, 430 (1992).

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one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.9
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing orthopedic
residuals causally related to his accepted employment injuries on or after June 28, 2005.
Appellant submitted reports from Drs. Carbonell, Rosen and Pollack who treated him for posttraumatic stress disorder, anxiety disorder, depression and insomnia and memory disorder.
However, these reports do not establish that appellant had any continuing orthopedic disability
due to the accepted conditions as the physicians did not specifically address disability due to the
orthopedic injuries. Rather, the physician’s addressed appellant’s psychiatric condition.
Reports from Dr. Botwin dated July 12, 2005 to November 7, 2006, noted treatment for
neck and low back pain. As noted, Drs. Figueroa and Botwin were on one side of the conflict
that was resolved by Dr. Schuele.10 Their treatment notes do not otherwise provide new medical
rationale sufficient to establish continuing disability due to the orthopedic conditions related to
the September 15, 1999 work injury.
Other reports from Dr. Figueroa dated June 8, 2005 to December 6, 2006, noted
appellant’s treatment for frontal lobe syndrome and cognitive dysfunction. In a September 5,
2006 statement, he diagnosed frontal lobe syndrome and postconcussion syndrome causing
cognitive deficits. Dr. Figueroa opined that the injury of September 15, 1999 caused partial
disability after June 15, 2002. However, the Office did not accept that appellant sustained frontal
lobe syndrome or cognitive deficits as a result of the September 15, 1999 work injury.11
Moreover, those reports do not pertain to the orthopedic conditions accepted in this case.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between any disability and his accepted
work-related orthopedic injury of September 15, 1999. Therefore the Board finds that the reports
from Drs. Carbonell, Rosen, Pollack, Figueroa and Botwin are insufficient to overcome that of
Dr. Schuele or to create a new medical conflict.

9

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

10

See Michael Hughes, supra note 7.

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For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000). Furthermore, the Office only terminated appellant’s benefits
for his orthopedic conditions and did not purport to terminate benefits for his accepted postconcussion syndrome.

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LEGAL PRECEDENT -- ISSUE 3
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.12 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.13 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.14
ANALYSIS -- ISSUE 3
After the Office terminated compensation on June 28, 2005 it found that appellant had
not otherwise established his claim for wage-loss compensation for partial disability due to his
orthopedic condition for the period January 31 to February 25, 2005. The Board finds that the
medical evidence submitted is insufficient to establish that the claimed period of partial disability
was caused or aggravated by the accepted employment injury.
Appellant submitted reports from Dr. Botwin dated January 18 to March 2, 2005. He
noted appellant’s symptoms of neck and back pain and diagnosed cervicothoracic myofascial
pain, lumbar degenerative joint disease, cervical degenerative joint disease and L1 compression
deformity. Although these reports indicated that appellant was disabled from work, Dr. Botwin
failed to provide an opinion on causal relationship between the claimed period of disability and
the accepted employment injury of September 15, 1999. This is important since the record also
supports that appellant has conditions such as frontal lobe syndrome and cognitive deficits that
are not accepted as employment related.
The remainder of the medical evidence, including a lumbar MRI scan and a March 29,
2005 report from Dr. Figueroa similarly did not address the relationship between the claimed
disability and the accepted employment injury of September 15, 1999. Consequently, the
medical evidence did not establish that the claimed period of disability was due to appellant’s
employment injury of September 15, 1999.
LEGAL PRECEDENT -- ISSUE 4
Section 8103 of the Federal Employees’ Compensation Act15 provides that the United
States shall furnish to an employee, who is injured while in the performance of duty, the
services, appliances and supplies prescribed or recommended by a qualified physician, which the

12

See Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Id.

14

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

15

5 U.S.C. §§ 8101-8193.

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Office considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.16
In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The Office has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible, in the
shortest amount of time. The Office has broad administrative discretion in choosing means to
achieve this goal. The only limitation on the Office’s authority is that of reasonableness.17 In
order to be entitled to reimbursement for medical expenses, a claimant must establish that the
expenditures were incurred for treatment of the effects of an employment-related injury by
submitting rationalized medical evidence that supports such a connection and demonstrates that
the treatment is necessary and reasonable.18 While the Office is obligated to pay for treatment of
employment-related conditions, the employee has the burden of establishing that the expenditure
is incurred for treatment of the effects of an employment-related injury or condition.19 The fact
that the Office authorized and paid for some medical treatment does not establish that the
condition for which appellant received treatment was employment related.20
ANALYSIS -- ISSUE 4
The Board finds that the medical evidence is insufficient to establish the necessity of the
contour pillow, mattress or prescription medication Namenda. In support of his request,
appellant submitted a report from Dr. Botwin dated February 25, 2003. Dr. Botwin diagnosed
status post occupational injury, thoracolumbar myofascial pain, cervicothoracic myofascial pain
and L1 compression fracture. He recommended a cervical contoured pillow to help with neck
pain and symptoms. However, Dr. Botwin provided no medical rationale to support his
conclusion that use of a contour pillow or mattress was medically necessary and reasonable for
appellant’s treatment. He did not address why it would alleviate appellant’s neck and back
condition. Because appellant did not submit medical evidence explaining why the pillow and
mattress were necessary for treatment of his accepted conditions, appellant is not entitled to
reimbursement for the purchase of the contour pillow and mattress.
Appellant requested that the medication Namenda be authorized for treatment of his
accepted psychiatric condition. The Board finds that the record does not contain a rationalized
medical opinion which explains the necessity for use of this medication in treating appellant’s
accepted postconcussive syndrome, anxiety disorder or psychosexual dysfunction.
In
correspondence dated June 14, 2005, appellant indicated that Dr. Figueroa prescribed Namenda
for his “cognitive impairment”; however, the Office has not accepted that appellant developed a

16

5 U.S.C. § 8103(a).

17

Dr. Mira R. Adams, 48 ECAB 504 (1997).

18

See Debra S. King, 44 ECAB 203 (1992).

19

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

20

Dales E. Jones, 48 ECAB 648 (1997); James F. Aue, 25 ECAB 151 (1974).

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cognitive impairment as a result of his September 15, 1999 work injury.21 In a June 8, 2005
report, Dr. Figueroa noted that there was some medical literature which suggest that Namenda
“may” be of use in the context of traumatic brain injuries and believed it would be medically
appropriate to prescribe. The Board notes that Dr. Figueroa’s report at best, provides only
speculative support for the medical necessity of the medication. He qualified his opinion by
noting that the literature suggests that Namenda “may” be of use for traumatic brain injuries.
Dr. Figueroa provided no medical reasoning to support his opinion that this medication was
medically necessary to treat appellant’s accepted conditions. Therefore, this report is insufficient
to establish that Namenda was used for treatment of the effects of employment-related
conditions.
Generally, an abuse of discretion is shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts. It cannot be found that the Office abused its discretion in
denying medical benefits for the contour pillow, mattress and the prescription medication
Namenda.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
June 28, 2005 for appellant’s accepted orthopedic condition and that appellant failed to establish
that he had any continuing disability due to his accepted orthopedic condition after
June 28, 2005. It further finds that the evidence does not establish that he was totally disabled
from January 31 to February 25, 2005 due to his accepted employment conditions and that the
Office did not abuse its discretion in refusing to authorize payment for the contour pillow,
mattress and prescription medication, Namenda.

21

See Alice J. Tysinger, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 8, 2007 and May 24, 2006 are affirmed.
Issued: May 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 13-1872
Issued: February 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 9, 2013 appellant filed a timely appeal from a February 12, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over merits of this case.
ISSUE
The issue is whether appellant established that he sustained a traumatic injury in the
performance of duty on September 6, 2012, as alleged.

1

In his application for review, appellant also requested an oral argument before the Board. In an August 19, 2013
letter, the Board requested that appellant confirm his request for oral argument and submit the issues to be argued.
As appellant did not respond to the Board’s August 19, 2013 letter, the Board has considered this appeal on the
written record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2012 appellant, then a 48-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right shoulder on September 6, 2012
during the performance of his federal duties. He stopped work on September 6, 2012 and has not
returned. The record reflects that appellant had been working a limited-duty job since
March 15, 2008.
With his claim, appellant submitted modified-duty descriptions dated October 1, 2008
and June 15, 2010; a proposed change in work hours dated September 6, 2012; CA-7 claims for
compensation dated November 20 and 30, 2012; and statements dated November 16 and 21,
2012 from the employing establishment challenging the claim.
In an October 3, 2012 report, Dr. Reed W. Kilgore, a Board-certified orthopedic surgeon,
advised that appellant was seen for follow up of his left shoulder. He noted examination findings
of the left shoulder and opined that appellant could lift five pounds and drive, but he could not do
any lifting away from his shoulder. Dr. Kilgore stated that appellant’s restrictions were
permanent and had not changed. He noted that appellant had rotator cuff surgery on the right
shoulder and was having similar symptoms on that side, which limited his ability to compensate
for the lacking function in the left shoulder. In an October 3, 2012 Form CA-17 duty status
report, Dr. Kilgore noted left shoulder pain and provided restrictions.
In a November 1, 2012 letter, Dr. Harold B. Betton, a Board-certified family practitioner,
stated that appellant has been incapacitated since September 7, 2012 due to his right shoulder and
major depression. He recommended that appellant not return to work but continue treatment for
those problems. Dr. Betton indicated that the right shoulder requires treatment, physical therapy
and may require surgical intervention.
In an October 15, 2012 emergency room report, Dr. Khalid Rayaz, the emergency room
physician, noted that appellant provided the following history regarding his right shoulder: “I
hurt my rotator cuff 10 years ago, 1 month ago I lifted something and now it is worse again.” An
assessment of right shoulder pain possibility tendinitis was provided.
In a November 21, 2012 report, Dr. Carlo Adams, a Board-certified physiatrist, stated
that appellant presented for evaluation of right shoulder pain which had been present for five
weeks. Appellant reported a one-year history of progressive right shoulder pain and noted work
injury in September 2012 but did not give details. He denied specific trauma and stated his
belief that his work at the employing establishment lifting boxes up to 70 pounds has contributed
to his right shoulder condition. Dr. Adams diagnosed right shoulder impingement, noting that
there was no evidence of rotator cuff tear on imaging studies, but evidence diffuse degenerative
disc disease on cervical x-rays. Appellant was referred for a course of occupational therapy.
A December 6, 2012 occupational therapy evaluation from Rhonda Hooper, an
occupational therapist, was also provided.
On December 26, 2012 OWCP requested additional factual and medical evidence from
appellant. It noted that appellant did not indicate what incident or employment factor he was

2

claiming caused his injury and the medical evidence did not substantiate that the diagnosis
provided, shoulder impingement syndrome, was caused or aggravated by the work injury.
OWCP afforded appellant 30 days to submit additional evidence.
In a December 29, 2012 statement, appellant stated that his right shoulder had been
giving him problems for over a year. He stated that the employing establishment repeatedly
worked him over his restrictions. Appellant stated that every morning he went to the general
mail facility to unload trucks that brought in the express mail. He and a coworker would then
pull mail off the truck to a room about 50 yards away and unload the mail onto tables. Appellant
would then take the sorted mail to the four different post offices in Little Rock. He stated that he
would daily load and unload his truck and sometimes the parcels would weigh more than his
five-pound weight limit. Appellant indicated that he did all this work with his right arm and,
over a repeated period of time, he hurt his right shoulder. He further alleged that his modified
assignment duties never took place. Appellant stated that he worked outside his job restrictions
for as long as he could until it got to the point he could not take it anymore. He retired on
December 31, 2012. A copy of the completed questionnaire, signed by appellant on
December 29, 2012, was also submitted.
Appellant submitted modified-duty descriptions dated October 3, 2007 and January 7,
2013; a September 6, 2012 notification of absence, a December 12, 2012 request for medical
authorization; physical therapy notes dated October 26, December 5 and 10, 2012; an
October 15, 2012 x-ray report of the right shoulder; and a January 27, 1998 operative report for
rotator cuff repair of right shoulder and treatment notes from the VA medical center dated
October 15, November 21 and December 5, 2012 signed by a physician, which provided an
assessment of either shoulder pain or right shoulder impingement syndrome.
In a December 22, 2011 report, Dr. Kilgore discussed findings on diagnostic testing and
presented treatment options for appellant’s right shoulder.
In a January 16, 2013 report, Dr. Adams stated that appellant was being followed for
functional needs related to bilateral shoulder impingement syndrome following rotator cuff
repair and has been undergoing comprehensive outpatient physical and occupational therapy
programs. He stated that appellant had been under his care since November 21, 2012.
Dr. Adams indicated that he agreed with Dr. Kilgore’s work restrictions of no five-pound weight
lifting limit along with no frequent or repeated lifting away from body. Per history, appellant
reported injuring his right shoulder on September 6, 2012 while repeatedly lifting 30- to 50pound boxes at work, with loss of functional range of motion, shoulder weakness and
progressive pain.
By decision dated February 12, 2013, OWCP denied appellant’s claim. It accepted that
the employment factors occurred as alleged, that a medical condition had been diagnosed and
that appellant was within the performance of duty. However, OWCP found that the medical
evidence was not sufficient to establish that the diagnosed right shoulder impingement syndrome
was causally related to the accepted work event(s).

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
ANALYSIS
OWCP accepted that appellant repetitively lifted boxes predominately with his right
shoulder as alleged on September 6, 2012. The issue is whether he has established a right
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone, 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

shoulder condition as a result of the September 6, 2012 employment incident or factors of his
employment. The Board finds that appellant did not meet his burden of proof to establish a right
shoulder condition causally related to the September 6, 2012 employment incident or factors of
his employment.
In a November 1, 2012 letter, Dr. Betton stated that appellant has been incapacitated
since September 7, 2012 with his right shoulder and major depression and recommended that
appellant not return to work because of those problems. He, however, did not provide a
diagnosis for appellant’s right shoulder condition. Thus, Dr. Betton’s opinion is of little
probative value in establishing appellant’s claim.
In an October 15, 2012 emergency room report, Dr. Rayaz noted the history that
appellant provided regarding his right shoulder and provided an assessment of right shoulder
pain and possible tendinitis. However, the Board has held that pain is generally a description of
a symptom and not considered a firm medical diagnosis.10 Dr. Rayaz’s description of right
shoulder pain is not sufficient to establish a firm medical diagnosis related to the accepted
incident at work. Thus, his report is insufficient to establish appellant’s claim.
Appellant submitted several reports from Dr. Kilgore. In his December 22, 2011 report,
Dr. Kilgore discussed treatment options for appellant’s right shoulder. However a diagnosis was
not provided and there was no medical explanation as to how the work incident of September 6,
2012 caused, contributed to or aggravated appellant’s right shoulder. In his October 3, 2012
report and duty status report of the same date, Dr. Kilgore discussed appellant’s left shoulder
restrictions, which are not relevant to the present claim. He noted in his report that appellant had
rotator cuff surgery on the right shoulder and was having similar symptoms on that side, which
limited his ability to compensate for the lacking function in the left shoulder. However,
Dr. Kilgore did not provide any diagnoses or assessment of appellant’s right shoulder condition
or otherwise address how the September 6, 2012 work incident caused, contributed to or
otherwise aggravated appellant’s right shoulder. Thus, his reports are of little probative value in
establishing appellant’s claim.
Dr. Adams, in his report of November 21, 2012, provides a history of appellant’s right
shoulder pain and notes appellant’s belief that his employment duties of lifting boxes up to 70
pounds has contributed to his right shoulder condition. He also notes there was a work incident
in September 2012, but had no details regarding the incident. Dr. Adams provides no discussion
as to how the incident of September 6, 2012 or appellant’s work duties caused, contributed to or
aggravated the diagnosed right shoulder impingement syndrome. In his January 16, 2013 report,
he diagnosed bilateral shoulder impingement syndrome following rotator cuff repair surgery, but
does not explain how the work incident of September 6, 2012 caused, contributed to or
aggravated the diagnosed condition. While Dr. Adams indicates that appellant injured his right
shoulder on September 6, 2012 while repeatedly lifting 30- to 50-pound boxes at work, and had
resulting loss of functional range of motion, shoulder weakness and progressive pain, he does not
attribute the diagnosis of bilateral shoulder impingement syndrome to the September 2012

10

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

5

incident, but rather suggests that it occurred following and as a result of the 2008 rotator cuff
repair surgery.
Appellant submitted occupational and physical therapy notes. However physical
therapists and occupational therapists are not physicians as defined under FECA. Therefore,
these reports do not qualify as probative medical evidence supportive of a claim for federal
workers’ compensation.11 Absent approval by a physician, the therapy notes are not probative
medical evidence.
The remaining medical evidence, including treatment notes from the VA medical center,
either diagnose pain, which is generally a description of a symptom and not considered a firm
medical diagnosis,12 or contain a diagnosis of right shoulder impingement syndrome without a
physician’s opinion supported by a medical explanation as to how the work incident of
September 6, 2012 caused, contributed to or aggravated the diagnosed condition.
The Board finds that appellant did not submit sufficient medical evidence which provided
a firm diagnosis or a rationalized explanation as to how the accepted incident caused or
aggravated a right shoulder condition. Appellant therefore failed to establish that he has a right
shoulder condition resulting from the September 6, 2012 employment incident.
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.

11

See 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000).

12

See B.P., supra note 10.

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right
shoulder condition on September 6, 2012 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
__________________________________________

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

Docket No. 14-646
Issued: July 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 29, 2014 appellant filed a timely appeal from a September 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. The record also contains a January 9, 2014 OWCP
decision denying merit review of the claim.2
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss
compensation under 5 U.S.C. § 8106(c) for refusal of suitable work; and (2) whether it properly
denied his application for reconsideration without merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument before the Board. On February 28, 2014 the Clerk of the Board requested
that appellant confirm whether he still sought an oral argument within 30 days. Appellant did not respond. The
Board has proceeded on the case record.

FACTUAL HISTORY
On July 5, 2003 appellant, then a 31-year-old letter carrier, sustained injuries in a motor
vehicle accident while in the performance of duty. OWCP accepted the claim on August 1, 2003
for cervical and lumbar strains. On April 20, 2009 it expanded the claim to include laceration to
the forehead and recurrent headaches. Appellant returned to a light-duty position and worked
until November 1, 2010, when his position was withdrawn pursuant to the National
Reassessment Process (NRP). As of November 1, 2010, he received compensation for wage
loss.
In a report dated April 18, 2012, Dr. Richard Meyer, an attending orthopedic surgeon,
provided results on examination. He noted some tenderness and spasm in the cervical and
lumbar areas. Dr. Meyer found that appellant was capable of working light duty with a 15-pound
lifting restriction, no casing and no use of shoulder bag. In a report dated July 19, 2012, he
provided results on examination and reiterated the work restrictions. By report dated
February 20, 2013, Dr. Meyer again provided results on examination and indicated that the work
restrictions remained: 15 pounds lifting, no casing and no shoulder bag carrying.
On March 18, 2013 the employing establishment offered appellant a modified letter
carrier position. The limited-duty position was full time and the required lifting was less than 15
pounds, with no casing and no carrying with shoulder bag.
By letter dated May 10, 2013, OWCP advised appellant that it found the offered position
to be a suitable job. Appellant was advised to accept the position or provide reasons for refusing
within 30 days. OWCP notified him of the provisions of 5 U.S.C. § 8106(c)(2).
In a letter dated April 12, 2013, the employing establishment advised that appellant had
stated he was not interested in returning to work. Appellant refused to accept a certified letter
with the job offer, but the job offer had also been delivered by regular first class mail to his
address of record.
The record contains a July 30, 2013 memorandum of telephone call (Form CA-110) with
appellant, who was concerned as to the pretermination letter. Appellant refused to accept the job
offer when it was mailed to him and did not understand the process. He was advised that he
must review the job offer and accept or reject it. OWCP issued a letter dated July 17, 2013
advising appellant that he had an additional 15 days to accept the position or his compensation
would be terminated pursuant to 5 U.S.C. § 8106(c)(2).3 Appellant did not respond.
By decision dated August 19, 2013, OWCP terminated appellant’s wage-loss
compensation effective August 24, 2013. It found that he had refused an offer of suitable work
pursuant to 5 U.S.C. § 8106(c)(2).
Appellant requested reconsideration on September 4, 2013. He stated that he had been
injured since 2003 and did not feel he could perform the offered position. Appellant submitted
an August 19, 2013 report from Dr. Meyer providing results on examination and repeating the
3

Although dated July 17, 2013, the letter apparently was mailed July 30, 2013.

2

prior restrictions of 15-pound lifting, no casing and no shoulder bags. He also submitted a duty
status report (Form CA-17) dated August 9, 2013 from Dr. Meyer, who diagnosed low back
strain and listed restrictions such as six hours of sitting, one-hour standing and two hours
walking. Dr. Meyer also stated that permanent restrictions were 15-pound lifting, no casing and
no shoulder bags.
By decision dated September 11, 2013, OWCP denied modification of the
August 19, 2013 decision. It found that the evidence established that the offered position was
suitable.
On October 3, 2013 OWCP received an application for reconsideration. Appellant
submitted a September 23, 2013 Form CA-17 from Dr. Meyer reiterating the prior work
restrictions. In a narrative report dated September 23, 2013, Dr. Meyer provided results on
examination and stated “Again, as far as the injuries of [July 5, 2003], [appellant] is capable of
working light duty with a 15-pound lifting restriction, no casing and no shoulder bag.”
By decision dated January 9, 2014, OWCP found the application for reconsideration was
insufficient to warrant further merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8106(c) 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.4 To justify such a termination, OWCP
must show that the work offered was suitable.5 An employee who refuses or neglects to work
after suitable work has been offered to him or she has the burden of showing that such refusal to
work was justified.6
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work and allow appellant an opportunity to provide reasons for refusing the offered
position.7 If appellant presents reasons for refusing the offered position, OWCP must inform the
employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
appellant a final opportunity to accept the position.8

4

Henry P. Gilmore, 46 ECAB 709 (1995).

5

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

6

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

7

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

8

Id.

3

ANALYSIS -- ISSUE 1
The employing establishment offered appellant a modified carrier position based on the
physical restrictions recommended by Dr. Meyer, his attending physician. Appellant refused to
accept a certified letter containing the job offer, but it was also mailed to his address of record.
Although he stated that he did not believe he could perform the offered position, the issue is a
medical one that must be resolved by probative medical evidence.
The attending physician, Dr. Meyer, provided specific work restrictions in reports dated
April 18, July 19, 2012 and February 20, 2013: 15 pounds lifting, no casing mail and no
shoulder bag use. The job offered to appellant was specifically tailored to these physical
limitations, as it did not require more than 15 pounds lifting, it involved no casing of mail or
shoulder bag use. Appellant had an opportunity to submit medical evidence prior to the
August 19, 2013 decision as to his ability to perform the position. As noted, if suitable work is
offered, he has the burden to show that his refusal is justified. After the suitable work
termination, appellant submitted a Form CA-17 report from Dr. Meyer, who also noted
additional restrictions such as six hours sitting. Dr. Meyer did not provide any results on
examination, discuss the offered position or provide probative medical opinion to establish that
the offered job was medically unsuitable.
The Board finds that the evidence establishes that the offered position was medically
suitable. The question is whether OWCP followed its established procedures in terminating
compensation. Appellant was advised of the consequences of a failure to accept suitable work,
in a 30-day letter on May 10, 2013. He was provided an additional 15 days to accept the position
on July 30, 2013. The Board finds that OWCP properly followed its procedures in terminating
compensation under 5 U.S.C. § 8106(c)(2). Based on the evidence of record, OWCP properly
terminated compensation based on appellant’s failure to accept suitable work.
On appeal, appellant reiterated his belief that he could not perform the position and
submitted a note from an attending physician. The Board can review only evidence that was
before OWCP at the time of the September 11, 2013 decision on appeal.9 The Board finds that
OWCP properly terminated compensation for wage loss in this case.
Appellant can 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 607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
9

20 C.F.R. § 501.2(c)(1).

10

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

4

evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by it; or (3) constitutes
relevant and pertinent evidence not previously considered by OWCP.”11 20 C.F.R. § 10.608(b)
states that any application for review that does not meet at least one of the requirements listed in
20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.12
ANALYSIS -- ISSUE 2
In the present case, appellant submitted an application for reconsideration on
October 3, 2013. He did not establish that OWCP erroneously applied or interpreted a specific
point of law or advance a relevant legal argument not previously considered by OWCP. As to
new and relevant evidence, appellant did not meet this requirement.
He submitted
September 23, 2013 reports from Dr. Meyer, who reiterated his prior work restrictions. This
does not constitute new, relevant and pertinent evidence with respect to the suitable work issues.
Appellant must meet one of the requirements of 20 C.F.R. § 10.606(b)(3) to require
OWCP to review the merits of the claim. He did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP or constitute relevant and pertinent evidence not previously considered by OWCP.
The Board therefore finds that OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly terminated compensation under 5 U.S.C.
§ 8106(c)(2) for refusal of suitable work. The Board further finds that OWCP properly
determined that appellant’s application for reconsideration was insufficient to warrant merit
review of the claim.

11

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 9, 2014 and September 11 and August 19, 2013 are
affirmed.
Issued: July 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 21-0342
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a November 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

2

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

3

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
4

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

5

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 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. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 The issue of whether an employee has the physical ability to perform
a modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part 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.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

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

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 14 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.21 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

Id. at Chapter 6.400.4(b)(3).

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12