United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATIONS & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 12-1956
Issued: February 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2012 appellant filed a timely appeal from the June 11, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant developed food poisoning as a result of eating
contaminated food at work on June 30, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 30, 2011 appellant, a 59-year-old enforcement and removal agent, filed a
traumatic injury claim alleging that she developed stomach pain and nausea at work on that date
after eating a burrito purchased from the employing establishment snack bar.
In a letter dated October 5, 2011, OWCP informed appellant that the information
submitted was insufficient to establish her claim and requested additional information, including
a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted an August 17, 20011 report from Dr. Kathy R. Akashi, Boardcertified in gastroenterology, who diagnosed dyspepsia, irritable bowel syndrome and a history
of colonic polyp. Dr. Akashi identified August 17, 2011 as the date of the onset of appellant’s
diagnosed condition and placed her off work for that day.
In a September 3, 2011 report, Dr. Akashi provided the results of an endoscopy/
colonoscopy, which revealed mild gastritis, Helicobacter pylori and hemorrhoids. She opined
that appellant’s current Pylori infection was related to functional dyspepsia. Noting the date of
symptom onset, Dr. Akashi placed appellant off work from September 3 through 8, 2011. Work
status reports dated September 6 and 22, 2011 contained a diagnosis of dyspepsia and placed
appellant off work due to “uncontrolled symptoms.” In an October 10, 2011 work status report,
Dr. Akashi diagnosed dyspepsia, noting the date of onset as June 30, 2011. She recommended
work restrictions, including lifting and carrying a maximum of five pounds once or twice per
hour.
On November 10, 2011 appellant responded to OWCP’s request for additional
information. She stated that, on the date in question, she purchased a burrito from the employing
establishment snack bar. After appellant had eaten a portion of the burrito, she realized that it
was dark green and appeared to be covered with a fungus. Within approximately 15 minutes
after eating the burrito, she developed severe stomach pain. Appellant notified her supervisor on
the date of the alleged injury and stopped work due to abdominal pain.
The record contains work status reports from Dr. Tiffany Jung Park, Board-certified in
family medicine, placing appellant off work for intermittent periods from July 11 through
August 26, 2011. On July 11, 2011 Dr. Park diagnosed Helicobacter pylori infection and
abdominal pain.
On August 5, 2011 she placed appellant off work from August 5
through 26, 2011.
On August 8, 2011 Dr. Park placed appellant off work through
August 12, 2011.
On August 15, 2011 she diagnosed abdominal pain, epigastric and
gastroesophageal reflux disease and placed appellant off work from August 15 through 17, 2011.
Appellant submitted disability slips from Dr. David Szu-Hone Liu, Board-certified in
family medicine, placing her off work for various periods from August 1 through
September 2, 2011. On July 25, 2011 Dr. Liu diagnosed Helicobacter pylori infection. On
August 30, 2011 he diagnosed dyspepsia.

2

In a work status report dated July 14, 2011, Dr. Cecilia Yeji Kim, Board-certified in
family medicine, diagnosed gastroenteritis and placed appellant off work through July 16, 2011.
The record contains a September 29, 2011 report of an abdominal ultrasound.
By decision dated November 17, 2011, OWCP denied appellant’s claim on the grounds
that the evidence did not establish that the claimed medical condition was causally related to the
established work-related event.
On December 15, 2011 appellant requested an oral hearing. In a March 14, 2011
telephonic hearing, she reiterated the alleged facts of her case. The hearing representative
informed appellant of the medical evidence that would be necessary to establish a causal
relationship between her claimed condition and the accepted incident.
By decision dated June 11, 2012, an OWCP hearing representative affirmed the
November 17, 2011 decision, finding that the evidence failed to establish that appellant sustained
a traumatic injury as a result of the accepted June 30, 2011 incident. On June 26, 2012 an
OWCP hearing representative reissued the June 11, 2012 decision.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he or she sustained a
traumatic injury in the performance of duty, he or she must establish the fact of injury, consisting
of two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.5
2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury, as defined by FECA, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).

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The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 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 a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
OWCP accepted that the workplace incident occurred as alleged, namely, that appellant
ate a burrito from the employing establishment snack bar on June 30, 2011. The issue, therefore,
is whether she has submitted sufficient medical evidence to establish that the employment
incident caused an injury. The medical evidence presented does not contain a rationalized
medical opinion establishing that the work-related incident caused or aggravated any particular
medical condition or disability. Therefore, appellant has failed to satisfy her burden of proof.
The record contains numerous reports and disability slips from Dr. Akashi. On
August 17, 2011 Dr. Akashi diagnosed dyspepsia, irritable bowel syndrome and a history of
colonic polyp and placed appellant off work for that day. On September 3, 2011 she provided
the results of an endoscopy/colonoscopy, which revealed mild gastritis, Helicobacter pylori and
hemorrhoids. Dr. Akashi opined that appellant’s current Helicobacter pylori infection was
related to functional dyspepsia. Work status reports dated September 6 and 22, 2011 contained a
diagnosis of dyspepsia and placed appellant off work due to “uncontrolled symptoms.” In an
October 10, 2011 work status report, Dr. Akashi diagnosed dyspepsia, noting the date of onset as
June 30, 2011. None of her reports provide an opinion as to the cause of appellant’s condition.

6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

10

John W. Montoya, 54 ECAB 306 (2003).

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Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.11
Work status reports from Drs. Park, Liu and Kim placed appellant off work for various
periods following the claimed injury. The reports, however, do not provide examination findings
or a complete factual and medical history, nor do they contain any opinion as to the cause of
appellant’s claimed condition. Therefore, they are of limited probative value. The Board notes
that the numerous work status reports of record contain multiple diagnoses, but no explanation as
to their cause or as to the relationship between them.
The remaining medical evidence of record including disability slips, x-rays and test
results, which does not contain an opinion as to the cause of appellant’s diagnosed condition, is
also of limited probative value and insufficient to establish appellant’s claim.
Appellant expressed her belief that her Helicobacter pylori infection resulted from the
June 30, 2011 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.12 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.13
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report describing her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how her condition was caused or aggravated by her
employment, appellant has not met her burden of proof to establish that she sustained an injury
in the performance of duty on June 30, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to the OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on June 30, 2011.

11

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

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lenox Hill, NY, Employer
__________________________________________

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

Docket No. 15-1176
Issued: August 7, 2015

Case Submitted on the Record

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

JURISDICTION
On May 1, 2015 appellant, through counsel, filed a timely appeal from a December 5,
2014 merit decision and a March 5, 2015 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s entitlement to wageloss and schedule award compensation effective December 20, 2013 due to his refusal of an offer
of suitable work; and (2) whether it properly denied his request for further review of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 14, 2010 appellant, then a 57-year-old letter carrier, filed a traumatic injury
claim alleging that on October 13, 2010 he lost his balance and fell, and injured his right ankle,
right knee, neck, and low back. OWCP accepted his claim for right ankle sprain, lumbar sprain,
right shoulder sprain, right knee sprain, right shoulder impingement, cervical sprain, and right
knee osteoarthritis. Appellant stopped work on the date of injury and received disability
compensation on the daily rolls beginning November 28, 2010. He later received disability
compensation on the periodic rolls.2
On August 3, 2012 appellant underwent authorized right shoulder arthroscopic surgery
with rotator cuff repair, bursectomy, and debridement. The surgery was performed by Dr. Eial
Faierman, an attending Board-certified orthopedic surgeon.
In a December 4, 2012 report, Dr. Hormozan Aprin, an attending Board-certified
orthopedic surgeon serving as an OWCP second opinion physician, discussed appellant’s history
and reported examination findings. He noted restricted cervical and lumbar range of motion, and
negative straight leg raising. For the right shoulder, Dr. Aprin reported restricted range of
motion, negative Hawkins and Neer tests, no effusion, positive tenderness, and healed
arthroscopy scar. For the right wrist, he noted restricted range of motion, normal sensation,
negative Tinel’s and Phalen’s signs, no tenderness, and no swelling. For the right knee,
Dr. Aprin found normal range of motion, bony tenderness, no swelling, no crepitus, no joint line
tenderness, and no effusion. For the right ankle, he noted normal range of motion, 5/5 strength,
normal sensation, no effusion, no tenderness, and no trophic changes. On neurologic testing,
Dr. Aprin noted negative Babinski sign, no muscle atrophy, normal sensation, normal reflexes,
and 5/5 muscle power. He provided a review of diagnostic testing and found partial disability of
the right knee, right shoulder, right wrist, neck, and back referable to the October 13, 2010 work
injury, as well as to preexisting coronary artery disease, kidney disease, and obesity. Dr. Aprin
determined that appellant could work four hours a day with no lifting/pushing/pulling more than
10 pounds for one to two hours, no squatting, kneeling, or climbing, repetitive wrist motion
limited to two hours, no reaching above the shoulder, walking/standing for one-hour,
bending/stooping for one hour, and a 15-minute break every two hours.
In a March 19, 2013 report, Dr. Faierman, the treating physician, found appellant unable
to work even sedentary duty due to persistent neck, back, and knee pain. He provided various
findings on physical examination, including findings of limited neck, back, and knee motion.
OWCP determined that there was a conflict in the medical opinion evidence regarding
appellant’s ability to work between Dr. Aprin and Dr. Faierman. It referred him to
Dr. Michael J. Katz, a Board-certified orthopedic surgeon, for an impartial medical examination
and opinion on this matter.

2

Appellant sustained prior work-related injuries to his left wrist and right wrist, and a prior work-related inguinal
hernia. On April 4, 2006 he sustained injuries to his right shoulder, neck, and back in a nonoccupational motor
vehicle accident.

2

In a July 2, 2013 report, Dr. Katz provided an extensive discussion of appellant’s factual
and medical history and detailed his findings on physical examination. For the cervical spine, he
noted no tenderness, no spasm, normal range of motion, intact sensation, normal reflexes, and
normal motor strength. For the lumbar spine, Dr. Katz found restricted range of motion,
negative straight leg raising bilaterally, intact sensation, and normal motor strength in the lower
extremities. For the right shoulder, he noted well-healed arthroscopy portal, no swelling,
restricted range of motion, negative impingement, no crepitation, no joint line tenderness, no
effusion, no dislocation, and negative Hawkins, O’Brien and Kennedy tests. For the right wrist,
Dr. Katz reported no joint line tenderness, no swelling, normal range of motion, negative Tinel’s
sign, and normal compression test. For the right knee, he noted normal range of motion, no
swelling, no effusion, no medial or joint line tenderness, negative Lachman’s and apprehension
tests, negative pivot shift test, negative drawer sign, negative McMurry test, and no crepitus. For
the right ankle, Dr. Katz found normal range of motion, no joint line tenderness, no crepitation,
negative drawer signs, and 5/5 strength. He opined that the October 13, 2010 injury affected
prior accepted injuries and contributed to partial disability. Dr. Katz stated that appellant could
work eight hours a day with restrictions of sitting/standing/walking for only four hours;
reaching/reaching above the shoulder for two hours; no bending, stooping or operating a motor
vehicle at work; two hours to operate a motor vehicle to and from work; pushing/pulling/lifting
up to 20 pounds, no kneeling, climbing or squatting; and eight hours of repetitive movement of
the wrists/elbows.
On September 4, 2013 the employing establishment offered appellant a full-time position
as a modified carrier at Murray Hill Station with restrictions as prescribed by Dr. Katz. The job
duties included casing and tying down mail up to four hours and delivering first class or express
mail for up to four hours.
On September 17, 2013 OWCP notified appellant that the offered modified carrier job
was suitable in light of the prescribed work restrictions. It advised him that he had 30 days to
accept the position or to provide a valid reason for refusing suitable work.
Appellant submitted additional medical records. On a form report dated September 6,
2013, Dr. Faierman stated that appellant was unable to work. In a report of September 10, 2013,
Dr. Winfred P. Wu, an attending Board-certified neurologist, diagnosed cervical radiculopathy
and stated that appellant was unable to work.
On November 14, 2013 OWCP notified appellant that he had 15 days to accept the
offered job and that, if he did not do so, his entitlement to wage-loss and schedule award
compensation benefits would be terminated. Appellant submitted additional reports in which
attending physicians generally indicated that he could not work.
On December 16, 2013 appellant reported to work at the Murray Hill Station. On
January 16, 2014 OWCP queried the employing establishment as to appellant’s work status as of
December 16, 2013. By telephone on January 17, 2014, the employing establishment reported
that on December 16, 2013 appellant reported for training, which was conducted through
December 18, 2013. Appellant then presented a report by his attending physician stating he was
unable to work. In a letter of January 17, 2014, Paula Pearce, manager of customer services at
Murray Hill Station, stated that appellant went home because he stated that he had to contact his

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lawyer and his doctor. She noted she advised appellant that he had signed the written job offer
and thus he was required to work, but he insisted he was unable to perform the job duties.
In early April 2014, the employing establishment advised appellant that the modified
carrier position was still available. In an April 14, 2014 letter, OWCP notified him that the
position was suitable and that he had 30 days to accept the position or provide a valid reason for
not doing so.
In an April 21, 2014 letter, counsel argued that appellant was sent home on December 20,
2013 because no suitable work was available. Appellant submitted statements in which he and
coworkers asserted that management sent him home on December 20, 2013.
In a May 15, 2014 letter, OWCP advised appellant that his reasons for refusing suitable
work were not valid. It informed him that he had 15 additional days in which to report to the
offered position or his wage-loss and schedule award benefits would be terminated.
In a June 2, 2014 decision, OWCP terminated appellant’s entitlement to wage-loss and
schedule award compensation effective December 20, 2013 because he refused an offer of
suitable work.
Appellant requested a video hearing with an OWCP hearing representative. During the
hearing held on October 20, 2014, he again argued that he was sent home on December 20, 2013
because no suitable work was available.
In a December 5, 2014 decision, the hearing representative affirmed OWCP’s June 2,
2014 decision terminating appellant’s entitlement to wage-loss and schedule award
compensation effective December 20, 2013 due to his refusal of an offer of suitable work.
In a letter received on December 17, 2014, appellant, through counsel, requested
reconsideration of his claim. He argued in a statement that he did not, in fact, refuse suitable
work because management sent him home on December 20, 2013 due to lack of work. A
coworker also provided a statement that appellant advised her on December 20, 2013 that
management was sending him home due to lack of work.
In a March 5, 2015 decision, OWCP denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that he had not submitted new and
relevant evidence or argument.
LEGAL PRECEDENT -- ISSUE 1
It is well settled that, once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.3 Section 8106(c)(2) of FECA provides
that a partially disabled employee who refuses or neglects to work after suitable work is offered
to, procured by, or secured for the employee is not entitled to compensation.4 Section
3

See Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

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

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8106(c)(2) 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.5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.8
Determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, and whether the work is available within the employee’s
demonstrated commuting area and the employee’s qualifications to perform such work.9 OWPC
procedures state that acceptable reasons for refusing an offered position include withdrawal of
the offer or medical evidence of inability to do the work or travel to the job.10
Section 8123(a) of FECA provides in pertinent part: “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.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.12 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13

5

See Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

8

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB
818 (1992).
9

20 C.F.R. § 10.500(b).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).
11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064, 1075 (1989).

13

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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ANALYSIS -- ISSUE 1
The evidence of record shows that appellant can perform the offered full-time modified
carrier position which was found suitable by OWCP in September 2013. The position involved
casing and tying down mail up to four hours a day and delivering first class or express mail up to
four hours a day. The record does not reveal that the modified carrier position was temporary in
nature.14
The physical requirements of the modified carrier position were within the July 2013
work restrictions provided by Dr. Katz, a Board-certified orthopedic surgeon who served as an
impartial medical specialist. The well-rationalized report of Dr. Katz constituted the weight of
the medical evidence with respect to appellant’s ability to work.15 Dr. Katz stated that appellant
could work eight hours a day with restrictions of sitting/standing/walking for four hours;
reaching/reaching above the shoulder for two hours; no bending, stooping, or operating a motor
vehicle at work; two hours to operate a motor vehicle to and from work; pushing/pulling/lifting
up to 20 pounds, no kneeling, climbing or squatting; and eight hours of repetitive movement of
the wrists/elbows. These restrictions allowed appellant to perform the modified carrier position
offered by the employing establishment and determined to be suitable by OWCP in
September 2013.
The Board finds that, therefore, OWCP has established that the modified carrier position
offered by the employing establishment is suitable. Once it has established that a particular
position is suitable, an employee who refuses or neglects to work after suitable work has been
offered to him has the burden of showing that such refusal to work was justified. The Board has
carefully reviewed the evidence and argument submitted by appellant in support of his refusal of
the modified carrier position and notes that it is not sufficient to justify his refusal of the position.
Appellant submitted reports in which attending physicians generally indicated that he was unable
to work but these reports were not sufficiently well rationalized to outweigh the opinion of
Dr. Katz, the impartial medical specialist, with respect to work capability.
Before OWCP and on appeal, appellant has argued that he did not actually refuse the
modified carrier position because management told him that it did not have work for him and
sent him home on December 20, 2013. However, he did not submit sufficient evidence to
support this assertion. Evidence from an employing establishment official reveals that appellant
went home on December 20, 2013 because he stated that he had to contact his lawyer and his
doctor. The official advised appellant that he had signed the written job offer and thus he was
required to work, but appellant insisted he was unable to perform the job duties.
For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective December 20, 2013 because he refused an offer of

14

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), 9 (June 2013).
15

See supra note 13.

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suitable work.16 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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.18 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.19 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.20 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record21 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.22 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.23
ANALYSIS -- ISSUE 2
Appellant’s timely December 17, 2014 application for reconsideration did not show that
OWCP erroneously applied or interpreted a specific point of law. He did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
new and relevant legal argument or submit new and relevant evidence in support of his claim.
He presented the argument was that he did not, in fact, refuse suitable work because management
sent him home on December 20, 2013 due to lack of work. However, the presentation of this

16

The Board notes that OWCP complied with its procedural requirements prior to terminating appellant’s
compensation, including providing him with an opportunity to accept the position offered by the employing
establishment after informing him that his reasons for initially refusing the position were not valid; see generally
Maggie L. Moore, supra note 8.
17

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

21

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

22

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

23

John F. Critz, 44 ECAB 788, 794 (1993).

7

argument would not require reopening of appellant’s claim because he had previously made this
argument and OWCP had previously considered and rejected it.24
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2) and that OWCP properly denied merit review under 20 C.F.R. § 10.608.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective December 20, 2013 due to his refusal of an offer of
suitable work. The Board further finds that it properly denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2015 and December 5, 2014 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 7, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

24

A statement was also submitted in which a coworker stated that appellant advised her on December 20, 2013
that management was sending him home due to lack of work. However, this document is not relevant to the main
issue of the present case in that it merely contains an unsupported reference to appellant’s claim that he was sent
home on December 20, 2013.

8


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

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

Docket No. 08-525
Issued: June 23, 2008

Case Submitted on the Record

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

JURISDICTION
On December 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 30, 2007 merit decision denying his occupational disease claim,
and the November 21, 2007 decision denying his request for merit review. Pursuant to 20 C.F.R.
§§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained an injury causally related to factors of his federal employment; and (2) whether the
Office properly refused to reopen appellant’s case for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 24, 2005 appellant, a 50-year-old letter carrier, filed an occupational disease
claim form (CA-2) alleging that he developed carpal tunnel syndrome (CTS) as a result of his
employment duties. In support of his claim, he submitted disability slips from Dr. Rida N. Azer,

a Board-certified orthopedic surgeon. On August 3, 2005 Dr. Azer diagnosed carpal tunnel and
lumbar disc syndromes, and stated that appellant was disabled from work from August 3
through 24, 2005. On August 24, 2005 she reiterated her diagnoses, and indicated that appellant
was disabled from August 24 through 31, 2005.
In a letter dated September 7, 2005, the Office informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him to submit details regarding the
employment duties he believed caused or contributed to his claimed condition, as well as a
comprehensive medical report from a treating physician, which contained symptoms, a
diagnosis, and an opinion with an explanation as to the cause of his diagnosed condition.
By decision dated October 11, 2005, the Office denied appellant’s claim on the grounds
that he had failed to establish the fact of injury. The Office found that the evidence was
insufficient to establish that the events occurred as alleged. Further, there was no diagnosis
which could be connected to the claimed event.
On February 6, 2006 appellant requested reconsideration. In support of his request, he
submitted a January 16, 2006 report from Dr. Azer who stated that appellant was experiencing
pain in his lumbar spine, as well as increasing pain, numbness and weakness in both hands.
Dr. Azer’s examination revealed tenderness over the carpal ligaments bilaterally, and hypothesia
over the right and left medial nerve distribution. She noted a positive Tinel’s sign of the right
and left median nerve and a positive Phalen’s sign bilaterally. A 2005 electromyography (EMG)
showed findings compatible with bilateral CTS, right L5 radiculopathy, and left L5 nerve root
irritation. Dr. Azer recommended that appellant undergo another EMG and nerve conduction
study to determine whether his condition was deteriorating. She also stated that appellant should
undergo additional testing, including a complete blood count and plasma protein electrophoresis,
to ascertain whether his CTS was due to other causes, such as rheumatoid arthritis or collagen
diseases.
In an undated statement, Lashawn Dennis, an employing establishment manager,
described appellant’s duties as a city letter carrier. He stated that appellant used his hands and
wrists in repetitive motion while casing mail in the office two to four hours per day. Appellant
also delivered mail to door slots and mailboxes on a daily basis, which required repetitive motion
of his hands and wrists for four to six hours per day.
By decision dated May 23, 2006, the Office found that appellant had identified
employment activities which he believed had caused or contributed to his alleged condition, but
that he had failed to provide medical evidence acknowledging that those job duties were
connected to a diagnosed condition. The Office, therefore, affirmed its denial of appellant’s
claim, finding that appellant had not established the fact of injury.
On October 4, 2006 appellant requested reconsideration of the Office’s May 23, 2006
decision. He submitted a July 13, 2006 statement describing his repetitive duties as a letter
carrier, which included casing mail three hours per day; loading trays of mail into a mail truck;
rolling loaded flat beds with both hands; driving and manually setting the parking brake at every
stop; manually rolling down his window at each mailbox; and inserting approximately 200 letters

2

into apartment mailboxes each day. Appellant stated his belief that these work activities caused
his CTS condition.
By decision dated March 30, 2007, the Office denied modification of its May 23, 2006
decision on the grounds that appellant had failed to provide any rationalized medical evidence
explaining how and why his claimed condition was caused or affected by identified work
activities.
On November 13, 2007 appellant submitted an appeal request form, in which he
requested reconsideration of the Office’s March 30, 2007 decision. By decision dated
November 21, 2007, the Office denied his request for merit review, finding that he had neither
raised a substantive legal question, nor submitted new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that an injury was
sustained in the performance of duty as alleged,2 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5

1

5 U.S.C. §§ 8101-8193.

2

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
3

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997)

4

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

5

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

3

An award of compensation may not be based on appellant’s belief of causal relationship.
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 a causal relationship.6
ANALYSIS -- ISSUE 1
Appellant identified employment activities which he believed to be responsible for his
CTS condition. However, the medical evidence of record is insufficient to establish that his
claimed medical condition was caused or aggravated by these employment factors. Therefore,
appellant has failed to meet his burden of proof.
Medical evidence of record consists of August 3 and 24, 2005 disability slips, and a
January 16, 2006 report from Dr. Azer. None of these reports are sufficient to establish
appellant’s claim. As Dr. Azer’s disability slips are devoid of any opinion on the cause of
appellant’s condition, they are of limited probative value.7 On January 16, 2005 she stated that
appellant’s symptoms were compatible with bilateral carpal tunnel syndrome. However,
Dr. Azer did not provide a definitive opinion as to the cause of the condition. Rather, she
recommended that appellant undergo additional testing to determine the cause of the CTS.
Moreover, Dr. Azer did not describe appellant’s job duties, or explain the medical process
through which such duties would have been competent to cause the claimed condition.
Therefore, this report is also of diminished probative value.
Appellant expressed his belief that his claimed condition resulted from his duties as a
carrier. However, the Board has held that the mere fact that a condition manifests itself during a
period of employment does not raise an inference that there is a causal relationship between the
two.8 Neither the fact that the condition became apparent during a period of employment, nor
the belief that the condition was caused or aggravated by employment factors or incidents, is
sufficient to establish causal relationship.9 Causal relationship must be substantiated by reasoned
medical opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s
belief that his condition was caused by the alleged work-related injury is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how his claimed conditions were
caused or aggravated by his employment, he has not met his burden of proof to establish that he

6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 3 at 218.

7

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer an opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

4

sustained an occupational disease in the performance of duty causally related to factors of
employment.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act10 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”11
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.12
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.13 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
Appellant’s November 13, 2007 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office. In fact, he submitted no medical or factual evidence in support of his
request for reconsideration. Therefore, the Office properly determined that appellant is not
entitled to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).

10

5 U.S.C. § 8101 et seq.

11

20 C.F.R. § 10.605.

12

20 C.F.R. § 10.606.

13

Donna L. Shahin, 55 ECAB 192 (2003).

14

20 C.F.R. § 10.608.

5

The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his November 13, 2007 request for reconsideration .
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty. The Board further finds that the Office properly
refused to reopen appellant’s claim for merit review.
ORDER
IT IS HEREBY ORDERED THAT the November 21 and March 30, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Temple, GA, Employer
__________________________________________

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

Docket No. 11-1541
Issued: February 23, 2012

Case Submitted on the Record

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

JURISDICTION
On June 17, 2011 appellant filed a timely appeal from an April 8, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating her compensation for
refusing suitable work. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation under 5
U.S.C. § 8106(c) on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On August 4, 2009 appellant, then a 40-year-old rural carrier associate, filed a traumatic
injury claim for injuries sustained on August 1, 2009 in a motor vehicle accident. She stopped
work on August 3, 2009. OWCP accepted the claim for lumbar sprain, neck sprain and a sprain
1

5 U.S.C. § 8101 et seq.

of the left shoulder and upper arm at the acromioclavicular joint.
compensation for total disability beginning September 16, 2009.

Appellant received

In a January 14, 2010 work status report, Dr. Richard R. Maguire, a Board-certified
orthopedic surgeon, diagnosed a rotator cuff tear. He released appellant to return to work with
restrictions against lifting, pushing, pulling, reaching or grasping over 30 pounds with her left
arm and no bending, stooping or kneeling. In a progress report of the same date, Dr. Maguire
diagnosed shoulder impingement, bursitis and tendinitis. He noted that appellant wanted to wait
until summer to have back surgery.
On February 4, 2010 the employing establishment offered appellant a modified position;
however, she declined the position, asserting that she was in another motor vehicle accident on
January 26, 2010.2
In a progress report dated February 25, 2010, Dr. Maguire related that appellant’s neck,
back and left shoulder pain had increased following a second motor vehicle accident. He
diagnosed cervical sprain/strain, shoulder impingement and bursitis/tendinitis. Dr. Maguire
indicated that appellant took hydrocodone every six to eight hours as needed for pain. In a work
status report, he found that she could work with restrictions against lifting, pushing, pulling,
reaching or grasping over 10 pounds with her left arm. Dr. Maguire further advised that
appellant could pick up 30 pounds using both arms together but could not drive or operate
machinery while taking prescription pain medication.
On March 12, 2010 the employing establishment offered appellant a position as a
modified rural carrier associate. The position required pushing, pulling, reaching and grasping
no more than 10 pounds, no overhead use of the left arm and lifting a combined weight of up to
30 pounds with both arms. The duties included sorting mail, loading and unloading mail from a
vehicle and delivering sorted mail on routes for three to eight hours per day.
In a March 29, 2010 progress report, Dr. Maguire found positive impingement of the
shoulder. He diagnosed a cervical strain, shoulder impingement, lumbar strain and a rotator cuff
tear. Dr. Maguire scheduled appellant for surgery and indicated that her current medication
included hydrocodone, flexeril and meloxicam. In a work status report dated March 29, 2010, he
again found that she could work with restrictions on lifting, pushing, pulling, reaching and
grasping of 10 pounds with the left arm and again indicated that she could not drive or operate
machinery while on prescription pain medication.
By letter dated March 31, 2010, appellant’s attorney contended that the offered position
was not suitable given her work limitations. He asserted that Dr. Maguire prohibited bending
and that the use of her left arm in driving a vehicle might exceed her work restrictions. Counsel
also noted that appellant’s need for medications including hydrocodone, flexeril and mobic due
to her injury prevented her “from operating a motor vehicle to perform the duties of a rural
carrier.” He also argued that a magnetic resonance imaging (MRI) scan study of the cervical

2

In a February 11, 2010 note, Dr. David J. Gower, a Board-certified neurosurgeon, found that appellant was
unable to work from February 11 to March 10, 2010.

2

spine showed bulging disc and spondylosis and that her right knee was also injured.3 Counsel
contended that OWCP did not properly consider these injuries in finding that appellant could
return to work. He maintained that it was not reasonable to find that she could return to work
prior to surgery to repair her torn rotator cuff.
On April 1, 2010 OWCP advised appellant that the position of rural carrier associate
offered March 12, 2010 was found suitable and provided her 30 days to accept the position or
provide a written explanation of her refusal. It considered the reasons already provided and
found that they were not acceptable.
By letter dated May 4, 2010, OWCP noted that it had not received additional evidence
regarding the offered position. It provided appellant an additional 15 days to accept the position
or have her compensation terminated.
On May 13, 2010 Harold W. Haddle, Jr., Ph.D., a clinical psychologist, related that he
was treating appellant for “anxiety and depression resulting from chronic pain and stressors
related to physical injury to her shoulder, neck and back. I have advised her to be absent from
work for the next 30 days in order for her to have time to regain emotional stability necessary to
function on a job.”
On May 14, 2010 appellant’s attorney noted that OWCP had to consider all conditions
prior to terminating compensation due to refusal of suitable work. He argued that the
psychologist’s report established that appellant was disabled from work.
On May 20, 2010 OWCP confirmed that appellant had not returned to the offered
position.
By decision dated May 26, 2010, OWCP terminated appellant’s monetary compensation
benefits effective that date for refusing an offer of suitable work under section 8106(c).
On June 25, 2010 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative.4 On September 9, 2010 she notified OWCP that her attorney was
no longer representing her and requested a telephone hearing.5
At the telephone hearing held on October 14, 2010, appellant related that the nurse
assigned by OWCP insisted that her physician release her for work. She injured her back as well
as her shoulder but physicians treated her shoulder first.
3

Counsel cites as support an August 24, 2009 MRI scan study of the cervical spine finding bulging discs at C3-4
and C5-6 and C6-7 foraminal stenosis/spondylosis and a September 9, 2009 report from Dr. Gower discussing
appellant’s complaints of pain and stiffness in her knee causing trouble walking.
4

In a progress report dated May 24, 2010, Dr. Maguire noted that appelalnt was scheduled for a rotator cuff
repair on June 4, 2010.
5

In a report dated June 7, 2010, received by OWCP on October 25, 2010, Dr. Anthony C. Carantzas, a Boardcertified orthopedic surgeon, diagnosed a near complete rotator cuff tear of the left shoulder with impingement and
recommended surgery. On June 30, 2010 he noted that appellant was status post rotator cuff repair with
decompression.

3

By decision dated December 27, 2010, an OWCP hearing representative affirmed the
May 26, 2010 decision.
On January 7, 2010 appellant requested reconsideration. She submitted the results of
diagnostic studies and a report from Dr. Munjal G. Shroff, an osteopath, who discussed her
history of depression for several years. Dr. Shroff diagnosed recurrent, severe major depressive
disorder with psychosis, dysthymic disorder and anxiety.6 He diagnosed recurrent, severe major
depressive disorder with psychosis, dysthymic disorder and anxiety.
By decision dated April 8, 2011, OWCP denied modification of its December 27, 2010
decision. It found that the medical evidence was insufficient to establish that appellant was
unable to perform the offered position.
On appeal, appellant argued that her physician found that she was unable to work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.7 Section 8106(c)(2) of FECA8 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.9 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.10 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.11
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.12 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.13
6

Appellant submitted chart notes from Dr. Haddle dated August 20, 2009 through June 10, 2010. A February 5,
2010 lumbar MRI scan study revealed small right disc protrusions at T12-L1 and L5-S1. On February 10, 2010 a
physician found that appellant could return to work with limited use of the left arm. On February 11, 2010
Dr. Gower found that she was disabled from February 11 to March 10, 2010.
7

Linda D. Guerrero, 54 ECAB 556 (2003).

8

Supra note 1.

9

Id. at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

10

Ronald M. Jones, 52 ECAB 190 (2000).

11

Joan F. Burke, 54 ECAB 406 (2003).

12

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 10.

13

Id. at § 10.516.

4

Before compensation can be terminated OWCP has the burden of demonstrating that the
employee can work, setting forth the specific restrictions, if any, on the employee’s ability to
work, establishing that a position has been offered within the employee’s work restrictions and
setting for the specific job requirements of the position.14 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, it has the burden of
showing that the work offered to and refused by appellant was suitable.15
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain, neck sprain and a sprain of the
left shoulder and upper arm at the acromioclavicular joint due to an August 1, 2009 motor
vehicle accident. It paid compensation for total disability beginning September 16, 2009. On
March 12, 2010 the employing establishment offered appellant a position as a modified rural
carrier associate. The duties of the position consisted of loading and unloading mail from a
vehicle, sorting mail and delivering the sorted mail. OWCP determined that the position was
suitable based on Dr. Maguire’s February 25, 2010 work restrictions. Dr. Maguire, however,
indicated in a February 25, 2010 report that appellant was taking hydrocodone every six to eight
hours as needed. In a work restriction evaluation of the same date, he found that she was unable
to operate a motor vehicle while on prescription medication for pain. The March 12, 2010
position of modified rural carrier required loading sorted mail into a vehicle and delivering the
sorted mail, presumably by vehicle. Dr. Maguire’s February 25, 2010 report is insufficient to
establish that offered position was suitable as he found that appellant was unable to operate a
motor vehicle while taking prescription pain medication and that she was currently taking
hydrocodone. In order to justify termination of compensation, OWCP has the burden of showing
that the work offered to and refused by her was suitable.16 As the medical evidence fails to
establish that appellant was capable of performing the duties of a modified rural carrier, OWCP
did not meet its burden of proof to establish that she refused an offer of suitable work.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation under 5
U.S.C. § 8106(c) on the grounds that she refused an offer of suitable work.

14

See Linda Hilton, 52 ECAB 476 (2001).

15

Id.

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 23, 2012
Washington, DC

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

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

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

6


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

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

Docket No. 19-1837
Issued: June 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 3, 2019 appellant filed a timely appeal from a July 9, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 9, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation benefits, effective February 11, 2019, as she no longer had residuals
or disability causally related to her accepted September 8, 2018 employment-related injury.
FACTUAL HISTORY
On September 22, 2018 appellant, then a 51-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 8, 2018 she sustained a left wrist
sprain when she fell while being chased by three dogs as she was delivering parcels to a customer’s
front door while in the performance of duty. She stopped work on the date of injury and has not
returned. On July 3, 2019 OWCP accepted appellant’s traumatic injury claim for other specified
sprain of the left wrist, subsequent encounter. It found, however, that the evidence of record was
insufficient to accept her diagnosed back conditions. OWCP advised appellant of the type of
medical evidence needed to expand the acceptance of her claim. It paid her retroactive wage-loss
compensation benefits on the supplemental rolls for the period October 24 to December 21, 2018
for her accepted left wrist condition.4
In a January 22, 2019 development letter, OWCP again informed appellant of the
deficiencies of her consequential injury claim and the evidence necessary to establish additional
conditions as work related.
Thereafter, OWCP received a January 28, 2019 letter from Dr. Raymond D. Godsil, Jr., an
attending Board-certified orthopedic surgeon. Dr. Godsil reported a history of the accepted
September 8, 2018 employment injury. He noted appellant’s diagnosis of small disc herniation
and advised that, certainly trauma can contribute to a disc herniation since the annulus fibrosus
ages and can be compromised with trauma.
OWCP also received a February 11, 2019 report and February 12, 2019 consult note from
Dr. David C. Rehak, an attending Board-certified orthopedic surgeon. Dr. Rehak indicated that he
evaluated appellant on February 11, 2019. He noted that appellant sustained a left wrist sprain and
contusion on September 8, 2018. Dr. Rehak reported significant improvement, good motion, no
swelling, and a good diagnosis. He also reported that appellant had a “slick click” in her wrist.
Dr. Rehak advised that no additional medical treatment was indicated. He determined that
appellant had reached maximum medical improvement. Dr. Rehak released her to return to work
without restriction.
In a March 5, 2019 clinic chart note and letter, Dr. Godsil diagnosed other intervertebral
disc displacement and left wrist and low back pain causally related to the accepted September 8,
2018 employment injury.
On April 2, 2019 OWCP informed Dr. Godsil of the deficiencies of his March 5, 2019
letter. It requested that he provide a well-rationalized opinion supported by objective findings
explaining how the accepted September 8, 2018 employment injury caused appellant’s condition.

4

On January 2, 2019 appellant filed a claim for compensation (Form CA-7) for the period September 8 through
December 21, 2018.

2

OWCP afforded Dr. Godsil 30 days to submit the requested evidence. Dr. Godsil did not submit
additional evidence.
OWCP received a May 29, 2019 prescription form from Dr. Tahir Siddiq, a Board-certified
internist, who recommended that appellant be excused from work until June 29, 2019 because she
was unable to perform her duties.
In a July 9, 2019 letter, OWCP terminated appellant’s wage-loss compensation, effective
February 11, 2019, finding that the weight of the medical evidence rested with Dr. Rehak who
concluded in his February 11, 2019 report that she had no disability due to her accepted
September 8, 2018 employment-related injury.5
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.7 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.9 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that the decision of the Director of OWCP shall contain
findings of fact and a statement of reasons.10 OWCP’s procedures provide that the reasoning
behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect
of the claim and the kind of evidence which would overcome it.11 These requirements are
supported by Board precedent.12

5

It advised that this decision did not terminate her medical benefits.

6

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7
See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

5 U.S.C. § 8124(a).

10

20 C.F.R. § 10.126.

11

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

12

J.W., Docket No. 19-0199, Order Remanding Case (issued January 6, 2020); R.P., Docket No. 18-1128 (issued
December 17, 2018); R.B., Docket No. 16-1696 (issued September 7, 2017); James D. Boller, Jr., 12 ECAB 45,
46 (1960).

3

ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate entitlement to
appellant’s wage-loss compensation benefits, effective February 11, 2019.
OWCP accepted appellant’s claim for other specified sprain of the left wrist, subsequent
encounter. Appellant received retroactive wage-loss compensation on the supplemental rolls for
the period October 24 to December 21, 2018 for her accepted left wrist condition. By decision
dated July 9, 2019, OWCP terminated appellant’s wage-loss compensation benefits, effective
February 11, 2019, based on the February 11 and 12, 2019 reports of Dr. Rehak, appellant’s
physician, who opined that appellant could return to work without restrictions as of February 11,
2019 and that there was no need for further medical treatment. At the time of OWCP’s purported
termination decision, however, appellant was not receiving wage-loss compensation for disability
from work.13 She only had previously received retroactive wage-loss compensation for the closed
period October 24 to December 21, 2018. OWCP did not explain why appellant’s entitlement to
wage-loss compensation for disability was terminated in light of the fact that she was not receiving
monetary compensation for disability at the time of its purported termination decision. As such,
OWCP did not discharge its responsibility to provide appellant with a statement explaining the
disposition so that she could understand the basis for the decision. As noted above, section 8124(a)
of FECA provides that OWCP shall determine and make a finding of fact and make an award for
or against payment of compensation.14 Its regulations at 20 C.F.R. § 10.126 provide that the
decision of the Director of OWCP shall contain findings of fact and a statement of reasons.15
For these reasons, the Board finds that OWCP has not met its burden of proof to terminate
appellant’s entitlement to wage-loss compensation benefits, effective February 11, 2019.16

13

J.E., Docket No. 14-0586 (issued September 2, 2014).

14

Supra note 9.

15

Supra note 10.

16

S.W., Docket No. 17-1837, Order Remanding Case (issued September 18, 2019); see also C.J., Docket No. 151414 (issued December 21, 2015).

4

CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation benefits, effective February 11, 2019.
ORDER
IT IS HEREBY ORDERED THAT the July 9, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 9, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Beckley, WV, Employer
__________________________________________

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

Docket No. 10-1803
Issued: March 21, 2011

Case Submitted on the Record

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

JURISDICTION
On June 28, 2010 appellant filed a timely appeal from the June 1, 2010 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $425.23; and (2) whether the Office properly
denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 8, 2010 appellant, then a 57-year-old secretary, sustained injury to her right
knee when she slipped on a wet floor in a hallway at work. She stopped work that day and
received treatment at the employer’s health unit. The Office accepted appellant’s claim for right
knee medial meniscus tear and old bucket handle tear.
Appellant came under the treatment of Dr. Syed A. Zahir, a Board-certified orthopedic
surgeon. He advised that she could return to work as of January 13, 2010. Following a course of
conservative care, Dr. Zahir recommended that she proceed to arthroscopic surgery.2 Appellant
stopped work on March 2, 2010 and underwent synovectomy of the medial, lateral and superior
compartments, trimming of the anterior horn of the medial meniscus and chondroplasty of the
medial femoral condyle. Dr. Zahir anticipated her return to work as of March 22, 2010 but she
was released to modified work with restrictions as of March 10, 2010.
On March 2, 2010 appellant filed a claim for wage-loss compensation for the period of
March 2 through 12, 2010.3 On March 9, 2010 the Office issued payment in the amount of
$1,195.96 in wage-loss compensation for the claimed period.4
The record contains an April 9, 2010 overpayment memorandum. It noted that appellant
returned to work on March 10, 2010 and that the waiting period days were not deducted from her
check. The record listed payment of $1,195.96 from March 2 through 9, 2010. In explanation of
the pay rates and calculations, the claims examiner stated: “March 5 through 9, 2009 (waiting
period taken) $425.00.” In describing how the amount of overpayment was calculated, the
memorandum stated: “$1,195.96 minus $425.23; $770.73 minus $335.50 (claimant returned);
remaining overpayment $435.23.” Handwritten corrections were made of $345.50 as the amount
returned by appellant resulting in an outstanding balance of $425.23.
On April 9, 2010 the Office notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $425.23. Appellant received
compensation from March 2 through 12, 2010 but was only entitled to compensation from
March 5 through 9, 2010 based on her return to work as of March 10, 2010. As she was disabled
less than 14 days following the continuation of pay (COP) period, she was not entitled to
wage-loss compensation for the first three days of disability. March 2, 3 and 4, 2010 were
considered waiting days and not payable. Therefore, appellant should have received
compensation from March 5 through 9, 2010. Payment from March 2 through 12, 2010 was
made in the amount of $1,195.96, but she should have only received $425.23. The Office found

2

A January 15, 2010 right knee magnetic resonance imaging (MRI) scan revealed a tear of the posterior horn of
the medial meniscus, a partial thickness tear and chondromalacia at the lateral compartment.
3

The employing establishment advised that appellant used 3.5 hours of leave without pay (LWOP) on March 2,
2010 and 8 hours of LWOP from March 3 to 12, 2010 or a total of 67.5 hours.
4

On March 10, 2010 the Office notified appellant that, since she had returned to work that day, she was not
entitled to wage-loss compensation after her return to full-time work. It asked her to remit $345.50 in order to avoid
an overpayment from March 10 to 12, 2010. On March 15, 2010 appellant sent a check in that amount to the Office.

2

that appellant was without fault in the creation of the overpayment and notified her of her right to
request a prerecoupment hearing or waiver of the overpayment.
On April 15, 2010 appellant contested the overpayment, noting that it arose through no
fault of her own. She requested waiver.
In a May 11, 2010 letter, the Office noted that appellant did not complete part one of the
overpayment action request form. It advised that if she sought waiver of the overpayment, she
should return a completed form within 10 days together with supporting financial
documentation. There was no response.
In a June 1, 2010 decision, the Office finalized the overpayment in the amount of
$425.23. Although appellant was found without fault in the creation of overpayment, it denied
waiver as she did not timely complete the overpayment action request form or submit any
financial information establishing a basis for waiver.
LEGAL PRECEDENT -- ISSUE 1
When an injured employee receives payment in excess of the amounts provided for under
the Act, an overpayment is created and the Office must determine the questions of fact, amount,
fault and recovery.5
Section 8117 of the Act provides that an employee is not entitled to compensation for the
first three days of temporary disability except: (1) when the disability exceeds 14 days; (2) when
the disability is followed by permanent disability; or (3) as provided by section 8103 and 8104 of
this title.6 Section 8103 of the Act refers to the payment of medical expenses, while section 8104
refers to vocational rehabilitation expenses.7
In order to determine the three-day waiting period under section 8117, it must first be
determined under section 8118(a) of the Act whether the entitlement to COP had ceased as of
those dates.8 Under the Office’s implementing federal regulations, the 45-day period of COP
starts with the first day or shift following the date or shift of injury.9 When the employee’s
job-related disability continues after entitlement to continuation of pay ceases, the employee is
entitled to receive disability compensation for wage loss subject to the provisions of section
8117.10

5

See 20 C.F.R. §§ 10.431, 10.433-437; see also Docket No. 09-176 (issued September 23, 2009).

6

5 U.S.C. § 8117.

7

Id. at §§ 8103, 8104.

8

See Paula Read, Docket No. 97-2550 (issued October 27, 1999).

9

20 C.F.R. § 10.215(b).

10

Id. at § 10.401(a). Disability is defined under the Act to mean the incapacity because of an employment injury
to earn the wages the employee was receiving at the time of injury. See G.T., 59 ECAB 447 (2008).

3

Where the employer has continued the pay of the employee, it may be stopped when the
employee returns to work with no loss of pay.11 When the employee returns to work without
using all 45 days of COP and sustains a recurrence of disability within 45 days of the return to
duty, he or she may elect to use the remaining days of COP.12 But if the recurrence of disability
begins more than 45 days after the employee first returned to duty, the employer may not pay
COP; the employee is to claim compensation for wage loss.13
ANALYSIS -- ISSUE 1
The Board finds that the fact of overpayment is established in this case. Appellant
sustained injury to her right knee on January 8, 2010. She stopped work and received COP from
January 9 to 13, 2010, when she returned to regular full-time work with no loss of pay.14
Appellant sustained employment-related disability again as of March 2, 2010 when she stopped
work prior to surgery on March 3, 2010. As her disability commenced more than 45 days after
she returned to work on January 13, 2010, she was not entitled to additional COP and she filed a
claim for 67.5 hours of wage loss. Under section 8117, the first three days of disability were
subject to the statutory waiting period as appellant did not meet any of the exceptions provided.
The Office made payment from March 2 to 12, 2010 but, under section 8117, appellant was not
entitled to wage loss for March 2, 3 and 4, 2010.15 These were the first three days of LWOP
from work. Appellant’s disability from surgery did not exceed 14 days, was not followed by
permanent disability or arise under section 8103 or 8104. The evidence of record establishes that
the Office properly applied the three-day waiting period for temporary disability under section
8117.
The case is not in posture for decision, however, as to the amount of overpayment.
Appellant received wage-loss compensation from March 2 through 12, 2010 in the total amount
of $1,195.96; but she was entitled only to compensation from March 5 through 9, 2010. The
memorandum accompanying the overpayment determination did not adequately set forth factual
findings or statement of reasons for the amount of overpayment. As noted in O.R.,16 a final
decision of the Office shall contain findings of fact and a statement of reasons: “With respect to
overpayment decisions, the Office must provide clear reasoning showing how the amount of

11

Id. at §10.222(a)(4).

12

Id. at §10.207(c).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.13 (March 2004). See 20 C.F.R. § 10.207. The Board has addressed the distinction between COP from
wage-loss compensation for disability. COP for the purposes of section 8118(a) is the employee’s pay, while
compensation is the money allowance to an employee paid for wage loss from the Employees’ Compensation Fund.
See Kathy P. Roberts, 45 ECAB 548, 553 (1994).
14

Appellant used a total of 4.25 hours of COP on January 14 and 19, 2010 related to visits to her physician.

15

The question of an overpayment from March 10, 2010 when appellant returned to work through March 12,
2010 is presently not before the Board in this appeal.
16

59 ECAB 432 (2008).

4

overpayment was calculated.”17 The overpayment memorandum and final decision of record do
not adequately address the Office’s calculations. There was no explanation of appellant’s pay
rate and the worksheet contains several handwritten corrections pertaining to the final
overpayment amount that were not addressed in the final decision. It is not readily apparent how
the Office determined an overpayment of $345.50, as was reimbursed by appellant for March 10,
11 and 12, 2010, while the three days of March 2, 3 and 4, 2010 were found to total $425.23.18
The case will be remanded to the Office for further development regarding the amount of
overpayment. The Office should fully explain its calculations and provide such documentation
to support the conclusion reached. As the case is not in posture as to amount, it is premature to
address appellant’s eligibility for waiver and recovery. After such further development, the
Office should issue an appropriate decision.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation as she received wage-loss compensation that was subject to the
three-day waiting period of section 8117.

17

See also James Tackett, 54 ECAB 611 (2003).

18

See supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs be affirmed as to fact of overpayment. The case is remanded for further
action in conformance with this decision as to the issues of amount and waiver.
Issued: March 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 14-152
Issued: April 21, 2015

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant filed a timely appeal of a June 6, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
on February 12, 2013 in the performance of duty.
FACTUAL HISTORY
On February 12, 2013 appellant, then a 64-year-old housekeeping aid supervisor, filed a
notice of traumatic injury. He alleged that at 2:45 that morning he injured his lower back while
1

5 U.S.C. § 8101 et seq.

pulling open a power door when the power was shut off. He sought medical treatment on
February 12, 2013 from the employing establishment. A Record of Employee Treatment dated
February 12, 2013 states that appellant pulled a door at work and developed low back pain.
Appellant was diagnosed with sprain of the lumbosacral area, arthritis by x-rays and history of
degenerative disc disease and provided work restrictions.
Dr. Richard Rudman, a Board-certified family practitioner, diagnosed mid or lower back
strain on February 18, 2013 and prescribed physical therapy on a prescription slip. Appellant
subsequently received physical therapy.
In a letter dated May 2, 2013, OWCP noted that appellant’s claim had initially been
handled as a minor injury, and that payment for a limited amount of medical expenses was
administratively approved. The letter requested additional factual information from appellant
regarding the employment incident and medical opinion evidence regarding the relationship
between the injury and the diagnosed condition. OWCP allowed appellant 30 days for a
response.
Appellant submitted a CA-20 form report from Dr. Rudman dated May 10, 2013
diagnosing acute mid and low back strain. Dr. Rudman determined that forcibly opening the
nonfunctioning electric door while at work on February 12, 2013 caused or aggravated his
condition.
By decision dated June 6, 2013, OWCP denied appellant’s claim finding that he failed to
submit the necessary factual evidence to establish that he experienced the employment incident
at the time, place, and in the manner alleged. It also noted that appellant had not submitted any
narrative medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

time and place of occurrence and member or function of the body affected.”5 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.6
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his or her
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.7
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.8 A
medical report is of limited probative value on a given medical question if it is unsupported by
medical rationale.9 Medical rationale includes a physician’s detailed opinion on the issue of
whether these is a causal relationship between the claimant’s diagnosed condition and the
implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty, and
must be supported by medical reasoning explaining the nature of the relationship between the
diagnosed condition and specific employment activity or factors identified by the claimant.10
ANALYSIS
In its June 6, 2013 decision, OWCP denied appellant’s claim because he had not
responded to its May 2, 2013 request for additional information. However, the Board finds that
5

20 C.F.R. § 10.5(ee).

6

Elaine Pendleton, supra note 3.

7

D.B., 58 ECAB 464, 466-67 (2007).

8

J.Z., 58 ECAB 529 (2007).

9

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

10

A.D., 58 ECAB 149 (2006).

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appellant has submitted sufficient factual evidence to establish that the employment incident
occurred as alleged.
Appellant’s statements on his claim form are consistent with the history provided in the
employing establishment’s medical report written within hours of the incident. Dr. Rudman’s
May 10, 2013 report, provided on a CA-20 form, contains a history identical to that provided to
the employing establishment on the date of the alleged incident. Appellant stated that he injured
his back on February 12, 2013 while opening a door at work. He sought medical treatment from
the employing establishment on that date, and later from Dr. Rudman on February 18 and
May 10, 2013. Appellant provided a timely notification of injury and received work restrictions
as a result of his treatment.
The employing establishment has not controverted appellant’s claim and the Board finds
no evidence in the record to refute appellant’s statements. Appellant’s description of the time,
place, and manner of his injury has not changed. On appellant’s Form CA-1, Notice of
Traumatic Injury, dated February 12, 2013, appellant’s supervisor checked a box indicating that
appellant was injured in the performance of duty, and indicated that his knowledge of the facts
agreed with appellant’s statement. The supervisor signed his portion of the form with a
certification that the “the information given above and that furnished by the employee on the
reverse of the form is true to the best of [his] knowledge, without noting any exceptions.”
In many opinions, the Board has identified the level of inconsistency which may cause it
to deny a claim because the incident alleged was not proven. Where an appellant provided four
distinct accounts of the events surrounding an alleged injury, but failed to provide any witness
statements or specific evidence of the mechanism of injury, the Board found that appellant had
failed to prove compensability.11 In a different claim, where appellant alleged a time, place,
manner, and mechanism of injury, timely sought medical treatment, and where a supervisor
confirmed that appellant had engaged in the activity alleged, the Board held that appellant had
proved the incident and remanded the case to OWCP for a decision on the medical issues
presented.12 The Board finds that appellant has proved that the alleged incident occurred at the
time, place, and in the manner alleged.
The Board further finds, however, that appellant has failed to submit rationalized medical
opinion evidence to establish that the action of opening the door on February 12, 2013 resulted in
a lumbar strain. While the medical evidence from the employing establishment is sufficient to
establish the factual aspect of appellant’s claim, neither the employing establishment’s Record of
Employee Treatment, nor the reports of Dr. Rudman explain how appellant’s actions resulted in
his diagnosed condition. To be considered rationalized medical evidence, a physician’s opinion
must be expressed in terms of reasonable medical certainty and must explain the relationship
between the diagnosed condition and appellant’s specific employment factors.13 There is no
rationalized medical opinion of record explaining why and how appellant’s attempt to open the
11

Paul Foster, 56 ECAB 208 (2004).

12

Larry D. Dunkin, 56 ECAB 220 (2004).

13

S.D., 58 ECAB 428 (713 (2007).

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automatic door resulted in the diagnosed lumbar sprain. Appellant has, therefore, failed to meet
his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that the employment incident occurred on
February 12, 2013 while opening a door at his place of employment. The Board further finds
that he has failed to establish that his diagnosed condition of back strain resulted from this
incident. Appellant, therefore, has failed to establish his traumatic injury claim for back sprain
on February 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2013 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: April 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5