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

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

Docket No. 09-2207
Issued: July 23, 2010

Case Submitted on the Record

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

JURISDICTION
On September 2, 2009 appellant, through her representative, filed a timely appeal of the
October 23, 2008 and June 15, 2009 schedule award decisions of the Office of Workers’
Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than 23 percent impairment to each upper
extremity for which she received schedule awards.
On appeal, appellant contends, inter alia, that the Office should appoint an impartial
medical examiner to resolve the conflict between the schedule award rating made by appellant’s
physician and the rating made by the impartial medical examiner.
FACTUAL HISTORY
This case has previously been before the Board. In a July 5, 2006 decision, the Board
affirmed an August 18, 2004 Office decision finding that appellant failed to establish that she

sustained a recurrence of disability causally related to her bilateral carpal tunnel syndrome.
Under Office File No. xxxxxx429, the Board affirmed September 9 and December 15, 2004
Office decisions, finding that she did not establish her claim for disability commencing
February 26, 2003 causally related to her accepted condition of proximal radiculitis with bilateral
brachial plexitis.1 In an April 28, 2008 decision, the Board affirmed a March 2, 2007 Office
decision finding that appellant did not establish entitlement to disability after September 13,
2004 causally related to her accepted bilateral carpal tunnel syndrome.2 The facts of the case as
set forth in the Board’s prior decisions are hereby incorporated by reference. The relevant facts
are set forth below.
On June 7, 2002 the Office accepted that appellant, then a 50-year-old clerk, sustained
bilateral carpal tunnel syndrome in the performance of duty. Appellant underwent a right carpal
tunnel release on July 8, 2002 by Dr. James Raphael, a Board-certified orthopedic surgeon, with
a subspecialty in surgery of the hand. On July 13, 2004 she underwent an accepted median
neuropathy with brachial plexopathy involving her left upper extremity.
Appellant filed a claim for a schedule award. In a July 24, 2008 report, Dr. David Weiss,
an osteopath, rated impairment pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). He conducted a physical
examination and measured range of motion, grip strength, lateral pinch key, Semmes-Weinstein
and two point discrimination. Dr. Weiss also reviewed appellant’s medical tests, including
electromyogram and nerve conduction studies. He determined that she had a Grade 2 sensory
deficit of the right median nerve, which represented 31 percent impairment pursuant to the
A.M.A., Guides, 482, Table 16-10 and 492, Table 16-15. Dr. Weiss further determined that
appellant had an impairment of 20 percent due to right lateral pinch deficit pursuant to the
A.M.A., Guides, 509, Tables 16-33 and 16-34. Combining these figures, he found a total
45 percent impairment of her right arm. With regard to appellant’s left arm, Dr. Weiss found a
similar Grade 2 sensory deficit in her left median nerve which he determined was a 31 percent
impairment of the left upper extremity based on Tables 16-10 and 16-15 of the A.M.A., Guides.
Dr. Weiss indicated that she reached maximum medical improvement on July 24, 2008.
On October 7, 2008 the Office referred the medical evidence to an Office medical adviser
for review. The medical adviser noted that Dr. Weiss found numbness in both hands and that
appellant complained that activities of daily living were impaired. He noted, however, that
Dr. Weiss did not report any thenar or hypothenar atrophy to either the right or the left upper
extremity. The medical adviser stated that, pursuant to the A.M.A., Guides, 508, section 16-8a,
decreased strength cannot be rated in the presence of painful conditions. Although Dr. Weiss
advised that two-point discrimination was abnormal he did not note anywhere on examination
that there was a loss of protective sensation; therefore, Grade 2 sensory deficit could not be
utilized because it was apparent from appellant’s activities that he had protective sensibility. The
Office medical adviser determined that it was more appropriate to utilize a Grade 3 sensory
deficit pursuant to Table 16-10, in classifying appellant’s impairment. He noted that under Table
16-15, the maximum extremity impairment due to unilateral sensory or motor deficits for sensory
1

Docket No. 05-1231 (issued July 5, 2006).

2

Docket No. 07-2163 (issued April 28, 2008).

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deficit or pain in the median nerve below the mid-forearm was 39 percent. The Office medical
adviser noted that Grade 3 sensory deficit allowed for maximum 60 percent impairment pursuant
to Table 16-10. He multiplied 60 percent by 39 percent to find that appellant had 23 percent
impairment of each upper extremity.
On October 23, 2008 the Office issued schedule awards for 23 percent impairment to
appellant’s left and right upper extremities.
By letter dated October 31, 2008, appellant requested a hearing that was held on
March 17, 2009. She testified that she began working as a clerk at the employing establishment
in 1980. Appellant filed her claim on February 6, 2002 for complaints of tingling and numbness
and that her hands would swell and shoulder and arms ache. She noted that she did not have any
off-the-job accidents or diseases to either arm or of her hands, wrists or fingers.
In a June 15, 2009 decision, an Office hearing representative affirmed the determination
that appellant had 23 percent impairment to both upper extremities.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.6
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make such an examination.7
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome.
Both appellant’s physician, Dr. Weiss, and the Office medical adviser properly noted that
pursuant to the A.M.A., Guides, the maximum amount allowable for an impairment to the
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Id.

7

5 U.S.C. § 8123(a).

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median nerve below the midforearm for sensory deficit and pain is 39 percent.8 However, there
is a dispute between the Office medical adviser and appellant’s physician with regard to the
proper grade to assess appellant for determining impairment due to sensory deficit or pain. Table
16-10 of the A.M.A., Guides provides a Grade 3 classification for sensory deficit or pain that is
characterized by “[d]istorted superficial tactile sensibility (diminished light tough and two-point
discrimination) with some abnormal sensations or slight pain, that interferes with some
activities.”9 The Office medical adviser found that appellant had a Grade 3 classification to each
upper extremity. The maximum percentage of impairment allowed by the A.M.A., Guides for a
Grade 3 classification is 60 percent. The Office medical adviser multiplied 60 percent by the
maximum allowable for impairment to the median nerve below the midforearm of 39 percent, to
determine that appellant had 23 percent impairment to each upper extremity.
However, appellant’s treating osteopath, Dr. Weiss, opined that appellant had a Grade 2
classification, which the A.M.A., Guides, characterizes as “[d]ecreased superficial cutaneous
pain and tactile sensibility (decreased protective sensibility) with abnormal sensations or
moderate pain that may prevent some activities.”10 The maximum percentage of impairment
allowable for Grade 2 is 80 percent. Dr. Weiss multiplied 80 percent by 39 percent to determine
appellant’s impairment to each upper extremity of 31 percent. Accordingly, there is an
unresolved dispute between appellant’s treating physician and the Office medical adviser with
regard to appellant’s grade classification and impairment in both upper extremities.
The Board further notes that Dr. Weiss found that appellant had an additional impairment
to his right upper extremity based upon right lateral pinch deficit of 20 percent. Combining this
figure with the 31 percent based on sensory deficit of the right median nerve, Dr. Weiss opined
that appellant had a 45 percent impairment of the right upper extremity. Dr. Weiss did not
identify any pinch strength deficit in the left wrist. The Office medical adviser disputed this
rating, explaining that pursuant to the A.M.A., Guides, decreased strength could not be rated in
the presence of painful conditions. The Board finds that the A.M.A., Guides do not encourage
the use of grip or pinch strength as an impairment factor because strength measurements are
functional tests influenced by subjective factors that are difficult to control. The A.M.A., Guides
for the most part is based on anatomic impairment. Only in rare cases should pinch deficit be
used and only when it represents an impairing factor that has not been otherwise considered
adequately. The A.M.A., Guides state that, otherwise, the impairment rating based on objective
anatomic findings take precedence.11 Accordingly, the Board finds that Dr. Weiss’ rating of
20 percent impairment for right lateral pinch deficit is not adequately explained.

8

A.M.A., Guides 492, Table 16-15.

9

Id. at 492, Table 16-10.

10

Id.

11

See A.M.A., Guides, 507-08, 16.8 Strength Evaluation, Principles; Phillip H. Conte, 56 ECAB 213 (2004). See
also T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007) (the Board has found that the fifth
edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome is rated on motor and sensory
deficits only).

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The Board will remand the case for the Office to refer appellant to an impartial medical
specialist to resolve the conflict with regard to appellant’s upper extremity impairment. After
such further development as it deems necessary, the Office shall issue an appropriate schedule
award decision.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant has
more than 23 percent impairment to each upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2009 and October 23, 2008 decisions
of the Office of Workers’ Compensation Programs be set aside. The case is remanded to the
Office for further proceedings consistent with this decision.
Issued: July 23, 2010
Washington, DC

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

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

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

5


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

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Appearances:
Zedie E. Ramage, for the appellant
Office of Solicitor, for the Director

Docket No. 07-842
Issued: July 17, 2007

Case Submitted on the Record

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

JURISDICTION
On January 31, 2007 appellant filed a timely appeal from a January 31, 2006 Office of
Workers’ Compensation Programs’ hearing representative decision.
Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury to his left arm
and left shoulder in the performance of duty on December 17, 2004.
FACTUAL HISTORY
Appellant, a 51-year-old mail processor, filed a Form CA-1 claim for benefits on
December 17, 2004 alleging that he experienced pain and a trembling sensation in his left arm
and hand while casing mail that day.
Appellant submitted a form report from Community Medical Center dated
December 17, 2004. The history of injury states that “left shoulder pain shoots to fingertips.

Tingling and tremors when holding ... in that hand.” The report diagnosed a work-related muscle
strain to back and neck. In a Form CA-17 duty status report date December 17, 2004, the
description of injury indicated that appellant experienced pain in his left shoulder and that his left
hand began to tremble. Under clinical findings diffuse numbness was noted. A notation under the
heading “Diagnosis due to injury” stated “no new injury.” The form listed restrictions for
permanent, modified work with no need to change. Another Form CA-17 duty status report also
dated December 17, 2004, stated that appellant had been injured while casing mail and felt burning
pain in his left arm and left hand. The same restrictions were indicated.
Appellant also submitted a December 17, 2004 witness statement from Celsa Sanchez, a
coworker. Ms. Sanchez stated that on December 17, 2004 at 1:45 p.m., appellant showed her his
left hand which was shaking. Appellant told Ms. Sanchez that his hands were shaking and that he
experienced left arm pain. Ms. Sanchez told appellant that he should inform his supervisor of his
symptoms and consult a physician. She noted that appellant left the work area and reported to the
office. On December 17, 2004 appellant notified his supervisor, Denis Gagnon, that, while casing
mail he sustained a strain injury to his left arm and left shoulder at 1:50 p.m.
On December 28, 2004 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. The Office
asked appellant to submit a further description of the employment incident. The Office also
asked appellant to submit a report from a treating physician containing a diagnosis of his
condition and an opinion as to whether his claimed condition was causally related to his federal
employment.
Appellant submitted a December 17, 2004 form report from Dr. Anthony W. Montana, a
Board-certified family practitioner, who related a history of injury that appellant felt a sharp
burning pain in his left shoulder and arm and experienced tingling in his left arm and hand while
casing mail on that day. He diagnosed “pain in joint involving upper arm.” In a report dated
December 21, 2004, Dr. Montana stated:
“[Appellant] gives [a] date of injury as December 17, 2004. [He] states, while
casing [mail] he felt a sharp burning pain in his left shoulder and arm and also felt
his left arm and hand tingling and trembling.... Of note, [appellant] has
previously been seen by this same examiner on August 27, 2001 for fitness-forduty/return to work evaluation. [He] at that time, had extensive multi-year history
of problems involving his cervicothoracic and upper extremity complaints and, in
fact, I find similar complaints in that report to the ones he is currently having.
[Appellant] had extensive evaluation including CT [computerized tomography]
scans, MRI [magnetic resonance imaging] scans, x-rays, nerve conduction studies
and EMG [electromyograms]. [He] states that he has been permanent and
stationary since 1997 and on permanent light-duty work since that time for his
neck and back problems.
“[Appellant] presents with a history of left arm pain with no evidence of any new
work-related injury. [His] symptomatology is nearly identical to that which he
had when last seen in 2001 and for which it appears he has been permanent and
stationary since 1997.

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“[Appellant], therefore, is to be on restrictions per his primary care physicians as
in the past. [He] is to be on permanent modified work status, as per his old
injuries. [Appellant] is released from care. No further medical care is needed as I
cannot identify any new injury as of December 17, 2004.”
By decision dated February 3, 2005, the Office denied the claim finding that appellant
failed to submit medical evidence in support of his claim. The Office determined that he failed
to submit medical evidence providing a diagnosis resulting from the December 17, 2004 work
incident.
On February 30, 2005 appellant requested an oral hearing which was held on
September 13, 2006.
By decision dated January 31, 2006, an Office hearing representative affirmed the
February 3, 2005 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 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.5 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
1

5 U.S.C. § 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

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

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.7 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
Appellant experienced the December 17, 2004 employment incident at the time, place
and in the manner alleged.8 However, the question of whether an employment incident caused a
personal injury generally can be established only by medical evidence.9 Appellant has not
submitted rationalized, probative medical evidence to establish that the employment incident on
December 17, 2004 caused a personal injury and resultant disability.
The reports from Dr. Montana failed to provide a rationalized medical opinion that his
claimed left arm condition was causally related to the December 17, 2004 employment incident.
He diagnosed “pain in joint involving upper arm” in his December 17, 2004 form report.
Dr. Montana related in his December 21, 2004 report, that appellant felt a sharp burning pain
while casing mail on December 17, 2004 in addition to tingling and trembling in his left arm and
left hand. He indicated that he had treated appellant in August 2001 for long-standing
cervicothoracic and upper extremity complaints. Based on these complaints, appellant was
placed on restrictions which have apparently been permanent and stationary since 1997.
Dr. Montana advised that appellant’s symptoms as of August 2001 were similar to those he was
currently experiencing. He noted that appellant had undergone extensive diagnostic testing
including CT scans, MRI scans, x-rays, nerve conduction studies and EMGs. With regard to his
current complaints, Dr. Montana advised that appellant had presented with a history of left arm
pain with no evidence of any new work-related injury as of December 17, 2004. He, therefore,
recommended that appellant be given restrictions for permanent modified work status, to
accommodate his old injuries.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.10 The medical reports of record do not provide a firm diagnosis
6

Id.

7

Id.

8

Although the Office made some conflicting statements in this regard, the findings in this case implicitly
indicated that appellant met this part of his burden. The Office proceeded to evaluate the medical evidence and base
its ultimate determination on whether appellant submitted sufficient medical evidence to establish that he sustained
an injury in the performance of duty.
9

John J. Carlone, supra note 4.

10

See Anna C. Leanza, 48 ECAB 115 (1996).

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of appellant’s left arm condition or how it relates to the work activities he was performing on
December 17, 2004. The record reflects prior treatment for neck and left arm symptomatology.
Dr. Montana did not address how the December 17, 2004 incident would contribute to or
aggravate any preexisting conditions. He did not provide an explanation of how the
December 17, 2004 incident aggravated any prior medical condition. Dr. Montana noted that
appellant felt a sharp burning pain while casing mail, in addition to tingling and trembling in his
left arm and left hand on December 17, 2004. He did not provide a diagnosis of appellant’s left
arm condition, did not identify the cause of any injury or explain the process by which his duties
resulted in an injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a firm diagnosis of his left
arm condition or a medical opinion to sufficiently describe or explain the medical process
through which the December 17, 2004 work activities caused an injury. As he has failed to
submit any probative medical evidence establishing that he sustained an injury in the
performance of duty, the Office properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establish that his
claimed left arm and left shoulder injury was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 17, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Calexico, CA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1111
Issued: December 7, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 6, 2020 appellant filed a timely appeal from a January 15, 2020 merit decision and
an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as Docket No. 20-1111.
On November 28, 2019 appellant, then a 47-year-old supervisory customs and border
patrol officer, filed an occupational disease claim (Form CA-2) alleging that she was experiencing
worsening left shoulder/rotator cuff pain due to factors of her federal employment. She explained
that she had undergone a surgical procedure on her right arm on June 13, 2018, was unable to use
her right arm, and compensated with use of her left arm. Appellant indicated that she first became
aware of her condition on October 1, 2018 and first realized its relation to her federal employment
on November 1, 2018. OWCP assigned the claim File No. xxxxxxx931.
In a December 13, 2019 development letter, OWCP informed appellant that additional
evidence was needed in support of her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire. OWCP afforded appellant
30 days to submit the requested evidence. No response was received.
By decision dated January 15, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish fact of injury.

On February 18, 2020 appellant requested reconsideration.
OWCP received a medical report from Dr. James E. Sweeney, a Board-certified orthopedic
surgeon, dated February 11, 2020. Dr. Sweeney noted appellant’s prior August 14, 2017 right
shoulder injury and the development of her left shoulder symptoms. OWCP also received a
February 5, 2019 report from Dr. Sweeney in which he discussed appellant’s right shoulder
condition and noted that appellant had recently developed left shoulder pain, without any specific
trauma.
By decision dated April 29, 2020, OWCP denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
The Board, having duly considered the matter, finds that this case is not in posture for
decision. Pursuant to 20 C.F.R. § 501.2(c)(1), 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
contained in another of the claimant’s case files may be used, but a copy of that evidence should
be placed into the case file being adjudicated.1 All evidence that forms the basis of a decision must
be of record.2
In appellant’s occupational disease claim she indicated that a surgery procedure to her right
shoulder led to increased use of her left arm, and eventually caused a left shoulder/rotator cuff
condition. As noted by Dr. Sweeney, appellant had a prior claim for an August 14, 2017 traumatic
injury to her right shoulder, assigned OWCP File No. xxxxxx197. That claim was accepted for
impingement syndrome of the right shoulder and strain of muscle, fascia, and tendon of other parts
of the right arm biceps.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.3 Regarding alleged
consequential injuries, in discussing the range of compensable consequences, once the primary
injury is causally connected with the employment, the question is whether compensability should
be extended to a subsequent injury or aggravation related in some way to the primary injury. The
basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and
distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.4
The Board finds that for a full and fair adjudication of appellant’s claim, the case shall be
remanded to OWCP to administratively combine OWCP File Nos. xxxxxx197 and xxxxxx931.
Following this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.
1

D.T., Docket No. 19-0867 (issued August 12, 2020).

2

Id. See also G.O., Docket No. 18-1483 (issued June 20, 2019).

3

K.K., Docket No. 20-0581 (issued September 14, 2020); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
File Maintenance and Management, Chapter 2.400.8c (February 2000).
4
See C.H., Docket No. 20-0228 (issued October 7, 2020); see also K.S., Docket No. 17-1583 (issued
May 10, 2018).

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IT IS HEREBY ORDERED THAT the April 29 and January 15, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: December 7, 2020
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 17-0172
Issued: May 16, 2017

Case Submitted on the Record

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

JURISDICTION
On November 3, 2016 appellant, through counsel, filed a timely appeal from a
September 7, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from March 9, 2016, the date of the last merit
decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 21, 2014 appellant, then a 41-year-old transportation security officer, filed
a traumatic injury claim (Form CA-1) alleging that on that date she injured her left hand, hip, and
back when her chair broke, causing her to fall.
Appellant submitted a February 12, 2015 report from Dr. Laura Heinrich, Board-certified
in family medicine, in which Dr. Heinrich diagnosed appellant with lower back pain and visceral
hypersensitivity syndrome. Dr. Heinrich noted that appellant had significant difficulty
performing her work due to back pain.
OWCP also received a February 19, 2015 report from Dr. Joel John Heidelbaugh, a
Board-certified family practitioner, in which he noted that appellant had fallen from a broken
chair on December 21, 2014. Dr. Heidelbaugh provided work restrictions for appellant.
By decision dated May 8, 2015, OWCP denied appellant’s claim, finding that she had not
established an injury causally related to the December 21, 2014 employment incident.
On June 8, 2015 appellant requested reconsideration of OWCP’s May 8, 2015 decision.
With her request, she submitted an April 16, 2015 report from Dr. John Yarjanian, Boardcertified in physical medicine and rehabilitation. Dr. Yarjanian noted that appellant related pain
in her left gluteal region, left lower back, and left hip to the incident of December 21, 2014. He
related that, while physical examination suggested pelvic obliquity and a restricted left sacroiliac
joint, in addition to extensive myofascial restriction in the left lumbar spine, imaging had failed
to reveal signs of a fracture or disc herniation in relation to her symptoms. Dr. Yarjanian
concluded that, based on his clinical impression and physical examination findings, appellant’s
subjective complaints of pain were legitimate, and substantiated by the mechanism of her fall.
He recommended left sacroiliac joint and left facet point injections at L4-5 and L5-S1.
By letter dated May 22, 2015, Dr. Yarjanian described that on December 21, 2014,
appellant’s stool gave way while she was working and she fell to the ground striking her left
gluteal region, left sacral region, and left low back to a hard cement surface. He noted that
appellant instantaneously developed severe pain in this respective area. Dr. Yarjanian opined
that appellant’s symptoms were causally related to this fall. As a result of the trauma sustained
to her sacrum and lumbar spine, appellant’s left sacroiliac and left lower lumbar facet joints
sustained trauma, and mechanical dysfunction. The mechanism of her fall was in accordance
with her symptoms and physical examination findings.
By decision dated August 24, 2015, OWCP reviewed the merits of appellant’s claim and
denied modification of its May 8, 2015 decision. It explained that Dr. Yarjanian had not offered
an opinion as to causal connection between a diagnosed medical condition and the employment

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incident of December 21, 2014. Drs. Heinrich and Yarjanian related only her symptoms of pain
to the employment incident.
On December 14, 2015 appellant, through counsel, requested reconsideration of OWCP’s
August 24, 2015 decision. Also submitted was a letter dated December 2, 2015 from
Dr. Yarjanian explaining that, when appellant fell, she struck her left buttock and pelvis against a
hard concrete floor, causing upward force on the pelvis, and this lead to a dysfunction of the left
sacroiliac joint. The sacroiliac joint has been hypo-mobile and restricted since this fall. As a
result of the fall, a pelvic obliquity occurred, subsequently causing compensatory curvature of
her lumbar spine. This has led to regional muscle strain, and localized pain at the left lower
lumbar facet joints. Physical examination findings have substantiated appellant’s pain
complaints. Appellant has evidence of restricted motion at the left sacroiliac joint, with
displacement of her left innominate (iliac crest) in a superior position. Her lower lumbar pain
worsens on extension, consistent with pain emanating from the lower lumbar facet joints as a
result of this fall.
By decision dated March 9, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision of August 24, 2015. It stated that its May 8, 2015
decision determined that dysfunction of the left sacroiliac joint and pelvic obliquity were
descriptions of conditions and not definitive medical diagnoses.
On August 15, 2016 appellant, through counsel, requested reconsideration of OWCP’s
March 9, 2016 decision. With the request, appellant submitted a June 21, 2016 letter from
Dr. Yarjanian, in which he provided ICD-10 and ICD-9 codes for the diagnoses of sacroiliac
dysfunction, pelvic obliquity, lumbar facet arthropathy, and myofascial pain. Dr. Yarjanian
reiterated that he maintained that the description provided in his December 2, 2015 letter
sufficiently explained the mechanism of appellant’s injury as it related to the December 21, 2014
incident.”
By decision dated September 7, 2016, OWCP denied appellant’s request for
reconsideration. It found that Dr. Yarjanian’s June 21, 2016 letter was cumulative evidence, in
that he continued to provide the same assessments as in his prior reports, with the addition of
lumbar facet arthropathy. OWCP also found that the addition of ICD-9 and ICD-10 codes
corresponding with identified symptoms and conditions was insufficient to warrant formal
review of the claim, as these were just codes, and did not address the pending issue in question,
which was the causal relationship between the employment incident and a definitively diagnosed
medical condition.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
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.3 Section 10.608(b) of OWCP’s regulations
3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

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provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
ANALYSIS
OWCP issued a decision on March 9, 2016 finding that appellant had not submitted
sufficient evidence to establish a causal relationship between the accepted employment incident
of December 21, 2014 and a definitively diagnosed medical condition. By letter dated
August 15, 2016, appellant requested reconsideration. With her request, she submitted a
June 21, 2016 letter from Dr. Yarjanian. OWCP denied appellant’s request for reconsideration
by decision dated September 7, 2016.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
The Board finds that in her May 12, 2016 request for reconsideration appellant did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered. Thus, appellant is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish a
causal relationship between the accepted employment incident of December 21, 2014 and a
diagnosed medical condition. A claimant may be entitled to a merit review by submitting new
and relevant evidence. Dr. Yarjanian’s June 21, 2016 letter containing ICD-9 and ICD-10
diagnostic codes qualifies as pertinent new and relevant evidence. OWCP, in its March 9, 2016
decision, stated that its May 8, 2015 decision determined that dysfunction of the left sacroiliac
joint and pelvic obliquity were descriptions of conditions and not definitive medical diagnoses.
Dr. Yarjanian’s June 21, 2016 letter, by including the ICD-9 and ICD-10 diagnostic codes,
correctly indicated that appellant’s dysfunction of the left sacroiliac joint and pelvic obliquity
qualified as medical diagnoses and not merely descriptions of symptoms.
As such, the Board finds that OWCP improperly declined to reopen appellant’s claim for
a review of the merits in its September 7, 2016 decision. Dr. Yarjanian’s June 21, 2016 letter
contained relevant information not previously considered by OWCP. The letter is not
duplicative of his earlier reports, as it added additional information supporting the fact that
dysfunction of the left sacroiliac joint and pelvic obliquity qualified as medical diagnoses, and
not merely description of symptoms. Because the letter of June 21, 2016 contained relevant
information not previously considered by OWCP, OWCP was required to reopen the case for
merit review upon reconsideration.
The Board accordingly finds that appellant met the third above-noted requirement of 20
C.F.R. § 10.606(b)(3) in her reconsideration request of August 15, 2016. Appellant submitted
relevant and pertinent evidence not previously considered. Thus, pursuant to 20 C.F.R. § 10.608,
OWCP improperly denied merit review.
4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

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CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of
Workers’ Compensation Programs is vacated and this case is remanded for further proceedings
consistent with this opinion, to be followed by an appropriate decision.
Issued: May 16, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, CENTRAL
MASSACHUSETTS PROCESSING &
DISTRIBUTION CENTER, Shrewsbury, MA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-2331
Issued: June 19, 2008

Oral Argument March 4, 2008

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

JURISDICTION
On August 28, 2007 appellant filed a timely appeal of a September 5, 2006 merit decision
of the Office of Workers’ Compensation Programs, finding that she did not sustain a left
shoulder injury in the performance of duty on March 3, 2006 and a July 24, 2007 nonmerit
decision, denying her request for an oral hearing as untimely. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained a left shoulder
injury on March 3, 2006 in the performance of duty, as alleged; and (2) whether the Office
properly denied appellant’s request for an oral hearing as untimely under 5 U.S.C. § 8124.

FACTUAL HISTORY
On July 16, 2006 appellant, then a 58-year-old flat sorter machine clerk, filed a traumatic
injury claim (Form CA-1) assigned number 01-2040602. She alleged that on March 3, 2006 she
reinjured her left shoulder as a result of being forced to repetitively pitch flats in the manual flats
section. Appellant stated that she was required to work outside the restrictions set forth by her
attending physician. By letter dated July 24, 2006, the employing establishment controverted the
claim because it was not filed within 30 days of the alleged injury.
Prior to filing the instant claim, the Board notes that appellant, on November 28, 2005,
filed a CA-1 form assigned number 01-2035689 alleging that she injured her left shoulder on that
date while picking up a flat box with her left hand. By letter dated March 27, 2006, the Office
accepted the claim for sprains of the left shoulder and upper arm.1
By letter dated July 26, 2006, the Office advised appellant that the evidence submitted,
for the alleged March 3, 2006 employment incident, was insufficient to establish her claim. It
addressed the factual and medical evidence she needed to submit.
In a May 15, 2006 report, Dr. Donald H. Hangen, an attending Board-certified orthopedic
surgeon, stated that appellant was being evaluated for a work-related left shoulder injury. He
reviewed a history that she sustained an employment-related right wrist injury on March 18,
20032 and an employment-related left shoulder injury on November 28, 2005. Dr. Hangen stated
that a magnetic resonance imaging (MRI) scan of the shoulder demonstrated supraspinatus
tendinopathy. No rotator cuff tear was noted. Appellant returned to full-duty work although she
believed that light-duty work was more appropriate for her condition. Dr. Hangen stated that on
March 3, 2006 appellant reinjured her left shoulder and had been experiencing increased pain
since that time. On physical examination, he reported good range of motion of the cervical
spine, some diffuse tenderness around the shoulder, full passive and active range of motion and
rotator cuff strength that was fine. There was some subacromial crepitance and pain with
resisted motion and intact sensation and distal motor function. Appellant had a normal vascular
examination. Dr. Hangen opined that appellant continued to have some mild left shoulder
tendinitis and that no instability was detected. He concluded that her left shoulder condition was
due to repetitive motion.
In an August 24, 2006 letter, appellant addressed the difficult process she experienced in
filing her claim. She contended that the claim was timely filed, contending that her work duties
caused a reinjury of her November 28, 2005 employment-related left shoulder condition.

1

On March 16, 2006 appellant filed a claim for an occupational disease alleging that she first became aware of
her sore and aching left shoulder on November 28, 2005. She stated that on March 3, 2006 she first realized that her
injury was caused by factors of her federal employment. On March 17, 2006 appellant filed a claim alleging that
she sustained a recurrence of disability on March 3, 2006 causally related to her November 28, 2005 employmentrelated injury. By letter dated June 27, 2006, the Office advised appellant to file a CA-1 form as it appeared that she
had sustained a new injury on March 3, 2006. Accordingly, appellant filed the instant claim on July 16, 2006.
2

Appellant filed a CA-1 form assigned number 01-2015194 for a right wrist injury she sustained on March 18,
2003 as a result of lifting a flat box at work. The Office accepted the claim for a right wrist sprain.

2

By decision dated September 5, 2006, the Office denied appellant’s claim, finding the
medical evidence of record insufficient to establish that she sustained a left shoulder injury
causally related to the March 3, 2006 employment incident.
On June 25, 2007 appellant requested an oral hearing before an Office hearing
representative regarding the Office’s September 5, 2006 decision.
By decision dated July 24, 2007, the Office denied appellant’s request for a hearing under
5 U.S.C. § 8124 as untimely. It stated that her request was postmarked June 25, 2007, which was
more than 30 days after the issuance of its September 5, 2006 decision, and therefore, she was
not entitled to a hearing as a matter of right. The Office nonetheless considered the matter in
relation to the issue involved and determined that it could be addressed equally well on
reconsideration, by submitting evidence establishing that her claimed medical condition was
caused by the accepted employment incident.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.5
To determine whether an employee actually sustained an injury in the performance of
duty, the Office must determine whether fact of injury has been established. An employee may
establish that the employment incident occurred as alleged, but fail to show that his or her
disability and/or condition relates to the employment incident.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
An injury does not have to be confirmed by eyewitnesses in order to establish that an employee
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.
6

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

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

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sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and the circumstances and his or her subsequent course of action.8 An
employee’s statement regarding the occurrence of an employment incident is of great probative
force and will stand unless refuted by strong or persuasive evidence.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.10 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.11 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.12
ANALYSIS -- ISSUE 1
The record supports that on March 3, 2006 appellant pitched flats while working as a flat
sorter machine clerk at the employing establishment. The Board finds that the case is not in
posture for decision as to whether the accepted employment incident caused or aggravated
appellant’s left shoulder condition.
In a May 15, 2006 report, Dr. Hangen reviewed a history of appellant’s November 28,
2005 employment-related left shoulder injury. He stated that an MRI scan of the shoulder
demonstrated supraspinatus tendinopathy. Dr. Hangen indicated that appellant returned to fullduty work although she believed that light-duty work was more appropriate for her condition.
He stated that on March 3, 2006 she reinjured her left shoulder and that she had been
experiencing increased pain since that time. Dr. Hangen’s vascular examination was normal.
On physical examination, he reported his essentially normal findings with the exception of
diffuse tenderness around the shoulder, subacromial crepitance and pain with resisted motion,
and mild left shoulder tendinitis. Dr. Hangen opined that appellant’s left shoulder condition was
due to repetitive motion.
The Board finds that appellant’s allegation that she had ongoing problems with her
November 28, 2005 employment-related left shoulder condition and Dr. Hangen’s
uncontroverted opinion that the accepted March 3, 2006 employment incident aggravated this
employment-related condition are sufficient to require further development of the claim.13

8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Gregory J. Reser, 57 ECAB 277 (2005).

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
11

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

12

Charles E. Evans, 48 ECAB 692 (1997).

13

Rebel L. Cantrell, 44 ECAB 660 (1993); John J. Carlone, supra note 10.

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Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.14 On remand
the Office should double this case file assigned number 01-2040602 with any other injury claim
appellant has filed for the same part of the body, including case file assigned number 012035689.15 It should also prepare a statement of accepted facts and refer appellant for a second
opinion examination to obtain a rationalized opinion as to whether factors of her federal
employment aggravated her preexisting employment-related left shoulder condition. Following
this and any other further development as the Office deems necessary, an appropriate final
decision should be issued on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained a left shoulder injury on March 3, 2006 in the performance of duty.16
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings
consistent with this decision.
Issued: June 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
14

Claudio Vazquez, 52 ECAB 496 (2001).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000).
16

In light of the Board’s disposition of the first issue, the second issue regarding the Office’s denial of appellant’s
request for an oral hearing is moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 16-1030
Issued: September 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 19, 2016 appellant, through counsel, filed a timely appeal from a December 9,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss and medical compensation benefits effective May 21, 2015 as his accepted right
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.

shoulder bursitis and cervical stenosis had ceased without residuals; and (2) whether appellant
established continuing residuals of the accepted right shoulder and cervical spine conditions on
and after May 21, 2015.
FACTUAL HISTORY
OWCP accepted that on March 30, 2013 appellant, then a 57-year-old distribution
machine clerk, sustained traumatic bursitis of the right shoulder when he stepped on a plastic
strap and fell from a platform down three steps. He attempted to break his fall by extending his
right arm. Appellant sought emergency room treatment on April 1, 2013. Dr. John Lawrie, an
attending physician Board-certified in emergency and internal medicine, diagnosed traumatic
bursitis of the right shoulder. Imaging studies of the right shoulder were within normal limits.
Dr. Mikhail Azrilevich, an attending Board-certified internist, diagnosed status post occupational
right shoulder injury with left knee pain.3 Appellant accepted a modified-duty position on
April 26, 2013.
On May 20, 2013 Dr. Gupta diagnosed a right rotator cuff partial tear, and administered
an injection. He prescribed physical therapy on June 17, 2013.4
On December 17, 2013 Dr. Mark D. Lazarus, an attending Board-certified orthopedic
surgeon, performed arthroscopic debridement of the right shoulder labrum, subacromial
decompression, and rotator cuff repair. OWCP authorized the procedure.
Appellant received compensation on the supplemental rolls from December 14, 2013 to
May 21, 2015. Dr. Lazarus found appellant able to perform full-time modified duty as of
April 14, 2014, but appellant did not return to work. He continued to participate in physical
therapy through November 2014.
In a November 12, 2014 report, Dr. Dorota Gribbin an attending Board-certified
physiatrist, diagnosed right shoulder pain and cervicalgia. On December 3, 2014 she noted
obtaining electrodiagnostic studies showing right C5 radiculopathy and right carpal tunnel
syndrome. Dr. Gribbin prescribed physical therapy on December 10, 2014, noting that appellant
required further diagnostic studies on the cervical spine. She administered a cortisone injection
on December 15, 2014. On December 29, 2014 Dr. Gribbin diagnosed cervical stenosis, right
shoulder joint pain, cervicalgia, soft tissue pain in the right shoulder region, right carpal tunnel
syndrome, and tension headache. She administered trigger point injections on January 30 and
February 16, 2015.5
3

Dr. Sunny Gupta, an attending osteopathic physician Board-certified in family medicine and sports medicine,
ordered a left knee x-ray on April 18, 2013, noting that appellant developed left knee pain after he fell at work on
March 30, 2013.
4

A July 22, 2013 magnetic resonance imaging (MRI) scan showed a full-thickness tear of the supraspinatus
tendon.
5

February 6, 2015 electromyography (EMG) and nerve conduction velocity (NCV) studies showed that
appellant’s right carpal tunnel syndrome had resolved completely.

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A December 5, 2014 MRI scan showed a “large focal partial tear involving the
supraspinatus tendon.”
On January 16, 2015 OWCP obtained a second opinion from Dr. Robert A. Smith, a
Board-certified orthopedic surgeon. Dr. Smith reviewed the medical record and a statement of
accepted facts. On examination of the right upper extremity, he found full motion of the
shoulder, satisfactory strength, and a normal neurologic examination. Dr. Smith diagnosed
resolved traumatic bursitis and rotator cuff tear of the right shoulder, both completely
ameliorated by the December 17, 2013 surgery. He noted that there “was never any accepted
condition for this case with respect to [appellant’s] neck or neurological structures.” Dr. Smith
explained that any “continued treatment, testing, work restrictions, or disability for the neck,
radiculopathy, or carpal tunnel syndrome [were] not related to the March 30, 2013 incident, but
to nonindustrial factors.” He opined that appellant had reached maximum medical improvement,
and could return to full duty with no restrictions related to the accepted injuries.
By notice dated March 4, 2015, OWCP advised appellant of its proposal to terminate his
wage-loss compensation and medical benefits as the accepted right shoulder conditions had
ceased without residuals, based on Dr. Smith’s opinion as the weight of the medical evidence.
Appellant was afforded 30 days to submit evidence or argument.
On March 12, 2015 OWCP expanded the claim to accept cervical spinal stenosis.
In a March 18, 2015 letter, counsel asserted that Dr. Smith’s report could not represent
the weight of the medical evidence as it predated OWCP’s acceptance of cervical spinal stenosis.
Although Dr. Smith opined on January 16, 2015 that there were no accepted cervical spine or
neurologic conditions, OWCP accepted cervical spinal stenosis on March 12, 2015.
Appellant submitted March 2 and 16, 2015 reports from Dr. Gribbin finding improved
right shoulder pain, right carpal tunnel syndrome, and cervical stenosis requiring additional
treatment. In a March 23, 2015 report, Dr. Gribbin disagreed with Dr. Smith’s opinion that the
accepted conditions had ceased. She explained that appellant’s right upper extremity pain was
“directly associated with right-sided C5 radiculopathy” caused by the March 30, 2013 fall.
In an April 1, 2015 letter, counsel contended that OWCP should expand the claim to
accept C5 radiculopathy and find a conflict of medical opinion between Dr. Smith, for the
government, and Dr. Gribbin, for appellant. He provided reports from Dr. Gribbin dated from
April 22 to May 11, 2015, noting continuing right-sided cervical radiculopathy, treated with
epidural injections.
By decision dated May 21, 2015, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective that day, finding that the accepted right shoulder tendinitis and
cervical stenosis had ceased without residuals. It accorded the weight of the medical evidence to
Dr. Smith, finding that his opinion was based on a “complete, accurate, and consistent history
covering both the factual and medical aspects of [his] case.”
In a May 28, 2015 letter, counsel requested a hearing, held before an OWCP hearing
representative on September 11, 2015. At the hearing, counsel asserted that Dr. Smith’s report
could not represent the weight of the medical evidence as his opinion predated OWCP’s
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acceptance of cervical stenosis. Therefore, his conclusions were predicated on an incomplete
factual medical history. He provided reports from Dr. Gribbin dated from May through
August 2015 diagnosing right-sided cervical radiculopathy requiring additional treatment.
By decision dated December 9, 2015, an OWCP hearing representative affirmed the
May 21, 2015 decision. The hearing representative explained that Dr. Smith’s report was
sufficient to meet OWCP’s burden of proof in terminating appellant’s compensation, as there
were no disabling residuals of the shoulder injury “and he clearly states there is no causation of
the cervical condition as a result of the March 30, 2013 injury.” The hearing representative
found that OWCP “appropriately afforded the weight of the medical evidence to Dr. Smith, the
Board-certified second opinion specialist. The hearing representative also remanded the case
“for resolution of the conflicting correspondence concerning the cervical condition based on the
medical evidence.”
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained traumatic bursitis of the right shoulder when he
fell down steps at work on March 30, 2013. On December 17, 2013 appellant underwent
arthroscopic debridement of the right labrum, subacromial decompression, and rotator cuff
repair. He received compensation for temporary total disability from December 14, 2013 to
May 21, 2015.
Dr. Gribbin, an attending Board-certified physiatrist, opined in reports beginning on
November 12, 2014 that appellant’s continuing right upper extremity pain and paresthesias were
caused by cervical radiculopathy sustained in the March 30, 2013 fall. OWCP obtained a second
6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

9

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

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opinion on January 16, 2015 from Dr. Smith, a Board-certified orthopedic surgeon, who opined
that the accepted conditions had ceased without residuals, as there was “never any accepted
condition for this case with respect to [appellant’s] neck or neurological structures.” However,
on March 12, 2015 OWCP expanded the claim to accept cervical spinal stenosis, based on
Dr. Gribbin’s opinion.
By notice dated March 4, 2015 and finalized May 21, 2015, OWCP terminated
appellant’s medical and wage-loss compensation benefits effective May 21, 2015. It accorded
Dr. Smith’s opinion the weight of the medical evidence, asserting that it was based on a
complete, accurate, factual, and medical history. Following a September 11, 2015 hearing, at
which counsel contended that Dr. Smith’s opinion could not be based on a complete medical
history as it predated OWCP’s acceptance of cervical stenosis, OWCP issued a May 9, 2015
decision affirming the termination. However, the hearing representative also remanded the case
“for resolution of the conflicting correspondence concerning the cervical condition.”
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss and medical compensation benefits. Dr. Smith’s opinion was not based on the
complete medical history as available for OWCP at the time it rendered the May 21, 2015
decision. OWCP expanded the claim to accept cervical stenosis on March 12, 2015, after
Dr. Smith rendered his opinion on January 16, 2015. The Board notes that the record does not
indicate that OWCP attempted to obtain an updated opinion from Dr. Smith that addressed
resolution of the accepted condition of cervical stenosis. Therefore, the medical record and
statement of accepted facts provided to Dr. Smith were incomplete. It is axiomatic that medical
reports based on an incomplete or inaccurate history are of little probative value.11 Therefore,
Dr. Smith’s opinion was an insufficient basis for terminating appellant’s compensation. OWCP
failed to meet its burden of proof. The May 21, 2015 decision will be reversed, and the case
returned to OWCP for reinstatement of all appropriate benefits.
ISSUE 2
As OWCP did not meet its burden of proof in terminating appellant’s wage-loss and
medical compensation benefits, issue two regarding appellant’s burden of proof in establishing
continuing residuals after the termination, is moot.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss and medical compensation benefits effective May 21, 2015 as the accepted right upper
extremity and cervical spine conditions had ceased without residuals.

11

Solomon Polen, 51 ECAB 341 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2015 is reversed.
Issued: September 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
GEORGIA PROCESSING & DISTRIBUTION
CENTER, Duluth, GA, Employer
__________________________________________

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

Docket No. 19-0453
Issued: July 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 27, 2018 appellant, through counsel, filed a timely appeal from a
November 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 28, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective May 2, 2018, pursuant to 5
U.S.C. § 8106(c)(2) for refusing an offer of suitable work.
FACTUAL HISTORY
On January 19, 2017 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a left knee contusion on January 16, 2017 while in
the performance of duty. She explained that as she was chasing letters that had fallen out of a
malfunctioning letter tray line machine, her leg struck a low rail next to the machine. OWCP
accepted the claim for left knee contusion, sprain of lateral collateral ligament (LCL), and
derangement of the anterior horn of the lateral meniscus of the left knee. Commencing April 2,
2017 it placed appellant on the periodic rolls. OWCP subsequently authorized left knee surgery
which was performed by Dr. Julio Petilon, a Board-certified orthopedic surgeon, on
May 24, 2017.4
In a September 29, 2017 work capacity evaluation (Form OWCP-5c), Dr. Petilon advised
that appellant was capable of sedentary or light-duty work with restrictions of walking 15 minutes
per hour; standing 30 minute per hour; pushing, pulling, and lifting 10 to 20 pounds for 8 hours
per day; and no twisting, bending/stooping, operating a motor vehicle at work, squatting, kneeling,
or climbing.
In a report dated September 9, 2016, Pamela E. Flatow, a licensed clinical social worker,
noted treatment of appellant from April 22 to June 3, 2014 for a total of four individual
psychotherapy sessions. She indicated that appellant was being treated for anxiety and depression
and was also being seen for medication management through her family physician.
In an October 17, 2017 report, Dr. Rick Stallings, a Board-certified psychiatrist, indicated
that he initially saw appellant on January 25, 2016 and she was scheduled for a follow-up
appointment on August 1, 2017. He noted that in January 2016 he had diagnosed adjustment
disorder with anxiety and opined that her condition was directly related to her difficult work
situation, in part because she was deaf. Dr. Stallings explained that appellant reported a history of
intimidation and harassment at work for about two years which started after she was injured at
work and required shoulder surgery and a six-month medical leave. He noted that her ongoing
treatment included two medications for anxiety and depression, as well as psychotherapy.
Dr. Stallings reported that appellant continued to report work stressors and a difficult work
environment which had contributed to anxiety and depression.
On November 9, 2017 the employing establishment offered appellant a job as a modified
mail handler, which was based on the work restrictions of Dr. Petilon. The duties of the position
required appellant to pick up mail, one parcel at a time, and place it in a cardboard tray. The
physical requirements included: sitting at a conveyor belt and placing letter mail into a tray for up

4

OWCP determined that she needed reasonable accommodation as a result of her hearing impairment and
authorized a sign language interpreter to be present with her during medical appointments for her accepted conditions

2

to eight hours; walking 15 minutes per hour; standing 20 minutes per hour; pushing, pulling, and
lifting 10 to 20 pounds per hour; and no bending, stooping, squatting, kneeling, and climbing.
In a letter dated November 20, 2017, appellant indicated that she had past experiences of
intimidation and harassment by her supervisor, managers, and coworkers which caused her to have
anxiety and depression and she was afraid for her health and safety should she return to the same
situation at her regular duty station. She requested that she be offered a position with her same
status at either the post office in Buford, Georgia or another post office in the district.
On November 22, 2017 appellant requested that OWCP expand the acceptance of her claim
to include the additional conditions of stress, anxiety, and depression.
On November 28, 2017 the employing establishment notified OWCP that appellant refused
the November 9, 2017 modified job offer, but the duties of the job offer remained available for her
acceptance. In a December 4, 2017 report, Countiss Williams, an advanced registered nurse
practitioner, indicated that appellant presented following a left knee arthroscopy and
meniscectomy and complained of persistent pain despite physical therapy.
In a December 21, 2017 development letter, OWCP notified appellant that it had received
her request to “file an additional claim” for stress, anxiety, and depression and explained that she
needed to submit a claim form to her employer to describe the details of her injury. It advised that
the medical notes submitted suggested that a notice of occupational disease (Form CA-2) would
be most appropriate, if her injury occurred over more than one day.
Appellant subsequently submitted reports dated January 18 and 25 and February 5, 2018
from Ms. Williams who continued to advise that appellant had persistent left knee pain, low back
pain into her bilateral lower extremities, and discomfort with walking and standing.
In a Form OWCP-5c dated February 5, 2018, Dr. Petilon reiterated his work restrictions.
In a February 28, 2018 letter, OWCP notified appellant that the modified mail handler
position was suitable, and afforded appellant 30 days to accept the position or provide a written
explanation for her refusal. It noted that fear of returning to work due to anticipation of
intimidation, harassment, or of a new injury was not a valid reason to refuse a limited-duty job
offer since the anticipated event had not yet occurred and the emotional reaction was self-imposed.
OWCP advised appellant that an employee who refuses an offer of suitable work, without
reasonable cause, is not entitled to further compensation for wage loss or a schedule award. It also
noted that the evidence of record did not support her inability to perform the offered modified
position.
In an April 6, 2018 telephone call memorandum, OWCP indicated that it had called
appellant and spoken to her through the interpreter service about her case. Appellant stated that
she wanted to retire on disability, but was concerned because there was a job offer. OWCP
explained that she had work restrictions and retirement was not a valid reason to refuse a job offer.
It further explained that appellant could return to work and then retire after approximately 60 days
or she could retire under Office of Personnel Management (OPM) and elect OPM benefits instead
of FECA. OWCP advised her that as long as she was receiving workers’ compensation, it would
pursue return to work.
3

In a letter dated April 6, 2018, OWCP notified appellant for a second time that the modified
mail handler position was suitable, and afforded appellant an additional 15 days to accept and
report to this position. It noted that it had considered all reasons that she provided for refusing to
accept the offered position and found them to be invalid.
Appellant subsequently submitted an April 10, 2018 report from Dr. Stallings who
indicated that she was seen on April 10, 2017 and was in ongoing treatment for stress, depression,
anxiety, grief, and trauma.
On April 16, 2018 Tan Nguyen, an advanced practice registered nurse, indicated that
appellant continued to have discomfort with walking and standing and had noticed pain to her left
ankle.
The employing establishment sent appellant a notification, on January 8, 2018, that she
qualified for a voluntary early retirement offer. Appellant was instructed of the necessary actions
she should take if she chose the early retirement offer through OPM.
In an April 26, 2018 letter, appellant, through counsel, argued that she obviously could not
accept both the employer’s suitable job offer and the voluntary early retirement offer.
By decision dated May 1, 2018, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits, effective May 2, 2018, for her refusal of an offer of
suitable work. It found that the November 9, 2017 modified job offer was suitable based on
appellant’s restrictions as provided by Dr. Petilon on September 29, 2017 and February 5, 2018.
OWCP noted that even if appellant was retired or planned to retire, this was not a valid reason for
refusing a suitable offer of employment.
On May 8, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant elected to take disability retirement through OPM under the Federal Employees
Retirement System, effective June 25, 2018.
Appellant further submitted reports dated August 31 and October 8, 2018 from
Dr. James W. Duckett, III, a Board-certified orthopedic surgeon, who diagnosed left knee pain and
joint effusion and opined that she was capable of continuing limited-duty, sedentary work with
restrictions of primarily sitting with occasional standing and/or walking and lifting or carrying no
more than 10 pounds.
A telephonic hearing was held before an OWCP hearing representative on
October 12, 2018. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
In response, appellant resubmitted the October 8, 2018 report from Dr. Duckett in support
of her claim.
By decision dated November 28, 2018, OWCP’s hearing representative affirmed the prior
decision, finding that appellant had refused or failed to accept an offer of suitable employment
offered pursuant to 5 U.S.C. § 8106(c).
4

LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, or
secured for him or her is not entitled to compensation.5 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.6 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.8 According
to its procedures, a job offer must be in writing and contain a description of the duties to be
performed and the specific physical requirements of the position.9 20 C.F.R. § 10.51610 provides
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of establishing that such refusal or failure to work was reasonable
or justified, and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation.11
The determination of whether an employee is capable of performing modified-duty
employment is a medical question that must be resolved by probative medical opinion evidence.12
All medical conditions, whether work related or not, must be considered in assessing the suitability
of an offered position.13
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits.
OWCP accepted that appellant sustained a left knee contusion, LCL sprain, and
derangement of anterior horn of lateral meniscus of the left knee at work on January 16, 2017.

5

Supra note 2.

6

M.W., Docket No. 17-1205 (issued April 26, 2018); Howard Y. Miyashiro, 51 ECAB 253 (1999).

7

P.C., Docket No. 18-0956 (issued February 8, 2019); H. Adrian Osborne, 48 ECAB 556 (1997).

8

M.W., supra note 6; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
10

20 C.F.R. § 10.516.

11

P.C., supra note 7; Camillo R. DeArcangelis, 42 ECAB 941 (1991).

12

M.W., supra note 6; Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46 ECAB 1002 (1995).

13

M.E., Docket No. 18-0808 (issued December 7, 2018); Mary E. Woodward, 57 ECAB 211 (2005).

5

However, prior to her employment injury Dr. Stalling had diagnosed an adjustment disorder with
anxiety during an examination on January 25, 2016.
The employing establishment offered appellant a modified mail handler position consistent
with Dr. Petilon’s September 29, 2017 and February 5, 2018 reports on May 1, 2018. Dr. Petilon
assigned restrictions only for the accepted left knee conditions, but did not consider whether
restrictions were necessary for a psychiatric condition. OWCP found that the weight of the medical
opinion evidence was afforded to Dr. Petilon. However, as Dr. Petilon’s opinion failed to consider
her disabling preexisting psychiatric condition, his report was insufficient for OWCP to base its
suitability determination.
As previously noted, the Board has held that all conditions, whether work related or not,
must be considered in assessing the suitability of an offered position.14 The Board finds that
OWCP failed to consider whether appellant’s previously diagnosed adjustment disorder with
anxiety affected her ability to perform the duties of the modified mail handler position.
The Board has held that for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could perform
the offered position.15 As a penalty provision, section 8106(c)(2) must be narrowly construed.16
In this case the medical evidence was not clear on the issue as it was deficient in considering
appellant’s preexisting mental health conditions. OWCP did not secure a medical report that
reviewed the job offer and provided a reasoned opinion as to its suitability for appellant,
considering all existing and relevant conditions. The Board finds that it has not met its burden of
proof and thus erroneously terminated her compensation entitlement under section 8106(c)(2).17
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective May 2, 2018, under 5
U.S.C. § 8106(c)(2) for refusing an offer of suitable work.

14

Id.; see also S.Y., Docket No. 17-1032 (issued November 21, 2017).

15

S.Y., id.; Annette Quimby, 49 ECAB 304 (1998).

16

S.Y., id.; Stephen A. Pasquale, 57 ECAB 396 (2006).

17

See D.C., Docket No. 12-0459 (issued August 10, 2012) (where the Board held that OWCP did not meet its
burden of proof to terminate the employee’s compensation because it failed to establish that the offered position was
suitable due to his preexisting post-traumatic stress disorder condition).

6

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7