United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Detroit, MI,
Employer
__________________________________________

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

Docket No. 13-2011
Issued: February 18, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant, through counsel, timely appealed the April 8, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant has a ratable impairment of the lower extremities due to
his employment-related lumbar condition.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its April 8, 2013 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 52-year-old custodian, injured his lower back on May 4, 2009 lifting a
bucket of water which he emptied into a sink. OWCP accepted the claim for sciatica and lumbar
radiculopathy. In September 2010, it provided appellant with information regarding possible
entitlement to a schedule award.3 OWCP requested an impairment rating in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2008). In light of his accepted lumbar condition, it provided appellant specific
guidance on rating spinal nerve impairment under the A.M.A., Guides (6th ed. 2008).
On September 16, 2010 appellant filed a claim (Form CA-7) for a schedule award. In a
September 15, 2010 report, Dr. William N. Grant, a Board-certified internist, noted appellant’s
complaint of constant low back pain radiating down the backs of both legs and associated
paresthesias. Appellant also complained of lower extremity instability. He felt as if his legs
were giving out and he was going to collapse. Appellant’s pain was 4 on a scale of 0 to 10. On
physical examination, Dr. Grant noted diminished normal curvature of the lumbar spine. He also
reported tenderness to palpation of the lumbosacral spine area. There was limited range of
motion of the lumbar spine and appellant had a positive heel/toe test and positive straight leg
raising tests. Dr. Grant also noted diminished deep tendon reflexes, bilaterally. He diagnosed
sciatica and found that appellant had reached maximum medical improvement. Dr. Grant rated
25 percent bilateral lower extremity impairment due to peripheral nerve impairment under Table
16-12, A.M.A., Guides 534-35 (6th ed. 2008). His rating was based on a diagnosis of sciatica
with a moderate motor deficit.
OWCP referred appellant for a second opinion evaluation to Dr. Nathan A. Fogt, a
Board-certified orthopedic surgeon. In a January 4, 2011 report, Dr. Fogt noted a history of
injury on May 4, 2009 while lifting a bucket of water. He summarized various treatment
records, including a May 21, 2009 lumbar magnetic resonance imaging (MRI) scan and a
July 20, 2009 electromyography and nerve conduction study (EMG/NCV). The MRI scan
revealed degenerative disc changes at L4-5 and L5-S1.4 Appellant’s EMG/NCV results were
abnormal and indicative of a recent mild left lumbar radiculopathy and a distal pure sensory
axonal peripheral polyneuropathy in the feet. Dr. Fogt also reviewed Dr. Grant’s September 15,
2010 report. Appellant reported working as a custodian and was not involved in any type of
active treatment or pain management. Dr. Fogt also noted that prior epidural injections had
provided no relief.
Appellant’s current complaints included constant low back pain and some bilateral
radicular symptoms, right greater than left. The pain distribution pattern involved the posterior
and lateral aspects of appellant’s leg, his calf and down to the bottom of the foot. Appellant also
reported difficulty with stairs and prolonged weight bearing. Dr. Fogt noted that there were no
3

Appellant previously filed a claim for a schedule award which OWCP denied on January 25, 2010 because he
had not yet reached maximum medical improvement.
4

Noted disc protrusions at L4-5 and L5-S1 touched, but did not displace the traversing bilateral L5 and S1 nerves
in the central canal. The MRI scan also revealed mild bilateral L4-5 and L5-S1 foraminal narrowing, degenerative
facet changes at L4-5 and an annular fissure of the disc at L5-S1.

2

bowel or bladder complaints. Neurological examination revealed no clonus present and a
negative Babinski. Appellant was unable to perform a heel or toe walk. Dr. Fogt also noted that
there was no identifiable dermatomal pattern or deficit to light touch. Lower extremity strength
testing was grade 5/5 in all major muscle groups. Appellant had an absent Achilles reflex
bilaterally and a +1 patellar reflex. Physical examination of the lower extremities revealed that
appellant was nontender to palpation of the hips, knees and ankles. Appellant reported that there
was adequate range of motion in all joints and all planes and no joint effusion. Physical
examination of the lumbar spine revealed mild tenderness to paraspinal palpation at L3-4, right
somewhat worse than left. There was no significant paravertebral spasm identified. Dr. Fogt
noted that appellant was slightly tender to palpitation over the sciatic notch on the right and there
was equivocal piriformis stretch on the right. Straight leg raising test revealed increasing pain at
20 degrees on the left and approximately 25 degrees on the right. Appellant had a negative Faber
test. Dr. Fogt also reported forward flexion to 80 degrees, bilateral rotation to 30 degrees and
extension to 15 degrees.
Dr. Fogt diagnosed lumbar sprain/strain and radicular back pain which he attributed to
appellant’s accepted injury. He advised that appellant was able to perform his custodian duties.
Dr. Fogt found that appellant was at maximum medical impairment. Based on the results of his
examination, he found that appellant had no impairment of the lower extremities under the
A.M.A., Guides (6th ed. 2008).
On February 3, 2011 the medical adviser reviewed Dr. Fogt’s findings on examination of
no identifiable dermatomal sensory deficit and normal muscle power. He also noted normal
range of motion in both lower extremities and no evidence of effusion. Additionally, appellant
was reportedly nontender and there was no reported muscle spasm. Based on the January 4,
2011 examination, Dr. Fogt found no (zero percent) impairment of the lower extremities.
On March 18, 2011 OWCP denied appellant’s claim for a schedule award. However, the
decision was set aside by the Branch of Hearings and Review on September 28, 2011. The
hearing representative remanded the case so that Dr. Fogt could comment on the significance of
appellant’s July 20, 2009 EMG/NCV results in evaluating impairment to the lower extremities
due to sensory deficit.5
On February 13, 2012 Dr. Fogt stated that, at the time of his January 2011 examination,
there was no indication of any sensory deficit as related to an EMG that would warrant a
permanent partial impairment. He referenced the January 4, 2011 neurological examination
findings, which revealed no identifiable dermatomal patterns or deficits and lower extremity
strength testing of 5/5. Based on the objective findings, Dr. Fogt stated that there were no
clinically relevant sensory deficits related to appellant’s accepted work injury. Accordingly, he
found no evidence to support any change of his January 4, 2011 opinion.
By decision dated February 23, 2012, OWCP denied appellant’s claim for a schedule
award. In an August 9, 2012 decision, a hearing representative found that OWCP neglected to
forward the relevant medical evidence to its medical adviser for review. Additionally, appellant
5

The hearing representative accepted Dr. Fogt’s findings with respect to the absence of any lower extremity
motor deficits.

3

submitted recent electrodiagnostic studies. A June 5, 2012 EMG/NCV revealed normal lower
extremity nerve conduction studies. However, the needle EMG demonstrated mild chronic
bilateral L5 radiculopathies without ongoing denervation. This latest study when compared to
appellant’s 2009 study reportedly revealed an interval improvement in that there was no active
denervation. A follow-up study on June 12, 2012 reportedly showed mild distal axonal sensory
polyneuropathy.
In a report dated September 1, 2012, Dr. Brian M. Tonne, a medical adviser, found no
bilateral lower extremity impairment under the A.M.A., Guides (6th ed. 2008).6 He explained
that Dr. Grant’s September 15, 2010 findings were unacceptable for rating impairment because
he did not document any motor function deficits on physical examination. Dr. Tonne also noted
that appellant’s latest EMG/NCV revealed mild chronic bilateral L5 radiculopathy with interval
improvement since a 2009 examination. With respect to Dr. Fogt’s findings, he noted that the
examination revealed no motor or sensory deficits. Dr. Tonne explained that where there is no
objective motor or sensory deficit, designation as “[c]lass 0” impairment is appropriate
regardless of the EMG/NCV results.7 Therefore, he concurred with Dr. Fogt’s finding that
appellant had no (zero percent) lower extremity impairment.
By decision dated November 1, 2012, OWCP denied appellant’s schedule award claim.
He subsequently requested an oral hearing which was held on February 19, 2013.
OWCP received additional medical evidence, which included physical therapy treatment
records and reports from Dr. William S. Gonte, a Board-certified internist,8 who first examined
appellant on May 31, 2011 and diagnosed lumbar radiculopathy.9 Dr. Gonte advised appellant to
stop work and recommended additional physical therapy, which commenced on June 14, 2011.
In February 2012, Dr. Gonte diagnosed cervical radiculitis in addition to appellant’s
ongoing lumbar radiculopathy/radiculitis. He treated appellant for both conditions through
February 2013. Dr. Gonte’s February 13, 2013 physical examination revealed a full range of
motion in the extremities, no edema, no atrophy or deformity, no focal deficits and grade 5/5
muscle strength. He also noted that appellant’s reflexes were bilaterally symmetric and his gait
was good. Additionally, appellant’s cerebellar, sensory, proprioception and vibratory senses
were grossly intact. Examination of his back revealed full range of motion and no spasm was
noted.
Dr. Gonte did not provide a lower extremity impairment rating.
6

Dr. Tonne specializes in orthopedic surgery.

7

Dr. Tonne referenced Proposed Table 2, The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the sixth edition (July/August 2009).
8

Dr. Gonte is also Board-certified in the subspecialties of geriatric medicine and sports medicine.

9

Dr. Gonte’s initial neurological examination revealed grade 5/5 muscle strength. Appellant’s reflexes were
bilaterally symmetric and his gait was good. Dr. Gonte also reported that appellant could heel/toe walk without
difficulty. Straight leg raising test was equivocally positive. Lastly, he noted that cerebellar, sensory,
proprioception and vibratory senses were grossly intact.

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In an April 8, 2013 decision, the hearing representative affirmed OWCP’s November 1,
2012 decision.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.10 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.11 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2008).12
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.13 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.14 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.15 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.16
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.17 A schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.18 The sixth edition of the A.M.A., Guides (2008) provides a specific methodology
for rating spinal nerve extremity impairment.19 It was designed for situations where a particular
10

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
11

20 C.F.R. § 10.404.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
13

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

14

5 U.S.C. § 8107(c).

15

Id.

16

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).

17

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a(3).
19

The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).

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jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the FECA Procedure Manual.20
ANALYSIS
In September 2010, OWCP advised appellant of the necessity of submitting an
impairment rating in accordance with the A.M.A., Guides (6th ed. 2008). In light of appellant’s
accepted lumbar condition, he received information pertaining to rating extremity impairment
due to spinal conditions. On appeal, counsel argued that OWCP’s methodology amounts to
“junk science.” The Board notes, however, that the A.M.A., Guides have been adopted as the
uniform standard applicable to all claimants for the determination of permanent impairment
under FECA.21
Appellant’s physician, Dr. Grant provided a lower extremity rating under Table 16-12,
A.M.A., Guides 534-35 (6th ed. 2008) based on a diagnosis of sciatica with a moderate motor
deficit. The Board notes that The Guides Newsletter (July/August 2009) provides the method for
rating spinal nerve extremity impairment. Dr. Grant also failed to document specific results of
sensory testing and/or motor assessment. According to the A.M.A., Guides, a moderate motor
deficit is associated with grade 3/5 muscle strength on physical examination.22 No such finding
was addressed in Dr. Grant’s September 15, 2010 report.23 Thus, it is unclear how he concluded
that appellant had a moderate motor deficit. Due to these deficiencies in Dr. Grant’s report,
OWCP properly referred appellant to Dr. Fogt for further evaluation.
Appellant’s electrodiagnostic studies revealed evidence of lumbar radiculopathy and
distal axonal sensory polyneuropathy. Notwithstanding these positive clinical studies,
appellant’s neurological examination findings define the impairment value assigned under the
A.M.A., Guides (6th ed. 2008).24 Dr. Fogt’s January 4, 2011 neurological examination revealed
no identifiable dermatomal pattern or deficit to light touch. He also advised that lower extremity
strength testing was 5/5 in all major muscle groups. Without objective evidence of sensory
and/or motor deficits on neurological examination, the appropriate impairment designation is
“[c]lass 0” which corresponds to no ratable lower extremity impairment.25 Appellant’s
functional history and clinical studies do not factor into the equation given the absence of
objective evidence of sensory and/or motor deficits, which is the predominate factor in
20

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

21

See J.C., Docket No. 11-241 (issued September 22, 2011); M.R., Docket No. 11-84 (issued
September 21, 2011).
22

See Table 16-11, Sensory and Motor Severity, A.M.A., Guides 533 (6th ed. 2008).

23

When appellant saw Dr. Fogt approximately four months later, lower extremity strength testing was grade 5/5,
which is normal. Id.
24

See supra note 19.

25

See Proposed Table 2. Id.

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determining spinal nerve extremity impairment. Dr. Tonne reviewed the rating process and he
concurred with Dr. Fogt’s determination of no bilateral lower extremity impairment.
Dr. Fogt’s report is consistent with the A.M.A., Guides (6th ed. 2008). This opinion
represents the weight of the medical evidence regarding the extent of appellant’s lower extremity
impairment. Accordingly, the Board finds that the record does not establish a ratable impairment
of the lower extremities due to the accepted lumbar condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
Appellant failed to establish that he has a ratable impairment of the lower extremities due
to his May 4, 2009 employment-related lumbar injury.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Chillicothe, OH, Employer
__________________________________________

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

Docket No. 07-2109
Issued: March 24, 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 August 14, 2007 appellant, through her attorney, filed an appeal from a May 10, 2007
decision of the Office of Workers’ Compensation Programs terminating her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2) on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on November 20, 2001 appellant, then a 35-year-old licensed
practical nurse, sustained cervical, thoracic and lumbar strains and aggravation of preexisting

cervical stenosis1 when she struck a wall while driving a cart. She returned to work on
November 20, 2001 on modified duty. Appellant resigned from federal employment effective
March 1, 2002 and received compensation on the daily and periodic rolls. She continued under
medical care for upper extremity paresthesias and weakness and limited cervical motion. The
Office authorized a C5 discectomy with fusion and fixation, performed on June 17, 2003.
Appellant did not return to work.
Dr. Jeffrey C. Hill, an attending Board-certified orthopedic surgeon, submitted periodic
reports through 2004 finding appellant totally disabled for work. Following additional
development, the Office obtained an impartial medical opinion from Dr. John W. Wolfe, a
Board-certified orthopedist, who submitted August 25 and September 14, 2004 reports finding
appellant totally and permanently disabled for work.
On February 18, 2005 appellant sustained head trauma in a car accident, resulting in
postconcussion syndrome and chronic headaches.
She submitted reports through
November 2005 from Dr. Francis J. O’Donnell, an attending osteopathic physician Boardcertified in orthopedic surgery, opining that appellant’s neck pain was due to the February 2005
accident and psychiatric comorbidity.
A March 31, 2005 functional capacity evaluation demonstrated that appellant could
perform sedentary work, with lifting up to 12.5 pounds. Dr. Hill reviewed the evaluation on
September 6, 2005 and found that appellant had reached maximum medical improvement. He
noted that, according to the March 2005 functional capacity evaluation, appellant could pull or
push up to 10 pounds and lift up to 12.5 pounds. Dr. Hill limited sitting to four hours a day and
squatting, kneeling and climbing to less than one hour a day. He restricted reaching, twisting,
bending, stooping and repetitive upper extremity motions to two-and-a-half hours a day. Dr. Hill
released appellant to full-time work within these restrictions as of September 9, 2005.2
In a November 9, 2005 report, Dr. Hill stated that appellant’s electrodiagnostic tests did
not demonstrate a cause for appellant’s symptoms or dysfunction. He diagnosed depression.
On November 18, 2005 the employing establishment offered appellant a light-duty
position as a licensed practical nurse, within the restrictions provided by Dr. Hill on
September 6, 2005. The job duties consisted of providing personal care, administering
medications, clerical tasks, collecting samples and assembling therapy equipment.
Appellant refused the offer on November 28, 2005. She asserted that she had neck pain,
numbness and weakness in both arms and required narcotic medications. Appellant alleged that,
following the November 20, 2001 injury, she was forced to work outside of her restrictions and
would not allow that to happen again. She awaited additional test results.

1

Appellant underwent neck surgeries in 1970 and on February 21 and April 8, 1997. She also sustained a neck
injury in a nonoccupational October 2001 motor vehicle accident.
2

Dr. Hill renewed his previous work restrictions in reports through January 11, 2006.

2

In a January 13, 2006 letter, the Office advised appellant that the offered limited-duty job
remained available and was suitable work within her medical and vocational capabilities. The
Office found that appellant’s reasons for refusing the offer were invalid and afforded her 30 days
to accept the position or provide a written explanation for her refusal. The Office noted that, if
appellant failed to report for work or present adequate justification for her refusal, her
compensation would be terminated.
Appellant submitted a February 10, 2006 report from Dr. Hill releasing her to work
within the restrictions previously provided.
In a February 17, 2006 letter, the Office afforded appellant an additional 15 days to
accept the offered position or her compensation would be terminated. The Office reiterated that
it had considered her reasons for refusing the offered position and found them invalid. The
Office advised appellant that it would not consider any further reasons for refusal.
Appellant accepted the offered position on March 5, 2006.3 In a March 9, 2006 letter, the
employing establishment instructed her to report for work on March 19, 2006. Dr. Hill renewed
previous work restrictions in reports through April 2006. Appellant did not report for work. The
limited-duty licensed practical nurse position remained open and available.
By decision dated May 9, 2006, the Office terminated appellant’s compensation effective
May 8, 2006 on the grounds that she refused an offer of suitable work. The Office found that
appellant did not report for work in the offered licensed practical nurse position that was within
the restrictions provided by Dr. Hill.
In an April 24, 2007 letter appellant, through her attorney, requested reconsideration.
She asserted that the offered position was not properly explained to her and was not within
restrictions imposed by her physical and mental impairments. Appellant submitted additional
medical evidence.
In chart notes from April 14, 2006 to January 15, 2007, Dr. Hill opined that appellant
functioned well but focused inappropriately on feeling disabled. He stated that appellant could
work within the restrictions indicated by the March 2005 functional capacity evaluation. Dr. Hill
noted in a September 13, 2006 report that appellant felt she could not perform the offered
position. However, she was accepted to a college nursing program and felt able to perform the
requirements of being a registered nurse.
Appellant underwent a coronary artery bypass graft on December 6, 2006. Dr. Hill found
appellant disabled for work from February 12 to March 11, 2007 and released her to work under
previous restrictions as of March 12, 2007. He advised appellant in an April 24, 2007 letter that
he would no longer prescribe her narcotics as a urinalysis showed the presence of Vicodin and
not prescribed OxyContin.
3

In a March 6, 2006 telephone memorandum, the employing establishment advised the Office that appellant
accepted the offered position but had broken her arm and was awaiting treatment. There is no other indication in the
record that appellant fractured or otherwise injured an arm.

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By decision dated May 10, 2007, the Office denied modification on the grounds that the
evidence submitted was insufficient to warrant modification. The Office found that appellant
was provided a detailed position description and that Dr. Hill’s reports indicated that she could
perform the job. The Office noted that she did not establish any disability related to a
nonoccupational psychiatric condition.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 In this case, the Office terminated appellant’s
compensation under section 8106(c)(2) of the Act, which provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.”5 To justify termination of
compensation, the Office must show that the work offered was suitable and must inform
appellant of the consequences of refusal to accept such employment.6 For conditions not
accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation.7 Once the Office establishes
that the work offered was suitable, the burden of proof shifts to the employee who refuses to
work to show that such refusal was reasonable or justified.8 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.9
Section 10.517(a) of the Act’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.10 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.11
The issue of whether an employee has the physical ability to perform a modified position offered
by the employing establishment is primarily a medical question that must be resolved by medical
evidence.12

4

Linda D. Guerrero, 54 ECAB 556 (2003); Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

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

6

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339 (1995).

7

Alice J. Tysinger, 51 ECAB 638 (2000).

8

Bryant F. Blackmon, 56 ECAB 752 (2005).

9

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

10

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

11

20 C.F.R. § 10.516.

12

Kathy E. Murray, 55 ECAB 288 (2004); Anna M. Delaney, 53 ECAB 384 (2002).

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ANALYSIS
The Office accepted that, on November 20, 2001, appellant sustained cervical, thoracic
and lumbar strains and an aggravation of cervical stenosis requiring a C5 discectomy and fusion.
She received total disability compensation beginning in March 2002. Dr. Hill, an attending
Board-certified orthopedic surgeon, released appellant to full-time sedentary duty as of
September 6, 2005.
In a September 6, 2005 report, Dr. Hill opined that appellant could perform sedentary
work within restrictions delineated by a March 2005 functional capacity evaluation. On the basis
of Dr. Hill’s report, the employing establishment identified a full-time light-duty practical nurse
position within those restrictions. The Board finds that Dr. Hill’s reports establish that the
offered practical nurse position was within appellant’s physical limitations.13 Also, the offer was
in writing, described the assigned duties and their physical requirements and instructed appellant
when to report for work.14 The Board finds that the Office met its burden to establish that the
position was suitable work.15
After appellant first refused the offered position, the Office advised her in a January 13,
2006 letter of the Act’s penalty provisions for refusing suitable work. The Board finds that the
Office complied with its procedural requirements in advising her that the position was suitable
work and allowing her to accept the job or justify her refusal. Appellant accepted the offer on
March 5, 2006 but did not report for duty or submit acceptable reasons for refusing the offered
position. Therefore, the Office terminated appellant’s compensation benefits by decision issued
May 9, 2006.
The burden of proof then shifted to appellant to establish that the offered position was not
suitable work.16 On reconsideration, appellant submitted reports from Dr. Hill finding her able
to work within previously stated restrictions from April 14, 2006 through February 11, 2007 and
from March 12, 2007 onward. Although she asserted that she could not work as a licensed
practical nurse, appellant told Dr. Hill on September 13, 2006 that she felt able to work as a
registered nurse. This tends to disprove appellant’s contention that she was unable to perform
the offered position.
Appellant also stated that she was disabled due to an unspecified psychiatric condition.
While the Office did not accept a mental illness in this case, it is well established that the Office
must consider preexisting and subsequently acquired conditions in evaluating whether an offered
position is suitable.17 However, appellant submitted no medical evidence finding her disabled
for work or imposing work limitations due to a psychiatric illness. The Office denied
13

Richard P. Cortes, 56 ECAB 2000 (2004).

14

See 20 C.F.R. § 10.507.

15

Marilou Carmichael, 56 ECAB 451 (2005).

16

Bryant F. Blackmon, supra note 8.

17

Richard P. Cortes, supra note 13.

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modification by May 10, 2007 decision as Dr. Hill’s reports established that appellant could
perform the offered position. Accordingly, the Office met its burden of proof to terminate
appellant’s compensation based on her refusal of suitable work.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits on
the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2007 is affirmed.
Issued: March 24, 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
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE ARMY, CIVIL
PERSONNEL ADVISORY CENTER,
Fort Jackson, SC, Employer
__________________________________________

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

Docket No. 11-941
Issued: October 20, 2011

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 March 4, 2011 appellant filed a timely appeal from an October 25, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on September 7, 2010 in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 25, 2010 OWCP’s decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before the Office at the time it
issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal
written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On September 14, 2010 appellant, then a 40-year-old police officer, filed a traumatic
injury claim alleging that he sustained an injury on September 7, 2010 when exposed to rabies
from contacting fox blood splatter on his police gear and his face as a result of striking the fox
with his baton. The fox blood was later discovered to have confirmed rabies. Appellant received
eight rabies vaccine shots and was advised to receive three more within the next few weeks.
On September 17, 2010 OWCP requested that appellant submit additional evidence,
including a medical report containing a diagnosis of his condition and medical rationale
explaining how the condition was causally related to his employment activities.
Appellant submitted a sworn statement dated September 14, 2010. He described the
incident where a fox attempted to bite him, and he subdued it with a baton. Appellant also
submitted a discharge summary dated September 10, 2010 from Palmetto Health, which included
patient education materials on rabies and its vaccine. The educational material indicated that
rabies was caused by a virus that enters the body during the bite of an infected animal.
In a September 10, 2010 note, Dr. Carlisle3 certified that appellant was seen in the
Palmetto Health clinic at 1:00 p.m. on September 10, 2010 and was excused from work until
5:00 p.m. on the same day. The note indicated that appellant was advised to report to Palmetto
Health Richland for human rabies immune globulin (HRIG) and vaccine.
On October 18, 2010 appellant submitted a report of work status form to OWCP, which
indicated that he returned to work with no restrictions on September 11, 2010.
By decision dated October 25, 2010, OWCP denied appellant’s claim on the grounds
that the medical evidence is insufficient to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden to establish the essential
elements of 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, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment

3

Dr. Carlisle’s first name was not stated.

4

5 U.S.C. §§ 8101-8193.

5

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

2

incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, he must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s 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 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.8
Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a
work-related injury entitling an employee to medical treatment under FECA. The employer
therefore should not use a Form CA-16 to authorize medical testing for an employee who has
merely been exposed to a workplace hazard, unless the employee has sustained an identifiable
injury or medical condition as a result of that exposure.9
FECA does not authorize payment for preventive measures such as vaccines and
inoculations and in general, preventive treatment may be a responsibility of the employing
establishment under the provisions of 5 U.S.C. § 7901 (see 20 C.F.R. § 10.303).10 However,
OWCP can authorize treatment, even though such treatment is designed, in part, to prevent
further injury: actual or probable exposure to a known contaminant due to an injury, thereby
requiring disease-specific measures against infection, including administration of rabies vaccine
for a bite from a rabid or potentially rabid animal.11
ANALYSIS
OWCP accepted that the fox blood exposure incident occurred as alleged on
September 7, 2010. The Board finds that appellant has not met his burden of proof as he has not
submitted sufficient medical evidence to establish that he sustained injury causally related to the
accepted incident. Appellant has not submitted any medical evidence which contains a firm
diagnosis of his condition or an opinion regarding the cause of the condition. The discharge
summary from the Palmetto Health clinic, dated September 10, 2010, provided only educational
6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 558 (1952).

9

20 C.F.R. § 10.303(a).

10

See id. at § 10.313.

11

See id. at § 10.313(b).

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material regarding rabies and the rabies vaccine. There was no diagnosis indicated in that
document. Similarly, the note issued by Dr. Carlisle merely advised appellant to receive HRIG
and vaccine, without addressing whether appellant had been infected by the virus.
FECA does not authorize payment for preventative treatment except in limited
circumstances. Appellant did not claim, nor did the medical evidence suggest that he was bitten
by the fox; his only exposure to the rabies virus was having the fox’s blood splatter on his face
and police gear. The medical reports do not diagnose him with any injury; and, as noted above,
simple exposure to rabies does not constitute a work-related injury entitling him to medical
treatment under FECA. In this scenario, OWCP cannot authorize payment for the vaccination
shots under 20 C.F.R. § 10.313(b), as the authorization requires an actual or probable exposure to
a known contaminant “due to an injury.” Pursuant to section 10.303 appellant may however
seek reimbursement from his employing establishment for the preventive care vaccinations.
As there is no probative, rationalized medical report containing a diagnosis of appellant’s
condition and rationale addressing how his claimed injuries were caused by his employment,
appellant has not met his burden of proof in establishing that he sustained an traumatic injury in
the performance of duty causally related to the accepted event.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury on
September 7, 2010 while in the performance of duty.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 25, 2010 is affirmed.
Issued: October 20, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY & INSPECTION SERVICE,
Geneseo, IL, Employer
__________________________________________

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Appearances:
Steven C. Ames, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2077
Issued: March 20, 2014

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 11, 2013 appellant, through her attorney, filed a timely appeal from the
July 15, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her reconsideration request. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s June 18, 2013 reconsideration
request pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 10, 2010 appellant, a 59-year-old meat inspector, filed a traumatic injury
claim alleging that she sustained an injury on her way to work that morning after falling in a
parking area outside of her workplace.
In a decision dated February 7, 2011, OWCP denied appellant’s claim on the grounds that
her injury did not arise in the performance of duty. Appellant parked her vehicle in a
nondesignated parking area not owned, controlled or managed by the employing establishment.
The employing establishment did not require her to park there. There was an officially
designated parking area available to appellant that was well maintained and well lighted and
monitored for unauthorized vehicles. Appellant was not required to pay for parking in the
officially designated lot. Further, the employing establishment had issued a letter of warning to
her for parking in the nondesignated area.
OWCP’s hearing representative affirmed the denial of appellant’s claim on
September 6, 2011. The hearing representative described the many factors that help determine
whether a parking lot used by employees may be considered a part of the employing
establishment’s premises. After a review of numerous decisions, the hearing representative
found that the evidence did not support that the parking lot was part of the premises. The
employing establishment did not own or lease the lot, did not maintain the lot in any manner and
did not provide the badges or parking pass necessary to use the lot. The lot was not for the
exclusive use of employing establishment employees. The employing establishment did not
monitor the lot and had no control over who was allowed to park in that area. The hearing
representative found that the fact that it allowed appellant to park in that area and was not
charged for doing so was insufficient to make the parking area a part of the premises.
Appellant’s fall on November 10, 2010 thus constituted an off-premises injury while going to
work, which was not compensable but rather arose out of ordinary nonemployment hazards of
the journey itself shared by all travelers.
Appellant requested reconsideration on March 15, 2012, which was received by OWCP
on March 22, 2012. She argued that OWCP’s hearing representative erred in finding that she
was not on the premises at the time of her fall. Appellant argued that the employing
establishment assigned her to the parking lot; that other parking was unavailable due to her
medical accommodation expressly issued by the employing establishment; that the parking lot
was in sufficient proximity and relationship to the employing establishment; and that her injury
arose out of an extraordinary employment hazard. Thus, she argued, the decision was
substantially against the manifest weight of the evidence.
On June 20, 2012 OWCP reviewed the merits of appellant’s case and denied modification
of its prior decision.
Appellant requested reconsideration on June 18, 2013. OWCP received this request on
June 21, 2013. Appellant submitted several medical notes and a notice of personnel action
showing off-work hours. She also submitted several cases from the Fifth Circuit. Appellant
argued that OWCP failed to consider and give proper weight to the evidence that she was in a
“zone of special danger” incidental to her employment and also failed to take into account the

2

totality of the circumstances. She argued that the special hazard included the fact that she was
unable to use the other parking lot and was ordered by her supervisor to use the lot in question.
Appellant then offered a restatement of her previous request for reconsideration.
In a decision dated July 15, 2013, OWCP denied appellant’s June 18, 2013
reconsideration request on the grounds that her letter neither raised substantive legal question nor
included new and relevant evidence.
On appeal, counsel argues that the June 18, 2013 reconsideration request presented a new
and relevant legal issue, namely, that OWCP failed to consider the totality of the circumstances
and the existence of a zone of special danger.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
an application for reconsideration must be received by OWCP within one year of the date of the
OWCP decision for which review is sought.3
OWCP should review the file to determine whether the application for reconsideration
was received within one year of a merit decision. “Timeliness is determined by the document
receipt date of the reconsideration request [the ‘received date’ in the Integrated Federal
Employees’ Compensation System (iFECS)].” If the request for reconsideration has a document
received date greater than one year, the request must be considered untimely.4
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of it in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.5

2

Id. at § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011).

5

20 C.F.R. § 10.607.

3

The term “clear evidence of error” is intended to represent a difficult standard.6 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.7
ANALYSIS
The most recent decision reviewing the merits of appellant’s case was OWCP’s
June 20, 2012 decision. As the appeal rights attached to that decision explained, she had one
calendar year from the date of that decision or until June 20, 2013, to ensure receipt by OWCP of
any reconsideration request.
OWCP received appellant’s June 18, 2013 reconsideration request on June 21, 2013. As
the document received date was beyond one year, appellant’s request must be considered
untimely. The proper standard of review for an untimely reconsideration request is the “clear
evidence of error” standard.
In denying appellant’s reconsideration request, OWCP applied the wrong standard of
review. Further, its generic decision failed to discuss or evaluate the particular evidence and
argument appellant presented to support her request.8 Accordingly, the Board will set aside
OWCP’s July 15, 2013 decision and remand the case for a proper exercise of its discretionary
authority under 5 U.S.C. § 8128(a).
If the June 18, 2013 reconsideration request presented clear evidence of error, OWCP
shall review the merits of appellant’s case and issue an appropriate decision on her claim for
compensation benefits. If the request did not present clear evidence of error, it will deny the
application by letter decision, which must include an evaluation of the evidence and argument
presented.
CONCLUSION
The Board finds that this case is not in posture for decision. OWCP not only applied the
wrong standard of review, it failed to evaluate the evidence and argument appellant presented to
support her request.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011).

7

Id. at Chapter 2.1602.5.b.

8

See Robert M. Pace, 46 ECAB 551 (1995) (in determining whether clear evidence of error is shown, a brief
evaluation of the evidence should be included in the decision so that any subsequent reviewer will be able to address
the issue of discretion); 20 C.F.R. § 10.126 (an OWCP decision shall contain findings of fact and a statement of
reasons); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.b (October 2011)
(if the evidence submitted to support an application for reconsideration is not sufficient to require a merit review,
OWCP should issue a decision that discusses the evidence submitted or lack thereof, and explicitly states the basis
for the finding of insufficiency).

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: March 20, 2014
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Rouses Point, NY, Employer
__________________________________________

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

Docket No. 17-1548
Issued: February 16, 2018

Case Submitted on the Record

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

JURISDICTION
On July 7, 2017 appellant, through counsel, filed a timely appeal from February 27 and
April 13, 2017 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The
appeal was docketed as No. 17-1548.
Appellant, then a 52-year-old special agent, filed an occupational disease claim (Form
CA-2) on February 16, 2016 alleging that he developed numbness and pain in his right upper
extremity due to factors of his federal employment. In a checklist for evidence required in
support of a claim for work-related carpal tunnel syndrome (Form CA-35H) dated February 16,
2016, appellant elaborated as to duties of his employment, hobbies, and symptoms. He stated
that he had worked as a special agent with the employing establishment since 2000, and that
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.

duties of this position included daily, extensive writing of reports, preparing court documents,
writing subpoenas and search warrants, extensive record searches on a computer, and writing
memoranda. Appellant also noted that he had to participate in firearms, handcuffing, and arrest
techniques training.
By decision dated May 18, 2016, OWCP denied appellant’s claim. It explained that his
claim was denied because he had failed to respond to the questionnaire contained in the
development letter of March 17, 2016 and had therefore failed to establish the alleged factors of
employment. OWCP noted that, while appellant had identified use of a computer as a factor of
employment, he had not indicated the frequency and duration of the tasks on a computer alleged
to cause his condition.
On June 3, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on January 23, 2017. At the hearing,
appellant explained that his position required handwriting and typewriting extensive reports
daily. He stated that he performed these tasks for the entire day at his desk with a computer.
Appellant further explained that he underwent firearms training and defensive tactics training
once a year, and was a firearms instructor for 10 years.
By decision dated February 27, 2017, the hearing representative affirmed OWCP’s
May 18, 2016 decision. She found that appellant’s treating physician had not submitted a wellrationalized report regarding causal relationship.
On March 15, 2017 appellant, through counsel, requested reconsideration. By decision
dated April 13, 2017, OWCP denied modification of the February 27, 2017 decision. It found
that the hearing representative had modified the denial of appellant’s claim from the third
element, “Fact of Injury,” to a denial based on the fifth element “Causal Relationship.” OWCP
thereafter denied modification of the prior decision as the newly submitted evidence did not
establish causal relationship.
The Board has duly considered the matter and notes that section 8124(a) of the Federal
Employees’ Compensation Act2 (FECA) and section 10.126 of the implementing regulations3
require that final decisions of OWCP contain findings of fact and a statement of reasons. A
decision denying a claim for benefits should contain a correct description of the basis for the
denial in order that the parties of interest have a clear understanding of the precise defect of the
claim and the kind of evidence which would overcome it.4 The Board finds that OWCP’s
February 27, 2017 decision was incomplete as it did not make findings regarding the third
element of “Fact of Injury.” Appellant was therefore not apprised of the factors of employment
which were accepted by OWCP. The medical evidence submitted in support of causal
relationship could therefore not be properly evaluated in any subsequent decision to determine
whether it supported causal relationship between the diagnosed condition and the accepted
2

5 U.S.C. § 8124.

3

20 C.F.R. § 10.126.

4

Patrick Michael Duffy, 43 ECAB 280 (1991); L.R., Docket No. 15-0235 (issued December 21, 2015).

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factors of employment. Because the February 27, 2017 decision does not contain a completed
description of the basis for the denial of the claim or the findings of fact reached therein, the
Board finds that OWCP has not fulfilled its responsibility under section 8124 of FECA.
IT IS HEREBY ORDERED THAT the April 13 and February 27, 2017 decisions of
the Office of Workers’ Compensation Programs be set aside and the case remanded to further
action consistent with this decision.
Issued: February 16, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1573
Issued: July 29, 2015

Case Submitted on the Record

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

JURISDICTION
On July 2, 2014 appellant, through counsel, filed a timely appeal from a May 15, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
neck or lower back condition in the performance of duty.
FACTUAL HISTORY
This is the second appeal before the Board. On October 12, 2011 appellant, then a
51-year-old mail carrier, filed a Form CA-2a claim for recurrence of disability, alleging that he
sustained a recurrence of disability on October 8, 2011 due to a January 28, 2011 work injury. In
1

5 U.S.C. § 8101 et seq.

his recurrence claim, he alleged that he sustained pain up and down his arms, spine, and back
while he was casing mail. Appellant stopped work on October 8, 2011.2
By letter dated December 27, 2011, OWCP advised appellant that his case would be
converted to a claim for a traumatic injury given the description provided by him on the Form
CA-2a constituted a new injury. In a January 27, 2012 decision, it denied his claim that he
sustained a medical condition in the performance of duty. Regarding the reason for the denial,
OWCP stated that appellant had not established the factual component of his claim. It stated,
“Specifically your case is denied because the evidence is not sufficient to establish that the
event(s) occurred as you described. The reason for this finding is that you did not submit a
statement describing in detail how your injury occurred. It is unclear what workplace incident
caused your claimed condition.” Appellant requested reconsideration.
In a January 16, 2012 report, Dr. Sebastian Lattuga, Board-certified in orthopedic
surgery, reported that appellant had daily, constant, and persistent complaints of neck, back, arm,
and leg pain with upper and lower extremity radiation and associated numbness, tingling, and
dysesthesias noting these complaints stemmed from a work-related head, neck, and back injury
he sustained on January 28, 2011. He advised that appellant had been severely symptomatic
since the accident and rated the pain as an eight on a scale of 1 to 10. Appellant related that the
pain was aggravated by daily activities such as lifting, carrying, bending, standing/sitting for
prolonged periods of time, and ascending/descending stairs. Dr. Lattuga diagnosed cervical
spine sprain, radiculopathy, and a herniated nucleus pulposus. He prescribed continued
chiropractic care and physical therapy and discussed possible surgical intervention with
appellant.
Appellant submitted a February 20, 2012 statement in which he asserted that he returned
to limited-duty work in September 2011. He noted that, due to the damaged disc in his lower
back, the sitting and standing required by this job was causing the disc in his back to rub against
the spine. Appellant further stated that reaching up and down to sort and case mail made his
neck hurt and sent sharp pains to his head.
In a May 31, 2012 decision, OWCP affirmed its January 27, 2012 decision, noting, “Your
statement does not support that you suffered a head, back, or neck condition due to a specific
work incident on October 8, 2011…. While you did provide a new statement, you still have not
described a specific work incident on October 8, 2011. Nor does the medical evidence of file
diagnose a condition in connection with the claimed incident. As such, it cannot be established
that an incident occurred at the time, place, and in the manner alleged.” Appellant again
requested reconsideration.
In a December 6, 2012 statement, appellant indicated that his job required him to sort and
case mail before delivery. He stated that these tasks required him to stand, sit, reach up, bend
down, reach up from side to side, and look up and down constantly. Appellant complained that
because of the previously damaged disc in his lower back and neck, performing these activities
2

At the time of his work stoppage, appellant was working four hours a day in a limited-duty job after he sustained
back, neck, and upper extremity injuries at work on January 28, 2011, case file number xxxxxx561, when snow fell
on him and knocked him to the ground.

2

caused the discs in his back and neck to rub against the spinal cord. He asserted that reaching up
and down to sort and case the mail made his neck hurt and sent sharp pains to his head.
Appellant stated that on October 8, 2011 he decided that he could not continue to perform such
work and that his attending physician indicated that he should stop work.
In an August 12, 2013 decision, OWCP affirmed its May 31, 2012 decision denying
appellant’s claim for a work-related injury. It cited Board precedent stating that an employee has
not met his or her burden of proof to establish a work-related condition where there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim. OWCP
stated, “The evidence is not sufficient to modify the decision dated May 31, 2012 because your
statement of December 6, 2012 differs from the original statement surrounding the circumstances
of your claim dated February 20, 2012 therefore there is doubt surrounding the circumstances
surrounding your claim.”
In an April 18, 2014 decision,3 the Board set aside OWCP’s August 12, 2013 decision,
finding that it improperly denied appellant’s claim finding that he did not establish the factual
component of his claim for a work-related condition. The Board further found that, although
appellant initially filed his claim on an inappropriate claim form, one for a recurrence of
disability, this was not a valid basis for the denial of his claim. The Board noted that, while
OWCP had converted the claim to one for traumatic injury, contrary to OWCP’s assertions,
appellant consistently submitted statements in which he claimed that he sustained an
occupational disease due to the duties he performed over an extended period after returning to
limited-duty work in September 2011. The Board found that appellant did in fact establish the
above-described work factors in connection with a claim for a work-related occupational disease
and that, as OWCP denied appellant’s claim on a factual basis, it failed to adequately evaluate
the medical evidence in light of these established work factors. The Board therefore remanded
the case to OWCP to consider the medical evidence and determine whether appellant had
sustained an occupational disease due to the accepted work factors. The complete facts of this
case are set forth in the Board’s April 18, 2014 decision and are incorporated herein by
reference.
By decision dated May 15, 2014, OWCP denied appellant’s claim, finding that he failed to
submit sufficient medical evidence in support of his claim that he sustained a neck or lower back
injury in the performance of duty on October 8, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, 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.4 These are essential elements of each and

3

Docket No. 14-94 (issued April 18, 2014).

4

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

3

every compensation claim regardless of whether the claim is predicated upon a traumatic injury
or an occupational disease.5
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 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
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, 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
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence, a causal relationship between his claimed lower back and neck conditions and
his federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.7
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed neck and lower back conditions to the
factors of his employment he alleges caused the progression of his condition. For this reason, he
has not discharged his burden of proof to establish his claim that these conditions were sustained
as an occupational disease in the performance of duty.
Dr. Lattuga’s January 16, 2012 report noted appellant’s complaints of neck and upper and
lower extremity pain and presented diagnoses of cervical spine sprain, radiculopathy, and
herniated nucleus pulposus and only generally attributed these conditions to employment factors.
He advised that appellant had been severely symptomatic since his January 28, 2011 accident
and rated his pain as an eight on a scale of 1 to 10. Dr. Lattuga related that appellant had daily,
constant, and persistent complaints of neck, back, arm, and leg pain with upper and lower
extremity radiation and associated numbness, tingling, and dysesthesias. Appellant asserted that
5

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

6

Id.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

the pain was aggravated by daily activities such as lifting, carrying, bending, standing/sitting for
prolonged periods of time, and ascending/descending stairs.
Dr. Lattuga’s report did not provide a probative, rationalized medical opinion that the
claimed conditions or disability were causally related to employment factors. His opinion on
causal relationship is of limited probative value as it does not contain any medical rationale as to
how or why appellant’s claimed neck and lower back conditions were currently affected by or
related to factors of employment.8 Dr. Lattuga did not sufficiently describe appellant’s job duties
or explain the medical process through which such duties would have been sufficient to cause the
claimed conditions. His opinion is of limited probative value as it does not contain any medical
rationale explaining how appellant’s job duties physiologically caused the diagnosed neck and
lower back conditions over a period of exposure to those duties. Dr. Lattuga’s January 16, 2012
report thus did not constitute adequate medical evidence to establish that appellant’s claimed
neck and lower back conditions were causally related to his employment.
OWCP advised appellant of the evidence required to establish his claim. However,
appellant failed to submit such evidence. Consequently, he has not met his burden of proof to
establish that his claimed neck and lower back conditions were causally related to his
employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that his
claimed neck and lower back conditions were sustained in the performance of duty.

8

William C. Thomas, 45 ECAB 591 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2015
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1912
Issued: October 19, 2020

Case Submitted on the Record

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

JURISDICTION
On September 16, 2019 appellant filed a timely appeal from a March 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the issuance of
an OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 18, 2019, the date of OWCP’s last decision was Sunday,
September 15, 2019. If the last date to file an appeal falls on a Saturday, Sunday, or Federal holiday, the 180-day
period runs until the close of the next business day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the
Board on Monday, September 16, 2019, was therefore timely filed.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective September 24, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On May 3, 2016 appellant, then a 60-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome causally related
to factors of her federal employment, including handling, sorting, and lifting mail as well as cutting
sacks and trays. On August 1, 2016 OWCP accepted her claim for bilateral carpal tunnel
syndrome.
In notes dated August 9 and 15, 2016, appellant’s attending physician, Dr. Daniel Dare, a
Board-certified orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome, osteoarthritis of
the acromioclavicular (AC) joint on the left, osteoarthritis of the glenohumeral joint on the left,
and partial thickness rotator cuff tear on the left. On September 6, 2016 appellant underwent a
right carpal tunnel surgical release. On October 17, 2016 Dr. Dare noted that appellant had
undergone a left carpal tunnel release in 2009. On October 16, 2017 he performed a repeat left
carpal tunnel surgical release.
On February 8, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), and
a list of questions to Dr. Byron Thomas Jeffcoat, an orthopedic surgeon, for a second opinion
evaluation. The SOAF did not include appellant’s left shoulder conditions.
On February 26, 2018, in response to OWCP’s question of when appellant could return to
work, Dr. Dare reported that he had not examined appellant since November 27, 2017. On
March 12, 2018 he examined appellant and noted that she reported good range of motion of her
wrists, but some pain in her right hand and some numbness in her left hand in the ulnar nerve
distribution. Dr. Dare continued to diagnose osteoarthritis of the left AC joint and left
glenohumeral joint as well as partial thickness rotator cuff tear on the left. He released appellant
from his care. Dr. Dare opined that she had five percent permanent impairment of each of her
upper extremities. He completed a work capacity evaluation (Form OWCP-5c) and indicated that
appellant could perform repetitive movements of her wrists for four hours a day. Dr. Dare further
restricted her pushing and pulling to 50 pounds and her lifting to 30 pounds. He indicated that she
could perform sedentary, light, or medium level work.
In his March 14, 2018 report, Dr. Jeffcoat described appellant’s history of injury and
medical history and noted that her hand movement and pain was improved following her surgeries.
On physical examination he noted that appellant had numbness in her left fourth and fifth digits.
On the right, appellant described her right thumb, index, and fifth fingers as “different,” but
without numbness. Dr. Jeffcoat found that this was not a normal nerve dermatome. He found
negative Phalen’s test and Tinel’s sign bilaterally. Dr. Jeffcoat also reported no wrist atrophy. He
diagnosed bilateral carpal tunnel syndrome and noted that appellant’s condition had resolved
secondary to her three carpal tunnel releases. Dr. Jeffcoat found that she had reached maximum
medical improvement (MMI). He opined that appellant could return to her date-of-injury position

2

as a mail handler, but questioned whether the 70-pound lifting requirement was appropriate for
appellant. Dr. Jeffcoat also indicated that her duties may be varied and not necessarily totally
repetitive in nature. He completed a Form OWCP-5c and limited the repetitive movements of
appellant’s wrist to four hours a day, limited her lifting to 50 pounds and 20 pounds frequently for
four hours a day. Dr. Jeffcoat also indicated that she was limited in squatting.
On April 4, 2018 Dr. Jeffcoat completed a supplemental report and indicated that he limited
squatting in error on his March 14, 2018 Form OWCP-5. He further reviewed Dr. Dare’s work
restrictions and agreed with his comments. Dr. Jeffcoat provided a corrected Form OWCP-5c
limiting repetitive movements of the wrists to four hours a day. He also limited pushing to 45
pounds, pulling to 30 pounds, and lifting to 20 pounds. Dr. Jeffcoat explained that he was limiting
repetitive movements of the wrists as appellant had undergone three carpal tunnel releases.
On May 22, 2018 the employing establishment offered appellant a full-time modified-duty
mail handler position, which required her to work flats in the automated flat sorting machine
(AFSM) 100 operation for four hours a day. The physical requirements included repetitive
movements of the wrists up to four hours a day, pushing up to 45 pounds for eight hours a day,
pulling up to 30 pounds for eight hours a day, and lifting up to 20 pounds for eight hours a day.
On May 31, 2018 appellant refused this position citing medical limitations, restrictions, and
conditions, as well as due to repetitive and heavy workloads.
Appellant retired from federal service, effective June 30, 2018.
In a July 19, 2018 letter, OWCP informed appellant that the offered modified mail handler
position was suitable work and comported with the physical restrictions of Dr. Dare. It noted that
the position was still available and afforded her 30 days to accept the position and report to duty.
OWCP further noted that, if appellant failed to accept the position, she had 30 days to provide a
written explanation. It further noted that retirement was not a valid reason for refusing a suitable
work position. OWCP advised appellant that at the end of the 30-day period, if her reasons for
refusing the suitable work position were not considered justified, her right to wage-loss
compensation and schedule award benefits would be terminated.
On August 23, 2018 appellant requested additional time to submit medical evidence
supporting her refusal of the suitable work position. She provided an August 16, 2018 letter from
Dr. Dare’s office indicating that he was out of the office until September 5, 2018.
By decision dated September 24, 2018, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective that date, in accordance with
5 U.S.C. § 8106(c)(2) due to her refusal of suitable work. It noted that it had not received a
response to the 30-day notice, that appellant did not accept the position, and that she did not return
to work within the 30 days allotted.
On October 12, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. OWCP subsequently received additional evidence
including an October 11, 2018 letter, wherein appellant noted that she did not report to work in the
modified mail handler position as she chose to retire instead. Appellant confirmed that she had

3

retired on June 30, 2018. She alleged that she was advised that she would receive a schedule award
from OWCP.
In a September 24, 2018 report, Dr. Dare found that appellant could not return to her dateof-injury position, but that she could return to work eight hours a day with restrictions. Those
restrictions included: four hours of repetitive motion of the wrists, and eight hours of pushing,
pulling, and lifting with a 50-pound weight restriction. Dr. Dare found that appellant could
perform sedentary, light, and medium-duty work, but not heavy work. He found that she had
reached MMI and found that she had five percent permanent impairment of each of her upper
extremities.
On October 31, 2018 appellant filed a schedule award claim (Form CA-7).
On November 14, 2018 OWCP proposed to terminate appellant’s medical benefits as a
result of her accepted bilateral carpal tunnel syndrome. It afforded her 30 days to submit additional
evidence or argument in writing if she disagreed with the proposed termination.
In a November 14, 2018 letter, OWCP informed appellant that she was not entitled to a
schedule award due to the September 24, 2018 decision terminating her wage-loss compensation
and schedule award benefits due to her refusal of a suitable work position.
During the February 13, 2019 oral hearing, appellant testified that the offered modified
position was repetitious and that she feared that her accepted condition would be aggravated by
her work. She asserted that she would have been required to push 340-pound containers of mail.
In conclusion, appellant asserted that she chose to retire because she believed that the offered
position exceeded her doctor’s restrictions.
By decision dated March 18, 2019, OWCP’s hearing representative affirmed the
September 24, 2018 termination decision, finding that the offered position constituted suitable
work, that the reasons appellant offered for refusing the position were not acceptable, and that
OWCP followed proper procedures in terminating appellant’s wage-loss compensation and
entitlement to schedule award benefits.
LEGAL PRECEDENT
Section 8106(c)(2) provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 To justify such a termination, OWCP must
show that the work offered was suitable.5

3

5 U.S.C. § 8106(c)(2); S.B., Docket No. 17-1797 (issued April 11, 2018); Geraldine Foster, 54 ECAB 435 (2003).

4

S.B., id.; Henry P. Gilmore, 46 ECAB 709 (1995).

5

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

4

With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept suitable
work, and allow him or her an opportunity to provide reasons for refusing the offered position.6 If
appellant presents reasons for refusing the offered position, OWCP must inform the employee if
it finds the reasons inadequate to justify the refusal of the offered position and afford him or her a
final opportunity to accept the position.7
Section 10.516 of FECA’s implementing regulations provides that OWCP shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter OWCP’s finding of suitability.8 If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered work
without penalty. At that point in time, OWCP’s notification need not state the reasons for finding
that the employee’s reasons are not acceptable.9 After providing the 30- and 15-day notices,
OWCP will terminate the employee’s entitlement to further wage-loss compensation and schedule
award benefits.10
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.11
All medical conditions, whether work related or not, must be considered in assessing the suitability
of an offered position.12
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective September 24, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome due to factors of
her federal employment. Appellant’s attending physician, Dr. Dare, also diagnosed left shoulder
conditions including osteoarthritis of the AC and glenohumeral joints as well as partial rotator cuff
tear.

6

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

7

Id.

8

20 C.F.R. § 10.516; S.B., id.; C.C., Docket No. 15-1778 (issued August 16, 2016).

9

Id.

10

Id. at § 10.517.

11

A.F., Docket No. 19-0453 (issued July 6, 2020); Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46
ECAB 1002 (1995).
12

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

5

The employing establishment offered appellant a modified-duty position consistent with
Dr. Dare’s March 12, 2018 report on May 22, 2018. It is unclear from the record whether Dr. Dare
included restrictions for appellant’s left shoulder conditions or only listed restrictions due to her
accepted bilateral carpal tunnel syndrome. OWCP did not include the left shoulder conditions in
the SOAF referred to Dr. Jeffcoat, the second opinion physician. Therefore, there is no evidence
that the physicians who examined appellant considered her additional left shoulder conditions
when formulating her work restrictions, or that OWCP considered these conditions in finding that
the offered position was suitable work. As the medical opinion evidence failed to consider her left
shoulder conditions, these reports are insufficient for OWCP to base its suitability determination.13
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 left shoulder conditions
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 deficient in that it did not consider appellant’s left shoulder
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 thus finds that OWCP has not met its burden of proof and thus improperly terminated
her wage-loss compensation and entitlement to a schedule award under section 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective September 24, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

13

A.F., Docket No. 19-0453 (issued July 6, 2020).

14

Id.; supra note 12; S.Y., Docket No. 17-1032 (issued November 21, 2017).

15

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

16

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 19, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7