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

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

Docket No. 13-1018
Issued: June 19, 2014

Case Submitted on the Record

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

JURISDICTION
On March 26, 2013 appellant, through her attorney, filed a timely appeal from a
February 25, 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 case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective July 1, 2012 as she had no employment-related disability.
FACTUAL HISTORY
On March 10, 2003 appellant, then a 44-year-old letter carrier, injured her left knee and
low back in a fall on ice. OWCP adjudicated the claim under file number xxxxxx506 and
accepted it for sciatica and left knee strain. On September 24, 2003 appellant had an authorized
1

5 U.S.C. §§ 8101-8193.

lumbar rhizotomy at L3 through S1. The claim was accepted for an aggravation of spinal
stenosis. Appellant had lumbar laminectomies at L4-5 on July 15, 2004 and August 25, 2005. In
April 2006, the claim was accepted for a herniated disc with reherniation at L4-5, lumbar
radiculopathy at L4-5 and aggravation of mild degenerative disc disease at L4-5.
Appellant returned to limited duty after each surgery. On March 27, 2006 she accepted a
modified position with duties of two hours each of casing a route, assisting answering
telephones, issuing notices for parcels and accountables, delivering express mail as needed and
working the Dutch door and delivering late priorities. The physical requirements were that
appellant could drive up to eight hours; sit and stand for one hour continuous, 15 minutes
intermittent; no pushing, pulling, repetitive bending or twisting; and one hour of continuous
simple grasping, fine manipulation and reaching above the shoulder, with a five-pound weight
restriction.
On September 9, 2006 appellant injured her neck when her postal vehicle was rear-ended.
She did not stop work. OWCP adjudicated the claim under file number xxxxxx053 and accepted
appellant’s claim for whiplash/sprain of neck, degeneration of cervical intervertebral disc, C6
radiculopathy and thoracic or lumbosacral neuritis or radiculitis.2
At a March 22, 2007 hearing, appellant testified that she had worked modified duty for
years. At the present time, her duties included driving a route where she did not exit the
vehicle.3 In July 2007, the employing establishment offered appellant a permanent modified
assignment. The restrictions were based on a February 13, 2006 functional capacity evaluation
(FCE) and included clearing accountable mail, sorting undeliverable and Postal Automated
Redirection System mail and assisting with period mailings and general office duties.4
On June 17, 2008 Dr. Charles H. Bill, a Board-certified neurosurgeon, performed a
discectomy and arthrodesis at C3-4 and C4-5. Appellant did not return to work after that date.
On March 17, 2009 Dr. Bill performed a surgical procedure on the lumbar spine. In
September 2009, appellant came under the care of Dr. Edmond J. Ducommun, a Board-certified
physiatrist. He diagnosed chronic pain and continued submitting status reports.
In a November 19, 2009 report, Dr. Michael J. Geoghegan, an OWCP referral physician
and Board-certified orthopedic surgeon, advised that appellant continued to have evidence of
sciatica involving the left lower extremity, degenerative disc disease of the lumbar spine,
cervical strain superimposed on degenerative disc disease and C6 radiculopathy. He noted that
she could not return to her letter carrier duties but could work modified duty with no twisting,
bending, stooping, pushing, pulling or lifting and one hour of sitting, walking and standing daily.

2

Claim file numbers xxxxxx053 and xxxxxx506 were later doubled.

3

The hearing was held regarding an April 12, 2006 decision denying wage-loss compensation for intermittent
periods between July 18 and August 22, 2003. In a July 26, 2007 decision, an OWCP hearing representative
reversed the denial of wage-loss compensation.
4

The FCE demonstrated that appellant could perform sedentary to light work.

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In reports dated March 9 and September 7, 2010, Michael Ezzo, Ph.D, a licensed clinical
psychologist, noted that since August 26, 2008 he had treated appellant on a weekly basis for
chronic pain and depression. He diagnosed major depressive disorder, adjustment disorder with
depressed mood and cervical injury related to her work injuries.
In a September 18, 2010 report, Dr. Ducommun advised that, based on a review of video
surveillance, appellant’s abilities were much greater than she indicated to him, stating that he
believed she exaggerated her symptoms and limitations. He found that appellant could work full
time with no restrictions.
On October 27, 2010 the employer’s Office of Inspector General (OIG) provided an
investigation report with supporting documentation5 including two digital versatile discs
(DVD).6 The report advised that the OIG investigation began in November 2009 and concluded
in October 2010. It found that appellant engaged in physical activities that exceeded her
disability restrictions between November 2009 and July 2010, based on her activities as a
volunteer concessions coordinator with the Holt High School Athletic Boosters. The
surveillance recordings showed her loading and unloading large volumes of food items which
required bending over at the waist, squatting, twisting, turning and placing supplies on a shelf
above her head. A copy of an edited DVD was shown to Dr. Ducommun and appellant. In an
interview memorandum, signed by Dr. Ducommun on September 20, 2010,7 the physician,
whose attorney was present for the interview, advised that he had been appellant’s treating
physician since September 29, 2009. He reviewed his notes from appellant’s appointment and
stated that she had appeared to be restless and stated that he agreed with the restrictions set forth
by Dr. Geoghegan. The agents informed Dr. Ducommun that appellant had been video recorded
performing numerous activities as a concessions coordinator and he was provided an edited
DVD to review. Dr. Ducommun commented that he did not see any pain behavior or guarding,
that he would not advise appellant to engage in activities that were beyond what he knew her
level of ability, that he would not have expected her to do the type of activity demonstrated and
that it was grossly inconsistent with the way she presented herself to him.

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The documentation included a June 23, 2013 medical assessment completed by appellant in which she indicated
that she had not recovered from the work injuries and could only do little things and could no longer garden due to
severe back, neck, left leg, arm and hand pain. Appellant indicated that she could only lift zero to five pounds and
could only sit and stand for one hour, and had significant difficulty running errands, shopping, driving, getting in
and out of a vehicle, walking, going out to eat and drink, getting in and out of bed, attending social functions,
bending over to pick up items, standing from a sitting position and that she could not exercise, climb stairs or a
ladder or perform household chores or yard work. Also submitted were OWCP 1032 forms signed by her on
July 12, 2009 and June 23, 2010 in which she attested that she performed no volunteer work, documentation
regarding her involvement with Holt High School Boosters Club, a summary of purchases made by her at Sam’s
Club and United Wholesale Grocery and an August 19, 2008 letter from OWCP to appellant that she signed on
August 28, 2008, outlining her entitlement to monetary compensation and responsibilities as a compensationer.
6

The first DVD was a 14-minute 29-second edited video of appellant’s activities. The second was a 28-minute
38-second edited video with an overlay of a June 23, 2010 interview with appellant and her physical activities
displayed in the background.
7

Agents from both the employer’s OIG and the Department of Labor OIG were present.

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The OIG agents interviewed appellant on October 10, 2010. A union representative was
present. Appellant was questioned about her injuries, condition and treatment. She stated that
her only volunteer work was that she gave communion at church a few times a year, but when
questioned further she admitted that she volunteered as a booster coordinator at schools but
performed no physical activity; she just placed telephone orders for items that were delivered.
Appellant then admitted that she purchased supplies for the boosters and sometimes delivered the
supplies to the school without help. She was informed that she was under investigation and had
been videotaped and that Dr. Ducommun saw the video surveillance highlights. Appellant was
shown the 14-minute 29-second edited DVD. When questioned, she stated that she could only
drive short distances but was shown taped evidence of her driving on trips of approximately 57
and 101 miles.
By report dated November 22, 2010, Dr. Ducommun advised that appellant should seek
the care of another physician.
In December 2010, OWCP referred appellant to Dr. Dan Guyer, a Board-certified
psychiatrist, for a second opinion. In a January 5, 2011 report, Dr. Guyer noted the history of
injury, reviewed the statement of accepted facts, the medical record and videotapes. He
diagnosed adjustment disorder with mixed emotional features, possible depression and chronic
pain with neck and back issues. Dr. Guyer stated that the apparent injury and impairments, if
accepted as reality, had a causal relationship to appellant’s current mood disturbance and there
appeared to be no history of depression or psychiatric difficulties before the work injury. He did
not believe that her depressive symptomatology interfered with her ability to return to work and
she was of the opinion that it did not prevent her from returning to work. The chronic pain,
however, interfered with appellant’s ability to work on a consistent basis and impairments might
also be caused by her use of pain medication. Dr. Guyer recommended therapy to address
acceptance of her current limitations and the continuation of medications to address depressive
symptomatology. He concluded that, if it was accepted that the residual pain and impairments
from appellant’s injuries were permanent, then the need to deal with these acceptance issues was
going to be a long-standing issue.
By report dated February 18, 2011, Dr. Benjamin J. Bruinsma, an attending Boardcertified physiatrist, noted the history of injury and appellant’s complaints of neck and low back
discomfort. On examination, he noted decreased low back and neck motion with discomfort of
the midline low back and cervical paraspinals. Dr. Bruinsma diagnosed status post fusion C3-5
with cervical spondylosis/facet and myofascial pain and lumbar fusion at L4-5 with discogenic
pain and facet-mediated pain. He recommended an FCE. On March 15, 2011 OWCP informed
appellant that she could change her treating physician to Dr. Bruinsma. The record indicates that
OIG showed a surveillance video to Dr. Bruinsma on March 30, 2011.
OWCP also referred appellant to Dr. Jeffrey Lawley, a Board-certified osteopath
practicing orthopedic surgery. In a February 24, 2011 report, Dr. Lawley described the work
injury, reviewed the medical record and noted appellant’s complaint of intermittent low back and
neck pain. He provided examination findings and diagnosed status post lumbar decompressive
laminectomy with fusion and instrumentation, without neurological deficit and status post fusion
at C3-5, with instrumentation, without neurological deficit. Dr. Lawley’s examination revealed
that appellant had had an excellent postoperative recovery from the lumbar spine surgeries and

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neck fusion, noting that neck examination revealed full active and painless range of motion and
an intact neurological status in both upper limbs, with a negative Spurling’s maneuver.
Appellant’s lower back examination revealed that she had full range of motion, negative straight
leg raising and a normal neurological examination.
Dr. Lawley advised that, given that appellant had multiple surgeries on her lower back
and a neck fusion, she should be allowed to work with prophylactic permanent restrictions of
avoiding repetitive bending and twisting, with lifting limited to no more than 25 pounds and
avoiding frequent head and neck movements and prolonged overhead work. He noted that she
seemed to have preexisting degenerative changes to both her neck and lower back which were at
least aggravated by work. Dr. Lawley found that appellant could not return to regular letter
carrier duties, based on her physical restrictions and that while she did not currently have
symptoms of either cervical or lumbar radiculopathy, if she returned to regular letter carrier
duties, she would likely develop increased symptoms. In a March 14, 2011 supplemental report,
he advised that he had watched a video surveillance tape which showed appellant from
December 11, 2009 to June 23, 2010. On the tape, appellant was observed bending, lifting,
pushing, pulling a heavy steel door, handling heavy boxes, and walking without difficulty.
Based on the videotape results, she did not require any treatment or need any physical limitations
for her neck or back and could return to her former letter carrier job without restrictions.
Dr. Guyer provided a March 29, 2011 supplemental report in which he reiterated that
there was a clear connection between appellant’s psychiatric diagnosis of adjustment disorder
with mixed emotional features and the March 10, 2003 and September 9, 2006 employment
injuries, due to the chronic pain that she suffered after the injuries.
In an April 11, 2011 treatment note, Dr. Bruinsma noted reviewing a videotape that
showed appellant lifting cases of water. He reiterated that she had discomfort with all low back
motion and with cervical palpation. Dr. Bruinsma again recommended an FCE. An
occupational therapist performed an FCE on May 6, 2011. Dr. Bruinsma noted that appellant
provided a job description for letter carrier duties. The FCE demonstrated that appellant could
not squat and could occasionally bend, crouch, kneel, climb stairs and reach overhead, could
frequently reach forward and side-to-side, could occasionally push and pull 24 to 25 pounds,
occasionally lift 18 pounds to the waist and 13 pounds to the head, could frequently push and
pull 10 pounds and could not frequently lift or constantly push, pull or lift. On May 13, 2011
Dr. Bruinsma reviewed the FCE and opined that appellant could not perform letter carrier duties.
On September 6, 2011 he dismissed her from his care due to dishonesty about whether she
received narcotic medication from other medical providers.
OWCP determined that a conflict in medical opinion arose between Dr. Bruinsma and
Dr. Lawley regarding appellant’s work capacity. It referred appellant to Dr. Zachary J. Endress,
Jr., a Board-certified orthopedic surgeon, for an impartial evaluation. In an October 27, 2011
report, Dr. Endress noted the history of work injuries, appellant’s medical and surgical history
and his review of the medical records and surveillance DVDs. Examination demonstrated full
neck range of motion with intact motor, sensory and deep tendon reflexes of the upper
extremities. No spasm was noted over the lumbar spine but there was tenderness to palpation at
the lumbosacral junction. Straight leg raising, when tested directly, was positive at about 45
degrees on the left and about 60 degrees on the right, but with appellant seated on the edge of the

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examining table, Dr. Endress was able to fully extend both knee joints with the hips flexed at 90
degrees. There was no complaint of pain and there was no attempt to withdraw from that
position. Dr. Endress’ impression was of a large psychological overlay and symptom
magnification, noting that it did not seem reasonable that appellant had received no benefit from
any of the surgical procedures. He found no apparent reasons or objective findings to explain
her continued subjective complaints of pain. Dr. Endress advised that appellant could return to
work as a letter carrier with a 20-pound lifting limit and no repetitive bending at the waist
because of the prior lumbar spine fusion. On an attached work capacity evaluation he indicated
that she could work eight hours a day with a lifting limit of 20 pounds due to a past history of
neck and low back surgery and that she should have 15-minute breaks twice daily.
In a November 14, 2011 emergency department report, Dr. John Dery, Board-certified in
emergency medicine, noted seeing appellant for acute neck pain. He diagnosed myofascial
strain, cervical strain and acute somatic dysfunction.
Dr. Endress, in a February 20, 2012 supplemental report, indicated that the restrictions he
recommended were based on an attempt to prevent further disc herniations in the cervical and
lumbar spines and were not based on any observed functional deficits.
A March 7, 2012 cervical spine study demonstrated postoperative and degenerative
changes. On March 20, 2012 Dr. Marcy Schlinger, a Board-certified physiatrist, advised that
appellant had severe neck and back pain. She diagnosed history of traumatic work-related
injuries of March 10, 2003 and September 9, 2006, history of cervical radiculopathy with
increased left hand weakness, chronic musculoskeletal pain, depression, poor restorative sleep,
vocational restrictions and weight loss with ongoing gastrointestinal evaluation.
On April 12, 2012 OWCP accepted an adjustment disorder with depressed mood.
On May 17, 2012 OWCP proposed to terminate appellant’s compensation for wage loss
on the grounds that the medical evidence of record demonstrated that she was no longer disabled
from work.
Appellant, through her attorney, disagreed with the proposed termination and submitted a
March 26, 2012 electrodiagnostic study of the upper extremities that was interpreted as abnormal
with evidence of a mild, sensory, demyelinating median neuropathy at the left wrist and no
evidence of left radial or ulnar neuropathy, left cervical radiculopathy, brachial plexopathy or
generalized peripheral polyneuropathy. She also submitted unsigned pain management notes
dated October 27, 2011 to June 14, 2012.8
In a June 25, 2012 decision, OWCP terminated appellant’s wage-loss compensation,
effective July 1, 2012. It found that the weight of the evidence rested with the opinion of
Dr. Endress who performed an impartial evaluation. OWCP did not terminate her medical
benefits.

8

These were from the office of Dr. Richard S. Ferro, a Board-certified osteopath practicing anesthesiology, and
from Dr. Ezzo.

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Counsel timely requested a hearing and submitted reports dated May 29 and
August 14, 2012 from Dr. Schlinger, who noted appellant’s complaints of chronic neck and back
pain. Dr. Schlinger stated that appellant had retired and should be able to work part time in a
sedentary or light-duty position. On July 1, 2012 Dr. Ferro performed a lumbar epidural
injection. Dr. Ezzo conducted psychological testing on August 29, 2012. He diagnosed pain
disorder with psychological factors and adjustment disorder. An October 29, 2012 cervical spine
computerized tomography (CT) scan showed surgical changes and posterior spurring. A lumbar
CT of that day showed surgical changes at L4-5 and moderate bulging at L5-S1. On
December 6, 2012 Dr. Ferro noted seeing appellant. He diagnosed postcervical and lumbar
laminectomy syndrome with intractable radiculopathies. Appellant also submitted unsigned pain
management notes dated June 25 to October 29, 2012.9 On December 10, 2012 counsel F.S.,10
for consideration.
At the December 11, 2012 hearing, counsel argued that F.S. applies to her case.
Appellant testified that she was interviewed by the OIG at the employing establishment in
September 2010, and that she did not get to see the video that Dr. Ducommun reviewed and had
never seen an unedited video. She indicated that the OIG had contacted other doctors including
Dr. Ezzo. Appellant discussed the May 2011 FCE, stated that she continued to have pain and
that Dr. Ezzo and Dr. Schlinger were her current doctors. After the hearing, she submitted
additional evidence including a March 15, 2012 procedure note from Dr. Ferro for an epidural
injection and unsigned pain management treatment notes dated December 17, 2012 to
February 6, 2013.11
In correspondence dated January 7, 2013, Lee Ann J. Poupard, an employing
establishment manager, indicated that on November 8, 2010 appellant, along with several union
representatives, was given an opportunity to view the unedited surveillance video. She
submitted evidence previously of record and a November 8, 2010 memorandum of activity
documenting that OIG special agents and two union representatives reviewed unedited
surveillance video of appellant’s activities, at the request of the union representatives. The
videos totaled 20 to 22 hours and, at the request of union personnel, some of the video was fastforwarded. OIG indicated that the unedited video was available upon request.
By decision dated February 25, 2013, an OWCP hearing representative affirmed the
June 25, 2012 decision. She found that F.S. was not dispositive because the factual
circumstances differed from appellant’s claim. The hearing representative found that the weight
of the medical evidence rested with the opinion of Dr. Endress, the impartial examiner.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
9

Id.

10

Docket No. 11-863 (issued September 26, 2013).

11

Supra note 8.

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without establishing that the disability ceased or that it was no longer related to the
employment.12 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.15
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
benefits effective July 1, 2012. On appeal, appellant asserted that the employing establishment
OIG coerced her attending physician to change his diagnosis and restrictions, which
impermissibly intermingled administrative and investigative processes, contrary to Board
precedent in F.S.16 The Board finds that F.S. is not applicable in this case. In F.S., OWCP
solely relied on an attending physician’s report, rendered after he was shown a surveillance
video. In the case at hand, it did not solely rely on the opinion of Dr. Ducommun, the attending
physician, in terminating wage-loss compensation. Rather, OWCP found a conflict in medical
opinion between Dr. Bruinsma, an attending physician and Dr. Lawley, an OWCP referral
physician, regarding appellant’s residuals work capacity. It properly referred appellant to
Dr. Endress for an impartial evaluation.
Counsel also asserts that appellant did not have notice that Dr. Ducummon was reviewing
video surveillance until his review and cites the case of J.M.17 In J.M., the Board affirmed a
termination of benefits based on the opinion of an impartial specialist who reviewed a
surveillance video. It noted that, while OWCP had a responsibility to make the claimant aware
that it was providing video evidence to a medical expert, any delay in providing the materials to
appellant was not prejudicial as opinion of the impartial specialist was clearly based on more
than a review of the video and appellant did not challenge that she was the person being taped
performing activities.18 In this case, appellant submitted no evidence to contradict the activities
shown on the video surveillance. She was shown a copy of the edited video shortly after it was
12

Jaja K. Asaramo, 55 ECAB 200 (2004).

13

Id.

14

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

15

Manuel Gill, 52 ECAB 282 (2001).

16

Supra note 10.

17

58 ECAB 478 (2007).

18

Id.

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shown to Dr. Ducummon and well before her wage-loss benefits were terminated. While the
record is unclear as to whether appellant viewed an unedited version, her union representatives
had the opportunity to view the unedited surveillance tape. As noted in F.S., investigative
practices on an employer’s OIG are not within the jurisdiction of the Board, and while there may
be room for improvement with regards to the handling of physician contacts, that responsibility
does not lie with the Board.19 Furthermore, OWCP informed appellant that it was providing the
surveillance DVDs to OWCP referral physicians.
The record indicates that, at the time appellant stopped work, she was performing
modified duties and not regular letter carrier duties. Appellant testified at a March 22, 2007
hearing that she had been working modified duty since 2003 and that, when injured in 2006, she
was making deliveries in which she did not have to leave the postal vehicle. A modified
assignment, accepted by appellant on March 27, 2006 indicates that her duties included casing a
route, assisting answering telephones, issuing notices, delivering express mail as needed,
working the Dutch door and delivering late priorities. Physical requirements were that appellant
could drive up to eight hours; sit and stand for one hour continuous, 15 minutes intermittent; no
pushing, pulling, repetitive bending or twisting; and one hour of continuous simple grasping, fine
manipulation and reaching above the shoulder, with a five-pound weight restriction.
As noted, OWCP properly referred appellant to Dr. Endress, Board-certified in
orthopedic surgery, for an impartial evaluation regarding her ability to work. In an
October 27, 2011 report, Dr. Endress noted the history of employment injuries, appellant’s
medical and surgical history and his review of medical records and surveillance DVDs. He
described examination findings and opined that there was a large psychological overlay and
symptom magnification, noting that it did not seem reasonable that she had received no benefit
from any of the surgical procedures that she had. Dr. Endress indicated that there were no
apparent reasons or objective findings to explain appellant’s continued subjective complaints of
pain. He advised that she could return to work as a letter carrier with restriction with a 20-pound
lifting limit and no repetitive bending at the waist due to a past history of neck and low back
surgery and that she should have 15-minute breaks twice daily. In a February 20, 2012
supplemental report, Dr. Endress indicated that the restrictions he recommended were based on
an attempt to prevent further disc herniations in the cervical and lumbar spines and were not
based on any observed functional deficits.
The Board finds that Dr. Endress provided a comprehensive, well-rationalized opinion in
which he clearly advised that appellant could perform letter carrier duties with a prophylactic
restriction of a 20-pound lifting limit and no repetitive bending at the waist because of the prior
cervical and lumbar surgery. The Board has held that fear of future injury is not compensable.20
While Dr. Endress viewed the surveillance video, his opinion was clearly based on more than his
review of this. His opinion is therefore entitled to the special weight accorded an impartial

19

Supra note 10.

20

See I.J., 59 ECAB 408 (2008).

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examiner and constitutes the weight of the medical evidence regarding appellant’s orthopedic
conditions.21
The additional medical evidence appellant submitted is insufficient to overcome the
weight accorded Dr. Endress as an impartial specialist regarding whether appellant had
employment-related disability. Neither the diagnostic studies, the November 14, 2011
emergency department report, nor the reports from Dr. Ferro, discuss appellant’s work abilities.
The Board has long held that a medical report that does not address appellant’s degree of
disability due to his accepted employment injury is of diminished probative value and
insufficient to overcome the weight accorded to the report of the impartial medical examiner or
to create a new conflict.22 As to the March 26, 2012 electrodiagnostic study, this demonstrated
median neuropathy at the left wrist and no evidence of left radial or ulnar neuropathy, left
cervical radiculopathy or brachial plexopathy or generalized peripheral polyneuropathy. Median
neuropathy has not been accepted as employment related. This study is therefore not probative
regarding the accepted conditions in this case. Moreover, it too has no opinion regarding the
degree of appellant’s disability.23 While Dr. Schlinger advised that appellant should be able to
work part time in a sedentary or light-duty position, she did not provide any explanation other
than appellant complained of chronic neck and back pain. Medical conclusions unsupported by
rationale are of diminished probative value and are insufficient to establish causal relation.24
Lastly, the FCE done on May 6, 2011 showed that appellant could perform the duties of the
modified position she was performing when she stopped work in 2008.
The Board therefore concludes that Dr. Endress’ opinion that appellant could return to
letter carrier duties is entitled to the special weight and the additional medical evidence
submitted is insufficient to overcome the weight accorded his opinion or to create a new conflict
regarding appellant’s orthopedic conditions.
As noted, on April 12, 2012 OWCP accepted adjustment disorder with depressed mood.
In his second opinion evaluation dated January 5, 2011, Dr. Guyer diagnosed adjustment
disorder with mixed emotional features, possible depression and chronic pain with neck and back
issues. He advised that he did not believe that appellant’s emotional condition was interfering
with her return to work and that she agreed with this conclusion. Dr. Ezzo conducted
psychological testing on August 29, 2012 and diagnosed pain disorder with psychological factors
and adjustment disorder but did not discuss appellant’s work abilities. There is, therefore, no
medical evidence indicating that appellant is disabled from work due to the accepted emotional
condition.
OWCP, therefore, properly terminated appellant’s compensation benefits effective
July 1, 2012.

21

See Sharyn D. Bannick, 54 ECAB 537 (2003).

22

See supra note 12.

23

Id.

24

Albert C. Brown, 52 ECAB 152 (2000).

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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 OWCP met its burden of proof to terminate appellant’s monetary
compensation benefits effective July 1, 2012 on the grounds that she had no employment-related
disability after that date.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 09-919
Issued: December 7, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant, through counsel, filed a timely appeal from a
February 2, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office abused its discretion when it denied appellant’s request
for approval of orthopedic shoes and inserts.

FACTUAL HISTORY
This is the fifth appeal before the Board in this case. In the first appeal, the Board
affirmed the Office’s January 13, 2003 decision1 denying payment for orthopedic shoes in a
decision dated August 26, 1994.2 In the second appeal, the Board, in an October 1, 1998
decision, affirmed the Office’s October 11, 1995 decision, finding that the Office properly
reduced appellant’s monetary compensation to zero on the grounds that he failed to cooperate
with vocational rehabilitation efforts.3 On May 17, 2002 in appellant’s third appeal, the Board
found that the Office failed to meet its burden to terminate appellant’s compensation for his low
back strain after a period of eight weeks,4 and that the Office did not abuse its discretion in
denying appellant’s request for reimbursement of expenses for postage, envelope and travel to
the post office and mileage to physical therapy. The Board also found that appellant had not
established a consequential injury of a low back condition due to his accepted employmentrelated anterior ligament right knee tear and that the Office properly denied appellant’s request
for a merit review on this issue. On July 12, 2004 the Board, in the fourth appeal, affirmed the
Office’s October 2, 2003 decision which terminated appellant’s compensation for his low back
strain.5 The law and the facts as set forth in the Board’s decisions are incorporated by reference.6
On April 8, 2008 Dr. James P. Stannard, appellant’s treating Board-certified orthopedic
surgeon, prescribed orthopedic shoes with inserts. In a clinic note dated April 8, 2008, he noted
that appellant required new orthopedic shoes with inserts as a result of wear and tear on his old
shoes and inserts.
On April 15, 2008 the Office received an April 24, 2003 report from Dr. Stannard who
stated that he recommended that appellant purchase high-top orthopedic shoes and arch support
inserts “to help correct an imbalance that is attributing to the problems he has been having with
his knees.”

1

The Board affirmed the denial of authorization for the purchase of orthopedic shoes and inserts based upon
reports dated February 19 and May 22, 1992 by Dr. Frank J. Hatchett, Jr., an attending Board-certified orthopedic
surgeon. In the February 19, 1992 report, Dr. Hatchett indicated that he had prescribed orthopedic shoes and inserts
for appellant, “but do not know of any specific reason in which they are directly related to” appellant’s employment
injury. He noted that the shoes would “help decrease stress on the patient’s knees, but they are not directly related to
the injury.” Dr. Hatchett, in his May 22, 1992 report, stated that he had prescribed orthopedic shoes and inserts for
appellant’s bilateral pronation of his feet which was unrelated to his employment injury.
2

Docket No. 93-1353 (issued August 26, 1994).

3

Docket No. 96-1317 (issued October 1, 1998).

4

Docket No. 01-500 (issued May 17, 2002).

5

Docket No. 04-609 (issued July 12, 2004).

6

On July 6, 1982 appellant, then a 29-year-old public safety officer, filed a traumatic injury claim alleging that on
July 5, 1982 he sustained injuries to his upper back, both legs and right side of his neck when the van he was riding
was involved in a collision. The Office accepted the claim for cervical strain, right knee anterior ligament tear and
bilateral shin contusion, resolved. By letter dated April 6, 1992, it placed appellant on the periodic rolls for
temporary total disability.

2

On April 16, 2008 the Office advised Hanger Prosthetics and Orthotics and appellant that
it authorized the purchase of orthopedic shoes and inserts. However, on April 25, 2008 it
informed appellant and the company that the authorization was rescinded as the acceptance had
been in error. The Office recommended that appellant either pay for the expenses or file a claim
with his insurance company for payment.
In a letter dated July 3, 2008, appellant disagreed with the April 25, 2008 letter rescinding
approval of authorization for the purchase of orthopedic shoes and inserts.
By decision dated July 28, 2008, the Office denied authorization for the purchase of
orthopedic shoes and inserts on the grounds that the medical evidence was insufficient to
establish a causal relationship between the orthopedic shoes and inserts and the accepted injuries.
On August 1, 2008 appellant’s counsel disagreed with the July 28, 2008 decision and
requested a telephonic hearing before an Office hearing representative. A telephonic hearing
was held on December 8, 2008 at which appellant, his wife and counsel were present and
testimony was given by both appellant and his wife.
By decision dated February 2, 2009, the Office hearing representative affirmed the denial
of the authorization for the purchase of orthopedic shoes with inserts.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act7 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.8 In interpreting section 8103, the Board has
recognized that the Office has broad discretion in approving services provided under the Act.9
The only limitation on the Office’s authority is that of reasonableness.10 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.11
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8103; see R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008); Thomas W. Stevens, 50
ECAB 288 (1999).
9

A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009).

10

D.C., 58 ECAB ___ (Docket No. 06-2161, issued July 13, 2007); Mira R. Adams, 48 ECAB 504 (1997).

11

L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008); P.P., 58 ECAB ___ (Docket No. 07-1045,
issued September 5, 2007); Daniel J. Perea, 42 ECAB 214 (1990).

3

injury.12 This burden of proof includes providing supporting rationalized medical evidence.
Thus, in order to be authorized for the purchase of orthopedic shoes, appellant must submit
evidence to show that these are for a condition causally related to the employment injury and that
these were medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.13
ANALYSIS
The Office accepted the claim for cervical strain, right knee anterior ligament tear and
bilateral shin contusion, resolved. The Board in an August 26, 1994 decision affirmed the
Office’s denial of payment for orthopedic shoes. The question to be resolved is whether the
evidence submitted since the Board’s 1994 decision establishes that the Office abused its
discretion in denying appellant’s request for reimbursement for the purchase of orthopedic shoes
with inserts.
The relevant recent evidence includes an April 24, 2003 report and a clinic note and
prescription for orthopedic shoes and inserts dated April 8, 2008 from Dr. Stannard, appellant’s
treating Board-certified orthopedic surgeon. In his April 24, 2003 report, he stated that the
orthopedic shoes with inserts were necessary to correct appellant’s imbalance due to his knee
problems. In a clinic note dated April 8, 2008, Dr. Stannard noted that appellant required new
orthopedic shoes with inserts as a result of wear and tear on his old shoes and inserts. None of
his reports related why appellant’s accepted conditions of cervical strain, right knee anterior
ligament tear and bilateral shin contusion, resolved, would require orthopedic shoes with inserts.
Dr. Stannard has never explained why the orthopedic shoes with inserts are necessary to cure or
give relief from appellant’s accepted conditions of cervical strain, right knee anterior ligament
tear and bilateral shin contusion, resolved. A medical opinion not fortified by rationale is of
diminished probative value.14 Thus, Dr. Stannard’s report, clinic note and prescription are of
diminished probative value and insufficient to find abuse of discretion by the Office in denying
appellant’s request.
As discussed, the Office has the discretion to authorize medical services, appliances and
supplies pursuant to section 8103.15 The function of the Board on appeal is to determine whether
there has been an abuse of discretion. Generally, abuse of discretion is shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logical and probable deductions from known facts.16 The Board finds that the Office acted
within its discretion in denying appellant’s request for authorization for the purchase of
orthopedic shoes with inserts.

12

Cathy B. Mullin, 51 ECAB 331 (2000).

13

See R.L., supra note 8.

14

Mary E. Marshall, 56 ECAB 420 (2005).

15

See Joseph P. Hofmann, 57 ECAB 456 (2006).

16

See Lottie M. Williams, 56 ECAB 302 (2005).

4

CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for the purchase of orthopedic shoes with inserts.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2009 be affirmed.
Issued: December 7, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-811
Issued: February 2, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On February 11, 2011 appellant filed a timely appeal from August 18 and November 12,
2010 merit decisions of the Office of Workers’ Compensation Programs (OWCP) granting him a
schedule award. The Board docketed the appeal as No. 11-811.
The Board finds that the case is not in posture for decision. By decision dated
December 15, 2009, OWCP granted appellant a schedule award for a four percent permanent
impairment of the left upper extremity. In a decision dated March 29, 2010, it granted
appellant’s request for reconsideration and determined that it should issue a new schedule award
decision. OWCP discussed his injuries in file numbers xxxxxx676, xxxxxx089 and xxxxxx568.
It noted that it had referred all three file numbers to an OWCP medical adviser for review. In
another decision dated March 29, 2010, OWCP granted appellant a schedule award for a three
percent permanent impairment of the right upper extremity. It further determined that he had no
more than the previously awarded four percent permanent left upper extremity impairment. By
decisions dated August 18 and November 12, 2010, OWCP denied modification of its schedule
award decision.
In reaching its March 29, 2010 schedule award determination, OWCP relied upon a
January 21, 2010 report from Dr. Rudolf R. Tecschan, Board-certified in family medicine, and

March 3 and 17, 2010 reports from OWCP’s medical adviser. The case record, however, does
not contain the reports of Dr. Tecschan or the medical adviser. As discussed, on March 29, 2010
OWCP indicated that it had referred all three file numbers to its medical adviser for review. It
thus appears that Dr. Tecschan’s reports and the opinions of the medical adviser were associated
with another file number. The absence of this evidence precludes the Board from properly
reviewing OWCP’s schedule award determination as it relied upon evidence from other file
numbers in reaching its conclusions.
As the case record submitted to the Board would not permit an informed adjudication of
the case, the Board finds that the case is not in posture for decision and must be remanded to
OWCP. On remand, OWCP should combine the present case record, file number xxxxxx568,
with the case records for file numbers xxxxxx089 and xxxxxx676.1 Following this and any
further necessary development, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the November 12 and August 18, 2010 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: February 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.9
(February 2000).

2


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Greenville, SC, Employer
)
___________________________________________ )
C.C., Appellant

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

Docket No. 13-1964
Issued: April 8, 2014

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 August 26, 2013 appellant, through her attorney, filed a timely appeal from a July 5,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation on the grounds that she refused suitable work.1 Pursuant to Federal Employees’
Compensation Appeals Act2 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
March 14, 2011 on the grounds that she refused an offer of suitable work.

1

The record also contains a May 30, 2013 decision regarding whether a prescription was causally related and
medically necessary due to the accepted work injury. Counsel did not appeal from this decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 1, 1999 appellant then a 40-year-old, rural carrier, was injured in an
automobile accident in the performance of duty. She stopped work on October 1, 1999. OWCP
accepted the claim for muscle strain, unspecified site; lower body muscle strain; low back strain;
cervical whiplash and contusion to the head. It later accepted fibromyalgia. Appellant received
wage-loss compensation and was placed on the periodic rolls.
In a report dated October 31, 2009, Dr. Ronald Januchowski, a Board-certified family
practitioner and treating physician, noted that appellant reached maximum medical improvement
and was capable of returning to work. He indicated that she could perform light office duties for
eight hours a day. Dr. Januchowski provided restrictions to include: standing for no more than
four hours; lifting, pushing, pulling, squatting, kneeling and climbing for no more than eight
hours per day and a 20-pound weight restriction.
On January 12, 2010 OWCP referred appellant for vocational rehabilitation services,
based upon the permanent restrictions provided by Dr. Januchowski.
Appellant was provided with a modified rural carrier job offers on June 21, 2010. She
refused to accept the offer and noted that she did not believe that she was capable of working in
the position. Appellant also indicated that her fibromyalgia medication prevented her from
performing the position.
By letter dated November 12, 2010, OWCP advised appellant that the modified position
had been found to be suitable to her capabilities and was currently available. It noted that the
treating physician had examined her and provided work restrictions that were consistent with the
offered position. Appellant was advised that she should accept the position or provide an
explanation for refusing the position within 30 days. OWCP informed her that if she failed to
accept the offered position or failed to demonstrate that the failure was justified, her
compensation would be terminated.
OWCP subsequently received additional medical reports from Dr. Geera Desai, a
psychiatrist, and Dr. Geneva Hill, a Board-certified internist to whom appellant was referred by
Dr. Januchowski. In an August 27, 2010 report, Dr. Hill diagnosed fibromyalgia, insomnia, a
rash and recommended medication. The reports did not address appellant’s ability to work.
On December 8, 2010 appellant refused the offered position.
fibromyalgia condition and her medication precluded her from work.

She stated that her

On January 7, 2011 the employing establishment again offered appellant a permanent
position as a modified rural carrier associate, with physical requirements incorporating the
medical restrictions provided by Dr. Januchowski. They included: standing for no more than
four hours; lifting, pushing, pulling, squatting, kneeling and climbing for no more than eight
hours per day and a 20-pound weight restriction.
By letter dated January 19, 2011, OWCP advised appellant of the suitability of the
modified position. Appellant was advised that she should accept the position or provide an
explanation for refusing the position within 30 days. OWCP informed her that if she failed to

2

accept the offered position and failed to demonstrate that the failure was justified, her
compensation would be terminated.
On January 24, 2011 appellant refused the offered position. She contended that she could
not perform the offered position because of her fibromyalgia and the medication that she took for
her condition.
In a March 14, 2011 decision, OWCP terminated appellant’s entitlement to monetary
compensation benefits, effective March 14, 2011, on the basis that she refused suitable work. It
found that the position was suitable and in accordance with the work restrictions by her treating
physician.
On April 4, 2011 appellant requested a telephonic hearing, which was held on
August 9, 2011.
By decision dated October 24, 2011, the hearing representative affirmed the March 14,
2011 decision.
On December 4, 2011 appellant requested reconsideration. She provided a December 29,
2011 report from Dr. Scott Klosterman, an osteopath Board-certified in family medicine, who
stated that she was limited in overhead reaching due to her fibromyalgia and totally disabled due
to her depression with somatic complaints.
By decision dated February 13, 2012, OWCP denied modification of the October 24,
2011 OWCP decision.
On February 4, 2013 appellant’s attorney requested reconsideration asserting that the
termination for refusal of suitable work was erroneous. His arguments included whether OWCP
accepted the correct diagnoses, whether Dr. Januchowski’s work restrictions were stale such that
the employer’s job offer was not valid and that she had other conditions such as insomnia,
memory concentration issues and foot conditions, which were not considered. OWCP also
received additional medical evidence.
By decision dated July 5, 2013, OWCP denied modification of the February 13, 2012
decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA 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 However, to justify such termination, OWCP must show that the work offered
was suitable.4 An employee who refuses or neglects to work after suitable work has been offered
to he or she has the burden of showing that such refusal to work was justified.5
3

Id. at § 8106(c)(2).

4

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

5

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

3

OWCP regulations provide 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. 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.6
ANALYSIS
The Board finds that OWCP denied appellant a reasonable opportunity to comply with 5
U.S.C. § 8106(c). When OWCP informed her in its January 19, 2011 notification that it had
determined the modified rural carrier associate position offered by the employing establishment to
be suitable, it informed her of a preliminary determination. By inviting appellant to write and give
reasons for not accepting, OWCP acknowledged that its determination was not yet final and that a
reasonable explanation would justify her refusal and result in the continuation of her compensation
for disability. Certain explanations will, of course, justify a claimant’s refusal to accept an offer of
employment. OWCP’s procedure manual itself lists a number of reasons that are considered
acceptable.7 If a claimant refuses the employment offered and provides such a reason, OWCP will
consider her refusal justified and will continue her compensation for disability.8
If a claimant chooses to respond within 30 days and gives reasons for not accepting the
offered position, OWCP must consider these reasons before it can make a final determination on
the issue of suitability. Only after it has made a final determination on the issue of suitability can
OWCP afford appellant an opportunity to accept or refuse an offer of suitable work. Only after it
has finalized its decision on suitability can OWCP notify her that refusal to accept shall result in
the termination of compensation, as the language of 5 U.S.C. § 8106(c) clearly mandates.9
In this case, OWCP did not afford appellant an opportunity to accept the position offered
after making a final determination that the position was suitable. It therefore denied her a
reasonable opportunity to accept an offer of “suitable” work. Without such an opportunity,
appellant cannot be held to have refused an offer of suitable work within the meaning of 5 U.S.C.
§ 8106(c).10 She noted her reasons for her refusal to accept the offered position within 30 days
of January 19, 2011, the date that OWCP advised her that she had 30 days to accept the offered
position or provide justification for not accepting it. On March 14, 2012 OWCP issued a
decision in which it determined that appellant had refused an offer of suitable work. In issuing
this decision, it implicitly determined that the evidence submitted by her in support of her refusal
to accept the offered position was unacceptable and in doing so it finalized its preliminary
decision on suitability. OWCP terminated appellant’s compensation for disability, thereby
6

Id. at § 10.516.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5 (June 2013).

8

Id.

9

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

10

A.W., Docket No. 13-1735 (issued December 17, 2013).

4

denying her an opportunity to accept the position after determining it to be suitable. As noted,
OWCP’s regulations provide that, if the employee presents reasons to counter OWCP’s
suitability finding and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that she has 15 days in which to accept the offered work
without penalty.11 OWCP did not notify appellant, before terminating her compensation, that it
found her reasons for refusal to be unacceptable and allow her 15 days to accept the position
without penalty.
For these reasons, OWCP improperly terminated appellant’s entitlement to wage-loss
compensation effective March 14, 2011 on the grounds that she refused an offer of suitable
work.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
March 14, 2011 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2013 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 8, 2014
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

11

See supra note 5.

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
New Brunswick, NJ, Employer
)
___________________________________________ )
A.L., Appellant

Docket No. 07-209
Issued: April 10, 2007

Appearances:

Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 30, 2006 appellant filed a timely appeal of the August 4, 2006 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether the Office properly determined that appellant had no more
than a five percent permanent impairment of the left lower extremity for which he received a
schedule award.
FACTUAL HISTORY
On September 29, 2004 appellant, then a 42-year-old letter carrier, filed a traumatic
injury claim when he felt a pop in his left knee while delivering mail. The Office accepted
appellant’s claim for a left knee tear and authorized arthroscopic surgery, for a partial medial
meniscectomy, which was performed on February 1, 2005. Appellant stopped work on

September 29, 2004 and returned to a light-duty position on October 12, 2004. Appropriate
compensation benefits were paid for all periods of disability.
Appellant came under the treatment of Dr. Jeffrey M. Warshauer, an osteopath, who
noted in reports dated September 30 to October 21, 2004 that appellant was treated for left knee
pain which occurred after he twisted his knee at work. A magnetic resonance imaging scan of
the left knee dated October 14, 2004 revealed status post acromioclavicular tear repair with intact
appearing graft. In an operative report dated February 1, 2005, the physician performed
arthroscopy, partial medial meniscectomy of the left knee and synovectomy and diagnosed torn
medial meniscus of the left knee and synovitis of the left knee. In reports dated February 7 to
June 6, 2005, Dr. Warshauer noted appellant’s continued treatment for mild pain and mild
patellofemoral crepitus.
Appellant submitted a report from Dr. David Weiss, an osteopath, dated May 25, 2005,
who determined that appellant reached maximum medical improvement on May 23, 2005.
Dr. Weiss diagnosed post-traumatic internal derangement to the left knee with a tear of the
medial meniscus, post-traumatic synovitis to the left knee, aggravation of preexisting left knee
pathology, status post arthroscopic surgery with partial medial meniscectomy to the left knee
with synovectomy and post-traumatic chondromalacia patella to the left knee. He noted that, in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) fifth edition,1 appellant had 13 percent impairment of the left leg.
Dr. Weiss noted that range of motion for the left knee revealed flexion-extension of 0-100/140
degrees, patellofemoral compression produced crepitus and pain, tenderness noted over the
medial joint line and medial joint space and manual muscle strength testing Grades 5/5 on the
left. He noted appellant complaints for left knee pain and stiffness daily with episodes of
swelling and instability. Dr. Weiss noted that in accordance with the A.M.A., Guides appellant
sustained 10 percent impairment for a deficit in flexion of the left knee2 and 3 percent for painrelated impairment.3
On July 22, 2005 appellant filed a claim for a schedule award.
Dr. Weiss’ report and the case record were referred to the Office medical adviser who, in
a report dated October 10, 2005, advised that based on the A.M.A., Guides appellant sustained a
seven percent impairment of the left leg. He noted that appellant would be entitled to seven
percent impairment for mild cruciate or collateral ligament laxity of the left knee.4 Dr. Weiss
noted that appellant reached maximum medical improvement on May 23, 2005.
On November 2, 2005 the Office referred appellant for a second opinion to Dr. Iqbal
Ahmad, a Board-certified orthopedist. The Office provided Dr. Ahmad with appellant’s medical
records, a statement of accepted facts as well as a detailed description of appellant’s employment
1

A.M.A., Guides (5th ed. 2001).

2

See Table 17-10, page 537 (A.M.A., Guides).

3

Figure 18-1, page 574 (A.M.A., Guides).

4

See Table 17-33, page 546 (A.M.A., Guides).

2

duties. In a medical report dated November 23, 2005, Dr. Ahmad indicated that he reviewed the
records provided to him and performed a physical examination of appellant. He indicated the
history of appellant’s work-related injury. Dr. Ahmad noted findings upon physical examination
of the left knee revealed normal extension, flexion measured 140 degrees, there was tenderness
on the medial and lateral aspect, there was no muscle atrophy and muscle strength was equal
bilaterally. He diagnosed internal derangement and arthroscopy of the left knee, medial
meniscectomy and synovectomy and prior surgical repair of the anterior cruciate ligament.
Dr. Ahmad indicated that, in accordance with the fifth edition of the A.M.A., Guides,5 appellant
sustained a two percent impairment of the left lower extremity for range of motion deficit;6 and a
one percent impairment due to pain.
Dr. Ahmad’s report and the case record were referred to the Office medical adviser who,
in a report dated January 22, 2006, advised that based on the A.M.A., Guides appellant sustained
a three percent impairment of the left lower extremity. He noted that appellant would be entitled
to two percent impairment for a deficit in flexion of 140 degrees;7 and one percent for painrelated impairment.8
By decision dated March 10, 2006, the Office granted appellant a schedule award for
three percent permanent impairment of the left lower extremity. The period of the award was
from November 23, 2005 to January 22, 2006.
By letter dated June 5, 2006, appellant requested reconsideration. He submitted a report
from Dr. Weiss dated May 4, 2006. Dr. Weiss referenced his report of May 23, 2005 and
indicated that in accordance with the A.M.A., Guides he determined that appellant had
13 percent permanent impairment of the left leg. He noted that range of motion for the left knee
revealed flexion-extension of 100 degrees for 10 percent impairment9 and noted an additional
3 percent for pain-related impairment.10 Dr. Weiss indicated that Figure 18-1 of the A.M.A.,
Guides provides that if pain-related impairment appears to increase the burden of appellant’s
condition slightly, the examiner can increase the percentage by three percent. He noted that at
the time of the examination appellant’s pain level was graded at 6/10 in the left knee and he had
difficulties with activities of daily living. Dr. Weiss referenced the medical adviser’s report of
October 7, 2005, which provided a seven percent impairment for mild laxity and noted that the
examiner could not use a diagnostic impairment rating along with range of motion deficit rating
and opined that the range of motion deficit better described appellant’s impairment.

5

See supra note 1.

6

See supra note 4.

7

See supra note 2.

8

See supra note 3.

9

See supra note 2.

10

See supra note 3.

3

Dr. Weiss’ reports and the case record were referred to the Office medical adviser who,
in a report dated July 12, 2006, advised that based on the A.M.A., Guides appellant had five
percent impairment of the left leg. He noted that range of motion for the left knee for flexion
was 140 for a 0 percent impairment rating;11 extension was normal for a 0 percent impairment
rating;12 appellant underwent a partial medial meniscectomy for a 2 percent impairment rating;13
and noted an additional 3 percent for pain-related impairment.14
In a decision dated August 4, 2006, the Office granted appellant an additional award of
two percent permanent impairment of the left lower extremity for a total award of five percent
permanent impairment of the left lower extremity. The Office noted that appellant was
previously granted a three percent permanent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act15 and its
implementing regulation16 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,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.17
ANALYSIS
On appeal, appellant asserts that he is entitled to a schedule award greater than five
percent permanent impairment of the left leg. He contends that there is a medical conflict
between the medical adviser and Dr. Weiss with regard to the impairment to his left lower
extremity. The Office accepted appellant’s claim for left knee tear and arthroscopic surgery was
authorized and performed on February 1, 2005. The Board finds that there is a conflict in
medical opinion between the Office medical adviser and Dr. Weiss, appellant’s treating
physician.

11

See supra note 2.

12

Id.

13

See supra note 4.

14

See supra note 3.

15

5 U.S.C. § 8107.

16

20 C.F.R. § 10.404 (1999).

17

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

The Office medical adviser who, in a report dated July 12, 2006, advised that based on
the A.M.A., Guides appellant sustained a five percent impairment of the left lower extremity. He
noted that appellant would be entitled to two percent impairment for the left knee partial medial
meniscectomy18 and three percent for pain-related impairment.19 By contrast, Dr. Weiss in his
reports dated May 25, 2005 and May 4, 2006 also applied the A.M.A., Guides and found that
appellant sustained a 13 percent impairment rating. He determined that in accordance with the
A.M.A., Guides range of motion for the left knee revealed flexion-extension of 100 degrees for
10 percent impairment20 and 3 percent for pain-related impairment.21 Dr. Weiss supported an
increased impairment rating of the left lower extremity, while the Office medical adviser opined
that appellant sustained no more than a five percent permanent impairment of the left lower
extremity. Also, both ratings include pain-related impairment.22
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”23 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.24 The Board finds that the Office should have referred appellant to an impartial
medical specialist to resolve the medical conflict regarding the extent of permanent impairment
arising from appellant’s accepted employment injury.
Therefore, in order to resolve the conflict in the medical opinions, the case will be
remanded to the Office for referral of the case record, including a statement of accepted facts
and, if necessary, appellant, to an impartial medical specialist for a determination regarding the
extent of appellant’s left lower extremity impairment as determined in accordance with the
relevant standards of the A.M.A., Guides.25 After such further development as the Office deems
necessary, an appropriate decision should be issued regarding the extent of appellant’s left lower
extremity impairment.

18

See supra note 4.

19

See supra note 3.

20

See supra note 2.

21

See supra note 3.

22

The Board notes that each physician erroneously attributed pain-related impairment under Chapter 18 of the
A.M.A., Guides. See id. The Board has held that physicians should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides. See Frantz Ghassan, 57 ECAB ___ (Docket No. 05-1947, issued
February 2, 2006); Linda Beale, 57 ECAB ___ (Docket No. 05-1536, issued February 15, 2006).
23

5 U.S.C. § 8123(a).

24

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

25

See Harold Travis, 30 ECAB 1071, 1078-79 (1979).

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 4 and March 10, 2006 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision.
Issued: April 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Newark, NJ, Employer
)
___________________________________________ )
T.T., Appellant

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

Docket No. 06-1927
Issued: December 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 16, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative decision dated March 8, 2006, which affirmed
the termination of appellant’s compensation on the grounds that he refused an offer of suitable
work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
August 7, 2005 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On October 10, 1989 appellant, then a 42-year-old mail handler, filed a traumatic injury
claim alleging that on October 9, 1989 he was hit in the back by a metal cage that had been
struck by a jeep. Appellant stopped work. The Office accepted the claim for low back

contusion, lumbar strain, herniated disc L4-5 left side and sciatica of the left leg and paid
appellant appropriate compensation benefits.1
In a report dated May 20, 2004, Dr. Richard Fishbein, a Board-certified orthopedic
surgeon and treating physician, noted appellant’s history of injury and treatment. He conducted
an examination and recommended a neurological evaluation. Dr. Fishbein opined that appellant
had reached maximum medical improvement and prescribed permanent restrictions comprised of
no lifting of any weight greater than 10 pounds repetitively and 20 pounds maximally. He
advised that appellant continue with symptom relieving measures such as surgical intervention,
physician care, ice, heat, analgesics, rest and occupational/physical therapy. Dr. Fishbein also
advised that appellant obtain surgery to repair his documented herniated disc.
By letter dated April 26 2005, the employing establishment offered appellant the position
of modified mail handler in accordance with Dr. Fishbein’s restrictions.2 The position was
located in Newark, New Jersey. Appellant filled in “N/A” in response to whether he accepted or
rejected the offer and added: “I cannot answer this at the present time. Please refer all questions
in this matter to my lawyer….”
In a memorandum of telephone call dated June 7, 2005, the employing establishment
confirmed that appellant remained on its employment rolls.
By letter dated June 8, 2005, the Office notified appellant that the position of modified
mail handler was found to be suitable work within his medical restrictions, which were
prescribed by his treating physician, Dr. Fishbein, and the position remained currently available.
The Office also advised appellant that under section 8106(c)(2) of the Federal Employees’
Compensation Act3 “a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.” The Office
provided appellant 30 days in which either to accept the position or provide reasons for refusal.
By letter dated June 23, 2005, appellant’s representative advised the Office that appellant
was no longer on the employing establishment’s rolls and suggested that relocation expenses
were payable. He contended that the offered position was not suitable, explained that appellant
could not relocate for personal reasons and noted that appellant’s wife was severely ill with
cancer.
In a memorandum of telephone call dated July 12, 2005, the employing establishment
confirmed that appellant remained on their rolls and that the offered position remained available.
By letter dated July 13, 2005, appellant’s representative was advised that the offered
position was found to be suitable and that his reasons for rejecting the offered position were not
acceptable. The Office also informed him that the employing establishment verified that
appellant was “still an active and current employee on their rolls.” Regarding appellant’s refusal
1

Appellant relocated to Lebanon, Tennessee in 2001.

2

This was an amended modified job offer. A previous job offer was not found suitable by the Office.

3

5 U.C.S. § 8106(c).

2

to accept the position and explanation that he could not relocate due to his wife’s illness, the
Office explained that there was no provision in the procedures to accommodate an employee
who was still on the employing establishment’s rolls, who had moved and could not return to the
area of residence at the time of the injury due to illness of a family member. The Office
informed appellant’s representative that his wife’s health concerns was not an acceptable reason
for refusal of the job offer. The Office further advised appellant’s representative that appellant
had 15 days to accept the offered position or it would terminate his compensation.
In a memorandum of telephone call dated August 2, 2005, the employing establishment
confirmed that the offered position remained available; however, it indicated that appellant had
not reported for duty.
By decision dated August 3, 2005, the Office terminated benefits effective August 7,
2005 for the reason that appellant failed to accept suitable work offered to him and failed to
show sufficient cause for failure to accept the job offered.
On August 9, 2005 appellant’s representative requested a hearing, which was held on
December 20, 2005. Counsel contended that appellant neither accepted nor rejected the offer of
employment, but instead indicated that he was “waiting to speak with his doctor.” His
representative noted that appellant was still residing in Lebanon, Tennessee. Appellant’s wife
was ill with cancer and he was not able to relocate at the time the job was offered. Counsel
indicated that appellant’s wife died on October 25, 2005. It was asserted that the Office’s
procedure manual considered this an acceptable reason for refusal of a job offer. Counsel
advised that appellant was currently ready to relocate to New Jersey and accept the job offer as
soon as he could sell his house and relocate.
By decision dated March 8, 2006, the Office hearing representative affirmed the
August 3, 2005 decision.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.4 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Act for refusal to accept suitable work.
Section 8106(c)(2)5 of the Act 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. Section 10.517(a)6 of the Office’s regulations provides that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified.
After providing the two notices described in section 10.516,7 the Office will terminate the
4

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

5

5 U.S.C. § 8106(c)(2).

6

20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

3

employee’s entitlement to further compensation under 5 U.S.C. §§ 8105, 8106 and 8107, as
provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits
as provided by0. 5 U.S.C. § 8103 or justified. To justify termination, the Office must show that
the work offered was suitable8 and must inform appellant of the consequences of refusal to
accept such employment.9 According to Office procedures, certain explanations for refusing an
offer of suitable work are considered acceptable.10 Unacceptable reasons include appellant’s
preference for the area in which he resides; personal dislike of the position offered or the work
hours scheduled; lack of promotion potential or job security.11
With regard to relocation, Office regulations provide that the employer, if possible,
should offer suitable reemployment in the location where the employee currently resides. If this
is not practical, the employer may offer suitable reemployment at the employee’s former duty
station or other location.12
ANALYSIS
In this case, the employing establishment offered appellant a sedentary position in
Newark, New Jersey, which accommodated the work restrictions given by his treating physician,
Dr. Fishbein. The Office reviewed the position and found it to be suitable for appellant. After
appellant did not report for duty, the Office terminated his compensation for refusing suitable
work.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give him an opportunity to
accept or provide reasons for declining the position.13 In this case, by letter dated June 8, 2005,
the Office advised appellant that the position was suitable and provided him 30 days to accept
the position or provide reasons for his refusal. The Office further notified him that the position
remained open, that he would be paid for any difference in pay between the offered position and
his date-of-injury job, that he could still accept without penalty and that a partially disabled
employee who refused suitable work was not entitled to compensation.
By letter June 23, 2005, appellant refused the position because he could not relocate from
Lebanon, Tennessee, for personal reasons which included that his wife was severely ill with
cancer.

8

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

9

Maggie L. Moore, 42 ECAB 484 (1991). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(d)(1).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(1)-(5).
11

Arthur C. Reck, 47 ECAB 339 (1996); Federal (FECA) Procedure Manual, Chapter 2.814.5(c) (July 1996).

12

20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB ___ (Docket No. 04-1707, issued December 9, 2004).

13

See Maggie L. Moore, supra note 9; reaff d on recon., 43 ECAB 818 (1992).

4

The Board notes that the Office did not make an attempt to determine whether suitable
employment was possible or practical in or around Lebanon, Tennessee, the location where
appellant and his wife, who was dying of cancer, resided at the time of the job offer. By
regulation, when an employee would need to move to accept an offer of reemployment, the
employing establishment should, if possible, offer suitable reemployment in the location where
the employee resided at the time of the job offer. The record contains no evidence that the
employing establishment made any effort to determine whether such reemployment was possible
in or around Lebanon, Tennessee. The Office should have developed this aspect of the case
before finding the offer suitable. Office regulations state that the employer should offer suitable
reemployment where the employee currently resides, if possible.14 In this case, appellant would
have needed to move over 900 miles to accept the offered position in Newark, New Jersey. The
Office, therefore, should have developed the issue of whether suitable reemployment was
possible in the Lebanon, Tennessee area. The Board finds that the Office erred in terminating
appellant’s compensation benefits without positive evidence showing that such an offer was not
possible or practical.15
Under the circumstances of this case, the Office did not properly find that appellant
refused suitable work.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation effective August 7, 2005 on the grounds that he refused an offer of suitable work.

14

20 C.F.R. § 10.508 (1999). See Sharon L. Dean, supra note 12.

15

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1060
Issued: November 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 10, 2012 appellant, through her attorney, filed a timely appeal from a
January 25, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
determining her wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on its
finding that she had the capacity to earn wages in the selected position of receptionist.
FACTUAL HISTORY
On September 1, 2006 appellant, then a 43-year-old letter carrier, filed a traumatic injury
clam alleging that on August 30, 2006 she injured her right knee when she tripped over
1

5 U.S.C. § 8101 et seq.

equipment. OWCP accepted the claim for a sprain of the right knee and leg and a tear of the
right medial meniscus of the knee. Appellant worked limited duty following her injury.
On February 19, 2009 appellant underwent arthroscopic surgery to repair a right medial
meniscal tear and anterior cruciate ligament rupture. She returned to modified work on April 21,
2009, but subsequently stopped work in November 2009 because the employing establishment
did not have work available.
In a report dated November 6, 2009, Dr. Thomas J. Phillips, a Board-certified orthopedic
surgeon, diagnosed a tear of the anterior cruciate ligament, chondromalacia and internal
derangement of the right knee. He found that appellant had reached maximum medical
improvement and could work with restrictions of standing and walking up to six hours, limited
lifting, pulling and pushing up to 25 pounds and limited stooping, bending, kneeling and
squatting.
OWCP paid appellant compensation beginning December 20, 2009.
2010 it referred her to a rehabilitation counselor for vocational rehabilitation.

On January 15,

In an initial report dated February 20, 2010, the rehabilitation counselor noted that
appellant had graduated from high school and completed one year of college but did not have
computer skills. She recommended a six-month program in computer skills so that appellant
could work as a receptionist or customer complaint clerk. OWCP approved a computer training
program from March 31 to September 17, 2010.
In a report dated August 27, 2010, Dr. Zenia Cortes, a Board-certified orthopedic
surgeon, diagnosed status post right partial medial meniscectomy and anterior cruciate ligament
allograft, osteoarthritis of the right knee and anterior knee pain syndrome. She found that
appellant could work with no “lifting, pushing and pulling over 25 pounds, limited standing and
walking over six hours, and limited stooping, bending, kneeling and squatting.”
On September 10, 2010 appellant completed training in office management systems.
OWCP approved placement services.
In a January 14, 2011 progress report, Dr. Cortes advised that appellant could work
lifting, pushing and pulling up to 25 pounds, standing and walking up to six hours and limited
kneeling, bending and squatting.2
On March 19, 2011 the rehabilitation counselor completed a labor market survey and
identified the position of receptionist as suitable. A job description from the Department of
Labor’s Dictionary of Occupational Titles indicated that the position was sedentary with lifting
up to 10 pounds occasionally and no stooping or kneeling. The job required specific vocational
preparation of six months to one year. The rehabilitation counselor advised that appellant met
the vocational preparation for the position through her six-month computer training program.
She contacted the state employment service and determined that the position was reasonably
available within the appropriate commuting area with weekly wages of $450.00 a week.
2

Dr. Cortes submitted similar progress reports from March to May 2011.

2

In a May 10, 2011 closure report, OWCP’s rehabilitation specialist found that the
positions of receptionist and customer complaint clerk were within appellant’s medical and
vocational limitations. She further found that the positions were available in sufficient numbers
within her geographical area at a salary ranging from $360.00 to $560.00 an hour.
On June 16, 2011 OWCP notified appellant that it proposed to reduce her compensation
based on its finding that she had the capacity to work as a receptionist earning wages of $400.00
a week. It provided her 30 days to submit additional evidence or argument regarding its
proposed reduction of her compensation.
In a treatment note dated June 3, 2011, received by OWCP on July 15, 2011, Dr. Cortes
evaluated appellant’s knee and found that she could resume modified work.
By decision dated July 20, 2011, OWCP reduced appellant’s compensation effective
July 21, 2011 on the grounds that she had the capacity to earn wages of $400.00 in the selected
position of receptionist. It calculated her new wage-earning capacity in accordance with the
principles set forth in Albert C. Shadrick.3
On August 1, 2011 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative.
On August 5, 2011 OWCP referred appellant to Dr. Richard P. Pollis, a Board-certified
orthopedic surgeon, for a second opinion regarding whether she sustained right knee
osteoarthritis causally related to the accepted work injury. In a report dated September 2, 2011,
Dr. Pollis diagnosed post-traumatic degenerative arthritis and an anterior cruciate ligament tear
due to her August 30, 2006 employment injury.
On September 22, 2011 OWCP informed appellant that it had expanded acceptance of
her claim to include right knee osteoarthritis.
At the hearing, held on November 8, 2011 appellant’s attorney argued that OWCP’s
acceptance of an additional knee condition showed a material worsening. He maintained that she
was totally disabled.
In progress reports dated November 11 and December 9, 2011, Dr. Cortes diagnosed a
tear of the right medial meniscus, chondromalacia patella, an anterior cruciate ligament tear and
right knee osteoarthritis. She found that appellant could return to work with the restrictions set at
the time she reached maximum medical improvement.
By decision dated January 25, 2012, OWCP’s hearing representative affirmed OWCP’s
July 20, 2011 decision.

3

5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403.

3

LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.4 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity, or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.5
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience.6 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick7 will result in the percentage of the employee’s loss of
wage-earning capacity.
ANALYSIS
OWCP accepted that appellant sustained a right knee and leg sprain and a tear of the
medial meniscus of the right knee. She underwent surgery in February 2009 to repair a medial
meniscal tear and rupture of the anterior cruciate ligament of the right knee. OWCP paid
appellant compensation for total disability beginning December 2009 as the employing
establishment did not have work available within her restrictions.
On November 6, 2009 Dr. Phillips diagnosed a tear of the anterior cruciate ligament,
chondromalacia and internal derangement of the right knee. He found that appellant was at
maximum medical improvement. Dr. Phillips released her to resume work with no standing or
walking over six hours, limited lifting, pushing or pulling over 25 pounds and limited stooping,
bending, kneeling and squatting. OWCP properly referred appellant for vocational rehabilitation
as the medical evidence established that she was no longer totally disabled due to residuals of her
employment injury.8
4

T.O., 58 ECAB 377 (2007).

5

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

6

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

7

Supra note 3.

8

See N.J., 59 ECAB 171 (2007).

4

OWCP further properly found that appellant had the capacity to perform the duties of a
receptionist. In reports dated August 2010 through December 9, 2011, Dr. Cortes diagnosed
status post right knee meniscectomy and repair of an anterior cruciate ligament tear,
osteoarthritis of the right knee and anterior knee pain syndrome. She concurred with the work
restrictions found by Dr. Phillips at the time appellant reached maximum medical improvement.
Based on Dr. Cortes’ diagnosis of right knee osteoarthritis, OWCP developed the medical
evidence by referring appellant to Dr. Pollis. It accepted right knee osteoarthritis as employment
related based on his opinion. Dr. Pollis, however, addressed only causal relationship and thus his
opinion is not relevant in determining disability. Dr. Cortes considered appellant’s right knee
osteoarthritis in finding that she could work within the restrictions set forth by Dr. Phillips. The
position of receptionist is classified as sedentary and required occasional lifting up to 10 pounds,
which is within the restrictions set forth by Dr. Phillips and Dr. Cortes. The medical evidence,
consequently, establishes that she has the requisite physical ability to earn wages as a
receptionist.
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations but also take into account work experience, age, mental capacity
and educational background.9 The rehabilitation counselor determined that appellant had the
skills necessary to perform the position of receptionist based on her six-month training program
in office management systems and computers. She further found that the position was
reasonably available within the appropriate geographical area at a wage of $450.00 a week. An
OWCP rehabilitation specialist, in a report dated May 10, 2011, approved the receptionist
position based on appellant’s training and concurred that it was reasonably available at wages
ranging from $360.00 to $560.00 a week. As the rehabilitation specialist is an expert in the field
of vocational rehabilitation, OWCP may rely of his or her opinion in determining whether the job
is vocationally suitable and reasonably available.10 The Board finds that OWCP considered the
proper factors, including the availability of suitable employment, appellant’s physical limitations
and employment qualifications in determining that she had the capacity to perform the position
of receptionist.11 OWCP further properly determined her loss of wage-earning capacity in
accordance with the formula developed in Shadrick and codified at 20 C.F.R. § 10.403.12 The
Board finds, therefore, that OWCP properly found that the position of receptionist reflected her
wage-earning capacity effective July 21, 2011.

9

Id.

10

Dorothy Jett, 52 ECAB 246 (2001); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.8(b)(2) (October 2009).
11

See N.J., supra note 8.

12

See supra note 7. OWCP divided appellant’s employment capacity to earn wages of $400.00 a week by her
current pay rate of the position held when injured of $1,067.88 a week to find a 37 percent wage-earning capacity.
It multiplied the pay rate when the disability began, $1,032.38 by the 37 percent wage-earning capacity percentage.
The resulting amount of $381.98 was subtracted from appellant’s date of disability pay rate of $1,032.38 which
provided a loss of wage-earning capacity of $650.40 a week. OWCP then multiplied this amount by the appropriate
compensation rate of three-fourths and adjusted for cost of living which yielded a compensation amount of
$1,824.00 every four weeks before deductions for health and life insurance premiums.

5

Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation based on its
finding that she had the capacity to earn wages in the selected position of receptionist.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6