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

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

Docket No. 11-1053
Issued: April 12, 2012

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant filed a timely appeal from a September 24, 2010 schedule
award 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 schedule award decision.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has greater
than an eight percent impairment of the left lower extremity.
On appeal, appellant asserts that she is entitled to an increased award because neither an
OWCP referral physician nor OWCP’s medical adviser properly applied the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 6, 1989 appellant, then a 38-year-old part-time flexible letter carrier, filed a
traumatic injury claim alleging that she injured her left knee when she fell on an icy sidewalk.
She was terminated by the employing establishment on March 24, 1989. OWCP accepted a left
knee sprain and subluxation of the left patella as employment related. Appellant earned an
associate degree in social work in 1995 and thereafter worked in the private sector. By decision
dated May 15, 1996, OWCP reduced her wage-loss compensation based on her capacity to earn
wages as a case manager.
On August 1, 2005 appellant was granted a schedule award for a five percent impairment
of the left leg.2 In an August 25, 2006 decision, OWCP’s hearing representative remanded the
case to OWCP for OWCP’s medical adviser, Dr. Jason David Eubanks to explain how he arrived
at the five percent rating. By decision dated December 22, 2006, OWCP found that the weight
of the medical evidence rested with the opinion of the medical adviser who advised that
appellant was not entitled to an increased schedule award.3 In a July 17, 2007 decision, the
hearing representative noted that appellant had submitted a November 15, 2006 report from her
attending physician, Dr. Plomaritis, who was not reviewed by an OWCP medical adviser and
remanded the case to OWCP to obtain a supplementary report.4 In an August 1, 2007 report,
Dr. Nabil F. Angley, OWCP’s medical adviser who is Board-certified in orthopedic surgery,
noted his review of Dr. Plomaritis’ report. He advised that Dr. Plomaritis did not provide
sufficient rationale for his impairment evaluation and asked that OWCP request a supplementary
report from Dr. Plomaritis. On September 10, 2007 OWCP again found that appellant was not
entitled to an increased schedule award, noting that Dr. Plomaritis did not respond to its request
for clarification. By decision dated April 11, 2008, the hearing representative found that the case
should be remanded to OWCP to explain why appellant was not entitled to an increased award.
In an April 16, 2008 decision, OWCP denied appellant’s claim for an increased schedule award.
In a June 16, 2008 decision, the hearing representative remanded the case to OWCP to obtain a
second-opinion evaluation.5
In June 2009, OWCP referred appellant to Dr. Norman L. Pollak, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. It asked that Dr. Pollak provide a
rationalized opinion regarding diagnoses and residuals regarding appellant’s left knee and
whether she continued to be disabled. Dr. Pollak was not asked to perform an impairment rating.
2

The rating was based on a December 1, 2003 report from appellant’s attending physician, Dr. Steven Plomaritis,
an osteopath, whose report was reviewed by an OWCP medical adviser, Dr. Hennessey.
3

OWCP’s medical adviser, Dr. Eubanks, reviewed a November 15, 2006 report from Dr. Plomaritis.

4

OWCP’s hearing representative initially issued a June 25, 2007 decision, instructing OWCP to obtain a secondopinion evaluation regarding appellant’s left leg impairment. In the November 15, 2006 report, Dr. Plomaritis noted
findings including left leg range of motion. He diagnosed left knee dysfunction secondary to patella
chondromalacia, possible quadriceps tendinitis and long-standing left anterior knee pain, all secondary to the 1989
work injury. Dr. Plomaritis advised that appellant had a 12 percent impairment of the left leg.
5

Appellant did not attend a second-opinion evaluation scheduled for July 8, 2008 because she was having gall
bladder surgery.

2

In a July 7, 2009 report, he noted his review of the medical record. Dr. Pollak provided physical
examination findings and stated that knee x-rays demonstrated no abnormality. He advised that
there did not appear to be any residuals of a left knee sprain and that, on examination, there was
no indication of subluxation of the left patella. Dr. Pollak concluded that appellant could return
to her date-of-injury position without restriction.
In reports dated July 22 and August 4, 2009, Dr. Mark F. Rottenberg, an attending Boardcertified physiatrist, noted appellant’s complaints of chronic left knee pain and problems
involving subluxation of her patella. Left knee examination demonstrated crepitus on extension
of the left knee with mild swelling, mild atrophy and some quadriceps weakness. A left knee
x-ray demonstrated a decrease in the medial joint space with patellofemoral narrowing and mild
displacement of the patella. Dr. Rottenberg reported that a July 23, 2009 magnetic resonance
imaging scan study of the left knee showed some chondromalacia patellae consistent with
appellant’s physical examination findings and her continued complaints of crepitus on extension
of the left knee.
OWCP determined that a conflict in medical opinion existed as to whether work-related
residuals remained and on September 4, 2009 referred appellant to Dr. Robert S. Levine, a
Board-certified orthopedic surgeon, for an impartial evaluation on this issue. In an October 7,
2009 report, Dr. Levine noted the history of injury, appellant’s complaints of continued left knee
pain, stiffness and swelling and his review of the medical record. Physical examination
demonstrated full range of motion of appellant’s left knee, left thigh atrophy, intact left knee
ligaments and a negative McMurray’s test. Crepitation was not present on flexion and extension
of the left knee but Dr. Levine reported that she complained of patellofemoral tenderness.
X-rays of both knees demonstrated bilateral patellar subluxation with lateral facet narrowing.
Dr. Levine diagnosed chondromalacia patella and bilateral patellar subluxation. He advised that
appellant had no residuals of the accepted sprain and indicated that her knee complaints were out
of proportion to the physical findings. Dr. Levine stated that she had reached maximum medical
improvement but could not return to full letter carrier duties due to muscle atrophy and
weakness. He indicated that, under the fifth edition of the A.M.A., Guides,6 appellant had seven
percent impairment due to patellar subluxation.
By letter dated October 19, 2009, appellant informed OWCP that Dr. Rottenberg told her
he had worked with Dr. Levine for many years at a pain management clinic and asserted that,
thus, Dr. Levine was not properly selected as a referee physician. On October 29, 2009 OWCP
contacted both physicians regarding her allegation and also asked that Dr. Levine provide an
impairment evaluation in accordance with the sixth edition of the A.M.A., Guides.7
In a November 18, 2009 letter, Dr. Rottenberg advised that he had never been
Dr. Levine’s partner and had not seen him in over 10 years. He stated that in the past he referred
patients to a pain clinic where Dr. Levine was employed but that he had not made any referrals
there in more than 15 years. In a December 1, 2009 letter, Dr. Levine advised that he knew who
Dr. Rottenberg was and had met him but that they had never been partners and that he did not
6

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

7

Id., (6th ed. 2008).

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refer patients to him. He advised that appellant had reached maximum medical improvement
within one to two years of the 1989 injury and that there were two diagnoses applicable under
the sixth edition of the A.M.A., Guides, patellofemoral arthritis and patellar subluxation.
Dr. Levine provided a worksheet and indicated that, under Table 16-3, Knee Regional Grid, the
patellofemoral arthritis yielded three percent left lower extremity impairment and the patellar
subluxation yielded seven percent impairment.8 He further explained that the A.M.A., Guides
advise that when an impairment involves the same joint, impairments should not be added but
the greater one used and further explained that patellofemoral arthrosis could be a consequence
of subluxation. Dr. Levine concluded that appellant had a seven percent impairment of the left
lower extremity due to patellar subluxation.
On March 4, 2010 Dr. Angley noted his review of the record including Dr. Levine’s
December 1, 2009 report. He advised that maximum medical improvement was reached prior to
October 14, 1993 and found that, in accordance with Table 16-3, appellant had class 1
impairment due to patellofemoral arthritis with a default value of three percent. Dr. Angley
indicated that she had net adjustment scores of one percent each for Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS). OWCP’s medical adviser applied
the net adjustment formula and found that the impairment rating remained at three percent for
left leg impairment due to patellofemoral arthritis. He then stated that, under Table 16-3, for a
diagnosis of patellar subluxation, appellant had a class 1 impairment for a default value of seven
percent. Dr. Angley advised that she had adjustment scores of one for GMFH and zero for
GMGH and GMCS. He again applied the net adjustment formula and found that appellant’s
impairment rating shifted two places to the left, for a five percent impairment left lower
extremity impairment due to patellar subluxation. The medical adviser added the three percent
impairment for patellofemoral arthritis with the five percent impairment for patellar subluxation
and concluded that she had eight percent impairment of the left leg.
On March 16, 2010 appellant was granted a schedule award for an additional three
percent left lower extremity impairment, for a total eight percent impairment. OWCP noted that
she had been referred to Dr. Levine for an impartial evaluation and that both Dr. Rottenberg and
Dr. Levine clearly dispelled any implications of a prior relationship or potential bias. It
concluded that an OWCP medical adviser, Dr. Angley, properly calculated appellant’s schedule
award in accordance with the sixth edition of the A.M.A., Guides.
In letters dated March 22, 2010, appellant stated that as Dr. Angley had been previously
involved in her case, another OWCP medical adviser should have been assigned. She also
asserted that Dr. Plomaritis’ opinion should have been credited and that the medical adviser did
not correctly apply the A.M.A., Guides and improperly deducted points from her rating. On
March 31, 2010 appellant requested a hearing, that was held telephonically on July 8, 2010. She
testified regarding the medical evidence. Appellant asserted that Dr. Angley should not be
involved in her case and that both he and Dr. Levine incorrectly calculated her schedule award.
She thereafter submitted a statement in which she discussed the history of her case and again

8

Dr. Levine identified the table used as Table 16-2, which is the Foot and Ankle Regional Grid. This is
considered a typographical error as his analysis is clearly in reference to the knee as found in Table 16-3.

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asserted that the medical adviser was improperly selected and did not correctly apply the
A.M.A., Guides.
By decision dated September 24, 2010, OWCP’s hearing representative affirmed the
March 16, 2010 decision. The hearing representative found that Dr. Levine did not serve as a
referee physician on the issue of appellant’s impairment evaluation, noting that OWCP found
that a conflict existed regarding whether appellant had continuing residuals of the work injury
only. It was therefore proper for OWCP to refer Dr. Levine’s impairment evaluation to
Dr. Angley for an opinion on appellant’s impairment.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing federal regulations10 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,
FECA 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.12
For decisions issued after May 1, 2009, the sixth edition will be used.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.15 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).16 Under Chapter 2.3, evaluators are directed to
provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.17

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

13

FECA Bulletin No. 09-03 (issued March 15, 2009).

14

A.M.A., Guides, supra note 6 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
15

Id. at 494-531.

16

Id. at 521.

17

Id. at 23-28.

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OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.18 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.19
ANALYSIS
The Board finds that appellant did not establish that she has greater than an eight percent
left lower extremity impairment.
In his December 1, 2009 report, Dr. Levine provided a worksheet and indicated that
under Table 16-3, Knee Regional Grid, the patellofemoral arthritis yielded a three percent left
lower extremity impairment and the patellar subluxation yielded a seven percent impairment. He
further explained that the A.M.A., Guides advise that when an impairment involves the same
joint, impairments should not be added but the greater one used, indicating that patellofemoral
arthrosis could be a consequence of subluxation. Dr. Levine concluded that appellant had seven
percent impairment of the left leg due to patellar subluxation. Appellant’s accepted diagnosed
conditions are left knee sprain and subluxation of the left patella. Table 16-3 of the sixth edition
of the A.M.A., Guides, Knee Regional Grid, provides classes to be used in rating knee
impairments.20 As noted, the sixth edition also indicates that when analyzing a lower extremity
impairment, after identifying the impairment class for the CDX, the rating is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS by using the net adjustment formula.21 A
review of Dr. Levine’s December 1, 2009 report, however, indicates that, while he provided an
explanation for his conclusion that the diagnosis of patellar subluxation should be used, he did
not apply the net adjustment formula in calculating his impairment rating. His report is therefore
of diminished probative value in assessing appellant’s left leg impairment.
As noted by OWCP’s hearing representative, as there was no conflict in medical evidence
regarding the degree of impairment of appellant’s left lower extremity, OWCP properly referred
Dr. Levine’s impairment evaluation to Dr. Angley for review. In his March 4, 2010 report,
Dr. Angley provided impairment evaluations for both patellofemoral arthritis and patella
subluxation. He properly applied the modifiers and net adjustment formula to each knee
diagnosis. The medical adviser then added the two, concluding that appellant was entitled to an
eight percent left lower extremity impairment.
The Board finds that OWCP properly investigated appellant’s allegation of bias on the
part of Dr. Levine and properly determined that he was sufficient to serve as the impartial
medical specialist.
18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
19

Peter C. Belkind, 56 ECAB 580 (2005).

20

A.M.A., Guides, supra note 6 at 509-11.

21

Id. at 495.

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There is no other medical evidence of record addressing the extent of appellant’s
permanent impairment under the appropriate edition of the A.M.A., Guides, which supports a left
lower extremity impairment greater than eight percent.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had a
left lower extremity impairment greater than the eight percent previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
MARCH AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 16-0182
Issued: June 15, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant filed a timely appeal from an October 29, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition causally related to factors of his federal employment.
FACTUAL HISTORY
On May 14, 2014 appellant, then a 48-year-old aviation enforcement agent, filed an
occupational disease claim (Form CA-2) alleging that on April 8, 2014 he was placed in
1

5 U.S.C. § 8101 et seq.

administrative function due to his inability to perform his assigned law enforcement duties. He
noted that he first became aware of his condition and its relation to his federal employment on
April 8, 2014. The employing establishment advised that appellant was currently working
administrative tasks due to his medical condition. It noted that he did not stop work, but his
duties were changed.
By letter dated May 29, 2014, OWCP notified appellant that the evidence of record was
insufficient to establish his claim. It instructed him to complete a detailed questionnaire
regarding the factual elements of his claim and advised him of the type of medical evidence
needed.
In an April 10, 2014 letter, the employing establishment informed appellant that his law
enforcement status was suspended pending further review of his medical conditions. It noted
that he was experiencing a number of physical ailments that limited his capacity to effectively
and safely perform his assigned duties. Appellant was assigned to an administrative position.
In an April 27, 2014 report, Dr. Daniel Camarillo, a family practitioner, advised that
appellant had multiple medical problems including Hepatitis B, hypertension, coronary artery
disease, type 2 diabetes, and a prior stroke. He noted that appellant had significant challenges
that prevented him from performing the physical demands of his position and cognitive
challenges as a result of his stroke. Dr. Camarillo recommended that appellant retire from the
employing establishment. Appellant submitted several other diagnostic reports including stress
echo studies and liver function tests
In a June 10, 2014 response to the OWCP questionnaire, appellant advised that his stress
began in 2005 with the closure of the Livermore Sector, Fresno Station. He noted that his
reassignment to the Temecula Border Patrol Station, in a different part of California, disrupted
his and his family’s lives and caused him stress. Appellant noted that he put in for many federal
jobs in the Fresno area, but was denied a position. He indicated that either the stress of
relocating or the stress of arresting illegal aliens contributed to him having a heart attack.
Appellant noted that, in September 2008, he transferred to a less stressful job at the employing
establishment where he had a stroke in February 2009. He noted that his stroke weakened his
communication and writing skills. Appellant indicated that in a yearly evaluation he was told
that he needed to improve his speaking and writing skills. He contended that he had been dealing
with stress regarding his reduced language skills since his stroke. Appellant also noted that he
was diagnosed with Hepatitis B in 2005, which resulted in a quick decline in his health which
coupled with other stressful situations made him susceptible to other chronic diseases including
type 2 diabetes, high blood pressure, stroke, and heart attack.
On June 17, 2016 OWCP sent a letter of inquiry to the employing establishment asking a
series of questions relative to his employment, abilities, and any accommodations given. In a
response received August 15, 2014, appellant’s supervisor provided a statement indicating that
he was unaware of appellant’s stress-related issues. He did state that appellants function post
stroke was lacking and that college classes were made available to him. Further, the supervisor
noted that there was never a request for accommodations.

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In an August 8, 2014 attending physician’s report (Form CA-20), Dr. Camarillo advised
that appellant had several medical conditions including Hepatitis B, heart attack, type 2 diabetes,
and speech deficits due to a stroke. When asked if the conditions were caused or aggravated by
an employment activity he responded “no.”
In a statement received January 20, 2015, inquired about the status of his claim. He
advised that he filed an Equal Employment Opportunity (EEO) complaint against the employing
establishment alleging that it retaliated against him following his stroke.
In an undated letter to appellant, the employing establishment advised that it was closing
the Livermore Sector where he worked, effective July 31, 2004 in order to more efficiently and
effectively perform its mission. It advised that he was entitled to priority for any position with
the employing establishment within in the local commuting area.
In a February 19, 2015 statement, Raul Diaz, a former coworker of appellant, advised that
he has known appellant since 1997. He noted that appellant’s position as the acting patrol agent
in charge was stressful. Mr. Diaz indicated that the Fresno Sector closed causing employees to
be relocated. He alleged that although the employing establishment stated that employees would
have priority for positions that opened in the area, appellant was not hired and was forced to
relocate to Temecula. Mr. Diaz advised that appellant had to leave his family behind for a year,
eventually moving his family to Temecula after failing to secure a position in Fresno. He noted
that, following a stroke, appellant related that his supervisors and coworkers were messing with
him, questioning him on his actions at work, making fun of his speech, and passing around
drawings to make fun of him. Mr. Diaz also indicated that appellant’s gun and credentials were
taken from him with no explanation which caused him more stress.
In a February 25, 2015 statement, Steven Munoz, appellant’s former coworker, advised
that he worked with appellant at the Border Patrol Station in Fresno. He noted that when the
Livermore Section was closed, agents were given 30 days to either uproot from their established
homes or risk losing their jobs. Mr. Munoz indicated that this caused appellant a great deal of
stress given the fact that his wife would have to leave her job, he would have to sell his home,
and his children would have to leave school. He noted that appellant began to deteriorate
physically and mentally as he missed his family when he relocated to Temecula. Mr. Munoz
advised that appellant sustained a heart attack and then transferred to a different division of the
employing establishment where he later had a stroke and was diagnosed with diabetes. He noted
that appellant suffered both mentally and financially due to the closure of the Livermore Sector.
By decision dated June 2, 2015, OWCP denied the claim because the evidence of record
failed to establish that appellant sustained an emotional condition due to compensable work
factors.
On July 27, 2015 appellant requested reconsideration. In a July 27, 2015 statement, he
advised that he was stress free in his position until 2004 when he was told that he had three
months to move to Temecula because the Livermore section was being closed. Appellant noted
that he had to spend a year away from his family while in Temecula. He advised that in tested
possible for Hepatitis B, which was accepted as work related. Appellant indicated that his
position required him to deal with dead bodies, smugglers, and accidents. He contended that he

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continued to suffer from stress in his position, which caused high blood pressure eventually
leading to a heart attack in 2007. Appellant noted that he moved to the air and marine side of the
employing establishment, but his stress grew resulting in a stroke, which reduced his critical
thinking skills. He alleged that he was belittled, bullied, and verbally abused by supervisors and
coworkers. Appellant also alleged that his HIPAA rights were violated when a supervisor spread
around the office that he was losing his skills.
By decision dated October 29, 2015, OWCP denied modification of its prior decision.
On appeal, appellant argues that the allegations he made were truthful and that it would
be impossible for him to produce the evidence required.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.3
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established,
OWCP must then base its decision on an analysis of the medical evidence.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.5 However,
the Board has held that where the evidence establishes error or abuse on the part of the
2

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

G.S., Docket No. 09-764 (issued December 18, 2009).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).

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employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.6 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.7
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.9 The issue is whether the claimant has submitted sufficient evidence
under FECA to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.10 The primary reason for requiring factual evidence from the
claimant in support of her allegations of stress in the workplace is to establish a basis in fact for
the contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by OWCP and the Board.11
ANALYSIS
Appellant filed an occupational disease claim alleging that he sustained an emotional
condition as a result of being transferred to a new duty location. He also cited being denied for a
position in the Fresno area, being placed on administrative duty, retaliation after a stroke,
bullying, and a violation of his HIPAA rights. OWCP denied appellant’s emotional condition
claim, finding that he failed to establish any compensable employment factors. The Board must
therefore initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of FECA. Appellant alleged that he experienced
stress as result of his job duties including dealing with dead bodies, smugglers, and accidents.
He failed to submit factual evidence identifying particular tasks on specific dates to which he
attributes his emotional condition. The Board finds that this claim is vague and lacking in detail
and therefore it does not allege a compensable factor of employment. The Board notes that
appellant’s allegations do not sufficiently identify specific work factor or conditions to implicate
work factors under Cutler.12

6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

10

See James E. Norris, 52 ECAB 93 (2000).

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

See supra note 3.

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Appellant alleged that the closing of the Livermore Section and his subsequent change in
duty station caused him stress. Although the handling of job transfers and the management of
work assignments and schedules are generally related to the employment, they are administrative
functions of the employing establishment and not duties of the employee.13 An employee’s
emotional reaction to administrative or personnel matters taken by the employing establishment
is not covered under FECA absent a finding of error or abuse by it as such matters pertain to
procedures and requirements of the employing establishment and do not bear a direct relation to
the work required of the employee.14 The Board finds that appellant has not presented any
evidence of error or abuse in the part of the employing establishment with respect to its handling
of the above-noted administrative and personnel matter.15
Appellant also alleged that the employing establishment failed to hire him for several
positions that would have allowed him to stay in the Fresno area. He submitted a letter from the
employing establishment that indicated that he was entitled to priority for any position within in
the local commuting area. However, the Board has held that conditions resulting from the desire
for a different job, promotion, or transfer are not compensable.16 As noted, frustration from not
being permitted to work in a particular environment is not compensable.17
In a response to OWCP on August 14, 2014 appellant’s supervisor indicated that he was
unware of appellant’s stress issues. As such no request for accommodation was requested.
Appellant’s supervisor noted that appellant’s post stroke was lacking, but he performed all tasks
assigned.
Appellant submitted an April 10, 2014 letter from the employing establishment notifying
him that he was being placed on administrative duty due to physical ailments that limited his
capacity to effectively and safely perform his assigned duties. He contended that this caused him
stress. The letter indicated that appellant admitted that his physical ailments did in fact limit his
capacity to perform his duties. Furthermore, he submitted an April 27, 2014 report where
Dr. Camarillo recommended that he retire from the employing establishment due to his multiple
health conditions. The Board has held that the manner in which a supervisor exercises his or her
discretion falls outside the coverage of FECA. This principal recognizes that supervisors or
managers must be allowed to perform their duties and that employees will at times disagree with
actions taken. Mere disagreement with or dislike of actions taken by a supervisor or manager
will not be compensable absent evidence establishing error or abuse.18 There is insufficient
evidence to show that appellant’s supervisor acted unreasonably toward appellant with regard to
13

L.C., 58 ECAB 493 (2007).

14

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

15

See Charles D. Edwards, 55 ECAB 258 (2004); Linda K. Mitchell, 54 ECAB 748 (2003); James E. Norris, 52
ECAB 193 (2000). See also Andrew J. Sheppard, 53 ECAB 170 (2001) (an employee’s frustration and depression
resulting from an involuntary transfer are not compensable).
16

Charles E. McAndrews, 55 ECAB 711 (2004).

17

See supra note 4.

18

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

6

placing him on administrative duty.19 Appellant also alleged that he experienced stress as a
result of being told that he needed to improve his speaking and writing skills in a performance
appraisal. The Board has held that an unsatisfactory performance rating, without more, is
insufficient to provide coverage under FECA.20 Although the performance rating is related to
the employment, it is an administrative function of the employing establishment, not a duty of
the employee. There is no evidence of error or abuse by the employing establishment with
respect to this incident.
Appellant alleged that his coworkers and supervisor were verbally abusive and bullied
him regarding his speech following his stroke. The Board has recognized the compensability of
physical threats or verbal abuse in certain circumstances. This does not imply, however, that
every statement uttered in the workplace will give rise to coverage under FECA.21 The Board
finds that appellant has not sufficiently identified particulars of any events in which he alleges
verbal abuse.22
To the extent that appellant alleges that he was harassed or discriminated against, the
Board has held that, to give rise to a compensable disability under FECA, there must be evidence
that harassment or discrimination did, in fact, occur. Mere perceptions of harassment or
discrimination are not compensable under FECA. Unsubstantiated allegations of harassment or
discrimination are not determinative of whether such harassment or discrimination occurred. To
establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting his allegations with probative and reliable evidence.23 Appellant submitted a
statement from Mr. Diaz, a former coworker, who contended that appellant told him that his
supervisors and coworkers were messing with him, questioning him on his actions at work,
making fun of his speech, and passing around drawings to make fun of him. There is no
corroborating evidence to establish that appellant’s supervisors and coworkers actually engaged
in this conduct. Mr. Diaz’ statement is not specific as to precise time and place and it is based on
information told to him by appellant, as opposed to any firsthand knowledge.
The record also indicates that appellant filed an EEO complaint. However, evidence that
the employee filed a grievance or EEO complaint against the employing establishment does not,
by itself, establish that workplace harassment, discrimination, or unfair treatment occurred.24

19

Furthermore, management of work assignments and schedules are administrative functions of the employing
establishment and not duties of the employee. See supra note 13.
20

Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB 556 (1991).

21

See Charles D. Edwards, supra note 15.

22

See Joe M. Hagewood, 56 ECAB 479 (2005) (while witness statements agreed that the supervisor and appellant
argued, the statements did not contain a detailed account of what was stated. Without a detailed description of the
specific statements made, a compensable employment factor was not established).
23

F.H., Docket No. 13-294 (issued April 12, 2013).

24

See Charles D. Edwards, supra note 15 (grievances and EEO complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred).

7

Appellant has not provided any evidence to support that any specific adverse findings were made
against the employing establishment with regard to the claimed incidents at issue.
Appellant alleged that his supervisor violated his HIPAA rights when he spread around
the office that appellant was losing his skills. There is no evidence to establish that appellant’s
supervisor spread appellant’s private medical information. As explained, a claimant must
establish a factual basis for the claim by supporting his allegations with probative and reliable
evidence.25
On appeal, appellant argues that the allegations made were truthful and that it would be
impossible for him to produce the evidence required. As explained, it is the claimant’s burden to
provide factual evidence to substantiate his claim. Furthermore, even when an allegation is
accepted as true it still may not amount to a compensable work factor within the meaning of
FECA. Appellant has not established any compensable work factors as a cause of his claimed
conditions. As such the Board does not need to evaluate the probative value of the medical
evidence submitted in support of the claim.26
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to compensable factors of his employment.

25

F.H., Docket No. 13-294 (issued April 12, 2013).

26

See Lori A. Facey, 55 ECAB 217 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2016
Washington, DC

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

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

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

9


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

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

Docket No. 12-1891
Issued: March 22, 2013

Case Submitted on the Record

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

JURISDICTION
On September 13, 2012 appellant filed a timely appeal from a March 13, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than one year has elapsed between the last merit decision dated
March 23, 2005 to the filing of this appeal1 and pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this claim.3
1

For final adverse decisions of OWCP issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008). For final adverse decisions of OWCP issued on or after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).
2
3

5 U.S.C. § 8101 et seq.

The record reveals that appellant also filed a claim for a recurrence of disability of her accepted April 27, 1999
employment injury dated Feburary 17, 2012. OWCP has not issued a final decision on the issue of whether she
sustained a recurrence of disability due to her accepted April 27, 1999 employment injury. Therefore, the Board
lacks jurisdiction to address this issue on appeal. 20 C.F.R. § 501.2(c); see E.L., 59 ECAB 405 (2008); Linda Beale,
57 ECAB 429 (2006) (the Board’s jurisdiction extends only to the review of final decisions by OWCP).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal, appellant contended that OWCP erred in terminating her compensation
benefits.
FACTUAL HISTORY
On April 27, 1999 appellant, then a 44-year-old distribution clerk, filed a traumatic injury
claim alleging that on that date she injured, her shoulder, arm and back due to lifting and pulling
mail trays. OWCP accepted the claim for aggravation of cervical degenerative disc disease.
On February 26, 2004 OWCP received a January 15, 2004 report from Dr. David A.
West, a second opinion osteopath, who based on a review of the statement of accepted facts,
medical evidence and physical examination, concluded that appellant’s accepted cervical
degenerative disc disease aggravation had resolved. A physical examination revealed full range
of motion of the neck and intact sensory and motor examinations. Dr. West attributed
appellant’s current cervical spine problems to the normal progression of her degenerative joint
disease, not to the accepted employment injury. He opined that the accepted employment injury
only caused a temporary exacerbation of her preexisting cervical degenerative disc disease.
In a February 22, 2004 supplemental report, Dr. West provided work restrictions based
upon a functional capacity evaluation performed on February 9, 2004.
On May 25, 2004 OWCP issued a notice proposing to terminate wage-loss and medical
benefits on the grounds that appellant no longer had any disability or residuals due to her
accepted condition.
In a June 24, 2004 report, Dr. Rommel G. Childress, a treating Board-certified orthopedic
surgeon, reviewed Dr. West’s opinion and noted his disagreement with the conclusion that
appellant’s accepted employment injury had resolved.
By decision June 29, 2004, OWCP finalized the termination of appellant’s benefits
effective that day.
On July 14, 2004 appellant requested an oral hearing before an OWCP hearing
representative, which was held on December 14, 2004. At the hearing she noted her
disagreement with Dr. West’s opinion and his findings.
Subsequent to the hearing, OWCP received a January 10, 20054 report from Dr. Childress
who opined that appellant continued to have problems with her cervical spine and strain.
Dr. Childress opined that the accepted employment injury resulted in a permanent aggravation of
her preexisting cervical degenerative disc disease.
4

It appears that there is a typographical error with respect to the year as it read 2004 but should be 2005.

2

By decision dated March 25, 2005, the hearing representative affirmed the termination of
appellant’s compensation. She found that the weight of the medical evidence rested with the
opinion of Dr. West. The hearing representative also found that Dr. Childress’ report was
insufficient to create a conflict in the medical opinion evidence as she found the report contained
insufficient rationalization.
In a June 24, 2005 letter, appellant requested reconsideration and submitted magnetic
resonance imaging scans dated October 19, 2001 and September 12, 2003 in support of her
request.
By decision dated November 25, 2005, OWCP denied reconsideration.
On February 17, 2012 appellant filed an occupational disease claim for a cervical
condition5 and noted that a claim had previously been filed for this condition under claim
number xxxxxx925. In support of her claim, she submitted medical evidence from June 3, 1999
and September 7, 2000, which had been previously considered by OWCP and an August 17,
2000 electromyography (EMG) test.6
By letter dated March 12, 2012, OWCP informed appellant that claim number xxxxxx303
had been deleted as it had been found to be a duplicate of a prior claim. It informed her that
evidence she had submitted with her duplicate claim had been moved to the prior claim. OWCP
considered this submission a request for reconsideration of claim number xxxxxx925.
By decision dated March 13, 2012, OWCP denied appellant’s reconsideration request on
the grounds that it was untimely filed and failed to establish clear evidence of error.7
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitation on the exercise of its discretionary
authority under section 8128(a) of FECA.8 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.9
When an application for review is untimely, OWCP undertakes a limited review to determine
5

OWCP assigned claim number xxxxxx303 prior to determining that the claim was a duplicate of a prior claim.
On March 9, 2012 it deleted claim number xxxxxx303 as it was a duplicate of claim number xxxxxx925.
6

OWCP noted receipt of a February 27, 2012 EMG test diagnosing right C6 radiculopathy. A review of the
record indicates that one page was received on February 27, 2012, but it appears to be the last page of a duplicate of
an August 17, 2000 EMG test.
7

The Board notes that, following the March 13, 2012 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
8

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

9

20 C.F.R. § 10.607; see B.W., Docket No. 10-323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001).

3

whether the application presents clear evidence that OWCP’s final merit decision was in error.10
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations,11 if the
claimant’s application for review shows clear evidence of error on the part of OWCP.12 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.13
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.14 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.15
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.16 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.17
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
10

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

11

20 C.F.R. § 10.607.

12

See M.L., Docket No. 09-956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

13

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

14

F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).
15

J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra
note 12.
16

James Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(c) (October 2011).
17

See M.L., supra note 12; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006);

4

begins on the date of the original OWCP decision.18 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.19 As appellant’s February 17,
2012 request for reconsideration was submitted more than one year after the last merit decision,
issued on March 25, 2005, it was untimely. Consequently, she must demonstrate clear evidence
of error by OWCP in denying her claim for compensation.20
The Board finds that the evidence submitted by appellant in support of her February 17,
2012 request for reconsideration does not raise a substantial question as to the correctness of
OWCP’s decision terminating her compensation benefits effective June 29, 2004 or shift the
weight of the evidence of record in her favor. The evidence submitted by appellant predated the
termination of her compensation benefits on June 29, 2004 and was thus irrelevant to the issue of
whether OWCP erred in terminating her compensation benefits. The Board finds that these
reports are insufficient to show that OWCP’s determination that she no longer had any residuals
or disability due to her accepted aggravation of cervical degenerative disc disease was erroneous
or raised a substantial question as to the correctness of OWCP’s decision.
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of OWCP’s March 25, 2005 hearing representative’s decision affirming the
termination of her compensation benefits. Consequently, OWCP properly denied her
reconsideration request as it was untimely and failed to establish clear evidence of error.
On appeal, appellant argued that OWCP erred in relying upon Dr. West’s opinion in
terminating her benefits and that her accepted employment injury had not resolved. However,
these arguments were previously considered by an OWCP hearing representative when the
termination of her benefits was affirmed. Thus, they are insufficient to establish clear evidence
of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.

18

20 C.F.R. § 10.607(a).

19

Robert F. Stone, 57 ECAB 393 (2005).

20

20 C.F.R. § 10.607(a); see D.G., supra note 10; Debra McDavid, 57 ECAB 149 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2012 is affirmed.
Issued: March 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 17-1086
Issued: October 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 24, 2017 appellant filed a timely appeal from an April 10, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated, March 15, 1991, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s January 30, 2017 request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may
only review evidence that was of record at the time OWCP issued its final decision. Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.W., Docket No.
15-0949 (issued October 8, 2015).

FACTUAL HISTORY
Appellant’s claim has previously been before the Board. The facts and circumstances of
the case as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On July 25, 1988 appellant, then a 38-year-old computer operator, filed a traumatic injury
claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he tripped and fell
over a box. OWCP accepted the claim for a low back strain. Appellant stopped work on
July 15, 1988 and returned to work on January 10, 1989.
Appellant subsequently filed a Form CA-2a claim for a recurrence of disability
commencing July 3, 1989 as a result of his July 14, 1988 employment injury. OWCP denied this
claim on January 16, 1990, finding that he failed to submit sufficient evidence to establish that
his current back condition was causally related to his July 14, 1988 employment injury.
On November 19, 1990 appellant timely requested reconsideration. On March 15, 1991
OWCP denied modification of its prior decision. It found that the medical evidence of record
failed to establish that the claimed condition or disability from work was causally related to
appellant’s accepted employment injury.
The March 15, 1991 decision was the last OWCP decision on the merits of appellant’s
recurrence claim. The appeal rights accompanying OWCP’s March 15, 1991 merit decision
notified appellant that any further request for reconsideration must be made within one year of
the date of the decision, i.e., within one year of March 15, 1991.
In a letter dated January 12, 2017, appellant contended that he should have been receiving
workers’ compensation benefits and not retirement benefits due to his accepted work injury. He
stated that he had never healed from the accepted employment injury, that he was forced to
prematurely return to work following back surgery, and that all of his current conditions were
causally related to the original injury, including his emotional stress. Appellant also argued that
OWCP should have paid his medical bills. He noted that neither the union nor the employing
establishment considered what was best for him.
In support of his claim for merit review, appellant resubmitted evidence previously
considered by the Board and OWCP including a March 14, 2012 report by Dr. Benjamin M.
Johnston, a treating Board-certified internist, an October 24, 1988 attending physician’s
supplemental report, June 30, 2014 report prepared by Dr. Harvey A. Jones, an attending general
surgeon, and July 14, 1988 hospital report. OWCP also received additional new medical
evidence.
A March 17, 2015 unsigned note diagnosed malignant prostate neoplasm and listed
medications and allergies. A record of injury/illness and treatment form, with an illegible
signature, noted that appellant sustained a lumbar contusion and sprain at work on July 31, 1983

2

when he tripped and fell backward. A June 16, 2016 form report from Central Georgia Internal
Medicine.3
OWCP also received an October 19, 2016 prescription from Dr. Oyekunle Murairra, a
treating physician Board-certified in critical care, pulmonary, and internal medicines and a
summary of a November 21, 2016 visit with Dr. Chukweumeka Nwabuebo, a treating physician
Board-certified in internal medicine and cardiovascular disease, which included a list of
medications, a list of tests prescribed, and information regarding appellant’s next medical
appointment.
In a letter received on January 30, 2017 appellant requested reconsideration. He noted
that he was intermittently hospitalized from 1990 until 1992 and therefore could not timely
request reconsideration of the 1991 merit decision. Appellant also noted that he had been
represented by counsel at the time and should not be held responsible for counsel’s failure to
timely request reconsideration.
In support of his request appellant submitted his February 4, 2017 statement, a
December 10, 2015 progress note from Dr. Anthony Quan Hong, a treating Board-certified
neurologist, a May 15, 2016 progress report from Melissa Bozarth, a certified nurse practitioner,
a February 15, 2017 summary of a medical visit with Dr. Murairra, and an undated notice of
occupational disease and claim for compensation (Form CA-2) noting that he first became aware
of the claimed condition on July 14, 1988 and that he first realized the condition was
employment related on July 31, 1983.
In a December 10, 2015 progress note, Dr. Hong provided examination findings and
diagnosed skin paresthesia, lumbosacral radiculopathy, and chronic pain syndrome. In a
May 15, 2016 report, Ms. Bozarth provided examination findings, noted appellant’s medical
history and medications, and diagnosed lumbar radiculopathy, lumbar spinal stenosis,
hypertension, hyperlipidemia, and muscle weakness; and a February 15, 2017 summary of an
office visit with Dr. Nwabuebo listed medications, tests prescribed, and next appointment
information.
By decision dated April 10, 2017, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error. It found the
record was devoid of any evidence establishing that he was mentally incompetent or incapable of
filing a timely request for reconsideration of the March 15, 1991 merit decision.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.4 It will not review a decision denying or terminating a
3

The signature of the physician is illegible.

4

5 U.S.C. § 8101 et seq. The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. See J.S., Docket No.
10-0385 (issued September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55
ECAB 390 (2004).

3

benefit unless the application for review is filed within one year of the date of that decision.5
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application demonstrates clear evidence that OWCP’s final merit decision was in
error.6 OWCP procedures state that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
application for review demonstrates clear evidence of error on the part of OWCP.7 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.13 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.14 The
Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.15
5

20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB
149 (2005); Alan G. Williams, 52 ECAB 180 (2000).
6

B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55
ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
7

8

See Nelson T. Thompson, 43 ECAB 919 (1992).

9

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

10

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

11

See Leon J. Modrowski, supra note 6; Jesus D. Sanchez supra note 6.

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, supra note 8.

14

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

15

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).

4

ANALYSIS
On January 30, 2017 appellant sought reconsideration of a March 15, 1991 merit decision
denying modification of its prior decision denying appellant’s claim for a recurrence of disability
on July 3, 1989 as a result of his accepted July 14, 1988 employment injury. While appellant
alleged that he was mentally incompetent to timely request reconsideration following the
March 15, 1991 merit decision, he has not provided any medical evidence to support a finding of
incompetency during the relevant time period. Therefore appellant has not proven incompetence
as alleged.16
Because his January 30, 2017 request was received by OWCP more than one year after
OWCP’s March 15, 1991 merit decision, the Board finds that OWCP properly determined that
appellant’s request was untimely filed. Thus, appellant must demonstrate clear evidence of error
on the part of OWCP in denying his claim.17
In support of his request appellant submitted an October 19, 2016 prescription and
February 15, 2017 summary of a medical visit from Dr. Murairra, a November 21, 2016
summary of an office visit by Dr. Nwabuebo, and a June 14, 2016 progress note by Dr. Hong.
Dr. Hong diagnosed skin paresthesia, lumbosacral radiculopathy, and chronic pain syndrome.
OWCP also received unsigned medical notes listing various diagnoses. None of these reports
point to any error in OWCP’s decision to deny a recurrence of total disability on July 3, 1989.
The Board further notes that the May 14, 2016 report from Ms. Bozarth, a certified nurse
practitioner, does not constitute medical evidence under section 8101(2) of FECA.18
To demonstrate clear evidence of error, the evidence submitted must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.19 A detailed, well-rationalized
medical report which would have required further development if submitted prior to issuance of
the denial decision, does not demonstrate clear evidence of error.20 To demonstrate clear
evidence of error, it is insufficient merely to show that the evidence could be construed so as to

16

E.P., Docket No. 16-1402 (issued December 15, 2016).

17

20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

18

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses,
and physical therapists are not competent to render a medical opinion under FECA); Sean O Connell, 56 ECAB 195
(2004) (reports by nurse practitioners and physician assistants are not considered medical evidence as these persons
are not considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law).
19

See Robert G. Burns, 57 ECAB 657 (2006); Leon D. Faidley, Jr., supra note 14.

20

See G.B., Docket No. 16-319 (issued April 16, 2016); Joseph R. Santos, 57 ECAB 554 (2006).

5

produce a contrary conclusion. The term clear evidence of error is intended to represent a
difficult standard.21
None of the evidence appellant submitted manifests on its face that OWCP committed an
error in denying appellant’s recurrence claim. Appellant has not otherwise submitted evidence
of sufficient probative value to raise a substantial question as to the correctness of OWCP’s merit
decision. Thus, the evidence is insufficient to demonstrate clear evidence of error.
On appeal appellant contends that the medical evidence of record is sufficient to establish
his recurrence claim. He also noted that he sustained three employment injuries involving his
back. As discussed above and in the prior Board decisions, appellant has failed to demonstrate
any error on the part of OWCP in denying his recurrence claim and therefore has failed to
demonstrate clear evidence of error.
CONCLUSION
OWCP properly denied appellant’s January 30, 2017 request for reconsideration as it was
untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 10, 2017 is affirmed.
Issued: October 13, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016);
see Dean D. Beets, 43 ECAB 1153 (1992).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEFENSE LOGISTICS AGENCY,
Tobyhanna, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2060
Issued: July 5, 2012

Case Submitted on the Record

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

JURISDICTION
On September 6, 2011 appellant, through his attorney, filed an appeal from an August 29,
2011 decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative affirming the termination of his wage-loss compensation on the grounds that he
refused an offer of suitable work. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits on
February 10, 2011 pursuant to 5 U.S.C. § 8106(c).
1
2

5 U.S.C. § 8101 et seq.

By decision dated September 2, 2011, OWCP reversed its earlier decision of June 3, 2011 and found that
appellant was entitled to schedule award benefits as his schedule award claim was received prior to his benefits
being terminated. It also found that he had nine percent right upper extremity impairment based on the report of its
medical adviser. Appellant has not appealed this decision. Accordingly, the Board will not address this issue.

FACTUAL HISTORY
On December 10, 2008 appellant, then a 50-year-old packer, filed a traumatic injury
claim alleging that on November 26, 2008 he felt a pop in his right elbow with immediate pain
and soreness while lifting a box weighing approximately 50 pounds. He stopped work that day.
OWCP accepted a right distal biceps tendon tear and authorized surgery. It paid compensation
for total disability as of February 2, 2009. Appellant underwent biceps tendon repair surgery on
February 10, 2009. He later developed a heterotrophic bone calcification, which limited motion
in his nondominant right hand.
On August 14, 2009 appellant underwent a functional capacity evaluation which found
that he was capable of working at the sedentary physical demand level for eight hours a day with
a 12-inch lift capability of 10 pounds and 0 pounds shoulder lift capability. In an August 31,
2009 note, Dr. Barbara G. Frieman, a Board-certified orthopedic surgeon, advised that he
reached maximum medical improvement and had permanent right arm restrictions of lifting no
more than 10 pounds and no supination/pronation.
On September 25, 2009 the employing establishment offered appellant a light-duty
assignment as a packer with restrictions of no lifting greater than 10 pounds and no turning with
right arm. Appellant declined this position. OWCP advised the employing establishment that
the duties were not sufficiently described. On October 27, 2009 the employing establishment
offered appellant a second job as a packer. On November 2, 2009 OWCP received a June 25,
2009 report from Dr. Frieman, who noted that appellant had a significant loss of supination from
heterotrophic calcification of his distal biceps repair and was unable to curl. Dr. Frieman opined
that he was permanently disabled from his job as he was unable to do any repetitive turning of
the right wrist or supination-type activity with his right arm.
In a December 14, 2009 report, Dr. Robert F. Draper, Jr., a Board-certified orthopedic
surgeon and an OWCP referral physician, reviewed a history of the employment injury and
appellant’s medical treatment. He provided examination findings and diagnosed rupture of the
distal right biceps tendon with repair and heterotrophic calcification of the distal biceps repair
with marked limited supination as a complication of the trauma and surgery. Dr. Draper found
that appellant reached maximum medical improvement and could not return to regular-duty
work. Based on the functional capacity evaluation and the physical examination, he found that
appellant could perform full-time sedentary work with restrictions of no lifting more than 20
pounds occasionally and 10 pounds frequently with the right arm.
OWCP determined that a conflict in medical opinion arose between Dr. Frieman and
Dr. Draper regarding appellant’s work capacity.
It referred appellant to Dr. Thomas
DiBenedetto, a Board-certified orthopedic surgeon, for an impartial evaluation.
In a March 1, 2010 telephone call to OWCP, appellant indicated that he was considering
disability retirement and, if no job offer was received by April 10, 2010, his retirement date
would be April 10, 2010. On March 17, 2010 he elected retirement benefits effective
April 11, 2010.

2

On April 1, 2010 OWCP received Dr. DiBenedetto’s February 23, 2010 report.
Dr. DiBenedetto reviewed the history of injury, the medical records and noted appellant’s
complaints of pain on supination. On physical examination he noted a mild visible atrophy of
the biceps, zero degrees of supination activity and passively, full pronation, full extension and
near full flexion. Strength was noted to be good in appellant’s forearm and hand.
Dr. DiBenedetto diagnosed a rupture of the right distal biceps. He stated that appellant was at
maximum medical improvement but would not fully recover from his work injury.
Dr. DiBenedetto stated that it would be difficult for appellant to perform the light-duty job
offered by the employer on October 27, 2009. He opined that appellant was able to work in a
sedentary job within the limits of his functional capacity evaluation, which was 10 pounds of
lifting. Dr. DiBenedetto opined that appellant could do this repetitively but stated that he could
not do any work which required him to place his right hand in supination because his arm was
fixed in zero degrees of supination. He advised that appellant was not capable of returning to his
regular job, with modifications, because of his lack of ability to supinate and not due to the
repetitive nature of the job. On April 9, 2010 Dr. DiBenedetto completed a work capacity
evaluation noting certain work restrictions, advising that appellant could work eight hours daily
and indicating that his restrictions were permanent.
On June 3, 2010 the employer offered appellant a light-duty position as a supply clerk
which required minimal use of the right wrist with no repetitive tasks. A duplicative job offer
was made on June 10, 2010 with a later start date. The position description noted that appellant
would perform clerical support primarily involving processing supply transactions. A computer
would be used to enter, edit or retrieve data typing or office automation. Other major duties
involved performing limited supply clerical work as well as clerical assignments. On June 10,
2010 appellant declined the position due to his medical restrictions and inadequate time in which
to consult his physician or attorney.
On August 20, 2010 OWCP sent the June 10, 2010 job offer to Dr. DiBenedetto for his
opinion on whether appellant was capable of performing the requested duties. In a
November 15, 2010 report, Dr. DiBenedetto reviewed the statement of accepted facts and the
February 23, 2010 report. He found that appellant could perform the job as outlined.
In a November 26, 2010 letter, OWCP advised appellant that the position of supply clerk
offered was suitable to his work capacities. Appellant was notified that if he failed to report to
the position or failed to demonstrate that, the failure was justified pursuant to section
8106(c)(2) of FECA, his right to monetary compensation would be terminated. He was given 30
days to respond.
In a December 7, 2010 letter to appellant’s attorney, OWCP explained that, while
appellant chose to retire prior to the receipt of the impartial medical examiner’s report, his
election of retirement benefits did not preclude adjudicating the extent of his disability and
suitability of a job offer.
In a December 15, 2010 statement, appellant contended that the job offer was not suitable
to his limitations. He elected Office of Personnel Management (OPM) benefits as of April 11,
2010 and did not know a job offer would come several months later. In a December 16, 2010

3

letter, appellant’s attorney agreed that the June 10, 2010 job offer was found suitable after
appellant elected OPM benefits and had retired.
On January 6, 2011 OWCP advised appellant that his reasons for refusing the offered
position were not valid and he was given an additional 15 days to either accept the position or
have his benefits terminated. In a January 18, 2011 letter, appellant advised that he was
declining the supply clerk position on the basis it was an unsuitable job offer and the job offer
came months after he separated from his employing establishment and the Federal Government.
In a February 10, 2011 decision, OWCP terminated appellant’s monetary compensation
on the grounds that he neglected an offer of suitable work under 5 U.S.C. § 8106(c)(2).
Appellant remained entitle to medical benefits.
On February 14, 2011 appellant initially requested a telephonic hearing before an OWCP
hearing representative but subsequently requested a review of the written record. In a June 9,
2011 letter, counsel stated that Dr. DiBenedetto provided no rationalized medical explanation
that the current job offer was suitable. Counsel noted that Dr. DiBenedetto previously found the
October 27, 2009 job offer unsuitable because of appellant’s inability to place his right hand in
supination.
In a June 24, 2011 letter, the employer responded that the June 3, 2010 job offer was for a
supply clerk and was in accordance with Dr. DiBenedetto’s restrictions. It noted that the revised
offer of June 10, 2010 was in response to appellant’s request to delay the job availability date for
personal reasons.
By decision dated August 29, 2011, an OWCP hearing representative affirmed the
February 10, 2011 decision.
LEGAL PRECEDENT
Section 8106(c) of FECA provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered is not entitled to compensation.3 It is OWCP’s
burden to terminate compensation under section 8106(c) for refusing to accept suitable work or
neglecting to perform suitable work.4 The implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured for the employee
has the burden of showing that such refusal or failure to work was reasonable or justified and
shall be provided with the opportunity to make such a showing before entitlement to
compensation is terminated.5 To justify termination, OWCP must show that the work offered
was suitable and that appellant was informed of the consequences of his refusal to accept such
employment.6 In determining what constitutes suitable work for a particular disabled employee,
3

5 U.S.C. § 8106(c).

4

Joyce M. Doll, 53 ECAB 790 (2002).

5

20 C.F.R. § 10.517(a).

6

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

4

OWCP considers the employee’s current physical limitations, whether the work is available
within the employee’s demonstrated commuting area, the employee’s qualifications to perform
such work and other relevant factors.7 OWCP’s procedures state that acceptable reasons for
refusing an offered position include withdrawal of the offer or medical evidence of inability to
do the work or travel to the job.8
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.9 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.10
ANALYSIS
OWCP accepted that on November 26, 2008 appellant sustained right distal biceps
tendon tear and authorized surgery. Appellant later developed a heterotrophic bone calcification
which limited the motion of his right hand. On September 29, 2011 an OWCP hearing
representative affirmed a February 10, 2011 decision terminating his compensation benefits
based on his refusal of work in a supply clerk position. Determinative weight was accorded to
Dr. DiBenedetto, a Board-certified orthopedic surgeon serving as an impartial medical specialist,
who opined that the supply clerk position was suitable.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Frieman, an attending Board-certified orthopedic surgeon, and Dr. Draper, a Board-certified
orthopedic surgeon serving as an OWCP referral physician, on the issue of appellant’s work
capacity. To resolve the conflict, it properly referred appellant, pursuant to section 8123(a) of
FECA, to Dr. DiBenedetto for an impartial medical examination and an opinion on the matter.
In a February 23, 2010 report, Dr. DiBenedetto opined that appellant was able to work in a
sedentary job within the limits of his functional capacity evaluation, which was 10 pounds of
lifting. He opined that appellant could do this repetitively but he could not do any work which
required him to place his nondominical right hand in supination because his arm was fixed in
zero degrees of supination. Following his review of the June 2010 job offer of supply clerk,
Dr. DiBenedetto opined in a November 15, 2010 report, that appellant could perform the job as
outlined.
The Board finds that Dr. DiBenedetto’s February 23, 2010 report in conjunction with his
November 15, 2010 report is sufficiently rationalized to establish that appellant is capable of

7

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
9

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

10

Manuel Gill, 52 ECAB 282 (2001).

5

performing the supply clerk position.11 As noted, Dr. DiBenedetto previously examined
appellant and opined that he was able to work in a sedentary job with lifting restrictions of 10
pounds. He opined that, while appellant could do this repetitively, he could not do any work
which required him to place his right hand in supination because his arm was fixed in zero
degrees of supination. Although Dr. DiBenedetto’s November 15, 2010 report simply responded
to the question of whether the supply clerk position was suitable, his original report of
February 23, 2010 contained an in-depth evaluation of appellant’s medical condition based on an
accurate factual and medical background which properly served as the basis upon which he could
render an opinion as to whether the supply clerk position was suitable. Dr. DiBenedetto’s
opinion that appellant could work the supply clerk position is accorded special weight due to his
status as an impartial medical examiner.12 Thus, OWCP properly relied on Dr. DiBenedetto’s
opinion in finding the supply clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on November 26, 2010 that it found the job offer of supply clerk to be suitable
and gave him an opportunity to provide reasons for refusing the position within 30 days. It
advised him in a January 6, 2011 letter that his reason that he already retired prior to the job offer
was insufficient13 and that he had 15 additional days to accept the offered position. The Board
finds that OWCP followed established procedures prior to the termination of compensation
pursuant to section 8106(c) of FECA.
The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s compensation benefits based on his refusal to accept
suitable work.
On appeal, appellant’s counsel argues that Dr. DiBenedetto failed to explain why he was
no longer concerned about appellant’s inability to place his right hand in supination in the
offered supply clerk position. As noted Dr. DiBenedetto’s opinion about the suitability of the
offered supply clerk position was based on an accurate factual and medical background which
formed the basis of his opinion. He reviewed the requirements of the offered position and
opined that it was within appellant’s capabilities.
CONCLUSION
The Board finds that OWCP met its burden of proof to justify the termination of
appellant’s wage-loss compensation on the grounds that he refused an offer of suitable
employment.

11

Before OWCP and on appeal, appellant’s attorney argued that Dr. DiBenedetto’s report is not rationalized.

12

See L.W., 59 ECAB 471 (2008).

13

The Board has long held that electing to receive retirement is not a justifiable reason to refuse an offer of
suitable work. Roy E. Bankston, 38 ECAB 380 (1987). See Federal (FECA) Procedure Manual, supra note 8 at
Chapter 2.814.5(c) (July 1997).

6

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7