United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 07-1380
Issued: October 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from a March 27, 2007 merit decision
of the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation for which she was at fault. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the overpayment decision.1
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$2,445.89 overpayment because she received two compensation checks covering the same
period; (2) whether the Office properly found that she was not without fault in creating the
overpayment; and (3) whether the Office properly directed recovery of the overpayment in a
lump sum.

1

In a decision dated February 8, 2007, the Office terminated appellant’s compensation benefits on the grounds
that she refused an offer of suitable work. On March 6, 2007 she requested a review of the written record. As
appellant did not appeal the February 8, 2007 termination decision, it is not before the Board at this time.

FACTUAL HISTORY
On August 19, 2004 appellant, then a 42-year-old clerk, filed a recurrence of disability
claim on November 24, 2003 due to an April 3, 2001 employment injury. She attributed her
condition to casing mail six hours per day. The Office adjudicated the claim as an occupational
disease and accepted that appellant sustained bilateral shoulder impingement syndrome due to
factors of her federal employment. Appellant stopped work and filed claims for compensation
on account of total disability beginning November 24, 2003. The Office paid her compensation
for temporary total disability beginning November 30, 2003.
On March 29, 2005 two different claims examiners both issued appellant compensation
checks in the amount of $2,445.89 covering the period February 20 through March 19, 2005.
The checks were sent directly to her financial institution in the form of direct deposit. On
April 7, 2005 the Office notified appellant of its preliminary finding that she received an
overpayment of $2,445.89 because she received two payments covering the same period of
February 20 through March 19, 2005. The Office informed her of its initial determination that
she was at fault in the creation of the overpayment because she “was notified by telephone
several days before the payments were issued….” The Office advised appellant that she could
request a telephone conference, a final decision based on the written evidence only, or a hearing
within 30 days of the date of the letter if she disagreed that the overpayment occurred, if she
disagreed with the amount of overpayment, if she believed that the overpayment occurred
through no fault of her own and if she believed that recovery of the overpayment should be
waived. The Office requested that she complete an attached overpayment recovery questionnaire
and submit supporting documentation. On April 26, 2005 appellant telephoned the Office and
indicated that she was remitting a check for the amount of the overpayment.
In a decision dated March 27, 2007, the Office finalized its finding that she received an
overpayment of $2,445.89 because she received two checks covering the same period. The
Office further found that she was at fault in creating the overpayment and that she should repay
the overpayment by sending a check for the full amount.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act2 defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.3 The Office’s regulations state in pertinent part:
“compensation for wage loss due to disability is available only for any periods during which an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.”4

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8116(a).

4

20 C.F.R. § 10.500.

2

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral shoulder impingement and paid her
compensation beginning November 24, 2003 based on her submission of claims for
compensation on account of disability (Forms CA-7). On March 29, 2005 two separate claims
examiners issued her compensation checks in the amount of $2,445.89 covering the same period,
February 20 through March 19, 2005. As appellant was only entitled to receive one check for
this period, she received an overpayment of compensation in the amount of $2,445.89.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act5 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulation6
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be incorrect.”
The Board has held that an employee who receives payments from the Office in the form
of direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.7 The
Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from the Office or simply with the passage
of time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.8 Previous cases have held that receiving one or two erroneous
direct deposit payments does not necessarily create the requisite knowledge to find that a
claimant was at fault in the creation of the overpayment.9 The Board has found fault in cases
where incorrect payments were made over longer periods of time or for substantially greater
amounts than previously received.10
5

5 U.S.C. § 8129(b).

6

20 C.F.R. § 10.433.

7

Tammy Craven, 57 ECAB ___ (Docket No. 05-249, issued July 24, 2006).

8

Id.

9

Id. at n.6.

10

Id. at n.7.

3

ANALYSIS -- ISSUE 2
The record establishes that appellant received an extra payment from the Office issued
March 29, 2005 covering the period February 20 through March 19, 2005 in the form of a direct
deposit to her bank account.
The Board finds that appellant was without fault in the creation of the overpayment. The
Office determined that she was at fault because it notified her by telephone several days before
the two compensation checks covering the same period were deposited in her account of its
mistake. The record, however, contains no evidence that the Office informed appellant that she
would receive two checks covering the same period. As noted, an employee who receives
payments from the Office in the form of direct deposits may not be at fault the first time
incorrect funds are deposited into her account, as the acceptance of the resulting overpayment
lacks the requisite knowledge.11 While appellant accepted the $2,445.89 overpayment by
gaining control over the funds deposited in her account pursuant to her authorization, the record
does not establish that she knew that she would receive an incorrect payment on that date.
Unlike the situation in which a claimant receives a physical check and is aware of the amount of
the payment before depositing it into her account, when direct deposit is used, a claimant is not
on notice of the amount of payment until after it has been deposited. The Office has not
established that appellant knew or should have known that she received an incorrect payment.
Consequently, the Board finds that the Office improperly determined that appellant was at fault
in the creation of the overpayment and therefore that it was not subject to waiver.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $2,445.89
overpayment because she received two compensation checks covering the same period. The
Board finds, however, that she was not at fault in creating the overpayment and thus is eligible
for consideration of waiver of the overpayment.12

11

See supra note 7.

12

In view of the Board’s disposition of the issue of fault, the issue of whether the Office properly required
repayment is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2007 is affirmed in part and set aside in part. The case
is remanded for the Office to determine whether appellant is entitled to waiver of the
overpayment.13
Issued: October 15, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Appellant submitted new evidence with her appeal. The Board has no jurisdiction to review this evidence for
the first time on appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office together with a
request for reconsideration under 5 U.S.C. § 8128.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL TEXAS VETERANS HEALTH
CARE SYSTEM, Temple, TX, Employer
__________________________________________

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

Docket No. 09-2365
Issued: June 29, 2010

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 September 22, 2009 appellant filed a timely appeal of an April 27, 2009 decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration without
a merit review. Because more than 180 days elapsed from the last merit decision dated
March 25, 2009 to the filing of this present appeal on September 22, 2009, the Board lacks
jurisdiction over the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review pursuant to 5 U.S.C. § 8128(5).
FACTUAL HISTORY
On June 19, 2008 appellant, then a 47-year-old pharmacy technician, filed an
occupational disease claim alleging that she developed hearing loss in both ears due to high
levels of noise exposure in the performance of duty. She first became aware of her condition on

January 1, 2007 and realized that it was caused or aggravated by her employment activities on
June 12, 2008. Appellant did not stop work. The employing establishment controverted the
claim.
On July 2, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence.
Appellant submitted a June 27, 2008 sound level survey for the inpatient pharmacy that
tested noise levels from an auto-fill robot. The survey results indicated that the measured levels
of noise did not pose a hearing loss hazard as defined by the Occupational Safety and Health
Administration (OSHA). Appellant also submitted audiogram results dated June 12, 2008.
A July 14, 2008 attending physician’s report signed by a physician’s assistant diagnosed
high frequency hearing loss.
In a July 28, 2008 statement, appellant noted that she worked at the employing
establishment as a clerk from 1996 to 2000 where there was noise exposure from telephones and
people talking. Beginning in 2000, workplace noise exposure came from a tubes system, robot,
telephone, printer, people talking and an improperly installed air duct. Appellant first realized
her hearing loss in January 2007 when she experienced ringing in her ears. She indicated that
her physician attributed this condition to being around loud noise. Appellant noted that the
pharmacy was the only loud noise to which she was exposed. She submitted a July 31, 2008
statement reiterating her belief that she sustained hearing loss from noise exposure in her work
area at an inpatient pharmacy.
On November 3, 2008 the Office referred appellant with a statement of accepted facts
(SOAF) to Dr. Donald Matheson, a Board-certified otolaryngologist, for a second opinion. In a
November 21, 2008 report, Dr. Matheson noted that appellant reported long-term exposure to
low noise levels, tinnitus for one year and an awareness of occasional hearing difficulty. He
noted that the earliest available audiogram was dated June 12, 2008. Dr. Matheson found that as
of the date of examination appellant had normal hearing. He opined that appellant’s workplace
noise exposure was not of sufficient intensity and duration to cause hearing loss. Upon
examination, Dr. Matheson found normal ear canals and drums. He diagnosed normal ears,
normal hearing and clinical tinnitus. Dr. Matheson reiterated that appellant’s sensorineural
hearing loss was not due to noise from her federal employment as her hearing was essentially
normal and her workplace had been measured for damaging noise levels. The record also
contains an audiogram dated November 21, 2008 performed on Dr. Matheson’s behalf. Testing
at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following:
right ear 5, 5, 20 and 15 decibels; left ear 15, 15, 15 and 5 decibels.
In a February 27, 2009 report, an Office medical adviser reviewed Dr. Matheson’s report
and audiogram. The medical adviser determined that appellant’s hearing loss was not caused or
worsened by occupational noise as she had normal hearing and Dr. Matheson opined that the
noise levels at the employing establishment were insufficient to cause noise-induced hearing
loss.

2

In a March 25, 2009 decision, the Office denied appellant’s claim finding the medical
evidence insufficient to support a hearing loss connected to factors of her federal employment.
Appellant requested reconsideration on April 4, 2009. In a March 23, 2009 statement,
she indicated that she had new information about noise levels in the pharmacy that had been
discovered by her coworker, who had filed a hearing loss claim which the Office accepted. The
coworker discovered additional information about inappropriate air ducting in the pharmacy that
he believed caused excessive noise levels. Appellant also noted that her coworker gave her
permission to use the information from his claim.
Appellant attached several statements from her coworker’s claim, including a description
of his research findings on noise levels caused by airflow from the air ducts at work. She also
submitted an undated internet article regarding how to measure noise together with documents
already of record.
In an April 27, 2009 decision, the Office denied appellant’s request for reconsideration
without a merit review finding that she did not raise substantive legal questions or include new
and relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.1 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.2
ANALYSIS
Appellant’s reconsideration request included a statement dated March 23, 2009 advising
that she had additional information from a coworker supporting that inappropriate air ducting in
her workplace caused excessive noise levels. The coworker had filed a hearing loss claim for the
same workplace noise exposure that the Office had apparently accepted. Appellant has not
established why the acceptance of a coworker’s claim is relevant to the facts pertaining to her
history of noise exposure. While the reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.3 The fact that the Office accepted the claim of a
coworker is not relevant to whether appellant’s claim should be reopened for a merit review.
1

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007). See 5 U.S.C.
§ 8128(a).
2

20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

3

E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009).

3

These assertions are insufficient to show a specific point of law that was erroneously applied or
interpreted in appellant’s claim and they also do not advance a relevant legal argument not
previously considered.
Appellant submitted new evidence consisting of her coworker’s statements regarding
noise from the air ducts at work and an internet article about measuring noise. She did not
submit any additional medical evidence. This is important as the underlying issue is medical in
nature regarding whether appellant established that workplace noise caused or aggravated her
claimed hearing loss. Although the statements from appellant’s coworker and the internet article
are new, they are not relevant to the underlying medical issue and do not constitute relevant or
pertinent new evidence not previously considered by the Office.4
Appellant also resubmitted a June 27, 2007 pharmacy sound level survey and June 12,
2008 audiogram. These documents had previously been of record and considered in the Office’s
March 25, 2009 decision. They are duplicative and do not constitute a basis for reopening a
case.5
On appeal, appellant asserts that the Office improperly denied her reconsideration request
as she submitted evidence not previously of record in the form of information about sound level
measurements of her workplace duct system. As noted, the underlying issue is a medical one
and requires the submission of relevant medical evidence from a physician supporting that
appellant has a work-related hearing loss. As appellant did not submit new and relevant medical
evidence, the evidence submitted was insufficient to warrant reopening her claim for further
merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.

4

See E.M., supra note 3 (where the Board held that new evidence submitted upon a reconsideration request that
does not address the pertinent issue is not relevant evidence); Freddie Mosley, 54 ECAB 255 (2002).
5

D.K., supra note 1. D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 27, 2009 is affirmed.
Issued: June 29, 2010
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

5


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

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

Docket No. 17-1668
Issued: April 9, 2018

Case Submitted on the Record

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

JURISDICTION
On July 28, 2017 appellant filed a timely appeal from an April 18, 2017 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 OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award compensation, effective July 1, 2016 as she refused an offer of
suitable work under 5 U.S.C. § 8106(c).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On May 11, 1998 appellant, then a 26-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging a pinched nerve, tendinitis, and an aggravation of bursae in her right
shoulder causally related to factors of her federal employment. OWCP accepted the claim for right
shoulder and upper arm strain, right acromioclavicular (AC) shoulder and upper arm strain, other
joint derangement of the right shoulder, and cervical sprain. Appellant stopped work on May 29,
1998 and returned to modified work on November 23, 1998. She had intermittent periods of
disability until September 17, 2010, when she stopped work and did not return. OWCP paid wageloss compensation for total disability beginning September 17, 2010.3
Appellant underwent numerous right shoulder surgeries, including capsulorrhaphies on
April 12, 1999 and January 4, 2001, an anterior shoulder arthroscopic reconstruction on April 24,
2008, an extensive debridement of the labrum and open anterior capsulorrhaphy with coracoid
transfer on September 17, 2010, a revision anterior capsulorrhaphy and removal of a deep implant
and iliac crest bone graft on November 5, 2010, and an intraarticular debridement and AC joint
resection on October 30, 2013.
On January 15, 2015 Dr. Gregory Gramstad, a Board-certified orthopedic surgeon,
requested authorization from OWCP for additional right shoulder surgery.4
The employing establishment, on September 28, 2015, offered appellant a full-time
modified mail processing clerk position in Coppell, Texas. This entailed intermittent sitting for
seven to eight hours per day, intermittent simple grasping using a computer mouse for four hours
per day, intermittent use of the hands for data entry on a keyboard for four to six hours per day,
and using a telephone with a headset intermittently for six to seven hours per day.
On October 23, 2015 Dr. Gramstad performed a revision of the anterior posterior
capsulorrhaphy for recurrent multidirectional instability of the right shoulder and a limited
debridement of the glenohumeral joint.

2

Docket No. 09-2088 (issued April 8, 2010).

3

OWCP previously accepted that appellant sustained right shoulder strain on March 27, 2000 under File No.
xxxxxx703. It also accepted her 2006 occupational disease claim for an aggravation of right shoulder and arm
sprain/strain and an aggravation of joint derangement of the right shoulder, assigned File No. xxxxxx325. The cases
were combined under the current File No. xxxxxx330.
4

On May 14, 2015 Dr. Ronald L. Teed, a Board-certified orthopedic surgeon and second opinion physician, found
that appellant should not have shoulder surgery. He opined that she could work with restrictions. OWCP determined
that a conflict in medical opinion existed regarding the extent of disability and need for surgery. On July 1, 2015
Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon and impartial medical examiner, diagnosed generalized
ligamentous hyperlaxity and found that additional surgery was appropriate and causally related to the accepted injury.
He opined that appellant could perform light work.

2

On January 25, 2016 appellant accepted the September 28, 2015 offered position
conditional on a change in location to Portland, Oregon, for continuity of medical treatment.
In reports dated January 25 and March 3, 2016, Dr. Kevin J. Kane, an attending osteopath,
diagnosed status post shoulder surgery, cervical strain, right shoulder and arm strain, and right
shoulder joint derangement. He indicated that a “job analysis [was] approved with conditions.”
OWCP, by letter dated March 10, 2016, notified appellant that the offered position was
suitable based on Dr. Kane’s finding in his January 25, 2016 report that it was within her
restrictions. It found that there were numerous orthopedic surgeons in the area of Sulphur Springs,
TX, and informed her that residing in a different geographical area was not an acceptable reason
to refuse the offered position. OWCP provided appellant 30 days to accept the position or have
her compensation terminated.
On March 15, 2016 Dr. Kane noted that appellant had undergone seven shoulder surgeries
and that her attending orthopedic surgeons found that she could not drive over 30 minutes or work
more than four hours per day. He advised that he had reviewed her file and she was “clearly unable
to meet the demands of the job description provided by the [employing establishment] for my
approval.” Dr. Kane indicated that appellant was permanently disabled.5
In a March 16, 2016 work capacity evaluation (Form OWCP-5c), Dr. Kane found that
appellant could perform sedentary work for four hours per day. He specified that she could reach
for one hour per day, twist, bend, squat, and stoop for four hours per day, perform repetitive wrist
and elbow movements for four hours per day, and push, pull, and lift up to 10 pounds for four
hours per day. Dr. Kane determined that appellant could not reach over her shoulder, kneel, or
climb. He found that she could operative a motor vehicle at work for three hours per day and to
and from work for 30 minutes a day.
The employing establishment, on April 29, 2016, offered appellant a position as a sales
retention team member for four hours per day five days a week in Coppell, Texas. The physical
requirements including using a computer mouse intermittently for four hours per day, using a
keyboard for data entry no more than four hours per day, and pushing, pulling, and lifting up to 10
pounds no more than four hours per day.
On April 29, 2016 Dr. Kane diagnosed cervical strain, right shoulder and arm strain, and
right shoulder joint derangement. He opined that appellant was unable to perform the position
offered by the employing establishment and provided for his approval.
The employing establishment advised OWCP on May 10, 2016 that there was no work
available within appellant’s restrictions in her current geographical area of Portland, OR.
By letter dated May 10, 2016, OWCP informed appellant that the April 29, 2016 job offer
was suitable as it was within the work restrictions provided by Dr. Kane on March 16, 2016. It
provided her 30 days to accept the position or offer reasons for her refusal, and informed her of
the penalties for refusing a suitable position. OWCP notified appellant that it would pay her wage5

Dr. Kane provided a similar report on March 29, 2016.

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loss compensation for the difference between pay of the offered position and her current pay rate
for her date-of-injury position. It further noted that she was still on the rolls of the employing
establishment and thus not entitled to relocation expenses.
On May 16, 2016 appellant telephoned OWCP and advised that she still owned her former
house in Texas, but that it was located more than a 30-minute drive from the offered position. In
a letter dated June 7, 2016, she related that, after the employing establishment informed her in
2011 that there was no position within her restrictions, she moved to an area with more career
options. Appellant described her difficulty with pain and noted that the position was over 97 miles
from the home she still owned.
Dr. Kane, on May 27, 2016, measured appellant’s right shoulder range of motion and again
noted that she had seven shoulder surgeries. He diagnosed strain of the cervical spine, right
shoulder and arm, and right shoulder joint derangement. Dr. Kane opined that appellant was
unable to perform the duties of the job offered by the employing establishment and submitted for
his approval. In a May 31, 2016 work capacity evaluation (OWCP-5c), he found that appellant
was totally and permanently disabled from employment.
Appellant, on June 7, 2016, submitted a November 24, 2015 report from Dr. Julie Raggio,
a Board-certified nephrologist. Dr. Raggio diagnosed stage three chronic kidney disease,
polycystic kidney disease, and hypertension. She opined that a move “might adversely affect her
health” and recommended continued nephrology care in Portland, OR.
On June 13, 2016 OWCP informed appellant that her reasons for refusing the offered
position were not valid and provided her 15 days to accept the position or have her compensation
terminated.6 It found that Dr. Raggio did not explain why she could not receive appropriate
treatment in another location and that Dr. Kane did not provide rationale or objective findings
supporting his disability determination.
Dr. Kane, in a June 21, 2016 progress report, measured obvious atrophy at the infraspinatus
posteriorly and the anterior surgical site.7 He opined that appellant could do some keyboarding,
but was significantly limited in her use of the right arm. Dr. Kane recommended a functional
capacity evaluation (FCE) if OWCP “remains refractory to my recommendations for activity
restrictions that preclude RTW [return to work] in the jobs I have reviewed.” He diagnosed
cervical strain, right shoulder and arm strain, and right shoulder joint derangement. Dr. Kane
advised that his opinion was based on “objective findings that substantiate [appellant’s] work
restrictions/limitations….”
On June 27, 2016 appellant requested that OWCP provide her an additional 45 days to
begin work in Texas as she required time to pack and attend physician’s appointments. She noted

6

In a decision dated June 15, 2016, OWCP denied authorization for physical therapy, occupational therapy, and
massage therapy as the weight of the evidence did not establish that it was medically necessary to treat the accepted
work injury.
7

Dr. Kane provided similar reports dated June 28 and August 23, 2016.

4

that Dr. Kane had requested an FCE. Appellant questioned whether she would receive
compensation for the four hours per day she was not working.
In a decision dated July 1, 2016, OWCP terminated appellant’s entitlement to wage-loss
and schedule award compensation effective July 1, 2016 under section 8106(c)(2) as she refused
an offer of suitable work. It found that Dr. Kane’s March 16, 2016 report constituted the weight
of the evidence and established that she could perform the offered position. OWCP determined
that his June 21, 2016 report did not contain current findings on examination or address her work
abilities. It noted that appellant had not requested an extension of time to report to the job from
the employing establishment.
On September 14, 2016 OWCP expanded acceptance of appellant’s claim to include other
specified joint disorders of the right shoulder.
Dr. Susan Schmitt, a Board-certified physiatrist, evaluated appellant on September 9, 2016
at the request of Dr. Kane. She discussed her history of the right shoulder pain and resulting
surgeries. Dr. Schmitt provided findings on examination and diagnosed right shoulder pain and
instability status post seven surgeries, subscapularis insufficiency, x-ray evidence of fibrous union
of iliac crest glenoid augmentation, and significantly limited function of the right arm with
permanently reduced motion. She found atrophy of the deltoid and weakness of the right
subscapularis with “profound loss of range of motion that appears permanent and greatly limits
functional use of the right upper extremity for even small motions except for limited tasks like
grasping keys, pens, and paper.” Dr. Schmitt determined that appellant could drive 25 to 30
minutes and deferred to Dr. Kane for her work ability as she did not have an FCE to review.
Appellant, on October 13, 2016, requested reconsideration.
In a November 15, 2016 progress report, Dr. Kane discussed appellant’s complaints of
shoulder pain while cooking. He diagnosed cervical strain and right shoulder and arm strain with
joint derangement. Appellant could perform some keyboarding, but Dr. Kane found that she could
not work in the jobs that he had reviewed. Dr. Kane further noted that orthopedists had found that
she could not work more than four hours per day or drive over 30 minutes.
By decision dated December 8, 2016, OWCP denied modification of its July 1, 2016
decision.
Dr. Kane, in a January 16, 2017 progress report, advised that appellant had undergone
seven shoulder surgeries, the last a “salvage” procedure. He found that she required help with
activities of daily living. Dr. Kane related:
“[Appellant] can hardly use the right arm at all for work tasks, due to [the] risk of
reinjury with any movement due to ligamentous laxity sufficient to dislocate while
cooking recently, exacerbating her pain for several weeks.
“For these reasons, I consider her substantially disabled, and unable to resume
gainful employment with the [employing establishment].”

5

On January 19, 2017 appellant again requested reconsideration. She asserted that if she
moved back to Texas she would return to the home she still owned, which was over 100 minutes
from the offered position. Appellant noted that she could only drive 30 minutes. She submitted
proof of home ownership in Texas.
In a January 31, 2017 work capacity evaluation, Dr. Kane diagnosed cervical strain, right
shoulder and arm strain, and right shoulder joint derangement. He found that she was totally
disabled and listed work restrictions of no reaching, repetitive movements of the right wrists or
elbows, and no pushing, pulling, lifting, or operating a motor vehicle.
By decision dated April 18, 2017, OWCP denied modification of its December 8, 2016
decision. It found that the job offer was within 50 miles of her residence at the time of injury and
thus the distance was not a reason to decline the position. OWCP determined that the
contemporaneous medical evidence did not show that appellant was unable to perform the duties
of the offered position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.8 Section 8106(c)(2) of FECA9 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.10 To justify termination of compensation, OWCP must
show that the work offered was suitable and must inform appellant of the consequences of refusal
to accept such employment.11 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.12
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee has
the burden of showing that such refusal or failure to work was reasonable or justified.13 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.14
Before compensation can be terminated, however, OWCP has the burden of demonstrating
that the employee can work, setting forth the specific restrictions, if any, on the employee’s ability
8

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

9

5 U.S.C. § 8106(c)(2).

10

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

11

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

12

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

13

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 11.

14

Id. at § 10.516.

6

to work, establishing that a position has been offered within the employee’s work restrictions and
setting for the specific job requirements of the position.15 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, OWCP has the burden
of showing that the work offered to and refused by appellant was suitable.16
OWCP’s procedures provide that if the “claimant submits evidence and/or reasons for
refusing the offered position, the CE [claims examiner] must carefully evaluate the claimant’s
response and determine whether the claimant’s reasons for refusing the job are valid.”17 Regarding
acceptable reasons for refusing the position, including medical evidence of inability to do the work,
its procedures provide: OWCP procedures state that acceptable reasons for refusing an offered
position include medical evidence of inability to do the work.18
ANALYSIS
The Board finds that OWCP failed to meet its burden to proof to establish that the sales
retention team member position was suitable. OWCP accepted that appellant sustained right
shoulder and upper arm strain, strain of the AC shoulder joint, other joint derangement of the right
shoulder, and cervical strain causally related to factors of her federal employment. It paid her
wage-loss compensation for total disability beginning September 17, 2010. Appellant underwent
multiple shoulder surgeries, including an October 23, 2015 revision of an anterior posterior
capsulorrhaphy for recurrent multidirectional instability and a limited debridement of the
glenohumeral joint.
On January 25 and March 3, 2016 appellant’s attending physician, Dr. Kane, generally
indicated that a “job analysis [was] approved with conditions.” In a March 16, 2016 work capacity
evaluation, he opined that she could work four hours per day reaching for one hour per day,
twisting, bending, squatting, and stooping for four hours per day, performing repetitive movements
of the wrist and elbows for four hours per day, and pushing, pulling, and lifting up to 10 pounds
for four hours per day. Dr. Kane further found that appellant could drive to and from work for a
half hour per day and operate a motor vehicle while at work for three hours per day. Based on
these restrictions, on April 29, 2016 the employing establishment offered her a position as a sales
retention team member for four hours per day.
OWCP, on May 10, 2016, found that the offered position was within the restrictions set
forth by Dr. Kane on March 16, 2016. It provided appellant 30 days to either accept the position
or provide reasons for her refusal. In response, appellant submitted a May 27, 2016 report from
Dr. Kane finding that she was unable to perform the duties of the offered position. Dr. Kane
measured range of motion of the right shoulder and noted appellant’s history of seven shoulder
surgeries. In a May 31, 2016 work capacity evaluation, he determined that she was totally disabled
15

See Linda Hilton, 52 ECAB 476 (2001).

16

Id.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5
(June 2013).
18

Id. at Chapter 8.814.5(a)(4) (June 2013).

7

from employment. On June 21, 2016 Dr. Kane found atrophy at the posterior infraspinatus tendon
and the anterior surgical site. He indicated that appellant could perform some keyboarding but
was limited in the use of her right arm. Dr. Kane recommended an FCE if OWCP failed to accept
his finding that her restrictions prevented her return to work in the positions that he had reviewed.
He advised that he based his opinion regarding appellant’s work restrictions on objective findings.
OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective July 1, 2016 based on Dr. Kane’s March 16, 2016 work capacity evaluation. It
found that the physician failed to base his June 21, 2016 opinion on examination findings or
address her ability to work. Dr. Kane, however, provided examination findings of shoulder
atrophy and specifically indicated that he based his opinion regarding work restrictions on
objective findings. He opined that appellant was unable to perform the duties of the job offers that
he had reviewed. In J.R.,19 the Board reversed OWCP’s termination of a claimant’s compensation
when it based the termination on a prior report of an attending physician that expressed an opinion
that he no longer held and failed to address the subsequent medical opinion that indicated that
appellant could not work
The Board has held that, for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could perform
the offered position.20 As a penalty provision, section 8106(c)(2) must be narrowly construed.21
In this case, the medical evidence from appellant’s treating physician, Dr. Kane, often changed
and was unclear on the issue of appellant’s work abilities. The decision below did not reference
any of the subsequent vacillatory opinions of Dr. Kane where he opined in some instances that
appellant was temporarily disabled and not able to perform the offered job. OWCP did not secure
a medical report that reviewed the job offered and provided a clear, reasoned opinion as to its
suitability. Consequently, it has not meet its burden of proof.22
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and entitlement to schedule award compensation, effective July 1, 2016 as she refused an offer of
suitable work under 5 U.S.C. § 8106(c)(2).

19

Docket No. 15-0045 (issued September 22, 2016).

20

Annette Quimby, 49 ECAB 304 (1998).

21

See Stephen A. Pasquale, 57 ECAB 396 (2006).

22

See D.G., Docket No. 16-1492 (issued January 3, 2017).

8

ORDER
IT IS HEREBY ORDERED THAT the April 18, 2017 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 9, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
SMITHSONIAN INSTITUTION,
ASTROPHYSICAL OBSERVATORY,
Cambridge, MA, Employer
__________________________________________

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

Docket No. 16-0449
Issued: June 8, 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 January 11, 2016 appellant filed a timely appeal of a December 22, 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)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s
compensation benefits effective December 13, 2015 as he had the capacity to earn wages in the
constructed position of receptionist.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 6, 1997 appellant, then a 44-year-old antenna assembly mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on August 4, 1997 he injured his back when
helping a coworker lift a 300-pound unit. OWCP accepted his claim for lumbar strain on
February 25, 1998. Appellant returned to work in an administrative position on April 27, 1998.
OWCP accepted the additional conditions of herniated disc at L4-5.
Appellant filed a recurrence of disability (Form CA-2a) on October 5, 1998 alleging that
he returned to light duty and that his low back condition never went away. He stopped work on
October 5, 1998. OWCP accepted appellant’s claim for recurrence of total disability.
In a report dated December 21, 1998, appellant’s attending physician, Dr. Robert C.
Cantu, a Board-certified neurosurgeon, found that appellant was living with his herniated disc
fairly well. He opined that appellant could work with restrictions of lifting no more than 25
pounds and no continuous bending, stooping, or straining.
The employing establishment offered appellant a light-duty assignment as an
administrative support assistant on January 22, 1999. OWCP informed appellant on January 26,
1999 that this position was suitable for his work capacities and allowed him 30 days to accept the
position or offer his reasons for refusal.
Dr. Cantu performed a microhemilaminectomy and ruptured discectomy L4-5 on the left
on February 16, 1999. Appellant returned to light-duty work on March 29, 1999.
Appellant filed a Form CA-2a notice of recurrence on April 8, 1999 alleging that he
sustained a recurrence of total disability on April 2, 1999. He indicated that he was watching his
grandsons play baseball and bent to pick up a ball when his left leg collapsed and he fell to the
ground. OWCP accepted appellant’s recurrence claim on May 6, 1999. Dr. Cantu opined that
appellant had sustained a recurrent ruptured disc. He released appellant to return to light duty on
May 11, 1999.
In a letter dated October 20, 1999, appellant asserted that his two-year appointment as an
antenna assembly mechanic expired on September 29, 1999 and the employing establishment
terminated his light-duty position. OWCP entered appellant on the periodic rolls.
Dr. Cantu completed a note on August 10, 2000 and opined that appellant was
neurologically normal and could perform all activities that did not involve lifting, or repetitive
bending, stooping, or straining of the spine. He completed a work capacity evaluation (Form
OWCP-5c) and found that appellant could work only four hours a day with a limitation on lifting
up to 25 pounds.
OWCP referred appellant for vocational rehabilitation on August 7, 2000. He enrolled in
a vocational training program at Pioneer Computer School. The vocational rehabilitation
counselor met with the school director on April 23, 2001 regarding concerns and found that
appellant had not been taught the necessary skills as portrayed in the brochure. Appellant was
suspended from the school on April 27, 2001. He received his certificates on June 26, 2001.
Appellant was unsuccessful in his return to work and rehabilitation services were closed.
2

Appellant’s attending physician, Dr. Eric W. Romanowsky, a family practitioner,
completed a note on April 12, 2010 and opined that appellant had continuing disability and
residuals due to his accepted employment injury of 1997.
OWCP referred appellant for a second opinion evaluation with Dr. Joel A. Saperstein, a
Board-certified orthopedic surgeon, on October 21, 2010. In his November 5, 2010 report,
Dr. Saperstein found that appellant’s current restrictions were not due to his accepted
employment injury, but instead due to a degenerative low back condition.
In a report dated February 22, 2011, Dr. Romanowsky opined that appellant could
perform light-duty work. He found appellant could work 8 hours a day with restrictions
including sitting for up 45 minutes at a time, walking no more than 0.5 miles, and standing for up
to 30 minutes. Dr. Romanowsky indicated that appellant could drive for two hours at a time. He
found that appellant could lift up to 25 pounds, and could push or pull up to 50 pounds.
Dr. Romanowsky concluded that appellant needed a 10-minute break every hour.
OWCP referred appellant for vocational rehabilitation services on May 11, 2011. The
vocational rehabilitation counselor identified the positions of security guard and receptionist as
within appellant’s training and physical abilities. Appellant applied for the positions identified
by the vocational rehabilitation counselor and applied for additional positions on his own. The
vocational rehabilitation counselor informed him that he had three months of placement services
and that his file would be closed on November 28, 2011.
Dr. Romanowsky continued to provide appellant’s work restrictions and to support his
partial disability for work on February 13, 2012, March 11, 2013, February 11, 2014, and
March 2, 2015. The employing establishment was unable to provide appellant with appropriate
light-duty work.
Appellant’s vocational rehabilitation counselor reviewed appellant’s file on March 28,
2013 and June 24, 2015 and noted that he had good computer skills as well as prior computer
training. She found that the positions of receptionist and security guard were within appellant’s
work limitations. The vocational rehabilitation counselor found that the position of security
guard required the ability to communicate effectively, maintain attendance, a professional
demeanor, and provide quality customer service. She found the physical requirements of a
security guard were within appellant’s work restrictions and that it was classified as light lifting
up to 20 pounds. The vocational rehabilitation counselor further found that this position was
performed in sufficient numbers to make it reasonable available to appellant in his commuting
area through identifying positions on the internet and the state unemployment office. The
weekly wage for this position was $534.00.
The vocational rehabilitation counselor noted that the position of receptionist was a
sedentary position requiring good communication skills, typing, and knowledge of telephone
technique. She concluded that appellant had the specific skills to meet the vocational preparation
requirement of three to six months as he had excellent computer skills, previous training in web
design and graphic design, as well as prior experience ordering parts and managing inventory at
the employing establishment. The vocational rehabilitation counselor found that the job was
being performed in sufficient numbers to make it reasonable available through internet research

3

and noted that this position was expected to grow faster than the average for all occupations. She
stated that a large number of positions were available within appellant’s commuting distance and
that the weekly wage was $570.40.
Due to the disagreement between Dr. Saperstein and Dr. Romanowsky regarding whether
appellant’s continuing disability and medical residuals were due to his accepted employmentinjury, OWCP referred appellant for an impartial medical examination with Dr. Richard W.
Warnock, a Board-certified orthopedic surgeon. In his November 4, 2013, report, Dr. Warnock
found that appellant’s current conditions of degenerative lumbar disc disease and ruptured
lumbar disc at L4-5 were related to his employment injury. He opined that appellant could lift
up to 50 pounds occasionally and 25 pounds on a regular basis. Dr. Warnock also restricted
appellant from prolonged bending or stooping.
By letters dated November 3 and 4, 2015, OWCP proposed to reduce appellant’s
compensation for wage loss as he was not totally disabled and had the capacity to earn wages as
a receptionist. It found that this position was within appellant’s established work restrictions and
therefore medically suitable and that the position was vocationally suitable based on appellant’s
age, education, and experience and that the position was reasonably available within appellant’s
commuting area. OWCP afforded appellant 30 days to respond.
Appellant responded and disagreed with the proposed reduction asserting that he was
totally disabled, that he was unable to obtain a position while working with the vocational
rehabilitation counselor, and that he felt that he was not employable due to the possibility that his
back would go out. In a note dated November 10, 2015, Dr. Romanowsky indicated that in
addition to appellant’s documented activity limitations, he did experience occasional days when
his limitations were increased. However, he agreed with the history and assessment of job
potential, but disagreed that appellant was currently marketable.
By decision dated December 22, 2015, OWCP finalized the reduction of appellant’s
compensation effective December 13, 2015 finding that he had the capacity to earn wages as a
receptionist. It determined that he had wage-earning capacity of 57 percent and reduced his
compensation to $777.38 every four weeks.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2
Section 8115 of FECA3 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
the employee has no actual earnings, his wage-earning capacity is determined with due regard to
the nature of his injury, the degree of physical impairment, his usual employment, his age, his
2

E.E., Docket No. 15-1072 (issued February 23, 2016).

3

5 U.S.C. § 8115.

4

qualifications for other employment, the availability of suitable employment, and other factors or
circumstances which may affect his wage-earning capacity in his disabled condition.4
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
OWCP 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 that employee’s capabilities with regard to
his physical limitations, education, age, and prior experience. 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. Shadrick5 will result in the percentage of the employee’s loss of
wage-earning capacity. The basic range of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.6
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post-injury or subsequently-acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently-acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.7
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the constructed position of receptionist.
OWCP accepted appellant’s claim for lumbar strain and herniated disc L4-5 as well as
resulting surgery. Appellant underwent two periods of vocational rehabilitation. In its
December 22, 2015 decision, it reduced his compensation benefits based on his capacity to earn
wages as a receptionist. OWCP determined that this position was medically and vocationally
suitable for appellant. It further found that he was capable of earning $570.40 per week and had
57 percent wage-earning capacity. The Board finds that the weight of the evidence of record
establishes that appellant had the requisite physical ability, skill, and experience to perform the
position of receptionist.
The vocational rehabilitation counselor determined that appellant was able to perform the
position of receptionist. She provided a job description for receptionist which was sedentary
work requiring good communication skills, typing, and knowledge of telephone technique. The
vocational rehabilitation counselor concluded that appellant had the specific skill sets to meet the
4

Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

5 ECAB 376 (1953).

6

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

7

See John D. Jackson, 55 ECAB 465 (2004).

5

vocational preparation requirement of three to six months as he had excellent computer skills,
previous training in web design and graphic design, as well as prior experience ordering parts
and managing inventory at the employing establishment. She indicated that the position was
reasonably available within appellant’s labor market and was growing more quickly than other
positions.
As a sedentary position, receptionist duties are within appellant’s medical restrictions.
Dr. Warnock, the impartial medical examiner, found that appellant could lift up to 50 pounds
occasionally and 25 pounds on a regular basis. Dr. Romanowsky noted on November 10, 2015
that the position of receptionist was within appellant’s general restrictions, even though he
opined that appellant was not marketable. There is no medical evidence supporting appellant’s
contention that he could not perform the duties of this position.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment and age, and employment
qualifications, in determining that the position of call-out operator represented his wage-earning
capacity.8 The evidence of record establishes that appellant had the requisite physical ability,
skill sets, and experience to perform the duties and that the position was reasonably available
within the general labor market of his commuting area.
The information as set forth by the vocational counselor determined that the wages for
the position of receptionist were $570.40 per week. Applying the Shadrick9 principles, the
current pay rate for the date-of-injury position is compared with the wage-earning capacity of
$570.40 per week and a percentage of loss of wage-earning capacity is determined. OWCP
determined that appellant had 57 percent loss of wage-earning capacity and his compensation
was reduced to a net compensation of $777.38 every four weeks. The Board finds that OWCP
met its burden of proof to reduce his compensation.
On appeal, appellant asserts that Dr. Romanowsky supports that he is unable to work. He
further argues that he has been unable to find work. As explained, the medical evidence supports
that appellant is able to perform the duties of the constructed receptionist position. Furthermore,
the fact that a claimant is unable to secure employment does not establish that the constructed
position is not vocationally suitable.10
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 met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the constructed position of receptionist.
8

See E.E., Docket No. 15-1072 (issued February 23, 2016); James M. Frasher, 53 ECAB 794 (2002).

9

Supra note 5.

10

Lawrence D. Price, 54 ECAB 590 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1784
Issued: September 30, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On June 23, 2010 appellant, through his attorney, filed a timely appeal of January 14,
2010 merit decisions by a hearing representative of the Office of Workers’ Compensation
Programs (OWCP) that rescinded his claim for total disability and denied a recurrence of
disability claim. Pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.1
ISSUE
The issue is whether OWCP met its burden of proof to rescind acceptance of appellant’s
claim for a recurrence of total disability commencing March 11, 2003 and reinstating
compensation under a December 16, 2004 wage-earning capacity determination.

1

5 U.S.C. § 8101 et seq. Pursuant to 20 C.F.R. § 501.5(b) appellant, through his attorney, requested oral
argument that was scheduled for November 9, 2010. Subsequently, counsel withdrew the request and submitted the
case on the record.

On appeal, appellant’s attorney argued that OWCP failed to meet its burden of proof to
rescind acceptance of appellant’s claim for total disability. He also argued error by OWCP in the
retroactive wage-earning capacity determination as it was based on a temporary part-time job
and was issued more than 60 days after appellant returned to work.
FACTUAL HISTORY
OWCP accepted that appellant, then a 49-year-old full-time letter carrier, sustained a low
back strain and herniated disc at L4-5 on August 9, 1995 when he picked up a tub of mail. On
July 2, 1996 appellant underwent authorized surgery for a bilateral laminectomy at L4-5 and
discectomy and laminectomy at L5-S1. He returned to light modified-duty work at full time on
September 23, 1996 and received compensation for intermittent periods of disability in 2000 and
2001. Appellant received schedule awards for 21 percent impairment of the right leg and 13
percent impairment of the left leg. The period of the awards ran from April 25, 2001 to
March 11, 2003.
Dr. Justin D. Green, Board-certified in physical medicine and rehabilitation, advised that
appellant could lift up to 15 pounds, stand less than 2 hours a day, walk 1 hour a day and sit for
40 minutes at a time for 3 hours a day. He stated that appellant should lift no more than 8
pounds with one arm and push and pull less than 75 pounds. The employer provided appellant
with a light-duty position answering telephones in a seated position beginning March 28, 2002
for four hours a day. Appellant was to stand and walk intermittently for one hour each as well as
sit intermittently in a chair for four hours. He was notified that as he received compensation
under the schedule award, compensation of four hours wage loss could not issue until the
expiration of the schedule award.
On June 25, 2002 Dr. Teresa Jarmal, a family practitioner, noted appellant’s history of
injury and diagnosed chronic low back pain with degenerative disc disease. She opined that
appellant was permanently disabled and noted that he had been out on disability since his injury.
Appellant applied for disability retirement at that time.
Dr. Christopher B. Ryan, a physician Board-certified in physical medicine and
rehabilitation, completed a July 3, 2002 report. He advised that appellant underwent a total hip
arthroplasty on the right on July 10, 2002. Dr. Ryan stated that appellant developed avascular
necrosis due to steroid usage to treat his accepted back condition or as a result of changing his
body mechanics and employment duties resulting in an increased load for his hips contributing to
the development of avascular necrosis. He also suggested that appellant’s pain could have been
solely due to a hip injury as a result of lifting and twisting on August 9, 1995 in the performance
of duty.
On August 23, 2002 appellant filed a claim for compensation for total disability
commencing June 25, 2002. The record reflects that he continued to hold his light-duty position
until he received disability retirement on August 27, 2002. Appellant used eight hours of leave
beginning June 26, 2002. By letter dated January 23, 2003, counsel inquired as to appellant’s
eligibility for wage-loss compensation at the expiration of the schedule award on
March 11, 2003. In other correspondence, he also claimed that appellant’s avascular necrosis of
the right hip was a consequence of the employment injury.

2

Dr. Lynn Fernandez, an osteopath, performed a second opinion evaluation on
August 19, 2003. She reviewed the history of injury and medical treatment. Dr. Fernandez
provided findings on examination and found that, while the accepted back strain had resolved,
appellant had radiculopathy as a residual of the herniated disc. She noted that he was overweight
and had multiple other medical problems with degenerative disease due to the 1995 work injury.
Dr. Fernandez concluded that appellant could work four hours a day within specified physical
restrictions on sitting, standing and walking, with lifting of 15 to 20 pounds on occasion. She
stated that appellant should alternate sitting, standing and walking every half hour. In an
October 23, 2003 supplemental report, Dr. Fernandez advised that appellant’s right hip necrosis
condition was not a result of the August 9, 1995 employment injury.
In an October 30, 2003 letter, OWCP noted that appellant had worked four hours a day
under physical restrictions until his disability retirement on August 27, 2002. It advised that he
was not entitled to wage-loss benefits during the period of his schedule award as dual benefits
were not permitted; however, he would be entitled to wage loss for four hours a day commencing
March 12, 2003. Appellant was requested to submit an election form if he claimed benefits
under FECA. In a November 12, 2003 decision, OWCP denied appellant’s claim for his right
hip necrosis condition.
Dr. Jarmal completed a report on January 14, 2004. She noted having treated appellant
since 1996 for depression and hypertension. Dr. Jarmal stated that in appellant’s current state he
was not able to perform part-time sedentary duties and was totally disabled.
Counsel requested an oral hearing and submitted the September 6, 2004 report of
Dr. Ryan, who supported a causal relationship between appellant’s employment and his
avascular necrosis. He also contended that appellant could not have continued in sedentary
employment after the schedule award expired in March 2003.
By decision dated September 28, 2004, the hearing representative found a conflict of
medical opinion evidence between Dr. Ryan and Dr. Fernandez as to the relationship of
appellant’s avascular necrosis to his employment and ongoing disability for work due to his
accepted back condition.
Appellant submitted a letter dated November 30, 2004 from Elise Wingert, a licensed
clinical social worker, opining that appellant was unable to complete activities of daily living
including household management, cooking, cleaning, shopping transportation and assessing
community resources. He provided a physical capacity evaluation dated November 8, 2004
finding that he could lift up to 20 pounds and sit for up to 1 hour or 30 minutes as an optimum
with standing for 10 minutes and walking 5 to 10 minutes.
By decision dated December 16, 2004, OWCP found that appellant was employed as a
modified letter carrier four hours a day with weekly wages of $417.33 a week and that his actual
earnings as of March 28, 2002 fairly and reasonably represented his wage-earning capacity.
Appellant was advised that his wage-loss benefits would continue at this level.
On January 10, 2005 appellant requested reconsideration of the wage-earning capacity
determination. In a March 9, 2005 report, Dr. Jarmal listed appellant’s conditions as chronic low

3

back pain, bilateral knee arthroscopies and a total hip replacement. She also diagnosed
hypertension, depression, Bells’ palsy and syncopal episodes of an unexplained cause. On
May 19, 2005 Dr. Jarmal opined that appellant needed home assistance for cooking, cleaning,
laundry, grocery shopping and medical appointments.
OWCP referred appellant to Dr. John Tobey, Board-certified in physical medicine and
rehabilitation, for an impartial medical examination. In a report dated June 21, 2006, Dr. Tobey
reviewed appellant’s history of injury and medical treatment, noting that he had not worked
since 2002. He provided the results from physical examination. Dr. Tobey found that appellant
had a small stepping shuffling gait pattern and ambulated with the use of a walker. He diagnosed
L4-5 disc herniation and right L5-S1 radiculopathy as a result of the August 9, 1995 employment
injury. Dr. Tobey stated that there was not enough documented evidence to establish that
appellant’s avascular necrosis of the right hip was due to steroid use following the 1995 injury.
He noted that avascular necrosis was usually traumatic in nature or caused by prolonged chronic
use of oral steroids or intravenous steroids. Dr. Tobey suggested that appellant’s avascular
necrosis was due instead to his multiple syncopal falls. He found that appellant had reached
maximum medical improvement and required three epidural injections a year. Dr. Tobey found
that appellant could not work due to his multiple medical problems.
By decision dated November 8, 2006, OWCP denied appellant’s claim for avascular
necrosis. In a separate decision of the same date, it found that the December 16, 2004 wageearning capacity was in error due to an unresolved conflict. OWCP noted that Dr. Tobey
resolved the conflict in finding that appellant had no wage-earning capacity and was eligible for
total disability compensation.
On February 15, 2007 OWCP reopened the claim stating that further development was
necessary before wage-loss compensation was paid. It requested a supplemental report from
Dr. Tobey on February 16, 2007 explaining appellant’s work restrictions based on his accepted
conditions.
On March 3, 2007 Dr. Tobey reported that appellant had lumbar spine surgery in
July 1996 and was placed on maximum medical improvement when an impairment rating was
conducted on May 23, 2001. Thereafter, on September 10, 2001, he accepted a light-duty, eighthour-a-day position. Dr. Tobey noted that appellant delivered mail but underwent treatment for
his right hip condition, resulting in surgery in July 2002. As appellant was five years
postoperative from his low back, it was more reasonable than not that he was at maximum
medical improvement in September 2001 and the restrictions placed at that time were based
solely on his permanent back condition. Given that he was diagnosed with avascular necrosis of
the right hip in March 2002, the work restrictions on or about January 23, 2002 were more likely
related to the hip condition than the back condition. Dr. Tobey opined that any subsequent
change in restrictions was most likely due to the hip condition than the work-related back injury.
When he examined appellant in 2006, Dr. Tobey found appellant to be housebound due to his
significant difficulty with mobility and syncopal episodes that rendered driving dangerous. He
stated: “In retrospect, it is very difficult to differentiate his current mobility issues into that
which is spine related and that which is hip related. This is a multifactorial event … it is my
medical opinion one cannot make the assumption that his total disability is solely related to his
back condition only.”

4

On March 16, 2007 Dr. Virginia Hrywnak, an osteopath, stated that appellant had
reached maximum medical improvement in September 2001 and that his restrictions were due to
his accepted back injury. She stated that the change in work restrictions in January 2002 were
due to his back injury and based on objective radiologic findings as well as loss of mobility and
function. Appellant’s hip surgery corrected his necrosis problem, but his back condition did not
improve as his radiographs demonstrated increased pathology and his functional abilities had
decreased. Dr. Hrywnak concluded that appellant was totally disability due to his back condition
and his ability to sit, stand, walk or provide self-care was severely limited.
OWCP found a new conflict in medical opinion between Dr. Hrywnak and Dr. Tobey as
to whether appellant’s disability was related to the accepted back injury. On April 25, 2007 it
referred to Dr. Barry Ogin, Board-certified in physical medicine.2
On May 14, 2007 Dr. Ogin reviewed appellant’s history of injury and medical treatment.
Although appellant generally used a walker, he could ambulate with a very slow and symmetric
gait pattern. Dr. Ogin stated that the distribution of appellant’s numbness, weakness and balance
deficits could not be explained by his accepted spine injuries but was instead related to
peripheral vascular disease, muscular deconditioning, osteoarthritis and polyneuropathy. He
opined that the worsening of appellant’s condition and functional decline was not directly caused
by his 1995 work injury. Dr. Ogin found that appellant was totally disabled. OWCP requested a
supplemental report on August 10, 2007. On August 24, 2007 Dr. Ogin responded that
appellant’s September 10, 2001 job description and work limitations were directly related to his
August 9, 1995 employment injury. He concluded that appellant’s worsening condition after
December 2001 was not a direct result of his 1995 employment injury.
On November 16, 2007 OWCP proposed rescinding the November 8, 2006 decision that
found appellant was totally disabled. It relied on Dr. Ogin’s opinion and stated that the
December 16, 2004 wage-earning capacity determination would be reinstated. On December 17,
2007 counsel objected to OWCP’s reliance on Dr. Ogin’s reports.
In a February 7, 2008 decision, OWCP rescinded acceptance of appellant’s claim for total
disability and reinstated the 2004 wage-earning capacity determination.
On February 19, 2008 appellant requested an oral hearing. In an April 16, 2008 report,
Dr. Ryan noted that appellant used a walker and cane with high level of ambulatory dysfunction
and received periodic injections to his low back. On May 14, 2008 Dr. Ryan noted that appellant
was using forearm crutches. On July 18, 2008 he attributed appellant’s depression to his
employment injury. Dr. Ryan reviewed appellant’s history of injury and opined that his back
pain and radicular symptoms were the major problem. He stated that appellant’s conditions had
progressed. Dr. Ryan reviewed Dr. Ogin’s report and advised that appellant’s lower extremity
issues were the result of cellulitis as diagnosed in 2003 rather than peripheral vascular disease.
The most recent magnetic resonance imaging (MRI) scan of December 7, 2007 demonstrated a
posterocentral disc herniation at L3-4 and bulge L4-5 with impingement of the L4 nerve root, as
well as complete collapse of the L5-S1 disc and impingement of the L5 nerve roots bilaterally.
2

Counsel for appellant objected to the selection of Dr. Ogin under the PDS rotational system.

5

Dr. Ryan concluded that the neurologic condition manifested in appellant’s lower extremities
began in the lumbar spine.
In a December 16, 2008 decision, an OWCP hearing representative found that Dr. Ogin’s
report of reduced probative value was not based on an accurate factual background. The hearing
representative directed OWCP to revise the statement of accepted facts and make a new referral
for impartial medical examination.
OWCP revised the statement of accepted facts and referred appellant to Dr. Jeffrey
Wunder, a Board-certified physiatrist.
The employing establishment provided a surveillance report during which appellant
washed and refueled his car on March 5, 2009 without using a cane or walker. Dr. Ryan
submitted a report dated March 18, 2009 advising that appellant was increasingly home bound
and could not drive due to numbness in his lower extremities.
On March 30, 2009 Dr. Wunder reviewed the history of injury and medical treatment.
He examined appellant and found no pain behavior during the 25-minute interview that he was
able to walk without crutches and demonstrated a “wide-based, very short step, shuffling,
waddling kind of gait pattern.” Dr. Wunder found no muscle spasm in the back and limited
range of motion with breakaway manual muscle testing. He reviewed the video recording from
the employer, that appellant could walk without aids with no evidence of limping or guarding.
Dr. Wunder noted that appellant was carrying weight of approximately 20 pounds under his left
arm. He diagnosed chronic low back pain, underlying lumbar degenerative disc disease and
symptom embellishment. Dr. Wunder opined that appellant could have continued to perform his
light-duty work until his retirement in August 2002. He stated that avascular necrosis of the
right hip was not related to the accepted employment injury. Dr. Wunder found that appellant
could work eight hours a day, sitting four hours, walking and standing two hours each and
operating a motor vehicle four hours a day. He limited appellant’s lifting to 20 pounds with
occasional pushing and squatting.
In a letter dated May 7, 2009, OWCP proposed to rescind acceptance of appellant’s claim
for total disability. In a May 15, 2009 report, Dr. Ryan disagreed with Dr. Wunder’s opinion.
He took issue with the description of appellant’s gait and the extent of appellant’s light-duty
position description. Dr. Ryan stated that he had not viewed the video discussed by Dr. Wunder.
Counsel disagreed with the proposed rescission and contended that the wage-earning capacity
determination was based on stale medical evidence, that Dr. Tobey had determined appellant’s
work capacity, that Dr. Wunder was not appropriately selected and that his report was
speculative.
In a June 10, 2009 decision, OWCP rescinded the November 8, 2006 determination that
appellant was totally disabled.
Appellant requested an oral hearing on June 24, 2009. Appellant’s attorney contended
that the wage-earning capacity decision was in error as appellant could not sit for four hours a
day or drive to work due to narcotic medications.

6

By decision dated July 29, 2009, OWCP denied appellant’s claim of total disability
commencing March 11, 2003 or modification of the December 16, 2004 wage-earning capacity
determination.
Counsel requested a review of this decision. Appellant testified at the October 22, 2009
hearing that he could drive limited distances. Counsel stated that appellant no longer challenged
OWCP’s determination that his hip necrosis was not employment related.
In two decisions dated January 14, 2010, the hearing representative found that OWCP
met its burden of proof to rescind acceptance of total disability and reinstate appellant’s 2004
wage-earning capacity determination. The hearing representative also found appellant had not
established a recurrence of total disability.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.3 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.4 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, at the discretion of the compensation agency and in conformity with statutory
provisions, where there is good cause for so doing, such as mistake or fraud. It is well
established that, once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, OWCP later decides that
it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, OWCP
is required to provide a clear explanation of the rationale for rescission.6
Section 8115(a) of FECA provides that the wage-earning capacity of an employee is
determined by his actual earnings if actual earnings fairly and reasonably represent his wageearning capacity.7 The Board has held that, generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured worker’s wage-earning capacity, must be accepted as

3

5 U.S.C. § 8128.

4

D.G., 59 ECAB 734 (2008); John W. Graves, 52 ECAB 160, 161 (2000).

5

20 C.F.R. § 10.610.

6

See supra note 4.

7

5 U.S.C. § 8115(a). See J.K., Docket No. 11-159 (issued August 19, 2011).

7

such measure.8 Wage-earning capacity may not be based on an odd-lot or make-shift position
designed for an employee’s particular needs or a position that is seasonal in an area where yearround employment is available.9 Wage-earning capacity may be based on a temporary or parttime position only if the position held by the employee at the time of injury was temporary or
part time.10
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establish that he can perform the light-duty position, the employee has the burden to establish by
the weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements.11
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.12 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.13
ANALYSIS -- ISSUE 1
OWCP issued a retroactive wage-earning capacity determination on December 16, 2004
finding that appellant’s actual earnings in a modified part-time position of four hours a day fairly
and reasonably represented his wage-earning capacity as of March 28, 2002. Appellant
disagreed with this decision and alleged total disability commencing March 12, 2003, following
the expiration of his schedule award, due to his 1995 back injury and residuals.
Following the acceptance of appellant’s claim for a lumbar strain and herniated disc, for
which he underwent surgery, he initially returned to full-time modified duty in 2001 and 2002
with intermittent periods of disability. He received schedule awards that ran from April 25, 2001
to March 11, 2003 for impairment to both lower extremities. The record reflects that appellant
8

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989). Once it is determined that actual wages of a given position
represent an employee’s wage-earning capacity, OWCP applies the principles set forth in Albert C. Shadrick, 5
ECAB 376 (1953), in order to calculate the employee’s compensation.
9

See James D. Champlain, 44 ECAB 438 (1993).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(a)(1) (July 1997).
11

Terry R. Hedman, 38 ECAB 222 (1986).

12

5 U.S.C. § 8123(a). See M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

13

R.C., 58 ECAB 238 (2006).

8

was limited by Dr. Green to work at light duty for four hours a day on or about March 28, 2002.
Appellant was advised that he could not receive wage loss for four hours a day concurrently with
compensation under the schedule award. He subsequently stopped work and was found by
Dr. Jarmal to be totally disabled as of June 25, 2002. Appellant underwent surgery for a right
hip arthroplasty on July 10, 2002. He retired on August 27, 2002 and subsequently maintained
that he was entitled to compensation for total disability and that his hip condition was related to
his accepted back injury.
The record reflects that appellant received wage-loss compensation for four hours a day
following the expiration of his schedule award in 2003.14 On December 16, 2004 OWCP
formalized the finding that appellant had actual earnings with wages of $417.33 a week as of
March 28, 2002 in part-time employment that fairly and reasonably represented his wage-earning
capacity. The Board finds, however, that this wage-earning capacity decision was erroneous.
OWCP’s procedure manual provides that, when an employee cannot return to the date-ofinjury job because of disability due to the work-related injury, the claims examiner is to
determine whether actual wages in alternative employment represents the injured worker’s wageearning capacity.15 It is well established that such reemployment may not be considered as
suitable if the job is part time and the claimant was a full-time employee at the time of injury.16
OWCP found that appellant’s actual earnings in part-time employment as a modified letter
carrier fairly and reasonably represented his wage-earning capacity. Appellant was a full-time
employee at the time of injury. Through the procedure manual, the Director has determined that
when the tour of duty is not at least equivalent to that of the job held when injured, OWCP will
not consider the reemployment suitable for a wage-earning capacity determination. For this
reason, OWCP abused its discretion in determining appellant’s wage-earning capacity based on a
part-time position as of March 28, 2002, when he worked four hours a day.
Moreover, the medical evidence does not support the wage-earning capacity
determination. A conflict in medical opinion was found between Dr. Ryan, for appellant, and
Dr. Fernandez, a second opinion referral physician as to appellant’s residual back condition and
disability for work.17
Dr. Tobey, selected as the impartial medical examiner to resolve the conflict of medical
evidence, reviewed the history of injury and appellant’s medical treatment. He provided findings
on examination and diagnosed L4-5 disc herniation and right L5-S1 radiculopathy as residuals of
the accepted injury. Dr. Tobey advised that appellant’s right hip necrosis was not employment
related but found that appellant was unable to work due to his multiple medical problems.
OWCP requested that he further address appellant’s disability and on March 3, 2007, he
14

The record reflects payment of compensation from March 12, 2003 to January 20, 2007 in the net amount of
$74,270.81.
15

See supra note 10.

16

See K.V., Docket No. 11-145 (issued July 22, 2011); K.S., Docket No. 08-2105 (issued February 11, 2009).

17

A conflict was also found on the causal relationship of appellant’s right hip necrosis to his employment but, as
noted, counsel for appellant advised that he no longer contested this denial and it will not be addressed on appeal.

9

addressed appellant’s lumbar surgery in 1996. Based on his examination, Dr. Tobey stated that
in retrospect, it was very difficult to differentiate appellant’s mobility problems between his back
injury and the right hip condition. He described appellant’s disability for work as multifactorial
and that he could not make the assumption that total disability was solely due to his back
condition. The Board finds that Dr. Tobey, the impartial medical specialist, did not attribute
appellant’s disability after March, 2002 solely to his right hip necrosis; rather, he explained that
appellant’s accepted lumbar disc herniation and radiculopathy contributed to his disability. It is
well established that any contribution by accepted employment factors is sufficient to establish
the element of causal relation.18
On November 8, 2006 OWCP found that appellant was entitled to compensation for total
disability based on the finding of Dr. Tobey whose supplemental opinion was cited by OWCP,
however, as a basis for finding a new conflict with Dr. Hrywnak on the issue of appellant’s
disability due to his accepted back condition. This was error. Dr. Tobey did not eliminate
appellant’s lumbar disc condition or radiculopathy as contributing causes of his total disability.
There was no conflict in medical opinion with Dr. Hrywnak as she, too, found appellant totally
disabled due to increased pathology involving the low back which caused a decrease in
appellant’s functional abilities. For this reason, neither Dr. Ogin nor Dr. Wunder have the status
of impartial medical specialists.19
The Board finds that OWCP failed to meet its burden of proof to rescind the acceptance
of appellant’s claim of total disability commencing on March 11, 2003, following the expiration
of his schedule award. It was error to rely on the 2006 wage-earning capacity determination
made in this case as it relied upon actual earnings from part-time employment in 2002 while
appellant was a full-time employee when injured. As the wage-earning capacity was in error, the
only remaining question concerned whether he sustained a recurrence of total disability due to
residuals of his accepted lumbar conditions; a medical question which was answered in the
affirmative by Dr. Tobey.
Following receipt of the reports of Dr. Ogin and Dr. Wunder, OWCP rescinded
acceptance of appellant’s claim for total disability and reinstated the erroneous wage-earning
capacity determination. The Board finds that the weight of medical opinion in this case is
represented by Dr. Tobey, the initial impartial medical specialist. His report does not support
OWCP’s rescission of acceptance of appellant’s claim of total disability due to residuals of his
1995 lumbar disc herniation with radiculopathy.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to rescind acceptance of
appellant’s claim for total disability as of March 11, 2003.

18

See L.R. (claiming as widow of E.R.), 58 ECAB 369 (2007); Roger W. Griffith, 51 ECAB 491 (2000).

19

The opinion of Dr. Ogin was found of reduced probative value based on an inaccurate factual history prior to
referral to Dr. Wunder.

10

ORDER
IT IS HEREBY ORDERED THAT January 14, 2010 Office of Workers’
Compensation Programs’ decisions are reversed.
Issued: September 30, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11