United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket No. 09-1398
Issued: March 18, 2010

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 May 6, 2009 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated January 2, 2009, finding that she had
five percent impairment to both arms. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment of her upper
extremities, for which she received schedule awards.
FACTUAL HISTORY
On November 8, 2002 appellant, then a 38-year-old mail handler, filed an occupational
disease alleging that she developed carpal tunnel syndrome (CTS) due to factors of her federal
employment. Dr. Mark A.P. Filippone, a physician Board-certified in physical medicine and
rehabilitation, examined her on November 7, 2002 and described her right wrist and left shoulder

pain. He diagnosed bilateral CTS, bilateral ulnar neuritis and internal derangement of the left
shoulder. The Office accepted appellant’s claim for bilateral tenosynovitis of the upper
extremities. Dr. Filippone performed nerve conduction studies (NCS) on December 12, 2002
and found prolonged median motor latencies. He diagnosed bilateral CTS based on these
findings which he attributed to appellant’s employment.
The Office authorized a magnetic resonance imaging scan of appellant’s left shoulder on
January 31, 2003. This test revealed distal infraspinatus tendinosis and subacromial subdeltoid
bursitis. Appellant worked light duty eight hours a day.
Appellant filed a notice of recurrence of disability on March 14, 2003 alleging on
March 8, 2003 she stopped work due to her January 16, 2002 employment injury. In a March 7,
2003 report, Dr. Filippone noted increased left shoulder pain. He recommended carpal tunnel
releases on April 4, 2003. The Office accepted appellant’s recurrence claim on June 26, 2003. It
authorized surgical releases on July 14, 2003. The Office entered appellant on the periodic rolls
on August 5, 2003. Dr. Teofilo A. Daunajre, a Board-certified orthopedic surgeon, performed a
left carpal tunnel release on August 5, 2003. The Office expanded appellant’s claim to include
bilateral CTS on July 14, 2003. Appellant underwent electrodiagnostic testing on February 5,
2004, which demonstrated worsening of her right CTS and evidence of continued involvement of
the sensory fibers on the left side. Dr. Daunajre performed a right carpal tunnel release on
April 27, 2004. On September 10, 2004 he diagnosed mild impingement syndrome of the left
shoulder.
Dr. Filippone obtained additional electromyelogram (EMG) and NCS on July 1, 2005 and
found abnormal prolongation of the median motor latencies bilaterally and stated that the studies
were consistent with bilateral CTS. He found that appellant had reached maximum medical
improvement on October 21, 2005.
Dr. David Weiss, an osteopath, completed an evaluation on February 28, 2006 and found
focal acromioclavicular (AC) point tenderness with anterior and posterior cuff tenderness. He
provided left shoulder range of motion of forward elevation of 170 degrees, abduction of
170 degrees, adduction of 75 degrees and external rotation of 80 degrees. Dr. Weiss found that
appellant’s deltoid exhibited muscle testing of 4/5. In regard to appellant’s left wrist, he found
thenar atrophy and normal range of motion as well as positive Tinel’s and Phalen’s signs. On the
right appellant also exhibited thenar atrophy and normal range of motion with positive Tinel’s
and Phalen’s signs. Dr. Weiss also provided grip and pinch strength findings. He diagnosed
bilateral CTS and chronic AC arthropathy with impingement in the left shoulder. Dr. Weiss
applied the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) and concluded that appellant had motor strength deficit of the left deltoid of 9
percent, pinch strength deficit of 20 percent, Grade 2 sensory deficit of the median nerve of 31
percent for left upper extremity impairment of 50 percent. He found motor strength deficit of the
right deltoid of 9 percent, right lateral pinch deficit of 20 percent and Grade 2 sensory deficit of
the right median nerve of 31 percent for total right upper extremity impairment of 50 percent.
Appellant requested a schedule award on August 7, 2006.
The district medical adviser reviewed Dr. Weiss’ report on September 5, 2006 and found
40 percent impairment of the left upper extremity and 44 percent impairment of the right upper

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extremity. He based this impairment rating on Grade 2 impairment of the median nerve
bilaterally and pinch strength deficits. The district medical adviser excluded impairment for
deltoid weakness as unrelated to bilateral CTS. The Office informed the district medical adviser
on September 21, 2006 that the claim had been accepted for tenosynovitis of the shoulders and
requested a more detailed report. On September 28, 2006 the district medical adviser found that
appellant had motor strength deficit of the shoulders for 9 percent impairment each and total left
upper extremity impairment of 45 percent and right upper extremity impairment of 49 percent.
The Office found that there was a conflict of medical opinion evidence between
Dr. Weiss and the district medical adviser regarding the extent of appellant’s permanent
impairment and referred her to Dr. Thomas Nordstrom, a Board-certified orthopedic surgeon, for
an impartial medical evaluation. In a report dated August 8, 2007, Dr. Nordstrom found that she
had 10 percent impairment of the upper extremities bilaterally due to mild degree of impairment
of the median nerve at the wrist. He also found that appellant had no shoulder crepitus, swelling
or loss of motion and awarded 5 percent upper extremity impairment of the left shoulder for total
upper extremity impairments of 25 percent. The district medical adviser reviewed this report on
October 30, 2007 and stated that Dr. Nordstrom did not provide findings to support median nerve
dysfunction and instead awarded appellant three percent impairment for pain in accordance with
Chapter 18 of the A.M.A., Guides.
The Office requested a supplemental report from Dr. Nordstrom addressing the
deficiencies in his August 8, 2007 report. Dr. Nordstrom stated that appellant’s findings were
based on her subjective complaints and noted that he had utilized the fourth edition of the
A.M.A., Guides in reaching the impairment rating. He stated that he thought it was fair to award
her five percent for shoulder impairment based on her subjective symptoms.
The Office referred appellant for a second impartial medical evaluation with Dr. Edward
Krisiloff, a Board-certified orthopedic surgeon, on January 22, 2008. In a report dated
February 15, 2008, Dr. Krisiloff noted appellant’s history of injury and medical history. On
examination he found a slightly positive left shoulder impingement sign. Dr. Krisiloff noted that
appellant had excellent grip strength. He concluded that she had no left shoulder impairment.
Dr. Krisiloff noted that appellant’s only clinical finding in support of CTS was numbness in her
hands. He stated that as she had normal clinical findings with abnormal nerve testing she should
receive an impairment rating of five percent for each of her upper extremities.
The district medical adviser reviewed Dr. Krisiloff’s report on February 29, 2008 and
found he reported that appellant had no sensory deficit or muscle atrophy. He stated that the
A.M.A., Guides at page 495 provided that she should receive five percent impairment of each
upper extremity due to residual findings of CTS on electrodiagnostic testing.
The Office granted appellant a schedule award for five percent impairment of each upper
extremity by decision dated May 20, 2008.
Appellant, through her attorney, requested an oral hearing on June 10, 2008. She testified
at the oral hearing on October 28, 2008 and stated that she retired from the employing
establishment in May 2005.

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By decision dated January 2, 2009, the hearing representative affirmed the Office’s
May 20, 2008 decision.
On appeal, appellant’s attorney contends that Dr. Krisiloff’s report was not sufficient to
establish appellant’s permanent impairment for schedule award purposes as he did not consider
appellant’s preexisting shoulder condition. He further stated that the Office erred in not
requesting clarification from Dr. Krisiloff.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.4
The fifth edition of the A.M.A., Guides allows for impairment percentage to be increased
by up to three percent for pain by using Chapter 18, which provides a qualitative method for
evaluating impairment due to chronic pain. If an individual appears to have a pain-related
impairment that has increased the burden on his or her condition slightly, the examiner may
increase the percentage up to three percent. However, examiners should not use Chapter 18 to
rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.5
In evaluating CTS, the A.M.A., Guides provide that if after an optimal recovery time
following surgical decompression, an individual continues to complain of pain, paresthesias or
difficulties in performing certain activities three possible scenarios can be present. The first
situation is: “Positive clinical finding of median nerve dysfunction and electrical conduction
delay(s); The impairment due to residual CTS rated according to the sensory and/or motor
deficits as described earlier.”6 In this situation, the impairment due to residual CTS is evaluated
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit
4 (June 2003); A.M.A., Guides, 571, 18.3(b); P.C., 58 ECAB 539 (2007); Frantz Ghassan, 57 ECAB 349 (2006).
6

A.M.A., Guides 495.

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by multiplying the grade of severity of the sensory or motor deficit by the respective maximum
upper extremity impairment value resulting from sensory or motor deficits of each nerve
structure involved. When both sensory and motor functions are involved the impairment values
derived for each are combined.7 In the second scenario: “Normal sensibility and opposition
strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar
muscles: a residual CTS is still present and an impairment rating not to exceed five percent of
the upper extremity may be justified.” In the final situation: “Normal sensibility (two-point
discrimination and Semmes-Weinstein monofilament testing), opposition strength and NCS:
there is no objective basis for an impairment rating.”8
ANALYSIS
Appellant requested a schedule award and submitted a report dated February 28, 2006
from Dr. Weiss, an osteopath, in support of her claim. Dr. Weiss examined appellant’s left
shoulder and focal AC point tenderness with anterior and posterior cuff tenderness with normal
range of motion. He noted that appellant’s left deltoid had motor strength of 4/5. In regard to
appellant’s left wrist, Dr. Weiss found thenar atrophy and normal range of motion as well as
positive Tinel’s and Phalen’s signs. On the right appellant also exhibited thenar atrophy and
normal range of motion with positive Tinel’s and Phalen’s signs. Dr. Weiss also provided grip
and pinch strength findings. He diagnosed bilateral CTS and chronic AC arthropathy with
impingement in the left shoulder. Dr. Weiss applied the A.M.A., Guides and concluded that
appellant had motor strength deficit of the left deltoid of 9 percent, pinch strength deficit of
20 percent, Grade 2 sensory deficit of the median nerve of 31 percent for left upper extremity
impairment of 50 percent. He found motor strength deficit of the right deltoid of 9 percent, right
lateral pinch deficit of 20 percent and Grade 2 sensory deficit of the right median nerve of
31 percent for total right upper extremity impairment of 50 percent.
The Board notes that Dr. Weiss did not properly apply the A.M.A., Guides in reaching
his impairment rating. The A.M.A., Guides do not provide for an impairment for decreased grip
strength when addressing a compression neuropathy such as CTS.9 Furthermore, Dr. Weiss did
not provide any physical findings relating to appellant’s right shoulder, but included an
additional impairment rating for this condition. As Dr. Weiss’ report is not consistent or
comport with the A.M.A., Guides, it is not sufficient to establish appellant’s permanent
impairment.
The Board further finds that there was no existing conflict of medical opinion evidence in
the record at the time the Office referred appellant’s claim to Dr. Nordstrom, a Board-certified
orthopedic surgeon. The district medical adviser had concurred with Dr. Weiss’ findings and
application of the A.M.A., Guides despite the errors and omissions detailed above. He merely
combined the shoulder and wrist impairments rather than adding the impairments as Dr. Weiss
had done. There was no disagreement between Dr. Weiss and the Office’s physician. Therefore,
7

Id. at 494, 481.

8

Id. at 495.

9

Id. at 494.

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Drs. Nordstrom and Krisiloff should be considered Office second opinion physicians rather than
impartial medical examiners.
Dr. Nordstrom’s reports do not include sufficiently detailed findings and he failed to
apply the appropriate version of the A.M.A., Guides. He offered no reason for the impairment
ratings he reached. Therefore, Dr. Nordstrom’s reports cannot constitute the weight of medical
opinion on the extent of appellant’s permanent impairment.
In his February 15, 2008 report, Dr. Krisiloff, a Board-certified orthopedic surgeon, noted
appellant’s history of injury and medical history. On examination he found a slightly positive
left shoulder impingement sign. Dr. Krisiloff noted that she had excellent grip strength. He
concluded that appellant had no left shoulder permanent impairment. Dr. Krisiloff noted that her
only clinical finding in support of CTS was numbness in her hands. He stated that as appellant
had normal clinical findings with abnormal nerve testing she should receive an impairment rating
of five percent for each of her upper extremities. The district medical adviser reviewed this
report and concluded that the correlation of the findings corresponded with the appropriate
sections of the A.M.A., Guides, as noted above.
The district medical adviser and Dr. Krisiloff agreed that appellant demonstrated clinical
findings of numbness as well as abnormal electrodiagnostic testing following her surgical
releases and therefore in accordance with the A.M.A., Guides, had a maximum of five percent
impairment of each of her upper extremities.10 In his physical examination Dr. Krisiloff found
that she had no impairments of her left shoulder and therefore was not entitled to a schedule
award for this condition. The Board finds that detailed and well-reasoned medical evidence
establishes that appellant has no more than five percent impairment of each of her upper
extremities for which she has received schedule awards.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of each of her
upper extremities for which she has received schedule awards.

10

Id. at 495, CTS.

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2010
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

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

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

Docket No. 16-1171
Issued: November 1, 2016

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 May 11, 2016 appellant filed a timely appeal from a February 18, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish employmentrelated disability for the period beginning June 29, 2015.
FACTUAL HISTORY
On May 14, 2015 appellant, then a 45-year-old labor custodian, sustained a traumatic
injury when he lifted a bucket of water at work. He stopped work on the date of injury and did

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5 U.S.C. § 8101 et seq.

not return to work. Appellant received continuation of pay from May 15, 2015 until
June 28, 2015. OWCP accepted the claim for neck and lumbosacral sprain.
In a May 19, 2015 disability status report, Dr. Joseph Gregorace, an osteopath Boardcertified in physical medicine and rehabilitation, diagnosed acute cervical spine spasm and acute
lumbar spine spasm. He indicated that appellant was totally disabled for work. In a May 19,
2015 narrative report, Dr. Gregorace advised that appellant complained of neck and back pain.
He noted that appellant related that he was lifting a bucket of water and attempting to pour it into
a sink on May 14, 2015 when he sustained acute neck and back pain. Dr. Gregorace noted that
appellant was currently under the care of a Dr. Sessions at the Brooklyn Veterans Affairs facility
for chronic spinal pain. He indicated that appellant was a disabled veteran from the U.S. Army
since 1992 with neck and low back injuries and right ulnar neuropathy. Dr. Gregorace assessed
acute cervical and lumbar spine spasms. He again noted that appellant was totally disabled and
recommended that he refrain from returning to work. Dr. Gregorace opined that there was causal
relationship between the diagnosed conditions and the May 14, 2015 work-related accident.
In a June 8, 2015 report, Dr. Gregorace advised that appellant presented with complaints
of neck and back pain with stiffness and spasms. He noted that appellant had prior cervical and
lumbar spine derangements. In an accompanying June 8, 2015 disability status note,
Dr. Gregorace advised that appellant was 100 percent disabled from work.
Appellant submitted several claims for compensation (Forms CA-7) beginning
June 29, 2015.
In a July 17, 2015 letter, OWCP requested that the Department of Veterans Affairs (VA)
provide relevant information regarding appellant’s accepted VA conditions.
By letter dated July 17, 2015, OWCP requested that Dr. Gregorace address whether the
May 14, 2015 work injury exacerbated a preexisting condition, an explanation as to why
appellant was totally disabled, and whether appellant’s total disability was work related.
OWCP received additional evidence from Dr. Gregorace. In a June 22, 2015 report,
Dr. Gregorace advised that appellant complained of worsening neck and low back pain that
travelled down both legs. On examination he noted positive straight leg raise at 60 degrees on
the right, positive at 70 degrees on the left, and negative Spurling’s test bilaterally. Examination
of the cervical spine revealed tenderness to the mid to low cervical spine, 40 degrees flexion, 30
degrees extension, 50 degrees right rotation, 55 degrees left rotation, 50 degrees right side
bending, and 50 degrees left-side bending. Dr. Gregorace assessed cervical and lumbar spine
spasms. He recommended that appellant refrain from returning to work as his job as a custodian
would exacerbate his spinal pain and worsen his present spinal impairment.
In a July 7, 2015 report, Dr. Gregorace, advised that appellant complained of worsening
back pain and tingling in the left leg. Examination of the cervical spine revealed tenderness
throughout the mid to lower cervical spine, 42 degrees flexion, 40 degrees extension, 50 degrees
right rotation, and 55 degrees left rotation. Examination of the lumbar spine revealed spasms
along the mid to lower lumbar spine, palpation to the gluteus/piriformis muscles, supple
sacroiliac joints, negative Patrick’s test bilaterally, 50 degrees flexion, 20 degrees extension, 22

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degrees right side bending, and 25 degrees left-side bending. Dr. Gregorace assessed cervical
spine sprain/strain, lumbar spine sprain/strain, and left L5 radiculopathy. He recommended that
appellant not return to work. In an accompanying disability status report, Dr. Gregorace advised
that appellant was 100 percent disabled and unable to work.
A February 9, 2015 rating decision from the VA regarding appellant’s claim for increased
severity in his service-connected condition was submitted. It advised that in relation to his
service with the U.S. Army, appellant had radiculopathy of the right upper extremity that was 40
percent disabling, chronic myofascial pain syndrome of the thoracic and lumbar spine that was
20 percent disabling, glaucoma of the left eye which was 10 percent disabling, and an adjustment
disorder that was 10 percent disabling. It found that medical records failed to provide any
evidence that would warrant any change in its previous ratings.
By decision dated August 17, 2015, OWCP denied appellant’s request for wage-loss
compensation because the medical evidence of record did not provide a rationalized opinion
explaining why appellant was disabled due to his work-related condition. It noted that it was
unclear if appellant’s total disability was attributable to his preexisting condition or the May 14,
2015 work injury.
In an August 12, 2015 letter, the VA noted that appellant had 70 percent serviceconnected disability from September 18, 2012 until the present.
On August 28, 2015 appellant requested review of the written record by an OWCP
hearing representative and provided additional medical evidence. In a July 28, 2015 report,
Dr. Gregorace advised that appellant had prior neck and low back injuries and right ulnar
neuropathy. He also indicated that appellant was a disabled veteran from the U.S. Army.
Dr. Gregorace noted that he was unable to determine if appellant’s diagnosed condition was a
different injury, and exacerbation of prior injuries, or a worsening of his present spinal
impairments. He noted that he would be able to make a determination if he was provided with
medical records from the Brooklyn VA Medical Center where appellant was treated.
In an August 4, 2015 report, Dr. Gregorace advised that appellant presented with
complaints of low back pain with spasms and stiffness with pain traveling down to the left leg.
He noted that a lumbar spine magnetic resonance imaging (MRI) scan dated July 24, 2015
revealed disc herniation at the L3-4 and L4-5 levels with bulging discs at the L1-2, L2-3, and L5S1 levels. Dr. Gregorace also noted that a lower electromyogram and nerve conduction velocity
studies test revealed left L5 radiculopathy. In an accompanying disability status report, he
advised that appellant was unable to work. Dr. Gregorace opined that his injuries were caused
by the May 14, 2015 work incident. In an August 4, 2015 disability status report, he advised that
appellant was unable to work and that appellant’s injuries were caused by the May 14, 2015
employment injury.
In an August 19, 2015 report, Dr. Nizarali Visram, a Board-certified physiatrist and
associate of Dr. Gregorace, advised that appellant presented with persistent low back pain since a
May 14, 2015 work-related incident when he lifted a bucket of water. He noted assessed posttraumatic lumbar disc bulge at L1-2, L2-3, L4-5, L5-S1, disc herniation at L3-4 with radicular

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symptoms and myofascial pains, and post-traumatic lumbosacral radiculopathy. Dr. Visram
recommended that appellant continue with physical therapy and an epidural steroid injection.
In an August 25, 2015 report, Dr. Gregorace advised that appellant related that he had
prior neck and low back injuries. However, based on his review of a series of diagnostic MRI
scan films and various medical records, appellant did not have intervertebral disc herniation of
the spine prior to the May 14, 2015 work injury.2 Dr. Gregorace noted that the May 14, 2015
work accident caused an acute lumbar spine injury and that appellant was under his care for a left
L5 radiculopathy with lumbar spasms due to disc herniation at the L3-4 and L4-5 levels. He
opined that appellant remained totally disabled secondary to the May 14, 2015 work-related
accident. Dr. Gregorace further opined that he did not believe that the work incident aggravated
or exacerbated a preexisting condition as there was no evidence of preexisting intervertebral disc
herniation based on the multiple MRI scan performed in the past.
By decision dated February 18, 2016, an OWCP hearing representative affirmed its prior
decision. It noted that Dr. Gregorace’s reports lacked probative value as they were not based on
an accurate history of appellant’s medical conditions as evidence from the VA showed that
appellant had symptoms prior to the claimed work injury.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.3 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.4 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.5 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.6
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he was disabled for work as a result of the accepted employment injury.7

2

Several spinal diagnostic reports from 1998 through 2013 were referenced in Dr. Gregorace’s reports; however,
these reports are not found in the record.
3

See Fereidoon Kharabi, 52 ECAB 291 (2001).

4

Id.

5

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

C.S., Docket No. 08-2218 (issued August 7, 2009).

7

Sandra D. Pruitt, 57 ECAB 126 (2005).

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ANALYSIS
Appellant’s claim was accepted for neck and lumbosacral sprain. He stopped work on
the date of injury and filed claims for wage-loss compensation beginning June 29, 2015.
Appellant contends that his disability for this period was due to his accepted employment injury.
On February 18, 2016 a hearing representative affirmed the denial of compensation finding that
Dr. Gregorace’s reports lacked probative value as they were not based on an accurate history.
The Board finds that the case is not in posture for decision.
On July 17, 2015 OWCP requested that Dr. Gregorace address whether the May 14, 2015
work injury exacerbated a preexisting condition, why appellant was totally disabled, and if
appellant’s total disability was work related.
In his August 25, 2015 report, Dr. Gregorace reviewed various diagnostic records from
1998 through 2013 and concluded that appellant did not have prior intervertebral disc herniation
of the spine. He opined that appellant did not have any MRI scan evidence of preexisting
intervertebral disc herniation based on multiple spinal MRI scan performed in the past.
Dr. Gregorace noted that the May 14, 2015 work accident caused an acute lumbar spine injury
and that appellant was under his care for left L5 radiculopathy with lumbar spasms due to disc
herniation at the L3-4 and L4-5 levels. He opined that appellant remained totally disabled
secondary to the May 14, 2015 work-related accident. Dr. Gregorace further opined that he did
not believe that the work incident aggravated or exacerbated a preexisting condition as there was
no preexisting intervertebral disc herniation based on the multiple MRI scan.
Dr. Gregorace has unequivocally stated that appellant’s lumbar conditions were caused
by the work injury and that he continued to suffer from residuals of these injuries. He responded
to OWCP’s inquiry regarding appellant’s preexisting conditions and made findings on
examination. It is well established that proceedings under FECA are not adversarial in nature,
nor is OWCP a disinterested arbiter. While Dr. Gregorace’s reports do not contain sufficient
medical reasoning discharge appellant’s burden of proof, these reports raise an uncontroverted
inference of causal relationship sufficient to require further development of the case record by
OWCP.8 On remand, OWCP shall request relevant medical records from the VA and from
appellant regarding appellant’s preexisting spinal conditions. It shall then prepare a statement of
accepted facts and refer appellant to an appropriate Board-certified specialist for a second
opinion examination. The specialist shall then provide a rationalized medical opinion regarding
whether the May 14, 2015 work injury caused or contributed to appellant’s disability for work
beginning June 29, 2015. Following this and any other further development deemed necessary,
it shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that additional development of the medical evidence is needed to
establish whether appellant was disabled for the period beginning June 29, 2015 as a result of his
accepted employment injury.
8

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2016 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: November 1, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Reston, VA, Employer
__________________________________________

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

Docket No. 10-2200
Issued: June 21, 2011

Case Submitted on the Record

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

JURISDICTION
On August 27, 2010 appellant filed a timely appeal from the May 7, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) concerning a wage-earning capacity
determination. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
September 15, 2008 based on his capacity to earn wages as an investigator.
FACTUAL HISTORY
On June 18, 2005 appellant, then a 41-year-old air marshal, sustained several workrelated injuries, including contusions of the left elbow and forearm; sprains of the left elbow,
1

5 U.S.C. §§ 8101-8193.

wrist, forearm and radial collateral ligament; left lateral epicondylitis and left carpal tunnel
syndrome.
On November 2, 2006 appellant was referred for vocational rehabilitation services. On
April 11, 2007 OWCP approved a training plan for him to receive training to become a computer
security coordinator, information processing engineer or information manager. The training was
stopped due to the fact that the university appellant was attending no longer had funding for his
degree program.
In an October 23, 2007 report, Dr. Thomas W. Harris, an attending Board-certified
orthopedic surgeon, stated that appellant was partially disabled as a result of his employment
injuries. Appellant could work with permanent restrictions including no above the left shoulder
level work and no forceful or repetitive activities involving pushing, pulling, lifting, gripping,
grasping or torquing with the left upper extremity. In a March 26, 2008 report, Dr. Harris
indicated that appellant’s condition was permanent and stationary with the limitations set forth in
his October 23, 2007 medical report.
Appellant’s rehabilitation counselor reported that, based upon appellant’s experience,
education, medical restrictions and a labor market survey, he was employable as an investigator.
The position was found to be reasonably available in appellant’s commuting area with an
average wage of $440.00 per week. In an April 24, 2008 letter, OWCP advised appellant that the
investigator position was within his work restrictions and that he would receive 90 days of
placement assistance to help him locate work in such a position. Vocational rehabilitation
services did not result in appellant obtaining employment.
The position of investigator required investigating cases of fraud involving the use of
charge cards reported lost or stolen, cash refunds, and nonexistent accounts in retail stores. An
investigator receives information from credit, sales, and collection departments regarding
suspected fraud cases, interviews store personnel and questions suspected customers to obtain
evidence. It is defined as a sedentary and light position with physical demands including sitting
at a desk using a telephone or computer, patrolling, charting activities, and opening doors and
locks.
In an August 14, 2008 letter, OWCP advised appellant of its proposed reduction of his
compensation based on his capacity to earn wages in the constructed position of investigator. It
provided appellant 30 days to provide evidence and argument challenging the proposed action.
In a September 15, 2008 decision, OWCP reduced appellant’s compensation effective
September 15, 2008 based on his capacity to earn wages as an investigator. It indicated that it
did not receive evidence or argument showing that the wage-earning determination was
improper.
Appellant requested a hearing before an OWCP hearing representative. At the
February 23, 2009 hearing, counsel argued that the reduction of benefits was improper because
OWCP had failed to exhaust all possibilities of reemployment with appellant’s agency before
proceeding to reemployment with a new employer. He stated that the agency had never
precluded the possibility of reemployment and in fact had recently offered appellant a job.

2

Counsel stated that appellant declined the job offer on the basis that it was not suitable and
asserted that the agency was still endeavoring to make an accommodation. He maintained that if
appellant had accepted reemployment elsewhere his right to return to work with the agency
would have been forfeited. Counsel argued that it was unjust for OWCP to require appellant to
either pursue reemployment outside the agency or give up his right to reemployment with the
agency.
In an April 27, 2009 decision, an OWCP hearing representative affirmed the
September 5, 2008 OWCP decision finding that appellant was vocationally and physically
capable of earning wages as an investigator. He indicated that appellant’s agency did not make
an offer of reemployment within a reasonable period of time and OWCP acted reasonably and
responsibly from a fiduciary standpoint in moving appellant’s vocational rehabilitation program
towards retraining and placement with a new employer.
Appellant requested reconsideration of his claim on September 11, 2009 and continued to
argue that finding work with an employer other than his agency would have jeopardized his
ability to later work for the agency.
In a May 7, 2010 decision, OWCP affirmed the April 27, 2009 decision of the OWCP
hearing representative. It again indicated that appellant’s claim that his agency prevented him
from finding outside work was an invalid argument.
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 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.3
Under section 8115(a) of FECA, 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
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.4
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.5 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in

2

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

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

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

5

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

3

which the employee lives.6 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his
commuting area.7
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 or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor 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
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.8
ANALYSIS
In the present case, it was accepted that appellant sustained contusions of the left elbow
and forearm; sprains of the left elbow, wrist, forearm and radial collateral ligament; left lateral
epicondylitis and left carpal tunnel syndrome. OWCP received information from his attending
Board-certified orthopedic surgeon, Dr. Thomas, who found that appellant was not totally
disabled for work and had a partial capacity to perform work for eight hours per day subject to
specified work restrictions.9 Appellant’s vocational rehabilitation counselor then determined that
appellant was able to perform the position of investigator and that state employment services
showed the position was available in sufficient numbers so as to make it reasonably available
within appellant’s commuting area. OWCP properly relied on the opinion of the rehabilitation
counselor that appellant was vocationally capable of performing the investigator position and a
review of the evidence reveals that appellant is physically capable of performing the position.
The Board notes that the limited physical requirements of the investigator position are well
within the work restrictions recommended by Dr. Thomas. The investigator position is defined
as a sedentary and light position with respect to physical requirements. Appellant did not submit
any evidence or argument showing that he could not vocationally or physically perform the
investigator position.10
6

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
7

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

8

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
9

Dr. Thomas indicated that appellant could work with permanent restrictions including no above the left shoulder
level work and no forceful or repetitive activities involving pushing, pulling, lifting, gripping, grasping or torquing
with the left upper extremity
10

Appellant argued that seeking employment outside his agency would preclude him from ever working for the
agency in the future. He did not present adequate support for this argument or explain how it was relevant to the
requirements for receiving compensation under FECA.

4

OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of investigator represented his wage-earning capacity.11 The
weight of the evidence of record establishes that he had the requisite physical ability, skill and
experience to perform the position of investigator and that such a position was reasonably
available within the general labor market of his commuting area. Therefore, OWCP properly
reduced appellant’s compensation effective September 15, 2008 based on his capacity to earn
wages as an investigator.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
September 15, 2008 based on his capacity to earn wages as an investigator.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Clayton Varner, 37 ECAB 248, 256 (1985).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Hanover, MD, Employer
__________________________________________

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

Docket No. 19-0626
Issued: March 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 29, 2019 appellant filed a timely appeal from an August 2, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision, dated July 25, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.3

1

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated December 6, 2019, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 19-0626 (issued December 6, 2019).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 2, 2018 decision OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 13, 2017 appellant, then a 44-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that he injured his back on December 12, 2016 when he
experienced back pain upon standing following a mission flight while in the performance of duty.
He initially stopped work on January 23, 2017. On March 29, 2017 OWCP accepted this claim
for aggravation of intervertebral lumbar disc disorders with radiculopathy.
On December 19, 2016 appellant underwent lumbosacral spine x-rays at the request of
Dr. Allan H. Tissenbaum, a Board-certified orthopedic surgeon, which demonstrated mild
degenerative changes in his back with no close disc space narrowing. Beginning on January 23,
2017 appellant’s chiropractor, Dr. Peter Peduzzi, indicated that appellant was totally disabled
through March 27, 2017. On January 24, 2017 appellant underwent a lumbar magnetic resonance
imaging (MRI) scan, which demonstrated desiccation of disc material at L4-5 and L5-S1 and
multilevel disc bulges, facet degenerative arthropathy, and ligament hypertrophy with no
significant compromise of the spinal canal or neural foramen.
In a form report dated March 14, 2017, Dr. Gerard Werries, a Board-certified orthopedic
surgeon, diagnosed intervertebral disc disorders with radiculopathy and indicated that appellant
was partially disabled from March 14 through approximately April 25, 2017. He noted that
appellant’s work status was to be determined at the April 25, 2017 appointment. In a form note of
even date, Dr. Werries diagnosed lumbar spondylosis with radiculopathy and reported that
appellant could return to work on March 14, 2017. He opined that appellant was unable to perform
the duties of an air marshal and provided work restrictions on lifting more than 25 pounds.
Dr. Werries indicated that appellant could occasionally bend, climb stairs, crawl, squat, reach,
push, pull, grasp, and perform both fine manipulation and repetitive motion. He found appellant
should not climb ladders.
Beginning on March 17, 2017 appellant filed claims for compensation (Form CA-7)
requesting leave without pay (LWOP) from March 12 through July 22, 2017.
On April 12, 2017 Dr. David Dechellis, an osteopath, performed a lumbar epidural steroid
injection.
On April 24, 2017 the employing establishment offered appellant a limited-duty position
providing reception desk duties. It reoffered him this position on May 17, 2017.
In a May 9, 2017 narrative and form reports, Dr. Werries diagnosed intervertebral disc
disorders with lumbar radiculopathy and indicated that appellant’s work restrictions had not
changed.
In a May 22, 2017 development letter, OWCP requested additional evidence supporting
that appellant was totally disabled from March 12, 2017. It afforded him 30 days for a response.

2

In a May 24, 2017 letter, the employing establishment offered appellant a light-duty
position as a federal air marshal performing the duties of a ground-based administrative employee.
The physical requirements included lifting up to 25 pounds, occasional bending, climbing stairs,
crawling, squatting, reaching, pushing, pulling, grasping, fine manipulation, and repetitive motion.
The position included reception desk duties such as answering telephones, e-mails, greeting guests,
and light reception work with no defensive measures or firearms training. The employing
establishment afforded him until May 30, 2017 to respond to the offer.
On May 25, 2017 Dr. Peduzzi indicated that appellant could not perform the duties of the
offered light-duty position and that he was not cleared for any light-duty work at this time. He
indicated that appellant could only sit, stand, or drive as necessary to attend medical appointments
or limited errands for less than 30 minutes.
Through a May 30, 2017 e-mail, the employing establishment noted that appellant had
submitted medical evidence that he was totally restricted from duty, including limited duty. It
requested additional medical documentation as appellant had previously been released to perform
limited duty with restrictions.
In a May 30, 2017 note, Dr. Werries indicated that appellant could perform light-duty work
including answering the telephone while seated, using a computer while seated, greeting visitors
and signing for light deliveries, and performing other light duties within the scope of his limitations
as listed on an OWCP-5. He completed a form report of even date and indicated that appellant
could perform sedentary duty.
On June 5, 2017 Dr. John William Bookwalter, a Board-certified neurosurgeon, examined
appellant and diagnosed lumbar radiculopathy. He noted that appellant experienced lumbar pain
after standing from a seated position on an airplane on December 12, 2016. Dr. Bookwalter
completed a June 15, 2017 form report and indicated by checking a box marked “yes” that
appellant’s condition was caused or aggravated by an employment activity noting that appellant
sustained a work injury on the job. In a narrative report of even date, he opined that appellant had
sustained a likely aggravation of degenerative disc disease on December 12, 2016. Dr. Bookwalter
indicated that appellant was totally disabled beginning June 5, 2017 and directed appellant to
undergo right lower extremity electrodiagnostic testing. On June 20, 2017 appellant underwent
electrodiagnostic studies which were normal with no polyneuropathy, no right lower extremity
radiculopathy, plexopathy, or peripheral mononeuropathy.
On July 11, 2017 Dr. Werries found that appellant could not return to modified duty and
recommended a functional capacity evaluation. He diagnosed lumbar spondylosis and restricted
appellant’s use of firearms. In a narrative report of even date, Dr. Werries noted that appellant
denied recurrent trauma or progressive neurological deficits. He reported that appellant had a
normal gait, could perform heel and toe walking and that both lower extremities were
neurovascularly intact. Dr. Werries diagnosed intervertebral disc disorders with radiculopathy, in
the lumbar region.
By decision dated July 25, 2017, OWCP denied appellant’s claim for disability for the
period April 30, 2017 and continuing as causally related to his accepted January 13, 2017
employment injury.

3

On June 29, 2017 Dr. Bookwalter reviewed appellant’s diagnostic studies and found no
evidence of radiculopathy. He opined that appellant had aggravated his lumbar degenerative disc
disease and perhaps facet arthropathy. Dr. Bookwalter found that appellant could perform light
duty.
On September 25, 2017 appellant accepted a light-duty position performing reception desk
duties.
On July 27, 2018 appellant requested reconsideration of the July 25, 2017 OWCP decision.
He alleged that the employing establishment and nurse had made an error on one of Dr. Werries’
March 14, 2017 reports to indicate that he could return to work on that date. Appellant reported
that he utilized continuation of pay from January 23 through March 6, 2017. He resubmitted
Dr. Werries’ March 14, 2017 form report noting that it indicated that he was totally disabled
through April 25, 2017. Appellant also resubmitted Dr. Werries’ April 25, 2017 form report which
provided his work restrictions.
By decision dated August 2, 2018, OWCP denied appellant’s request for reconsideration
finding it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions.5 OWCP’s
regulations6 establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision. A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.7 Timeliness is determined by the
document receipt date, the received date in OWCP’s Integrated Federal Employees’ Compensation
System (IFECS).8 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.9
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision
was in error.10 OWCP procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
4

5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

6

V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); 20
C.F.R. § 10.607(a); Alberta Dukes, 56 ECAB 247 (2005).
7

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010);
M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993);
Jesus D. Sanchez, 41 ECAB 964 (1990).

4

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.11 In
this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on
the prior evidence of record.12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.15 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion.16 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.17 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.18 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.19
ANALYSIS
The Board finds that OWCP properly denied appellant’s July 27, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The most recent merit decision was OWCP’s July 25, 2017
decision, which denied appellant’s total disability claim for the period beginning April 30, 2017.
OWCP received his request for reconsideration on July 27, 2018, which was outside the one-year
11

D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

12

V.G., supra note 6; E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB
919 (1992).
13

S.T., supra note 9; see C.V., supra note 10; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB
1153 (1992).
14
S.T., supra note 9; see E.P., supra note 12; Pasquale C. D Arco, 54 ECAB 560 (2003); Leona N. Travis, 43
ECAB 227 (1991).
15

L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 6; see C.V., supra note 10; Leon J.
Modrowski, supra note 10; Jesus D. Sanchez, supra note 10.
16

V.G., supra note 6; see E.P., supra note 12; Leona N. Travis, supra note 14.

17

L.B., supra note 15; V.G., supra note 6; see E.P., supra note 12; Nelson T. Thompson, supra note 12.

18

D.G., supra note 11; Leon D. Faidley, Jr., 41 ECAB 104 (1989).

19

C.V., supra note 10; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition
for recon. denied, 41 ECAB 458 (1990).

5

time limit. Consequently, appellant has the burden of proof to demonstrate clear evidence of error
by OWCP in denying his claim for compensation.
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision. Appellant resubmitted
Dr. Werries March 14 and April 25, 2017 form reports. He contended that Dr. Werries did not
intend to release him to return to light-duty work on March 14, 2017 as the two reports of that date
are inconsistent regarding his ability to work. OWCP denied appellant’s claim as he failed to
establish that he was totally disabled on or after April 30, 2017 due to his accepted employment
injury. The conflicting reports from Dr. Werries regarding the extent of appellant’s disability from
March 14 through approximately April 25, 2017 do not address the specific period denied by
OWCP and do not provide medical reasoning addressing whether or not appellant was totally
disabled during the period claimed. As such, this evidence does not address the relevant issue.20
The term “clear evidence of error” is intended to represent a difficult standard, and the argument
provided here is not the type of positive, precise, and explicit evidence which manifested on its
face that OWCP committed an error in its July 25, 2017 decision.21 Even a detailed, wellrationalized medical report, which would have created a conflict in medical opinion requiring
further development if submitted prior to issuance of the denial decision, does not constitute clear
evidence of error.22 It is not enough to show that evidence could be construed so as to produce a
contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.23
The Board finds that appellant has not raised an argument or submitted any evidence that
manifests on its face that OWCP committed an error in denying his claim for total disability
beginning April 30, 2017. Appellant has therefore not provided evidence of sufficient probative
value to raise a substantial question as to the correctness of OWCP’s decision. Thus, the Board
finds that the request failed to demonstrate clear evidence of error.24
CONCLUSION
The Board finds OWCP properly determined appellant’s request for reconsideration was
untimely filed and failed to demonstrate clear evidence of error.

20

R.A., Docket No. 18-0370 (issued November 7, 2019); F.R., Docket No. 09-0575 (issued January 4, 2010)
(evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear evidence
of error).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016).

22
E.B., Docket No. 18-1091 (issued December 28, 2018); D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624
(issued December 5, 2013).
23

E.B., id.; M.N., Docket No. 15-0758 (issued July 6, 2015).

24

E.B., id; M.B., Docket No. 17-1505 (issued January 9, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
U.S. SENATE SERGEANT-AT-ARMS,
LAW ENFORCEMENT & SECURITY
OPERATIONS, Washington, DC, Employer
__________________________________________

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

Docket No. 14-497
Issued: June 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 3, 2014 appellant filed a timely appeal from a July 8, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant established any permanent impairment based on his
accepted cervical condition.
On appeal appellant argues that a Dr. Harold Pye’s April 5, 2013 report established five
percent impairment of the right upper extremity and four percent impairment of the left upper
extremity due to his cervical injury.

1

5 U.S.C. § 8101-8193.

FACTUAL HISTORY
On July 2, 2008 appellant, then a 62-year-old deputy assistant Sergeant-at-Arms, was
moving a filing cabinet to retrieve a bag that had fallen behind it when he felt a pop in his right
shoulder. OWCP accepted the conditions of right shoulder rotator cuff syndrome and
displacement of cervical discs at C4-5 and C5-6. It paid benefits, including an April 28, 2010
right shoulder arthroscopy.
On June 29, 2011 appellant filed a Form CA-7 claim for a schedule award. In a March 7,
2011 report, Dr. Bernard R. Bach, Jr., a Board-certified orthopedic surgeon, opined that appellant
had 19 percent impairment of the right arm due to loss of range of motion and weakness under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). He noted that he was more comfortable using the fifth edition
than the sixth edition.
In a June 22, 2011 report, Dr. Edward J. Goldberg, a Board-certified orthopedic surgeon,
opined that appellant had 25 percent cervical spine whole person impairment under the fifth
edition of the A.M.A., Guides. He noted that the impairment rating was in addition to the
impairment rating of the right shoulder and upper extremity, as performed by Dr. Bach. In an
August 8, 2011 report, Dr. Goldberg opined that appellant reached maximum medical
improvement for his cervical condition. Under the sixth edition of the A.M.A., Guides, he
opined that appellant had 24 percent impairment of the cervical spine.
In an October 6, 2011 report, Dr. Christopher R. Brigham, an OWCP medical adviser,
reviewed the medical evidence of record, including the reports of Dr. Goldberg and Dr. Bach.
He opined that appellant had reached maximum medical improvement on March 7, 2011, the
date of Dr. Bach’s evaluation. Dr. Brigham found that the reports of Dr. Bach and Dr. Goldberg
were not in conformance with the sixth edition of the A.M.A, Guides. He applied the sixth
edition of the A.M.A., Guides to the examination findings of the physicians and rated 12 percent
impairment of the right upper extremity related to the shoulder injury and zero percent (no)
impairment as a result of the accepted cervical conditions. Calculations and tables used under
the A.M.A., Guides were provided.
By decision dated April 18, 2012, OWCP granted appellant a schedule award for 12
percent impairment of the right arm due to his accepted shoulder condition. The weight of
medical opinion was accorded to Dr. Brigham, who applied the sixth edition of the A.M.A.,
Guides to the impairment evaluations of appellant’s treating physicians.
On April 10, 2013 appellant requested reconsideration, stating that the sole purpose of his
request was based on the denial of any impairment due to his accepted cervical condition. He
disagreed with OWCP’s review of the medical evidence and requested that an award be made
based on the impairment rating by Dr. Pye of five percent to the right arm and four percent to the
left arm. Appellant also submitted medical reports and diagnostic testing previously of record.
In an April 5, 2013 report, Dr. Pye reviewed the history of injury and medical record and
presented findings on examination. He noted bilateral peripheral nerve damage of the median
and radial nerves. Dr. Pye indicated that there was decreased sensation in both the median and

2

radial distribution over the right upper extremity and a decreased distribution in the median nerve
distribution over the left upper extremity. He opined that appellant reached maximum medical
improvement from his accepted right shoulder and cervical spine conditions and that an
impairment rating under the sixth edition of the A.M.A., Guides was appropriate. Dr. Pye
advised that the impairment rating was appended. The record, however, is devoid of the
appended impairment rating from Dr. Pye.
By decision dated July 8, 2013, OWCP denied modification of its prior decision. It found
Dr. Pye’s medical report was irrelevant because he did not provide any physical findings related
to appellant’s impairment or provide permanent impairment calculations based on the sixth
edition of the A.M.A., Guides.
LEGAL PRECEDENT
FECA provides that, if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.2 Neither FECA nor the regulations specify the
manner in which the percentage of impairment for a schedule award shall be determined. For
consistent results and to ensure equal justice for all claimants OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.3 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides.4
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.5 OWCP
procedures provide that to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.6
ANALYSIS
OWCP accepted the conditions of right shoulder rotator cuff syndrome and displacement
of cervical discs at C4-5 and C5-6 due to the work incident of July 2, 2008. Appellant received a

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

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

5

Tammy L. Meehan, 53 ECAB 229 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(b) (August 2002).

3

schedule award for 12 percent impairment to his right arm due to his accepted shoulder
condition. OWCP found no permanent impairment based on his cervical condition.7
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back, spine or the body as a whole.8 A schedule award is
permissible where the employment-related spinal condition affects the upper or lower
extremities.9 The sixth edition of the A.M.A., Guides does not provide a separate mechanism for
rating spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP’s procedures note that The
Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) is to be applied.10
The evidence of record does not contain any medical opinion regarding impairment due
to the accepted cervical condition. Appellant submitted evidence previously of record with an
April 5, 2013 medical report from Dr. Pye. The Board notes that the medical evidence of record
was reviewed and found insufficient to establish permanent impairment based on the L4-5 or
C5-6 cervical disc conditions.
In an April 5, 2013 report, Dr. Pye stated that appellant had bilateral peripheral nerve
damage from the cervical spinal injury and that an impairment rating under the sixth edition of
the A.M.A., Guides was appropriate. He also noted that maximum medical improvement had
been reached. Dr. Pye found decreased sensation in both the median and radial distribution over
the right upper extremity and a decreased distribution in the median nerve distribution over the
left upper extremity, but his report lacks sufficient detail for an impairment rating to be
performed. He noted that an impairment rating was attached, but there is no such rating of
record. Appellant did not submit any other medical evidence which addressed the extent of
permanent impairment causally related to his accepted cervical condition. The record lacks a
probative rating pursuant to the A.M.A., Guides. Thus, there is no medical evidence which
demonstrates that the accepted cervical condition caused a permanent impairment.
On appeal appellant contends that the evidence submitted on reconsideration was not
mentioned or considered. He further contends that Dr. Pye’s report set forth a nine percent
bilateral impairment to the upper extremities due to his cervical injury. As noted, the evidence
submitted on reconsideration does not contain the addendum from Dr. Pye. It is appellant’s
burden to establish that he sustained a permanent impairment as a result of the employment

7

As appellant has not disagreed with the impairment awarded as a result of his accepted right shoulder condition,
it will not be addressed.
8

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

Supra note 8 at Chapter 2.808.

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also supra note 8 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.

4

injury.11 There is no medical evidence which establishes that the accepted cervical condition
caused permanent impairment to his arms. OWCP properly denied his schedule award claim.
The medical evidence does not establish that appellant has permanent impairment to his
arms causally related to his accepted cervical condition. Consequently, he has not established
entitlement to a schedule award based on the accepted cervical condition.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment based on the accepted cervical condition.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 4, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Tammy L. Meehan, supra note 5; B.A., Docket No. 12-1135 (issued November 20, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Hines, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-55
Issued: April 8, 2015

Case Submitted on the Record

ORDER REMANDING CASE

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

On October 10, 2014 appellant filed a timely appeal from the August 22, 2014 decision
of the Office of Workers’ Compensation Programs (OWCP), denying her request for
reconsideration as it was untimely filed and failed to establish clear evidence of error. The
appeal was docketed as No. 15-55. Having reviewed the case record submitted by OWCP, the
Board finds that OWCP improperly denied further merit review of appellant’s case.
OWCP accepted appellant’s claim for sprain of the back, lumbar region, right, and
lumbosacral spondylosis without myelopathy. In a decision dated July 5, 2013, it found that she
had not met her burden of proof to establish permanent impairment. On July 9, 2014 appellant
again requested a schedule award and submitted medical evidence utilizing the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009)
(hereinafter, A.M.A., Guides) which supported permanent impairment. In an August 22, 2014
decision, OWCP found that the request was untimely filed and failed to present clear evidence of
error. It did not review the medical evidence.
The Board has held that where a claimant submits medical evidence regarding a
permanent impairment at a date subsequent to a prior schedule award decision, he or she is

entitled to a merit decision on the medical evidence.1 In the present appeal, appellant submitted
new medical evidence supporting impairment after OWCP’s July 5, 2013 decision denying her
claim for a schedule award. Moreover, it contained an impairment rating that referenced the
A.M.A., Guides. It is evident from the record that appellant was not seeking reconsideration of
the July 5, 2013 OWCP decision, but was seeking a schedule award based on new medical
evidence.
The case will be remanded for further development on the issue of whether appellant has
a permanent impairment due to her accepted conditions. After this and any other appropriate
development, OWCP shall issue a de novo decision on her claim.
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs be set aside, and the case is remanded for further
development consistent with this order.
Issued: April 8, 2015
Washington, DC

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

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

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

1

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228
(2007) (where it was evident that the claimant was seeking a schedule award based on new and current medical
evidence, OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an
application for reconsideration).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nokomis, FL, Employer
__________________________________________

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Appearances:
Dean Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1048
Issued: January 31, 2007

Case Submitted on the Record

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

JURISDICTION
On March 31, 2006 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated August 18, 2005, in which the a hearing representative
affirmed the termination of her medical and monetary compensation based on her refusal of
suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation on the
grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On July 26, 2001 appellant, then a 36-year-old rural carrier, filed an occupational disease
claim alleging that on May 25, 2001 she developed neck and shoulder pain while performing her

letter carrier duties. In a decision dated January 3, 2002, the Office accepted appellant’s claim
for cervical herniated discs at C5-6 and C6-7. Appellant stopped work on July 23, 2001 and did
not return.
A magnetic resonance imaging (MRI) scan of the cervical spine dated March 22, 2002,
revealed a tiny disc bulge at C6-7. An MRI scan of the left shoulder dated April 16, 2002
revealed no abnormalities. Appellant sought treatment from Dr. Walter E. Afield, Boardcertified in psychiatry and neurology. In reports dated May 10 to October 22, 2002, Dr. Afield
noted a history of appellant’s injury and diagnosed chronic pain due to bulging discs,
questionable reflex sympathetic dystrophy and a depressive reaction. On May 10, 2002 he
performed an in-depth behavioral assessment and diagnosed chronic pain due to bulging discs,
questionable reflex sympathetic dystrophy, possible surgical recommendation and depressive
reaction, severe and overwhelming. Dr. Afield indicated that appellant was injured at work and
subsequently became exhausted and depressed. He advised that appellant needed intensive
psychotherapy for her depression and a pain management program that addressed physical
problems that she was experiencing. In a report dated May 29, 2002, Dr. Afield diagnosed
severe depression and opined that appellant’s depression was caused by her accepted cervical
condition. He indicated that the chronic pain, reflex sympathetic dystrophy, possible surgery and
profound depression were incapacitating appellant. Dr. Afield opined that appellant’s diagnosed
conditions were causally related to her work injury and that she was totally disabled.
On September 19, 2002 the Office referred appellant for a second opinion to
Dr. Mohammed Y. Memon, a Board-certified neurosurgeon, to determine whether she had any
residuals of her work-related cervical condition and her work capacity. In a report dated
October 15, 2002, Dr. Memon indicated that he reviewed the records provided to him, noted
appellant’s history and provided findings on examination. He diagnosed subjective pain and
numbness, objective findings of spasm and tenderness of the left trapezius and mild tenderness in
the paraspinal area and cervical region. Dr. Memon advised that appellant was not a surgical
candidate and recommended that she be detoxified completely before being evaluated for her
pain. He advised that appellant was totally disabled.
Appellant submitted reports from Dr. Afield dated October 31, 2002 to January 24, 2003.
Dr. Afield noted that appellant continued psychotherapy and was on Methadone for her pain. In
reports dated January 15 to 24, 2003, he advised that appellant was overwhelmed with stress and
overmedicating herself. Dr. Afield believed appellant was “doctor shopping” in an attempt to
obtain additional medication. He recommended that appellant seek treatment for her substance
abuse and advised that she was totally disabled.
In a letter dated November 26, 2002, the Office requested a supplemental report from
Dr. Memon and authorized additional testing if necessary. In a report dated December 3, 2002,
Dr. Memon advised that he found no objective neurological findings to support disability and
determined that appellant’s symptoms of pain and numbness were subjective. He opined that
appellant could return to work and recommended a computer tomography myelogram.

2

Appellant submitted reports from Dr. Edward Sleight, a specialist in pain management,
dated March 19 to July 10, 2003, who noted that appellant presented with neck, left shoulder and
arm pain and migraine headaches and diagnosed cervalgia and neuropathy. Dr. Sleight advised
that appellant’s injuries caused her to be depressed.
On July 23, 2003 the Office found a conflict of medical opinion existed between
Dr. Afield, appellant’s treating physician, who indicated that appellant was disabled due to
residuals of her work-related injury and Dr. Memon, an Office referral physician, who
determined that appellant could return to work subject to restrictions. The Office referred
appellant to Dr. Peter L. Mayer, a Board-certified neurosurgeon, selected as the impartial
medical specialist.
In an October 20, 2003 report, Dr. Mayer noted appellant’s history and reviewed the
records provided to him. He noted that physical examination revealed limited range of motion of
the neck, shoulder, marked tenderness to palpation of the cervical paraspinous musculature,
musculature of the left shoulder and deltoid regions, tenderness to the shoulder motion in
abduction and rotation, tenderness in the medial scapular area, acromioclavicular joint area,
rotator cuff and bicipital tendon region. Dr. Mayer diagnosed chronic left C7 radiculopathy
secondary to a small C6-7 herniated disc attributable to her work injury, pain syndrome out of
proportion to the radiographic findings and the expected degree of pain that would be attributable
to a small herniated disc and severe social and neuropsychological problems. He opined that
only a small portion of disability could be attributable to the work injury. Dr. Mayer found that
appellant had reached maximum medical improvement. Regarding appellant’s ability to work,
he indicated that appellant could work full time with restrictions on lifting over 20 pounds.
Dr. Mayer prepared a work capacity evaluation of the same date, noted that she reached
maximum medical improvement on October 20, 2003, stated that she could return to work full
time and advised that her only limitation was a lifting restriction limited to an impairment of
25 pounds.
In reports dated October 29 to December 29, 2003, Dr. Sleight noted appellant’s
complaints of neck, arm and hand pain with numbness and diagnosed cervalgia and herniated
nucleus pulpous at C6-7.
On December 11, 2003 the employing establishment offered appellant a full-time limitedduty position as a modified rural carrier associate effective December 20, 2003 with no lifting
over 25 pounds.
On December 19, 2003 appellant rejected the job offer noting that she was scheduled for
an MRI scan for her herniated disc and surgery on that day. An MRI scan of the cervical spine
dated December 17, 2003 revealed findings suspicious for subacute annular tear at C6-7 with
associated central focal disc protrusion.
By letter dated January 6, 2004, the Office requested clarification from Dr. Mayer with
regard to the lifting restrictions set forth in his report of October 20, 2003. It indicated that
Dr. Mayer’s report noted that appellant was subject to a lifting restriction of 20 pounds for eight

3

hours per day and the work capacity evaluation of the same date noted a maximum lifting
restriction of 25 pounds. On January 9, 2004 Dr. Mayer noted that appellant’s lifting restriction
was 25 pounds.
In a January 20, 2004 letter, the Office advised appellant that the modified job offer
constituted suitable work. She was provided 30 days to accept the position or give reasons for
refusing it; otherwise, she risked termination of her compensation benefits.
Appellant submitted a report from Dr. Sleight dated January 21, 2004. He noted that
appellant presented with severe neck pain radiating under her shoulder blade and into the left hip
and diagnosed herniated nucleus pulpous at C6-7. In a February 3, 2004 report, Dr. Antonio
DiSclafani, a Board-certified neurologist, saw appellant for a surgical consultation. He noted
that appellant sustained an on-the-job injury at the employing establishment involving an
automobile on May 25, 2003 and had since experienced chronic neck, trapezius, left elbow pain
and numbness radiating into her left forearm. Dr. DiSclafani noted that an MRI scan from
December 17, 2003 revealed disc bulges at C4-5, C5-6 and C6-7 and a possible tear at C6-7. He
diagnosed chronic mechanical neck pain and left rotator cuff pain and opined that appellant was
not a surgical candidate.
On March 3, 2004 the Office advised appellant that the position of a modified
distribution clerk was suitable work. It noted that it considered the reasons given by appellant
for refusing the position and found then to be unacceptable. The Office afforded appellant
15 additional days to accept the job offer.
Appellant submitted a duplicative report from Dr. Afield dated May 10, 2002. He noted
performing an in-depth neurobehavioral assessment who advised that the results were indicative
of post-traumatic stress disorder.
In a decision dated March 30, 2004, the Office terminated appellant’s compensation
benefits on the grounds that she refused an offer of suitable work.
By letter dated July 1, 2004, appellant requested an oral hearing before an Office hearing
representative. The hearing was held on May 25, 2005. In reports dated December 16, 2003 to
July 29, 2005, Dr. Sleight noted appellant’s continued treatment for severe neck pain radiating
under the left shoulder. On July 29, 2005 he diagnosed a herniated C6-7 disc and advised that
appellant reached maximum medical improvement and was not a surgical candidate. He opined
that she could lift three to four pounds on the left and five to six pounds on the right with poor
prognosis for improvement. An MRI scan of the cervical spine dated October 5, 2004 revealed
one small shallow central disc protrusion at C6-7. Also submitted was a report from
Dr. Douglas M. Hershkowitz, a Board-certified neurosurgeon, dated October 14, 2004. He noted
that appellant presented with neck, left upper arm and shoulder blade pain and numbness in the
left arm. He opined that her pain was myofascial in origin. Appellant submitted a Social
Security Administration decision dated February 23, 2005, which determined that she was totally
disabled beginning July 17, 2001.
In a decision dated August 18, 2005, the hearing representative affirmed the
March 30, 2004 decision.

4

LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for her is not entitled to compensation.1 The Office
has authority under this section to terminate compensation for any partially disabled employee
who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work and has the burden
of establishing that a position has been offered within the employee’s work restrictions, setting
forth the specific job requirements of the position.2 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.3
The implementing regulation provides that an employee, who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work was reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.4 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of her refusal to accept such employment.5
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.6 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling; the weight of such evidence is determined by its reliability,
its probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7 Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings). If medical

1

5 U.S.C. § 8106(c)(2).

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

Glen L. Sinclair, 36 ECAB 664 (1985).

4

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
5

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

6

See Marilyn D. Polk, 44 ECAB 673 (1993).

7

See Connie Johns, 44 ECAB 560 (1993).

5

reports document a condition which has arisen since the compensable injury and the condition
disables the employee, the job will be considered unsuitable.8
ANALYSIS
The Office accepted that appellant sustained cervical herniated discs at C5-6 and C6-7.
The Office terminated appellant’s compensation effective March 30, 2004 based on appellant’s
refusal of suitable work.
The Board finds that the medical evidence does not establish that appellant was capable
of performing the job requirements of the offered position. On December 11, 2003 the
employing establishment offered appellant a full-time limited-duty position as a modified rural
carrier associate effective December 20, 2003 with no lifting over 25 pounds. The impartial
referee Dr. Mayer, diagnosed chronic left C7 radiculopathy secondary to a small C6-7 herniated
disc attributable to her work injury, pain syndrome out of proportion to radiographic findings and
severe social and neuropsychological problems. In an amended report dated January 9, 2004, he
clarified that appellant could return to work full time with restrictions on lifting limited to
25 pounds. Although Dr. Mayer opined that only a small portion of appellant’s disability was
due to the work injury and advised that appellant had reached maximum medical improvement,
the Office did not take into account the nonwork-related conditions of social and
neuropsychological problems and depression in determining the suitability of the limited-duty
job offer. Additionally, it does not appear that Dr. Afield, appellant’s treating psychiatrist
reviewed the job offer nor does the record indicate that the Office or the employing
establishment took into consideration Dr. Afield’s determination in reports dated May 10, 2002
to January 24, 2003, that appellant needed intensive psychotherapy for her depression and that
her depression was caused by her accepted cervical condition. He further indicated that the
chronic pain, reflex sympathetic dystrophy, possible need for surgery and profound depression
were incapacitating appellant and that these diagnosed conditions were causally related to her
work injury and that she was totally disabled.
There is no indication that the Office sought clarification of these matters, specifically
with regard to appellant’s psychiatric restrictions, prior to terminating compensation for a refusal
of suitable work.9 Although appellant was able to return to work with restrictions from an
orthopedic standpoint, her ability to return to work from a psychiatric standpoint was questioned
by Dr. Afield. The medical evidence fails to establish that the job offered was suitable. The
Office improperly terminated appellant’s compensation on the grounds that she refused an offer
of suitable work.10

8

Id. at Chapter 2.814.4(b)(4) (July 1997).

9

See Maggie L. Moore, supra note 5.

10

See Patrick A. Santucci, 40 ECAB 151 (1988).

6

The Federal (FECA) Procedure Manual provides:
“[I]f medical reports in the file document a condition which has arisen since the
compensable injury and this condition disables the claimant from the offered job,
the job will be considered unsuitable (even if the subsequently-acquired condition
is not work related).”11
Consequently, the Office erred where it did not consider appellant’s nonemploymentrelated emotional condition in determining the suitability of the modified job offer.
CONCLUSION
The Board finds that the Office did not meet the burden of proof in terminating
appellant’s disability compensation for refusal of suitable employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 18, 2005 is reversed.
Issued: January 31, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b) (July 1997).

7