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

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Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1703
Issued: February 6, 2008

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 June 12, 2007 appellant, through her attorney, filed a timely appeal from a July 18,
2006 merit decision of the Office of Workers’ Compensation Programs finding that she did not
sustain a recurrence of disability or an emotional condition due to her accepted employment
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability on September 6,
2002 causally related to her accepted employment injury; and (2) whether she sustained an
emotional condition as a consequence of her employment injury.
FACTUAL HISTORY
On September 12, 1996 appellant, then a 37-year-old rural carrier, filed an occupational
disease claim alleging that she sustained tendinitis of the right arm and elbow due to factors of
her federal employment. The Office accepted the claim, assigned file number 010343184, for

right elbow lateral epicondylitis. The Office authorized a March 11, 1997 right lateral elbow
release. The Office also accepted appellant’s claim for left wrist tendinitis under file number
010353278. On March 3, 1998 the Office accepted that she sustained left arm and wrist
tendinitis as a consequence of her right lateral epicondylitis and resulting surgery in file number
010343184. The Office authorized a partial epicondylectomoy of the left elbow on
August 26, 1998. Appellant accepted a permanent limited-duty job as a clerk with the
employing establishment on November 20, 1999.
On October 3, 2002 appellant filed a notice of recurrence of disability on September 6,
2002 causally related to her accepted employment injury in file number 010343184. She stopped
work on September 6, 2002 and returned to work on October 1, 2002 for four hours per day.
In a disability certificate dated September 10, 2002, Dr. Myria E. Munoz, a Boardcertified internist, diagnosed probable carpal tunnel syndrome and found that appellant was
unable to work. On September 19, 2002 she determined that she could resume work on
September 30, 2002.
In January 10, 2003 form reports, Dr. Christina Wei, a Board-certified internist,
diagnosed an exacerbation of chronic left elbow tendinitis and checked “yes” that the condition
was caused or aggravated by employment. She provided a history of injury as appellant slipping
on the stairs and falling on her left elbow. Dr. Wei found that she could resume work with
restrictions.
On February 6, 2003 Dr. Munoz discussed her treatment of appellant beginning July 29,
2002 for pain from her arm to her wrist. Objective studies did not show carpal tunnel syndrome,
as initially suspected. Dr. Munoz evaluated appellant on January 10, 2003 for a left elbow injury
sustained when she fell two weeks earlier. She stated:
“In summary, her diagnosis is chronic bilateral epicondylitis with acute
exacerbations involving various areas of tendinitis at the extensor surface and
wrist. She had subsequent exacerbation after injury in early January and has
evidence of underlying arthritis. She is status post chronic epicondylitis with
surgical release in the past on March 1997 and October 1998….
“It is my opinion that this represents a permanent aggravation of the underlying
condition described above, that it is exacerbated by overuse injury related to her
work originally, and lately related to the injury that she reports on January of this
year.
“It is my opinion that she should have continuation of the work limitations that
have been in place until this time.”
In a duty status report dated February 20, 2003, Dr. Munoz listed work restrictions,
including sitting up to four hours per day.1 On March 13, 2003 she found that appellant was
unable to work from March 11 to 14, 2003.
1

The record also contains undated form reports from Dr. Munoz.

2

In a statement dated April, 30, 2003, appellant described her condition since accepting a
permanent limited-duty position in November 1999. She took time off work in September 2002
because of her arm conditions. Appellant resumed work in October 2002 for four hours per day.
She stated, “In December of 2002 I fell at work going back up the stairs to my work area. I
tripped going up and as I did I automatically grabbed the rail with my left hand which happens to
be the side the rail is on. When I did this the sudden jerking of my arm caused it to lock up and I
fell to my knees.” Appellant asserted that she reported her injury to management but did not
seek medical treatment because she believed that it would improve. She sought treatment when
her left elbow pain failed to resolve.
By decision dated May 14, 2003, the Office found that the medical evidence was
insufficient to establish that appellant sustained a recurrence of disability such that she could
work only four hours per day.
On May 23, 2003 Dr. Munoz provided an addendum to her February 6, 2003 report. She
related that appellant’s “present symptoms represent a recurrence and are related to the original
injury of August 15, 1996. She should continue a 20[-hour] work week for the foreseeable
future.”
On June 12, 2003 appellant requested an oral hearing.
In a form report dated February 20, 2003, received by the Office on June 24, 2003,
Dr. Munoz diagnosed an injury to the left elbow exacerbating arthritis and epicondylitis. She
checked “yes” that the condition was employment related and provided as a rationale that the
original condition was employment related. The history provided on the form was an injury to
the left elbow due to a fall. Dr. Munoz found that appellant could continue to work.
In a disability certificate dated December 4, 2003, Dr. Munoz opined that appellant was
unable to work due to major depression beginning November 18, 2003. On March 29, 2004 she
found that appellant was disabled beginning November 10, 2003 from “depression and
adjustment disorder following her work modification after persistent bilateral tendinitis and
epicondylitis of both elbows.”
Appellant filed a notice of recurrence of disability on November 18, 2003 due to her
employment injury. She maintained that she experienced depression because she could no
longer carry mail or be active. Appellant further asserted that management refused to retrain her
and that she had “nothing to do but watch the clock.” Her coworkers insulted her and harassed
her. Appellant had to get permission before doing any work activity. She stated, “I have not
been able to do even half of the activities I was able to do before my original injury. Not being a
rural carrier has really brought me down.”
In a report dated January 29, 2004, Dr. Susan B. Foley, a clinical psychologist, related
that she had treated appellant since September 18, 2001 for “symptoms of depression due to the
loss of her regular job at the [employing establishment]. This job loss was due to medical
problems -- tendinitis -- and forced her to be placed on ‘limited duty.’ This caused additional
problems with her coworkers concerning her ‘status.’” Dr. Foley diagnosed adjustment disorder
with depression.

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At the hearing, held on November 25, 2003, appellant related that she tried to keep busy
doing her limited-duty employment but she did not have sufficient work. She attributed her
depression to losing her job as a carrier, not getting along with her coworkers and to her physical
limitations. Appellant disliked needing assistance at work and at home because of her
limitations. She had to obtain permission prior to performing any work. In September 2002,
appellant’s physician advised her to work four hours per day. Appellant stopped work in
November 2003 due to her emotional condition. She filed a traumatic injury claim due to her fall
at work in December 2002 but did not purse the claim.
In a report dated September 28, 2004, Dr. Munoz diagnosed chronic bilateral
epicondylitis with acute exacerbation and underlying arthritis beginning January 2003, arthritis
of the lumbar spine and cervicalgia. She further found “significant depression” which she
asserted was “a very important, if not the most important, element of incapacity.”
On April 8, 2005 appellant’s attorney contended that the employing establishment
reduced her work hours to four hours per day. The attorney requested that the claim be expanded
to include depression and anxiety.
By decision dated May 16, 2005, an Office hearing representative affirmed the May 14,
2003 decision. He determined that the medical evidence was insufficient to show that appellant
was disabled from work for four hours per day beginning September 2002 or that she sustained a
consequential emotional condition due to her accepted conditions.
In a report dated May 19, 2005, Dr. Munoz diagnosed right lateral epicondylitis and
consequential left wrist and arm tendinitis. She indicated that appellant “was limited to 20 hours
a week after progression of her symptoms by September 6, 2002. Dr. Munoz was totally
disabled as of November 17, 2003.” She attributed appellant’s disability to the progression of
her right lateral epicondylitis and left elbow arthritis due to both the work injury and a
December 18, 2002 fall at work on stairs. Dr. Munoz noted that x-rays obtained shortly after her
fall at work showed mild left elbow arthritis not present in prior x-rays. She stated, “It should be
noted that acceleration of the process of arthritis independent of age is a well-established medical
fact resulting from injuries to the joint that result in uneven joint surfaces, compensatory
movements of the opposite extremity to favor pain, and injuries resulting from repetitive
movements.”
In a report dated April 28, 2005, received by the Office on September 26, 2005,
Dr. Thomas Weiss, a psychiatrist, diagnosed bipolar II disorder and indicated that her 1996 work
injury “seems to have been a trigger for the exacerbation of her mental health issues.” He opined
that she was unable to work.
On September 9, 2005 Dr. Weiss related that he treated appellant since January 23, 2004
for post-traumatic stress disorder (PTSD) and bipolar II depressive disorder. He related:
“[Appellant] had work[-]related injuries in 1996 that resulted in epicondylitis and
tendinitis that prohibited her from continuing in her job as a mail carrier, a job she
says she loved. The loss of this job precipitated a depression that in turn
aggravated her PTSD and [b]ipolar II disorder.

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“The struggle with the [employing establishment] regarding a reduced-duty job
increased [appellant’s] depression and anxiety.
[She] reports that by
November 2003, even with reduced hours required by Dr. Munoz, the antagonism
[she] experienced at work in response to requests for physical assistance due to
her restrictions, and the physical restrictions themselves, caused [her] to become
increasingly depressed. This depression was characterized by tearfulness,
sadness, suicidal thoughts, isolation, hopelessness and agoraphobia that resulted
in her leaving her job.”
On September 15, 2005 appellant, through her attorney, requested reconsideration. By
decision dated July 18, 2006, the Office denied modification of its May 14, 2003 and May 15,
2005 decisions.
LEGAL PRECEDENT -- ISSUE 1
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.2
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.3 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right lateral epicondylitis causally related to
employment factors and a consequential injury of left arm and wrist tendinitis. She returned to a
full-time limited-duty position as a clerk in November 1999. On October 3, 2002 appellant filed
a notice of recurrence of disability beginning September 6, 2002 due to her accepted
employment injury. She stopped work on September 6, 2002 and returned to work for four hours
per day with restrictions on October 1, 2002.
2

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

3

20 C.F.R. § 10.5(x).

4

Id.

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Appellant has not alleged that the employing establishment changed the requirements of
her limited-duty position such that she could no longer perform her work duties. Instead, she
attributed her recurrence of disability to a change in the nature and extent of her employmentrelated conditions. Appellant must provide medical evidence establishing that she had an
increase in disability beginning September 6, 2002 due to a worsening of her accepted workrelated conditions of right lateral epicondylitis and left arm and wrist tendinitis.5
On September 10, 2002 Dr. Munoz diagnosed probable carpal tunnel syndrome. She
opined that appellant was disabled from employment. On September 19, 2002, Dr. Munoz found
that she could resume work. As she did not attribute appellant’s disability from work to the
accepted conditions of left arm and wrist tendinitis and right lateral epicondylitis, her reports are
of diminished probative value.
In form reports dated January 10, 2003, Dr. Wei diagnosed an exacerbation of tendinitis
of the left elbow and checked “yes” that the condition was caused or aggravated by employment.
She listed the history of injury as appellant falling down stairs onto her left elbow. Dr. Wei
found that she could work with restrictions. The Board has held, however, that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion has little probative value and is insufficient to
establish a claim.6 Additionally, Dr. Wei provided a history of appellant sustaining an injury
falling on stairs. A “recurrence of disability” means an inability to work after an employee has
returned to work caused by a spontaneous change in a medical condition, which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.7
On February 6, 2003 Dr. Munoz noted that appellant sustained an increase in left elbow
pain following a fall around two weeks prior to January 10, 2003. She diagnosed chronic
bilateral epicondylitis with acute exacerbations and tendinitis of the wrist. Dr. Munoz attributed
the exacerbation to her employment injury and to her injury the beginning of January. In a
May 23, 2003 addendum, she found that appellant’s “present symptoms represent a recurrence
and are related to the original injury of August 15, 1996. Dr. Munoz should continue a 20[-hour]
workweek for the foreseeable future.” She, however, did not provide any rationale for her
opinion that appellant’s current condition was due to her prior employment injury or that she was
limited to working only 20 hours per week. A mere conclusion unsupported by rationale is of
diminished probative value.8 Dr. Munoz did not explain the effect of the intervening injury in
January 2003 on appellant’s disability for employment.
In a February 20, 2003 form report, Dr. Munoz noted a history of a fall causing a left
elbow injury. She diagnosed a left arm injury exacerbating arthritis and epicondylitis and
checked “yes” that the condition was employment related. Dr. Munoz provided as a rationale
5

See Jackie D. West, supra note 2.

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

20 C.F.R. § 10.5(x).

8

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

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that the original condition was due to her employment. As she did not attribute the exacerbation
of appellant’s arthritis and epicondylitis to the accepted employment injury, but instead to an
intervening injury of a fall, her opinion is of little probative value. The fact that a condition
arises after an injury and was not present before an injury is not sufficient to support causal
relationship.9
On May 19, 2005 Dr. Munoz diagnosed right lateral epicondylitis and consequential left
wrist and arm tendinitis. She opined that appellant could work only 20 hours per week due to a
worsening of her symptoms on September 6, 2002 and could not work at all beginning
November 17, 2003. Dr. Munoz attributed her disability to the progression of her right lateral
epicondylitis, left elbow arthritis resulting from her employment injury and to a fall at work on
stairs on December 18, 2002. She interpreted x-rays obtained after her fall at work showed mild
left elbow arthritis not present in prior x-rays. Dr. Munoz indicated that moving on uneven
surfaces, compensating for an injured extremity and repetitive movement injures accelerated
arthritis. She did not, however, provide a fully rationalized opinion explaining how appellant’s
increase in disability beginning September 6, 2002 resulted from a change in the nature and
extent of her employment-related conditions. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment and supports that conclusion with sound medical
reasoning.10 Appellant has not submitted sufficient medical evidence to establish that she
sustained a work-related recurrence of disability beginning September 6, 2002.
LEGAL PRECEDENT -- ISSUE 2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.11 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.12
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.13 A claimant must
9

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

10

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005).

11

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

12

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

13

See Michael Ewanichak, 48 ECAB 364 (1997).

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establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.14 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.15 The primary reason for
requiring factual evidence from the claimant is support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.16
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.17 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.18
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.19
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause, which is attributable to the employee’s own intentional
conduct.20
ANALYSIS -- ISSUE 2
Appellant attributed her emotional condition both to her prior employment injury and to
factors of employment. The Board must, therefore, initially review whether these alleged
incidents and conditions of employment are covered employment factors under the terms of the
Act.
Appellant maintained that she experienced difficulties with her coworkers because she
worked limited duty. She related that coworkers ridiculed her and disliked providing her with
14

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

15

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

16

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

17

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
18

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

19

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

20

See Charles Garrett Smith, 47 ECAB 562 (1996).

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assistance. Harassment and discrimination by supervisors and coworkers, if established as
occurring and arising from the performance of work duties, can constitute a compensable work
factor.21 A claimant, however, must substantiate allegations of harassment and discrimination
with probative and reliable evidence.22 Appellant did not submit any factual evidence in support
of her allegations and thus has not established a compensable work factor.
Appellant alleged that she was not given sufficient work to do. She asserted that
management refused her requests for retraining and required her to ask permission before doing
any task. Appellant was unhappy that she could no longer work as a carrier. The assignment of
work and the monitoring of work are administrative functions of the employing establishment
rather than a duty of the employee and, absent evidence of error or abuse, are not compensable.23
Further, the denial by the employing establishment of a request for a transfer or the desire for a
different job are not compensable under the Act as they do not involve appellant’s ability to
perform her regular or specially assigned work duties but rather constitute a desire to work in a
different position.24
Appellant also attributed her depression to limitations resulting from her employment
injury. The Board has held that an emotional condition due to chronic pain and limitations
resulting from an employment injury is covered under the Act.25 Her burden of proof, however,
is not discharged by establishing a compensable factor of employment. Appellant must also
submit rationalized medical opinion evidence establishing that her emotional condition is
causally related to the accepted employment factor.26
In a report dated December 4, 2003, Dr. Munoz found that appellant was unable to work
beginning in November 2003 because of major depression. On March 29, 2004, she diagnosed
depression and an adjustment disorder “following her work modification after persistent bilateral
tendinitis and epicondylitis of both elbows.” Dr. Munoz opinion regarding appellant’s emotional
condition, however, is of reduced probative value as she is not a specialist in the appropriate
field.27
On January 29, 2004 Dr. Foley, a psychologist, discussed her treatment of appellant for
depression resulting from the loss of her usual job due to her work injury and difficulty with
coworkers. As she did not attribute appellant’s depression to limitations from her employment
21

Doretha M. Belnavis, 57 ECAB ___ (Docket No. 05-1879, issued January 12, 2006).

22

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006).

23

Jeral R. Gray, 57 ECAB ___ (Docket No. 05-1851, issued June 8, 2006); see also Beverly R. Jones, supra
note 16.
24

See Charles D. Edwards, supra note 14.

25

Clara T. Norga, 46 ECAB 473 (1995); Arnold A. Alley, 44 ECAB 912 (1993).

26

Charles D. Gregory, 57 ECAB ___ (Docket No. 05-252, issued January 18, 2006).

27

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the opinion of a physician having training and
knowledge in a specialized field of medicine has greater probative value concerning questions peculiar to that field
than other physicians).

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injury but instead to the loss of her job as a carrier and problems with coworkers, her opinion is
of little probative value.
In a report dated April 28, 2005, Dr. Weiss diagnosed bipolar II disorder and found that
appellant’s 1996 employment injury appeared to be “a trigger for the exacerbation of her mental
health issues.” His opinion, however, that her employment injury “appeared” to result in an
exacerbation of her bipolar II disorder is couched in speculative terms. The Board has held that
medical opinions which are speculative or equivocal in character have little probative value.28
On September 9, 2005 Dr. Weiss diagnosed PTSD and bipolar II. He noted that she
could no longer work as a mail carrier due to her epicondylitis and tendinitis. Dr. Weiss related
that the loss of her job as a carrier resulted in depression which aggravated her PTSD and bipolar
II disorder. He noted that she related that she became increasingly depressed due to conflicts at
work resulting from her request for assistance and because of her physical limitations. While
Dr. Weiss indicated that appellant attributed her depression to her physical limitations, he did not
provide an independent opinion relating her increased depression to physical limitations resulting
from her employment injury. A physician’s report is of little probative value when it is based on
a claimant’s belief rather than the doctor’s independent judgment.29 Appellant, consequently,
has not met her burden of proof to establish that she sustained an emotional condition as a
consequence of her accepted employment injury.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability on September 6, 2002 causally related to her accepted employment injury or an
emotional condition as a consequence of her employment injury.

28

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
29

Earl David Seale, 49 ECAB 152 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 18, 2006 is affirmed.
Issued: February 6, 2008
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0136
Issued: May 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 31, 2015 appellant, through his representative, filed a timely appeal from a
September 24, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation, effective
September 30, 2014 as he refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
On appeal, appellant’s representative contends that OWCP improperly terminated
appellant’s compensation as the June 17, 2014 job offer did not mention all of appellant’s
restrictions set forth by Dr. D. Burke Haskins, a Board-certified orthopedic surgeon and second
opinion physician. He further asserts that the job offer did not explain the actual duties of the
position.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 3, 2000 appellant, then a 36-year-old window clerk, filed a traumatic injury
claim (Form CA-1), alleging that he injured his right shoulder and lower back when he slipped
on an icy parking lot at work that same date. He stopped work on the date of injury. OWCP
accepted the claim for displacement of a lumbar intervertebral disc without myelopathy and a
right shoulder and right upper arm sprain in an unspecified site, and thereafter paid compensation
benefits. It subsequently authorized back surgery performed on February 2, 2001 by
Dr. Hampton J. Jackson, Jr., an attending Board-certified orthopedic surgeon.
On June 25, 2001 OWCP referred appellant for vocational rehabilitation as a functional
capacity evaluation (FCE) indicated that he could work full time with a lifting restriction.
In medical reports dated February 8, 2002 to September 12, 2003, Dr. Jackson noted that
appellant was having significant continuing symptoms following his back surgery and listed his
physical restrictions. He opined that appellant was totally disabled and not fit for any work or
rehabilitation, or light and sedentary duties. On September 12, 2003 Dr. Jackson advised that
appellant would be unable to perform the sedentary positions he was considering because they
could involve lifting. He requested that appellant provide a full job description of his work
activities for his review to determine whether he was fit to perform them on a repeated basis.
In November 2003 a vocational rehabilitation counselor determined that appellant could
work as a cashier, Department of Labor, Dictionary of Occupational Titles (DOT) No. 211.362010, and that the position was available within his commuting area.
On March 9, 2005 OWCP proposed to reduce appellant’s compensation as he had the
capacity to earn wages as a cashier, DOT No. 211.362-010, at the rate of $288.00 per week. In
an August 19, 2005 decision, it reduced appellant’s compensation effective July 10, 2004 based
on his capacity to earn wages as a cashier.2
On September 14, 2005 appellant requested an oral hearing before an OWCP hearing
representative. In a November 14, 2005 decision, the hearing representative reversed the
August 19, 2005 decision, finding that the medical evidence of record failed to establish that the
constructed cashier position was medically suitable for appellant. Appellant’s compensation was
restored retroactively.
In a March 18, 2014 report, Dr. Daniel R. Ignacio, an attending Board-certified
physiatrist, noted that appellant continued to suffer from his February 3, 2003 work-related
medical conditions. He reviewed the history of his medical treatment and listed findings on
examination. Dr. Ignacio provided an impression of status post lumbar laminectomy with
residual pain, chronic progressive lumbar disc syndrome with lumbar radiculopathy, chronic
lumbar arachnoiditis versus lumbar spinal stenosis, chronic thoracolumbar strain, and chronic
right shoulder strain. He concluded that appellant was unable to return to work.

2

OWCP initially issued its decision on July 1, 2005 to an incorrect address. Thus, it reissued the decision with
appeal rights to the correct address on August 19, 2005.

2

By letter dated May 2, 2014, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Haskins for a second opinion to determine his
disability status.
In a May 20, 2014 report, Dr. Haskins noted the history of the February 3, 2000 work
injuries and appellant’s medical treatment and reviewed the statement of accepted facts. He
described appellant’s current complaints which included constant lower back and right buttock
pain, proximal radiation into his neck, and paresthesias involving the plantar surface medial
aspect of the left arch. On examination, Dr. Haskins reported that both shoulders had full range
of motion, symmetry, and no pain. Winging of the scapula was noted. Speed and Spurling signs
were negative. Biceps were intact. Range of motion of the elbows, wrists, and hands were full.
The back had a well-healed midline surgical scar. There was full range of motion of the lumbar
spine. Appellant was able to fully flex and extend without complaints of pain. His gait pattern
was normal and he had normal heel and toe raising bilaterally. In a sitting position, straight leg
raise testing was positive bilaterally at 90 degrees. A flip test bilaterally aggravated appellant’s
back pain. Range of motion of both hips was full. A Faber’s sign was negative bilaterally. In a
supine position, straight leg raise testing was positive at 30 degrees bilaterally. A flip test
produced back pain. Reflexes were brisk and symmetric and strength was normal in both lower
extremities. There was no significant pretibial and pedal edema. Pulses were present. Sensation
was intact to light touch bilaterally. Dr. Haskins diagnosed spinal stenosis unrelated to the work
injury, lumbar disc displacement at L4-5 causally related to the work injury, and resolved
shoulder sprain medically related to the work injury.
Dr. Haskins advised that appellant had reached maximum medical improvement
regarding his back and right shoulder conditions and no longer required medical treatment for his
back complaints. His shoulder sprain had long resolved. Dr. Haskins noted that appellant
continued to complain of pain from his February 3, 2000 work injury based on an abnormal
magnetic resonance imaging (MRI) scan and nerve conduction studies. He advised that
appellant did not have residuals of his shoulder injury. Appellant had no nonindustrial or
preexisting disability. Dr. Haskins opined that he was not totally disabled. Appellant was
capable of returning to work with restrictions as of May 21, 2014. Dr. Haskins restricted lifting
to no more than 20 pounds, and no bending and stooping. An attached May 21, 2014 work
capacity evaluation (Form OWCP-5c) indicated that appellant was not capable of performing his
usual job due to positive MRI scan and electromyogram (EMG) findings and complaints of pain,
but he could work eight hours a day with permanent restrictions of no bending, stooping, or
pushing and pulling more than 20 pounds, eight hours a day. Dr. Haskins recommended a 15minute break every 2 hours.
By letter dated June 9, 2014, OWCP requested that the employing establishment offer
appellant a position within the restrictions set forth by Dr. Haskins.
On June 17, 2014 the employing establishment offered appellant a full-time modified
position as a sales service associate effective June 28, 2014 based on Dr. Haskins’ restrictions.
The position involved performing any variety of sales and customer services for six hours a day;
handling and processing customer purchases and returns for four to six hours a day; and renting
post office boxes and receiving rental payments for two hours a day. The physical requirements
included standing six to seven hours a day; walking one to two hours a day; keying transactions

3

into a point of service (POS) system six to seven hours a day; and lifting less than 20 pounds
four to six hours a day.
By letter dated July 1, 2014, OWCP advised appellant that it found the sales service
associate position offered by the employing establishment to be suitable based on Dr. Haskins’
opinion that he could work eight hours a day within restrictions. The employing establishment
confirmed that the job remained available to appellant. OWCP instructed appellant that he must,
within 30 days, either accept the position or provide a written explanation of why he did not
accept the position or he could lose his right to compensation under 5 U.S.C. § 8106(c).
In a July 1, 2014 disability certificate, Dr. Ignacio advised that appellant was totally
disabled from June 26 to July 31, 2014. He provided an impression of status post lumbar surgery
with residual symptoms of pain and chronic progressive lumbar disc syndrome.
In reports dated July 9 and 18, 2014, Dr. Joshua Thomas, a Board-certified physiatrist,
noted that appellant continued to have pain related to his 14-year-old work injury. Appellant
reported persistent low back and radiating leg pain and tenderness over the bilateral sacroiliac
joints, lower lumbar facet joints, and lower lumbar interspaces. Dr. Thomas provided a history
of appellant’s treatment, reviewed diagnostic test results, and set forth findings. He assessed
sacroiliitis, lumbar spondylosis, mild lumbar spinal stenosis, lumbar disc displacement at L4-5,
and postlumbar laminectomy syndrome. Dr. Thomas noted that appellant had not worked since
2000, and concluded that he was likely permanently disabled.
On August 8, 2014 the employing establishment informed OWCP that appellant had not
reported for duty and the offered position remained available.
On August 13, 2014 OWCP received a July 29, 2014 prescription for a transcutaneous
electrical nerve stimulation unit by Dr. Ignacio. In an August 8, 2014 report, Dr. Ignacio
reiterated his impression of chronic progressive lumbar disc syndrome and diagnosed shoulder
and upper arm strain/sprain.
By letter dated August 13, 2014, OWCP noted that appellant had not indicated if he
would accept or report to the offered position. It further noted that the additional medical
evidence submitted was insufficient to outweigh the weight accorded to Dr. Haskins’ opinion.
OWCP afforded appellant 15 days to accept the position or his wage-loss compensation benefits
would be terminated. It noted that no further reasons for refusal would be considered.
In a July 9, 2014 report received by OWCP on August 25, 2014, Dr. Thomas reiterated
his assessment of postlumbar laminectomy syndrome, lumbar disc displacement, mild lumbar
spinal at L4-5, lumbar spondylosis, and sacroiliitis and opined that appellant was likely
permanently disabled from work. In a referral/test order form dated July 9, 2014, he
recommended a lumbar MRI scan. An August 7, 2014 lumbar MRI scan report from
Dr. Philip S. Man, a Board-certified radiologist, revealed an impression of stable postoperative
changes at L4-5 with enhancing epidural scar formation and disc material on both sides of the
midline causing impingement on both descending L5 roots, greater on the left. Borderline spinal
stenosis was stable. Overall, findings were relatively unchanged in comparison with plain films
obtained in May 2013 and an MRI scan obtained in November 2012.

4

In reports dated July 1 and 28 and August 19 and 26, 2014, Dr. Ignacio noted appellant’s
history and set forth examination findings. He reiterated his impression of status post lumbar
laminectomy with residual pain, chronic lumbar disc syndrome with lumbar radiculopathy, and
chronic right shoulder strain and opined that appellant could not work. Dr. Ignacio diagnosed
chronic lumbar strain syndrome, chronic right shoulder tendinitis with probable impingement
syndrome, and chronic pain syndrome. He noted appellant’s treatment and advised that the
probability of his return to work was quite guarded. In the July 28, 2014 report, Dr. Ignacio
attributed appellant’s disability to his spinal injury which caused limited physical mobility. He
also had limited ability to concentrate and a limited attention span due to his medications.
Dr. Ignacio advised appellant to retire from the employing establishment. On July 28, 2014 he
also treated appellant’s neuropathic pains and injured nerves with Isokinetic Intramuscular
Neural Enhancement therapy.
In an August 8, 2014 report, Dr. Thomas noted appellant’s treatment and advised that his
lumbar disc displacement at L4-5 had changed to lumbar disc displacement at L4-5 with
enhancing epidural scar. He indicated that appellant’s sacroiliitis, lumbar spondylosis, mild
lumbar spinal stenosis at L4-5, lumbar disc displacement at L4-5, and postlumbar laminectomy
syndrome were unchanged. Dr. Thomas again opined that appellant was likely permanently
disabled. On August 8, 2014 he performed a fluoroscopically-guided therapeutic left and right
sacroiliac joint block to treat appellant’s back pain.
By decision dated September 30, 2014, OWCP terminated appellant’s wage-loss
compensation benefits and schedule award entitlement, effective that date, under 5 U.S.C.
§ 8106(c) as he had refused an offer of suitable work.
On October 20, 2014 appellant requested reconsideration.3 In reports dated July 7 to
November 4, 2014, Dr. Ignacio reiterated his prior assessments of appellant’s lumbar, right
shoulder, and pain conditions and opined that appellant could not work due to his physical
limitations and multiple medications. He concluded that appellant was permanently and totally
disabled and reiterated that his prognosis for returning to work was guarded. In reports dated
August 19, October 7, and December 24, 2014, Dr. Ignacio disagreed with OWCP that the
offered sales service associate position was suitable. He explained that appellant continued to
have a painful condition that limited his physical capacity and required multiple medications and
other proposed treatment. Dr. Ignacio also disagreed with Dr. Haskins’ opinion that appellant no
longer required additional treatment for his back complaint and was no longer totally disabled
due to his accepted condition. He clearly continued to suffer from his February 3, 2000 workrelated lumbar injury as confirmed by a recent MRI scan and an electrodiagnostic/EMG
examination. Dr. Ignacio advised that lifting, bending, and stooping would aggravate appellant’s
medical condition. He also disagreed with OWCP’s finding that his and Dr. Thomas’ reports
failed to provide an objective explanation to support their conclusion that appellant was unable to
work and that he had ongoing disability. Dr. Ignacio maintained that his reports were complete
and contained consistent physical findings throughout examination.

3

Initially, on October 9, 2014 appellant requested a review of the written record. On October 29, 2014 OWCP
accepted his petition to withdraw his request for a review of the written record.

5

In an October 20, 2014 report, Dr. Thomas again reiterated his assessment of appellant’s
lumbar conditions and opined that appellant was likely permanently disabled for work. He
assessed bilateral lumbar radiculopathy. OWCP also received a laboratory test report dated
December 8, 2014 from AEGIS PAINCOMP.
In a January 20, 2015 decision, OWCP denied modification of the September 30, 2014
decision. It found that the medical evidence submitted was insufficient to outweigh Dr. Haskins’
opinion that appellant could return to work with restrictions.
By letter dated June 28, 2015, appellant, through his representative, requested
reconsideration of the January 20, 2015 decision. He cited Board precedent and contended that
OWCP improperly terminated his compensation as the offered position was not suitable.
Appellant asserted that the job offer did not meet Dr. Haskins’ physical limitations as it did not
state that no bending or stooping was required. He contended that it also did not explain the
actual duties of the position. Progress notes from appellant’s physical therapists were also
submitted.
In a January 20, 2015 report, Dr. Ignacio advised that an EMG revealed normal nerve
conduction along the right and left sural nerves, right peroneal and right and left tibial nerves,
abnormal right and left peroneal nerve indicative of proximal conduction block at right and left
L5 levels, and normal right and left tibial G-reflexes. There were abnormal EMG findings with
evidence of chronic denervation along selected muscles of the right and left or bilateral lower
limbs including, the legs, thighs, and right and left paraspinal muscles showing stable polyphasic
motor units action potentials along the L4-5 distribution. In another January 20, 2015 report,
Dr. Ignacio provided an impression of chronic musculoligamentous strain of the lumbar spine.
In reports dated June 23 to July 21, 2015, he reiterated his assessment of appellant’s lumbar,
right shoulder, and pain conditions and opinion that appellant could not return to work.
In reports dated January 14 and April 14, 2015, Dr. Thomas reiterated his assessment of
appellant’s lumbar conditions and assessed improved sacroiliitis. On July 22, 2015 he reported
improved bilateral lumbar radiculopathy.
In attending physician’s reports (Form CA-20) dated June 1 to November 30, 2001,
Dr. Jackson noted the February 3, 2000 date of injury and diagnosed lumbar disc syndrome and
cervical sprain. He indicated with an affirmative check mark that the diagnosed conditions were
employment related. Dr. Jackson found appellant totally disabled from November 2, 2001 to
January 4, 2002. On June 29, 2001 he noted appellant’s physical limitations. In a July 27, 2001
report, Dr. Jackson noted examination findings, indicated that appellant had not reached
maximum medical improvement after his back surgery, and that appellant was not fit for work at
that time. His August 31, 2001 report noted that appellant was eight months postsurgery and on
schedule to return to modified light-duty work with a 10-pound lifting restriction. On October 5,
2001 Dr. Jackson reported that appellant had a fair amount of symptoms, but had improved since
his surgery. He recommended vocational rehabilitation to return him to light-duty work.
A July 21, 2001 FCE performed by a physical therapist found that appellant could
perform light work eight hours a day with no repetitive bending.

6

In a June 23, 2015 report, Dr. Jake Vrdoljak, a Board-certified radiologist, compared his
lumbar MRI scan obtained on that day with an August 7, 2014 scan. He provided an impression
of broad-based disc protrusion with central spinal canal stenosis at the L4-5 level anteroposterior
thecal sac that was six millimeters in diameter and caused ventral compression of the thecal sac
impinging on the L5 descending nerve roots bilaterally.
Postsurgical changes were
unremarkable and there was minimal progression of disease.
In a September 24, 2015 decision, OWCP denied modification of the January 20, 2015
decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA 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 him is not entitled to compensation.4 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
refusing to accept or neglecting to perform suitable work.5 The implementing regulations
provide that an employee who refuses or neglects to work after suitable work has been offered or
secured for the employee has the burden of showing that such refusal or failure to work was
reasonable or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.6 The Board has recognized that section 8106(c)
serves as a penalty provision as it may bar an employee’s entitlement to future compensation
and, for this reason, will be narrowly construed.7
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.8 In
determining what constitutes suitable work for a particular disabled employee, OWCP considers
the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area and the employee’s qualifications to perform such
work.9 OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.10

4

5 U.S.C. § 8106(c)(2).

5

Joyce M. Doll, 53 ECAB 790 (2002); Howard Y. Miyashiro, 51 ECAB 253 (1999).

6

20 C.F.R. § 10.517(a).

7

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

8

T.S., 59 ECAB 490 (2008); Linda Hilton, 52 ECAB 476 (2001); Ronald M. Jones, 52 ECAB 190 (2000);
Maggie L. Moore, 42 ECAB 484 (1991), reaff'd on recon, 43 ECAB 818 (1992).
9

20 C.F.R. § 10.500(b).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).

7

Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter OWCP’s finding of suitability. If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered
work without penalty. At that point in time, OWCP’s notification need not state the reasons for
finding that the employee’s reasons are not acceptable.11 After providing the 30-day and 15-day
notices, OWCP will terminate the employee’s entitlement to further wage-loss compensation and
schedule award benefits.12 However, the employee remains entitled to medical benefits.13
ANALYSIS
OWCP accepted that appellant sustained displacement of a lumbar intervertebral disc
without myelopathy and a right shoulder and right upper arm sprain in an unspecified site as a
result of the February 3, 2000 employment-related injury. He received appropriate total
disability compensation benefits and medical expenses. In a September 30, 2014 decision,
OWCP terminated his wage-loss compensation effective that day as he refused an offer of
suitable work. The Board finds that OWCP properly terminated appellant’s compensation.
The evidence of record establishes that appellant was capable of performing the sales
service associate position offered by the employing establishment and determined to be suitable
by OWCP on July 1, 2014. The position was a full-time position which involved performing any
variety of sales and customer services for six hours a day; handling and processing customer
purchases and returns for four to six hours a day; and renting post office boxes and receiving
rental payments for two hours a day. The physical requirements included standing six to seven
hours a day; walking one to two hours a day; keying transactions into a POS system six to seven
hours a day; and lifting less than 20 pounds four to six hours a day. The record does not reveal
that the sales service associate position was temporary in nature.14 Moreover, there is no
indication in the record that appellant, a former window clerk, could not vocationally perform the
offered position.
The issue of whether an employee has the physical ability to perform a position offered
by the employing establishment is primarily a medical question that must be resolved by medical
evidence.15 The Board finds that the weight of the medical evidence in this case establishes that
appellant was capable of performing the sales service associate position. In a May 20, 2014
opinion, Dr. Haskins, an OWCP referral physician, provided a comprehensive medical report in
11

20 C.F.R. § 10.516.

12

Id. at § 10.517(b).

13

Id.

14

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), (9) (June 2013).
15

Robert Dickinson, 46 ECAB 1002 (1995); Marilyn D. Polk, 44 ECAB 673, 680 (1993).

8

which he reviewed appellant’s history of injury and medical treatment, presented examination
findings, and found that he could return to full-time limited-duty work subject to physical
limitations he specified. The employing establishment prepared a modified-duty job offer
conforming with Dr. Haskins’ physical restrictions, which OWCP reviewed and found suitable to
appellant’s physical limitations.
In his May 20, 2014 report, Dr. Haskins was provided with the appropriate medical
records and a statement of accepted facts in order to have a sufficient history to render a wellreasoned opinion regarding the extent of disability following his examination. He found that
while appellant had continued back complaints related to his accepted work injuries, his physical
examination and objective evidence indicated that he had no residuals of the accepted right
shoulder condition and was able to work with restrictions. Dr. Haskins reviewed the medical
record and found no nonindustrial or preexisting disability that prevented appellant from
returning to full-duty work. Dr. Haskins noted findings that included intact sensation and a
functional range of motion of the shoulders, elbows, wrists, hands, hips, and lumbar spine.
Dr. Haskins restricted appellant from lifting more than 20 pounds, bending, and stooping. For
eight hours a day, he could not push or pull more than 20 pounds and he required a 15-minute
break every two hours.
Dr. Haskins opined that appellant had reached maximum medical improvement regarding
the accepted back and right shoulder conditions, detailed his specific findings and provided
medical rationale to support his conclusion that appellant could return to work with limitations.
Thus, the Board concludes that the weight of the medical opinion evidence rests with
Dr. Haskins’ opinion.
While Dr. Ignacio opined appellant had continuing employment-related residuals and
total disability and needed further medical treatment, he failed to provide any medical rationale
to support his opinion. He diagnosed status post lumbar laminectomy with residual pain, chronic
progressive lumbar disc syndrome with lumbar radiculopathy, chronic lumbar arachnoiditis or
lumbar spinal stenosis, chronic thoracolumbar strain, and chronic right shoulder strain/sprain,
chronic right shoulder tendinitis with probable impingement syndrome, chronic pain syndrome,
and chronic lumbar musculoligamentous strain. On July 28, 2014 Dr. Ignacio attributed
appellant’s inability to work to his limited physical mobility and limited concentration and
attention span due to his medications. The Board notes that Dr. Ignacio did not provide
sufficient medical rationale explaining how these conditions precluded appellant from accepting
the offered position on or before September 30, 2014.
Dr. Thomas’ reports assessed sacroiliitis, lumbar spondylosis, mild lumbar spinal
stenosis, lumbar disc displacement at L4-5, post-lumbar laminectomy syndrome, and bilateral
lumbar radiculopathy, and found that he was likely permanently disabled from work.
Dr. Thomas did not present any objective findings to support his opinion on disability.
Moreover, his opinion is speculative on appellant’s capacity for work and is, therefore, of
diminished probative value.16 Dr. Thomas did not clearly state that he had reviewed the duties of
the job offer made to appellant and that appellant was not capable of performing these duties.
16

D.D., 57 ECAB 734, 739 (2006).

9

Appellant also provided reports from Dr. Jackson from 2001. However these reports
substantially predate the June 17, 2014 job offer and are insufficient to outweigh Dr. Haskins’
opinion. The Board has recognized the importance of medical evidence being contemporaneous
with a job offer in order to ensure that a claimant is medically capable of returning to work.17
Dr. Vrdoljak’s June 23, 2015 report addressed appellant’s lumbar conditions, but failed to
discuss the position offered on June 17, 2014 and appellant’s ability to return to work. Likewise,
other medical reports, including diagnostic reports, are of limited probative value as they do not
address appellant’s ability to perform the duties of the offered position.
The July 21, 2001 FCE and progress notes from appellant’s physical therapists have no
probative medical value, as physical therapists are not considered physicians as defined under
FECA.18
The Board further finds that OWCP complied with its procedural requirements in
advising appellant that the position was found suitable, providing him with the opportunity to
accept the position or provide his reasons for refusing the job offer and notifying him of the
penalty provision of section 8106(c).19
For these reasons, the Board finds that OWCP properly terminated appellant’s
compensation effective September 30, 2014 on the grounds that he refused an offer of suitable
work.
Before OWCP and on appeal before the Board, appellant’s representative contends that
OWCP improperly terminated appellant’s compensation. He contends that the offered position
did not meet Dr. Haskins’ physical restrictions of no bending or stooping and it did not explain
the actual work duties. As discussed, the medical evidence established that appellant could
perform the duties of a modified sales service associate and specifically noted in the June 17,
2014 job offer that he was to avoid bending and stooping. He offered no valid reason for
refusing the offered position. There is also no evidence to support appellant’s assertion that the
offered position was not within Dr. Haskins’ medical restrictions.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation on September 30, 2014 pursuant to 5 U.S.C. § 8106(c)(2).

17

See generally Eileen R. Kates, 46 ECAB 573 (1995).

18

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); J.G.,
Docket No. 15-251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from a
physical therapist do not constitute competent medical opinion in support of causal relation, as physical therapists
are not physicians as defined under FECA).
19

See Bruce Sanborn, 49 ECAB 176 (1997).

10

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


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

)
)
)
)
)
)
)
)

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

Docket No. 15-564
Issued: April 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 21, 2015 appellant filed a timely appeal from a December17, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does
not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.
FACTUAL HISTORY
On December 28, 2010 appellant, then a 57-year-old maintenance mechanic, filed a
traumatic injury claim alleging that on December 28, 2010 he fractured his left ankle when he
slipped and fell off a step stool in the performance of duty. He stopped work. OWCP accepted
1

5 U.S.C. § 8101 et seq.

his claim for displaced left trimalleolar fracture and nondisplaced right lateral malleolus fracture.
It paid appropriate disability compensation and medical benefits.
On April 15, 2011 appellant returned to full-time limited duty. On September 23, 2011
he returned to full duty.
On August 19, 2013 appellant filed a claim for a schedule award. In an August 1, 2013
report, Dr. John W. Ellis, a Board-certified family practitioner, reviewed appellant’s history and
noted his current complaints of decreased range of motion and weakness of his ankles. Upon
examination, he observed hypertrophy over the medial and lateral aspects of the right ankle and
decreased range of motion. Examination of the left ankle also demonstrated hypertrophy over
the medial, later, and anterior parts and decreased range of motion. Dr. Ellis diagnosed right
ankle fractured lateral malleolus and arthritis, left ankle trimalleolar fracture and arthritis, left
ankle strain, and left shoulder strain. He noted that appellant reached maximum medical
improvement. Dr. Ellis opined that according to Table 16-2, page 401 & 503, of the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) appellant had 19 percent impairment each of the right and left lower
extremities.
OWCP referred appellant, along with a statement of accepted facts and the medical
record, to Dr. Kala Danushkodi, Board-certified in physical medicine and rehabilitation, for a
second opinion examination to determine the rate of permanent impairment, if any, of appellant’s
bilateral ankle conditions. In a September 19, 2013 report, Dr. Danushkodi reviewed appellant’s
history, including the statement of accepted facts and the conducted an examination. He
observed moderate tenderness and pain with range of motion in the left ankle. Examination of
the right ankle revealed mildly tender anteriorly at sinus tarsi and normal range of motion and
strength. Dr. Danushkodi concluded that according to Table 16-2 of the sixth edition of the
A.M.A., Guides appellant had 13 percent impairment of the lower left extremity and 7 percent
impairment of the right lower extremity.
In an October 4, 2013 report, an OWCP medical adviser reviewed Dr. Danushkodi’s
September 19, 2013 report and opined that appellant had 13 percent impairment of the left lower
extremity and 6 percent impairment of the right lower extremity. He explained that
Dr. Danushkodi incorrectly used the diagnostic-based study in conjunction with the net
adjustment formula when calculating impairment for the right lower extremity. The medical
adviser provided his calculations and findings regarding appellant’s permanent impairment. He
noted a date of maximum medical improvement as September 19, 2013.
On October 10, 2013 OWCP granted appellant a schedule award for 6 percent
impairment of the right leg and 13 percent impairment of the left leg based on the October 4,
2013 report of OWCP medical adviser. The award ran from September 19, 2013 to
October 7, 2010.
OWCP noted a date of maximum medical improvement of
September 19, 2013.
Following the October 10, 2013 schedule award decision, appellant submitted a
completed CA-1032 form and resubmitted Dr. Ellis’ August 1, 2013 report.

2

In an appeal request form dated August 19, 2014 and received by the Branch of Hearings
and Review on September 17, 2014, appellant requested an oral hearing.
By decision dated December 17, 2014, an OWCP hearing representative denied
appellant’s request for a hearing as untimely filed. He noted that appellant’s request for an oral
hearing was received by OWCP on September 17, 2014, which was more than 30 days after the
October 10, 2013 decision. OWCP exercised its discretion and further determined that the issue
in the case could be equally well addressed by requesting reconsideration from it and submitting
evidence not previously considered which establishes his claim.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.2 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.3 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.4 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.5 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).6
ANALYSIS
On October 10, 2013 OWCP denied appellant’s schedule award claim. Appellant
requested an oral hearing that was received by the Branch of Hearings and Review on
September 17, 2014. The Board notes that appellant’s request for an oral hearing was submitted
more than 30 days after the October 10, 2013 decision.7 Section 8124(b)(1) is unequivocal on

2

Id. at § 8124(b)(1).

3

20 C.F.R. §§ 10.616, 10.617.

4

Id. at § 10.616(a).

5

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

6

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
7

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). The
Board notes that appellant did not submit a written request for an oral hearing by November 9, 2013, within 30
calendar days after OWCP’s October 10, 2013 decision.

3

the time limitation for requesting a hearing.8 The Board finds that OWCP properly determined
that appellant’s request for an oral hearing was not timely and, thus, he was not entitled to a
hearing as a matter of statutory right under section 8124(b)(1) of FECA.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In its December 17, 2014
decision, it properly exercised its discretion by notifying appellant that it had considered the
matter in relation to the issue involved and that additional argument and evidence could be
submitted with a request for reconsideration. The Board has held that the only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deductions from established facts.9 In this case, there is no
evidence of record that OWCP abused its discretion by denying appellant’s hearing request.
Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral hearing.
On appeal appellant argues the merits of his schedule award claim. The Board does not
have jurisdiction to review the October 10, 2013 schedule award decision.10 The only decision
presented in this appeal before the Board is the December 17, 2014 decision which denied
appellant’s request for an oral hearing as untimely filed.
CONCLUSION
The Board also finds that OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1).

8

William F. Osborne, 46 ECAB 198 (1994).

9

Samuel R. Johnson, 51 ECAB 612 (2000).

10

Supra note 1.

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ORDER
IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-2116
Issued: April 7, 2008

Case Submitted on the Record

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

JURISDICTION
On August 14, 2007 appellant filed a timely appeal from a May 16, 2007 merit decision
of the Office of Workers’ Compensation Programs that denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On April 18, 2006 appellant, then a 54-year-old lead sales and services associate, filed an
occupational disease claim stating that he developed degenerative joint disease of the hips and

shoulder problems in the performance of duty.1 He attributed his condition to walking, standing
and pushing heavy equipment and containers of mail during his tenure of more than 20 years
with the employing establishment. Appellant noted that he first became aware of his condition
and related it to his employment during April and May 2006. He stopped work on
March 22, 2006. The employing establishment controverted appellant’s claim, stating that his
duties generally involved selling products and handling money and that any heavy lifting or
pushing was done with hydraulic lifts.
In an April 7, 2006 report, Dr. Frederick Douglas Burton, an internist, advised that he had
treated appellant for severe degenerative joint disease of the left hip, a deformed left clavicle and
a disc herniation at the L2-3 level of appellant’s cervical spine. He noted that x-ray testing
revealed degenerative changes of the acromioclavicular joint. Dr. Burton concluded, based on
appellant’s “work schedule and work habits,” that his hip and clavicle injuries were related to his
employment. In a June 20, 2006 report, he reiterated his opinion that appellant’s left clavicle and
hip conditions were related to his repetitive pushing and lifting of heavy objects on the job.
Dr. Burton stated that x-ray testing revealed severe degeneration of the femur heads, which is a
type of degeneration common to individuals who repetitively push heavy objects. He also noted
that appellant’s left clavicle demonstrated anterior displacement with calcification, which was
typically observed in individuals who engaged in repetitive pushing and lifting. Dr. Burton
explained that appellant’s history did not reflect any nonwork activities that “would create the
repetitive nature necessary for these types of injuries.” He concluded that appellant’s
employment directly caused his degenerative joint disease of the left clavicle and hip.
By decision dated June 29, 2006, the Office denied appellant’s occupational disease
claim on the grounds that the medical evidence was insufficient to demonstrate a causal
relationship between the established work-related events and appellant’s diagnosed condition.
On February 9, 2007 appellant requested reconsideration of the Office’s June 29, 2006
decision.
In support of his reconsideration request, appellant submitted two additional medical
reports from Dr. Norman B. Stempler, an osteopath. In a January 15, 2007 report, Dr. Stempler
noted that appellant described his job as “moving mail,” which required repetitive standing,
bending and kneeling, squatting, stooping, pushing, pulling and lifting. He diagnosed bilateral
degenerative joint disease of the hips with more pronounced symptoms on the left and bilateral
degenerative joint disease of the sternoclavicular joint. Dr. Stempler opined that there was a
“direct causal relationship between all of [appellant’s] ongoing and continued complaints and the
cumulative effect of his activities at the [employing establishment] for the past 21 years.” In a
January 31, 2007 follow-up report, he again noted that, over 20 years with the employing
establishment, appellant performed repetitive physical duties including bending and stooping,
kneeling and squatting, lifting, pushing and pulling. He characterized the physical requirements
of appellant’s employment as both repetitive and excessive. Dr. Stempler concluded that the
physical examination findings supported a diagnosis of bilateral degenerative joint disease of the
1

On May 23, 2006 the Office sent a development letter requesting additional information concerning appellant’s
claim. It characterized appellant’s claim as a low back injury. In statements on May 28 and June 16, 2006,
appellant clarified that his claim was for hip and shoulder conditions, not for a back condition.

2

hips. He opined that appellant “is suffering from the cumulative effect of all of the activities as
an employee. In my opinion, there is unquestionably direct causal relationship between all of
[appellant’s] continued hip complaints and … the activities of the workplace for the past 20 [to]
21 years.”
By decision dated May 16, 2007, the Office denied modification of its June 29, 2006
decision on the grounds that the medical evidence submitted was insufficient to establish a causal
relationship between appellant’s diagnosed condition and his employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.3
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, he must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.7 The
opinion of the physician must be based on a complete factual and medical background of the
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004); citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 4.
7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

3

claimant8 and must be one of reasonable medical certainty9 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10
ANALYSIS
The Board finds that appellant has not met his burden of proof in establishing that he
developed an occupational disease in the performance of duty. Appellant established that he
performed tasks of a physical and repetitive nature for the employing establishment. However,
he has not submitted sufficient rationalized medical evidence to show a causal relationship
between his diagnosed degenerative joint disease of the hips and left shoulder condition and his
employment factors.
In his April 7, 2006 report, Dr. Burton concluded that appellant’s hip and clavicle injuries
were causally related to his employment. He attributed appellant’s condition to his “work
schedule and work habits.” However, Dr. Burton did not identify or elaborate upon the
employment factors he believed caused appellant’s condition or explain precisely how the
relevant factors were related to his specific condition. On June 20, 2006 he reiterated that
appellant’s hip and shoulder conditions were related to his employment and explained that x-ray
testing had revealed severe degeneration of the femur heads and anterior displacement with
calcification of the left clavicle, which were typically seen in individuals who engage in
repetitive pushing. Dr. Brown concluded that appellant’s repetitive pushing and lifting on the
job caused his conditions. He did not, however, provide support for his conclusions beyond his
generalized observations.
Although Dr. Brown noted that, the degeneration appellant
experienced was of a type typically seen in individuals who engaged in repetitive pushing and
lifting, he did not explain how appellant’s work activities would have caused or aggravated his
particular condition. He merely noted that appellant’s degeneration was of a type often seen in
individuals who had engaged in repetitive pushing and lifting activities and did not present
rationale specifically tailored to appellant’s particular situation. Dr. Brown also did not present
specific details about appellant’s heavy lifting and pushing activities; he did not note the weights
appellant was required to lift and push, how long appellant spent on repetitive physical activities
each day and what other physical duties, if any, appellant was expected to perform. He also did
not give specific physical details of appellant’s diagnosed condition. Therefore, the Board finds
that Dr. Brown’s report is not sufficiently rationalized to establish a causal relationship between
appellant’s diagnosed conditions and his employment factors.
In his January 15 and 31, 2007 reports, Dr. Stempler attributed appellant’s diagnosed
condition to the cumulative effects of his physical work over the past 21 years. He noted that
appellant’s physical work duties included standing, bending and stooping, kneeling, squatting,
pushing and pulling and lifting. However, Dr. Stempler did not give a fully rationalized
explanation of how these activities caused appellant’s particular physical condition. He noted
8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

4

appellant’s diagnosed condition and the physical demands of his job, but did not offer rationale
in support of his conclusion that the physical job activities caused the condition. As noted above,
a rationalized medical opinion must include a full explanation of the nature of the relationship
between appellant’s diagnosed condition and the implicated employment factors; Dr. Stempler’s
reports lack such an explanation. Accordingly, they are insufficient to establish a causal
relationship between appellant’s diagnosed condition and his employment factors.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5