United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 09-595
Issued: December 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 31, 2008 appellant filed a timely appeal of a September 15, 2008 decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation due to a change in
positions from letter carrier to clerk on February 9, 2002.
FACTUAL HISTORY
On October 4, 1988 appellant, then a 25-year-old letter carrier, stepped in a pothole and
injured her left knee and ankle while delivering mail. She was a GS-5 employee. The Office
accepted the claim for left ankle sprain, left ankle reconstruction and partial tear of the left
acromioclavicular ligament and chondromalacia. It authorized left knee arthroscopy that was
performed on August 22, 1989, left ankle reconstruction that was performed on December 5,

1989 and additional surgery that was performed on March 2, 1992.
immediately stop work but was assigned a sedentary limited-duty position.

Appellant did not

On April 25, 1989 appellant filed a claim for compensation for total disability beginning
April 21, 1989 when she stopped work. At that time she was a GS-5 employee with an annual
salary of $26,199.00. In a July 1, 1990 memorandum, the Office noted that appellant returned to
work in a limited-duty position on February 5, 1990. On January 14, 1992 she filed a notice of
recurrence of disability alleging that on January 3, 1992 she experienced right knee pain causally
related to her work injury. Appellant stopped work on January 3, 1992. The employing
establishment noted that she had returned to full duty on October 15, 1991. On January 30, 1992
the Office accepted the recurrence of disability claim.
In a telephone log dated May 6, 1992, the Office noted that appellant returned to lightduty work on May 6, 1992. In a report of termination of disability dated December 20, 1994, it
noted that she stopped work on November 1, 1994 and returned to a temporary light-duty parttime modified rehabilitation clerk position on December 19, 1994 for four hours a day with a
gradual increase to eight hours per day.
On February 7, 2002 the employing establishment offered appellant a rehabilitation job
offer as a modified distribution clerk, GS-5 with an annual salary including cost-of-living
increases of $40,472.00 a year effective February 9, 2002. Appellant accepted the position on
February 9, 2002 and returned to work the same day.
On August 15, 2002 appellant filed a Form CA-7, claim for compensation, for four hours
on July 29, 2002. The employing establishment noted on the Form CA-7 that her pay as of
July 29, 2002, GS-5, step 0 was $41,679.00 per year.
On July 2, 2006 appellant filed a Form CA-7, claim for compensation for other wage
loss, beginning January 1, 2002. She noted that there was a wage change in 2002 for letter
carriers which did not include mail clerks. Appellant noted that in 1986 she was hired as a
carrier and in 1993 she was forced to work as a rehabilitation clerk. She asserted that there was a
carrier wage increase in 2002 which she was excluded from because she was classified as a
clerk.
In a letter dated July 21, 2006, the Office requested the employing establishment to
confirm that appellant was a GS-5, step B as of February 9, 2002 and provide the salary as of
February 9, 2002. It noted that the effective date of her change in jobs from a carrier to a clerk
was February 9, 2002. In a telephone log dated July 21, 2006, the employing establishment
confirmed that appellant’s annual wage as of February 9, 2002 was $41,679.00 and she was a
GS-5, step 0 as of July 27, 2002.
On October 23, 2006 appellant filed a claim for compensation for other wage loss for the
period beginning November 18, 2000. She noted that she accepted a rehabilitation position as a
letter carrier on May 1, 1993 and was forced to become a clerk. Appellant noted that letter
carriers received a pay change in 2000 which did not include clerks.

2

In a telephone log dated November 8, 2006, the employing establishment confirmed that
appellant’s salary on February 8, 2002, the last day she was a letter carrier, was $41,679.00. It
noted that appellant accepted the modified clerk position on February 9, 2002 and her salary was
also $41,679.00.
In a decision dated November 8, 2006, the Office denied appellant’s claim for
compensation for wage loss effective February 9, 2002. It found her salary on February 8, 2002
while a letter carrier was $41,679.00 which was equivalent to her salary starting February 9,
2002 as a clerk. The Office further noted that the annual wage increases for a clerk on
February 9, 2002 was equivalent to that of a letter carrier.
On November 14, 2006 appellant requested an oral hearing which was held on
February 9, 2007.
In a November 27, 2006 letter, the Office acknowledged receipt of appellant’s claim for
compensation for lost wages for the period beginning November 18, 2000 and her assertion that
she lost wages because her position changed from a letter carrier to a clerk. However, the
employing establishment confirmed that appellant’s salary as a letter carrier on February 8, 2002
was $41,679.00 and she continued to earn the same salary as a modified distribution clerk on
February 9, 2002. The Office requested that appellant clarify her loss of wage claim and the
period for which she was claiming compensation.
In a December 5, 2006 statement, appellant asserted that her rehabilitation job was
abolished in February 2002 and management had to find her a new position. It issued her a
rehabilitation job offer effective February 9, 2002. Appellant indicated that in 1993 a letter
carrier and clerk made the same wages but on November 18, 2000 the letter carrier wages
increased and reflected a salary which was two to three thousand dollars more than a clerk. She
contended that in 1993 management informed her that her pay would always be that as a letter
carrier and that if she did not accept the job offer the Office could “drop her case.” On
February 19, 2007 appellant submitted pay schedules for a clerk and a city carrier from May 15,
1991 to November 25, 2006 and asserted there was a difference in pay for a clerk and a carrier
from November 18, 2000 to the present.
On May 2, 2007 the hearing representative affirmed the November 8, 2006 decision
finding that appellant had no wage-loss decision.
On May 10, 2007 appellant appealed her claim to the Board. In an order dated August 8,
2008, the Board remanded the case for reconstruction and proper assemblage of the record and a
merit decision in order to preserve her appeal rights.1
In a decision dated September 15, 2008, the hearing representative affirmed the
November 8, 2006 decision.

1

Docket No. 07-1519 (issued August 8, 2008).

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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.2 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.3 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.4
Under the Federal Employees’ Compensation Act, the term disability means incapacity
because of an injury in employment to earn the wages the employee was receiving at the time of
the injury.5 The general test of disability is whether an injury-related impairment prevents the
employee from engaging in the kind of work she was doing when injured.6
The Office does not have the authority to enlarge the terms of the Act nor to make an
award of benefits under any terms other than those specified in the statute.7 The Board has
consistently held that there is no provision which entitles a claimant to receive additional
compensation for grade and step increases which the employee might have received if she had
remained in her position with the employing establishment.8
ANALYSIS
The Office accepted appellant’s claim for left ankle sprain, left ankle reconstruction and
partial tear of the left acromioclavicular ligament and chondromalacia and authorized surgery. It
paid appellant compensation for various periods of disability after October 4, 1988. On July 2,
2006 appellant filed a CA-7, claim for compensation for other wage loss, beginning January 1,
2002, contending that in 1986 she was hired as a letter carrier and in 1993 she was forced to
work as a rehabilitation clerk. As she was a clerk, she was precluded from receiving a wage
increase for letter carriers that became effective in 2002.

2

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

Id.

4

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

5

Carl R. Benavidez, 56 ECAB 596 (2005); Paul E. Thams, 56 ECAB 503 (2005); Sean O’Connell, 56 ECAB
195 (2004).
6

Elmer R. Poland, 39 ECAB 1367 (1988); see David H. Goss, 32 ECAB 24 (1980).

7

Timothy A. Liesenfelder, 51 ECAB 599, 602 (2000).

8

The Board has held that the probability that an employee, if not for his work-related condition, might have had
greater earnings is not proof of a loss of wage-earning capacity and does not afford a basis for payment of
compensation under the Act. See Dan C. Boechler, 53 ECAB 559, 561 (2002); Dempsey Jackson, Jr., 40 ECAB
942, 947 (1989).

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In the present case, appellant has not submitted sufficient evidence to establish that she
sustained wage loss as a result of changing from a letter carrier position to a modified
distribution clerk position on February 9, 2002.
On February 7, 2002 the employing
establishment offered her a rehabilitation job offer as a modified distribution clerk, GS-5 with an
annual salary including cost-of-living increases of $40,472.00 per year effective
February 9, 2002. Appellant voluntarily accepted the position and returned to work on
February 9, 2002. In a telephone logs dated July 21 and November 8, 2006, the employing
establishment confirmed that her annual wage as of February 8, 2002, the last day she was a
letter carrier, was $41,679.00. The establishment noted that appellant accepted the modified
clerk position on February 9, 2002 and clarified that her salary was also $41,679.00. The
employing establishment noted that the annual wage increases for a clerk were equivalent to that
of a letter carrier.
In support of her claim, appellant submitted copies of pay schedules for a clerk and a city
carrier from May 15, 1991 to November 25, 2006 and asserted there was a difference in pay for a
clerk and a carrier from November 18, 2000 to the present. However, this evidence is
insufficient to establish that she sustained any wage loss. The record reveals and the employing
establishment verified that at the time appellant accepted the modified clerk position her pay was
the same as that of a letter carrier. Appellant did not submit any evidence to refute this
information. She was employed in the modified clerk position at a retained pay rate and there is
no evidence that she had wage loss at the time she changed positions effective February 9, 2002.9
Additionally, the Board has held that there is no provision which entitles a claimant to receive
additional compensation for grade and step increases which the employee might have received if
he or she remained in the position with the employing establishment.10 Similarly, appellant’s
assertion that had she continued working in the letter carrier position her income would have
increased two to three thousand dollars more than clerks in 2002 is without merit. As noted
above, there is no provision which entitles a claimant to receive additional compensation for
such raises.11 The Office does not have the authority to enlarge the terms of the Act nor to make
an award of benefits under any terms other than those specified in the statute.12 The Board finds
that appellant did not submit sufficient evidence to support wage loss beginning
February 9, 2002.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c)(4) (July 1997) (wages lost because step increases and/or cost-of-living increases were not
applied to the retained pay rate do not constitute a loss of wage-earning capacity, and claims based on this premise
should be denied). This provision also notes that such claims for wage loss may be denied even if no formal loss of
wage-earning capacity decision was made at the time of reemployment.
10
11

12

See E.G. 59 ECAB __ (Docket No. 07-1562, issued July 2, 2008).
Id.; see also Dan C. Boechler, supra note 8.
See Timothy A. Liesenfelder, supra note 7.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she is
entitled to compensation for wage loss due to a change in positions from a letter carrier to a clerk
on February 9, 2002.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 15, 2008 decision is affirmed.
Issued: December 18, 2009
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-2048
Issued: March 25, 2014

Case Submitted on the Record

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

On September 5, 2013 appellant timely appealed a May 1, 2013 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Board assigned the appeal Docket
No. 13-2048.
Appellant, a 57-year-old automation clerk, filed a claim (Form CA-1) for uterine prolapse
and abnormal vaginal bleeding which allegedly arose in the performance of duty on
September 17, 2011. She also claimed to have sustained injuries to her feet, knees, hands,
elbows and shoulders. Appellant attributed her various injuries to standing, lifting and sweeping
mail from an automation machine and placing the mail into trays. Once the trays were full, she
would place them on a multi-tiered rack. After further development of the record, OWCP denied
appellant’s traumatic injury claim by decision dated April 19, 2012. Appellant failed to establish
a causal relationship between her claimed condition(s) and her accepted employment exposure.

1

The Board has jurisdiction to consider and decide appeals from final decisions of OWCP in any case arising
under the Federal Employees’ Compensation Act. 20 C.F.R. § 501.2(c)(2012). Any person adversely affected by a
final OWCP decision may file for review of such decision. Id. at § 501.3(a). The Board’s review is limited to
appeals filed within 180 days from the date OWCP issued its decision. Id. at § 501.3(e).

In a decision dated August 20, 2012, the Branch of Hearings and Review affirmed OWCP’s
April 19, 2012 decision.
On April 17, 2013 appellant requested reconsideration and submitted additional evidence.
OWCP received the request on April 23, 2013. In its May 1, 2013 decision, OWCP considered
appellant’s request untimely, noting that more than a year had lapsed since the April 19, 2012
decision. It reviewed appellant’s request under 20 C.F.R. § 10.607(b) and found that she failed
to establish clear evidence of error. Consequently, OWCP did not revisit the merits of her
September 17, 2011 traumatic injury claim.
The Board notes that the hearing representative’s August 20, 2012 decision is the most
recent merit decision. Therefore, appellant’s April 2013 request for reconsideration was timely
and OWCP should have considered it pursuant to 20 C.F.R. § 10.606.2 OWCP erred in requiring
that appellant demonstrate clear evidence of error. Accordingly, the May 1, 2013 decision shall
be set aside, and the case remanded for proper consideration under 20 C.F.R. §§ 10.606 and
10.608.
IT IS HEREBY ORDERED THAT the May 1, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action.

2

An application for reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a
relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence
not previously considered by OWCP. 20 C.F.R. § 10.606(b)(2). When an application for reconsideration does not
meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review of the merits. Id. at § 10.608(b).

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Issued: March 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 10-1693
Issued: April 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2010 appellant filed a timely appeal from a December 17, 2009 decision of
the Office of Workers’ Compensation Programs denying his request for further review of the
merits of his claim. Pursuant to the Federal Employees’ Compensation Act and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by the Office.
The last merit decision of record was the Office’s December 16, 2008 decision. Because more
than 180 days has elapsed between the last merit decision and the filing of this appeal on
June 10, 2010, the Board lacks jurisdiction to review the merits of this case.1

1

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 5, 2008 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed thoracolumbar sprain/strain and
aggravation of underlying thoracic degenerative disc disease T6-7. He failed to explain in
factual terms how his employment caused his alleged occupational disease. Appellant first
became aware of his illness on March 22, 2006 and realized he had an employment-related
condition on August 30, 2008. On the reverse side of the form, the employing establishment
indicated that he first reported his condition to his supervisor on September 1, 2008. Appellant
stopped work on April 8, 2008.2
Appellant submitted a March 22, 2006 Office decision which held that his claim had been
expanded to cover aggravation of thoracic degenerative disc disease T6-7 for File No.
xxxxxx939.
In medical reports dated August 22, 2007 to April 9, 2008, Dr. Michael P. Casey, a
Board-certified orthopedic surgeon, diagnosed appellant with thoracic sprain and degenerative
disc disease. On August 22, 2007 he recommended appellant be placed on light duty, should not
carry or lift more than 25 pounds, and must be able to stand as necessary during the workday.
On April 9, 2008 Dr. Casey recommended appellant return to regular duty with no work
limitations.
By letter dated August 3, 2009, the Office requested additional factual information from
both appellant and the employing establishment. It also requested medical documentation
pertaining to any treatment appellant had received for his back injury.
In an October 22, 2008 medical report, Dr. Paul Lieber, Board-certified in physical
medicine and rehabilitation, reported that he first evaluated appellant on April 14, 2008 and
diagnosed thoracolumbar strain/sprain and aggravation of underlying degenerative disc disease.
2

The Board notes appellant has additional compensation claims which are distinct from this claim currently on
appeal but have some relevance to factual matters. This is because the claims involve the same body parts and were
being developed during a period close to this occupational disease claim. The following claims are not before the
Board. Appellant had a prior traumatic injury on February 22, 2003 when he fell five feet when porch stairs failed.
The claim was accepted for lumbar strain and thoracic strain, File No. xxxxxx842. Appellant also injured himself
on December 15, 2003 while delivering mail on that date in the performance of duty. The claim was accepted for
lumbar strain and thoracic strain, File No. xxxxxx939. Appellant was on modified duty and returned to full duty on
January 13, 2004. The two claims have since been combined, File No. xxxxxx939.
On March 13, 2004 appellant stopped work due to a recurrence of a disability, File No. xxxxxx939.
On April 11, 2008 appellant filed a recurrence of disability alleging that he hurt his back when he had to carry
mail on route which was too heavy. He stated that the recurrence was related to his December 15, 2003 injury and
occurred on April 7, 2008, File No. xxxxxx002.

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He noted that appellant underwent a magnetic resonance imaging (MRI) scan which revealed a
left L5-S1 degenerative disc, foraminal narrowing at L5-S1 on the right and pseudoarthosis
forming between the lateral mass and right lateral body of T7. Dr. Lieber also stated that
appellant’s symptoms of back and leg pain reoccur with increased activity and the demands of
regular-duty work. He noted that the heavier weights required of appellant’s job exacerbated his
degenerative disc diseases. Dr. Lieber opined that appellant’s condition was permanent and
recommended he be limited to full-time light-duty work, lifting and carrying no more than 20
pounds.
On October 26, 2008 appellant submitted a position description outlining the duties and
requirements of a U.S. Postal Service letter carrier.
In a November 5, 2008 factual statement, appellant reported that lifting and carrying mail
at work contributed to his lumbar condition. He stated that he would lift and carry mail for
approximately five to six hours a day, intermittently.
Appellant also submitted copies of documents from his previous claims. He provided an
April 11, 2008 notice of recurrence form, August 2, 2005 and February 24, 2006 medical reports
from Dr. David Neuschwander, and an October 22, 2008 Office decision for File No. xxxxxx939
which held that the third-party surplus should be absorbed by the compensation payment under
File No. xxxxxx842.
By decision dated December 16, 2008, the Office denied appellant’s claim finding that he
did not establish fact of injury.
On December 11, 2009 appellant requested reconsideration of the Office decision. In a
February 10, 2009 statement, he noted that he never reported to work and the postal service
eliminated his job. Appellant stated that his supervisor sent him home and did not provide him
with any type of work, including light or limited duty. He also alleged that his disability was
caused by management.
Appellant submitted articles about the recurrence of disability and workers’
compensation, an April 19 and 28, 2008 postal service request for notification of absence, a
May 2, 2008 pay stub, a February 9, 2009 postal service employee everything report, a
November 8, 2008 postal service notice of vacancy posting, and a August 19, 2009 time analysis
form for File No. xxxxxx939.
By letter dated February 12, 2009, the employing establishment informed appellant that
even without verification of an open claim, his limitations would qualify him for light duty or
reasonable accommodations. The employing establishment attached the necessary request
forms.
In a March 6, 2009 medical report, Dr. Lieber stated that he had been treating appellant
since February 22, 2003 when he fell approximately five feet and was diagnosed with lumbar
and thoracic strains. He noted that appellant was released to full-duty unrestricted work on
April 7, 2008. Upon returning to work, Dr. Lieber opined that appellant had a recurrence of his
work-related injury from February 22, 2003, reinjuring his mid and lower back. He stated that

3

appellant’s injury was a result of returning to work on April 7, 2008. Dr. Lieber opined it
represented an aggravation of a preexisting condition and should be considered a new injury.
By letter dated July 29, 2009, the employing establishment informed appellant that he
was provided with an employment offer on May 26, 2009 but chose to take voluntary early
retirement instead, which went into effect on July 31, 2009.
By decision dated December 17, 2009, the Office denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT
The Office’s December 16, 2008 merit decision denied appellant’s claim based on his
failure to establish fact of occupational exposure and a causal connection to his employment. On
reconsideration, appellant must submit relevant evidence or advance legal contentions not
previously considered on this particular issue.3 To establish that an injury was sustained in the
performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) a factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment 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 employment factors identified
by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.5 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. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.6

3

Edward Matthew Diekemper, 31 ECAB 224 (1979).

4

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

5

D.U., Docket No. 10-144 (issued July 27, 2010).

6

James Mack, 43 ECAB 321 (1991).

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To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
The Board finds that the refusal of the Office to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The only Office decision before the Board on appeal is the December 17, 2009 decision,
denying appellant’s application for review. Because more than 180 days elapsed between the
date of the Office’s most recent merit decision on December 16, 2008 and the filing of
appellant’s appeal on June 10, 2010, the Board lacks jurisdiction to review the merits of
appellant’s claim.9
Appellant submitted a March 6, 2009 medical report from Dr. Lieber diagnosing him
with lumbar and thoracic strains. Dr. Lieber opined that the injury was an aggravation of his
preexisting condition from his work-related injury of February 22, 2003. He noted that
appellant’s injury was aggravated when appellant returned to work on April 7, 2008. While this
evidence is new, the Board finds that it is not relevant to the issue of fact of injury. Dr. Lieber
did not establish what employment activities caused his injury. This evidence is not material or
relevant because the denial of appellant’s claim was based on his failure to factually establish the
claimed occupational exposure to a condition which caused the medical injury or disease. To
require the Office to reopen a case for reconsideration, appellant must submit relevant evidence
not previously of record or advance legal contentions not previously considered.10 The Board
has held that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.11
Appellant’s February 10, 2009 statement alleged that his supervisor did not provide him
with any type of work including light or limited duty. He noted that he never reported to work
and the postal service eliminated his job. This statement, however, does not establish that
7

D.K., 59 ECAB 141 (2007).

8

K.H., 59 ECAB 495 (2008).

9

20 C.F.R. § 501.3(e) requires that an application for review by the Board be filed within 180 days of the date of
the Office’s final decision being appealed.
10

E.g., Eladio Joel Abrera, 28 ECAB 401 (1977); Edward Matthew Diekemper, 31 ECAB 224 (1979); Ethel D.
Curry, 35 ECAB 737 (1984); Helen E. Tschantz, 39 ECAB 1382 (1988).
11

Jimmy O. Gilmore, 37 ECAB 257 (1985).

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appellant engaged in the employment activities that caused his thoracic lumbar and spinal
condition.
The remaining evidence of record also fails to support appellant’s allegation that he
sustained a back injury causally related to his employment factors. Appellant submitted letters
from the employing establishment which advised him that he could apply for light duty and that
he was electing early retirement. He also submitted worker’s compensation articles, postal
service requests for notification of absence, a May 2, 2008 pay stub, a February 9, 2009 postal
service employee everything report, a postal service notice of vacancy posting, and a August 19,
2009 time analysis form for File No. xxxxxx939. While these documents have some connection
to appellant’s employment, they are not relevant to the issue for which the Office denied
appellant’s claim, the failure to establish his claimed occupational exposure. Therefore, these
documents do not constitute a basis for reopening appellant’s claim.12
Consequently, the evidence does not support appellant’s allegation that he sustained a
back injury causally related to factors of his employment. Thus, appellant has not established
that the Office abused its discretion in its December 17, 2009 decision under section 8128(a) of
the Act because he did not show that the Office erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by the Office, or
submit relevant and pertinent new evidence not previously considered by the Office.13
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of his claim pursuant to 5 U.S.C. § 8128(a).

12

David J. McDonald, 50 ECAB 185 (1990).

13

Sherry A. Hunt, 49 ECAB 467 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., 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. 14-1336
Issued: October 9, 2014

Case Submitted on the Record

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

JURISDICTION
On May 22, 2014 appellant, through her representative, filed a timely appeal from the
February 3, 2014 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 sustained an injury in the performance of duty on
November 11, 2011.
FACTUAL HISTORY
On or about May 8, 2012 appellant, a 56-year-old clerk, filed a traumatic injury claim
alleging a right shoulder injury in the performance of duty on November 11, 2011. She was
1

5 U.S.C. § 8101 et seq.

sorting letters into mail bins that day, constantly reaching as she was sorting. Appellant’s right
arm, shoulder and neck became very painful and swollen.
The record indicates that appellant had previously sustained a right rotator cuff tear in the
performance of duty on March 15, 2004.2 She remained off work until she returned to a limitedduty assignment on November 11, 2011. One day later, appellant filed a recurrence of disability
claim, which OWCP denied. She then pursued a new injury claim.
Dr. Cornelius I. Nicoll, the attending orthopedic surgeon who had followed appellant
many years for her right shoulder, noted on November 14, 2011 that she had pain in both
shoulders and pain to range of motion. Appellant was unable to elevate both arms above the
shoulder. She told him that she went to work and developed severe pain and ended up in the
emergency room the same day. Dr. Nicoll remarked: “I believe that this problem is chronic and
patient remains totally disabled. The last time she worked was approximately eight years ago.”
On June 21, 2012 OWCP denied appellant’s injury claim.
Appellant saw Dr. Nicoll on September 12, 2012. Her right shoulder was noted to have
major problems. New x-rays were reviewed. A diagnosis of post-traumatic arthritis and possible
rotator cuff tear were made. Dr. Nicoll advised: “We are sending you this note saying she has
been under our follow up for many years for injury to the right shoulder. She developed some
pain and stiffness and symptoms of the rotator cuff tear.”
On January 11, 2013 an OWCP hearing representative affirmed the denial of appellant’s
new injury claim. The hearing representative found that Dr. Nicoll did not explain whether or
how the new, limited work activity led to a specific medical diagnosis.
Dr. Nicoll reported on November 21, 2013 that appellant had been his patient for many
years. Appellant gave a history of a right shoulder injury on March 15, 2004, for which she had
surgical repair. As physical therapy was not approved, she had an unsatisfactory recovery.
Appellant remained with chronic pain, stiffness and limited right shoulder motion. She also
developed post-traumatic changes to her left shoulder as a result of using that shoulder in
compensation.
Dr. Nicoll added that appellant remained disabled for work until November 11, 2011,
when she made an attempt to return. “I believe that she was totally disabled permanently until
November 2011. Patient did not receive a note from me as I was on vacation and she made an
attempt of returning to work.” He noted that appellant developed severe pain to the right
shoulder after performing her duties and reinjured or aggravated the original condition. “I
believe that her injuries from March 15, 2004 and November 11, 2011 are the #1 factors
Patient’s [sic] right shoulder and then left shoulder became very stiff and she was able to elevate
it above the shoulder level with severe pain and stiffness.”
In a decision dated February 3, 2014, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that Dr. Nicoll provided no medical
2

OWCP File No. xxxxxx514.

2

rationale to support how reaching to sort letters and compensating for the right shoulder caused
or aggravated appellant’s diagnosed condition.
Appellant’s representative argues that prima facie evidence of traumatic injury has been
provided. He requests that the Board reverse the denial of appellant’s claim. In the alternative,
appellant’s representative suggests that sufficient evidence has been submitted to require further
development.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
OWCP does not dispute the duties appellant performed during her return to duty in
November 2011. Appellant has therefore met her burden to establish that she experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged. The
question that remains is whether these work activities caused an injury. Appellant has the burden
of proof as to this issue.
In his first narrative reports, Dr. Nicoll, the attending orthopedic surgeon, did not offer an
opinion on appellant’s claim that she sustained a traumatic work injury on November 11, 2011.
He simply related what appellant had told him. Dr. Nicoll believed that appellant’s problem was
3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

chronic and that she remained totally disabled. He diagnosed post-traumatic arthritis and
possible rotator cuff tear, but he did not discuss how the duties that appellant performed on
November 11, 2011 caused or aggravated these diagnosed conditions.
Dr. Nicoll offered more of a context in his November 21, 2013 report. He described
appellant prior to November 2011 as being totally and permanently disabled for work.
Dr. Nicoll was on vacation, he explained, and did not give her a note to return to work, but she
attempted to do so and developed severe pain to the right shoulder after performing her duties
“and reinjured or aggravated the original condition.”
Although this is supportive of appellant’s claim that she sustained an injury in the
performance of duty on November 11, 2011, Dr. Nicoll did little more than repeat appellant’s
claim. He did not discuss the duties she performed or how she performed them. Medical
conclusions unsupported by rationale are of little probative value.9 The burden of going forward
with the evidence lies with appellant. As she has not met her burden of proof to establish the
critical element of causal relationship, the Board affirms OWCP’s February 3, 2013 decision
denying her new injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
injury in the performance of duty on November 11, 2011.

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Metairie, LA, Employer
__________________________________________

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

Docket No. 08-2468
Issued: March 3, 2009

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 September 15, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated August 11, 2008. Under 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 sustained a right shoulder injury in the performance of duty
on November 26, 2007.
FACTUAL HISTORY
Appellant, a 27-year-old letter carrier, filed a claim for benefits on December 28, 2007,
alleging that he experienced pain his right shoulder on November 26, 2007 when the weight
suddenly shifted in the mailbag he was carrying, placing inordinate stress on his right clavicle
and right shoulder.
A form report dated December 20, 2007, stated “patient should use a cart instead of a bag
to carry mail.” The physician’s signature on the form is not legible.

On January 9, 2008 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from his treating physician describing her
symptoms and the medical reasons for his condition, and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
By decision dated February 11, 2008, the Office denied appellant’s claim, finding that he
failed to establish fact of injury.
By letter dated March 5, 2008, appellant requested reconsideration.
By decision dated March 21, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
By letter dated May 7, 2008, appellant requested reconsideration.
A Form CA-17 report dated May 7, 2008 stated “patient needs to use a cart instead of a
bag to carry mail” and diagnosed a torn right labrum. It also noted that the history of injury
appellant provided corresponded with the physician’s findings. The physician’s signature on the
form is not legible.
By merit decision dated August 11, 2008, the Office denied modification of the
February 11, 2008 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

John J. Carlone, 41 ECAB 354 (1989).

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5 The medical evidence required
to establish causal relationship is usually rationalized medical 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. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Office accepted that appellant experienced right shoulder pain while carrying a
mailbag on November 26, 2007. The question of whether an employment incident caused a
personal injury can only be established by probative medical evidence.9 Appellant has not
submitted rationalized, probative medical evidence to establish that the November 26, 2007
employment incident caused a personal injury.
Appellant submitted the December 20, 2007 and May 7, 2008 form reports which
recommended that he use a cart instead of a bag to carry mail. The May 7, 2008 Form CA-17
diagnosed a torn right labrum and credited appellant’s account of how his right shoulder injury
occurred. Neither of the forms contained a legible signature from a physician.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.10 Although the Form CA-17 report presented a diagnosis of
appellant’s condition, it did not adequately address how this condition was causally related to the
5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

John J. Carlone, supra note 4.

10

See Anna C. Leanza, 48 ECAB 115 (1996).

3

November 26, 2007 work incident. The report did not explain how medically appellant would
have sustained a right shoulder injury because the weight shifted in the mailbag he was carrying
on November 26, 2007. There is insufficient rationalized evidence in the record that appellant’s
left shoulder injury was work related. Appellant failed to provide a medical report from a
physician that explains how the work incident of November 26, 2007 caused or contributed to the
claimed right shoulder injury.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the November 26, 2007 work accident would have
caused the claimed injury. Accordingly, he did not establish that he sustained a right shoulder
injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.11
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right shoulder
injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 11, March 21 and February 11, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 3, 2009
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
11

The Board notes that appellant submitted additional evidence to the record following the April 12, 2004 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, CONNECTICUT
PERFORMANCE CLUSTER, Hartford, CT,
Employer
__________________________________________

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

Docket No. 11-275
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from the June 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation. 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 terminated appellant’s compensation effective
November 23, 2008 on the grounds that she refused an offer of suitable work.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 5, 2000 appellant, then a 49-year-old clerk, injured her neck due to throwing
a mail parcel and OWCP accepted that she sustained a cervical strain.2 She stopped work on
February 5, 2000 and periodically returned to work in limited-duty positions. Appellant stopped
work on April 11, 2007 and received compensation for total disability.3
On June 18, 2007 Dr. Vincent Carlesi, an attending Board-certified pain management
physician, provided a discussion of appellant’s medical history and diagnosed cervical facet
syndrome, myofascial pain syndrome, chronic cervical radiculopathy and spasmodic torticollis.
He indicated that her condition was related to the February 5, 2000 work injury, noted that
repetitive activity exacerbated her pain and opined that she was totally disabled from work.
In a September 12, 2007 report, Dr. Carlesi discussed August 2007 MRI scan testing
which showed small disc herniations at C3-4 and C4-5, without cord compression
and spondylitic ridging and stenosis at C5-6 and C6-7. He opined that appellant might need
surgery to decompress the stenosis at C5-6 which was the major cause of her problems.
Dr. Carlesi recommended a neurosurgical evaluation and changed his diagnosis to cervical
spondylosis with cervical radiculopathy and myelopathy, spasmodic torticollis and cervical spine
stenosis.
On January 25, 2008 appellant was examined by Dr. Cory Rosenstein, a Board-certified
neurosurgeon, who noted that she exhibited diffuse tenderness primarily on the right paracervical
region with no palpable spasm. Dr. Rosenstein found that she was not a surgical candidate and
that she would be best served by a pain management approach. In a June 18, 2008 form report,
Dr. Carlesi indicated that appellant was totally disabled.
OWCP referred appellant for a second opinion evaluation with Dr. Edward Staub, a
Board-certified orthopedic surgeon. On July 24, 2008 Dr. Staub discussed her work injury and
medical history, including the findings of past physical examinations and diagnostic testing. He
reported findings on physical examination, noting good cervical range of motion with perhaps a
slight loss of movement, a component of symptom magnification, full range of motion of the
extremities, intact motor and sensory examination and swollen fingers unrelated to the neck
condition. Dr. Staub made no objective findings on examination and opined that there was no
medical or orthopedic reason appellant could not work at her usual job. He noted that she was
subject to a restriction of lifting no more than 20 pounds on an occasional basis. Dr. Staub
advised that appellant had degenerative disc changes and disc bulges consistent with her age, but
it would be difficult to attribute this condition to tossing mail parcels eight years prior.
Dr. Staub completed a work restriction form indicating that appellant could work for
eight hours per day but was restricted from reaching for more than four hours, twisting or
2

Magnetic resonance imaging (MRI) scan testing from June 23, 2000 showed that appellant had mild disc bulges
at C4-5 and C5-6.
3

Appellant periodically returned to work in limited-duty positions and received compensation for partial
disability.

2

squatting for more than four hours, operating a motor vehicle for more than six hours, engaging
in repetitive movement with more than 20 pounds and engaging in pushing, pulling or lifting for
more than four hours.
On September 19, 2008 the employing establishment offered appellant a job as a
modified mail processing clerk. The position involved sorting and distributing mail and required
her to lift up to 20 pounds and engage in reaching, bending, stooping, pushing, pulling or lifting
for up to four hours per day. On September 25, 2008 appellant advised the employing
establishment by telephone that she would not accept the position because she still had pain.
In a September 30, 2008 letter, OWCP advised appellant of its determination that the
modified mail processing clerk position offered by the employer was suitable. It informed her
that her compensation would be terminated if she did not accept the position or provide good
cause for not doing so within 30 days of the date of the letter.
On September 30, 2008 appellant indicated on the job offer form that she was refusing
the modified mail processing clerk position. She disagreed with the second opinion physician
and that she was being treated by her attending physician.
OWCP requested that Dr. Staub clarify his opinion and he responded in a supplemental
report dated September 24, 2008. Dr. Staub stated that, while appellant sustained an injury on
February 5, 2000, her on-going complaints and treatment were totally out of proportion to the
type of injury she sustained, i.e., a cervical sprain. He stated that several MRI scan reports
showed mild disc bulging, but noted that it was impossible to tell if these were related to the
work incident. Dr. Staub reiterated that appellant was capable of returning to work in her usual
job. Appellant reported that she continued to have subjective residuals of the injury, but
Dr. Staub opined that she should have recovered within a few months and should not be having
residual complaints related to the February 5, 2000 injury.
In an October 30, 2008 letter, OWCP advised appellant that her reasons for not accepting
the position offered by the employing establishment were unjustified noting that Dr. Carlesi had
not provided rationale for his belief that she was totally disabled. It informed her that her
compensation would be terminated if she did not accept the position within 15 days of the date of
the letter.
In a November 5, 2008 report, Dr. Scott Simon, an attending Board-certified
neurosurgeon, noted that on examination appellant’s neck was very sensitive to even light touch
but that it had normal range of motion. He reported a positive Spurling’s along with aggravation
of her neck and arm pain with movement. Dr. Simon indicated that the MRI scan testing showed
cervical spondylosis and multilevels of cervical foraminal stenosis and provided a diagnosis of
cervical radiculopathy and back pain.
On November 21, 2008 OWCP contacted the employing establishment and confirmed
that the modified mail processing clerk position remained available to appellant.
In a November 21, 2008 decision, OWCP terminated appellant’s compensation effective
November 23, 2008 on the grounds that she refused an offer of suitable work. It found that the

3

well-rationalized opinion of Dr. Staub showed that she could perform the modified job offered
by the employing establishment.
Appellant underwent MRI scan testing on December 5, 2008, which showed reversal of
cervical lordosis, multilevel degenerative changes from C3-4 through C6-7 (worse at C5-6) and
probable left-sided fat cyst. Electromyogram (EMG) and nerve conduction velocity (NCV)
testing obtained on December 12, 2008 showed a normal electrodiagnostic study of both arms.
There was no electrodiagnostic evidence of cervical radiculopathy, generalized peripheral
neuropathy or nerve entrapment.
On December 12, 2008 Dr. Simon noted that the most recent MRI scan testing showed
moderate spondylosis and stenosis and probable left-sided fat cyst. He opined that much of
appellant’s pain was due to persistent cervical musculoligamentous sprain/strain, but noted that
the radicular component might stem from aggravation and progression of her cervical
spondylosis. In the physical examination portion of the report, Dr. Simon stated, “[Appellant] is
still obviously uncomfortable due to her neck pain. Her strength remains 5/5 although she has
persistent give in her right upper extremity. [Appellant’s] gait is smooth.” He opined that
appellant could return to work with restrictions, which included avoiding excessive repetitive
upper extremity motion. Dr. Simon felt that she should also refrain from lifting anything greater
than 15 pounds and avoid any excessive reaching, pushing, pulling or bending. On
December 16, 2008 he indicated that appellant could work with no lifting of more than 15
pounds, no repetitive movements and no reaching.
The employing establishment advised that appellant returned to work on December 29,
2008 but refused to work in the modified job.4
Dr. Carlesi examined appellant on January 7, 2009 and noted that she did return to work
at the employing establishment with restrictions on repetitive movements, reaching and lifting
more than 15 pounds. He indicated that she reported experiencing a lot of pain and diagnosed
cervical spondylosis, degenerative disc disease and myofascial pain syndrome. Appellant was
treated by Dr. Simon on January 21, 2009 who noted persistent pain and recommended facet
block injections by Dr. Carlesi. She underwent a series of injections by Dr. Carlesi who
indicated that she was totally disabled from work starting on February 5, 2000 due to her chronic
neck pain, headaches and decreased range of motion in the neck and shoulders. On March 1,
2009 Dr. Carlesi stated that appellant continued to have persistent pain due to discogenic disease
and posited that she was not a surgical candidate.
Appellant requested a review of the written record by an OWCP’s hearing representative.
In an April 16, 2009 decision, the hearing representative affirmed OWCP’s November 21, 2008
decision noting that the opinions of Dr. Carlesi and Dr. Simon were not well rationalized.
Dr. Carlesi continued to perform facet block injections and find that appellant was totally
disabled. Upon physical examination on September 21, 2009, he indicated that the strength in
4

Appellant stopped work after two weeks and remained out of work until January 27, 2009 when she accepted
the modified job offer and returned to work in this position. However, she stopped work on January 29, 2009 and
filed a claim for wage loss.

4

her arms was 5/5 with some pain when lifting the arms. Sensory testing in the arms was normal
and range of cervical motion was restricted. Dr. Carlesi diagnosed such conditions as spasmodic
torticollis, myofascial pain syndrome and cervical facet syndrome.
In a February 18, 2010 decision, OWCP affirmed its April 16, 2009 decision noting that
the additional reports of Dr. Carlesi did not show that appellant could not perform the offered
position.
Appellant continued to argue that she was not physically capable of performing the
modified mail processing clerk position. She asserted that the injury she sustained on
February 5, 2000 was more serious than a cervical strain. OWCP received periodic treatment
reports from Dr. Carlesi which contained examination findings similar to those found in earlier
reports.
Appellant submitted an October 12, 2009 letter from Dr. Carlesi to her counsel.
Dr. Carlesi provided an extensive discussion of his provision of medical treatment since
June 2007 and stated:
“I would like to make a comment on the offered position that [appellant] had on
November 23, 2008. I did not feel at that time and continued to feel the same that
[she] is not capable of performing these duties of the offered position from
November 23, 2008 and current. My explanation at this juncture is that
[appellant] has a significant restriction of range of motion of the cervical spine as
well as inability to use her upper extremities because of the significant pain that
she is experiencing from her neck and shoulders. [Appellant’s] need for chronic
opioid medications on a daily basis will also inhibit her from working of full-time
position or even a part-time position because of the effects of the medications as
well as her pain. Again, all of this is in my opinion due to the incident of
February 5, 2000.
“As you can see by the progression of the changes on her MRI [scan] from 2000
to 2008, there was a definite progression of the disease of the cervical spine due to
the past repetitive injuries that she sustained. It is well known and documented
that spinal disease will progress after initial injury due to a degenerative process
of immobility secondary to pain. It is my medical opinion with a reasonable
degree of medical probability that the symptoms that she is experiencing as well
as her current diagnoses are secondary to her February 5, 2000 injury. Because of
the severity of her pain, [appellant] has not been able to perform any major
activities of daily living and it is my opinion that her underlying degenerative
processes is a sequelae of the initial injury. Because of the significance of her
pain, she has not been able to be active in any major activity over the last [nine]
years.”
On June 30, 2010 OWCP’s affirmed its February 18, 2010 decision noting that
Dr. Carlesi’s opinion was not well rationalized.

5

LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”5 However, to justify such termination, OWCP must show that the work offered
was suitable.6 An employee who refuses or neglects to work after suitable work has been offered
to her has the burden of showing that such refusal to work was justified.7
ANALYSIS
On February 5, 2000 appellant injured her neck due to throwing a mail parcel and OWCP
accepted that she sustained a cervical strain. On September 19, 2008 the employing
establishment offered her a job as a modified mail processing clerk. Appellant refused the
offered position and, in a November 21, 2008 decision, OWCP terminated her compensation
effective November 23, 2008 on the grounds that she refused an offer of suitable work.8
The evidence of record shows that appellant is capable of performing the modified mail
processing clerk position offered by the employing establishment and determined to be suitable
by OWCP in September 2008. The position involved sorting and distributing mail and required
appellant to lift up to 20 pounds and engage in reaching, bending, stooping, pushing, pulling or
lifting for up to four hours per day. The record does not reveal that the modified mail processing
clerk position was temporary or seasonal in nature.9
In determining that appellant is physically capable of performing the modified mail
processing clerk position, OWCP properly relied in the opinion of Dr. Staub, a Board-certified
orthopedic surgeon serving as an OWCP referral physician.
In a July 24, 2008 report, Dr. Staub discussed appellant’s medical history and reported
his findings on physical examination noting good cervical range of motion with perhaps a slight
loss of movement, a component of symptom-magnification, full range of motion of the
extremities and intact motor and sensory examination. He indicated that he found no objective
findings on examination and opined that there was no medical or orthopedic reason she could not
work at her usual job. Dr. Staub completed a work restriction form indicating that appellant
could work for eight hours per day but was restricted from reaching for more than four hours,
twisting or squatting for more than four hours, operating a motor vehicle for more than six hours,
engaging in repetitive movement with more than 20 pounds and engaging in pushing, pulling or
5

5 U.S.C. § 8106(c)(2).

6

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

7

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

8

Appellant later accepted the offered position and returned to work on January 27, 2009. However, she did not
perform the position for any notable period as she stopped work on January 29, 2009.
9

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997). Moreover, there is no indication in the record that appellant was not vocationally
capable of performing the modified mail processing clerk position.

6

lifting for more than four hours. In a September 17, 2008 report, he further explained that his
assessment of her level of disability was supported by the findings on diagnostic testing and
physical examination.
The Board finds that the work restrictions provided by Dr. Staub would allow appellant
to perform the duties of the modified mail processing clerk position offered by the employing
establishment.
Before OWCP and on appeal to the Board, appellant argued that the opinions of her
attending physicians showed that she could not perform the modified mail processing clerk
position.
Beginning in June 2007, appellant received treatment for her cervical condition from
Dr. Carlesi, a Board-certified pain management physician, who repeatedly asserted that she had
been totally disabled since February 5, 2000 due to her cervical condition. The Board notes that
these reports are of limited on the relevant issue of the present case in that Dr. Carlesi did not
provide adequate medical rationale in support of his conclusions.10 Dr. Carlesi did not provide a
rationalized explanation of why appellant would have such a high level of disability. Such medical
rationale is especially necessary in the present case as she exhibited limited findings on diagnostic
testing and physical examination. For example, repeat MRI scan testing only showed mild cervical
disc bulging with no clear evidence of nerve impingement. EMG and NCV testing obtained on
December 12, 2008 showed a normal electrodiagnostic study of both arms with no
electrodiagnostic evidence of cervical radiculopathy, generalized peripheral neuropathy or nerve
entrapment. While Dr. Carlesi observed some limitation of neck motion on physical
examination, he generally noted that appellant had 5/5 strength and normal sensation in her arms.
In light of these findings, his opinion that she was totally disabled and could not perform the
modified mail processing clerk position is not supported by adequate medical rationale.11
The Board notes that, therefore, OWCP has established that the modified mail processing
clerk position offered by the employing establishment is suitable. As noted above, once OWCP
has established that a particular position is suitable, an employee who refuses or neglects to work
after suitable work has been offered to her has the burden of showing that such refusal to work
was justified. The Board has carefully reviewed the evidence and argument submitted by
appellant in support of her refusal of the modified mail processing clerk position and notes that it
is not sufficient to justify her refusal of the position.12
10

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on a
given medical issue if it is not supported by medical rationale).
11

In reports dated beginning in late 2008, Dr. Simon, an attending an attending Board-certified neurosurgeon,
indicated that appellant should only lift up to 15 pounds and should avoid repetitive movements and reaching.
However, he did not provide a rationalized opinion explaining the need for these work restrictions.
12

After the termination of her compensation, appellant continued to argue that the reports of attending physicians,
particularly those of Dr. Carlesi, showed that she could not perform the offered position. The Board notes that none
of these reports contains a rationalized opinion showing that she could not perform the position. Appellant asserted
that the injury she sustained on February 5, 2000 was more serious than a cervical strain, but she did not submit
sufficient medical evidence to support this claim.

7

For these reasons, OWCP properly terminated appellant compensation effective
November 23, 2008 on the grounds that she refused an offer of suitable work.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
November 23, 2008 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

13

The Board notes that OWCP complied with its procedural requirements prior to terminating appellant’s
compensation, including providing her with an opportunity to accept the modified mail processing clerk position
after informing her that her reasons for initially refusing the position were not valid; see generally Maggie L. Moore,
42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

8