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

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

Docket No. 11-787
Issued: November 2, 2011

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant filed a timely appeal from a January 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. 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 appellant established that she sustained a knee injury causally
related to a September 11, 2010 employment incident.
FACTUAL HISTORY
On September 14, 2010 appellant, then a 57-year-old city carrier, filed a traumatic injury
claim alleging that on September 11, 2010 she injured her left knee which she struck against a
car door.
1

5 U.S.C. § 8101 et seq.

In support of her claim, appellant submitted a duty status report (Form CA-17), an
authorization for examination and/or treatment (Form CA-15) and an attending physician’s form
(CA-20), dated September 14, 2010. Each contained an illegible signature.2 The CA-17 form
released appellant to work on September 14, 2010 with restrictions and noted a diagnosis of left
knee trauma with an injury date of September 11, 2010. The CA-16 form noted an injury date of
September 11, 2010 and authorized treatment for left knee contusion and bruise.
In the September 14, 2010 CA-20 form, the physician noted that appellant injured her left
knee on the door frame of a mail truck while exiting. The physician diagnosed left knee trauma
and checked “yes” to the question of whether the diagnosed condition had been caused or
aggravated by the employment injury.
In a September 30, 2010 letter, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It requested additional medical and factual evidence.
Appellant was given 30 days to provide the requested information.
Appellant submitted a September 17, 2010 magnetic resonance imaging scan from
Dr. Mary Ann Peterson, an examining Board-certified radiologist, who diagnosed patellofemoral
joint chondromalacia degenerative and complex posterior and medial meniscus tear. A
September 17, 2010 x-ray report by Dr. Scott D. Boruchov, an examining Board-certified
radiologist, noted a normal left knee. Appellant also submitted an unsigned October 19, 2010
report from Orthopaedic, Sports Medicine and Rehabilitation Center, P.A. that diagnosed a left
medial meniscus tear. Physical findings were provided as was a history of appellant having
several episodes of striking her knee against various objects. Appellant’s work duties involved
bending and twisting.
By decision dated November 3, 2010, OWCP denied appellant’s claim that the
employment incident was not established.
On November 10, 2010 appellant requested review of the written record by an OWCP
hearing representative.
In a November 16, 2010 report, Ann Cook, a nurse practitioner, reported that appellant
injured her left knee on September 11, 2010 on exiting a mail truck. A physical examination
revealed positive McMurray’s sign and Lachman’s maneuver. Ms. Cook diagnosed left knee
pain and possible left knee internal derangement as a result of acute trauma.
On January 4, 2011 OWCP received previously submitted medical evidence which
appellant advised had been signed by Dr. Detulio.
By decision dated January 12, 2011, an OWCP hearing representative affirmed the denial
of appellant’s claim as modified. He found that the September 11, 2010 employment incident
occurred, as alleged, but that the medical evidence was insufficient to establish a left knee
condition as a result of the incident.

2

Appellant stated that the signature on the forms is that of Dr. Antony De Tulio, a Board-certified internist.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while 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.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
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.6
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.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the

3

5 U.S.C. § 8101 et seq.

4

Bonnie A. Contreras, 57 ECAB 364 (2006); C.S., Docket No. 08-1585 (issued March 3, 2009).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6
7

Bonnie A. Contreras, supra note 4; B.F., Docket No. 09-60 (issued March 17, 2009).
D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997); P.K., Docket No. 08-2551 (issued June 2, 2009).

11

A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006); Y.J., Docket No. 08-1167 (issued
October 7, 2008).

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compensable employment factors.12 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.13
ANALYSIS
There is no dispute that appellant struck her left knee on a mail truck door while exiting
the vehicle on September 11, 2010. The Board finds, however, that the medical evidence of
record is insufficient to establish that the work incident caused a left knee injury.
The medical evidence of record fails to provide a history of injury, a firm medical
diagnosis or a physician’s opinion explaining how the alleged left knee condition resulted from
the accepted September 11, 2010 incident. There is no report by a physician with rationale or
explanation of the mechanism of injury arising from the employment incident on
September 11, 2010.14
The only medical evidence with a firm diagnosis are an October 19, 2010 medical report,
a September 14, 2010 CA-20 form and a September 14, 2010 CA-17 from. The October 19,
2010 report is without a physician’s signature or other proper identification, while the CA-20 and
CA-17 forms dated September 14, 2010 contain an illegible signature. The Board has held that a
medical report with no indication that the person completing the report qualifies as a physician as
defined under 5 U.S.C. § 8102(2) or without proper identification of who provided the signature,
does not constitute probative medical evidence.15 These reports do not contain adequate
information to authenticate that a physician completed the reports. They are of no probative
value to establish that appellant sustained any injury on September 11, 2010.
Appellant also submitted November 16, 2010 report signed a nurse practitioner
diagnosing left knee pain and possible left knee internal derangement as a result of acute trauma.
Section 8101(2) of FECA provides, however, that 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.16 As a nurse practitioner

12

Michael S. Mina, 57 ECAB 379 (2006); J.J., Docket No. 09-27 (issued February 10, 2009).

13

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

See S.E., Docket No. 08-2214 (issued May 6, 2009); S.D., 58 ECAB 713 (2007); Cecelia M. Corley, 56 ECAB
662 (2005) (where the Board found that a medical opinion not fortified by medical rationale is of little probative
value).
15

D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991); E.K., Docket No. 09-1827 (issued
April 21, 2010).
16

5 U.S.C. § 8101(2).

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is not a physician as defined under FECA, appellant’s diagnosis of possible left knee internal
derangement does not constitute competent medical opinion.17
Dr. Peterson’s September 17, 2010 MRI scan report stated that testing revealed
patellofemoral joint chondromalacia degenerative disease and a complex posterior and medial
meniscus tear. Dr. Boruchov’s September 17, 2010 x-ray report noted a normal knee. This
evidence, however, is insufficient to establish appellant’s claim. Dr. Peterson failed to address
how the diagnosed conditions were caused or contributed to by the accepted employment
incident and Dr. Boruchov found a normal knee.18
OWCP advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Appellant did not provide a firm diagnosis of her left
knee condition or a medical opinion that sufficiently described or explained how the
September 11, 2010 employment-related event caused an injury. As she has failed to submit any
probative medical evidence establishing that she sustained an injury in the performance of duty,
OWCP properly denied her claim for compensation.
The Board notes, however, that the employing establishment issued a Form CA-16. A
properly executed CA-16 form creates a contractual obligation, which does not involve the
employee directly to pay the cost of the examination or treatment regardless of the action on the
claim.19 On return of the case record, OWCP should adjudicate, if it has not yet been
adjudicated, as to whether appellant should be reimbursed for any incurred medical expenses.20
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 the medical evidence is not sufficient to establish an injury in the
performance of duty on September 11, 2010.

17

See L.D., 59 ECAB 648 (2008); Roy L. Humphrey, 57 ECAB 238 (2005); B.B., (Docket No. 09-1858 (issued
April 16, 2010).
18

See J.M., 58 ECAB 303 (2007); Ellen L. Noble, 55 ECAB 530 (2004).

19

See Elaine M. Kreymborg, 41 ECAB 256 (1989).

20

S.S., Docket No. 11-0354 (issued September 6, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2011 is affirmed.
Issued: November 2, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LOGISTICS READINESS SQUAD,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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Appearances:
Thomas P. Deberry, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1123
Issued: January 25, 2011

Case Submitted on the Record

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

JURISDICTION
On March 10, 2010 appellant, through counsel, filed a timely appeal of a January 12,
2010 decision of the Office of Workers’ Compensation Programs denying his untimely request
for reconsideration and finding that it failed to establish clear evidence of error. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider and decide appeals from
final decisions of the Office issued within one year of the filing of the appeal.1 As the most
recent merit decision was issued on September 15, 2008, the Board does not have jurisdiction
over the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error. On appeal, counsel contends the Office erred
1

For final adverse decisions of the Office issued prior to November 19, 2008, a claimant had up to one year to
file an appeal. 20 C.F.R. § 501.3(d)(2). An appeal of final adverse 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).

in denying his reconsideration request as it failed to consider the newly submitted medical
evidence establishing a ratable impairment.
FACTUAL HISTORY
On August 1, 2006 appellant, then a 61-year-old general supply specialist, filed an
occupational disease claim alleging that on April 18, 2006 he first realized that his bilateral
carpal tunnel syndrome (CTS) was employment related. The Office accepted the claim for
bilateral carpal tunnel syndrome and bilateral hand and wrist tenosynovitis. It authorized left
carpal ligament release surgery, which was performed on July 16, 2007 and right carpal tunnel
ligament release surgery, which was performed on November 12, 2007.
On August 8, 2008 appellant filed a claim for a schedule award.
Following receipt of appellant’s schedule award claim, the Office received reports dated
July 1 and August 19, 2008 from Dr. J.W. Spivey, Jr., a treating Board-certified orthopedic
surgeon, stating that appellant had no ratable disability or permanent impairment due to the
bilateral carpal tunnel condition.
In a September 10, 2008 report, the Office medical adviser reviewed Dr. Spivey’s reports
and agreed with his conclusion that appellant had no ratable impairment due to the accepted
bilateral carpal tunnel syndrome condition.
By decision dated September 15, 2008, the Office denied appellant’s schedule award
claim on the grounds that there was no employment-related impairment resulting from his
accepted employment conditions.
On October 9, 2009 appellant again filed a claim for a schedule award.
In a letter dated October 19, 2009, the Office acknowledged receipt of appellant’s
schedule award claim and referred him to the appeal rights included with the September 15, 2008
decision denying his schedule award claim.
In support of his claim for a schedule award, appellant submitted a September 18, 2009
impairment rating by Wendy E. Salerno, an occupational therapist, registered, which was
reviewed by Dr. Todd Kinnebrew, a Board-certified orthopedic surgeon, in October 2009. The
report found a three percent right upper extremity impairment and a three percent left upper
extremity impairment using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).
On December 18, 2009 appellant requested reconsideration of the September 15, 2008
decision denying his entitlement to a schedule award.
By decision dated January 12, 2010, the Office denied appellant’s request finding that it
was untimely filed and failed to establish clear evidence of error in the denial of his claim for a
schedule award.

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LEGAL PRECEDENT
A claimant may seek an increased schedule award if the evidence establishes that he
sustained increased impairment at a later date causally related to the accepted employment
injury.2 Even if the term reconsideration is used, when a claimant is not attempting to show error
in the prior schedule award decision and submits medical evidence regarding a permanent
impairment at a date subsequent to the prior schedule award decision, it should be considered a
claim for an increased schedule award which is not subject to time limitations.3 A proper claim
for an increase in permanent impairment is not subject to time limitations or to the clear evidence
of error standard.
ANALYSIS
On September 15, 2008 the Office previously denied appellant’s claim for a schedule
award, noting that the medical evidence found no permanent impairment to his right and left
upper extremities due to his accepted claim for bilateral carpal tunnel syndrome and bilateral
hand and wrist tenosynovitis. On October 19, 2009 appellant filed a schedule award claim and
submitted a September 18, 2009 impairment rating by Ms. Salerno which was reviewed by
Dr. Kinnebrew in October 2009, which described an impairment of both upper extremities using
the A.M.A., Guides (6th ed. 2009). However, on October 19, 2009, the Office erroneously
advised appellant to follow the appeal rights noted in the September 15, 2008 decision.
Following his request of December 18, 2009, it denied reconsideration on the grounds that his
request was untimely and did not establish clear evidence of error.
This case is substantially similar to that of Linda T. Brown.4 In Brown, the Office denied
the employee’s claim for a schedule award for impairment of her arms and legs in an August 2,
1995 decision. It found that the extent of her impairment was not ratable. By letter dated
September 2, 1997, appellant requested reconsideration and submitted a new medical report from
an attending physician who noted that her condition had stabilized and who estimated 25 percent
impairment to her arms and legs. The Office denied reconsideration, finding the request to be
untimely and failing to show clear evidence of error. On appeal, the Board set aside the Office’s
decision and remanded the case for a de novo decision which addressed the medical evidence
submitted in support of the employee’s claim of permanent impairment. It noted that a claimant
may seek a schedule award if the evidence establishes an increased impairment at a later date
causally related to the employment injury. For this reason, the January 10, 2010 decision of the
Office will be set aside. Appellant has clearly submitted new medical evidence in support of his
claim of increased impairment, from zero to three percent, due to his accepted bilateral carpal
tunnel syndrome and bilateral hand and wrist tenosynovitis injuries. The case will be remanded
for appropriate adjudication.

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(b) (January 2010).
3

See B.K., 59 ECAB 228 (2007); Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

4

51 ECAB 115 (1999).

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CONCLUSION
The Board finds that the Office improperly adjudicated appellant’s claim for an increased
schedule award as a request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action in
conformance with this decision.
Issued: January 25, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 08-1352
Issued: December 24, 2008

Case Submitted on the Record

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

JURISDICTION
On April 7, 2008 appellant, through her attorney, filed a timely appeal from the
February 28, 2008 merit decision of the Office of Workers’ Compensation Programs, which
denied an additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than an eight percent permanent impairment of
her right upper extremity.
FACTUAL HISTORY
On the prior appeal of this case,1 the Board set aside the Office’s April 11, 2007 schedule
award for an eight percent impairment of appellant’s right upper extremity. It remanded the case
for clarification from the impartial medical specialist, Dr. Hugh O. House, a Board-certified
1

Docket No. 07-1348 (issued October 23, 2007).

orthopedic surgeon. The Board noted that Dr. House’s measurements for flexion, extension and
abduction supported a five percent impairment of the right upper extremity due to loss of motion,
but he reported no measurements for external and internal rotation or adduction. The Board also
noted that he did not explain why he was awarding an extra five percent impairment due to pain,
as the impairment rating for loss of motion already included an allowance for the pain that
individuals typically experience when they suffer from various injuries.2
On January 9, 2008 Dr. House reported 90 degrees internal and external rotation and 50
degrees adduction. He added: “This patient’s greatest disability is due to pain and loss of
endurance in the shoulder and using the Maryland Codes, she was given an additional five
(5) percent disability to the shoulder.”
Dr. Arnold T. Berman, an Office medical adviser, noted that Dr. House used the wrong
standard to evaluate appellant’s pain. He assigned a three percent impairment under Figure 18-1,
step 3, page 574, of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001).
In a decision dated February 28, 2008, the Office denied an additional schedule award.
On appeal, appellant, through her attorney, asks the Board to vacate the February 28, 2008
decision and remand the case for the Office to obtain clarification from Dr. House with specific
instructions on the use of the A.M.A., Guides.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming, or if the
specialist is unable to clarify or elaborate on the original report or if the specialist’s supplemental
report is also vague, speculative or lacks rationale, the Office must submit the case record
2

The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference. On
November 2, 2004 appellant, then a 47-year-old clerk, filed a claim alleging that her right upper extremity condition
was a result of repetitiously filing mail for long hours. The Office accepted her claim for right shoulder strain. On
August 8, 2006 it paid a schedule award for three percent right upper extremity impairment due to pain. On
April 11, 2007 the Office paid an additional schedule award for five percent impairment due to loss of shoulder
motion.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

2

together with a detailed statement of accepted facts to a second impartial specialist for a
rationalized medical opinion on the issue in question.5 Unless this procedure is carried out by
the Office, the intent of section 8123(a) of the Act will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.6
ANALYSIS
The Board previously found that appellant had a five percent impairment of the right
upper extremity due to loss of shoulder flexion and abduction. The Board noted, however, that
Dr. House, the impartial medical specialist, did not report measurements for internal and external
rotation or adduction. In a January 9, 2008 report, Dr. House supplied this information.
According to Figure 16-46, page 479 of the A.M.A., Guides, 90 degrees internal and external
rotation represents no impairment. Under Figure 16-43, page 477, 50 degrees adduction also
represents no impairment. However, Dr. House reiterated that appellant’s pain constituted a
factor of impairment. He explained that he based his estimate of pain impairment on the
Maryland Codes, which is not the proper standard under the Act. Dr. Berman, the Office
medical adviser, correctly noted this, but rather than ask Dr. House for a proper evaluation under
the A.M.A., Guides, he assigned a three percent impairment under Figure 18-1, page 574.
The Board finds that the Office medical adviser exceeded his role. This was not a
situation in which Dr. Berman took the objective clinical findings of an examining physician to
compare them with the impairment criteria listed in the A.M.A., Guides.7 Pain is subjective but
may serve as a basis for determining impairment.8 The Office medical adviser substituted his
judgment for Dr. House’s. An Office medical adviser may review a report to verify the correct
application of the A.M.A., Guides and confirm the percentage of permanent impairment,9 but it
is the impartial medical specialist who must resolve a conflict in medical opinion.10 It is well
established that when a referee examination is arranged to resolve a conflict in medical opinion,
the medical adviser is not to attempt clarification of expansion of the impartial medical
specialist’s opinion.11
The Board will set aside the Office’s February 28, 2008 decision and remand the case for
clarification from Dr. House on appellant’s impairment due to pain utilizing the A.M.A., Guides.
5

See Nathan L. Harrell, 41 ECAB 402 (1990).

6

Harold Travis, 30 ECAB 1071 (1979).

7

If the clinical findings are fully described, any knowledgeable observer may check the findings with the A.M.A.,
Guides criteria. A.M.A., Guides 17.
8

See Cynthia M. Judd, 42 ECAB 246 (1990); Robert M. Sergerstrom, 34 ECAB 1662 (1983).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(c) (April 1993).
10

Richard R. LeMay, 56 ECAB 341, 348 (2005).

11

Federal (FECA) Procedural Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(c)
(October 1995).

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If he is unable to clarify his opinion, the Office shall refer appellant to a second impartial
medical specialist to resolve the issue of the extent of permanent impairment.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: December 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF THE NAVY, BANGOR
NAVAL SUBMARINE BASE, Silverdale, WA,
Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1909
Issued: May 19, 2015

Case Submitted on the Record

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

JURISDICTION
On September 2, 2014 appellant, through his attorney, filed a timely appeal from an
April 11, 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 OWCP properly issued its April 11, 2014 overpayment decision.
On appeal, counsel contends that OWCP failed to provide appellant with a
prerecoupment hearing on the issue of wavier of recovery of the overpayment and made no
finding of facts and statement of reasons on the issue of waiver. He requested that the Board set
aside the overpayment decision and issue a de novo decision on the issue of waiver.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a February 24, 2014 decision, the
Board affirmed OWCP’s finding of fact of overpayment but found that further development was
required on the issue of amount of overpayment. The case was remanded to determine the
correct amount of the overpayment, as OWCP had improperly offset the overpayment with an
underwithholding of health and life insurance premiums and an underpayment of compensation
created when it failed to pay appellant compensation for a June 8, 2012 medical appointment.
The Board also directed OWCP to consider waiver. The facts of the previous Board decision are
incorporated herein by reference.3 The relevant facts of the case are set forth below.
On remand, OWCP recalculated the amount of the overpayment as directed by the Board.
It completed a worksheet which indicated that appellant had received $3,868.00 in compensation
from June 3 to 30, 2012, but because he had returned to work, he was entitled to only $414.43.
OWCP deducted $414.43, the amount to which he was entitled, and $396.96 for health benefits
premiums, $18.30 for basic life insurance premiums, and $7.08 for optional life insurance
premiums, resulting in an overpayment of compensation of $3,031.23.
In an April 11, 2014 decision, OWCP determined that appellant received an overpayment
of compensation in the amount of $3,031.23 from June 3 to 30, 2012. It found that he was
without fault in the creation of the overpayment.4 OWCP ordered the processing of a check in
the amount of $96.70 to compensate appellant for four hours of time lost on June 8, 2012 to
attend a medical appointment.
On June 11, 2014 OWCP reissued the April 11, 2014 decision because the decision had
been returned to it as undeliverable.
LEGAL PRECEDENT
Under section 8129 of FECA and the implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.5

2

Docket No. 13-1619 (issued February 24, 2014).

3

OWCP accepted that on February 27, 2007 appellant, then a 24-year-old shipfitter, sustained an employmentrelated lumbar strain and temporary and permanent aggravation of a herniated nucleus pulposus while in the
performance of duty. Appellant stopped work on June 24, 2009 because no work was available within his physical
limitations. OWCP placed appellant on the periodic compensation rolls and paid appropriate wage-loss
compensation for his total disability. On June 6, 2012 the employing establishment informed OWCP that appellant
had returned to full-time modified-duty work as a transportation assistant on that day. OWCP stopped his automatic
compensation payment, but he continued to receive total disability compensation from June 3 to 30, 2012.
4

In the April 11, 2014 decision, OWCP ordered the processing of a check in the amount of $96.70 to compensate
appellant for four hours of time lost on June 8, 2012 to attend a medical appointment.
5

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

2

Section 10.431 of the implementing regulations provide that, before seeking to recover an
overpayment or adjust benefits, OWCP will advise the individual in writing that the overpayment
exists and the amount of the overpayment.6 The written notification must also include a
preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.7 Additionally, OWCP is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.8 Finally, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.9
The recipient of the alleged overpayment may present evidence in response to OWCP’s
preliminary notice either in writing or at a prerecoupment hearing.10 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of
overpayment.11 Failure to request the hearing within this 30-day time period shall constitute
waiver of that right.12
OWCP procedures provide that, once an overpayment is identified and calculated, it is
responsible for determining whether the claimant was with fault or without fault, issuing a
preliminary finding, and unless a hearing is requested, OWCP is responsible for issuing a final
decision.13 These procedures note that, if the claimant is determined to be with fault, Form CA2201 (preliminary finding notice) must be released within 30 days of the date the overpayment is
identified. Both the reason that the overpayment occurred and the reason for the finding of fault
must be clearly stated. Form CA-2201 informs the claimant of the right to submit evidence and
the right to a prerecoupment hearing on the issues of (a) fact and amount of overpayment; (b)
fault and (c) waiver. Along with Form CA-2201, OWCP should provide a clearly written
statement explaining how the overpayment was calculated.14
ANALYSIS
The Board previously affirmed the fact of overpayment of compensation from June 3
to 30, 2012 as appellant received compensation for total disability after he had returned to work.

6

20 C.F.R. § 10.431(a).

7

Id. at § 10.431(b).

8

Id. at § 10.431(c).

9

Id. at § 10.431(d).

10

Id. at § 10.432.

11

Id.

12

Id.

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(May 2004).
14

Id. at Chapter 2.600.4(a)(1) (May 2004).

3

However, it otherwise set aside OWCP’s finding regarding the amount of the overpayment,
noting that it could not offset an overpayment with underpayment of compensation.
On remand, in a decision dated April 11, 2014, OWCP found that appellant received an
overpayment of compensation in the amount of $3,031.23. In a worksheet, it considered only the
amount of the overpayment. OWCP determined that appellant had received $3,868.00 in
compensation and benefits from June 3 to 30, 2012 when he should have received only $414.43.
It deducted $396.96 for health benefits premiums, $18.30 for basic life insurance premiums and
$7.08 for optional life insurance premiums, which yielded an overpayment of compensation of
$3,031.23.
The Board finds, however, that OWCP failed to follow its procedures in issuing the
April 11, 2014 overpayment decision.
OWCP regulations provide that before seeking to recover an overpayment or adjust
benefits, it will advise the individual in writing that the overpayment exists and the amount of
overpayment.15 It must inform the individual of his or her right to challenge the fact or amount
of the overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment and the right to request a waiver of recovery of the overpayment.16 OWCP
procedures further provide that a preliminary finding of overpayment must be provided within 30
days and must clearly identify the reason that the overpayment occurred and the basis for any
fault finding.17
In this case, OWCP failed to issue a revised preliminary determination advising appellant
of its findings following the Board’s prior decision remanding the case. As such, it failed to
provide him with the right to challenge the amount of overpayment or to request waiver of
recovery of the overpayment, thereby infringing upon his procedural rights under its own
regulations.18 The Board has previously determined that failure to inform a claimant in writing
of his or her rights is reversible error.19 Therefore, OWCP did afford the procedural rights to
appellant under its regulations and improperly issued the April 11, 2014 overpayment decision.20
Accordingly, the Board finds that the case must be remanded for OWCP to issue a preliminary
determination to appellant regarding any overpayment in accordance with its procedures, prior to
making any final overpayment determination.

15

20 C.F.R. § 10.431(a).

16

Id. at § 10.431(d).

17

See supra note 14.

18

20 C.F.R. §§ 10.431, 10.432.

19

F.C., 59 ECAB 666 (2008) (where the Board found reversible error when OWCP failed to provide notice to the
claimant, the right under 20 C.F.R. § 10.431(c) to inspect and copy government records regarding the overpayment).
20

Supra note 18; see also K.H., Docket No. 11-603 (issued September 27, 2011); K.G., Docket No. 08-2135
(issued April 16, 2009).

4

CONCLUSION
The Board finds that OWCP improperly issued its April 11, 2014 overpayment decision.
ORDER
IT IS HEREBY ORDERED THAT the April 11, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 19, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF DEFENSE, MARINE CORP
BASE, Kailua, HI, Employer
__________________________________________

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

Docket No. 08-1577
Issued: February 5, 2009

Case Submitted on the Record

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

JURISDICTION
On May 12, 2008 appellant filed a timely appeal from the March 14, 2008 merit decision
of the Office of Workers’ Compensation Programs granting nine percent impairment of the right
upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether appellant has established that he has more than percent impairment
of his right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 13, 2001 appellant, then a 51-year-old building maintenance inspector, filed a
traumatic injury claim alleging that, on February 20, 2001, while lifting wood fencing material
for disposal, he injured his upper arm and aggravated his right knee. He did not stop work. By
letter dated June 26, 2007, the Office accepted appellant’s claim for sprain of right shoulder and
right upper arm.

By letter dated July 12, 2007, the Office referred appellant to Dr. Thomas B. Grollman, a
Board-certified orthopedic surgeon, for a second opinion. In a medical report dated August 24,
2007, Dr. Grollman noted that appellant sustained a ruptured distal biceps tendon at work on
February 20, 2001. On examination, appellant had residual atrophy and deformity secondary to
the rupture of the distal biceps tendon of the right arm and elbow. Dr. Grollman rated
appellant’s impairment as follows:
“[Appellant] does have the mild weakness of his right elbow flexion as a direct
result of the February 20, 2001 injury. I refer the reader to page 510, [T]able 1635 of the [American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001)]. For the mild strength deficit of elbow flexion is equal
to a five percent impairment of the right upper extremity and for the mild deficit
of supination strength is equal to four percent impairment of the right upper
extremity. Combining or adding these two values equals to a total of nine percent
impairment of the right upper extremity resulting from the injury of
February 20, 2001.”
By memorandum dated January 15, 2008, the Office referred appellant’s record to an
Office medical adviser. On January 25, 2008 the Office medical adviser reviewed the medical
record and agreed with Dr. Grollman’s assessment that appellant had a nine percent impairment
of the right upper extremity.
By decision dated March 14, 2008, the Office issued a schedule award for a nine percent
impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations,2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2007.4
ANALYSIS
The Board finds that the Office properly determined that appellant had a nine percent
impairment of his right upper extremity. Utilizing Table 16-35 of the A.M.A., Guides, both
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id. at § 10.404(a).

4

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

2

Dr. Grollman and the Office medical adviser found that appellant had five percent impairment
based on weakness of elbow flexion and four percent impairment for weakness of elbow
supination, or a total impairment of nine percent of the right upper extremity.5 There is no
probative medical evidence establishing that appellant has greater impairment to his right upper
extremity.
CONCLUSION
The Board finds that appellant has nine percent impairment of his right upper extremity,
for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2008 is affirmed.
Issued: February 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5

A.M.A., Guides 510, Table 16-35.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, SUNNYSLOPE POST
OFFICE, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 09-1583
Issued: March 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 29, 2009 appellant filed a timely appeal from a June 30, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration as
untimely and failing to establish clear evidence of error. Because more than one year has
elapsed between the last merit decision dated July 17, 2006 and the filing of this appeal on
May 29, 2009, the Board lacks jurisdiction to review the merits of her claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
This case was before the Board in a prior appeal. By decision dated February 22, 2007,
the Board affirmed an Office hearing representative’s July 18, 2006 decision.1 The Office
1

Docket No. 06-2078 (issued February 22, 2007).

denied appellant’s claim that she sustained an emotional condition in the performance of duty.
The Board found that she did not establish her allegations of harassment, retaliation and
discrimination, error in her transfer from modified duty or that she was required to work outside
her medical restrictions. On January 9, 2008 the Board issued an order dismissing appellant’s
appeal in Docket No. 07-2067 and dismissing her petition for reconsideration as untimely in
Docket No. 06-2078.2 The facts of the case as contained in the prior decision are incorporated
herein by reference.3
On June 15, 2008 appellant requested reconsideration before the Office. She submitted
medical and factual information from 2005 and 2006, which had been previously considered
together with an undated letter from the Equal Employment Opportunity Commission (EEOC)
noting that it had directed the employing establishment to take corrective action. Appellant also
submitted a September 1, 2005 grievance the union filed on her behalf; a July 14, 2005 fax from
the employing establishment regarding the unavailability of her light-duty job; and her refusal of
an attached job offer. In a March 21, 2007 report, Dr. A. Todd Alijani, a treating Board-certified
orthopedic surgeon, diagnosed left shoulder impingement syndrome and myofascial pain in her
upper back. Medical records dated January 3, 2006 from Dr. John C. Porter, a treating physician,
diagnosed upper extremity myofascial pain due to repetitive motion. He advised that appellant
was unable to perform her duties as a mail processing clerk. Other materials included partial
medical reports, grievance records and her prior statements.
In a decision dated June 30, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.6 The Board has found that the imposition of the one-year limitation

2

Docket Nos. 07-2067 and 06-2078 (issued January 9, 2008).

3

Appellant filed a claim for stress under claim file number xxxxxx716, which the Office accepted for unspecified
anxiety condition, resolved. On June 8, 2005 she filed a claim for a recurrence of disability beginning June 2, 2005.
Appellant alleged that her stress returned after learning she lost the job she held as a result of a settlement agreement
for her original injury. The Office developed the claim as a new injury as appellant implicated new factors of
employment. This was assigned claim file number xxxxxx650.
4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

2

does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.8 The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.9 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.10
ANALYSIS
The Board finds that the Office properly determined that appellant did not file a timely
request for reconsideration. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.11 However, a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues.12
The last merit decision in this case was the Board’s February 22, 2007 decision. The
Board affirmed the denial of appellant’s emotional condition claim. As appellant’s June 15,
2008 letter requesting reconsideration was made more than one year after the Board’s
February 22, 2007 merit decision, it was not timely filed.13
7

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr.,
41 ECAB 104 (1989).
8

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991). See
E.R., supra note 7.
10

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007);
Alberta Dukes, 56 ECAB 247 (2005).
11

20 C.F.R. § 10.607(a); see A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

12

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Robert F. Stone, 57 ECAB 292 (2005).

13

See Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1602.3b (January 2004), which provides in
pertinent part: “[A] right to reconsideration within one year accompanies any subsequent merit decision on the
issues. This includes … any merit decision by the ECAB….”

3

The issue for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence to establish clear error in the Office’s finding that she did not
establish a compensable factor of employment. Appellant has not established clear evidence of
error by the Office. She did not submit sufficient evidence or argument which manifests on its
face that the Office committed an error in the denial of her claims.
Appellant resubmitted medical and factual evidence from 2005 and 2006; an undated
letter from the EEOC; a July 14, 2005 letter from the employing establishment regarding the
unavailability of her light-duty job; a March 21, 2007 report from Dr. Alijani; January 3, 2006
reports from Dr. Porter; a page of a March 23, 2006 report from East Valley Orthaepedics and
Sports Medicine and a page of a September 7, 2005 report; and appellant’s June 26, 2005 and
June 15, 2008 statements. None of this evidence is probative on her allegations of harassment,
retaliation or discrimination by coworkers and her supervisor; that the employing establishment
erred when it transferred her from her modified position to the General Mail Facility in Phoenix,
Arizona; or that she was required to work outside her medical restrictions. The factual evidence
submitted by appellant does not address any of her allegations. The undated letter from the
EEOC notes that the employing establishment was instructed to take certain corrective action,
but does not state what the corrective action was or how it pertains to any of appellant’s
allegations. The step 1 and 3 union grievances merely allege that the employing establishment
erred in the removal of her light-duty position. There is no finding that the employing
establishment committed error. The step 3 grievance form indicated that appellant appealed the
denial of her grievance. With regard to the submitted medical evidence, the Office is not
required to consider medical evidence in an emotional condition case where no computable work
factors have been established.14
The remaining evidence submitted by appellant is either irrelevant to the issue or
duplicative of that previously submitted and is therefore insufficient to establish clear evidence
of error. The term clear evidence of error is intended to represent a difficult standard. The
submission of evidence which, if submitted before the denial was issued, would have required
further development, is not clear evidence of error.15 None of the evidence submitted manifests
on its face that the Office committed an error in denying appellant’s claim. Thus, the evidence is
insufficient to establish clear evidence of error
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated June 15, 2008. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on June 30, 2008.

14

See Richard Yadron, 57 ECAB 207 (2005).

15

Joseph R. Santos, 57 ECAB 554 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 30, 2008 is affirmed.
Issued: March 10, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Montgomery, AL, Employer
__________________________________________

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

Docket No. 10-1455
Issued: April 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 4, 2010 appellant filed a timely appeal of the January 4 and March 29, 2010
decisions of the Office of Workers’ Compensation Programs denying his claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established any employment-related impairment of his
right hand.
On appeal, appellant contends that his right hand was still swollen and he did not have
full motion or strength in his hand.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 11, 2009 appellant, then a 36-year-old electronic technician, filed a traumatic
injury claim alleging on that date he sustained a fracture of his right hand while he was moving a
chair. His hand slipped and struck a column. On December 21, 2009 the Office accepted
appellant’s claim for closed fracture of the metacarpal bone. Appellant returned to full duties
effective September 11, 2009.
Appellant filed a claim for a schedule award. In a clinic note dated September 11, 2009,
Dr. Stephen Samelson, a Board-certified orthopedic surgeon, stated that appellant’s sensation
was intact and that he had full motion and decent strength. The base of the right hand was not
bothering appellant but he still had a little problem with the metaphalangeal joint and some
burning down the finger. Dr. Samelson assessed appellant with fifth metacarpal fracture with
persistent burning of the hand. In an October 9, 2009 report, he noted that appellant had ulnar
neuropathy on the fifth metacarpal fractures with possible dysthesia. On examination, appellant
had full motion and sensory examination seemed intact. Dr. Samelson noted no obvious motor
atrophy or obvious tenderness. In an October 30, 2009 note, he assessed right hand pain, healed
metacarpal base fracture and possible ulnar neuropathy.
In a December 11, 2009 report, an Office medical adviser noted that appellant sustained
an intra-articular fracture at the base of the fifth metacarpal with good apposition and alignment.
He noted that, after treatment, appellant regained full motion with normal sensation and returned
to full duty with no residual impairment. The Office medical adviser found that the final
impairment of appellant’s right hand equaled zero percent.
By decision dated January 4, 2010, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence did not support permanent impairment.
Thereafter, appellant submitted a December 11, 2009 report from Dr. Samelson who
diagnosed a healed fifth metacarpal fracture with resolving neuropathy. Dr. Samelson concluded
that appellant could return to activities as tolerated without restrictions.
On January 14, 2010 appellant requested review of the written record by an Office
hearing representative.
By decision dated March 29, 2010, the Office hearing representative affirmed the
January 4, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404; FECA Bulletin 9-03, issued March 15, 2009 (providing the use of the sixth edition of the
A.M.A., Guides effective May 1, 2009. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards,
and Permanent Disability Claims, Chapter 2.808.6(a) (January 2010).

2

loss or loss of use, of schedule members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th edition 2009), has been adopted by the Office as the appropriate standard for
evaluating schedule losses.4
ANALYSIS
The Office accepted appellant’s claim for closed fracture of the right metacarpal bone.
Appellant filed a claim for a schedule award. However, the medical evidence of record does not
establish any impairment to his right upper extremity as a result of the accepted employment
injury. It is appellant’s burden of proof to establish entitlement to a schedule award.5 The Office
procedures provide that to support a schedule award, the record must contain probative medical
evidence that establishes permanent impairment in detail, provides a percentage of impairment
and an opinion that the impairment is permanent and stable.6 The Board finds that appellant’s
physician, Dr. Samelson, did not submit any evidence that appellant sustained permanent
impairment to his right hand. Dr. Samelson reported on October 9, 2009 that appellant had full
motion, that his sensory examination was intact and that he had no obvious motor atrophy or
tenderness. He concluded that appellant was able to resume his activities as tolerated and
without restrictions. This report fails to establish permanent impairment due to the accepted
employment injury.
The Office medical adviser found that appellant had regained full motion and normal
sensation and returned to his work with no residual impairment. Accordingly, he found that the
final impairment of appellant’s right hand was zero percent.
The Board finds that appellant has not submitted medical evidence to establish that he
sustained permanent impairment to his right upper extremity. Appellant is not entitled to a
schedule award.
CONCLUSION
The Board finds that appellant has not established that he sustained permanent
impairment of his right hand.

4

Id.

5

Tammy L. Meehan, 53 ECAB 220 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards, and Permanent Disability Claims,
Chapter 2.808.6(b) (January 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 29 and January 4, 2010 are affirmed.
Issued: April 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lyndhurst, Ohio, Employer
__________________________________________

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

Docket No. 15-1404
Issued: September 22, 2015

Case Submitted on the Record

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

JURISDICTION
On June 15, 2015 appellant, through counsel, filed a timely appeal from a May 13, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision of March 18, 2014 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s March 16, 2015 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 28, 2013 appellant, then a 33-year-old city carrier assistant, filed a
traumatic injury claim alleging that on September 28, 2013 he felt a pop in his elbow and had
1

5 U.S.C. § 8101 et seq.

severe pain and numbness from his arms to his fingertips while carrying mail. He stopped work
and returned on October 21, 2013.
Appellant was initially treated in the emergency room by Dr. Jason T. Milk, an osteopath
who specializes in emergency medicine. In a report dated September 28, 2013, Dr. Milk
reported appellant’s complaints of left arm numbness from the elbow to hand. He noted that
appellant worked as a mail carrier and felt a “pop” in his elbow when he held a large stack of
mail. Dr. Milk provided examination findings and diagnosed left elbow pain.
On September 28, 2013 appellant underwent an x-ray of the left elbow by Dr. Louise
Milner, a Board-certified diagnostic radiologist, who reported no radiographic evidence of acute
osseous injury.
Appellant submitted treatment notes dated September 28, 2013 by Ms. Angela G.
Mardula, a physician assistant, who treated appellant for elbow strain. He also submitted a
September 28, 2013 state workers’ compensation claim form.
In a September 30, 2013 narrative report, Dr. Tim Nice, a Board-certified orthopedic
surgeon, noted that appellant had vague symptoms in his left arm since April. He noted that
appellant carried mail and explained that appellant’s job irritated the radial nerve. Upon
examination, Dr. Nice observed slight weakness in the brachioradialis and extensors of the wrist.
Tinel’s testing over the radial nerve was positive. X-rays were normal. Dr. Nice reported that
appellant was not able to return to work. In a prescription note, he opined that appellant was
totally disabled from work until October 21, 2013 due to a left elbow injury.
On October 1, 2013 Stephanie Pearson, branch manager at the employing establishment,
wrote an e-mail controverting appellant’s claim. She stated that appellant filed a traumatic injury
claim in retaliation of a notice of removal that was issued to him on September 10, 2013.
In a letter dated October 4, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional medical evidence to demonstrate
that he sustained a diagnosed condition as a result of the September 28, 2013 employment
incident.
By letter dated October 17, 2013, David Mast, a human resource specialist at the
employing establishment, stated that appellant filed a traumatic injury claim because he believed
it would stop him from being removed from the employing establishment. He also pointed out
that appellant initially provided conflicting information when he reported the injury.
In an October 17, 2013 treatment note, Dr. Matthew Keum, Board-certified in physical
medicine and rehabilitation, related appellant’s complaints of recent onset of worsening neck
pain, on the left side, radiating to his left shoulder and upper trapezius area. Upon examination
of the cervical spine, he observed mildly positive tenderness to palpation and limited range of
motion on extension and rotation. Examination of the left shoulder demonstrated negative
impingement and no tenderness. Dr. Keum diagnosed cervical radiculitis, medial epicondylitis
of the elbow, wrist strain, elbow strain, cervical strain, and strain of unspecified shoulder and
upper arm.

2

On October 22, 2013 appellant was treated again by Dr. Nice who reported that appellant
was unable to work until November 18, 2013.
In a decision dated November 18, 2013, OWCP denied appellant’s claim. It accepted
that the September 28, 2013 incident occurred as alleged and that he sustained a diagnosed
medical condition. OWCP denied the claim because the medical evidence was insufficient to
establish that his condition was causally related to the accepted incident.
On December 9, 2013 OWCP received appellant’s request for reconsideration. Appellant
resubmitted the September 28, 2013 hospital records and Dr. Nice’s medical reports.
Appellant continued to receive medical treatment from Dr. Nice who, in reports dated
November 12 and 21, 2013, reported that appellant still had symptoms over the C6 dermatome
pattern and had C6 radicular symptoms. Dr. Nice noted that a magnetic resonance imaging
(MRI) scan examination of the cervical spine showed a disc herniation with osteophyte complex
at C3-4 with neural foraminal narrowing at C4. He reported that appellant carried a mailbag,
weighing approximately 25 pounds, for work. Dr. Nice recommended that appellant not be
allowed to carry a mailbag.
On January 7, 2014 appellant resigned from his employment.
By letter dated February 11, 2014, Mr. Mast reiterated that the employing establishment
controverted appellant’s traumatic injury claim. The employing establishment submitted a
December 9, 2013 memorandum of activity by Special Agent J.T. describing surveillance of
appellant on Tuesday, November 5, 2013. It also submitted a January 23, 2014 investigation
report by Assistant Special Agent S.B.
In a decision dated March 18, 2014, OWCP denied modification of the November 18,
2013 decision.
On April 23, 2014 OWCP received appellant’s request for reconsideration. No additional
evidence was received.
By decision dated June 3, 2014, OWCP denied appellant’s request for reconsideration
finding that his request did not meet any of the requirements for further merit review pursuant to
5 U.S.C. § 8128(a).
After the June 3, 2014 decision, OWCP received the duplicate copies of September 28,
2013 records and x-rays of the left elbow.
On March 16, 2015 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel stated that he was submitting a new medical report by Dr. Nice.
In a February 20, 2015 treatment note, Dr. Nice noted that appellant had known disc and
osteophyte foraminal narrowing disease at C3 and at C4 in his neck. He reported that appellant
originally carried a mailbag at the employing establishment for five years that weighed 40
pounds. Dr. Nice noted that appellant currently complained of symptoms in his arms and neck
with radiation to the superior medial angle of the left scapula with exquisite tenderness over the

3

scapulae. He noted that appellant now worked as a truck driver but continued to be symptomatic
and also suffered from headaches. Upon examination, Dr. Nice observed excellent range of
motion of his cervical spine with tenderness in the extremities. He stated that neurologic
examination of both upper extremities was normal. Dr. Nice opined that appellant had disc
disease at C3 and C4.
Appellant submitted a November 20, 2013 MRI scan report by Dr. Marc Mellion, a
diagnostic radiologist, who stated that appellant had left paracentral and lateral disc osteophyte
complex at C3-4 causing moderate focal left paracentral and anterolateral thecal sac effacement,
moderate left lateral recess, and left neural foraminal stenosis with exiting nerve root
impingement not excluded. He also resubmitted Dr. Keum’s October 17, 2013 report.
By decision dated May 13, 2015, OWCP denied appellant’s request for reconsideration
finding that his request did not meet any of the requirements for further merit review pursuant to
5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA grants OWCP discretionary authority to determine whether to
review an award for or against compensation.2 OWCP’s regulations provide that it may review
an award for or against compensation at any time on its own motion or upon application. The
employee shall exercise his right through a request to the district office.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.5 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.6 If the request is timely but fails to

2

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
4

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
5

Id. at § 10.607(a).

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

4

meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.7
ANALYSIS
The Board finds that appellant has not established that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Appellant has failed to meet one of the three requirements necessary to
justify a merit review of his claim.
OWCP had previously denied appellant’s claim finding that the evidence did not
establish that his diagnosed medical condition was causally related to the September 28, 2013
employment incident.
On March 16, 2015 OWCP received appellant’s request, through counsel, for
reconsideration.
Along with his reconsideration request, counsel submitted a February 20, 2015 treatment
note by Dr. Nice, which stated that appellant had known disc and osteophyte foraminal
narrowing disease at C3 and at C4 in his neck. He reported that appellant originally carried a
mailbag at the employing establishment for five years that weighed 40 pounds. Dr. Nice
provided findings on examination and opined that appellant had disc disease at C3 and C4. The
Board notes that, prior to the last merit decision on March 18, 2014, he submitted a series of
reports stating that appellant sustained a cervical and left arm condition and discussing that
appellant carried a heavy mailbag at work. Accordingly, the Board finds that Dr. Nice’s
February 20, 2015 report does not provide any new, relevant, and pertinent evidence on the issue
of whether appellant sustained an injury causally related to the September 28, 2013 incident.
Dr. Nice merely reiterates that his previous findings regarding appellant’s conditions and work
duties. The Board has found that evidence which is duplicative or cumulative of evidence
already submitted is insufficient to warrant reopening a claim for merit review.8 Similarly,
Dr. Mellion’s November 20, 2013 report also does not provide any new, relevant, and pertinent
evidence as he does not provide any opinion on causal relationship.
OWCP also received duplicate copies of reports from September 28, 2013, and another
copy of Dr. Keum’s October 17, 2013 report. Evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9
On appeal counsel alleges that the May 13, 2015 decision was contrary to fact and law.
He does not, however, provide any evidence to demonstrate that OWCP erroneously denied
appellant’s March 16, 2015 request for reconsideration.
7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

9

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

5

Appellant did not submit any evidence along with his request for reconsideration to show
that OWCP erroneously applied or interpreted a specific point of law, or advances a relevant
legal argument not previously considered by OWCP. Because he did not meet any of the
necessary requirements, he is not entitled to further merit review.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP, or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen his case for further consideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s March 16, 2015 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2015
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1236
Issued: January 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 16, 2019 appellant, through counsel, filed a timely appeal from an April 3, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the issuance of the April 3, 2019 merit decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective November 14, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On August 26, 2012 appellant, a 53-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on August 9, 2012 she sustained a right arm injury as a result of casing
mail while in the performance of duty.4 She stopped work on the date of injury. OWCP assigned
the claim File No. xxxxxx795. On November 8, 2012 it accepted the claim for complete right
rotator cuff rupture and paid appellant wage-loss compensation on the supplemental rolls
commencing January 26, 2013. Appellant thereafter received compensation on the periodic rolls.
Appellant returned to work for two hours per day on June 26, 2013. She stopped work
again on July 1, 2013. On July 16, 2013 appellant filed a wage-loss compensation claim (Form
CA-7) requesting compensation for leave without pay (LWOP) and night differential for the period
July 1 through 12, 2013.5
On August 15, 2013 appellant underwent OWCP-authorized right shoulder arthroscopy
with extensive glenohumeral debridement, subacromial decompression, distal clavicle excision,
and medium to large vertical rotator cuff tear repair.
On May 5, 2017 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a series of questions, to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether she continued to have
residuals and disability related to her accepted August 9, 2012 employment injury.
In a May 27, 2017 report, Dr. Schwartz reviewed appellant’s medical records and the
SOAF. On physical examination, he reported skin touch pain over the right shoulder
acromioclavicular joint and anterior glenohumeral joint, and on the left over the glenohumeral
joint, reduced chin and bilateral shoulder range of motion, good radial pulses that were equal
bilaterally, deep tendon reﬂexes that were 2+ and equal in the bilateral biceps, triceps, and
brachioradialis, and marked giving way of all motors of the upper extremities bilaterally based on
a manual muscle test. Dr. Schwartz diagnosed a history of right shoulder rotator cuff repair and
extreme nonphysiologic pain behavior. He noted that these diagnoses were established only by
study and not by physical findings. Dr. Schwartz further noted that appellant’s subjective
complaints did not correspond with objective findings. He advised that the diagnosed conditions
were only medically connected to the factors of employment described in the SOAF which had
been accepted. Dr. Schwartz explained that there was no physiologic basis for appellant’s
4

The record reflects that appellant has prior claims. In OWCP File No. xxxxxx759 her claim was accepted for
conditions of left shoulder capsulitis, left shoulder impingement, chest wall sprain, and rib sprain. In OWCP File No.
xxxxxx749, appellant’s claim was accepted for a left ankle sprain.
5

By decision dated August 30, 2013, OWCP denied appellant’s claim for compensation for LWOP and night
differential for the period July 1 through 12, 2013, finding that the medical evidence of record failed to establish that
she was disabled as a result of her accepted complete right rotator cuff rupture.

2

complaints or findings on study. He indicated that she had nonphysiologic behavior that was not
considered residuals of her accepted condition. Dr. Schwartz further indicated that no further
medical treatment was indicated. He opined that, while appellant was unable to perform repetitive
motions with her right upper extremity, she was capable of working within her physical limitations.
In a May 27, 2017 work capacity evaluation form (OWCP-5c), Dr. Schwartz indicated that
appellant could work eight hours per day with restrictions of reaching up to four hours, pushing,
pulling, and lifting up to 10 pounds for three hours per day, and no reaching above the shoulder.
He indicated that these restrictions were permanent. Dr. Schwartz responded on the form that
there were “multiple other bodily complaints” which needed to be considered in the identification
of a position.
On April 24, 2018 the employing establishment offered appellant a full-time position as a
modified mail handler, effective May 7, 2018. The position involved prepping flats into
automated-compatible trays on an automated flats sorting machine intermittently up to three hours
per day, and scanning on a dock (load/unload) up to five hours per day. The physical requirements
included holding a two-pound scanner, placing flats weighing no more than 10 pounds onto a
conveyor, and cutting straps off flats. In letters dated May 24 and September 5, 2018, the
employing establishment advised OWCP that appellant had not responded to the modified job
offer. It indicated that the offer complied with the restrictions as provided by Dr. Schwartz.
In a September 6, 2018 letter, OWCP advised appellant of its determination that the
modified mail handler position offered by the employing establishment was suitable based on
Dr. Schwartz’s evaluation and accompanying restrictions. 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. No response was received.
On September 14, 2018 the employing establishment again notified OWCP that appellant
had not responded to its modified job offer. It indicated that the offered position remained
available.
In an October 5, 2018 letter, OWCP advised appellant that she had 15 days to accept the
offered position or her compensation would be terminated. No response was received.
By decision dated November 14, 2018, OWCP terminated appellant’s compensation
benefits effective that date because she refused an offer of suitable work, pursuant to 5 U.S.C.
§ 8106(c)(2). It found that Dr. Schwartz’s May 27, 2017 report constituted the weight of the
evidence and established that she could perform the duties of the offered modified position.
On November 21, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
In reports dated December 5, 2018 and January 4, 2019, Dr. Beth M. Winke, a Boardcertified physiatrist, noted that appellant presented for a follow-up evaluation for left shoulder
pain. She provided assessments of adhesive capsulitis of the left shoulder, disorder of the left
shoulder, and myalgia, unspecified site. Dr. Winke advised that the left shoulder was stable and
unchanged with no new symptoms. She also advised that there was no change to appellant’s
medication, and addressed her treatment plan. On January 4 and February 1, 2019 Dr. Winke
reported that appellant presented for a follow-up evaluation for right shoulder pain. She provided
3

assessments of complete rotator cuff tear or rupture of the right shoulder, not specified as
traumatic, and myalgia, unspecified site. Dr. Winke advised that the right shoulder was stable and
unchanged with no new symptoms. She indicated that appellant’s medication and treatment plan
were documented in other encounters.
During a February 25, 2019 telephonic hearing, counsel contended that Dr. Schwartz’s
opinion was not entitled to the weight of the medical evidence on several bases. The record was
held open for 30 days for the submission of additional evidence, but none was received.
By decision dated April 3, 2019, an OWCP hearing representative affirmed, as modified,
the November 14, 2018 termination decision. He found that Dr. Schwartz’s opinion constituted
the weight of the medical evidence and established that appellant could perform the duties of the
offered modified position. The hearing representative affirmed the termination of her
compensation benefits for her refusal to accept an offer of suitable work, pursuant to 5 U.S.C.
§ 8106(c)(2). He made further findings that the cases be combined and the termination decision
be modified and remanded for OWCP to determine whether appellant’s prior accepted left ankle,
left shoulder, chest, and rib conditions, and subsequently-acquired myalgia disabled her from
performing the offered position.6
LEGAL PRECEDENT
Under FECA,7 once OWCP accepts a claim and pays compensation, it has the burden of
justifying termination or modification of an employee’s compensation benefits.8 Section
8106(c)(2) of FECA provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by, or secured for the employee is not entitled to
compensation.9
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.10 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.11
To justify termination of compensation, OWCP must establish that the work offered was
suitable, that appellant was informed of the consequences of his or her refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or

6

Supra note 4 (OWCP administratively combined her claims with the current file serving as the master file.)

7

Supra note 2.

8

L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

9
5 U.S.C. § 8106(c)(2); see also J.R., Docket No. 19-0206 (issued August 14, 2019); Geraldine Foster, 54 ECAB
435 (2003).
10

20 C.F.R. § 10.517(a).

11

Id. at § 10.516.

4

submit evidence or provide reasons why the position is not suitable.12 Section 8106(c) will be
narrowly construed as it serves as a penalty provision, which may bar an employee’s entitlement
to compensation based on a refusal to accept a suitable offer of employment.13
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.14 In a suitable work determination, OWCP must consider all preexisting and
subsequently-acquired medical conditions, whether work related or not, in evaluating an
employee’s work capacity.15
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective November 14, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
The Board finds that OWCP failed to establish that appellant was capable of performing
the position of a modified mail handler, given her previously accepted work-related medical
conditions of left shoulder capsulitis, left shoulder impingement, chest wall sprain, rib sprain, and
left ankle sprain under OWCP File Nos. xxxxxx759 and xxxxxxx749, and subsequently-acquired
medical condition of myalgia.16 In terminating her compensation benefits, OWCP relied on
Dr. Schwartz, an OWCP referral physician, who provided work restrictions on May 27, 2017
based solely on her right shoulder. At the time he issued appellant’s work restrictions he explained
that were “multiple other bodily complaints” which need to be considered in the identification of
a suitable employment position. The issue of whether a claimant is able to perform the duties of
the offered employment position is a medical question that must be resolved by probative medical
evidence.17 While OWCP found that Dr. Schwartz’s opinion contained sufficient medical
rationale to support that appellant could perform the physical duties contained in the offered
position, the Board finds that his opinion is insufficient for OWCP to have met it burden of proof
to terminate as he failed to consider all of her conditions in the assignment of the work
restrictions.18
The Board finds that the evidence of record establishes that OWCP failed to properly
consider the entirety of appellant’s medical conditions and restrictions before terminating her
12

R.A., Docket No. 19-0065 (issued May 14, 2019); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Job Offers and Return to Work, Chapter 2.814.4 (June 2013).
13

L.L., supra note 8; see also Joan F. Burke, 54 ECAB 406 (2003).

14

See K.W., Docket No. 19-0870 (issued September 18, 2019); G.M., Docket No. 18-1236 (issued June 18, 2019);
M.A., Docket No. 18-1671 (issued June 13, 2019); S.Y., Docket No. 17-1032 (issued November 21, 2017).
15

K.W., id.; M.A., id.; S.Y., id.; Gayle Harris, 52 ECAB 319 (2001).

16

See supra note 13.

17

Id.

18

Id.

5

wage-loss compensation and entitlement to a schedule award.19 As a penalty provision, the
termination of compensation benefits are narrowly construed.20 Although OWCP’s hearing
representative concluded that further development of the record was required to determine whether
“work-related conditions from prior injuries or myalgia” restrict appellant from the offered
employment position, the proper and appropriate remedy was to reverse the termination of wageloss compensation benefits until such time as a physician had resolved this medical issue.
Consequently, the Board finds that OWCP has not met its burden of proof to justify the termination
of her compensation benefits pursuant to section 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective November 14, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 24, 2020
Washington, DC

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

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

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

19

See K.W., supra note 14; K.S., Docket No. 19-0082 (issued July 29, 2019); D.H., Docket No. 17-1014 (issued
October 3, 2017).
20

Supra note 12.

6