E.G. and U.S. Postal Service, Post Office, Bartlett, TN (Board decision, November 28, 2012)

ECAB final decision on the merits. The Board reversed OWCP's October 14, 2011 refusal to modify its April 14, 2008 termination of E.G.'s wage-loss compensation for declining an offered job. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.G., a postal employee, challenged termination of benefits for refusing a job OWCP considered suitable. An impartial physician had assessed his work capacity. The Board found that the opinion did not adequately resolve the medical conflict, so OWCP had not proved the offered work was suitable. It reversed the termination.

Decision snapshot

• Authority: FECA refusal of suitable work.
• Outcome: October 14, 2011 refusal to modify the April 14, 2008 benefit termination reversed.
• Key point: The medical foundation for the job offer was insufficient.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.G., Appellant
)
)
and ) Docket No. 12-1011
) Issued: November 28, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Bartlett, TN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On April 12, 2012 appellant filed a timely appeal from an October 14, 2011 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 this case.

ISSUE

The issue is whether OWCP properly terminated appellant’s compensation effective April 14, 2008 on the grounds that he refused an offer of suitable work.

FACTUAL HISTORY

This case has previously been before the Board. In an August 9, 2011 decision, the Board set aside a May 25, 2010 decision affirming OWCP’s December 23, 2008 decision

1
5 U.S.C. § 8101 et seq. terminating appellant’s compensation benefits for refusal to accept suitable employment.2 The facts and law contained in that decision are incorporated herein by reference. The relevant facts are delineated below.

On April 17, 2007 appellant, a 53-year-old rural mail carrier, filed an occupational disease claim alleging that he sustained injuries to his cervical spine and upper extremities as a result of employment activities. OWCP accepted his claim for aggravation of degeneration of thoracic intervertebral disc and aggravation of degenerative disc disease at C4-5.3

OWCP found a conflict in medical opinion between appellant’s treating physician, Dr. Patrick M. Curlee, a Board-certified orthopedic surgeon, who opined that appellant was totally disabled and a second opinion physician, Dr. Carl Huff, a Board-certified orthopedic surgeon, who opined that appellant’s accepted conditions had resolved and that he was able to return to regular duties. Appellant was referred to Dr. James Galyon, a Board-certified orthopedic surgeon, in order to resolve the conflict.

In a November 15, 2007 report, Dr. Galyon diagnosed degenerative disc disease at C4-5, which he opined was continually aggravated by driving a postal vehicle and retrieving mail. He noted that appellant had been primarily under the care of Dr. Curlee and had various work-ups and tests performed at his recommendation. A prior x-ray of the cervical spine showed degenerative disc disease at the C4-5 level. An earlier magnetic resonance imaging scan of the cervical spine showed C4-5 degenerative disc disease with large central disc osteophyte complex with moderate central canal stenosis, a T7 disc herniation with resultant mild cord compression and a T1 disc herniation with mild canal compression. Previous studies of the lumbar spine showed degenerative disc disease, which Dr. Galyon noted had been accepted by OWCP and was a “chronic problem.”

Objective findings on examination included restricted range of motion in the cervical spine, hyperactive reflexes and nonsustained clonus in the lower extremities. Dr. Galyon opined that appellant’s condition was permanent and “possibly could be progressive.” He stated that appellant’s lumbar pain was due to chronic degenerative disc disease in his back. Dr. Galyon opined that appellant was capable of sedentary work only and recommended that he be restricted from working more than six hours per day, from reaching above the shoulder and from lifting more than 10 pounds.

On February 7, 2008 the employing establishment offered appellant a four-hour-a-day modified rural carrier position, which it characterized as “sedentary clerical work.” Duties included: (1) processing “kill mail;” (2) answering telephones (taking messages and paging appropriate employees; and (3) serving as lobby director (assisting and directing customers).

2
Docket No. 11-295 (issued August 9, 2011).
3
A review of FECS indicates that appellant’s May 16, 1986 traumatic injury claim was accepted for chronic lumbar strain (File No. xxxxxxl67). Appellant’s August 2, 2001 traumatic injury claim was accepted for sprains of the neck and lumbar spine (File No. xxxxxx998). His February 23, 2005 claim for neck and back injuries was denied (File No. xxxxxxl54). Appellant’s March 6, 2007 emotional disease claim was also denied (File No. xxxxx835).

2
On February 21, 2008 OWCP notified appellant that it found the February 7, 2008 job offer to be suitable and in accordance with Dr. Galyon’s restrictions. It gave him 30 days to accept the position or provide an acceptable reason for rejecting it. On February 25, 2008 appellant informed OWCP that he was unable to perform the duties of the offered position due to his lower back and neck condition. On March 26, 2008 OWCP advised him that his reasons for refusing the position were unacceptable and provided him 15 days to accept the position.

Appellant submitted a report dated April 9, 2008 from Dr. Roger Vogelfanger, a Board- certified psychiatrist, who had treated appellant for depression. Dr. Vogelfanger opined that appellant would be unable to return to work due to his history of depression and chronic pain.

By decision dated April 14, 2008, OWCP terminated appellant’s compensation benefits based on his refusal to accept suitable employment.

On April 20, 2008 appellant requested an oral hearing.

In a decision dated December 23, 2008, an OWCP hearing representative affirmed the April 14, 2008 decision finding that the physical requirements of the offered position conformed to Dr. Galyon’s restrictions, which represented the weight of the medical evidence.

On December 22, 2009 appellant requested reconsideration, contending that OWCP failed to consider the entirety of his physical conditions, both work related and nonwork related, as required. He submitted a June 4, 2009 report from Dr. Vogelfanger, who stated that he had treated appellant on a regular basis since March 16, 2007 when he was diagnosed with major depressive episode severe, dysthymia and alcohol dependency. Dr. Vogelfanger noted that, as of April 9, 2008, appellant was taking medications (including prozac, klonopin and lyrica) capable of causing dizziness, abnormal coordination, emotional liability, confusion, nervousness, anxiety, weakness and problems concentrating. Noting that he had reviewed the position offered to appellant on February 7, 2008, he opined that appellant was not able to return to work on April 9, 2008 and was not able to be physically present to perform those tasks. As of March 31, 2008 appellant was having periods of uncontrollable crying, was experiencing sleep disturbance on a regular basis and when even driving near any postal facility, reported severe anxiety, which was manifested by difficulty breathing, shaking and feelings of impending doom. When he attempted unsuccessfully to return to work in 2007, he reported ongoing anxiety in interacting with others. Dr. Vogelfanger opined that appellant’s inability to interact with others would preclude his ability to perform the duties of the offered position.4

By decision dated May 25, 2010, OWCP denied appellant’s request for reconsideration.
In a decision dated August 9, 2011, the Board set aside the May 25, 2010 decision and remanded the case for further merit review.5

By decision dated October 14, 2011, OWCP denied modification of its April 14, 2008 decision.
4
OWCP is required to consider preexisting and subsequently acquired conditions in evaluating the suitability of an offered position. See Richard P. Cortes, 56 ECAB 200 (2004). 5 Docket No. 11-295 (issued August 9, 2011).

3
LEGAL PRECEDENT

FECA provides at section 8106(c)(2) that a partially disabled employee who refuses or neglects to work after suitable work is offered is not entitled to compensation.6 Once OWCP accepts a claim, it has the burden of justifying termination or modification of compensation benefits under section 8106 for refusing to accept or neglecting to perform suitable work.7 The Board has recognized that section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future wage-loss compensation and, for this reason, will be narrowly construed.8

To establish that a claimant has abandoned suitable work, OWCP must substantiate that the position offered was consistent with the claimant’s physical limitations and that the reasons offered for stopping work were unjustified.9 The issue of whether a claimant has the physical ability to perform a modified position offered by the employing establishment is primarily a medical question that must be resolved by the medical evidence of record.10

Section 10.516 of the implementing federal regulations states that OWCP will advise the employee that the work offered is suitable and provides 30 days for the employee to accept the job or present any reasons to counter its finding of suitability.11 Before terminating compensation, it must review the employee’s proffered reasons for refusing or neglecting to work.12 If the employee presents such reasons and OWCP finds them unreasonable it will offer the employee an additional 15 days to accept the job without penalty. The Board has held that, in cases where compensation is terminated pursuant to section 8106(c), the essential requirements of due process, notice and an opportunity to respond apply not only where an employee refuses suitable work, but also apply in the same force to cases where an employee abandons suitable work.13

OWCP is required to send certain information to a physician who is selected to perform a referee medical examination, including:

“(1) Description of the reason(s) for requesting the examination, including an indication of the conflict and a list of questions to be resolved, along with a blank Form OWCP-5 if appropriate.

6
5 U.S.C. § 8106(c)(2).
7
See Bryant F. Blackmon, 56 ECAB 752 (2005); Howard Y. Miyashiro, 51 ECAB 253 (1999).
8
See Richard P. Cortes, supra note 4; H. Adrian Osborne, 48 ECAB 556 (1997).
9
See Wayne E. Boyd, 49 ECAB 202 (1997).
10
See John E. Lemker, 45 ECAB 258 (1993); Camillo R. DeArcangelis, 42 ECAB 941 (1991).
11
20 C.F.R. § 10.516.
12
See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).
13
Mary A. Howard, 45 ECAB 646 (1994).

4
“(2) Statement of Accepted Facts (SOAF).

“(3) Copy of the complete case file, either in paper or electronic form.

“(4) Notice that he or she is the only individual authorized to perform the requested examination and provide the required report.

“(5) Prompt payment billing information, including the code for referee medical examination or case review.”14

OWCP’s procedures provide that the referee physician should provide a report which contains a clinical history, results of the examination, results of any testing performed and a reasoned opinion in response to the questions posed sufficient to resolve the conflict. The procedures further require the referee physician to use the SOAF as the framework for his or her opinion.15

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation based on the finding that he refused an offer of suitable work.

In developing the medical evidence, OWCP determined that a conflict in medical opinion arose regarding appellant’s capacity for work. It properly referred him to Dr. Galyon for an impartial medical examination. Dr. Galyon’s report, however, was insufficient to resolve the conflict. Therefore, OWCP improperly relied on his opinion when determining that the position offered by the employing establishment constituted suitable employment.

OWCP’s procedures provide that the referee physician should provide a report which contains a clinical history, results of the examination, results of any testing performed and a reasoned opinion in response to the questions posed sufficient to resolve the conflict. The procedures further require the referee physician to use the SOAF as the framework for his or her opinion.16 Dr. Galyon’s November 15, 2007 report was deficient on several counts. The report did not include a detailed clinical history or detailed findings on examination such as range of motion measurements. There is no evidence that Dr. Galyon performed any specific tests to support his conclusions. He did not indicate that he had reviewed or used OWCP’s SOAF as a basis for his opinion, as required. The record does not establish that Dr. Galyon received a SOAF from OWCP. Dr. Galyon diagnosed degenerative cervical and lumbar disc disease, opined that appellant was capable of sedentary work only and recommended that he be restricted from working more than six hours per day, from reaching above the shoulder and from lifting more than 10 pounds. He did not, however, explain whether his restrictions were based only on appellant’s accepted condition in the instant case, as opposed to his accepted lumbar condition in

14
Federal (FECA) Procedure Manual, Part 3 -- Medical Examinations, Referee Examinations, Chapter 3.500.4(c) (July 2011).
15
Id. at Chapter 3.500.4(g).
16
Id.

5 a prior case. Medical conclusions unsupported by rationale are of diminished probative value.17 The Board notes that Dr. Galyon did not have an opportunity to review the position description for the job offered by the employing establishment in order to render an opinion as to whether appellant could perform the required duties. As Dr. Galyon’s report was insufficiently rationalized to support OWCP’s suitability determination, there remains an unresolved conflict in medical opinion. OWCP failed to meet its burden of showing that the work offered to and refused by appellant was suitable.18

It is also well established that OWCP must consider preexisting and subsequently acquired conditions in evaluating the suitability of an offered position.19 At the time it terminated appellant’s compensation, it had a report from Dr. Vogelfanger supporting that appellant was disabled from a combination of depression and chronic pain. On June 4, 2009 Dr. Vogelfanger opined that appellant’s inability to interact with others would preclude his ability to perform the duties of the offered position. His opinion, while not adequately rationalized to establish that appellant sustained a disabling psychiatric condition was sufficient to warrant further development of the issue of whether he had an emotional condition such that he was unable to perform the duties of the modified position.20 As a penalty provision, section 8106(c)(2) must be narrowly construed.21 The medical evidence does not clearly establish that the abandoned position was within appellant’s capabilities. Consequently, OWCP did not discharge its burden of proof to justify the termination of his compensation pursuant to section 8106(c)(2) of FECA.

CONCLUSION

The Board finds that OWCP improperly terminated appellant’s compensation benefits on the grounds that he refused an offer of suitable work.

17
Willa M. Frazier, 55 ECAB 379 (2004).
18
M.L., 57 ECAB 746 (2006).
19
See Richard P. Cortes, supra note 4.
20
See Phillip L. Barnes, 55 ECAB 426 (2004).
21
See Stephen A. Pasquale, 57 ECAB 396 (2006); Richard P. Cortes, supra note 4.

6
ORDER

IT IS HEREBY ORDERED THAT the October 14, 2011 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: November 28, 2012
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

7