B.H. and U.S. Postal Service, Post Office, Southfield, MI (Board decision, September 9, 2013)

ECAB final decision. The Board affirmed OWCP’s January 31, 2013 denial of a schedule award. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

B.H., a postal letter carrier, had an accepted bilateral ankle condition. OWCP terminated her compensation in 1997 for refusing suitable work. She later sought a schedule award based on a physician’s 2012 impairment rating. The Board found that the date of maximum medical improvement came after the termination, so the earlier suitable-work refusal barred the later monetary award. It affirmed OWCP’s denial.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8106(c).
• Outcome: January 31, 2013 denial of a schedule award affirmed.
• Key point: The suitable-work refusal barred a schedule award based on impairment established after compensation ended.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.H., Appellant
)
)
and ) Docket No. 13-791
) Issued: September 9, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Southfield, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 19, 2013 appellant, through counsel, filed a timely appeal of a January 31, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant is entitled to a schedule award following her June 20, 1997 refusal of suitable employment.

FACTUAL HISTORY

On March 10, 1996 appellant, then a 30-year-old letter carrier, filed an occupational disease claim alleging that on August 3, 1995 she first realized that her bilateral ankle tendinitis

1
5 U.S.C. § 8101 et seq. was employment related. OWCP accepted the claim for bilateral ankle tendinitis. Appellant stopped working on July 13, 1996.

By decision dated June 20, 1997, OWCP terminated wage-loss compensation effective that day pursuant to section 8106(c) of FECA based on appellant’s refusal of an offer of suitable work.

In a letter dated July 11, 1997, appellant requested a review of the written record by an OWCP hearing representative.

By decision dated October 2, 1997, an OWCP hearing representative affirmed the termination of appellant’s wage-loss compensation for refusing an offer of suitable work.2

On May 31, 2012 appellant filed a claim for a schedule award and submitted evidence in support of her request.

In a May 31, 2012 report, Dr. Jessica Glazer Volsky, an examining osteopath, diagnosed foot and ankle tenosynovitis and ankle ligamentous laxity/joint instability. Using the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), she found that appellant had a 20 percent left lower extremity impairment and a 23 percent right lower extremity impairment. Dr. Volsky stated that appellant had reached maximum medical improvement as of May 31, 2012.

By decision dated July 18, 2012, OWCP denied appellant’s claim for a schedule award.
It found that as appellant had refused suitable work pursuant to 5 U.S.C. § 8106(c) she was not entitled to monetary compensation under a schedule award.

On July 20, 2012 appellant’s counsel requested a telephonic hearing before an OWCP hearing representative, which was held on November 14, 2012.

By decision dated January 31, 2013, an OWCP hearing representative affirmed the July 18, 2012 schedule award denial.

LEGAL PRECEDENT

Section 8106(c) of FECA3 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. OWCP’s regulations further provide that, after it has provided an employee with the appropriate notices, then OWCP will terminate the employee’s entitlement to

2
Appellant appealed to the Board. On December 19, 2002 the Board issued an order dismissing appellant’s appeal as there were no decisions over which it had jurisdiction. Docket No. 02-967 (issued December 19, 2002). 3 5 U.S.C. § 8106(c).

2 further monetary compensation under 5 U.S.C. §§ 8105,4 81065 and 8107,6 as provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits as provided by 5 U.S.C. § 8103.7 The Board has affirmed these determinations beginning in Stephen R. Lubin.8 The Board has found that a refusal to accept suitable work constitutes a bar to receipt of a schedule award for any impairment which may be related to the accepted employment injury.9

Maximum medical improvement means that the physical condition of the injured member of the body has stabilized and will not improve further. The determination of whether maximum medical improvement has been reached is based on probative medical evidence.10

ANALYSIS

In a decision dated June 20, 1997, OWCP terminated appellant’s compensation, effective that same date, on the grounds that she neglected suitable work under section 8106. On May 31, 2012 appellant filed a claim for a schedule award.

In a decision dated July 18, 2012, OWCP found that appellant was not entitled to a schedule award because OWCP had previously terminated her compensation benefits under the provisions of 5 U.S.C. § 8106(c). As OWCP terminated appellant’s compensation benefits on June 20, 1997, she is barred from receiving schedule award compensation for any period after the termination decision was reached.11 The record, as reflected in Dr. Volsky’s May 31, 2012 report, indicates that appellant reached maximum medical improvement on May 31, 2012 following the June 20, 1997 termination date.12 The only medical evidence submitted to the record establishes the date of maximum medical improvement well after the termination arising in 1997. Therefore, OWCP properly denied her claim for a schedule award.

4
This section of FECA addresses claims for total disability 5
This section of FECA addresses claims for partial disability.
6
This section of FECA addresses claim for schedule awards.
7
20 C.F.R. § 10.517(b).
8
43 ECAB 564 (1992).
9
See T.U., Docket No. 08-1894 (issued June 15, 2009); B.K., 59 ECAB 228 (2007); Alfred R. Anderson, 54 ECAB 179 (2002); Stephen R. Lubin, supra note 8. 10 See J.C., 58 ECAB 258 (2007); Mark A. Holloway, 55 ECAB 321 (2004).
11
See supra note 9.
12
See Lizzie M. Greer, 49 ECAB 681 (1998) (where the date of maximum medical improvement occurred after the termination of compensation based on the refusal to accept a suitable offer of employment, section 8106(c) bars a claim for a schedule award).

3
 CONCLUSION

The Board finds that OWCP properly denied appellant’s claim for a schedule award following her refusal of suitable work under section 8106(c) of FECA.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated January 31, 2013 is affirmed.

Issued: September 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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