United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 15-10 

Issued: June 12, 2015 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 5, 2014 appellant, through her representative, filed a timely appeal from a 

September 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.2

 

ISSUE 

The issue is whether OWCP properly terminated appellant’s wage-loss compensation and 

schedule award eligibility effective August 16, 2013 as she refused suitable work under 5 U.S.C. 

§ 8106(c)(2). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the September 3, 2014 OWCP decision, appellant submitted 

new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued 

its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant’s representative contends that the impartial medical examiner 

restricted appellant to sedentary work and, therefore, she was unable to accept the modified job 

offer. 

FACTUAL HISTORY 

OWCP accepted that appellant, then a 48-year-old mail handler, sustained a lumbar 

sprain and aggravation of lumbar degenerative disc disease as a result of pushing a cage of bulk 

mail in the performance of duty on July 13, 2002. The claim was accepted. Appellant was 

placed on the periodic rolls and received compensation benefits. She returned to modified duty 

and then stopped working on June 14, 2012 when the employing establishment could no longer 

accommodate her restrictions. 

OWCP referred appellant to Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, to 

determine the nature and extent of her employment-related conditions. In a January 27, 2012 

report, Dr. Swartz found that appellant’s accepted conditions had resolved and the chronic 

degenerative disease in the lumbar spine was unrelated to her employment injury. 

In a February 8, 2012 report, Dr. Jack Akmakjian, a Board-certified orthopedic surgeon 

and appellant’s attending physician, indicated that appellant continued to complain of pain across 

the lower back and diagnosed lumbar discogenic disease and chronic lumbar strain. He opined 

that she was capable of modified work. 

OWCP found a conflict in medical opinion between Dr. Swartz and Dr. Akmakjian on 

the issue of whether appellant continued to have any disability or residuals as a result of the 

accepted employment conditions. To resolve this conflict, it referred appellant to Dr. Neil 

Halbridge, a Board-certified orthopedic surgeon, for an impartial medical examination. In his 

April 5, 2013 report, Dr. Halbridge reviewed a statement of accepted facts, related appellant’s 

history, reviewed the medical record, and conducted a physical examination. He diagnosed low 

back pain with bilateral posterior thigh pain and intermittent muscle spasms with mild 

degenerative disc disease at L4-S1 with less than two millimeter disc protrusions at the L4-S1 

levels noted on a magnetic resonance imaging (MRI) scan dated July 31, 2002. Dr. Halbridge 

opined that appellant’s employment injury was at a permanent and stationary status and she had 

reached maximum medical improvement on December 2, 2004. He found that she was capable 

of modified work with restrictions. Dr. Halbridge opined that appellant was capable of 

performing sedentary work with the following restrictions: standing, walking, and exerting up to 

10 pounds of force occasionally for 1⁄3 of an eight-hour workday. He also indicated that an 

OWCP-5c (work capacity evaluation) form would be completed and returned with his report. 

No such OWCP-5c form was submitted. 

On May 30, 2013 appellant was referred for an assessment of academic achievement 

levels and vocational interests. She was administered the Raven Standard Progressive Matrices, 

Wide Range Achievement Test, Career Occupational Preference Systems, and select sections of 

the ABLE III. Under a rehabilitation plan and award dated July 16, 2013, appellant was placed 

in a vocational rehabilitation program to help her find suitable employment. 
3

In a June 19, 2013 report, Dr. Akmakjian examined appellant and found decreased low 

back pain. In an accompanying duty status report (Form CA-17) dated June 19, 2013, he 

provided the following restrictions: lifting 30 pounds continuously and 30 to 35 pounds 

intermittently; sitting and standing for six to eight hours a day; climbing and kneeling for five to 

six hours a day; bending, stooping, and twisting for four hours a day; reaching above the 

shoulder for seven hours a day; and driving for a half-hour a day. 

Based on the restrictions provided by Dr. Akmakjian in his June 19, 2013 report, the 

employing establishment offered appellant a modified position as a mail handler outlined in an 

August 10, 2013 “Offer of Modified Assignment” form. The duties required sorting and 

distributing trays of mail, removing mail from containers, and placing mail onto conveyor belts 

or into other containers for further processing or dispatch. 

On August 16, 2013 appellant returned to work as a modified mail handler. She worked 

for four hours and then left, indicating that she could no longer perform her duties and filed a 

claim for a recurrence of total disability. 

In an August 28, 2013 letter, OWCP indicated that the offered position was suitable work 

within appellant’s medical limitations and she had accepted the job offer, but abandoned the 

position because she believed it no longer met her medical restrictions. It advised her of the 

penalty provision under section 8106(c) of FECA for refusing suitable work and afforded her 30 

days to either accept the offered position or provide valid reasons for her refusal. 

On September 11, 2013 appellant submitted an August 21, 2013 report from 

Dr. Akmakjian who noted that she had tried to return to work, but could not do the job that was 

given to her. 

In a September 30, 2013 letter, OWCP advised appellant that it had considered her 

reasons for refusal and found them unacceptable. It afforded her 15 days in which to accept the 

position or her compensation benefits would be terminated. OWCP noted that no further reasons 

for refusal would be considered. 

In a narrative statement dated October 17, 2013, appellant indicated that she went back to 

her modified mail handler position on October 9, 2013 and worked within updated restrictions of 

standing for four hours in accordance with Dr. Akmakjian’s August 21, 2013 report. She further 

indicated that her work area had a conveyer belt which she had to walk around while carrying 

heavy trays, making it impossible for her to lift and carry intermittently per her restrictions. 

By decision dated November 19, 2013, OWCP found that appellant had failed to 

establish her recurrence of disability claim she filed after leaving her employment duties on 

August 16, 2013. It then terminated her wage-loss compensation benefits and schedule award 

eligibility effective August 16, 2013 on the basis that she abandoned suitable work in accordance 

with 5 U.S.C. § 8106(c)(2). 

On December 17, 2013 appellant, through her representative, requested an oral hearing 

before an OWCP hearing representative and submitted a December 16, 2013 affidavit indicating 

that she returned to her modified mail handler position from October 9 to November 25, 2013 
4

and followed her restriction of standing for four hours, but was not able to follow the other 

restrictions as her job assignment required bending and stooping for more than four hours a day. 

In reports dated November 25 and 26, 2013, Dr. Michael Valdez, an occupational 

medicine specialist, diagnosed back pain and lumbar strain. He indicated that appellant 

sustained an injury on August 16, 2013 and was not capable of working under the restrictions 

given by her orthopedic surgeon. Dr. Valdez released her to work with the following 

restrictions: no stooping, bending, lifting, pushing or pulling, and sedentary work only. 

On December 5, 2013 Dr. Akmakjian reiterated his diagnoses and restrictions. 

In reports dated January 29 through April 14, 2014, Dr. Scott Goldman, a Board-certified 

orthopedic surgeon, diagnosed L5-S1 posterior annual tear with two millimeter disc bulge and 

facet joint arthrosis and left-sided S1 radiculopathy. He indicated that appellant returned to work 

for one day and was not able to tolerate the pain. Dr. Goldman recommended desk work only 

with restrictions of no bending, stooping, or lifting more than 10 pounds. 

A telephonic hearing was held before an OWCP hearing representative on July 14, 2014. 

By decision dated September 3, 2014, an OWCP hearing representative affirmed the 

November 19, 2013 termination decision as appellant refused an offer of suitable work, pursuant 

to 5 U.S.C. § 8106(c)(2). 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.3 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.4 To justify termination of 

compensation, OWCP must show that the work offered was suitable and must inform appellant 

of the consequences of refusal to accept such employment.5

 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.6

 

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 by the employee, has 

the burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant 

 3 See Linda D. Guerrero, 54 ECAB 556 (2003). 

4

 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003). 

5 See Ronald M. Jones, 52 ECAB 190 (2000). 

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

7

 20 C.F.R. § 10.517(a). 
5

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.8

 

Before compensation can be terminated, however, OWCP has the burden of 

demonstrating that the employee can work, setting forth the specific restrictions, if any, on the 

employee’s ability to work, establishing that a position has been offered within the employee’s 

work restrictions and setting forth the specific job requirements of the position.9

 In other words, 

to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, 

it has the burden of showing that the work offered to and refused by appellant was suitable.10 

OWCP procedures provide that if a claimant returns to work and then stops working and submits 

a claim for compensation, the claims examiner must make a finding of suitability unless a loss of 

wage-earning capacity decision has been issued.11 

Once OWCP establishes that the work offered is suitable, the burden shifts to the 

employee who refuses to work to show that the refusal or failure to work was reasonable or 

justified.12 The determination of whether an employee is physically capable of performing a 

modified assignment is a medical question that must be resolved by medical evidence.13 OWCP 

procedures state that acceptable reasons for refusing an offered position include medical 

evidence of inability to do the work.14 

ANALYSIS 

OWCP accepted that appellant sustained a lumbar sprain and aggravation of lumbar 

degenerative disc disease in the performance of duty on July 13, 2002. Appellant was placed in 

a vocational rehabilitation program and the employing establishment offered her a modified 

position as a mail handler. On August 16, 2013 she returned to work for four hours and then left, 

indicating that she could no longer perform her duties. Appellant filed a claim for a recurrence 

of total disability. In its November 19, 2013 decision, OWCP found that she failed to establish 

her claim and terminated her compensation benefits effective August 16, 2013 as she abandoned 

suitable work. On appeal, counsel contends that the impartial medical examiner restricted 

appellant to sedentary work and, therefore, she was unable to accept the modified job offer. 

The Board finds that the offered mail handler position was not suitable work as it 

exceeded appellant’s medical restrictions. 

 8 Id. at § 10.516. 

9 See Linda Hilton, 52 ECAB 476 (2001). 

10 Id. 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.8 

(June 2013). 

12 20 C.F.R. § 10.517(a). 

13 See Gayle Harris, 52 ECAB 319 (2001). 

14 Supra note 11 at Chapter 2.814.5(a)(4) (June 2013). 
6

OWCP found a conflict in medical opinion between Dr. Akmakjian, appellant’s attending 

Board-certified orthopedic surgeon, who opined that appellant continued to suffer residuals of 

her accepted back conditions and Dr. Swartz, the second opinion examiner, who found that 

appellant’s accepted conditions had resolved and the chronic degenerative disease in the lumbar 

spine was unrelated to her employment injury. It properly referred appellant to Dr. Halbridge for 

an impartial medical examination to resolve the medical conflict, pursuant to 5 U.S.C. § 8123(a). 

In his April 5, 2013 report, Dr. Halbridge reviewed a statement of accepted facts, related 

appellant’s history, reviewed the medical record, and conducted a physical examination. He 

found that she was capable of modified work with restrictions. Dr. Halbridge opined that 

appellant was capable of performing sedentary work with the following restrictions: standing, 

walking, and exerting up to 10 pounds of force occasionally for 1⁄3 of an eight-hour workday. 

Subsequently, Dr. Akmakjian provided the following restrictions in his June 19, 2013 

report: lifting 30 pounds continuously and 30 to 35 pounds intermittently; sitting and standing 

for six to eight hours a day; climbing and kneeling for five to six hours a day; bending, stooping, 

and twisting for four hours a day; reaching above the shoulder for seven hours a day; and driving 

for a half-hour a day. Based on the restrictions provided by Dr. Akmakjian, the employing 

establishment offered appellant a modified position as a mail handler and she returned to 

modified duty on August 16, 2013. On August 21, 2013 Dr. Akmakjian stated that appellant had 

tried to return to work, but could not do the job that was given to her. 

The Board finds that Dr. Halbridge’s opinion was not given the proper weight of 

evidence regarding appellant’s medical restrictions. In situations where there are opposing 

medical reports of virtually equal weight and rationale and the case is referred to an impartial 

medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based on a proper factual background, must be given special 

weight.15 Although Dr. Akmakjian advised that appellant could not perform the duties of the 

modified position, it was his opinion that was the basis of one side of the conflict in medical 

opinion. Reports from a physician who was on one side of a medical conflict that an impartial 

specialist resolved, are generally insufficient to overcome the weight accorded the opinion of the 

impartial physician or to create a new conflict.16 The Board finds that as Dr. Halbridge provided 

a comprehensive, well-rationalized opinion in which he provided physical examination findings, 

his opinion is entitled to the special weight accorded an impartial medical examiner and 

constitutes the weight of the medical evidence.17 

The modified mail handler position offered to appellant on August 10, 2013 required 

standing for six to eight hours a day and lifting 30 pounds continuously and 30 to 35 pounds 

intermittently. The standing and lifting requirements exceed Dr. Halbridge’s April 5, 2013 

restrictions of standing and exerting up to 10 pounds of force occasionally for 1⁄3 of an eight-hour 

workday. Dr. Halbridge further opined that appellant was restricted to sedentary work and the 

modified mail handler position required sorting and distributing trays of mail, removing mail 

 15 See V.G., 59 ECAB 635 (2008). 

16 See Jaja K. Asaramo, 55 ECAB 200 (2004). 

17 See L.B., Docket No. 14-1794 (issued January 7, 2015). 
7

from containers, and placing it onto conveyor belts or into other containers for further processing 

or dispatch. As the modified job offer exceeded his restrictions, the Board finds that it was not 

suitable work under section 8106(c) of FECA. Thus, OWCP erred in terminating appellant’s 

wage-loss compensation and schedule award eligibility.18 

Accordingly, OWCP’s termination decision will be reversed and the case returned to 

OWCP for reinstatement of appropriate benefits. 

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and schedule award eligibility effective August 16, 2013 under 5 U.S.C. § 8106(c)(2). 

ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: June 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 See R.B., Docket No. 12-1868 (issued April 22, 2013).