United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 14-1794 

Issued: January 7, 2015 

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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant, through his attorney, filed a timely appeal from a June 24, 

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 terminated appellant’s compensation benefits on 

October 17, 2013 pursuant to 5 U.S.C. § 8106(c). 

On appeal appellant’s attorney asserts that the June 24, 2014 decision is contrary to fact 

and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On December 9, 2009 appellant, then a 53-year-old city letter carrier, filed a traumatic 

injury claim alleging that he felt a sharp pain behind his left knee while walking. On July 1, 

2010 he filed a recurrence claim, stating that his left knee got worse after the May 2010 injury 

with pain and swelling. Appellant had stopped work on May 18, 2010. On July 19, 2010 OWCP 

accepted that he sustained an employment-related left knee sprain/strain, and on August 31, 2010 

additionally accepted tear of lateral meniscus of the left knee and unspecified localized 

osteoarthritis of the left lower leg. 

By decision dated September 17, 2010, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 8 through June 21, 2010 because the medical evidence did not 

establish disability from work for the claimed period. It accepted that he sustained a recurrence 

beginning June 22, 2010, and he received compensation beginning that day. Appellant was 

placed on the periodic compensation rolls effective November 21, 2010. 

In October 2010 OWCP authorized a left total knee arthroplasty which was performed by 

Dr. Adolph V. Lombardi, Jr., a Board-certified orthopedic surgeon, on March 31, 2011. 

Dr. Lombardi reported appellant’s follow-up care, and appellant was referred for physical 

therapy. 

In an August 22, 2011 report, Dr. Stephen Altic, an attending osteopath, advised that 

appellant was slowly improving from his left knee arthroplasty. He recommended eight more 

weeks of knee conditioning. On attending physician’s reports dated August 23 and November 7, 

2011, Dr. Altic diagnosed left knee degenerative joint disease and advised that appellant 

remained totally disabled. 

Dr. Lombardi completed a work capacity evaluation on January 31, 2012 in which he 

diagnosed left knee osteoarthritis and advised that maximum medical improvement should be 

reached by March 31, 2012. He provided physical restrictions including that walking was 

limited to one to two hours daily; no twisting, squatting, or kneeling; bending and stooping to 

less than one hour; and pushing a wheeled cart limited to one hour daily. 

 In January 2012 OWCP referred appellant to Dr. David K. Halley, Board-certified in 

orthopedic surgery, for a second opinion evaluation as to the extent of disability. In a 

February 3, 2012 report, Dr. Halley indicated that appellant had a past history of left knee 

surgery in 1974, 1984, and 1996 and left total knee replacement on March 31, 2011. He noted 

appellant’s complaint of left knee pain and 5/5 strength. Dr. Halley stated that the replacement 

was well balanced and had excellent alignment and good stability. He opined that the surgical 

result was much better than appellant’s perception, noting that appellant felt that the knee might 

give out, although this had never occurred. Dr. Halley advised that appellant had no residuals of 

the accepted left knee sprain or aggravation of degenerative joint disease other than some mild 

discomfort. He recommended work hardening program, to be followed by a gradual return to 

work. On an attached work capacity evaluation, Dr. Halley indicated that appellant could not 

return to his usual job and had restrictions on walking, standing, bending, and stooping and 

should forever avoid squatting, and kneeling. In a March 10, 2012 supplemental report, he 

advised that the work hardening and gradual restrictions were based on appellant’s interpretation 
3

of weakness which should be taken seriously and considered to be objective, in light of his job 

requirement of having to carry up to 70 pounds in all types of weather. Dr. Halley noted that 

appellant would soon have his one-year postsurgery examination. He indicated that an 

alternative to work hardening would be to begin work with shorter hours and gradually advance 

and to begin with temporary restrictions that could be discontinued in six to eight weeks. In an 

attached work capacity evaluation, Dr. Halley provided temporary restrictions of six to eight 

weeks’ duration. Walking and standing were limited to four hours with a 45- to 50-pound 

restriction on pushing, pulling, and lifting. Appellant was not to squat or kneel permanently. 

On April 24, 2012 Dr. Altic reiterated his diagnosis of left knee degenerative joint disease 

and advised that appellant could not return to work. 

On May 19, 2012 the employing establishment offered appellant a part-time modified 

position for four hours a day. The duties described were to case a route for two hours and carry a 

route for two hours. Standing was limited to two hours, and walking and driving to one hour. 

Appellant refused the offered position. 

In a May 3, 2012 report, Dr. Lombardi noted that appellant described no pain. He stated 

that appellant was currently employed but not working as a letter carrier. Examination showed a 

well-healed incision, no knee effusion, or tenderness. Appellant ascended stairs normally but 

needed a rail to descend and stated that he could walk an unlimited amount of time and required 

a cane to ambulate. An x-ray revealed the arthroplasty in satisfactory position and alignment. 

Dr. Lombardi diagnosed left knee osteoarthritis, status post total knee arthroplasty. 

In May 30, 2012 reports, Dr. Altic noted appellant’s report that he had ongoing difficulty 

with left knee strength which had not given out but felt somewhat unstable and that he had 

periodic numbness over the left lateral leg. Examination showed no signs of crepitus, instability 

or chondromalacia and popping over the medial left knee. Dr. Altic advised that appellant was 

capable of sedentary work for up to four hours daily with no excessive bending, turning or 

twisting, no kneeling, stooping, squatting, crawling, pushing, or pulling. 

In a duty status report dated May 22, 2012, Dr. Lombardi indicated that appellant could 

not return to his regular work and could sit four hours a day with no standing, walking, climbing, 

kneeling, bending, stooping, twisting, pushing, or pulling. 

In June 2012 OWCP determined that the position offered appellant was not suitable 

because it did not comport with Dr. Halley’s March 10, 2012 restrictions. It referred appellant 

for vocational rehabilitation. Appellant was also referred to Dr. Halley for a second evaluation. 

Dr. Halley was asked to determine appellant’s current ability to perform postal duties as a letter 

carrier. 

In a July 6, 2012 report, Dr. Halley noted appellant’s report that he had no confidence on 

steps or uneven surfaces for fear that the knee would give way and claimed that at the end of the 

day his knee would throb and would get stiff when he sat for more than 15 minutes. Appellant 

estimated that he could walk about 15 minutes and then had to rest and carried a cane for fear of 

falling, losing balance, or having his knee give way, which had never happened. On left knee 

examination, Dr. Halley noted well-healed incisions and no evidence of subluxation of the 
4

patella. There was tenderness to palpation with some symptom exaggeration. No effusion was 

noted and appellant had good medial stability with strength essentially 5/5. Appellant could not 

fully squat. Dr. Halley advised that appellant could not return to letter carrier duties because of 

his perceived feeling that his knee would give out. He recommended that appellant return to 

work slowly as noted in his previous report. The only permanent restrictions were kneeling and 

crawling. In an attached work capacity evaluation, Dr. Halley stated that appellant had 

temporary restrictions of six to eight weeks on sitting, walking and standing and permanent 

restriction on squatting and kneeling. In an August 13, 2012 supplemental report, he noted that it 

had been over 16 months since appellant had his total knee replacement. Dr. Halley stated that 

appellant had an excellent clinical result including the alignment of his total knee replacement 

implant, excellent range of motion, and 5/5 strength. He felt that appellant’s subjective 

complaint that his knee might give out was no longer justified, particularly, because he had the 

very same complaint before his total knee replacement. Dr. Halley concluded that, in all medical 

probability, appellant definitely should be able to work as a postal employee eight hours per day 

with no restrictions other than no repeated kneeling and squatting, which was difficult for most 

total knee patients. He reiterated his restrictions in an attached work capacity evaluation, noting 

that occasional squatting and kneeling were permanent restrictions. 

On September 15, 2012 the employing establishment offered appellant a modified fulltime position with duties of casing mail for two hours and delivering mail for six hours. The 

restrictions listed were occasional squatting and occasional kneeling. Appellant did not accept 

the position. 

On October 12, 2012 vocational rehabilitation efforts were closed because appellant did 

not appear at scheduled meetings and did not carry out agreed upon actions. 

On October 9, 2012 OWCP asked Dr. Altic to review Dr. Halley’s reports and indicate 

whether he agreed with his conclusions. By letter dated November 13, 2012, it advised appellant 

that the position offered was suitable. Appellant was notified that if he failed to report to work 

or failed to demonstrate that the failure was justified, pursuant to section 8106(c)(2) of FECA, 

his right to compensation for wage loss or a schedule award would be terminated. He was given 

30 days to respond. In November 20, 2012 correspondence, Dr. Altic indicated that he did not 

receive the October 9, 2012 letter. He opined that appellant was most likely totally disabled 

from being a letter carrier on a permanent basis. Dr. Altic recommended a functional capacity 

evaluation. 

OWCP determined that a conflict in medical opinion had been created between the 

opinions of Dr. Altic and Dr. Halley regarding the conditions caused by appellant’s work and 

regarding his ability to work and referred him to Dr. Michael S. Lefkowitz, a Board-certified 

orthopedic surgeon, for an impartial evaluation. In a February 12, 2013 report, Dr. Lefkowitz 

noted appellant’s history of four knee surgeries and his review of the statement of accepted facts 

and medical record. He indicated that appellant reported no problems with activities of daily 

living and the history was negative for any episodes of his knee giving way, swelling, locking, or 

causing significant pain. Examination demonstrated full extension and 135 degrees of flexion 

with no pain in the knee with rotation of the hip, no effusion, and well-healed surgical incisions. 

Motor and sensory examinations were intact. Dr. Lefkowitz indicated that, with a degree of 

medical certainty, after having conducted a thorough history, having reviewed voluminous 
5

records including the statement of accepted facts, and having performed a comprehensive 

physical examination, he did not believe that appellant had any residuals from the December 8, 

2009 work injury. He indicated that all accepted conditions were addressed by the left total knee 

arthroplasty. Dr. Lefkowitz agreed with the work restrictions provided by Dr. Halley and 

specifically stated that appellant was capable of standing and walking an eight-hour day but 

would do best if he had permanent restrictions of no repetitive squatting or kneeling and should 

not repetitively jump from heights such as off of a truck bed or any elevation, as this could be 

detrimental to his knee replacement over time. He indicated that the current physical 

requirements of the modified letter carrier position, namely two hours of casing or sorting mail 

and six hours of walking and delivering, would clearly be something appellant was capable of 

doing with a well-functioning total knee arthroplasty in an otherwise healthy 56-year-old male. 

On a work capacity evaluation, Dr. Lefkowitz indicated that appellant had reached maximum 

medical improvement and the only restriction was that he rarely to occasionally squat or kneel 

and that he should not jump from any height greater than one foot. 

 On April 2, 2013 OWCP provided Dr. Altic a copy of Dr. Lefkowitz’s report and asked 

that he comment. In an April 11, 2013 attending physician’s report, Dr. Altic advised that 

appellant was permanently disabled as a letter carrier and could not squat or kneel and was 

restricted from extending walking and standing. In April 15, 2013 correspondence, he advised 

that, although appellant was permanently disabled as a letter carrier, he could perform some 

work and recommended a functional capacity evaluation. 

On April 26, 2013 the employing establishment reoffered appellant the modified full-time 

modified position with duties of casing mail for two hours and delivering mail for six hours and 

restrictions of occasional squatting and occasional kneeling. Appellant was to return to work on 

May 4, 2013. He did not accept the position. On June 20, 2013 OWCP obtained pay rate 

information for the offered job. 

 By letter dated July 26, 2013, OWCP advised appellant that the position offered was 

suitable. Appellant was notified that, if he failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to section 8106(c)(2) of FECA, his right to compensation for 

wage loss or a schedule award would be terminated. He was given 30 days to respond. 

 Appellant disagreed that the offered position was suitable, stating that he had not seen 

any job offers in the past and it was his understanding that the offer must come from OWCP. He 

noted that Dr. Altic indicated that he could not perform letter carrier duties. 

 On July 31, 2013 OWCP ascertained that the offered position remained available. By 

letter dated July 31, 2013, it advised appellant that his reasons for refusing the offered position 

were not valid, and he was given an additional 15 days to accept. Appellant returned to work on 

August 10, 2013 and worked three days. He did not return.2

In a September 6, 2013 report, Dr. Lombardi noted that appellant reported that he 

returned to carrying mail for three days and then his left knee started to click, so he stopped 

work. He indicated that appellant stated that he could walk greater than 10 blocks and no 

 2

 Appellant received no wage-loss compensation after August 9, 2013. 
6

assistive devices were needed. Physical examination demonstrated a well-healed left knee 

incision. Appellant could ascend and descend stairs but required a handrail. Tenderness and 

mild effusion were present in the left knee. Dr. Lombardi diagnosed osteoarthritis and pain of 

the left knee, status post total knee arthroplasty on the left. He indicated that the implant was 

well positioned and stable and advised that appellant was unable to perform the duties of a letter 

carrier because overuse of the implant could cause accelerated wear and tear damage. 

Dr. Lombardi recommended a more sedentary position. 

In a letter dated October 1, 2013, OWCP advised appellant that his reasons for refusing 

the offered position were not valid, and he was given an additional 15 days to accept. On a 

disability slip dated October 2, 2013, Dr. Thomas R. Alexis, a Board-certified internist, advised 

that “due to illness -- under my care, unable to perform work duties starting [August 14, 2013] 

through present time. Continued care still required.” 

By decision dated October 17, 2013, OWCP terminated appellant’s compensation 

benefits on the grounds that he abandoned an offer of suitable work. It found that the weight of 

medical evidence rested with the opinion of Dr. Lefkowitz who provided an impartial evaluation. 

On October 21, 2013 appellant, through his attorney, requested a hearing. At the hearing, 

held on April 10, 2014, appellant testified that his route was seven to 10 miles in length and that 

the position he returned to was a regular letter carrier position and was outside his restrictions. 

He stated that he again attempted to return to work in November 2013 and worked 

approximately two weeks. Appellant indicated that both in October and November 2013, he 

stopped work due to pain and swelling. The hearing representative left the record open for 30 

days for appellant to submit additional evidence. Shawn Carter, a union steward, submitted a 

May 7, 2014 statement in which he noted that appellant had bilateral knee replacements and had 

attempted to return to work afterwards on several occasions. Mr. Carter maintained that the 

employer disregarded appellant’s restrictions. In May 12, 2014 correspondence, the employing 

establishment advised that the duties of the modified positon were within his restrictions. 

By decision dated June 24, 2014, an OWCP hearing representative affirmed the 

October 14, 2013 decision. She noted that OWCP followed all relevant procedural requirements 

and found that the weight of the medical evidence rested with the opinion of Dr. Lefkowitz, the 

referee physician. 

LEGAL PRECEDENT 

Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who 

(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3 

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept 

suitable work or neglecting to perform suitable work.4

 The implementing regulations provide 

that an employee who refuses or neglects to work after suitable work has been offered or secured 

for the employee has the burden of showing that such refusal or failure to work was reasonable 

 3

 5 U.S.C. § 8106(c). 

4 Joyce M. Doll, 53 ECAB 790 (2002). 
7

or justified and shall be provided with the opportunity to make such a showing before 

entitlement to compensation is terminated.5 To justify termination, OWCP must show that the 

work offered was suitable and that appellant was informed of the consequences of his refusal to 

accept such employment.6

 In determining what constitutes “suitable work” for a particular 

disabled employee, OWCP considers the employee’s current physical limitations, whether the 

work is available within the employee’s demonstrated commuting area, the employee’s 

qualifications to perform such work and other relevant factors.7

 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.8

 

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

withdrawal of the offer or medical evidence of inability to do the work or travel to the job.9

 

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.10 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination, and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.11 When there exist 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 

upon a proper factual background, must be given special weight.12 

ANALYSIS 

The Board finds that OWCP met its burden of proof in terminating appellant’s wage-loss 

compensation on the grounds that he abandoned suitable work. The accepted conditions in this 

case are left knee sprain/strain, tear of lateral meniscus of the left knee, and unspecified 

osteoarthritis of the lower left leg. On March 31, 2011 Dr. Lombardi performed a left total knee 

arthroplasty. OWCP determined that a conflict in medical evidence had been created between 

Dr. Altic, an attending osteopath, and Dr. Halley, an OWCP referral orthopedic surgeon, 

 5

 20 C.F.R. § 10.517(a). 

6 Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 

818 (1992). 

7

 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004). 

8 Gayle Harris, 52 ECAB 319 (2001). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000). 

10 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

11 20 C.F.R. § 10.321. 

12 V.G., 59 ECAB 635 (2008). 
8

regarding appellant’s work abilities and properly referred him to Dr. Lefkowitz for an impartial 

evaluation. 

 In his comprehensive February 12, 2013 report, Dr. Lefkowitz described physical 

examination findings that included no effusion and intact motor and sensory examinations. He 

indicated that with a degree of medical certainty, after having conducted a thorough history, 

having reviewed voluminous records including the statement of accepted facts, and having 

performed a comprehensive physical examination, he did not believe that that appellant had any 

residuals from the December 8, 2009 work injury because all the accepted conditions were 

addressed by the left total knee arthroplasty. Dr. Lefkowitz specifically stated that appellant was 

capable of standing and walking an eight-hour day but would do best if he had permanent 

restrictions of no repetitive squatting or kneeling and should not repetitively jump from heights 

such as off of a truck bed or any elevation, as this could be detrimental to his knee replacement 

over time. After his review of the modified letter carrier position description, he opined that 

appellant was capable of performing the job duties, noting a well-functioning total knee 

arthroplasty in an otherwise healthy 56-year-old male. 

 The modified position offered to appellant and which he abandoned was within these 

restrictions. It required that he case mail for two hours and deliver mail for six hours with 

restrictions of occasional squatting and occasional kneeling. 

As noted above, 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.13 While Dr. Altic advised on 

April 15, 2013 that appellant could not perform the duties of the modified position because he 

was totally disabled from letter carrier duties, it was the physician’s opinion of total disability 

that was the basis 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.14 

In his September 6, 2013 report, Dr. Lombardi indicated that the implant was well 

positioned and stable and advised that appellant was unable to perform the duties of a letter 

carrier because overuse of the implant could cause accelerated wear and tear damage. He 

recommended a more sedentary position. No matter how reasonable these restrictions seem, the 

Board has long held that prophylactic work restrictions do not establish a basis for wage-loss 

compensation. A fear of future injury is not compensable under FECA.15 As Dr. Lombardi’s 

restrictions were prophylactic in nature, his report is not sufficient to show that the offered 

position was not medically suitable.16 Dr. Alexis merely indicated that appellant could not work 

 13 Id.

14 Jaja K. Asaramo, 55 ECAB 200 (2004). 

15 Manual Gill, 52 ECAB 282 (2001); 

16 See Eileen Chilek, Docket No. 05-1077 (issued November 14, 2005). 
9

due to an “illness.” He did not address whether the period of disability claimed was due to the 

accepted conditions. 

Appellant also submitted a statement from Mr. Carter, a union official. Whether a 

position is suitable is primarily a medical question.17 Moreover, Mr. Carter described an 

incorrect medical history, noting that appellant had bilateral knee arthroscopies when he only 

underwent one procedure, and while Mr. Carter stated that appellant was working outside his 

restrictions, he provided no specific examples. 

The Board finds that, as Dr. Lefkowitz provided a comprehensive, well-rationalized 

opinion in which he provided physical examination findings that indicated that appellant could 

work eight hours a day with the above restrictions, his opinion is entitled to the special weight 

accorded an impartial examiner and constitutes the weight of the medical evidence.18 

There is also no evidence of a procedural defect in this case as OWCP provided appellant 

with proper notice. Appellant was offered a suitable position by the employing establishment 

which he abandoned after working several days. Thus, under section 8106(c) of FECA, OWCP 

met its burden of proof to terminate appellant’s wage-loss compensation on the grounds that he 

abandoned an offer of suitable work.19

The Board, however, notes that the record indicates that appellant’s wage-loss 

compensation was stopped on August 9, 2013 and OWCP did not terminate his entitlement to 

monetary compensation in accordance with section 8106(c) until October 17, 2013. Appellant 

would therefore be entitled to wage-loss compensation for this brief period. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation on October 17, 2013 pursuant to section 8106(c) of FECA. Appellant remains 

eligible for medical benefits. He is entitled to wage-loss benefits for the period August 9 to 

October 17, 2013. 

 17 Supra note 8. 

18 Supra note 12. 

19 Supra note 4. 
10

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 24, 2014 is affirmed as modified. 

Issued: January 7, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board