United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 15-1882 

Issued: April 27, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 15, 2015 appellant filed a timely appeal from an April 29, 2015 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 the claim. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s compensation effective 

April 29, 2015 because he refused suitable work under 5 U.S.C. § 8106(c)(2). 

FACTUAL HISTORY 

On October 3, 2012 appellant, then a 54-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on October 2, 2012 he suffered a hernia when he caught a 

buggy that had tipped off the ramp. He stopped work on October 3, 2012 and returned to work 

 1

 5 U.S.C. § 8101 et seq. 
2

on October 10, 2012. Appellant then stopped work on December 12, 2012 and did not return. 

OWCP accepted the claim for inguinal hernia without obstruction or gangrene, bilateral. No 

surgeries have been performed. Appellant received periodic compensation payments for 

disability commencing December 16, 2012. 

In reports dated October 15, November 12 and 13, 2012, Dr. Mark Ciaglia, an osteopath 

and orthopedic surgeon, indicated that medical clearance from appellant’s cardiologist was 

needed prior to surgical repair of the hernias. In his November 13, 2012 report, he opined that 

appellant was capable of telephone duties for four to six hours per day. The employing 

establishment, however, did not have the requested sedentary work available. 

In a March 12, 2013 report, Dr. Amilcar Avendano, a Board-certified internist, indicated 

that appellant was unable to undergo hernia surgery because he had five cardiac stents placed in 

August 2012, he should not have surgery for one year, and would be unable to stop medications 

until then. 

In a March 28, 2014 letter, OWCP requested that Dr. Ciaglia provide a well-rationalized 

medical report regarding appellant’s disability status.2

 No response was received. 

In October 2014, OWCP referred appellant, along with the medical record, a statement of 

accepted facts (SOAF) and lists of questions, to Dr. Howard L. Beaton, a Board-certified general 

surgeon, for a second opinion examination. Dr. Beaton was asked to provide a medical opinion 

as to whether appellant had any residuals of the accepted condition and whether his current 

disability was due to the October 2, 2012 employment event or due to any medical conditions not 

related to the October 2, 2012 employment event. In a November 11, 2014 report, he noted the 

history of injury, his review of the SOAF, and the medical record. Dr. Beaton noted that elective 

surgical repair of the bilateral inguinal hernias were advised following medical clearance. 

Appellant’s past medical history was significant for coronary artery disease, for which five 

percutaneous stents have been inserted several months prior to the October 2, 2012 employment 

incident. He was maintained on anticoagulation medication and has not been cleared for elective 

surgery. In April 2013, appellant underwent coronary artery bypass surgery to relieve 

obstructions in three vessels and, two weeks prior to his evaluation, two additional percutaneous 

coronary stents were inserted. Dr. Beaton noted that appellant continued on antiplatelets agents. 

He opined that the accepted work-related conditions have not resolved. Dr. Beaton also opined 

that appellant could not perform his date-of-injury job as a rural carrier due to the fact that his 

hernias must be repaired prior to a full-time, full-duty return to work. He indicated that even 

though appellant was medically disabled from his date-of-injury job as a rural carrier, he could 

perform full-time, limited-duty work with restrictions of no pushing, no pulling, and no lifting 

over 20 pounds during an eight-hour day. Dr. Beaton further opined that even though appellant 

has nonwork-related coronary artery disease, he may perform full-time, limited-duty work within 

 2

 In several letters, OWCP wrote appellant’s treating physician, Dr. Ronald A. Buczek, an osteopath, and 

requested that he provide a well-rationalized medical report regarding appellant’s work-related disability and if he 

was medically able to return to full-duty work or perform some type of gainful employment in a limited-duty 

capacity. It, however, received no response from Dr. Buczek. Appellant indicated that he was changing his 

physician to Dr. Ciaglia. 
3

those restrictions until he was medically cleared to undergo surgical repair of his inguinal 

hernias. 

On January 30, 2015 the employing establishment offered appellant a modified rural 

carrier position, which entailed delivering assigned routes for 5.5 hours. The physical 

requirements of the position required pushing, pulling, lifting, and picking up letters and parcels 

up to 20 pounds for 5.5 hours intermittently, walking for 30 minutes intermittently, operating 

motor vehicle, and reaching at shoulder level to deliver five hours intermittently. 

On March 12, 2015 OWCP advised appellant that the duties and physical requirements of 

the modified rural carrier position were suitable as it was within the medical limitations provided 

by Dr. Beaton in his November 11, 2014 report and that the employing establishment confirmed 

that the position remained open and available to him. OWCP afforded appellant 30 days to 

accept the position or provide his reasons for refusal. Appellant was advised that, pursuant to 5 

U.S.C. § 8106(c)(2), an employee who refuses an offer of suitable work without reasonable 

cause is not entitled to further compensation for wage loss or schedule award. 

OWCP did not receive a response to the 30-day notice. The employing establishment 

confirmed that appellant did not accept the job and did not return to work during the 30-day 

period. 

By notice dated April 13, 2015, appellant was advised that his refusal of the offered 

position was not justified and he was afforded an additional 15 days to accept the job. He did not 

accept the job and did not return to work during the 15-day period. 

In an April 23, 2015 letter, appellant related that he had a discussion with his postmaster 

and that he could not accept the job offer because of his nonwork-related, preexisting medical 

conditions which include six stents in his heart, his triple bypass surgery, multiple cardiac artery 

blockages, and emphysema. He requested that OWCP accept those conditions as valid reasons 

to refuse work. Appellant also referenced Publication CA-810 (8-4C) and indicated that he 

could not accept the position due to those conditions. 

An October 3, 2014 cardiac catherization study and an October 4, 2014 hemodynamic 

report were submitted. 

By decision dated April 29, 2015, OWCP terminated appellant’s entitlement to 

compensation benefits effective April 29, 2015 because he refused to accept suitable 

employment in keeping with 5 U.S.C. § 8106(c)(2). 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.3

 Section 8106(c)(2) of FECA4 provides that a partially 

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

4 Supra note 1. 
4

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.5 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.6

 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.7

Section 10.517(a) of FECA’s implementing regulations provides 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.8 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.9

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.10 In other 

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

provision, OWCP has the burden of showing that the work offered to and refused by appellant 

was suitable.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 In evaluating the suitability of a particular position, 

OWCP must consider preexisting and subsequently acquired medical conditions.15

 5 Id. at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003). 

6 Ronald M. Jones, 52 ECAB 190 (2000). 

7 Joan F. Burke, 54 ECAB 406 (2003). 

8

 20 C.F.R. § 10.517(a). 

9 Id. at § 10.516. 

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

11 Id. 

12 See supra note 6. 

13 Gayle Harris, 52 ECAB 319 (2001). 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a 

(July 2013). 

15 Martha A. McConnell, 50 ECAB 129, 132 (1998). 
5

ANALYSIS 

OWCP accepted that appellant sustained inguinal hernia without obstruction or gangrene, 

bilateral. Although surgical repair of the hernias was recommended, no surgeries had been 

performed due to nonwork-related conditions. 

On January 30, 2015 the employing establishment offered appellant a position as a 

modified rural carrier. The determination of whether an employee has the physical ability to 

perform a position offered by the employing establishment is primarily a medical question that 

must be resolved by the medical evidence.16 The Board finds that the weight of the evidence in 

this case clearly establishes that appellant was capable of performing the offered position.17

In late 2012, Dr. Ciaglia found that appellant was capable of sedentary work. In a 

March 12, 2013 report, Dr. Avendano indicated that appellant was unable to undergo hernia 

surgery because he had five stents placed in August 2012 and he should not have surgery for one 

year. However, Dr. Avendano did not provide an opinion regarding appellant’s disability status. 

In his November 11, 2014 report, Dr. Beaton reviewed appellant’s medical records and 

provided a comprehensive, well-rationalized report. He noted that medical clearance was needed 

prior to elective surgical repair of the bilateral inguinal hernias. Dr. Beaton further noted 

appellant’s significant past medical history for coronary artery disease and his current status with 

regards to medication and percutaneous coronary stents. He opined that the accepted workrelated conditions had not resolved and that appellant could not perform his date-of-injury job as 

a rural carrier due to the fact that his hernias must be repaired prior to a full-time, full-duty return 

to work. Dr. Beaton indicated, however, that even though appellant has nonwork-related 

coronary artery disease he could perform full-time, limited-duty work with restrictions of no 

pushing, no pulling, and no lifting over 20 pounds during an eight-hour day until he was 

medically cleared to undergo surgical repair of his inguinal hernias. The employing 

establishment’s job offer, which requires appellant to push, pull, lift, and pick up letters and 

parcels up to 20 pounds for 5.5 hours intermittently, walk for 30 minutes intermittently, and 

operate a motor vehicle and reach at shoulder level to deliver five hours intermittently, falls 

within the restrictions set forth by Dr. Beaton. The Board thus finds that the offered position was 

medically suitable. 

The Board further finds that OWCP complied with its procedural requirements in 

advising appellant that the position was suitable, providing him with the opportunity to accept 

the position or provide reasons for his refusal and notifying him of the penalty provision of 

section 8106(c).18 Appellant did not respond to OWCP’s March 12, 2015 30-day notice which 

found the job offer suitable and in accordance with Dr. Beaton’s medical limitations. In 

 16 See Robert Dickinson, 46 ECAB 1002 (1995). 

17 The Board notes that appellant’s physician, Dr. Ciaglia, indicated in his November 13, 2012 report that 

appellant was capable of sedentary work four to six hours per day. As the employing establishment did not have 

total sedentary work available, appellant was referred to Dr. Beaton for a second opinion examination. 

18 See Bruce Sanborn, 49 ECAB 176 (1997). 
6

response to the April 13, 2015 15-day notice, which found appellant’s reasons not valid, he 

indicated, in an April 23, 2015 letter, that he did not accept the job offer because of his nonworkrelated, preexisting heart conditions, multiple cardiac procedures and other medical conditions, 

including emphysema. However, he did not submit any medical evidence supporting that he was 

unable to perform the duties of the offered position. Furthermore, appellant has not submitted 

any recent reports from his physicians addressing disability. The diagnostic testing he submitted 

fails to contain a medical opinion on disability and the causal relationship of such disability. The 

Board finds that OWCP properly followed its procedures in terminating compensation under 

section 8106. 

On appeal, appellant reiterates his contention that the medical evidence supports that 

between the 2012 work injury and Dr. Beaton’s medical examination in late 2014, he did not 

regain his health, but rather had multiple cardiac procedures. He indicated that he is now in need 

of a heart transplant. Appellant notes that his prior cardiac medical condition is known to both 

his employer and OWCP and that those conditions should be valid reasons to refuse suitable 

work. He additionally refers to Publication CA-810 (8-4C) which states, “The position should be 

compatible with the employee’s medical condition, including any nonwork-related medical 

condition which either preexisted the injury at work or developed since it occurred.” 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.19 OWCP 

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

evidence of inability to do the work.20 In this case, the medical records on file do not support 

that appellant is unable to perform the modified rural carrier position, either due to his 

preexisting cardiac condition or his accepted hernia condition. Thus, appellant’s argument lacks 

merit. 

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s compensation effective 

April 29, 2015 on the grounds that he refused an offer of suitable work under 5 U.S.C. 

§ 8106(c)(2). 

 19 Gayle Harris, 52 ECAB 319 (2001). 

20 Supra note 14. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 27, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board