United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Minneapolis, MN, Employer 

__________________________________________ 

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Docket No. 15-1778 

Issued: August 16, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 25, 2015 appellant filed a timely appeal from a July 13, 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 this case. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s eligibility 

for wage-loss and schedule award compensation effective June 17, 2014 as she refused an offer 

of suitable work, pursuant to 5 U.S.C. § 8106(c). 

On appeal, appellant contends that she had responded to OWCP’s May 14, 2014 

suitability determination letter within the 30-day time period and submitted a certified mail 

receipt dated June 10, 2014. She cites to Maggie L. Moore,2 and contends that OWCP failed to 

 1

 5 U.S.C. § 8101 et seq. 

2

 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). 
2

issue a 15-day notice allowing her another opportunity to accept the employing establishment’s 

job offer. Appellant further contends that none of the medical evidence from her treating 

physician, an attending Board-certified orthopedic surgeon, particularly his March 16, 2015 

medical report, or reports from a vocational rehabilitation counselor was considered by OWCP. 

FACTUAL HISTORY 

On August 27, 2006 appellant, then a 53-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) under File No. xxxxxx833 alleging that on that day she hurt her left 

shoulder and right knee when she tripped over a raised floor in an elevator.3

 OWCP accepted the 

claim for contusion of the right knee and lower leg, right lumbosacral joint sprain, left shoulder 

and acromioclavicular (AC) sprain, right anterior cruciate ligament injury, strain and overuse 

trochanteric tendinitis of the left hip, and overuse quadriceps tendinitis of the left leg.4

 

Appellant returned to part-time work, every other day, in a modified mail processing 

clerk position effective March 29, 2007. In a July 16, 2008 decision, OWCP found that her 

actual earnings as a modified mail processing clerk, effective March 29, 2007, fairly and 

reasonably represented her wage-earning capacity with zero wage loss. 

On June 5, 2010 OWCP accepted that appellant sustained a recurrence of disability from 

June 5 through 18, 2010 as the employing establishment withdrew her modified-duty position 

under the National Reassessment Process. It authorized total disability compensation beginning 

on June 5, 2010. Appellant did not return to work and was placed on the periodic rolls. 

In work capacity evaluations (Form OWCP-5c) and medical reports dated July 18, 2012 

to August 14, 2013, Dr. John R. Kearns, an attending Board-certified orthopedic surgeon, 

advised that appellant was not able to perform her usual job, but she could perform light-duty 

work four hours a day as tolerated with permanent restrictions due to her low back, left shoulder, 

and right knee injuries, five days a week. The restrictions included sitting up to four hours a day 

as tolerated, standing and walking for short intervals, sitting with the freedom to move around, 

occasional reaching, repetitive wrist and elbow movements, pushing and lifting up to 10 pounds, 

no reaching above shoulder, twisting, or repetitive activities using the back, neck, and upper 

extremities, rare bending and stooping, and pulling up to 10 pounds. Appellant was also required 

to use a chair with back support. 

 3

 In a prior appeal before the Board with respect to appellant’s claim under File No. xxxxxx641, the Board, in a 

January 3, 2008 decision, affirmed a March 30, 2007 OWCP decision which terminated her compensation benefits 

effective November 30, 2005 as she no longer had any residuals or disability causally related to her accepted 

May 22, 1997 lumbosacral strain. Docket No. 07-1795 (issued January 3, 2008). In an order dated August 5, 2008, 

the Board denied appellant’s petition for reconsideration of its January 3, 2008 decision. Order Denying Petition for 

Reconsideration, Docket No. 07-1795 (issued August 5, 2008). 

4

 By decision dated June 4, 2008, OWCP granted appellant a schedule award for 10 percent impairment of the 

right lower extremity and 7 percent impairment of the left upper extremity. The decision was affirmed on 

October 14, 2008 by an OWCP hearing representative. In a January 30, 2009 decision, OWCP granted appellant an 

additional schedule award for 9 percent impairment of the right lower extremity, for a total of 19 percent. 
3

By letter dated October 4, 2012, OWCP requested that the employing establishment 

provide appellant with a written offer for a position within the restrictions of Dr. Kearns within 

30 days. 

By letter dated January 14, 2013, the employing establishment informed OWCP that it 

did not have any positions available within appellant’s restrictions. It recommended that she be 

referred to vocational rehabilitation. 

On August 2, 2013 OWCP referred appellant for vocational rehabilitation. On March 11, 

2014 a vocational rehabilitation counselor performed vocational testing and a labor market 

survey. In an April 24, 2014 report, she determined that appellant was unemployable in the open 

labor market as a result of the assessment and medical restrictions. Appellant lacked a General 

Education Diploma (GED) and transferrable skills, the labor market survey supported the 

unavailability of jobs within her skill set and the medical record indicated a four-hour restriction 

“as tolerated.” The rehabilitation counselor stated that a GED assessment put her at a seventh to 

eighth grade level and it was unknown as to when she would reach an appropriate level leading 

to actual testing for the GED or equivalent. She further stated that two target jobs were 

identified that did not require a GED, but they required frequent to constant reaching and the 

medical restrictions indicated only occasional reaching and four hours of work as tolerated. The 

rehabilitation counselor recommended that OWCP follow up for continued medical management 

and an ability to increase beyond four hours of work with concrete restrictions for the entire 

work shift and not as tolerated. 

On May 7, 2014 the employing establishment offered appellant a modified lobby 

assistant position, four hours a day, five days a week, effective May 12, 2014 based on 

Dr. Kearns’ work restrictions.5

 The duties required verbally assisting postal customers, 

answering mailing questions, providing instructions on holding mail, change of address, and 

proper mailing, assisting customers with concerns and complaints, and answering the telephone 

as needed for an average of four hours. The physical requirements included no lifting over five 

pounds which only involved lifting minimal paperwork for an average of .25 hour, sitting up to 

4 hours for an average of 3.50 hours and moving around as desired, intermittent standing and 

walking in short intervals for an average of .50 hour, and talking to customers for an average of 

4 hours. Appellant did not respond to the job offer. 

By letter dated May 15, 2014, OWCP advised appellant that it had been informed that she 

had refused or failed to report to the offered position. It further advised her of its determination 

that the modified position offered by the employing establishment was suitable. OWCP 

indicated that the position was based upon the physical restrictions set forth by Dr. Kearns. The 

employing establishment confirmed that the position remained available to appellant. OWCP 

instructed her that she must, within 30 days, either accept the position or provide a written 

explanation of the reason she did not accept the position or she could lose her right to 

compensation under 5 U.S.C. § 8106(c) of FECA. 

 5

 The Board notes that it appears OWCP inadvertently misidentified the offered position as a modified mail 

processing clerk as the employing establishment’s May 7, 2014 job offer indicated that appellant was offered a 

modified lobby assistant position. 
4

On May 20, 2014 OWCP received a May 14, 2014 note from Dr. Kearns documenting 

that appellant was unable to work through June 14, 2014. 

In a May 19, 2014 left knee magnetic resonance imaging (MRI) scan report, 

Dr. Cooper R. Gundry, a Board-certified radiologist, found complex cleavage tearing of the 

posterior one-third of the medial meniscus, grade 2 chondromalacia of the patellofemoral 

compartment, small knee joint effusion, and prepatellar bursal inflammation. He also reported 

that a lumbar MRI scan revealed moderate disc degeneration at L5-S1 and L4-5 and mild or 

moderate at multiple levels at the thoracolumbar junction, advanced facet arthropathy bilaterally 

at L5-S1 with two millimeter (mm) spondylolisthesis and mild at L4-5, a patent central canal and 

mild foramina narrowing on the left at L5-S1 and L4-5, and no neural impingement, intradural 

lesion, neoplasm, fracture, or infection. 

In a letter dated June 9, 2014, received by OWCP on June 17, 2014 appellant set forth in 

writing four issues she claimed precluded her from accepting the offered employment position. 

In support of her assertions she included supporting documentation including a June 9, 2014 

narrative note from Dr. Kearns along with a letter from her rehabilitation counselor and an MRI 

scan report of her left knee, right knee, and lumbar spine. 

By decision dated June 17, 2014, OWCP terminated appellant’s wage-loss and schedule 

award compensation benefits effective that day because she refused an offer of suitable work 

pursuant to 5 U.S.C. § 8106(c). It noted that she did not respond to its May 15, 2014 30-day 

notice, nor did she accept the suitable work position and return to work within the allotted time 

period. OWCP further noted that authorization for further medical treatment continued. 

On June 26, 2014 appellant requested reconsideration. She submitted letters dated 

June 9, July 2, and September 9, 2014, in which she responded to OWCP’s May 15, 2014 

suitability determination letter. Appellant asserted that her condition had worsened and her 

physician had opined that she could not work at that time. She submitted draft documents which 

addressed the classification and duties of a lobby assistant position and the rehabilitation 

counselor’s vocational closure report. 

In reports dated May 14 to October 27, 2014, Dr. Kearns noted appellant’s work-related 

injuries, continuing symptoms, and medical treatment. He provided examination findings and 

diagnosed cleavage tearing of the posterior one-third of the medial meniscus and grade 2 

chondromalacia of the patellofemoral compartment of the left knee, moderate disc degeneration 

at L5-S1 and L4-5, and facet arthropathy L5-S1 with mild spondylolisthesis at L4-5. Dr. Kearns 

noted the May 19, 2014 lumbar and left knee MRI scan results. He also noted that a prior right 

knee MRI scan revealed findings consistent with an ACL injury. Dr. Kearns opined that 

appellant was completely disabled for work. 

In an appeal request form and a letter dated July 7, 2014, appellant withdrew her request 

for reconsideration and instead requested a review of the written record by an OWCP hearing 

representative. 
5

In a January 22, 2015 decision, an OWCP hearing representative affirmed the June 17, 

2014 decision. She found that the medical evidence submitted was insufficient to establish that 

appellant was not capable of performing the offered position. 

By letter dated March 24, 2015, appellant again requested reconsideration. In an April 2, 

2015 letter, she contended that the offered position was not suitable because it was a customer 

service job that required classroom and window training. Appellant did not have either training. 

She submitted draft documents which addressed the classification and duties of a lobby assistant 

position. 

In a March 9, 2015 report, Dr. Kearns provided appellant’s symptoms and social and 

medical history, and addressed her treatment plan. In a March 16, 2015 report, he noted the 

accepted employment injuries and the physical requirements of her mail processing clerk 

position. Dr. Kearns noted, however, that in recent years appellant’s symptoms had progressed 

to the point, particularly involving the low back and knees, where she was unable to work, even 

part time. Appellant was unable to use her arms for any length of time due to degenerative 

issues in her back. She needed to rest, sitting, standing, walking, and laying down as needed to 

help relieve her pain and discomfort. Dr. Kearns related that lying down provided the best relief 

because pain was generally aggravated by movement and activity. He noted that the work 

restrictions outlined in the May 2014 modified job offer were not accurate because appellant 

could only work as tolerated and currently she was not able to tolerate any work. Appellant was 

also on narcotic and nonnarcotic pain medications that made her drowsy. Dr. Kearns 

recommended that she should not work or drive under the influence of these medications. 

In a July 13, 2015 decision, OWCP denied modification of the January 22, 2015 decision. 

It found that Dr. Kearns’ reports were insufficient to establish that appellant was unable to 

perform the duties of the offered position. 

LEGAL PRECEDENT 

Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek 

suitable work or refuses or neglects to work after suitable work is offered to, procured by, or 

secured for him or her 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(c) 

for refusing to accept or neglecting to perform suitable work.7

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

entitlement to compensation is terminated.8 The Board has recognized that section 8106(c) 

 6

 5 U.S.C. § 8106(c)(2). 

7 Joyce M. Doll, 53 ECAB 790 (2002); Howard Y. Miyashiro, 51 ECAB 253 (1999). 

8

 20 C.F.R. § 10.517(a). 
6

serves as a penalty provision as it may bar an employee’s entitlement to future compensation 

and, for this reason, will be narrowly construed.9

To justify termination, OWCP must show that the work offered was suitable and that 

appellant was informed of the consequences of his or her refusal to accept such employment.10 

In determining what constitutes suitable work for a particular disabled employee, it considers the 

employee’s current physical limitations, whether the work was available within the employee’s 

demonstrated commuting area and the employee’s qualifications to perform such work.11 

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.12

Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the 

employee that it has found the offered work to be suitable and afford the employee 30 days to 

accept the job or present any reasons to counter OWCP’s finding of suitability. If the employee 

presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the 

employee of that determination and that he or she has 15 days in which to accept the offered 

work without penalty. At that point in time, OWCP’s notification need not state the reasons for 

finding that the employee’s reasons are not acceptable.13 After providing the 30-day and 15-day 

notices, OWCP will terminate the employee’s entitlement to further wage-loss compensation and 

schedule award benefits.14 However, the employee remains entitled to medical benefits.15 

ANALYSIS 

To justify termination of compensation, OWCP, must show that the work offered was 

suitable.16 The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation under 5 U.S.C. § 8106(c)(2) as it failed to properly give consideration to all of the 

evidence of record prior to its termination decision on July 17, 2014.17

OWCP accepted that appellant sustained a contusion of the right knee and lower leg, 

sprain of the right lumbosacral joint, sprain of the left shoulder, upper arm, and an AC joint 

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

10 T.S., 59 ECAB 490 (2008); Linda Hilton, 52 ECAB 476 (2001); Ronald M. Jones, 52 ECAB 190 (2000); 

Maggie L. Moore, supra note 2. 

11 20 C.F.R. § 10.500(b). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal, 

Chapter 2.814.5a (June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013). 

13 20 C.F.R. § 10.516. 

14 Id. at § 10.517(b). 

15 Id.

16 See cases cited supra note 10. 

17 See E.Z., Docket No. 14-0247 (issued March 16, 2015). 
7

injury, right anterior cruciate ligament, strain and overuse trochanteric tendinitis of the left hip, 

and overuse quadriceps tendinitis of the left lower extremity while in the performance of duty on 

August 27, 2006. It terminated her monetary compensation effective June 17, 2014 based on her 

failure to accept suitable work. 

Once OWCP accepts a claim, it has the burden of proving that the employee’s disability 

has ceased or lessened before it may terminate or modify compensation benefits.18 Following its 

suitability determination of the modified lobby assistant position, appellant was properly 

afforded 30 days to either accept the offer of suitable work or provide reasons for rejecting the 

offered position. In response, she submitted medical records and other documentation along 

with a letter stating four issues precluding the offered position from being suitable. 

Within these records, Dr. Kearns opines that appellant is completely disabled and unable 

to return to work under any capacity at the time. He noted that a recent MRI scan of the 

lumbosacral spine revealed moderate disc degeneration at L5-S1 and L4-5 along with advanced 

fact arthropathy bilaterally with 2 mm spondylolisthesis. Dr. Kearns also noted that a recent 

MRI scan of the left knee revealed findings consistent with complex cleavage tearing of the 

posterior one-third of the medial meniscus as well as grade 2 chondromalacia of the left 

patellofemoral compartment. Following appellant’s submission of the additional medical 

evidence and her statement of her reasons for finding the offered position unsuitable, OWCP 

failed to sufficiently discuss or analyze the new medical evidence, and her arguments in support 

of her refusal of work. The June 17, 2014 decision erroneously finds that appellant did not 

respond to OWCP’s 30-day notice. This finding is clearly erroneous as the June 9, 2014 letter 

was received by OWCP on June 17, 2014 and was of evidence at the time of its termination 

decision. As appellant submitted additional evidence within the 30-day period afforded by 

OWCP of responding to the suitability determination, she was entitled to have this evidence 

evaluated to determine whether or not she had provided acceptable reasons for refusing the offer 

of suitable work. 

The Board finds that OWCP failed to properly consider the evidence submitted by 

appellant within the 30 days it afforded to her to contest the termination and therefore it 

improperly terminated her eligibility for wage-loss and schedule award compensation effective 

June 17, 2014 based upon a refusal of suitable work under 5 U.S.C. § 8106(c)(2). 

Consequently, OWCP’s July 13, 2015 merit decision shall be reversed. 

On appeal, appellant contends that she had responded to OWCP’s May 14, 2014 

suitability determination letter within the 30-day time period and submitted a certified mail 

receipt dated June 10, 2014. 

Appellant further cites to Maggie L. Moore,19 and contends that OWCP failed to issue a 

15-day notice allowing her another opportunity to accept the employing establishment’s job 

offer. 

 18 Karen L. Majewski, 45 ECAB 219 (1993); Bettye F. Wade, 37 ECAB 556 (1986). 

19 Supra note 2. 
8

Lastly, appellant also contends that none of the medical evidence from Dr. Kearns, 

particularly, his March 16, 2015 report, or reports from the vocational rehabilitation counselor 

were considered by OWCP. For the reasons set forth in this decision, the Board has reversed the 

June 17, 2014 termination decision. 

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

eligibility for wage-loss and schedule award compensation effective June 17, 2014, pursuant to 5 

U.S.C. § 8106(c). 

ORDER 

IT IS HEREBY ORDERED THAT the July 13, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 16, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board