United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.F., Appellant 

and 

U.S. POSTAL SERVICE, MOBILE VEHICLE 

REPAIR FACILITY, Peoria, AZ, Employer 

__________________________________________ 

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Docket No. 15-0506 

Issued: August 12, 2016 

Appearances: Oral Argument January 12, 2016 

John E. Goodwin, Esq., for the appellant1

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 January 7, 2015 appellant, through counsel, filed a timely appeal of a July 11, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2

 (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 

effective June 19, 2013 pursuant to 5 U.S.C. § 8106(c)(2). 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 5, 2010 appellant, then a 59-year-old automotive technician, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a right shoulder and neck strain as a result of 

closing an overhead door spring which broke and fell on him. On January 31, 2011 OWCP 

accepted appellant’s claim for sprain of the right shoulder and upper arm as well as sprain of the 

neck. Appellant received compensation benefits on the periodic rolls as of July 3, 2011. 

On July 14, 2011 appellant underwent authorized surgical procedures of arthroscopic 

debridement of the glenohumeral joint, open distal clavicle excision with anterior acromioplasty, 

an open rotator cuff repair, and deltoid repair. Dr. Neil E. Motzkin, a Board certified orthopedic 

surgeon, performed the procedures and noted diagnoses of right shoulder pain secondary to 

acromioclavicular joint arthritis, a rotator cuff tear, intra-articular synovitis, chondromalacia, and 

a superior labrum anterior and posterior lesion. 

In a second opinion report dated October 12, 2011, Dr. Ronald M. Lampert, a Boardcertified orthopedic surgeon, examined appellant and diagnosed degenerative arthritis of the 

cervical spine, neck pain, and a postoperative right shoulder. He reviewed appellant’s history of 

present illness and appellant’s prior medical records. Dr. Lampert found that there were 

objective findings related to these conditions, noting that appellant had undergone shoulder 

surgery on July 14, 2011. In response to OWCP’s inquiry as to whether appellant required work 

restrictions, Dr. Lampert noted that appellant needed to complete physical rehabilitation before it 

could be determined what type of position was suitable. 

On October 21, 2011 Dr. Ramoun D. Jones, an anesthesiologist, prescribed Oxycodone 

at a dosage of one to two tablets every six hours as needed for pain, and noted restrictions of no 

driving and no use of hazardous machinery.3

 He explained that this medication could cause 

drowsiness and therefore he should not use it at work. 

By letter dated December 8, 2011, OWCP advised appellant that it proposed to terminate 

his compensation for wage-loss and medical benefits for the condition of neck sprain. It noted 

that this decision would not affect benefits for the accepted conditions of the right shoulder. 

OWCP finalized the termination of appellant’s compensation for neck sprain effective March 23, 

2012. On September 17, 2012 a hearing representative affirmed OWCP’s termination of benefits 

for neck sprain, finding that OWCP met its burden of proof. 

By letter dated August 24, 2012, appellant was notified of a second opinion examination 

that had been scheduled on September 11, 2012. 

On September 11, 2012 Dr. John A. Soscia, a Board-certified orthopedic surgeon, 

reviewed appellant’s medical history and provided results on examination. He noted that 

appellant had undergone arthroscopic surgery of the shoulder on July 14, 2011. Dr. Soscia noted 

that appellant had no objective findings to support the condition of sprain of the shoulder, and 

that the traction injury to his arm, due to the falling door, seemed to have resolved within a few 

days. He noted that appellant had some weakness in external rotation of his right shoulder, 

 3

 Dr. Jones’ certification in a medical specialty could not be confirmed with the American Board of Medical 

Specialties or the American Osteopathic Association. 
3

which could be a finding consistent with shoulder sprain, but could also be a post-surgical 

change. Dr. Soscia concluded that appellant had reached maximum medical improvement 

(MMI). He indicated that none of the treatments appellant had undergone to the present had 

provided any lasting relief and commented that “[h]is medical regiment may be giving him some 

relief of symptoms although I am concerned about his increasing use of [O]xycodone. It appears 

that [appellant] is slowly increasing his usage over time. I don’t feel that any treatment will 

increase the workers physical function.” Dr. Soscia concluded that appellant would not be able 

to return to his position as an automotive technician without restrictions and suggested that a 

functional capacity evaluation (FCE) be performed. 

By letter dated October 4, 2012, Dr. Soscia examined the results of the FCE. He noted 

that appellant exhibited self-limiting behavior on 67 percent of tasks, but reported that without 

additional data supporting a higher functional level, appellant should be restricted to sedentary 

work for an eight-hour day. 

In a work capacity evaluation dated October 9, 2012, Dr. Soscia set forth work 

restrictions including operating a motor vehicle to/from work no more than one hour per day; 

sitting no more than six hours; walking no more than four hours; standing no more than two 

hours; pushing and pulling 10 pounds no more than two hours; lifting 10 pounds no more than 

three hours; twisting, squatting, kneeling, and climbing no more than one hour per day; no 

reaching or reaching above the shoulder; and no operating a motor vehicle at work. 

By letter dated October 19, 2012, the employing establishment offered appellant a 

permanent modified position as an automotive mechanic. The duties of the position were 

described in the offer as receiving and making telephone calls and performing clerical duties. 

The physical requirements were described as intermittent lifting up to one hour per day, 

continuous sitting of up to six hours per day, intermittent standing of up to one hour per day, 

intermittent walking of up to one hour per day, intermittent simple grasping from four to six 

hours per day, intermittent fine manipulation from four to six hours per day, and no climbing, 

kneeling, bending, stooping, twisting, pushing, pulling, or reaching above the shoulder. 

On November 1, 2012 appellant returned the modified job offer. He wrote, “On the 

advice of counsel I neither accept or reject this job offer.” 

By letter dated November 7, 2012, the employing establishment requested a suitability 

ruling on the modified job offer, noting that appellant had not accepted the offer. 

On February 13, 2013 OWCP advised appellant that it found that job offer from the 

employing establishment to be a suitable position stating that the position as an Automotive 

Mechanic Modified is found by OWCP to be suitable to your work capabilities. It determined 

that the physical requirements of the job included intermittent lifting up to one hour per day, 

intermittent to continuous sitting up to six hours per day, intermittent standing up to one hour per 

day, intermittent walking up to one hour per day, intermittent grasping four to six hours per day, 

intermittent fine manipulation four to six hours per day, and no climbing, kneeling, bending, 

stooping, twisting, pulling/pushing or reaching above shoulder. OWCP further determined that 

the work restrictions provided by Dr. Soscia are as follows: sitting 6 hours, walking 4 hours, 

standing 2 hours, twisting 1 hour, operating a motor vehicle to/from work 1 hour, pushing and 

pulling up to 10 pounds 1 to 2 hours, lifting 1-3 hours, squatting, kneeling and climbing 1 hour, 
4

15-minute breaks every 3 to 4 hours, no reaching above shoulder with the right arm. Appellant 

was advised of the provisions of 5 U.S.C. § 8106(c)(2), and notified that he should accept the 

position or provide reasons for not doing so within 30 days. 

By letter dated February 16, 2013, counsel requested a copy of the job offer from the 

employing establishment. He acknowledged that job tasks in the offer were reasonable, but that 

the physical requirements as outlined in OWCP’s letter of February 13, 2013 were unreasonable 

as they did not contain restrictions on the amount of weight appellant would be required to lift or 

restrictions on the amount of time appellant would be required to engage in nonoverhead 

reaching. 

On March 7, 2013 the employing establishment submitted a letter to clarify the job offer 

of October 19, 2012. It noted that appellant would not be involved with casing or processing 

mail. The employing establishment further noted that the offered position would not require him 

to reach above his right shoulder, or reach with his right arm, as these tasks could be 

accomplished with the left arm. 

On March 11, 2013 OWCP responded to a request for a copy of the case record. It 

further noted, “As a point of clarification: Though in my letter dated February 13, 2012 I 

inadvertently omitted the weight restriction on lifting, the lifting requirement is clearly stated on 

the U.S. Postal Service Job Offer of October 19, 2012 as LIFTING: Intermittent (zero to five 

hours per day), which is well within the work restrictions provided by Dr. Soscia.” 

By letter dated April 10, 2013, the employing establishment noted that appellant had still 

not accepted the job offer, and asked the claims examiner when it could anticipate a final 

termination order. 

On April 18, 2013 OWCP notified appellant that it had found his reasons for not 

accepting the offered position to be insufficient. It noted that the employing establishment had 

confirmed that the offered position would not require reaching with his right arm or processing 

of mail. OWCP afforded appellant 15 days to accept the position. 

By letter dated March 15, 2013, appellant’s counsel requested that OWCP ask the 

employing establishment to reoffer the modified position, including the clarifications of 

March 7, 2013. He further noted that the lifting requirement of up to five hours per day was 

unreasonable. 

By decision dated June 19, 2013, OWCP terminated appellant’s compensation for wage 

loss, effective that same date. It found that he had refused an offer of suitable work under 

5 U.S.C. § 8106(c)(2). 

By letter dated June 26, 2013, appellant advised OWCP that his address had changed as 

of June 20, 2013. 

On June 28, 2013 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. 

The hearing was held on November 15, 2013. At the hearing, counsel noted that 

appellant had a work restriction of driving to and from work no more than one hour per day. He 
5

offered to send MapQuest results demonstrating that the commute from appellant’s home to the 

employing establishment at the time of the job offer was more than 60 minutes per day. Counsel 

further noted that the job offer contained duties of filing, but appellant was restricted from 

kneeling, bending, stooping, pushing, or pulling. Counsel stated that he hoped the employing 

establishment would explain how a person could file in a horizontal or vertical cabinet without 

kneeling, bending, stooping, twisting, or pulling. Appellant noted at the hearing that the nearest 

bus stop to his address as of the date of the job offer was 1.42 miles away and required four 

transfers to arrive at the employing establishment. He explained that his new address was even 

further from the employing establishment than his address as of the date of the job offer. The 

hearing representative agreed to keep the record open for 15 days for the submission of 

additional evidence. 

On December 6, 2013 counsel submitted MapQuest driving directions from appellant’s 

home as of the date of the job offer, demonstrating that the offered position was 26.54 miles 

away, which was estimated to take 34 minutes in one direction. Hence, according to MapQuest, 

the total time required to commute to and from work daily would be approximately one hour and 

eight minutes. 

By letter dated December 6, 2013, counsel noted that the offered position violated 

appellant’s work restriction of driving to and from work no more than one hour per day. He 

stated that if appellant accepted the position and arrived at work, he could be terminated the first 

day for violating his medical restrictions. 

On December 13, 2013 the employing establishment responded to appellant’s arguments 

at the oral hearing. It attached driving directions from Google Maps, which demonstrated a 

commute of 26.7 miles from appellant’s home as of the date of the job offer, which was 

estimated to take about 30 minutes in one direction. Hence, according to Google Maps, the total 

time required to commute to and from work daily would be one hour. 

By decision dated December 20, 2013, the hearing representative affirmed OWCP’s 

June 19, 2013 termination decision. He found that objections to the commuting distance from 

appellant’s prior and current homes and the work site were unfounded, as the travel time between 

these residences and the work site was less than one hour. The hearing representative noted that 

Dr. Soscia’s one-hour driving restriction meant one hour each way. He found that OWCP 

properly accorded weight to Dr. Soscia’s opinion, as the reports from appellant’s treating 

physicians were not well rationalized and did not opine specifically as to appellant’s work 

capacity. The hearing representative concluded that Dr. Jones had not opined as to appellant’s 

capacity to drive. 

On February 11, 2014 appellant requested reconsideration of OWCP’s December 20, 

2013 decision. With his request, he enclosed a report from Dr. Jones. In a January 21, 2014 

report, Dr. Jones noted, “The patient understands my recommendations not to operate a motor 

vehicle, heavy machinery or make important legal decisions while on [pain medication.]” 

On July 11, 2014 OWCP evaluated the evidence submitted on reconsideration and 

declined to modify its prior decision. It noted that the January 21, 2014 report from Dr. Jones 

did not specifically discuss why appellant would not be able to perform the permanent modified 

position, which did not require driving or use of heavy machinery. 
6

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.”4 

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

suitable work or neglecting to perform suitable work.5

 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.6

 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.7

 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.8

 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.9

 

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.10 

When OWCP considers a job to be suitable, it shall advise the employee of its finding 

and afford him 30 days to either accept the job or present any reasons to counter OWCP’s 

finding of suitability.11 If the employee presents such reasons and OWCP determines that the 

reasons are unacceptable, it will notify the employee of that determination and further inform the 

employee that he has 15 days within which to accept the offered work without penalty. 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.12 The employee, however, 

remains entitled to medical benefits. 

Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the 

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

 4

 5 U.S.C. § 8106(c). 

5 Joyce M. Doll, 53 ECAB 790 (2002). 

6

 20 C.F.R. § 10.517(a). 

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

818 (1992). 

8

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

9 Gayle Harris, 52 ECAB 319 (2001). 

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

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

11 20 C.F.R. § 10.516. 

12 Id. at § 10.517(b). 
7

Secretary shall appoint a third physician who shall make an examination.13 In situations where 

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.14

ANALYSIS 

The issue is whether OWCP properly terminated appellant’s compensation benefits for 

refusal to accept suitable work. The Board finds that OWCP did not meet its burden of proof to 

terminate appellant’s compensation for refusal of suitable work. 

OWCP terminated appellant’s compensation benefits relying upon the work restrictions 

provided by Dr. Soscia, determining that the modified automobile mechanic position was a 

suitable offer of employment as it fell within the work restrictions he had set forth. It found that 

Dr. Soscia was the only physician of record to provide a clear and rationalized medical opinion 

as to appellant’s work capacity and he was therefore afforded the weight of the evidence. 

The Board finds that the work restrictions of Dr. Soscia are insufficiently rationalized to 

be afforded the weight of the evidence, that the physical requirements of the offered position 

have not been sufficiently explained, and that there exists a conflict in the medical record of 

evidence as to appellant’s work restrictions. 

In his medical reports Dr. Soscia noted appellant’s ongoing and increasing use of 

Oxycodone, however he did not provide an opinion as to whether the use of this drug was 

necessary nor did he explain how its use impacted appellant’s ability to work or commute to 

work. Alternatively, Dr. Jones has consistently noted in his medical reports that appellant should 

not operate a motor vehicle or heavy machinery or make important legal decisions while on the 

pain medication. Also, in setting forth restrictions, Dr. Soscia indicates that appellant is capable 

of operating a motor vehicle to/from work no more than one hour per day, yet he also indicates 

that appellant is restricted from operating a motor vehicle at work. The vague nature of his 

driving restrictions is insufficient. Clarification of the driving restriction is especially important 

as the OWCP hearing representative interpreted Dr. Soscia’s one-hour driving restriction to and 

from work to mean one hour each way, rather than one cumulative hour per day as had been 

OWCP’s prior interpretation.15 Finally, Dr. Soscia provides no discussion as to whether the 

restrictions he has set forth in his report of October 9, 2012 are consistent with his opinion that 

appellant should be restricted to sedentary level work. The Board has found that medical 

conclusions unsupported by medical rationale are of little probative value.16 The Board therefore 

 13 5 U.S.C. § 8123(a). 

14 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 

15 See B.S., Docket No. 09-1067 (issued February 2, 2010) (An acceptable reason, if supported by medical 

evidence, for refusing an offer of suitable work is an inability to travel to work. Where OWCP has failed to develop 

the issue of whether the claimant’s physical restrictions render the commute impossible, it has not met its burden of 

proof in terminating compensation benefits for failure to accept suitable work.) 

16 A.D., 58 ECAB 149 (2006); Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 

968 (1949). 
8

finds that the work restrictions set forth by Dr. Soscia are of limited probative value, should not 

be afforded the weight, and therefore are insufficient for OWCP to meet its burden of proof to 

terminate compensation benefits. 

Furthermore, as noted, the physical requirements of the offered position of modified 

automobile mechanic are found to be insufficiently detailed, thus precluding an accurate 

determination of whether the offered position is suitable. In noting the clerical duties performed, 

the description notes that light filing is a specific, required task. However, the offer of 

employment does not set forth the extent or duration of the physical activities required to 

perform filing. The description states that no kneeling, bending, stooping, twisting, pushing or 

pulling are required, but does not explain how filing can be performed without these activities 

even when asked to provide such an explanation. As OWCP bears the burden of proof to justify 

termination of benefits, the failure to set forth an accurate and complete job offer precludes a 

finding in support of termination. 

Finally, in its decision dated December 20, 2013, the hearing representative found that 

OWCP had afforded proper weight to Dr. Soscia’s report and work restrictions, as the reports of 

Dr. Jones were not well rationalized. He found that Dr. Jones had not opined as to appellant’s 

capacity to drive. In its decision upon reconsideration dated July 11, 2014, OWCP again noted 

that the January 21, 2014 report from Dr. Jones did not specifically discuss why appellant would 

not be able to perform the permanent modified position, which did not require driving or use of 

heavy machinery.17 The Board finds that Dr. Jones specifically restricted appellant from driving 

while using Oxycodone. 

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.18 The work restrictions offered by Dr. Soscia and Dr. Jones differed, in 

part, as to whether appellant was able to drive to and from work. In his report on work 

restrictions dated October 9, 2012, Dr. Soscia noted that appellant was able to drive one hour per 

day to and from work.19 Dr. Jones, in a report dated October 21, 2011, recommended restrictions 

of no driving and no use of hazardous machinery while on Oxycodone. He explained that this 

medication could cause drowsiness. Dr. Soscia, in a September 11, 2012 report, noted that 

appellant’s prescribed dosage of Oxycodone had increased since that time. On reconsideration, 

OWCP received a January 21, 2014 note from Dr. Jones stating, “The patient understands my 

recommendations not to operate a motor vehicle, heavy machinery or make important legal 

decisions while on [pain medication.]” The Board finds that the reports of Drs. Soscia and Jones 

are of virtually equal weight and rationale on the issue of appellant’s work restrictions regarding 

driving and therefore OWCP could not meet its burden of proof to justify termination of benefits. 

 17 The Board notes that work restrictions are not limited to the specific duties of the modified position, but may 

also include restrictions regarding ability to travel to and from a work location. See supra note 7. 

18 Supra note 14. 

19 Contrary to the hearing representative’s assertion in the decision of December 20, 2013, Dr. Soscia’s work 

restriction was one hour of driving to and from work each day total -- not one hour in each direction. The work 

capacity evaluation form asks physicians to report the number of hours total a worker can perform a particular task 

daily, and as such there is no basis for interpreting the number of hours spent operating a motor vehicle to and from 

work daily any differently than the number of hours performing any other task with a limitation. 
9

Dr. Jones explained that the medication could cause drowsiness and recommended no driving, 

whereas Dr. Soscia was inconsistent with his driving restrictions and expressed concern over 

appellant’s increasing dosage of Oxycodone. OWCP failed to afford Dr. Jones’ recommended 

work restrictions the proper probative value when it found that Dr. Soscia’s report constituted the 

weight of medical evidence. Both reports contained virtually equal levels of rationale on the 

issue of appellant’s restrictions for driving to and from work. 

Therefore, the Board finds that OWCP did not discharge its burden of proof to justify 

termination of appellant’s compensation under section 8106(c)(2). The Board will reverse 

OWCP’s July 11, 2014 termination decision. 

CONCLUSION 

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). 

ORDER 

IT IS HEREBY ORDERED THAT the July 11, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 12, 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