United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.E., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Santa Clarita, CA, 

Employer 

__________________________________________ 

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Docket No. 15-1494 

Issued: December 24, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 30, 2015 appellant, through counsel, filed a timely appeal from a June 3, 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 wage-loss 

compensation and schedule award benefits under 5 U.S.C. § 8106(c)(2). 

FACTUAL HISTORY 

On August 18, 2010 appellant, then a 40-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he sustained neck, arm, and knee injuries as a result of 

 1

 5 U.S.C. § 8101 et seq. 
2

his federal employment. The reverse of the claim form indicated that he had stopped working as 

of June 17, 2010. In an accompanying statement, appellant indicated that his job duties involved 

loading and unloading trucks. The medical evidence shows that he underwent a left elbow ulnar 

nerve release on June 25, 2010. 

OWCP accepted the claim on October 7, 2010 for lesion of the left ulnar nerve. In 

addition, it has accepted a neck sprain, bilateral knee derangement, displacement of cervical 

intervertebral disc without myelopathy, and brachial neuritis or radiculitis. 

Appellant remained off work and received treatment from Dr. Narinder Grewal, a Boardcertified anesthesiologist. In a work capacity evaluation (Form OWCP-5c) dated October 4, 

2012, Dr. Grewal provided work restrictions, which included three to four hours of sitting. The 

employing establishment offered appellant a part-time sedentary position on January 4, 2013. 

Appellant refused the offer on January 7, 2013, asserting that he could not physically perform the 

position. 

On February 13, 2013 the employing establishment offered appellant a full-time position 

as a customer care agent. The physical requirements of the customer care agent were reported as 

sitting up to eight hours with some standing, simple grasping up to eight hours intermittently, 

pushing/pulling of a computer mouse up to eight hours, and fine manipulation using a keyboard 

up to eight hours. Appellant submitted a February 18, 2013 note from Dr. Grewal indicating that 

appellant could not perform the offered position. 

OWCP prepared a statement of accepted facts (SOAF) dated April 4, 2013 and referred 

appellant to Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion 

examination and opinion regarding work restrictions. In a report dated May 1, 2013, Dr. Ha’Eri 

provided a history and results on examination. With respect to the position of customer care 

agent, Dr. Ha’Eri opined that appellant was not capable of performing the position as he had to 

repeatedly use his hands eight hours per day with no breaks. 

The record indicates that on May 28, 2013 appellant underwent an authorized C4-6 

anterior microdiscectomy and interbody fusion surgery. In a toxicology report dated August 13, 

2013, he tested positive for one prescription drug, Tapentadol, and for THC-COOH. The report 

indicated that the referring physician was Dr. Hrair Darakjian, a Board-certified orthopedic 

surgeon. 

On December 24, 2013 OWCP prepared a new SOAF and again referred appellant to 

Dr. Ha’Eri for a second opinion examination. In a December 24, 2013 letter, the employing 

establishment discussed the offered position of customer care agent and asserted that appellant 

could sit or stand as needed for comfort, and there was no continuous typing. 

In a report dated February 5, 2014, Dr. Ha’Eri provided a history and results on 

examination. He diagnosed left elbow cubital tunnel syndrome, bilateral knee patellofemoral 

stress syndrome, cervical sprain/strain, and aggravation of preexisting multilevel cervical 

degenerative disc disease and protrusions, giving rise to neck pain and upper extremity 

radiculopathies, left worse than right. Dr. Ha’Eri opined that the degenerative cervical condition 

was permanently aggravated by the employment injury. He indicated that the cervical surgery 
3

had failed and appellant continued to have neck pain and stiffness associated with bilateral upper 

extremity radiculopathy. As to the offered position, Dr. Ha’Eri reported: “It is my opinion that 

the claimant is able to return to a sedentary work as long as he has 15-minute breaks every 2 

hours. The job offer of customer care agent was reviewed and it seems a suitable position for 

him.” 

In a toxicology report dated March 17, 2014, appellant tested for positive for two 

nonprescribed substances: THC-COOH and 7-Aminoclonazepam. He did not test positive for 

any prescribed medications. 

On March 28, 2014 the employing establishment offered appellant the full-time position 

of customer care agent. Appellant refused the job offer, indicating that it was not medically 

suitable. 

Appellant submitted an April 3, 2014 report from Dr. Darakjian, who provided a history 

and results on examination, indicating that he had reviewed records, including the job of 

customer care agent. As to examination results, Dr. Darakjian noted spasm and tenderness of the 

cervical paraspinal muscles, with paresthesias in both hands involving C6 and C7 nerve 

distribution. He diagnosed status post cervical anterior interbody fusion with residual 

radiculopathy, and status post left cubital tunnel syndrome. Dr. Darakjian reported that appellant 

would continue to take pain medication, Nucynta (Tapentadol) and Neurontin (Gabapentin), and 

was currently managing his pain well with this medication. According to him, the medication 

made appellant drowsy, and he had difficulty sitting in one position more than 45 minutes at a 

time Dr. Darakjian reported that appellant was not able to do repetitive movements, such as 

typing on a keyboard or using a computer mouse more than 15 minutes at a time. He concluded, 

“Based on my evaluation and review of records that have been provided to me, I am of the 

opinion that the patient is not capable of performing the duties of customer care agent for a call 

center due to the length of time needed to focus, sit, and use the hands to operate the computer. 

Dr. Darakjian remains totally disabled.” 

By letter dated April 18, 2014, OWCP advised appellant that it found the job offer of 

customer care agent suitable. It found that Dr. Ha’Eri represented the weight of the medical 

evidence. Appellant was advised of the provisions of 5 U.S.C. § 8106(c)(2) and further advised 

if he failed to accept the position he should provide written explanation of reasons within 30 

days. 

Appellant submitted a letter on May 8, 2014 in which he asserted that the SOAF was not 

entirely accurate as he was only a supervisor from 2004 to 2006 for a couple of months a year.2

 

He again opined that the job offered was not medically suitable based on the evidence. The 

record contains a toxicology report dated May 12, 2014, indicating that appellant did not test 

positive for any prescribed medication. In a toxicology report dated June 5, 2014, appellant 

again did not test positive for any prescribed medication by Dr. Darakjian. The positive results 

were for Tramadol, Zolpidem, and 7 -- Aminoclonazepam. 

 2

 The December 24, 2013 SOAF had indicated that appellant worked as a supervisor in the year prior to his 

injury. 
4

By letter dated June 27, 2014, OWCP advised appellant that the reasons for refusing the 

job offer were not acceptable. It advised him that he had an additional 15 days to accept the 

position or his entitlement to wage-loss compensation and schedule award benefits would be 

terminated. 

On August 4, 2014 appellant submitted a July 3, 2014 report from Dr. Darakjian, who 

provided results on examination. Dr. Darakjian indicated that appellant reported persistent pain, 

with weakness in the hands. He reported that he was concerned that appellant’s pain medications 

will make it difficult for him to focus, use a keyboard or watch a computer screen. Dr. Darakjian 

noted that he had found in his April 3, 2014 report that appellant could not perform the customer 

care agent position, and his opinion remained unchanged. 

By decision dated July 16, 2014, OWCP terminated wage-loss compensation and 

entitlement to a schedule award effective July 16, 2014 pursuant to 5 U.S.C. § 8106(c)(2). It 

found Dr. Ha’Eri represented the weight of the medical evidence, as there was no evidence from 

a treating physician disputing his findings. With regard to medications, OWCP found that the 

toxicology reports dated May 12 and June 5, 2014 did not test positive for the prescribed 

medications. It also stated that there were August 13, 2013 and March 17, 2014 which were 

positive for THC-COOH, which was indicative of marijuana use, and Dr. Darakjian did not 

address this finding. 

In a report dated August 28, 2014, Dr. Darakjian indicated that appellant continued to 

report neck pain. He stated that appellant reported that the prescribed medication of Nucynta and 

Gabapentin made him sleepy. Dr. Darakjian stated that appellant was disabled “as he is not able 

to do even the modified duties that have been provided to him due to the fact that he has 

difficulty with prolonged sitting, repetitive use of the hands, typing, focusing and concentrating 

on his work.” 

Appellant requested a telephone hearing with an OWCP hearing representative, which 

was held on March 18, 2015. At the hearing, he argued that the claim should be expanded to 

include a permanent aggravation of the cervical condition. 

By decision dated June 3, 2015, the hearing representative affirmed the July 16, 2014 

suitable work termination. The hearing representative found OWCP met its burden of proof to 

terminate compensation for refusal of suitable work. 

LEGAL PRECEDENT 

5 U.S.C. § 8106(c) 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.” 

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

suitable work or neglecting to perform suitable work.3 To justify such a termination, OWCP 

must show that the work offered was suitable.4

 An employee who refuses or neglects to work 

 3 Henry P. Gilmore, 46 ECAB 709 (1995). 

4 John E. Lemker, 45 ECAB 258 (1993). 
5

after suitable work has been offered to him has the burden of showing that such refusal to work 

was justified.5

With respect to the procedural requirements of termination under section 8106(c), the 

Board has held that OWCP must inform appellant of the consequences of refusal to accept 

suitable work, and allow appellant an opportunity to provide reasons for refusing the offered 

position.6

 If appellant presents reasons for refusing the offered position, OWCP must inform the 

employee if it finds the reasons inadequate to justify the refusal of the offered position and afford 

appellant a final opportunity to accept the position.7

ANALYSIS 

In the present case, the employing establishment offered appellant a full-time position as 

a customer care agent. The position was primarily sedentary, with computer keyboarding and 

the ability to stand as needed. The second opinion physician, Dr. Ha’Eri, found that appellant 

was capable of performing the duties of the position. In his February 5, 2014 report, he provided 

a complete factual and medical background. While Dr. Ha’Eri indicated that appellant had a 

degenerative cervical condition that was permanently aggravated by the employment injury, he 

reviewed the duties of the offered position and found appellant could perform the job. The 

Board notes that appellant had argued that the accepted conditions should include permanent 

aggravation of the cervical condition. As to whether an offered position is medically suitable, it 

is well established OWCP must consider preexisting and subsequently-acquired medical 

conditions, as well as employment-related conditions.8

 The issue is not whether a condition is 

employment related or not, but whether appellant can perform the duties of the offered position. 

Dr. Ha’Eri provided an opinion that appellant could perform the position based on appellant’s 

current condition. 

Appellant submitted an April 3, 2014 report from Dr. Darakjian, who opined that 

appellant could not perform the job. Dr. Darakjian does not provide a rationalized medical 

opinion on the issue. Rationalized medical opinion evidence is medical evidence that is based on 

a complete factual and medical background, of reasonable medical certainty, and supported by 

medical rationale explaining the opinion.9

 Dr. Darakjian refers to the prescribed pain medication 

and asserts that it made appellant drowsy. In this regard, he makes no mention of the toxicology 

reports that he had ordered in this case. The March 17, 2014 report, for example, did not show 

the presence of any prescription drugs, but did show other substances. Dr. Darakjian does not 

clearly explain his opinion in light of these findings, or otherwise provide a clear explanation as 

to why prescribed medication would prevent appellant from performing the offered position. As 

to the opinion that appellant could not physically perform the position, Dr. Darakjian provides no 

 5 Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a). 

6 Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992). 

7 Id.

8 Janice S. Hodges, 52 ECAB 379 (2001). 

9 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 
6

additional explanation or medical rationale. The position was a very light-duty, sedentary 

position that did not require continuous typing and would allow appellant to stand as necessary. 

The Board finds that the weight of the medical evidence rests with Dr. Ha’Eri in this 

case. Dr. Ha’Eri provided a rationalized medical opinion based on a complete background that 

appellant could perform the duties of the offered position. The position of customer care agent 

was medically suitable based on the weight of the medical evidence. 

OWCP followed its procedures and advised appellant that it found the job offer to be 

suitable, and provided appellant an opportunity to accept the position or provide valid reasons for 

refusing the position. In addition, it advised appellant of 5 U.S.C. § 8106(c)(2) and the 

consequences for refusing an offer of suitable work. Appellant provided a statement that he felt 

the SOAF had incorrectly identified the period he worked as a supervisor. The issue in the case 

was whether appellant currently had the ability to perform the duties of the selected position. 

Dr. Ha’Eri was provided a proper background for this issue and as noted above, provided a 

rationalized medical opinion on the issue. OWCP properly advised appellant that his reasons for 

refusing the offered position were not considered valid, and he had another 15 days to accept the 

position. 

Following the July 16, 2014 suitable work termination, appellant submitted an August 28, 

2014 report from Dr. Darakjian. Dr. Darakjian reiterates his opinion without providing 

additional medical rationale or remedying the deficiencies noted above in his April 3, 2014 

report. The weight of the evidence, for the reasons discussed, remained with the second opinion 

physician, Dr. Ha’Eri. 

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 OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and schedule award benefits under 5 U.S.C. § 8106(c)(2). 
7

ORDER 

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

Compensation Programs dated June 3, 2015 is affirmed. 

Issued: December 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board