United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.T., Appellant 

and 

U.S. POSTAL SERVICE, WESTLAKE POST 

OFFICE, Bethesda, MD, Employer 

__________________________________________ 

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Docket No. 15-1765 

Issued: January 4, 2016 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 16, 2015 appellant, through his representative, filed a timely appeal from 

March 9 and August 7, 2015 merit decisions 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 effective 

February 9, 2014 as he refused an offer of suitable work under 5 U.S.C. § 8106(c). 

FACTUAL HISTORY 

On September 13, 2010 appellant, then a 47-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on July 15, 2010 he injured his back pushing a heavy cart and 

lifting a tub of mail. He stopped work on July 16, 2010. OWCP accepted the claim for an 

 1

 5 U.S.C. § 8101 et seq. 
2

aggravation/exacerbation of degenerative disc disease at L4-5 and L5-S1. It paid compensation 

benefits for total disability on the supplemental rolls beginning July 16, 2010. 

To determine whether appellant could return to work, on April 14, 2011 OWCP referred 

appellant to Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, for a second opinion 

examination. Dr. Draper provided a report dated April 27, 2011 in which he diagnosed lumbar 

strain and degenerative lumbar disc disease at L4-5 and L5-S1. He noted that the degenerative 

disc disease at L4-5 and L5-S1 was evident on a June 9, 2005 magnetic resonance imaging 

(MRI) scan study. Dr. Draper advised that appellant’s employment-related aggravation of 

degenerative disc disease “would be a permanent aggravation with herniated discs at L4-5,” but 

found that appellant could work limited duty lifting not more than 50 pounds occasionally and 25 

pounds frequently. He further determined that appellant could walk and stand combined for six 

hours a day and sit for six hours a day. 

Based on Dr. Draper’s report, on May 2, 2012 OWCP referred appellant to a 

rehabilitation counselor for vocational rehabilitation. 

On March 2, 2013 the employing establishment offered appellant a position as a modified 

city letter carrier. The position necessitated walking six to eight hours per day. On April 11, 

2013 the rehabilitation counselor advised the employing establishment that the walking 

requirement exceeded his work restrictions. 

In a March 8, 2013 form report, Dr. James M. Weiss, an attending Board-certified 

orthopedic surgeon, diagnosed radiculitis and checked a box marked “yes” that the condition was 

caused or aggravated by employment. He advised that appellant was “unable to work 

indefinitely.” 

On June 3, 2013 the employing establishment offered appellant a position as a modified 

city letter carrier lifting up to 50 pounds occasionally but no more than 25 pounds frequently for 

two hours per day, walking four to six hours per day, bending and stooping four to six hours per 

day, and performing fine manipulation for four to six hours per day. 

By letter dated June 10, 2013, the rehabilitation counselor advised appellant that the 

employing establishment had offered him a position and expected him to start work on 

June 19, 2013. She requested immediate contact to assist appellant with the return to work 

process. 

On June 18, 2013 OWCP notified appellant that the offered position was suitable and 

provided 30 days to accept the position or provide reasons for his refusal. It informed him that 

an employee who refused an offer of suitable work without cause was not entitled to 

compensation. 

On June 18, 2013 appellant accepted the offered position. He attached a notation from 

Dr. Weiss on the prior job offer of March 2, 2013 that he was disabled from employment. 

By letter dated June 26, 2013, the employing establishment informed OWCP that 

appellant had accepted the offered position on June 18, 2013 and noted that the work was 

“available effective immediately.” 
3

In a report dated August 6, 2013, Dr. Weiss related that he had treated appellant 

beginning in 2004 for a back condition. He indicated that appellant had worked limited duty at 

the time of his July 15, 2010 employment injury. On examination Dr. Weiss found no weakness 

but a positive Tinel’s sign of the lumbar spine and a positive straight leg test. He advised that 

appellant was totally disabled from employment. 

On February 5, 2014 OWCP noted that appellant had not responded to the rehabilitation 

counselor’s June 2013 letter. It placed vocational rehabilitation in interrupted status. 

By decision dated February 6, 2014, OWCP terminated appellant’s compensation and 

entitlement to a schedule award effective February 9, 2014 as he refused an offer of suitable 

work under section 8106(c). It found that the opinion of Dr. Draper represented the weight of 

the evidence and established that the offered position was suitable. OWCP further noted that 

appellant did not report to work after accepting the June 13, 2013 job offer. 

On April 22, 2014 appellant requested reconsideration. 

In a July 8, 2014 form report, Dr. Weiss diagnosed a history of low back pain and 

radiculitis, checked “yes” that the condition was work related, and found that appellant was 

totally disabled. 

By decision dated July 14, 2014, OWCP denied modification of its February 6, 2014 

decision. 

On July 28, 2014 appellant again requested reconsideration. In form reports dated 

September 23, 2014, Dr. Weiss advised that he was unable to work. 

In a decision dated October 23, 2014, OWCP denied modification of its July 14, 2014 

decision. It found that appellant had not submitted sufficient medical evidence to overcome the 

weight of Dr. Draper’s opinion. 

On December 18, 2014 Dr. Weiss described his treatment of appellant for a July 15, 2010 

work injury. He noted that appellant had reduced motion and a positive straight leg raise on 

examination, with multiple positive Tinel’s signs in the lumbar spine. Dr. Weiss reviewed 

Dr. Draper’s April 27, 2011 report and disagreed with his work restrictions. He opined that the 

June 3, 2013 job offer was not suitable for appellant and that he was currently disabled from 

employment. 

By decision dated March 9, 2015, OWCP denied modification of its October 23, 2014 

decision. It determined that the medical evidence from Dr. Weiss was not rationalized and was 

thus insufficient to counter the opinion of Dr. Draper and establish that appellant was unable to 

perform the duties of the June 3, 2013 position. 

On April 21, 2015 appellant, through his representative, requested reconsideration.2

 The 

representative contended that the December 18, 2014 report from Dr. Weiss was sufficient to 

 2

 In a report dated April 21, 2015, Dr. Weiss discussed appellant’s work history. He provided restrictions on 

walking, bending, lifting, and carrying. 
4

show that the offered position was not suitable. He also asserted that Dr. Draper relied upon an 

MRI scan that predated the work injury and that his opinion was stale. 

In a statement dated April 21, 2015, appellant maintained the offered position required 

walking for four to six hours per day but did not list the standing requirement. He noted that 

Dr. Draper limited him to six hours a day of combined walking and standing. Appellant advised 

that the duties of the position required all standing. He indicated that on September 24, 2013 he 

received a return to work notice and submitted a statement accepting the position. Appellant did 

not hear anything further from OWCP or the employing establishment until the termination of 

his compensation. 

By decision dated August 7, 2015, OWCP denied modification of its March 9, 2015 

decision. It determined that the offered position was within appellant’s work restrictions as it did 

not require over four to six hours per day of casing and carrying mail. 

On appeal appellant’s representative contends that the June 3, 2013 offered position was 

not within his restrictions as it did not indicate the standing requirement. He further asserts that 

Dr. Draper’s report was stale, citing as support June E. Briand3

 and John E. Perez.

4

 The 

representative also notes that appellant accepted the position. He contends that Dr. Weiss 

provided rationalized medical evidence sufficient to create a conflict with the opinion of 

Dr. Draper. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.5 It terminated appellant’s compensation under section 8106(c)(2) of 

FECA,6

 which provides that a partially 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.7

 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.8 Section 8106(c) will be narrowly construed as it serves as a penalty provision, 

 3

 Docket No. 02-1489 (issued November 8, 2002) (finding that OWCP improperly relied upon a report that was 

over 19 months old at the time of the offer in terminating a claimant’s compensation for refusal of suitable work). 

4

 Docket No. 99-0816 (issued February 1, 2000) (finding that OWCP improperly based its termination of a 

claimant’s compensation for refusing suitable work on the 1994 restrictions of a second opinion examiner based on a 

1992 examination when the job was offered in April 1996). 

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

6

 5 U.S.C. § 8101 et seq. 

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

8 Ronald M. Jones, 52 ECAB 190 (2000). 
5

which may bar an employee’s entitlement to compensation based on a refusal to accept a suitable 

offer of employment.9

Section 10.517(a) of FECA’s implementing regulations provide that an employee who 

refuses or neglects to work after suitable work has been offered to or secured by him, has the 

burden of showing that such refusal or failure to work was reasonable or justified.10 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.11

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 for the specific job requirements of the position.12 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.13

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.14 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.15 OWCP 

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

evidence of inability to do the work.16 

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of degenerative disc disease at 

L4-5 and L5-S1 due to a July 15, 2010 employment injury. It paid him compensation for total 

disability. On June 3, 2013 the employing establishment offered appellant a position as a 

modified city letter carrier. OWCP terminated his compensation under section 8106(c) effective 

February 9, 2014 after finding that he had refused the June 3, 2013 offer of suitable employment. 

It determined that the April 27, 2011 opinion of Dr. Draper, who provided a second opinion 

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

10 20 C.F.R. § 10.517(a); see supra note 8. 

11 Id. at § 10.516. 

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

13 Id. 

14 20 C.F.R. § 10.517(a). 

15 Gayle Harris, 52 ECAB 319 (2001). 

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

Chapter 2.814.5(a)(3) (June 2013). 
6

examination, constituted the weight of the evidence and established that appellant had the 

capacity to perform the duties of the offered position. 

The Board finds that OWCP improperly relied upon Dr. Draper’s report as it was not a 

reasonably current medical opinion and, therefore, did not form a valid basis for determining that 

the offered position was suitable. OWCP must consider an employee’s current physical 

limitations when determining the suitability of a position. Dr. Draper examined appellant on 

April 27, 2011, more than two years before OWCP issued its June 18, 2013 letter finding the 

position suitable and almost three years prior to its February 6, 2014 termination of his wage-loss 

compensation.17 The Board has recognized the importance of medical evidence being 

contemporaneous with a job offer to ensure that a claimant is medically capable of returning to 

work.18 As the medical evaluation relied upon by OWCP to find the position suitable was not 

reasonably current, OWCP has not met its burden of proof to terminate appellant’s compensation 

for refusing suitable work.19 

Furthermore, Dr. Weiss, appellant’s attending physician, found in a March 8, 2013 form 

report that appellant was disabled from employment. In another report dated August 6, 2013, he 

provided positive objective findings on examination and further opined that appellant was unable 

to work. As a penalty provision, section 8106(c) should be narrowly construed. The record does 

not contain a medical report contemporaneous with OWCP’s February 6, 2014 termination of 

appellant’s compensation for refusal of suitable work supporting that the offered position was 

within his work restrictions. The Board therefore finds that OWCP has not met its burden of 

proof to terminate his compensation as a sanction for failure to accept an offer of suitable work. 

CONCLUSION 

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

February 9, 2014 as he refused an offer of suitable work under 5 U.S.C. § 8106(c). 

 17 See S.H., Docket No. 10-1531 (issued April 13, 2011) (finding that a report more than two years old at the time 

of OWCP’s suitability determination and almost three years old at the time it terminated a claimant’s compensation 

for refusing suitable work was stale and thus insufficient to meet OWCP’s burden of proof). 

18 See Ruth Churchwell, Docket No. 02-0792 (issued October 17, 2002). 

19 See A.G., Docket No. 08-2265 (issued September 28, 2009) (finding that the report from the impartial medical 

examiner was stale as she examined the claimant 23 months prior to the job offer). 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 7 and March 9, 2015 decisions of the 

Office of Workers’ Compensation Programs are reversed. 

Issued: January 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board