United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.C., Appellant 

and 

U.S. POSTAL SERVICE, ST. PAUL 

PROCESSING & DISTRIBUTION CENTER, 

St. Paul, MN, Employer 

__________________________________________ 

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Docket No. 16-0484 

Issued: October 18, 2016 

Appearances: Case Submitted on the Record

Aaron B. Aumiller, 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 11, 2016 appellant, through counsel, filed a timely appeal from a July 16, 

2015 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.3

 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. 

3

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

501.3(e)-(f). One hundred and eighty days from July 16, 2015, the date of OWCP’s last decision, was 

January 12, 2016. Since using January 19, 2016, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of mailing is considered the date of filing. The date of 

mailing, January 11, 2016, renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

ISSUE 

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

compensation benefits on September 12, 2014 pursuant to 5 U.S.C. § 8106(c). 

On appeal counsel asserts that appellant was incapable of performing the modified 

assignment due to medical conditions other than the accepted left great toe injury.4

FACTUAL HISTORY 

On August 9, 2010 appellant, a deaf then 50-year-old general expediter, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her left big toe at work that day when it 

became trapped while she was pulling a large bin. She did not stop work. OWCP accepted left 

great toe contusion and expanded the claim to include other acquired deformity of left toe and 

lesion of left plantar nerve. 

Dr. Eugene L. Dela Cruz, a podiatrist, began treating appellant. In an August 25, 2010 

report, he related that appellant’s left big toe pain was improving. He diagnosed improved 

contusion of the first metatarsophalangeal (MTP) of the left foot. Dr. Dela Cruz also noted a 

history of a rotator cuff repair in 1997 and a right carpal tunnel release. He continued to treat 

appellant and on June 30, 2011 performed surgery on her left great toe. Appellant stopped work 

that day and did not return. She began receiving wage-loss compensation on July 16, 2011, and 

was placed on the periodic compensation rolls in March 2012. In a March 5, 2012 decision, 

OWCP denied appellant’s claim for compensation for periods from January 2 through 

July 14, 2011.5

In reports dated April 18, 2012, Dr. Dela Cruz noted that appellant had a hypertrophic 

scar at the surgical site on the left great toe and remained totally disabled. On August 29, 2012 

he reported that appellant had left foot pain resulting from a slip in a hotel in Las Vegas four 

weeks previously. On February 27, 2013 Dr. Dela Cruz advised that appellant had hallux limitus 

of the left foot and due to the accumulation of hypertrophic scar tissue in the area she needed 

physical therapy. He noted that appellant was severely restricted in activities of daily living and 

for potential work. 

In March 2013 OWCP referred appellant to Dr. Douglas Alan Becker, a Board-certified 

orthopedic surgeon, for a second opinion evaluation.6 Appellant did not attend the first 

scheduled appointment with Dr. Becker because the notice had been sent to an incorrect address. 

The appointment was rescheduled. 

 4

 Counsel referenced conditions accepted under OWCP file number xxxxxx358 and xxxxxx389. The instant case 

was adjudicated by OWCP under file number xxxxxx226. 

5

 The record, however, indicates that appellant was paid compensation for this period. 

6

 On March 14, 2013 OWCP suspended appellant’s compensation because she failed to submit a required CA1032 form. She submitted the form on April 15, 2013 and compensation was reinstated retroactively. On July 1, 

2013 OWCP issued a preliminary decision finding appellant at fault in creating a $627.07 overpayment of 

compensation because she had been improperly paid at the augmented rate. In an August 29, 2013 decision, an 

OWCP hearing representative found that appellant’s request for a prerecoupment hearing was untimely. The 

overpayment was finalized on October 4, 2013 and on June 20, 2014 OWCP acknowledged that it had been repaid. 
3

In a July 24, 2013 report, Dr. Becker noted that appellant was examined with a sign 

language interpreter present and that she walked with a limp on the left side. He described 

examination findings of a benign-appearing dorsomedial scar over the left first MTP joint with 

only slight swelling, no erythema or superficial tenderness, and tenderness to deep palpation of 

the MTP joint. Stability was normal and the neurological examination was grossly intact. 

Dr. Becker diagnosed left foot first MTP hallux rigidus. In answer to OWCP questions, he noted 

evidence of preexisting degenerative changes and indicated that the August 9, 2010 work injury 

caused a permanent aggravation of the left foot first MTP hallux rigidus with persistent pain, 

stiffness, and difficulty with prolonged standing activities. Dr. Becker advised that appellant was 

partially disabled and, although she could not return to her regular position, she could work an 

eight-hour workday with limitations of one hour daily of combined walking and standing. 

OWCP determined that a conflict in medical opinion evidence had been created between 

the opinions of Dr. Dela Cruz and Dr. Becker regarding whether appellant was partially or totally 

disabled. 

On September 27, 2013 Dr. Dela Cruz advised that appellant had increased spasm of the 

leg and foot and excruciating left big toe pain. He indicated that she could not perform sedentary 

or light work because the employer did not allow such positions and that appellant could not 

stand for long periods of time. Dr. Dela Cruz recommended additional surgery. 

On October 15, 2013 the employing establishment informed Dr. Dela Cruz that it could 

accommodate sedentary job duties and had work for appellant requiring one hour of standing and 

walking with no running or jumping. The position involved sitting for up to 8 hours with 

intermittent standing and walking for a total of 30 minutes or less. Dr. Dela Cruz was asked to 

respond if appellant could perform the duties described. A check mark on a copy of the letter 

signified “yes,” that appellant could perform the described duties. There was no signature or 

other notation to identify who checked “yes.” 

In correspondence dated December 20, 2013, the employing establishment indicated that 

Dr. Dela Cruz had checked a box marked “yes,” that appellant could perform sedentary duty, but 

that he later advised on December 16, 2013 that appellant could not work until she had a second 

foot procedure. 

The employing establishment forwarded a December 13, 2013 offer for a modified markup clerk position. The job duties were to scan mail with intermittent keying for 2 hours at a time, 

up to 6 hours daily, load and sweep machine for 15 minutes intermittently, and prepare return 

mail for up to 2 hours with sitting for 1.75 hours and standing for .25 hours. The physical 

requirements were sitting for seven hours, standing and walking less than two hours total, and 

fine manipulation, simple grasping, and keying for six to eight hours. Appellant rejected the job 

offer on December 16, 2013, noting that she had a shoulder injury and mild carpal tunnel 

syndrome on the left. Attached was a December 16, 2013 report in which Dr. Dela Cruz advised 

that appellant needed reconstructive fusion surgery, would be unable to work until six to eight 

weeks after the surgery, and also could not perform limited duty due to carpal tunnel and 

shoulder issues. 

On January 22, 2014 OWCP informed appellant that an impartial medical examination 

was scheduled on February 15, 2014 with Dr. Jack Drogt, a Board-certified orthopedic surgeon. 

On January 24, 2013 it ascertained that the offered modified position was still available. 
4

 By letter dated January 24, 2014, OWCP advised appellant that the position offered was 

suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for 

wage loss or a schedule award would be terminated. She was given 30 days to respond.7

 In a March 10, 2014 report, Dr. Drogt indicated that a sign language interpreter was 

present for the examination. He noted his review of the medical evidence and appellant’s report 

of the employment injury and continued complaints of toe pain, sensitivity, and stiffness. 

Examination of the right foot was normal. Examination of the left foot demonstrated a wellhealed scar over the left MTP joint incision. Dr. Drogt advised that appellant was exquisitely 

sensitive to any attempt at motion of the MTP joint which was stable. He opined that the 

examination was consistent with severe hallux rigidus, a degenerative condition of the first MTP 

joint, resulting in painful loss of motion with extreme stiffness that was secondary to the 

August 9, 2010 employment injury. Dr. Drogt indicated that these residuals of the work injury 

were quite disabling, prevented appellant from walking normally, and reduced her walking 

endurance and ability to remain active on her feet. He advised that appellant was totally disabled 

from work as a general expediter and was unable to bear weight in a safe and comfortable 

manner but was capable of working eight hours per day in a clerical, sedentary position until the 

surgery recommended by Dr. Dela Cruz was done. Dr. Drogt concluded that appellant would not 

be at maximum medical improvement until three to six months after the recommended surgery. 

He repeated these recommendations in an attached work capacity evaluation. 

In correspondence to Dr. Drogt dated March 11, 2014, OWCP noted that, although 

Dr. Dela Cruz recommended additional surgery, it had not been scheduled and no request for 

authorization had been received. It asked Dr. Drogt to complete a work capacity evaluation 

(Form 5-c) so that a suitable job offer could be prepared. 

 On April 23, 2014 Dr. Drogt reiterated that appellant was unable to perform the duties of 

a general expediter, but was capable of full-time work in a clerical sedentary position. He 

indicated that he had reviewed the December 13, 2013 job offer for mark-up clerk and, with 

regard to appellant’s left foot injury, she was capable of performing the described duties. In a 

second work capacity evaluation dated April 23, 2014, Dr. Drogt advised that appellant had 

restrictions of one hour of walking and standing, and no bending, stooping, squatting, kneeling, 

or climbing. He reported that the restrictions would apply until there was resolution of 

appellant’s foot condition and, if no further surgery was done, she would be at maximum 

medical improvement. 

 On April 25, 2014 OWCP forwarded Dr. Drogt’s report to the employing establishment 

and asked for a job offer that accommodated his restrictions. 

In a letter dated May 21, 2014, Dr. Dela Cruz advised that he considered appellant’s left 

foot injury permanent, and that she had reached maximum medical improvement. He maintained 

that the job offer did not take into account her permanent restrictions. 

 7

 On March 5, 2014 OWCP informed appellant that her wage-loss compensation was being suspended on 

March 9, 2014 because she did not respond to requests to submit a CA-1032 form. On May 20, 2014 appellant 

informed OWCP that she was married and was entitled to augmented compensation at the 3/4 rate, effective 

January 12, 2014. She was paid retroactive compensation at the augmented rate. 
5

The employing establishment again forwarded appellant an offer for a modified mark-up 

clerk position dated July 2, 2014. The job duties were the same as listed in the December 2013 

job offer. 

 By letter dated July 10, 2014, OWCP advised appellant that the position offered was 

suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for 

wage loss or a schedule award would be terminated. Appellant was given 30 days to respond.8

 In a treatment note dated May 21, 2014, Dr. Dela Cruz described appellant’s condition 

and treatment. He diagnosed progressive osteoarthritis of the first MTP of the left foot and 

hallux rigidus of the left foot. Dr. Heidi M. Dalzell, a Board-certified internist, provided 

treatment notes dated May 2 to July 9, 2014. She noted complaints of lower back pain after 

colonoscopy, chronic neck and back pain, and depression. Dr. Dalzell described a problem list 

of deafness, asthma, shoulder pain and impingement, elbow pain and arthritis, lateral 

epicondylitis of the elbow, Achilles bursitis, contusion of foot, hallux rigidus, hypothyroidism, 

major depressive disorder and depression, and motor vehicle accident. She noted a history of 

rotator cuff repair on the right in 1997, a right carpal tunnel release, and endolymphatic sac 

decompression. Dr. Dalzell described the work injury to appellant’s left foot. Appellant had 

reported that the offered job required lots of typing, mail sorting, and lifting, and appellant did 

not think she could physically perform these duties due to her right shoulder and bilateral carpal 

tunnel conditions. Dr. Dalzell diagnosed deafness, depression, shoulder impingement, carpal 

tunnel syndrome, hallux rigidus, and asthma. 

 By letter dated August 13, 2014, OWCP advised appellant that her reasons for refusing 

the offered position were not valid. Appellant was afforded 15 days to accept the position. She 

did not accept the offer,9 which the employing establishment indicated remained available. 

 In a July 9, 2014 report, received by OWCP on August 19, 2014, Dr. Dalzell advised that, 

in additional to appellant’s foot problems, she had chronic problems with bilateral carpal tunnel 

syndrome and right shoulder problems that would impact her ability to perform regular typing as 

well as repetitive reaching and even light lifting. She opined that appellant could not perform the 

job duties outlined in the July 2, 2014 job offer. 

 An August 6, 2014 physical performance test demonstrated that appellant had limitations 

in stair climbing, kneeling, repeated bending, walking, and standing. These included pain, 

demonstration of pain behaviors, decreased motion, decreased strength, balance, and slow pace. 

Regarding right upper extremity coordination, appellant demonstrated pain, pain behaviors, 

decreased motion, and slow pace. The testing therapist reported that appellant demonstrated 

frequent pain behaviors and limited ability to complete tasks throughout the testing. The 

therapist concluded that appellant’s tested physical capacities fell below the sedentary work level 

due to her perception of pain tolerance rather than ability to perform at her physical maximum. 

 8

 On March 5, 2014 OWCP informed appellant that her wage-loss compensation was being suspended on 

March 9, 2014 because she did not respond to requests to submit a CA-1032 form. On May 20, 2014 appellant 

informed OWCP that she was married and was entitled to augmented compensation at the 3/4 rate, effective 

January 12, 2014. She was paid retroactive compensation at the augmented rate. 

9

 Appellant formally rejected the offer on July 11, 2014. 
6

The therapist concluded that appellant met most of the requirements for sedentary work, except 

for use of the right upper extremity, and therefore did not appear capable of employment at that 

time. 

In an August 18, 2014 treatment note, Dr. Dalzell reiterated appellant’s symptoms. She 

recommended pain management. On August 29, 2014 Dr. Dalzell noted that Dr. Dela Cruz had 

moved out of state and that she would be leaving her practice soon. She recommended that 

appellant not return to work until after she was seen by a replacement podiatrist. Dr. Dalzell also 

noted her review of the physical performance test which detailed appellant’s capabilities. 

On September 12, 2014 the employing establishment informed OWCP that the offered 

position was a permanent job and that appellant continued to be a no-show. 

By separate decision dated September 12, 2014, OWCP terminated appellant’s wage-loss 

compensation because she refused an offer of suitable work. It found that the weight of medical 

evidence rested with the opinion of Dr. Drogt who provided an impartial medical evaluation. 

Appellant timely requested a hearing. 

In a September 24, 2014 report, Dr. Mindy L. Benton, a podiatrist, noted appellant’s 

complaint of great toe pain, decreased toe motion, and Dr. Dela Cruz’s surgery recommendation. 

Physical examination of the left foot demonstrated palpatory pain at MTP head with decreased 

MTP joint motion. In a November 22, 2014 report, Dr. Ryan M. McCarthy, a podiatrist, noted 

appellant’s past medical history regarding hallux rigidus and her complaint of left big toe pain. 

He noted palpatory pain and decreased range of motion on toe examination and recommended 

physical therapy to increase range of motion. 

At the hearing, held on May 5, 2015, counsel asserted that OWCP did not sufficiently 

develop appellant’s right upper extremity condition, which had been accepted under OWCP File 

No. xxxxxx583, prior to terminating her wage-loss compensation. Appellant testified that she 

was receiving no medical treatment for her upper extremity conditions, but had residual 

symptoms, and that her left toe surgery had not been scheduled. 

Subsequent to the hearing, appellant submitted a November 3, 2014 report in which 

Dr. Laura O. Suurmeyer, a Board-certified internist, noted that she performed a preoperative 

examination. Dr. Suurmeyer indicated that appellant was not prepared to have surgery because 

there was a question of authorization and she had no private insurance. She commented that she 

agreed with appellant’s plan to work with an attorney to settle the matter of surgery. In a 

November 19, 2014 report, Dr. Benton noted discussing appellant’s options regarding the hallux 

limitus of the left foot. She advised that appellant’s foot appeared nonacute and that she was on 

narcotic pain medication for neck pain. 

On June 4, 2015 Nancy Schmitz, with health and resource management at the employing 

establishment, provided comments on the hearing transcript. She noted that appellant had never 

reported that she injured her foot when she slipped in a hotel room on July 29, 2012, maintaining 

that this would be a new injury. Ms. Schmitz advised that the modified position did not require 

typing, only occasional key strokes that could be done with one finger from either hand and that 

no mail sorting was required, only taking a piece of mail at waist height from a tub/tray, placing 

it under a scanner, placing a label on the mail, and then placing it in another tub/tray. 
7

By decision dated July 16, 2015, an OWCP hearing representative affirmed the 

September 12, 2014 decision. She found the weight of the medical opinion rested with Dr. Drogt 

who provided an impartial medical evaluation. The hearing representative explained that, 

although Dr. Drogt advised that appellant continued to have residuals of the August 9, 2010 toe 

injury, she could work eight hours daily in a sedentary position. She found that, while 

Dr. Dalzell related that appellant could not perform the modified assignment because it did not 

take her bilateral wrist and shoulder condition into consideration, Dr. Dalzell merely reported 

appellant’s opinion that she could not perform the job duties and her description of the 

requirements of the offered position was inaccurate and, moreover, Dr. Dalzell provided no 

objective testing or results of physical examination to support her conclusion. 

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.”10 

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

suitable work or neglecting to perform suitable work.11 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.12 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.13 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.14 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.15 

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.16 

Section 8123(a) of FECA provides that, 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.17 The implementing regulation 

 10 5 U.S.C. § 8106(c). 

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

12 20 C.F.R. § 10.517(a). 

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

818 (1992). 

14 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004). 

15 Gayle Harris, 52 ECAB 319 (2001). 

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

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

17 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 
8

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination, and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.18 When 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.19 

ANALYSIS 

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

modification of compensation benefits.20 This includes cases where OWCP terminates 

compensation under section 8106(c) of FECA for refusal of suitable work.21 Section 8106(c) is a 

penalty provision and shall be narrowly construed.22 

The Board finds that OWCP met its burden of proof to terminate wage-loss compensation 

on September 12, 2014 as appellant had refused to accept an offer of suitable work. OWCP 

determined that a conflict in medical evidence had been created between Dr. Dela Cruz, an 

attending podiatrist, and Dr. Becker, an OWCP referral Board-certified orthopedic surgeon, 

regarding appellant’s work abilities and referred her to Dr. Drogt for an impartial evaluation. It 

found the weight of the medical evidence rested with the opinion of Dr. Drogt who provided an 

impartial medical evaluation regarding the work duties appellant could perform, based on the 

accepted left great toe contusion and other acquired deformity of left toe and lesion of left plantar 

nerve. 

In his comprehensive March 10, 2014 report, Dr. Drogt noted his review of the medical 

evidence and appellant’s report of the employment injury and continued complaints of toe pain, 

sensitivity, and stiffness. He described physical examination findings. Dr. Drogt related that 

appellant was exquisitely sensitive to any attempt at motion of the MTP joint of the left foot, 

which was stable. He diagnosed severe hallux rigidus, a degenerative condition of the first MTP 

joint and advised that this resulted in painful loss of motion with extreme stiffness that was 

secondary to the August 9, 2010 employment injury. Dr. Drogt indicated that these residuals of 

the work injury were quite disabling, prevented appellant from walking normally, and reduced 

her walking endurance and ability to remain active on her feet. He advised that she could not 

work as a general expediter, but was capable of working eight hours per day in a clerical, 

sedentary position. On April 23, 2014 Dr. Drogt advised that appellant had restrictions of one 

hour of walking and standing, and no bending, stooping, squatting, kneeling, or climbing. He 

reported that the restrictions would apply until there was resolution of appellant’s foot condition 

and, if no further surgery was done, she would be at maximum medical improvement. 

 18 20 C.F.R. § 10.321. 

19 V.G., 59 ECAB 635 (2008). 

20 Supra note 12. 

21 Y.A., 59 ECAB 701 (2008). 

22 Stephen A. Pasquale, 57 ECAB 396 (2006). 
9

The modified position offered to appellant included duties of scanning mail with 

intermittent keying for 2 hours at a time, up to 6 hours daily, loading and sweeping machines for 

15 minutes intermittently, and preparing return mail for up to 2 hours with sitting for 1.75 hours 

and standing for .25 hours. The physical requirements were sitting for seven hours, standing and 

walking less than two hours total, and fine manipulation, simple grasping, and keying for six to 

eight hours. These were within Dr. Drogt’s restrictions. 

As noted above, in situations where there are 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 on 

a proper factual background, must be given special weight.23

While Dr. Dalzell noted appellant’s report that the job duties involved a lot of typing, 

mail sorting, and lifting and that she could not perform repetitive reaching or even light lifting, 

he expressed no knowledge of the duties of the actual job offer for the sedentary position which 

only required intermittent keying and no lifting. Thus, Dr. Dalzell’s reports are insufficient to 

establish that appellant was physically unable to perform the duties of the offered position.24 

The Board finds that OWCP properly relied on Dr. Drogt’s comprehensive, wellrationalized opinion that appellant could perform the suitable work position offered by the 

employing establishment. Accordingly, the Board finds appellant’s compensation benefits were 

properly terminated.25

There is also no evidence of a procedural defect in this case as OWCP provided appellant 

with proper notice of termination. She was offered a suitable position by the employing 

establishment which she abandoned after working several days. Thus, under section 8106(c) of 

FECA, OWCP met its burden of proof to terminate appellant’s wage-loss compensation on 

September 12, 2014 because she refused an offer of suitable work.26

The burden thereafter shifted to appellant to show that her refusal was justified.27 

Appellant submitted medical evidence after the termination from Dr. Benton, Dr. McCarthy, and 

Dr. Suurmeyer. None of these physicians, however, provided a narrative opinion discussing 

specific work restrictions or appellant’s ability to perform the duties of the offered position and 

are, therefore, insufficient to meet appellant’s burden of proof.28

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. 

 23 V.G., supra note 19. 

24 See W.B., Docket No. 11-239 (issued January 27, 2012). 

25 V.G., supra note 19. 

26 Joyce M. Doll, supra note 11. 

27 Gloria Godfrey, 52 ECAB 486 (2001). 

28 E.H., Docket No. 08-1862 (July 8, 2009). 
10

CONCLUSION 

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

compensation benefits on September 12, 2014 pursuant to 5 U.S.C. § 8106(c). 

ORDER 

IT IS HEREBY ORDERED THAT the July 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 18, 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