United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Shelton, CT, Employer 

__________________________________________ 

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Docket No. 14-476 

Issued: September 12, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 27, 2013 appellant filed a timely appeal from a September 5, 2013 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 the case. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s compensation effective 

February 28, 2000, on the grounds that she refused an offer of suitable work. 

FACTUAL HISTORY 

This case has previously been before the Board. In a January 23, 2003 decision, the 

Board affirmed a January 24, 2002 OWCP decision finding that OWCP met its burden of proof 

 1

 5 U.S.C. §§ 8101-8193. 
2

to terminate appellant’s compensation based on her refusal of suitable work.2

 The facts and 

circumstances of the case are set forth in the Board’s prior decision and incorporated herein by 

reference. 

On November 10, 2003 appellant requested reconsideration. She submitted a March 28, 

2003 magnetic resonance imaging (MRI) scan of the cervical spine, which revealed central 

herniation at C6-7 with degenerative changes. A November 10, 2003 report from Dr. Lewis 

noted a history of appellant’s injury and treatment. He diagnosed cervical radiculopathy, 

herniated cervical disc at C6-7, herniated lumbar disc at L5-S1 and lumbar radiculopathy. 

Dr. Lewis noted that both objective and subjective symptoms consistent with lumbar and cervical 

radiculopathy and recommended surgical intervention. In a decision dated April 9, 2004, OWCP 

denied modification of the prior decision. 

In an August 1, 2010 appeal form, appellant requested reconsideration and noted her 

disagreement with the suitable work decision. She disputed that she had failed to report for 

work. Appellant asserted that she worked in a limited-duty capacity and never failed to report to 

work. She filed a grievance against the employing establishment and, in a July 22, 1999 

decision, she was instructed to remain on limited duty for four hours a day as directed by her 

physician. Appellant was offered a job on December 21, 1999 and refused the position on 

January 7, 2000 on the grounds that it was not tailored to her physical needs or meet her medical 

restrictions. She noted that the job offer was based on the restrictions of Dr. Kramer, an OWCP 

physician, who found that she could work four hours a day with restrictions of no twisting, 

squatting, kneeling or climbing. Appellant contended that the job offer was not suitable because 

the letter carrier duties consisted of twisting, squatting, kneeling and climbing numerous times a 

day. She noted that in a separate claim, number xxxxxx596, she was referred by OWCP on 

October 15, 2009 to Dr. Balazs B. Somogyi, a Board-certified orthopedic surgeon, who found 

that she developed moderate disability related to the cervical and lumbosacral segment, which 

was related to the initial injury. Appellant stated that the work capacity evaluation found that she 

could work four hours a day limited duty and therefore the job offer of 2000 was not suitable or 

within her medical restrictions. 

Appellant submitted a copy of a November 9, 1999 report from Dr. Kramer, the referee 

physician, the job offer dated December 21, 1999, reports from Dr. Lewis dated November 22, 

1999 to March 2, 2000 and duty status reports from Dr. Lewis dated January 3 to February 1, 

2000, all previously of record. She submitted duty status reports from Dr. Lewis dated July 25, 

 2

 Docket No. 02-1023 (issued January 23, 2003). On February 7, 1994 appellant, a letter carrier, was injured 

when she slipped on ice. OWCP accepted the claim for concussion and contusions of the cervical and lumbar spine. 

Appellant eventually returned to light duty four hours per day. OWCP determined that a conflict of medical opinion 

existed between Dr. William S. Lewis, a Board-certified orthopedist, her treating physician, who indicated that she 

could work light duty four hours per day, and Dr. Alan H. Goodman, a Board-certified orthopedist, an OWCP 

referral physician, who determined that she had no residuals of the accepted conditions and could work full time. 

Appellant was referred to Dr. Kenneth M. Kramer, a Board-certified orthopedist, to resolve the conflict. In an 

October 5, 1999 report, Dr. Kramer found that she could work four hours per day within certain restrictions. The 

employing establishment offered appellant a modified light-duty position on December 21, 1999 conforming to 

Dr. Kramer’s restrictions. Appellant declined the December 21, 1999 job offer. After providing her required 

procedural notices that the reasons for her refusal of the offered position were not justified, OWCP, on February 28, 

2000 terminated her compensation for refusing suitable work. 
3

2005 to November 7, 2008.3

 Dr. Lewis noted clinical findings of herniated nucleus pulposus of 

the cervical spine/contusion of the back and enthesopathy of the hip. He advised that appellant 

could return to work for four hours daily within specified restrictions. Appellant also submitted 

return to work slips from Dr. Lewis dated November 7, 2005 to September 10, 2007. Dr. Lewis 

diagnosed C1-4 level spinal cord injury unspecified, contusion of the back, concussion and 

enthesopathy of the hip region. He found that she could return to work with restrictions of no 

lifting over 10 pounds, no standing or walking, no packing or driving a mail route and she could 

only work four hours a day. Appellant submitted the October 19, 2009 report from 

Dr. Somogyi,4

 who diagnosed a history of cervical radiculopathy, chronic cervical syndrome, a 

history of lumbar radiculopathy, chronic low back syndrome and MRI scan changes suggestive 

of cervical and lumbar herniated discs. Dr. Somogyi opined that her diagnosis of cervical and 

lumbar radiculopathies were the result of the reported work injury in 1994. As a result of the 

1994 injury, appellant developed moderate disability related to the cervical and lumbar segments 

that continued to be present. 

In a decision dated September 5, 2013, OWCP denied modification of the prior decision. 

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.5 An employee who refuses or neglects to 

work after suitable work has been offered or secured for him or her has the burden to show that 

this refusal or failure to work was reasonable or justified.6

ANALYSIS 

The Board previously affirmed OWCP’s February 28, 2000 termination of appellant’s 

compensation under section 8106(c) due to her refusal of suitable work. Thus, in the current 

appeal, it is appellant’s burden of proof to establish that her refusal to accept the offered 

modified-duty position was justified. The Board finds that she has not met her burden of proof 

to establish that her refusal of suitable work was justified. 

Following the Board’s January 23, 2003 decision, appellant requested reconsideration. In 

the August 1, 2010 statement, she disagreed with the finding that she refused suitable work. 

Appellant asserted that she never failed to report to work. She contends that the job offer was 

not suitable because the letter carrier duties in the job offer consist of twisting, squatting, 

kneeling and climbing numerous times a day. Appellant noted that, in a separate claim number 

xxxxxx596, she was referred to Dr. Somogyi, an OWCP physician, on October 15, 2009 who 

found moderate disability related to the initial work injury. She indicated that a work capacity 

 3

 The November 7, 2008 duty status report was cosigned by a Dr. Patrick Matraramo. 

4

 Claim number xxxxxx596 is not presently before the Board. 

5

 5 U.S.C. § 8106(c)(2). 

6

 20 C.F.R. § 10.517(a). 
4

evaluation found that she could work four hours a day limited duty and therefore the job offer of 

2000 was not suitable and not within her medical restrictions. However, the Board notes that it 

previously considered similar assertions and that appellant, on reconsideration, has not otherwise 

submitted evidence establishing that she did not refuse suitable work. As noted in the prior 

appeal, appellant was offered a job on December 21, 1999 and refused the position and the Board 

found such refusal unjustified. These assertions by her do not show that her refusal of the 

offered job was justified at the time that OWCP terminated monetary compensation on 

February 28, 2000. 

Appellant submitted duty status reports from Dr. Lewis dated July 25, 2005 to 

November 7, 2008 who noted findings and work restrictions.7

 However, Dr. Lewis did not 

specifically address her ability to perform the offered position at the time OWCP terminated 

monetary benefits on February 28, 2000. Furthermore, he was on one side of a conflict that was 

resolved by Dr. Kramer.8 Therefore, these reports do establish that appellant’s refusal of the 

offered position was justified. 

Appellant submitted an October 19, 2009 report from Dr. Somogyi, an OWCP referral 

physician, who had examined appellant in another claim. Dr. Somogyi diagnosed history of 

cervical radiculopathy, chronic cervical syndrome, history of lumbar radiculopathy, chronic low 

back syndrome and MRI scan changes suggestive of cervical and lumbar herniated discs. He 

opined that appellant’s cervical or lumbar radiculopathies were due to her 1994 reported work 

injury and caused moderate disability that continued. This report is insufficient to establish that 

the position offered to her on December 21, 1999 was not medically suitable. Dr. Somogyi did 

not address the suitability of the offered position or otherwise explain how appellant’s medical 

conditions prevented her return to work in the modified position by the time OWCP terminated 

her compensation on February 28, 2000. The other medical evidence submitted by appellant on 

reconsideration was duplicative of evidence previously of record. She has not explained how 

such evidence establishes that her refusal of the offered position was justified. 

The Board accordingly finds that the evidence submitted is not sufficient to meet 

appellant’s burden of proof to establish that her refusal to accept the suitable work was justified. 

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 that appellant has not established that her refusal of suitable work was 

justified. 

 7

 Appellant also submitted reports from Dr. Lewis that were previously considered by the Board. 

8 See Jaja K. Asaramo, 55 ECAB 200 (2004) (submitting a report from a physician who was on one side of a 

medical conflict that an impartial specialist resolved is, generally, insufficient to overcome the weight accorded to 

the report of the impartial medical examiner or to create a new conflict). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 12, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board