United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

U.S. POSTAL SERVICE, BRONX 

TRANSPORTATION & NETWORKS, 

Bronx, NY, Employer 

__________________________________________ 

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Docket No. 15-1889 

Issued: July 11, 2016 

Appearances: Case Submitted on the Record

Paul S. Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 14, 2015 appellant, through counsel, filed a timely appeal of an August 21, 

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 to consider the merits of the case. 

ISSUE 

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

October 24, 2014, for refusing an offer of suitable work pursuant to 5 U.S.C. § 8106(c). 

On appeal counsel argues that OWCP erred in terminating appellant’s compensation as 

the offered position was unsuitable. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 29, 2009 appellant, then a 57-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that on November 28, 2009 he sustained injuries to 

his upper right leg and knee and left lower leg as the result of stepping off a sidewalk to help a 

driver back up. He stopped work on November 29, 2009, but returned to regular work on 

August 31, 2010. 

OWCP accepted the claim for right thigh contusion, right lateral collateral ligament and 

knee sprain, right knee contusion, and other and unspecified right medial meniscus derangement, 

and authorized right knee arthroscopic surgeries, which were performed on June 18, 2010 and 

December 9, 2011. By decision dated July 13, 2012, it accepted appellant’s claim for a 

recurrence of disability beginning October 5, 2011.2 

Appellant continued to submit frequent progress notes from his treating physician, 

Dr. Stuart T. Styles, Board-certified in orthopedic surgery, who continued to report that appellant 

was unable to return to work. 

On August 8, 2012 OWCP referred appellant to Dr. Leon Sultan, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine appellant’s disability status. 

In a September 9, 2012 report, Dr. Sultan, based upon a review of the statement of 

accepted facts, medical records and physical examination, concluded that appellant’s accepted 

conditions had resolved. He noted that the accepted conditions were right knee and thigh 

contusions, right knee sprain, and right knee derangement. Dr. Sultan opined that these 

conditions had resolved by the June 2010 and December 2011 surgeries. He also opined that 

appellant was capable of performing the duties of his date-of-injury job. 

In a report dated September 24, 2012, Dr. Styles reported that appellant had chronic right 

knee pain and developed quadriceps atrophy. He opined that appellant was disabled from his 

date-of-injury job, but was capable of performing a light-duty or sedentary position. 

In a January 2, 2013 report, Dr. Styles reported that appellant had intermittent difficulties 

with his right knee and opined that appellant continued to be disabled from work. 

In a March 11, 2013 progress report, Dr. Styles released appellant to return to work with 

restrictions including no lifting or pulling more than 80 pounds. 

The record reflects that appellant returned to full duty on May 6, 2013. 

On June 27, 2013 appellant filed a claim for a recurrence of disability (Form CA-2a) 

beginning May 9, 2013. He noted that he returned to two and one-half days of orientation on 

May 6, 2013 and then to full-duty work on May 8, 2013. On May 9, 2013 appellant’s manager 

 2

 A Notification of Personnel Action (Form SF-50) dated August 27, 2014 reported that the Office of Personnel 

Management (OPM) had approved appellant’s disability retirement and that his retirement was effective 

August 14, 2014. 
3

informed him that no work was available within the restrictions noted on a duty status report 

(Form CA-17). 

In a July 15, 2013 report, Dr. Styles noted that appellant had been released to return to 

modified duty, but instead had returned to full-duty work. He indicated that at the time he 

released appellant to return to work he had clearly noted appellant’s restrictions, which did not 

include moving containers weighing hundreds of pounds or using ladders. Dr. Styles opined that 

appellant was disabled from performing full-duty work, but was capable of working with 

restrictions. 

By decision dated August 16, 2013, OWCP accepted appellant’s recurrence claim as the 

employing establishment failed to provide him a job offer within the restrictions set by his 

physician. 

In a January 9, 2014 letter, OWCP referred appellant for an impartial medical 

examination to Dr. George Burak, a Board-certified orthopedic surgeon, due to an unresolved 

conflict in the medical opinion evidence between Drs. Sultan and Styles on the issues of 

diagnoses, necessity for surgery, continuing disability, and causal relationship between his 

current condition and the accepted work-related injury. 

By letter dated January 22, 2014, OWCP placed appellant on the periodic rolls for 

temporary total disability, effective January 12, 2014. 

In a report dated February 11, 2014, Dr. Burak, based upon review of a statement of 

accepted facts, medical history, and medical evidence, concluded that appellant had a mild 

disability due to the accepted right knee employment injury. A physical examination revealed 

meniscal irritations, mild crepitus, a normal gait pattern, no instability, mild grinding at extremes 

of motion, and no atrophy. Range of motion using a goniometer included 140 degrees 

contralateral knee, 135 degrees right knee range of motion, and 30 degrees of flexion at the varus 

and valgus. Based on his examination, Dr. Burak found no evidence supporting Dr. Styles 

diagnosis of quadriceps atrophy. He concluded that appellant was capable of working full time 

with restrictions which included avoiding excessive kneeling, climbing, and squatting, and no 

pushing objects weighing more than 50 pounds on a regular basis. 

In a June 25, 2014 supplemental report, Dr. Burak corrected several errors in his prior 

report and noted that his opinion remained unchanged with respect to appellant’s work 

restrictions. 

On July 29, 2014 Dr. Burak completed a work capacity evaluation form (Form OWCP5c) containing work restrictions for appellant, which were permanent. He indicated that 

appellant was capable of working eight hours per day with restrictions including eight hours per 

day of sitting, reaching above the shoulder, and twisting; up to four hours per day of walking, 

standing, bending/stooping, and pushing, pulling, and lifting up to 50 pounds; up to two hours of 

operating a motor vehicle at work and operating a motor vehicle to and from work; and no 

squatting, kneeling, or climbing. 

On August 12, 2014 the employing establishment offered appellant the modified position 

of garage man. The job was located at the Manhattan Vehicle Maintenance Facility with 
4

nonscheduled days off Saturday and Sunday. The job description listed duties to be performed 

up to eight hours per day included lubricating trucks while trucks are on a lift; change filter 

cleaners and crankcase oil and cleaning case conforming with vehicle mileage and instructions; 

making necessary repairs and changing tires while trucks are on a lift; steam cleaning and 

washing trucks; assisting in performing automotive repairs; oils and fuels trucks; cleans garage, 

swing room, garage office, and washroom when assigned; performs other duties as assigned; and 

follows established procedures, safety precautions, and safe work methods while performing job 

duties. The work restrictions for the position included sitting up to eight hours per day; up to 

four hours per day of walking, standing, bending, and stooping; up to two hours per day of 

operating a motor vehicle at work and operating a motor vehicle to and from work; no climbing, 

squatting, or kneeling; and up to four hours per day of lifting, pushing, and pulling up to 50 

pounds. 

In a letter dated August 28, 2014, OWCP advised appellant of its determination that the 

garage man position offered by the employing establishment on August 12, 2014 was suitable. It 

indicated that the position was based upon the opinion of Dr. Burak, an impartial medical 

examiner, who opined that he was capable of working eight hours per day with restrictions. The 

employing establishment confirmed that the position remained available to appellant. OWCP 

instructed him that he must, within 30 days, either accept the position or provide a written 

explanation of the reason he did not accept the position or he could lose his right to 

compensation under 5 U.S.C. § 8106(c) of FECA. 

On September 5, 2014 OWCP received an August 27, 2014 letter from appellant to the 

employing establishing declining the August 12, 2014 job offer. Appellant attached a copy of a 

letter from OPM approving his application for disability retirement. He argued that the position 

exceeded the work restrictions set by Dr. Burak, which included no squatting, repetitive 

kneeling, excessive climbing, and excessive pushing of objects weighing more than 50 pounds. 

Appellant also contended that the duties noted in the position were vague as to putting the truck 

on the lift, the weight restrictions for the tires, and that duties numbers 5 and 9 were nonspecific. 

In September 23, 2014 letter, appellant stated that he refused the August 12, 2014 job 

offer and provided his reasons in an August 27, 2014 letter to the employing establishment. He 

informed OWCP that he had been approved for disability retirement by OPM and was separated 

from the employing establishment, effective August 17, 2014. 

In an October 3, 2014 letter, OWCP found that the reasons given by appellant for 

refusing the offered position were invalid. It gave him 15 additional days to accept the position 

or to make arrangements to report to this position. OWCP noted that if appellant did not accept 

the position within 15 days of the date of the letter, his right to compensation for wage loss or a 

schedule award would be terminated pursuant to section 8106 of FECA. It would not consider 

any further reasons for refusal of the offered position. 

By letter dated October 16, 2014, appellant’s counsel wrote that appellant was medically 

and physically unable to accept the August 12, 2014 job offer as the assignment duties were 

inconsistent with his medical restrictions. 
5

By decision dated October 24, 2014, OWCP terminated appellant’s eligibility for wageloss compensation benefits, effective that date, as it found that he had refused an offer of suitable 

work pursuant to 5 U.S.C. § 8106(c). 

In a January 27, 2015 letter, appellant’s counsel requested reconsideration. He contended 

that the offered position was not suitable as it required lifting tires weighing between 92 and 197 

pounds and excessive kneeling is required in order to set the arms to lift the trucks for lubrication 

or changing oil. Counsel indicated that he was submitting the manufacturer’s specification 

sheets. He provided the tire model numbers and weights for the four different size tires used by 

the employing establishment’s light and heavy duty trucks. Counsel stated that appellant’s work 

restrictions supported a more sedentary position. He also contended that the statement of 

accepted facts was inaccurate as OWCP has failed to accept all conditions caused by the 

November 28, 2009 employment injury including a right medial meniscus posterior horn tear, 

partial tears of the posterior cruciate and lateral collateral ligaments, and femoropatellar joint 

cartilage thinning. Counsel argued that Dr. Sultan’s opinion was stale and insufficient as a basis 

for a determination of a conflict at the time of the referral to Dr. Burak. In support of his request, 

appellant submitted a November 16, 2014 medical reports from Dr. Styles. 

On November 6, 2014 Dr. Styles provided a history of appellant’s November 28, 2009 

employment injury and the medical treatment provided. Based upon appellant’s right knee 

condition, he noted that appellant had limitations on kneeling, lifting, long walking, and jumping. 

Dr. Styles opined that working in a garage was not reasonable with appellant’s work restrictions 

and to prevent arthritic changes. He concluded that appellant was capable of performing 

sedentary work and that the job duties of the offered position were outside his work restrictions. 

OWCP subsequently received progress notes from Dr. Styles including a March 31, 2014 

report noting that appellant’s gait had altered and that he complained of shooting pain from the 

knee to the hip. A June 30, 2015 progress note reported right leg radiculopathy due to changes in 

appellant’s gait, which Dr. Styles attributed to the November 28, 2009 employment injury. 

By decision dated August 21, 2015, OWCP denied modification of its prior decision. It 

made findings regarding his arguments on reconsideration. OWCP specifically found that 

neither appellant nor the employing establishment had provided proof that he would have to use 

or lift any of the specified tires that exceeded his weight restrictions. 

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 is not entitled to compensation.3 Once OWCP accepts a claim, it has the burden 

of justifying termination or modification of compensation benefits under section 8106(c) for 

refusing to accept or neglecting to perform suitable work.4

 The Board has recognized that 

 3

 5 U.S.C. § 8106(c)(2). 

4 Howard Y. Miyashiro, 51 ECAB 253 (1999). 
6

section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future 

compensation and, for this reason, will be narrowly construed.5 

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.6

 

According to OWCP’s procedure, a job offer must be in writing and contain a description of the 

duties to be performed and the specific physical requirements of the position.7

 Section 10.516 of 

the Code of Federal Regulations8

 provides 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 showing before a determination is made with respect to termination of 

entitlement to compensation.9

 

ANALYSIS 

OWCP accepted that, as a result of the November 28, 2009 employment injury, appellant 

sustained right thigh contusion, right lateral collateral ligament and knee sprain, right knee 

contusion, and other and unspecified right medial meniscus derangement. It authorized two right 

knee arthroscopic surgeries. Dr. Styles advised that appellant was capable of working with 

restrictions and recommended a sedentary position. Appellant was referred for a second opinion 

evaluation with Dr. Sultan who opined that appellant’s accepted condition had resolved and he 

was capable of performing his date-of-injury job. OWCP found a conflict in the medical opinion 

evidence and referred appellant to Dr. Burak for an impartial medical examination. 

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA. The statute 

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 and resolve the conflict of medical evidence.10 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.11 The Board finds that, due to the 

differing opinions on appellant’s disability and whether the accepted conditions had resolved 

between Dr. Sultan and Dr. Styles, OWCP properly determined that there was a conflict of 

medical evidence. 

 5 H. Adrian Osborne, 48 ECAB 556 (1997). 

6 T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000). 

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a) 

(June 2013). 

8

 20 C.F.R. § 10.516. 

9 See Camillo R. DeArcangelis, 42 ECAB 941 (1991). 

10 5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006). 

11 R.C., 58 ECAB 238 (2006). 
7

In a February 11, 2014 report, Dr. Burak concluded that appellant had a mild disability 

due to the accepted right knee employment injury based on the physical examination findings. 

He also found no evidence supporting a diagnosis of quadriceps atrophy. On July 29, 2014 

Dr. Burak completed a work capacity evaluation form indicating that appellant could work eight 

hours per day with restrictions of up to eight hours of sitting, reaching above the shoulder, and 

twisting; up to four hours per day of walking, standing, bending/stooping, and pushing, pulling, 

and lifting up to 50 pounds; up to two hours of operating a motor vehicle at work and operating a 

motor vehicle to and from work; and no squatting, kneeling, or climbing. The Board finds that 

Dr. Burak’s opinion is entitled to the special weight of the medical evidence accorded an 

impartial medical examiner. Dr. Burak based his opinion on a proper factual background, review 

of the medical evidence, and physical examination and opined that appellant was capable of 

light-duty work. 

On August 12, 2014 the employing establishment provided appellant with a limited-duty 

position as a garage man. The employing establishment listed the duties of the position as 

lubricating trucks while the trucks were on a lift, changing crankcase oil and filter cleaners, 

making necessary repairs and changing tires while trucks are on a lift, steam cleaning and 

washing trucks, assisting with automotive repairs, oiling and fueling trucks, cleaning the garage, 

swing room, garage office and washroom as assigned, and performing other duties as assigned. 

The work restrictions for the position included sitting up to eight hours per day; up to four hours 

per day of walking, standing, bending, and stooping; up to two hours per day of operating a 

motor vehicle at work and operating a motor vehicle to and from work; no climbing, squatting, 

or kneeling; and up to four hours per day of lifting, pushing, and pulling up to 50 pounds. The 

Board finds that the physical requirements of the offered position of garage man fell within 

appellant’s work restrictions. The weight of the medical evidence establishes that he was no 

longer totally disabled from work and had the physical capacity to perform the duties listed in the 

August 12, 2014 job offer. Thus, OWCP properly relied on Dr. Burak’s opinion in finding the 

garage man position suitable. 

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP 

advised appellant on August 28, 2014 that it found the job offer of garage man to be suitable and 

gave him an opportunity to provide reasons for refusing the position within 30 days. It advised 

him in an October 3, 2014 letter that his reason for refusing based on OPM’s acceptance of his 

claim for disability retirement was insufficient12 and that he had 15 additional days to accept the 

offered position. The Board finds that OWCP followed the established procedures prior to the 

termination of compensation pursuant to section 8106(c). 

The Board finds that the position was medically and vocationally suitable and OWCP 

complied with the procedural requirements of section 8106(c). OWCP therefore met its burden 

of proof to terminate appellant’s compensation benefits based on his refusal to accept suitable 

work. 

 12 The Board had long held that electing to retire is not a justifiable reason to refuse an offer of suitable work. 

Robert P. Mitchell, 52 ECAB 116 (2000). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: 

Determining Wage-Earning Capacity, Chapter 2.814.5(c) (June 2013) 
8

Subsequent to terminating appellant’s benefits, OWCP received a November 16, 2014 

medical report from Dr. Styles, who advised that appellant could not perform the offered position 

of garage man as he found the job duties were outside appellant’s work restrictions and could 

cause arthritic changes. It also received progress notes dated March 31 and June 30, 2014 from 

Dr. Styles noting a gait change and right leg radiculopathy due to the gait change, which the 

physician attributed to the November 28, 2009 employment injury. Dr. Styles did not provide 

any explanation supporting his opinion. In addition, Dr. Styles was on one side of the conflict in 

the medical opinion that Dr. Burak resolved, and his report and progress notes are insufficient to 

overcome the special weight accorded the impartial specialist or to create a new medical 

conflict.13

The Board finds that Dr. Burak’s report established that appellant was capable of 

performing the job offered and the position was suitable, and thereby OWCP was justified in its 

October 24, 2014 termination of benefits as he refused an offer of suitable work. 

On appeal appellant’s counsel argues that medical reports from appellant’s treating 

physician clearly establish that the offered position was outside his restrictions. He also argues 

that the referrals to a second opinion physician and to an impartial medical examiner were 

unreasonable. The Board notes, however, that there is no indication of record that any of 

OWCP’s medical referrals were improper and that OWCP has the discretion to have a claimant 

submit to an examination by a physician designated by OWCP as frequently and at the times and 

places as may be reasonably required.14 Counsel also contends that the medical evidence was 

insufficiently rationalized, equivocal, and insufficient to constitute the weight of the medical 

evidence. As discussed above, the Board finds that OWCP properly referred appellant to 

Dr. Burak to resolve the conflict in the medical opinion evidence and that his opinion was well 

rationalized and sufficient to establish that the offered position was suitable. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s monetary compensation 

effective October 24, 2014 on the basis that he refused an offer of suitable work pursuant to 

5 U.S.C. § 8106(c)(2). 

 13 Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000) 

14 J.C., Docket No. 09-609 (issued January 5, 2010); S.B., 58 ECAB 267 (2007); William B. Webb, 56 ECAB 

156 (2004). 
9

ORDER 

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

Compensation Programs dated August 21, 2015 is affirmed. 

Issued: July 11, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board