United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Allen Park, MI, Employer 

__________________________________________ 

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Docket No. 17-0410 

Issued: June 20, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 14, 2016 appellant filed a timely appeal from a June 21, 2016 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 properly terminated appellant’s compensation benefits, 

effective June 21, 2016, pursuant to 5 U.S.C. § 8106(c)(2). 

FACTUAL HISTORY 

OWCP accepted that on or before January 24, 2013 appellant, then a 55-year-old letter 

carrier, sustained an aggravation of bilateral chondromalacia of the patella. In an April 30, 2013 

report, Dr. Mark B. Wein, an attending osteopath Board-certified in family practice, noted 

 1

 5 U.S.C. § 8101 et seq. 
2

treating appellant for bilateral chondromalacia of the patella since January 2006. He explained 

that chondromalacia was caused “by abnormal tracking of the patella over the femur,” causing a 

“softening of the cartilage underside, resulting in chronic inflammation, erosion, degeneration, 

and eventual osteoarthritis of the patella-femoral complex.” Dr. Wein opined that a July 26, 

2006 work injury where appellant fell while descending steps, and “extensive walking and 

climbing steps” while carrying a loaded satchel, permanently accelerated and aggravated her 

degenerative condition. He limited appellant to sitting and walking one hour a day, and standing 

four hours a day. On June 12, 2013 Dr. Wein increased appellant’s standing tolerance to five 

hours a day, decreased standing tolerance to four hours a day on August 12, 2013.2

On September 16, 2013 appellant accepted a position as a modified carrier, with standing 

and reaching limited to two hours a day, lifting one hour a day, and driving a vehicle for one 

hour a day.3

 She worked for four hours a day. OWCP paid appellant compensation for the 

remaining four hours. Appellant underwent a series of cortisone injections to the right knee. She 

worked part-time light duty through December 2013 and continuing. 

On April 4, 2014 OWCP obtained a second opinion evaluation regarding appellant’s 

work capacity from Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon. 

Dr. Obianwu found active chondromalacia in both knees, greater on the left. He opined that 

appellant could walk, stand, kneel, squat, and climb up to six hours a day. 

Dr. Wein opined on May 12, 2014 that appellant could stand, reach, push, pull, and 

perform fine manipulation for four hours a day, bend and grasp for three hours a day, and sit, 

walk, and twist for one hour a day, with no climbing or kneeling.4

 He reiterated these 

restrictions through August 3, 2015, noting continued crepitus and edema in both knees. 

On September 30, 2015 OWCP obtained a second opinion from Dr. Allen L. Babcock, a 

Board-certified orthopedic surgeon. Dr. Babcock reviewed the medical record and a statement 

of accepted facts. On examination, he found no warmth, tenderness, effusion, instability, or 

crepitus in either knee. Dr. Babcock diagnosed bilateral chondromalacia of the patellofemoral 

joint, appearing “mostly in the trochlea and it is some grade 3 and some grade 4.” He opined 

that work factors permanently aggravated appellant’s chondromalacia, and that the condition 

would worsen over time. Dr. Babcock noted that appellant could continue to work four hours a 

day light duty, with no stair climbing, commenting that she “probably could work a couple more 

hours a day within this capacity.” In an accompanying work capacity evaluation (Form OWCP5c), he found appellant able to sit up to eight hours, walk or stand for four hours, and lift up to 25 

 2

 OWCP paid wage-loss compensation for intermittent work absences from July 27 to September 6, 2013. 

3

 October 24, 2013 knee x-rays showed narrowing around the patellofemoral joint bilaterally. October 28, 2013 

magnetic resonance imaging (MRI) scans of both knees showed degenerative joint disease with “[m]arked articular 

cartilage degeneration of patellofemoral joint compartment and articular bony erosions of the patella,” and “[m]ild 

articular cartilage degeneration lateral femoral condyle.” 

4

 In a December 10, 2014 report, Dr. Wein related a workplace incident a few days prior when appellant caught 

her foot in a plastic band on a palette, causing her to fall forward, striking both knees. Appellant reported increased 

bilateral knee symptoms to the fall, exacerbated by the new incident. 
3

pounds. Dr. Babcock opined that appellant could increase her work schedule from four to six 

hours a day, and could “hopefully” progress to an eight-hour workday. 

On October 20, 2015 the employing establishment offered appellant a full-time modified 

position as a customer care agent processing inbound customer contacts and responding to 

customer inquiries. Appellant accepted the position on October 23, 2015, “pending doctor’s 

approval.” Dr. Wein reviewed the employing establishment’s job offer on October 29, 2015. He 

found appellant unable to perform the position as she could work only four hours a day.5

 

On November 6, 2015 the employing establishment offered appellant a modified position 

as a customer care agent, working eight hours a day, five days a week. The assigned duties 

involved processing inbound customer contacts, and responding to customer inquiries. The 

physical requirements included sitting with occasional standing up to eight hours a day, with 

intermittent keyboarding, fine manipulation, and use of a computer mouse. On November 12, 

2015 she accepted the position “under protest and duress” as the “work schedule would exceed 

[her] treating physician’s restrictions.” 

Dr. Babcock provided a supplemental report on November 30, 2015, noting that appellant 

could perform her light-duty position for eight hours a day, but could not deliver mail. In a 

December 22, 2015 supplemental report, he affirmed that appellant could perform the “full-time 

position of a [c]ustomer [c]are [a]gent.” 

On March 28, 2016 the employing establishment offered appellant a rehabilitation job 

assignment as a customer care agent for eight hours a day, five days a week, with sitting up to 

eight hours a day, walking, standing, and reaching up to six hours a day, and operating a motor 

vehicle for up to eight hours a day. The position would become effective on April 30, 2016. 

In an April 6, 2016 letter, Dr. Wein noted that appellant planned to retire on medical 

disability as “her knee pain ha[d] worsened. [Appellant] has had increased episodic diarrhea and 

vomiting from increased stress at work and having stress-related IBS [irritable bowel syndrome] 

exacerbations.” He found appellant disabled from work. 

On April 8, 2016 appellant accepted the March 28, 2016 job offer “under protest and 

duress,” contending that the physical requirements of the position exceeded Dr. Wein’s 

restrictions. In an attached letter, she advised that she was no longer able to work due to 

increased knee pain. Appellant explained that prolonged sitting, standing, and walking 

aggravated her knee pain, and that she had applied for OPM disability retirement and social 

security disability benefits. 

In a May 3, 2016 letter, OWCP advised appellant that the offered customer care agent 

position was found to be suitable work in accordance with the medical limitations prescribed by 

Dr. Babcock in his December 22, 2015 report. The position remained open and available to 

appellant. OWCP contended that Dr. Wein was “not qualified to offer a professional opinion on 

gastrointestinal and psychiatric factors” because he was a doctor of osteopathy. It advised her of 

 5

 The Board notes that there are multiple copies of the October 29, 2015 report of record. The copy received by 

OWCP on November 17, 2015 bears Dr. Wein’s signature with his name printed beneath it. 
4

the penalty provisions under FECA for refusing an offer of suitable work, and afforded her 30 

days to either accept the position or provide good cause for her refusal. 

Appellant responded by May 27, 2016 letter, contending that the offered position 

exceeded Dr. Wein’s work restrictions. She noted being hospitalized from November 27 to 30, 

2014 for a bowel abscess. 

Appellant retired from the employing establishment effective May 31, 2016. She elected 

to receive OPM retirement benefits in lieu of FECA benefits effective May 29, 2016. 

In a June 3, 2016 letter, OWCP advised appellant that her reasons for refusing the offered 

position were invalid, and that she had 15 days to accept and report to the position or her 

entitlement to wage-loss and schedule award benefits would be terminated. It noted that the 

offered position remained open and available to her. 

By decision dated June 21, 2016, OWCP terminated appellant’s wage-loss compensation 

and schedule award eligibility, effective that date, under 5 U.S.C. § 8106(c)(2), finding that she 

refused an offer of suitable work. It found that Dr. Babcock’s December 22, 2015 addendum 

established that the March 28, 2016 job offer was for suitable work. OWCP found that the 

April 6, 2016 letter from “Mark B. Wein, D.C.” was insufficient to establish that the offered 

position was not medically suitable, as an osteopathic physician was “not qualified to offer an 

opinion on gastrointestinal and psychiatric factors.” 

LEGAL PRECEDENT 

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

modification of compensation benefits. It has authority under section 8106(c)(2) of FECA to 

terminate compensation for any partially disabled employee who refuses or neglects to work 

after suitable work is offered. To justify termination, OWCP must show that the work offered 

was suitable, that appellant was informed of the consequences of her refusal to accept such 

employment and that he or she was allowed a reasonable period to accept or reject the position or 

submit evidence or provide reasons why the position is not suitable.6

 In this case, it terminated 

appellant’s compensation under section 8106(c)(2) of FECA, 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 

OWCP regulations provide factors to be considered in determining what constitutes 

“suitable work” for a particular disabled employee, including the employee’s current physical 

 6 See Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore. 42 ECAB 484, 488 (1991), reaff’d 

on recon., 43 ECAB 818, 824(1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: 

Determining Wage-Earning Capacity, Chapter 2.814.4 (June 2013) (The claims examiner must make a finding of 

suitability, advise the claimant that the job is suitable and that refusal of it may result in application of the penalty 

provision of 5 U.S.C. § 8106(c)(2) and allow the claimant 30 days to submit his or her reasons for abandoning the 

job. If the claimant submits evidence and/or reasons for abandoning the job, the claims examiner must carefully 

evaluate the claimant’s response and determine whether the claimant’s reasons for doing so are valid). 

7

 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003). 
5

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.8

 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. All impairments, whether work related or not, must be considered in assessing the 

suitability of an offered position.9

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

bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of 

employment.10 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 or secured by the 

employee, has the burden of showing that such refusal or failure to work was reasonable or 

justified.11 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.12

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of bilateral chondromalacia of 

the patella. Appellant performed part-time modified-duty work beginning in September 2013. 

Dr. Wein, an attending osteopath Board-certified in family practice, permanently limited 

appellant to working four hours a day. 

Dr. Babcock, a Board-certified orthopedic surgeon and second opinion physician, opined 

on December 22, 2015 that appellant was medically able to work full time as a customer care 

agent, requiring sitting with occasional standing for eight hours a day. The employing 

establishment offered appellant the position on March 28, 2016. Dr. Wein opined on April 6, 

2016 that appellant was disabled from work due to bilateral chondromalacia and irritable bowel 

syndrome. 

On May 3, 2016 OWCP advised appellant that the offered position was suitable work and 

of FECA’s penalty provision for refusing it without good cause. Appellant contended in a 

May 27, 2016 letter that Dr. Wein limited her to working four hours a day, and found her 

disabled from work due to chondromalacia and gastrointestinal issues. OWCP advised appellant 

on June 3, 2016 that her reason for refusal was invalid, and afforded her 15 days to report for 

work. Appellant retired from the employing establishment. 

 8 Rebecca L. Eckert, 54 ECAB 183 (2002). 

9 Edward J. Stabell, 49 ECAB 566 (1998). 

10 Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995). 

11 20 C.F.R. § 10.517(a); Ronald M. Jones, 52 ECAB 190 (2000). 

12 Id. at § 10.516.
6

By decision dated June 21, 2016, OWCP terminated appellant’s wage-loss compensation, 

effective that date, affording the weight of the medical evidence to Dr. Babcock. The decision 

referred to Dr. Wein, an osteopath Board-certified in family practice, as “Mark B. Wein, D.C.” 

The Board notes that OWCP misidentified Dr. Wein as a chiropractor as “D.C.” is the 

abbreviation for “Doctor of Chiropractic.” The decision went on to find that osteopathic 

physicians are “not qualified to offer an opinion on gastrointestinal and psychiatric factors,” 

thereby confusing or equating osteopaths with chiropractors. The Board finds that Dr. Wein, as 

an osteopath, was fully qualified to offer his medical opinion that appellant was disabled from 

work as of April 6, 2016 due to chondromalacia and irritable bowel syndrome.13 As OWCP 

disregarded Dr. Wein’s medical opinion, it did not properly consider the evidence submitted to 

support appellant’s refusal of the offered customer care agent position. Therefore, OWCP’s 

June 21, 2016 decision terminating appellant’s wage-loss compensation and schedule award 

entitlement must be reversed. 

On appeal appellant contends that the offered position exceeded medical restrictions 

provided by Dr. Babcock. As set forth above, OWCP did not meet its burden of proof in 

terminating her compensation. 

CONCLUSION 

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

effective June 21, 2016 pursuant to 5 U.S.C. § 8106(c)(2). 

 13 5 U.S.C. § 8102(2); E.K., Docket No. 09-1827 (issued April 21, 2010); A.C., Docket No. 15-1892 (issued 

February 1, 2016). 
7

ORDER 

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

Compensation Programs dated June 21, 2016 is reversed. 

Issued: June 20, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board