United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Myers, FL, Employer 

__________________________________________ 

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Docket No. 16-1275 

Issued: September 27, 2017 

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 3, 2016 appellant, through his representative, filed a timely appeal from a 

January 13, 2016 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. 

ISSUE 

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

effective April 10, 2015 pursuant to 5 U.S.C. § 8106(c)(2). 

 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. 
2

FACTUAL HISTORY 

OWCP accepted that on July 27, 2011 appellant, then a 57-year-old city letter carrier, 

sustained a lumbar sprain/strain, mid-back contusion, contusion of ribs, and chest wall contusion 

when he fell and struck the bumper of his vehicle. Appellant’s physicians restricted him to 

sedentary duty with lifting, carrying, pulling, and pushing limited to 10 pounds. He did not 

return to work. The employing establishment confirmed that there was no work available within 

his restrictions as of September 9, 2011. Appellant received wage-loss compensation on the 

daily rolls beginning September 10, 2011, and on the periodic rolls beginning 

November 20, 2011. He remained under medical care. 

On December 19, 2011 Dr. Dean D. Lin, an attending Board-certified neurosurgeon, 

found that appellant’s continuing lumbar myofascial strain with mild spondylosis remained 

completely related to the accepted injuries. Appellant remained off work. 

To determine appellant’s work capacity, OWCP obtained a second opinion on May 12, 

2012 from Dr. William Dinenberg, a Board-certified orthopedic surgeon, who opined that the 

accepted lumbosacral strain remained active and partially disabling. Dr. Dinenberg opined that 

appellant could perform full-time sedentary duty, with lifting, pushing, and pulling limited to 10 

pounds. 

In a July 5, 2012 report, Dr. Vidya P. Kini, an attending Board-certified physiatrist, 

diagnosed chronic low back pain with lumbar radiculopathy secondary to sacroiliac dysfunction 

from the accepted injury superimposed on spondylosis, and possible diabetic neuropathy. She 

found appellant able to perform full-time sedentary duty, with lifting limited to 10 pounds. 

Dr. Neil R. Schultz, an attending Board-certified physiatrist, noted that a November 10, 

2011 magnetic resonance imaging (MRI) scan showed multilevel chronic degenerative disc 

disease without significant stenosis. He diagnosed a back contusion and lumbar sprain. 

Dr. Schultz prescribed physical therapy, in which appellant participated through March 2013. 

On April 12, 2013 Dr. Schultz found that appellant was approaching maximum medical 

improvement and was able to perform full-time sedentary work, with lifting, pulling, and 

pushing limited to 10 pounds. In an April 25, 2013 report, Dr. Schultz related that appellant had 

increased lumbar symptoms, and diagnosed a possible disc herniation. On May 16, 2013 he 

reviewed appellant’s prescription medications, which included Tramadol and Hydrocodone. 

Dr. Schultz diagnosed lumbar radiculopathy. He found appellant able to perform full-time 

sedentary duty as of May 23, 2013. 

OWCP obtained a second opinion on July 9, 2013 from a Dr. Fanourios L. Federigos, a 

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

of accepted facts. On examination, he found lumbosacral paravertebral tenderness bilaterally, 

and decreased lumbar motion. Dr. Federigos diagnosed a lumbosacral sprain/strain, degenerative 

disc disease with spondylosis, narrowing of the right L4-5 foramina, and persistent muscle 

spasticity. He opined that appellant had persistent fasciitis due to the July 27, 2011 injury, which 

also exacerbated lumbar spondylosis and L4-5 foraminal stenosis. Dr. Federigos found that the 

accepted rib contusion had resolved. He found that appellant had attained maximum medical 
3

improvement. Dr. Federigos permanently restricted appellant to sedentary duty, with lifting 

limited to 10 pounds and for no more than two hours a day. Appellant was not to twist, bend, or 

stoop. He could sit for up to five hours a day. 

In a July 18, 2013 report, Dr. Schultz opined that appellant was “unable to drive due to 

sedation and drowsiness from the medications that he is prescribed,” and could not operate a 

motor vehicle to or from work, or while working. He limited bending, stooping, and twisting to 

two hours a day. Dr. Schultz explained on October 9, 2013 that appellant was taking prescribed 

Meloxicam, Gabapentin, Cyclobenzaprine, Tramadol, and Hydrocodone. He noted that 

Gabapentin caused significant drowsiness and impaired concentration, and would negatively 

affect appellant’s ability to operate a motor vehicle. Appellant had to take Hydrocodone during 

the workday, which caused significant drowsiness and dizziness. Dr. Schultz noted that 

appellant had not driven since May 2013 due to “significant drowsiness and poor concentration.” 

He opined that appellant was “not capable of driving to any degree whatsoever,” but could 

consider taking public transportation. Dr. Schultz submitted periodic reports through May 8, 

2014 finding appellant able to perform full-time sedentary duty. He noted that appellant had 

advised the department of motor vehicles that he could not drive due to impairment from 

prescription narcotics and had surrendered his driver’s license. Appellant remained off work. 

Dr. Schultz noted on May 25, 2014 that the accepted injuries remained present and 

disabling. He diagnosed a lumbar sprain, mid-back contusion, lumbar radiculopathy, and L3-4, 

L4-5, and L5-S1 disc bulges. Dr. Schultz permanently restricted appellant to full-time sedentary 

duty, with lifting, pulling, and pushing up to 10 pounds. He reiterated this opinion through 

November 2014. 

On November 4, 2014 the employing establishment offered appellant a permanent 

assignment as a modified mail processing clerk at Page Field Station in Fort Myers, working five 

days a week with Sunday and Thursday off. The position was available beginning November 8, 

2014, with a start date of November 15, 2014. The job required occasional lifting, pushing, and 

pulling up to 10 pounds, with sedentary clerical duties. Appellant rejected the offer on 

November 19, 2014, contending that it was “not suitable.” 

In a January 15, 2015 letter, OWCP advised appellant that the offered modified mail 

processing clerk position was found to be suitable work in accordance with the medical 

limitations prescribed by Dr. Schultz. The position remained open and available to appellant. 

OWCP advised him of the penalty provisions under FECA for refusing an offer of suitable work 

and afforded him 30 days to either accept the position or provide good cause for his refusal. 

In a January 16, 2015 report, Dr. Schultz noted that appellant took prescribed Meloxicam, 

Topiramate, Tramadol ER, Cyclobenzaprine, and Hydrocodone. He found appellant able to 

perform full-time sedentary duty. Dr. Schultz opined that the medications decreased appellant’s 

pain levels and improved his daily functioning. 

Appellant contended in a January 31, 2015 letter that the offered position was not suitable 

work as he was unable to drive due to medication side effects. He explained that he could not 

get to work without driving, as the offered position was in Fort Myers and he lived in Cape 

Coral, a 12- to 13-mile distance. Appellant contended that he lived in an area where the closest 
4

bus stop was 1.1 miles from his home and that he could not walk that distance. Also, it was .9 

miles from the nearest bus stop to the employing establishment, and he would have to change 

buses three times, with a 90-minute commute each way. The bus schedule would also cause 

appellant to be either early or late for the start of his shift. Appellant asserted that side effects 

from Hydrocodone, Topiramate, Tramadol and Cyclobenzaprine impaired his daily functioning 

such that he could not leave his home unaccompanied due to falling twice a week. 

In a March 3, 2015 letter, the employing establishment advised that appellant had “retired 

on regular retirement” rather than accept the offered position. 

In a March 17, 2015 letter, OWCP advised appellant that his reasons for refusing the 

offered position were not valid and that he had 15 days to accept and report to the position or his 

entitlement to wage-loss compensation and schedule award benefits would be terminated. It 

noted that the offered position remained open and available to him. 

On March 26, 2015 appellant accepted the offered modified position, but noted that he 

would not report for work because he had submitted an application for retirement. He elected to 

receive retirement benefits in preference to FECA benefits effective April 1, 2015. 

By decision dated April 10, 2015, OWCP terminated appellant’s wage-loss compensation 

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

refused an offer of suitable work. 

On April 27, 2015 appellant requested a telephonic oral hearing, which was held on 

November 10, 2015. At the hearing, appellant’s representative contended that OWCP should 

have referred appellant for limited vocational rehabilitation to determine if transportation costs 

could be reimbursed as a vocational rehabilitation expense. She also contended that OWCP 

should have investigated whether the narcotic side effects would adversely impact his ability to 

perform the offered position safely. Appellant submitted additional evidence. 

In April 10, 2015 reports, Dr. Schultz reiterated prior diagnoses and work restrictions. 

He noted that appellant was only being followed for medication management. Dr. Schultz 

explained that appellant would “not be able to return to his prior position as a city carrier in the 

future and his work status will be permanently restricted to sedentary capacity with infrequent 

lifting, pulling, and pushing up to 10 pounds.” He opined that the prescribed medications 

reduced appellant’s pain symptoms and improved his ability to perform activities of daily living 

and work activities. Dr. Schultz affirmed that appellant would perform “[f]ull[-]time sedentary 

duty with occasional lifting, carrying, pulling, and pushing up to 10 pounds.” 

In a July 2, 2015 report, Dr. Schultz noted that appellant had increased dizziness during 

the past month when rising from a seated position. He opined that appellant’s dizziness was 

likely orthostatic, that he might need better regulations of his blood pressure medications. 

Dr. Schultz increased appellant’s Hydrocodone from 5 milligrams to 10 milligrams. He found 

appellant’s orthopedic condition unchanged through December 21, 2015. 

By decision dated January 13, 2016, an OWCP hearing representative affirmed the 

April 10, 2015 termination decision, finding that the medical evidence failed to establish that 

appellant could not travel to and from work or perform the duties of the offered position. He 
5

noted that while appellant contended that taking a bus or taxi to and from work would be 

difficult or expensive, he did not contend that he was medically unable to do so. The hearing 

representative further found that OWCP was not obligated to refer appellant for limited 

vocational rehabilitation to investigate his transportation options as he had refused to return to 

work. However, had appellant agreed to return to work, OWCP would have investigated if taxi 

fare to and from work could be covered as a vocational rehabilitation expense. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of 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: 

“A partially disabled employee who -- refuses or neglects to work after suitable 

work is offered to, procured by, or secured for him is not entitled to 

compensation.” 

OWCP procedures provide factors to be considered in determining what constitutes 

“suitable work” for a particular disabled employee including 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.3 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. 

The Board has recognized that section 8106(c) is a penalty provision that must be 

narrowly construed as it may bar entitlement to future wage-loss compensation.4 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.5 Pursuant to section 

10.516, the employee shall be provided with the opportunity to make such a showing before a 

final determination is made with respect to termination of entitlement to compensation.6

An acceptable reason, if supported by medical evidence, for refusing an offer of suitable 

work can be an inability to travel to work.7

 OWCP’s procedures provide that the inability to 

travel to work is an acceptable reason if the inability is because of residuals of the employment 

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

(June 2013). 

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

5

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

6 Id. at § 10.516.

7 C.W., Docket No. 10-2074 (issued May 23, 2011); Mary E. Woodard, 57 ECAB 211 (2005); Glen L. Sinclair, 

36 ECAB 664 (1985). 
6

injury.8 This holding is consistent with the Board’s holding that all impairments, whether work 

related or not, must be considered in assessing the suitability of an offered position.9

 

ANALYSIS 

OWCP accepted that appellant sustained a lumbar sprain/strain, mid-back contusion, 

contusion of ribs, and chest wall contusion when he fell and struck the bumper of his vehicle on 

July 27, 2011. Appellant stopped work on the date of injury and did not return. He received 

total disability compensation on the daily and periodic rolls beginning on September 10, 2011. 

Dr. Schultz, an attending Board-certified physiatrist, held appellant off work. He 

prescribed narcotic medication to address ongoing symptoms of the accepted injuries. 

Dr. Schultz found that appellant was medically able to perform full-time sedentary work, as of 

May 23, 2013. On July 9, 2013 OWCP obtained a second opinion from Dr. Federigos, a Boardcertified orthopedic surgeon, who concurred that the accepted lumbar strain continued to be 

active and partially disabling. Dr. Federigos agreed with Dr. Schultz that appellant could 

perform full-time sedentary duty with lifting, pulling, and pushing limited to 10 pounds. 

In reports from July 18, 2013 through November 2014, Dr. Schultz noted that appellant 

could no longer drive due to drowsiness and impaired concentration from narcotic medications 

prescribed for the accepted injury, and that appellant had surrendered his driver’s license as of 

March 12, 2014. On October 9, 2013 he found appellant capable of taking public transportation. 

On November 4, 2014 the employing establishment offered appellant a permanent 

position as a modified mail processing clerk. The sedentary position involved clerical duties, 

requiring occasional lifting, pulling, and pushing up to 10 pounds. OWCP properly found that 

these duties conformed to the limitations given by Dr. Schultz and Dr. Federigos. The position 

was approximately 13 miles from appellant’s residence, well within his commuting area. 

Following OWCP’s determination that the position was suitable, appellant provided his 

January 31, 2015 letter explaining that the nearest bus stop was 1.1 miles from his home, and the 

bus stop closest to the employing establishment was .9 miles away. He noted that the buses ran 

at times inconvenient to the start and end of his work shift. The Board has also held that an 

inability to travel to work should be considered as part of the suitability determination itself, 

independent of a claimant’s acceptance or rejection of the job.10 

Neither Dr. Schultz nor Dr. Federigos limited the physical activities needed for appellant 

to utilize public transportation, including walking, sitting, being outdoors at night, or in or out of 

hot or cold environments. Dr. Schultz opined that appellant should consider public 

transportation. Therefore, their opinions do not preclude appellant from walking to and from a 

bus, or riding the bus, as he described in his January 31, 2015 letter. OWCP properly considered 

appellant’s inability to drive, the proposed commuting distance, and his ability to take public 

 8 Supra note 3 at Chapter 2.814.5(a)(3) (June 2013). See also Donna M. Stroud, 51 ECAB 264 (2000). 

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

10 Id. 
7

transportation in finding the offered modified mail processing clerk position was suitable work. 

Therefore, OWCP discharged its burden of proof to terminate compensation under section 

8106(c) of FECA.11 

On appeal appellant’s representative cites to the Board’s holdings in C.W.,12 and Mary E. 

Woodard,13 in contending that OWCP did not properly address appellant’s inability to drive 

when determining whether the offered position was suitable work. In C.W., the claimant was 

unable to drive due to side effects of prescribed narcotic medications. OWCP found an offered 

position to be suitable work, without addressing whether appellant was capable of commuting to 

and from work by a means other than driving. The present case can be distinguished from C.W.

as appellant’s attending physician found him medically able to use public transportation. OWCP 

considered this evidence as part of its suitability determination. 

Similarly, the present case may be distinguished from Woodard, where the Board found 

that OWCP mischaracterized the claimant’s refusal of a night shift position due to a medical 

inability to drive at night as a personal desire to work a different schedule. The Board held that 

OWCP failed to consider the medical aspect of her claim in finding the position suitable work. 

In the present case, OWCP did review the medical evidence, which demonstrated that appellant 

could commute using public transportation. 

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 OWCP properly terminated appellant’s compensation benefits 

effective April 10, 2015 pursuant to 5 U.S.C. § 8106(c)(2). 

 11 Cf. B.S., Docket No. 09-1067 (issued February 2, 2010) (the Board found that OWCP did not meet its burden of 

proof to terminate the claimant’s compensation under 5 U.S.C. § 8106(c) because her attending physician restricted 

her to driving no more than four hours a day, whereas the offered position required a six-hour commute); R.F., 

Docket No. 15-0506 (issued August 12, 2016) (the Board reversed OWCP’s termination of the claimant’s 

compensation benefits under 5 U.S.C. § 8106(c) because there was a conflict of medical opinion at the time of the 

termination as to whether the claimant was unable to drive due to side effects from prescribed narcotic medication); 

L.D., Docket No. 12-0816 (issued April 9, 2013) (the Board reversed OWCP’s termination of appellant’s 

compensation benefits under 5 U.S.C. § 8106(c), finding OWCP failed to consider a driving limitation in 

determining whether an offered position was suitable work). 

12 Docket No. 10-2074 (issued May 23, 2011). 

13 57 ECAB 211 (2005). 
8

ORDER 

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

Compensation Programs dated January 13, 2016 is affirmed.

Issued: September 27, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board