United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

U.S. POSTAL SERVICE, SOUTH SUBURBAN 

POST OFFICE, Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 15-0045 

Issued: September 22, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 6, 2014 appellant, through counsel, filed a timely appeal from a May 19, 

2014 merit decision by 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 wage-loss compensation and 

schedule award benefits under 5 U.S.C. § 8106(c) for refusal of suitable work. 

 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

On appeal, appellant, through counsel, argues that the decision is contrary to fact and law. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts as set forth in the Board’s 

previous decision are hereby incorporated into this decision.3 The relevant facts are as follows. 

On June 17, 1994 appellant, then a 28-year-old letter sorting machine operator, filed an 

occupational disease and claim for compensation (Form CA-2), alleging that she sustained 

rotator cuff tendinitis causally related to factors of her federal employment. OWCP accepted her 

claim for bilateral rotator cuff tendinitis and resulting surgery. Appellant underwent a right 

shoulder arthroscopy with subacromial decompression and debridement of partial thickness 

rotator cuff tear on May 15, 1995. The Board affirmed a July 5, 2000 decision of OWCP finding 

that appellant had no greater than an eight percent impairment of the right upper extremity, for 

which she received a schedule award.4 

In an October 2, 2012 report, Dr. Jeffrey L. Visotsky, appellant’s treating Board-certified 

orthopedic surgeon, noted that appellant had persistent cervical pain. In a duty status report of 

the same date, he limited her to pushing, pulling and lifting 14 to 40 pounds. Dr. Visotsky noted 

that appellant was able to work eight hours a day, and could perform all other duties eight hours 

a day including: sitting, walking, standing, reaching, twisting, bending/stooping and operating a 

motor vehicle. 

On February 19, 2013 OWCP received W2 forms indicating that appellant had wages 

from East Bank Club Venture in 2011 of $16,233.11 and in 2012 of $14,855.42. On April 3, 

2013 appellant submitted a W2 form indicating that in 2010 she received wages of $1,193.00 

from East Bank Club Venture. 

On February 19, 2013 appellant filed a claim for compensation from August 12, 2012 

through February 8, 2013. 

On August 10, 2013 the employing establishment offered appellant a modified 

assignment (limited duty) as a full-time mail processing clerk. The duties of the modified 

position include: sorting letters, sweeping mail into letter trays, retrieving mail, scanning labels 

and making placards. The physical requirements of the limited assignment were working eight 

hours a day doing intermittent lifting/carrying 14 to 40 pounds, sitting, standing, walking, 

bending, stooping, and twisting for eight hours a day. 

By letter to OWCP dated August 12, 2013, the employing establishment noted that 

appellant had not reported to her modified mail processing clerk position nor had she offered a 

reason for her refusal. It argued that her position at the East Bank Club does not represent her 

true earnings potential. 

 3

 Docket No. 99-609 (issued July 5, 2000). 

4 Id. 
3

In an August 13, 2013 note, Dr. Visotsky noted that appellant had weakness on forward 

flexion, crepitations and loss of glenhumeral motion with compensatory scapulothoracic. He 

also noted weakness with supraspinatus isolation. Dr. Visotsky recommended a magnetic 

resonance imaging (MRI) scan of the shoulder to rule out a full-thickness tear. He noted that he 

will keep appellant at work restrictions until the MRI scan had been obtained. 

By letter dated September 5, 2013, OWCP noted that appellant had refused to report to 

the position of modified mail processing clerk offered by the employing establishment. It 

advised her that it had reviewed the position offered and determined that it was in accordance 

with the medical restrictions provided by Dr. Visotsky in his report of October 2, 2012. OWCP 

gave appellant 30 days to accept the position or provide medical evidence for refusal of the 

position. It advised her of the consequences of failing to accept the position. 

In an August 13, 2013 duty status report, received on October 9, 2013, Dr. Visotsky 

restricted appellant to lifting five pounds eight hours a day, standing two hours a day, and 

prohibited bending, stooping, climbing, twisting (avoiding key), fine manipulation and operating 

machinery. In a September 20, 2013 note, he noted that she remained symptomatic, and that her 

MRI scan did reveal areas of partial and full-thickness tear in the supraspinatus. Dr. Visotsky 

noted that in light of appellant’s failure to respond to cortisone shots, anti-inflammatory 

medicine, and a structured rehabilitation program, he recommended proceeding with a left 

shoulder arthroscopic rotator cuff repair, subacromial decompression. 

In a September 20, 2013 duty status report, Dr. Visotsky indicated that appellant was off 

work until surgery. In December 6 and 11, 2013 notes, he stated that she was having increased 

pain in her left shoulder with crepitation and popping, and that there was weakness in the 

perihomboid area. Dr. Visotsky noted that appellant needed a new series of steroid injections for 

her cervical disc disease. He indicated that the imaging studies did reveal a rotator cuff tear. 

Dr. Visotsky also noted that appellant will need surgical intervention, specifically left shoulder 

arthroscopic surgery, subacromial decompression and rotator cuff repair. He opined that this 

was directly related to her employment-related activities and left shoulder injury based on the 

temporal sequence and no history of previous comorbidities or inflammatory disease. 

Dr. Visotsky indicated that any delay in surgery may lead to protracted impairment and disability 

rating. He noted that, with respect to appellant’s neck, she should follow up with the pain clinic, 

but that appellant’s neck problems were not related to her employment activities. Dr. Visotsky 

indicated both in his medical report and in an accompanying duty status report that appellant 

would remain off work until surgery is obtained. 

On November 22, 2013 the employing establishment proposed terminating appellant’s 

employment, contending that she was absent from her job and failed to provide acceptable 

documentation. By letter dated December 28, 2013, it removed appellant from employment 

effective that date. The letter noted that appellant would remain on the rolls in a nonpay status 

until the disposition of her case. 

On February 19, 2014 OWCP informed appellant that it rejected her reasons for not 

reporting to the position and provided her 15 additional days to accept and report to the position, 

and that, if she did not accept and report to the position during the allotted period, her entitlement 
4

to wage-loss and schedule award benefits would be terminated. It noted that her work at East 

Bank Club was not a valid reason for refusing the offer. 

By decision dated May 19, 2014, OWCP determined that the position offered by the 

employing establishment on August 10, 2013 was suitable and within the restrictions provided 

by Dr. Visotsky in his October 2, 2012 report. It terminated appellant’s compensation and 

schedule award benefits. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.5

 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.6

 

Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses or 

neglects to work after suitable work is offered to, procured by or secured by the employee is not 

entitled to compensation.7 It is OWCP’s burden to terminate compensation under section 

8106(c) for refusing to accept suitable work or neglecting to perform suitable work.8 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.9

 The Board has 

recognized that 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.10

ANALYSIS 

The Board finds that OWCP did not meet its burden of proof to show that the modified 

clerk position offered by the employing establishment was suitable and therefore its termination 

of appellant’s compensation for refusing such employment was improper. 

In an October 2, 2012 report, Dr. Visotsky, appellant’s treating orthopedic surgeon, 

limited appellant to pushing, pulling, and lifting 14 to 40 pounds in an eight-hour day. He 

opined in this report that appellant could otherwise work eight hours a day, and could work eight 

hours a day sitting, walking, standing, reaching, twisting, bending/stooping, and operating a 

 5 Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013). 

6 Gewin C. Hawkins, 52 ECAB 242 (2001). 

7

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

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

9

 20 C.F.R. § 10.517(a). 

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

motor vehicle. Based on these restrictions, on August 10, 2013, the employing establishment 

offered appellant a position as a modified assignment full-time mail processing clerk. 

In a letter dated September 5, 2013, OWCP noted that appellant refused to report the 

position of modified mail processing clerk. It indicated that it had reviewed the position 

description and found that the proposed job was within appellant’s restrictions as set forth by 

Dr. Visotsky in his October 2, 2012 report. OWCP gave appellant 30 days to either accept the 

position or provide medical evidence for refusing the position. 

In response, appellant submitted multiple notes and duty status reports by Dr. Visotsky, 

in which he provided more restrictions on appellant’s employment. In his August 13, 2013 duty 

status report, Dr. Visotsky restricted appellant to lifting five pounds a day, standing two hours a 

day and prohibited bending, stooping, climbing, twisting, fine manipulation and operating 

machinery. He also noted that appellant should “avoid key.” Dr. Visotsky also held appellant 

off work in the August 13, 2013 note. In the September 20, 2013 duty status report, he indicated 

that appellant was off work until surgery for left shoulder arthroscopic rotator cuff repair. In 

December 6 and 13, 2013 notes, Dr. Visotsky indicated that appellant’s MRI scan showed a 

rotator cuff tear, that appellant would need left shoulder arthroscopic surgery, subacromial 

decompression, and rotator cuff repair. He indicated that this surgery was directly related to 

appellant’s employment-related activities. Dr. Visotsky indicated that appellant shall remain off 

work until surgery. OWCP did not discuss any of these reports. 

On February 19, 2014 OWCP informed appellant that it rejected her reasons for not 

reporting to the position and indicated that she had 15 additional days to accept the position. 

Although it indicated that refusal of the position due to her work at East Bank Club was rejected, 

OWCP did not address any of the new medical evidence submitted by appellant. 

On May 19, 2014 OWCP determined that the position offered on August 10, 2013 was 

suitable and within the restrictions provided by Dr. Visotsky in his October 2, 2012 report. 

In finding that the position was suitable, OWCP indicated that the offered position was 

within the restrictions set by Dr. Visotsky on October 2, 2012. In reaching this conclusion, it 

failed to address Dr. Visotsky’s subsequent medical opinions which indicated that appellant 

could not work due to her employment-related shoulder injury. Accordingly, OWCP improperly 

terminated appellant’s compensation benefits based on a previous medical report by Dr. Visotsky 

which expressed an opinion that he no longer held. 

Furthermore, in a suitable work determination, OWCP must consider preexisting and 

subsequently acquired medical conditions.11 It did not consider appellant’s neck injury and its 

impact on her employment. OWCP did not adequately consider whether appellant’s total 

medical condition negatively affected her ability to work the position offered by the employing 

 11 See Richard P. Cortes, 56 ECAB 200 (2004); see also Y.M., Docket Nos. 14-1050 and 14-1193 (issued 

December 24, 2014). 
6

establishment.12 The Board has held that all impairments, whether work related or not, must be 

considered in assessing the suitability of an offered position.13

Under the circumstances of this case, OWCP did not properly find that appellant refused 

suitable work. The Board will reverse the May 19, 2014 decision. 

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and schedule award benefits under 5 U.S.C. § 8106(c) for refusal of suitable work. 

ORDER 

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

Compensation Programs dated May 19, 2014 is reversed.14

Issued: September 22, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 N.W., Docket No. 11-661 (issued July 6, 2012). 

13 See Mary E. Woodward, 57 ECAB 211 (2005). 

14 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.