United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

U.S. POSTAL SERVICE, MERCHANDISE 

MART POST OFFICE, Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-1647 

Issued: September 12, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 9, 2016 appellant filed a timely appeal from a May 19, 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 wage-loss compensation 

effective May 19, 2016 pursuant to 5 U.S.C. § 8106(c)(2), for refusing an offer of suitable work. 

FACTUAL HISTORY 

On May 12, 2010 appellant, then a 40-year-old sales service and distribution associate, 

injured her lower back when she lifted a package weighing approximately 15 pounds. OWCP 

accepted her traumatic injury claim (Form CA-1) for temporary aggravation of lumbar back sprain 

 1

 5 U.S.C. § 8101 et seq. 
2

and lumbar disc degeneration (OWCP File No. xxxxxx267).2

 Appellant stopped work on 

May 27, 2010 and received wage-loss compensation on the periodic rolls beginning 

July 11, 2010. 

In an August 10, 2010 report, Dr. Harold T. Pye, a specialist in preventative medicine, 

advised that appellant was experiencing pain in her lower back and in her feet. He reported that 

June 10, 2010 lumbar spine x-rays showed moderate-to-severe spinal spondylolysis at L5 and 

L5-S1 and a May 28, 2008 magnetic resonance imaging (MRI) scan revealed a central disc 

herniation at L4-5, superimposed on circumferential disc bulge, and facet arthropathy and 

degenerative disc disease. In addition, Dr. Pye reported that a June 23, 2010 MRI scan reflected 

fluid in the posterior tibiotalar joint and synovitis in the first metatarsal-phalangeal joint of the 

right foot and a June 10, 2010 MRI scan showed osteochondral lesion in the medial talar dome of 

the left foot. He diagnosed bilateral plantar fascial fibromatosis, aggravation of displacement of 

lumbar intervertebral disc without myelopathy, bilateral foot tenosynovitis, left foot 

osteochondral lesion, and bilateral pes planus. 

On or about October 16, 2010 appellant returned to work in a limited-duty capacity. 

In an April 4, 2012 report, Dr. Francisco Espinosa, Board-certified in neurosurgery, 

advised that lumbar MRI scans showed an intact anatomical lordosis, disc desiccation and loss of 

the disc space height with end plate changes at both L4-5 and L5-S1. He noted that there were 

circumferential and left paracentral bulging discs at those levels which were causing lateral 

recess stenosis, greater on the left. Dr. Espinosa also reviewed an electromyogram/nerve 

conduction velocity (EMG/NCV) studies, the results of which were normal, with no evidence of 

radiculopathy. He diagnosed lumbar degenerative disc disease, causing bilateral lower extremity 

pain and paresthesias, as well as chronic low back pain. Dr. Espinosa recommended surgical 

decompression and laminectomy from L4 to S1 in order to decompress the nerves and improve 

her leg pain. 

On May 10, 2012 Dr. Espinosa performed ameliorative lumbar surgery, a procedure 

which involved insertion of a spinal cord stimulator at level T9-10 and insertion of an Eon pulse 

generator in the left flank. 

OWCP paid appellant wage-loss compensation beginning May 10, 2012 and placed her 

on the periodic compensation rolls effective August 26, 2012.3

In order to determine whether appellant was currently totally disabled and whether she 

could perform gainful employment, OWCP referred her for a second opinion examination with 

Dr. Allan M. Brecher, Board-certified in orthopedic surgery. In a report dated November 21, 

2012, Dr. Brecher diagnosed a permanent aggravation of her preexisting degenerative lumbar 

disease and, based on appellant’s pain and the results of her recent functional capacity evaluation 

 2

 Appellant has a previously accepted occupational disease claim (Form CA-2) for herniated disc at L5-S1, which 

arose on or about May 23, 1993 (OWCP File No. xxxxxx288). OWCP combined the case records of her two 

lumbar-related employment injuries and assigned File No. xxxxxx288 as the master file. 

3

 Effective May 11, 2012, the Office of Personnel Management approved appellant’s disability retirement. 
3

(FCE), he opined that appellant was not capable of performing her usual job as a sales service 

and distribution associate and provided restrictions of lifting, pulling, or pushing over 25 pounds. 

OWCP found a conflict in medical opinion between Dr. Brecher and appellant’s treating 

physician, Dr. Pye.4

 In order to resolve this conflict, it referred appellant to Dr. G. Klaud Miller, 

Board-certified in orthopedic surgery, for an impartial medical examination. 

In his February 14, 2014 report, Dr. Miller found that appellant was not totally disabled. 

He reported that appellant’s EMG tests were negative and her FCE’s documented minimum, but 

not maximum, levels of function. Other than some minor limitations of motion, Dr. Miller found 

her examination essentially normal. He advised that, other than mild bulging discs and stenosis, 

appellant’s diagnostic studies showed no serous pathology. Dr. Miller opined that she was 

capable of returning to work full time with a maximum lifting limit of 25 pounds on a frequent 

basis. 

On November 25, 2014 the employing establishment offered appellant a job as a 

modified sales services and distribution associate based on the restrictions set forth by Dr. Miller. 

The restrictions were no lifting more than 20 pounds for more than six hours per day; no 

standing, walking, simple grasping, and fine manipulation for more than six hours per day; no 

pushing or pulling for more than 20 pounds for more than six hours per day; and no sitting or 

reaching above the shoulder for more than two hours per day. The employing establishment 

advised appellant that the position was for five days per week, from 9:50 a.m. to 6:50 p.m. at the 

employing establishment. The position was available as of December 1, 2014 at an annual salary 

of $54,257.00 per year. The job entailed servicing customers at the window with letters, 

packages, mailing options, retrieving accountable mail, counting money, and clearing carriers of 

accountables. 

Appellant rejected the job offer on December 2, 2014, indicating that she was not 

medically fit to perform the position. 

By letter dated December 23, 2014, OWCP advised appellant that the modified manual 

distribution position was suitable and that, pursuant to 5 U.S.C. § 8106(c)(2), she had 30 days to 

either accept the job or provide a reasonable explanation for refusing the offer, otherwise her 

entitlement to compensation benefits would be terminated. 

On December 30, 2014 appellant noted her refusal of the job offer because she had 

permanent restrictions which limited her to mainly sedentary duties which were no pushing, 

pulling, lifting, or carrying more than 15 to 20 pounds. 

Appellant submitted the March 13, 2013 FCE report, received by OWCP on January 6, 

2015, which provided a summary of her ability to perform numerous physical activities. 

 4

 On April 24, 2013 OWCP provided Dr. Pye a copy of Dr. Bercher’s November 21, 2012 report, and asked that 

he clarify any discrepancies between the identified work restrictions and those identified by Dr. Pye in his most 

recent March 4, 2013 duty status report (Form CA-17). Dr. Pye did not respond to OWCP’s April 24, 2013 request 

for clarification. 
4

In a January 21, 2015 attending physician’s report (Form CA-20), Dr. Baljinder S. 

Bathla, Board-certified in pain medicine, indicated that appellant was partially disabled, but was 

capable of working with restrictions of no lifting, pushing, pulling, or carrying over 15 to 20 

pounds, no prolonged standing, walking, or bending, and frequent breaks.5

By decision dated January 23, 2015, OWCP terminated appellant’s compensation 

benefits because she had refused an offer of suitable work. It found that the position offered by 

the employing establishment was within Dr. Miller’s work restrictions and that the medical 

evidence established that she was capable of performing the modified sales services and 

distribution associate position. OWCP also noted that appellant had been afforded the requisite 

30-day notice and opportunity to comply with 5 U.S.C. § 8106(c). 

In a January 30, 2015 letter, appellant asked OWCP to expand the instant claim to 

include the conditions affecting her feet, as identified in Dr. Pye’s narrative report of 

August 10, 2010. 

On February 4, 2015 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. 

In a March 4, 2015 report, Dr. Espinosa advised that appellant was experiencing neck and 

upper extremity pain. He noted that, based on her description, she had sustained an ulnar 

neuropathy or possible cervical radiculopathy. Dr. Espinosa recommended that appellant 

undergo an updated EMG/NCV study of the upper extremities and a computerized axial 

tomography (CAT) scan of the cervical spine to confirm those conditions. 

A March 20, 2015 EMG/NCV report indicated mild left C6 chronic radiculopathy. 

In a March 24, 2015 report, Dr. Espinosa reviewed the results of appellant’s cervical 

CAT scan and the EMG/NCV testing. He advised that she continued to have bilateral upper 

extremity symptoms, particularly shoulder pain, and bilateral arm pain, worse on the right side 

than on the left. Dr. Espinosa reported that, while the EMG/NCV study showed chronic left C6 

radiculopathy with no evidence of any cervical radiculopathy on the right upper extremity, 

appellant’s symptoms were worse on the right. He advised that the CAT scan showed 

degenerative disease, particularly at C5-6, with small bulging disc at C5-6 on the left and mild, 

degenerative foraminal stenosis at C6-7. Dr. Espinosa opined that there was no significant 

abnormality requiring surgery. 

By decision dated August 4, 2015, an OWCP hearing representative set aside the 

January 23, 2015 decision because OWCP had failed to send appellant the letter affording 15 

days to accept the modified job offer. In addition, he found that appellant had submitted medical 

evidence suggesting that she was unable to perform the modified job offer which Dr. Miller, the 

 5

 Dr. Bathla first examined appellant on October 7, 2013 and had diagnosed low back pain, lumbosacral 

radiculopathy, and myofascial pain. At the time, he noted that she had reached maximum medical improvement and 

that her disabilities were permanent. Dr. Bathla further indicated that appellant would likely be unable to achieve 

gainful employment during her lifetime. 
5

impartial medical examiner, had not considered. The hearing representative found that this 

required additional development of the medical evidence regarding appellant’s work capacity. 

OWCP’s hearing representative specifically noted that Dr. Miller had not considered the 

March 13, 2013 FCE which, he found, suggested that appellant was unable to perform the duties 

of the offered position. He found that Dr. Miller had partially based his opinion on the negative 

EMG studies but noted that cervical EMG studies appeared to be positive for C6 radiculopathy. 

Finally, the hearing representative noted that OWCP needed to consider all medical conditions 

affecting a claimant’s work capacity when evaluating the suitability of an offered position, 

including those that were not work related. He, therefore, directed on remand that appellant 

should be referred to Dr. Miller, for an updated examination. The hearing representative 

specifically requested that Dr. Miller be provided with all relevant medical evidence and be 

asked to provide a detailed discussion of her work-related and nonoccupational conditions that 

could have affected her ability to work and to discuss the findings of the March 13, 2013 FCE. 

In e-mails dated October 13 and 18, 2015, OWCP indicated that Dr. Miller had declined 

to reexamine appellant. Consequently, it scheduled a new referee examination with Dr. J.S. 

Player, Board-certified in orthopedic surgery. 

In his November 16, 2015 report, Dr. Player reported that appellant complained of no 

nonoccupational conditions that could have impacted her ability to work. He opined, however, 

that appellant displayed very high symptom magnification and overstatement of pain as the 

examination documented no positive objective neurologic findings for the upper extremity and 

cervical spine, no positive objective neurologic findings for the lower extremity and lumbar 

spine, and no musculoskeletal or neurologic problems that could negatively impact her ability to 

work. Dr. Player opined that her cervical spine, upper extremity, and bilateral foot conditions 

were not accepted conditions and were not related to the May 12, 2010 work injury or any 

factors of her employment. He advised that the primary and persisting pathology caused by the 

May 12, 2010 work injury was a lumbar strain, which should have resolved within three months. 

Dr. Player advised that the March 13, 2013 FCE revealed that appellant was capable of 

working in the medium physical demand category, consistent with lifting and carrying 20 to 50 

pounds occasionally and 10 to 25 pounds frequently. He noted that, while she was not able to 

perform full duty as a mail processor which required 70 pounds of lifting and carrying, her 

assertions of being unable to perform frequent lifting, or prolonged standing were not 

substantiated by positive objective physical findings. Dr. Player opined that there was no 

musculoskeletal or neurological reason as to why appellant could perform frequent lifting up to 

25 pounds and occasional lifting up to 50 pounds. He advised that although the March 4, 2015 

cervical spine EMG did reveal a mild C6 radiculopathy and that the accompanying CAT scans 

documented degenerative disc disease, Dr. Player noted that these conditions were preexisting. 

He opined that, given all of appellant’s occupational and nonoccupational conditions, she was 

capable of performing work activities that fell within the lift/carry restrictions of frequent lifting 

of up to 25 pounds and occasional lifting up to 50 pounds. 

Dr. Player submitted a November 16, 2015 work capacity evaluation (Form OWCP-5c) 

in which he indicated that appellant could perform sedentary work for eight hours per day, with 

restrictions of no pushing, pulling, or lifting more than 25 pounds. 
6

By letter dated February 4, 2016, OWCP informed appellant that the offered position was 

suitable, advised her of the sanctions for refusal of suitable work, and allowed her 30 days to 

reply. It noted that the employing establishment had advised on January 14, 2016 that its 

December 2014 job offer was still valid. 

By letter dated February 9, 2016, appellant informed OWCP that she was refusing the 

modified sales services and distribution job offer. She asserted that she was not medically fit for 

the position and that it was not suitable for her because she was unable to sit, stand, or walk for 

prolonged period, or lift, push, or pull, or perform simple grasping and fine manipulation on a 

frequent basis. Appellant asserted that her limitations were due to both work-related and 

nonwork-related lumbar and cervical conditions, as indicated by various diagnostic tests. 

By letter dated March 10, 2016, OWCP advised appellant that the modified sales services 

and distribution associate position was suitable and remained available and that, pursuant to 5 

U.S.C. § 8106(c)(2), she had 15 days to either accept the position or provide a reasonable 

explanation for refusing the offer. If she failed to comply her entitlement to compensation 

benefits would be terminated. 

By decision dated May 19, 2016, OWCP terminated appellant’s compensation benefits 

because she refused an offer of suitable work. It found that the position offered by the 

employing establishment was within Dr. Player’s work restrictions and that the medical evidence 

of record established that she was capable of performing the modified sales services and 

distribution associate job. OWCP also noted that appellant had been afforded the requisite 15-

day notice and opportunity to comply with 5 U.S.C. § 8106(c). 

LEGAL PRECEDENT 

Once OWCP accepts a claim it bears the burden of proof to justify termination or 

modification of compensation benefits.6

 This includes cases where OWCP terminates 

compensation under 5 U.S.C. § 8106(c) for refusal of suitable work.7

 Section 8106(c) is a 

penalty provision and shall be narrowly construed.8

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

offered to, procured by, or secured for her is not entitled to compensation.9

 It is the employee’s 

burden to show that this refusal or failure to work was reasonable or justified.10 Whether an 

employee has the ability to perform an offered position is primarily a medical question that must 

be resolved by the medical evidence.11 In evaluating the suitability of a particular position, 

 6 James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992). 

7 Y.A., 59 ECAB 701, 706 (2008); Henry W. Sheperd, III, 48 ECAB 382, 384 (1997); Shirley B. Livingston, 42 

ECAB 855, 860 (1991). 

8 Stephen A. Pasquale, 57 ECAB 396, 402 (2006). 

9

 5 U.S.C. § 8106(c)(2); 20 C.F.R. § 10.517. 

10 20 C.F.R. § 10.517. 

11 Gayle Harris, 52 ECAB 319, 321 (2001). 
7

OWCP must consider the employment-related condition(s), as well as preexisting and 

subsequently acquired medical conditions.12 If medical reports in the file document a condition 

which has arisen since the compensable injury, and this condition disables the claimant from the 

offered job, the job will be considered unsuitable even if the subsequently acquired condition is 

not work related.13

When OWCP considers a job to be suitable, it shall advise the employee of its finding 

and afford her 30 days to either accept the job or present any reasons to counter OWCP’s finding 

of suitability.14 If the employee presents such reasons and OWCP determines that the reasons 

are unacceptable, it will notify the employee of that determination and further inform the 

employee that she has 15 days within which to accept the offered work without penalty.15 After 

providing the 30-day and 15-day notices, OWCP will terminate the employee’s entitlement to 

further wage-loss compensation and schedule award benefits.16 However, the employee remains 

entitled to medical benefits.17 

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.18 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”19 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.20

ANALYSIS 

On May 12, 2010 appellant injured her lower back in the performance of duty. Her 

accepted conditions included lumbar back sprain and temporary aggravation of lumbar 

degenerative disc disease. Following OWCP-approved surgery on May 10, 2012 appellant 

received wage-loss compensation for temporary total disability. It ultimately placed her on the 

periodic compensation rolls. Effective May 19, 2016 OWCP terminated appellant’s 

 12 Id.; Martha A. McConnell, 50 ECAB 129, 132 (1998). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers & Return to Work, Chapter 2.814.4c(7) 

(June 2013). 

14 20 C.F.R. § 10.516. 

15 Id. The 15-day notification need not explain why OWCP found the employee’s reasons for refusal 

unacceptable. Id.

16 Id. at § 10.517(b). 

17 Id.

18 5 U.S.C. § 8123(a); see id. at § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). 

19 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

20 Gary R. Sieber, 46 ECAB 215, 225 (1994). 
8

compensation benefits pursuant to 5 U.S.C. § 8106(c) for refusal of suitable work. It found that 

the special weight of the medical evidence established that the modified sales service and 

distribution associate position was within the physical restrictions set forth by Dr. Player, the 

impartial medical examiner. 

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

effective May 19, 2016, pursuant to 5 U.S.C. § 8106(c)(2) because she refused an offer of 

suitable work. 

On or about November 25, 2014 the employing establishment offered appellant a fulltime modified position as a sales services and distribution associate. The position involved 

servicing customers at the window with letters, packages, and mailing options. Additional duties 

included counting money, retrieving accountable mail, clearing carriers of accountable mail, and 

casing mail.21 OWCP determined that the duties were consistent with Dr. Player’s 

November 16, 2015 work restrictions. It also verified that the position remained available as of 

January 14, 2016. 

The evidence of record shows that appellant is capable of performing the sales services 

and distribution associate position offered by the employing establishment and which was 

determined to be suitable by OWCP on February 4 and March 10, 2016. OWCP properly 

afforded the weight of the medical evidence to Dr. Player, the impartial medical examiner and 

Board-certified orthopedic surgeon. On November 16, 2015 Dr. Player indicated that, based on 

the March 13, 2013 FCE, appellant was capable of working in the medium physical demand 

category, consistent with lifting and carrying 20 to 50 pounds occasionally and 10 to 25 pounds 

frequently. He opined that, while she was unable to perform full duty as a mail processor, her 

assertions of being unable to perform frequent lifting, or prolonged standing were not 

substantiated by positive objective physical findings. Dr. Player advised that there was no 

musculoskeletal or neurological reason to prevent appellant from frequent lifting up to 25 pounds 

and occasional lifting up to 50 pounds. He provided a review of her lengthy medical history and 

opined that, given all of her occupational and nonoccupational conditions, she was capable of 

performing eight hours of sedentary work per day, including work activities that fell within the 

lift/carry restrictions of frequent lifting of up to 25 pounds and occasional lifting up to 50 

pounds, and pushing and pulling no more than 25 pounds. 

Where OWCP has referred the case to an impartial medical examiner to resolve a conflict 

in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and based 

upon a proper factual background, must be given special weight.22

The Board finds that the work restrictions of the modified sales services and distribution 

associate met Dr. Player’s physical restrictions. Dr. Player’s opinion is sufficiently probative, 

 21 The physical requirements of the position included up to six hours of frequent lifting not to exceed 20 pounds, 

up to six hours of standing, walking, simple grasping, and fine manipulation, and up to six hours of pushing/pulling, 

not to exceed 20 pounds. Lastly, the modified assignment required up to two hours of sitting and reaching above 

shoulder. 

22 Supra note 20. 
9

rationalized, and based upon a proper factual background. Therefore, OWCP properly found that 

his opinion represented the special weight of the medical evidence. 

The record does not reveal that the sales services and distribution associate position 

offered by the employing establishment was temporary in nature.23 The Board therefore finds 

that OWCP has established that the position offered by the employing establishment is suitable. 

After OWCP established that the offered position was suitable, the burden shifted to 

appellant to establish that her refusal was reasonable or justified.24 Appellant has provided no 

evidence sufficient to establish that the suitable work required performance of any duties beyond 

the work restrictions imposed by Dr. Player. 

An employee who refuses or neglects to work, after suitable work has been offered, has 

the burden of proof to show that such refusal to work was justified.25 Appellant has not 

submitted medical evidence sufficient to show that her refusal to accept the February 4, 2016 

modified job offer was reasonable or justified. The Board finds that OWCP properly terminated 

her monetary compensation due to her refusal of suitable work and that she did not thereafter 

establish that her refusal of suitable work was justified. The Board, therefore, affirms OWCP’s 

May 19, 2016 decision which terminated appellant’s compensation pursuant to 5 U.S.C. 

§ 8106(c)(2). 

CONCLUSION 

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

pursuant to 5 U.S.C. § 8106(c)(2), for refusing an offer of suitable work. 

 23 If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a 

permanent job at the time of injury, the penalty language of section 8106(c)(2) cannot be applied. See supra note 13 

at Chapter 2.814.4c(5), 9 (June 2013). 

24 M.S., 58 ECAB 328 (2007). 

25 5 U.S.C. § 8106(c)(2). 
10

ORDER 

IT IS HEREBY ORDERED THAT the May 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board