United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Buffalo, NY, Employer

__________________________________________

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Docket No. 18-1532

Issued: April 8, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 6, 2018 appellant, through counsel, filed a timely appeal from a May 30, 2018 

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.3

 

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. 

3 The Board notes that following the May 30, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for 

the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to schedule award benefits, effective September 27, 2017, as he 

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

FACTUAL HISTORY

On September 27, 2013 appellant, then a 56-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 25, 2013 he sustained a right ankle injury 

when he slipped on a pipe as he walked across a lawn delivering mail while in the performance of 

duty. He stopped work on September 27, 2013 and has not returned.

OWCP accepted that appellant sustained a right ankle sprain. It expanded acceptance of 

the claim to include villonodular synovitis of the right ankle and foot. OWCP paid appellant wageloss compensation commencing November 11, 2013 and on the periodic rolls effective 

February 9, 2014.

On April 7, 2014 Dr. Jennifer Gurske-dePerio, a treating Board-certified orthopedic 

surgeon, performed an arthroscopic debridement of the right ankle, arthroscopic excision of a 

lesion of the right lateral talus, open treatment of a medial talar body fracture and excision of 

fragments, and saucerization of the right anteromedial talar neck and head.4 She held appellant 

off work. Dr. Gurske-dePerio administered a series of steroid injections to the right ankle and 

prescribed a custom Arizona brace.

5

An April 21, 2016 functional capacity evaluation (FCE), performed at Dr. GurskedePerio’s request, demonstrated appellant’s capacity to perform full-time sedentary to light-duty 

work, with restrictions of lifting limited to 10 pounds frequently and 20 pounds occasionally, and 

occasional walking and standing.

On August 16, 2016 OWCP obtained a second opinion regarding the nature and extent of 

appellant’s continuing employment-related condition from Dr. Donald Paarlberg, a Boardcertified orthopedic surgeon. Dr. Paarlberg reviewed the medical record and a statement of 

accepted facts (SOAF). On examination of the right lower extremity he noted limited motion of 

the ankle in all planes with minimal swelling. Dr. Paarlberg diagnosed status post ankle injury, 

osteochondral defect of the talar dome with debridement, microfracturing, and subsequent arthritis. 

He opined that appellant continued to have residuals of the accepted injury that disabled him from 

his date-of-injury job. Dr. Paarlberg opined that appellant could perform full-time sedentary duty 

with walking and standing for up to 10 minutes, no squatting, kneeling, or climbing, and lifting 

limited to 10 pounds.

 

 

4 Appellant participated in physical therapy treatments from June to September 2014. 

 

5 On January 6, 2015 OWCP obtained a second opinion regarding appellant’s work capacity from Dr. Sury M. 

Putcha, a Board-certified orthopedic surgeon. Dr. Putcha opined that appellant could perform full-time modified duty 

with walking limited to two hours a day, but could not resume his date-of-injury position. The employing

establishment confirmed on May 18, 2015 that there was no work available within Dr. Putcha’s restrictions.
3

In response to OWCP’s request for a supplemental report regarding appellant’s work 

capacity, Dr. Paarlberg provided an October 6, 2016 addendum indicating that, based on the 

April 21, 2016 FCE, appellant could perform full-time work with occasional walking and standing, 

lifting up to 10 pounds frequently and 20 pounds occasionally, operating a motor vehicle for up to 

eight hours a day, and no squatting, kneeling, or climbing. He also submitted a work capacity 

evaluation for musculoskeletal conditions (Form OWCP-5c) in which he clarified that appellant 

could walk up to eight hours a day if he wore his Arizona brace and could stand occasionally for 

up to eight hours a day.

In reports dated November 22, 2016, Dr. Gurske-dePerio returned appellant to full-time, 

limited-duty work within the tolerances demonstrated during the April 21, 2016 FCE.

On April 10, 2017 the employing establishment offered appellant a position as a full-time 

modified city carrier, casing and delivering mail. During each 8-hour work shift, the position 

required sitting, reaching, twisting, and grasping for 8 hours; standing and walking for up to 2

hours and 40 minutes; frequent holding up to 10 pounds for 5 hours and 20 minutes; occasional 

holding up to 10 pounds for 2 hours and 40 minutes; and driving for up to 5 hours and 20 minutes.

By letter dated April 27, 2017, OWCP notified appellant that the offered position was 

suitable and provided him 30 days to accept the position or to provide reasons for his refusal. It 

informed him that an employee who refused an offer of suitable work was not entitled to 

compensation, pursuant to 5 U.S.C. § 8106(c)(2).

Appellant, in a May 25, 2017 response, rejected the offered position. He asserted that its

physical requirements exceeded the work limitations noted in both the April 21, 2016 FCE and the 

updated medical opinions from Dr. Gurske-dePerio. In reports dated May 25, 2017, Dr. GurskedePerio opined that appellant’s continuing right ankle soreness and limited motion was 

attributable, in part, to his failure to comply with postsurgical instructions against full weight 

bearing on the right foot for six weeks to allow the cartilage to heal. She diagnosed osteoarthritis.6 

Dr. Gurske-dePerio opined that appellant could perform full-time work within the tolerances 

demonstrated by the April 21, 2016 FCE.

On July 7, 2017 OWCP advised appellant that his reasons for refusing the position were 

invalid and provided him an additional 15 days to accept the position or have his entitlement to 

wage-loss compensation benefits terminated. No response was received.

By decision dated September 27, 2017, OWCP terminated appellant’s wage-loss 

compensation and entitlement to schedule award benefits as he had refused an offer of suitable 

work.

On October 6, 2017 appellant, through counsel, requested a telephonic oral hearing before 

an OWCP hearing representative. At the hearing, held March 15, 2018, he contended that he 

continued to have difficulties with his right ankle and could not stand for more than a few minutes.

Appellant ambulated with a quad cane or Canadian crutch and wore a prescribed Arizona brace. 

 

 

6 May 25, 2017 right ankle x-rays demonstrated a lesion of the lateral talus, an excised talar dome fracture, calcific 

changes at the Achilles insertion, and a distal tibia exostosis consistent with post-traumatic arthritis of the ankle.
4

He submitted a report from Dr. Gurske-dePerio dated November 29, 2017, reiterating that he could 

perform full-time work within the tolerances demonstrated during the April 12, 2016 FCE.

By decision dated May 30, 2018, an OWCP hearing representative affirmed OWCP’s

decision dated September 27, 2017, finding that the additional medical evidence did not establish 

that appellant was unable to perform the offered position.

LEGAL PRECEDENT

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

compensation benefits.7 Section 8106(c)(2) of FECA8 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.9 To justify termination of compensation, it must show 

that the work offered was suitable and must inform appellant of the consequences of refusal to 

accept such employment.10 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.11

Section 10.517(a) of FECA’s implementing regulations provides 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.12 Section 

10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is 

suitable and provide 30 days for the employee to accept the job or present any reasons to counter

OWCP’s finding of suitability.13 Thus, before terminating compensation, OWCP must review the 

employee’s proffered reasons for refusing or neglecting to work.14 If the employee presents such 

reasons and OWCP finds them unacceptable, it will offer the employee an additional 15 days to 

accept the job without penalty.15

Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the 

employee who refuses to work to show that the refusal or failure to work was reasonable or 

justified.16 The determination of whether an employee is physically capable of performing a 

 

 

7 Linda D. Guerrero, 54 ECAB 556 (2003). 

 

8 Supra note 2.

9 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

 

10 Ronald M. Jones, 52 ECAB 190 (2000). 

11 Joan F. Burke, 54 ECAB 406 (2003).

 

12 20 C.F.R. § 10.517(a); Ronald M. Jones, supra note 10.

 

13 20 C.F.R. § 10.516.

14 See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

15 20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003).

16 Id. at § 10.517(a).
5

modified assignment is a medical question that must be resolved by medical evidence.17 OWCP 

procedures state that acceptable reasons for refusing an offered position include medical evidence 

of inability to do the work.18 

ANALYSIS

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

entitlement to schedule award benefits, effective September 27, 2017, pursuant to 5 U.S.C. 

§ 8106(c)(2), due to his refusal of an offer of suitable work. 

Dr. Gurske-dePerio, an attending physician, obtained an April 21, 2016 FCE, which 

demonstrated that appellant could perform full-time sedentary to light-duty work with occasional 

walking and standing. Dr. Paarlberg, an OWCP referral physician, opined in an October 6, 2016 

report that appellant could perform full-time light-duty work. He found that, if appellant wore his 

prescribed Arizona brace, he could drive, walk, and stand for up to eight hours a day.

Based on Dr. Paarlberg’s report, the employing establishment offered appellant a position 

as a modified city carrier. The duties involved casing and delivering mail. The position required 

sitting for up to 8 hours a day, standing and walking for up to 2 hours and 40 minutes a day, holding 

up to 10 pounds for 8 hours a day, and driving up to 5 hours and 20 minutes a day. The position 

was within the restriction parameters set forth by Dr. Paarlberg, OWCP’s referral physician. The 

Board finds, therefore, that OWCP properly determined that the offered position was suitable.19 

In accordance with the procedural requirements of section 8106(c),20 OWCP advised 

appellant on April 27, 2017 that it found the position offered by the employing establishment 

suitable and provided him the opportunity to accept the position or provide reasons for his refusal 

within 30 days. Appellant submitted May 25, 2017 reports from Dr. Gurske-dePerio, who 

reiterated that appellant could perform full-time light-duty work within the tolerances of the 

April 2, 2016 FCE. Dr. Gurske-dePerio did not indicate that appellant was medically unable to 

perform any aspect of the offered position.

By letter dated July 7, 2017, OWCP informed appellant that his reasons for refusing the 

position were not acceptable and provided him an additional 15 days to accept the position or have 

his compensation terminated. Appellant did not accept the position or otherwise report to duty. 

The Board, consequently, finds that OWCP followed established procedures prior to the 

termination of compensation pursuant to section 8106(c) of FECA.21

 

17 D.L., Docket No. 18-0862 (issued October 12, 2018); Gayle Harris, 52 ECAB 319 (2001).

 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4) 

(June 2013).

19 D.L., supra note 17.

20 5 U.S.C. § 8106(c).

21 D.L., supra note 17.
6

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

to appellant to establish that his refusal was reasonable or justified.22 Subsequent to OWCP’s 

termination of his wage-loss compensation, appellant submitted a November 29, 2017 report from

Dr. Gurske-dePerio, who reiterated that appellant could work full time within the restrictions 

indicated by the April 21, 2016 FCE as he continued to have right ankle discomfort. Dr. GurskedePerio did not indicate that appellant was medically unable to perform the modified position. 

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to schedule award benefits, effective September 27, 2017, as he 

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

ORDER

IT IS HEREBY ORDERED THAT the May 30, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 Id.; see M.S., 58 ECAB 328 (2007).