United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Wayne, NJ, Employer

__________________________________________

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Docket No. 17-1944

Issued: December 18, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 September 18, 2017 appellant filed a timely appeal from an August 4, 2017 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 pursuant to

5 U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016.

FACTUAL HISTORY

On April 25, 2006 OWCP accepted that appellant, then a 46-year-old letter carrier, 

sustained a lumbar strain and aggravation of herniated disc at L5 and L5-S1 as a result of lifting

in the performance of duty. She also claimed a traumatic injury on January 19, 2005 which had 

 

1 5 U.S.C. § 8101 et seq.
2

been accepted for a lumbar sprain/strain, under File No. xxxxxx303. Appellant returned to limitedduty work as a modified city carrier on May 3, 2006. OWCP subsequently accepted that she

sustained two recurrences of total disability on May 9 and 19, 2006. It placed appellant on the 

periodic rolls and she received appropriate compensation benefits, including three authorized 

lumbar surgeries on September 11, 2006, August 20, 2007, and June 22, 2009. Appellant

participated in a vocational rehabilitation program, but did not secure a job.

In an August 8, 2014 report, Dr. Arash Emami, a Board-certified orthopedic surgeon, noted 

that appellant was status post spinal surgery and was not capable of returning to work as she had 

difficulty with sitting, standing, and walking for more than 10 to 20 minutes at a time. 

On February 18, 2015 OWCP referred appellant to Dr. Timothy Henderson, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of 

her employment-related conditions. In his March 19, 2015 report, Dr. Henderson provided a

detailed medical history, reviewed appellant’s medical records, and performed a physical 

examination. He opined that appellant suffered residuals of her accepted conditions, but did not 

need further treatment. Dr. Henderson advised that appellant was capable of working in a fulltime sedentary position with a 10-pound lifting restriction.

Appellant underwent a functional capacity evaluation (FCE) on April 14, 2015, which 

indicated that she was capable of lifting up to 25 pounds occasionally, 20 pounds frequently, and 

10 pounds constantly in a full-time employment position.

In an April 20, 2015 addendum report, Dr. Henderson reviewed the April 14, 2015 FCE 

report and concurred with appellant’s ability to perform full-time, light duty with a 25-pound 

lifting restriction.

On May 29, 2015 Dr. Emami noted that appellant’s FCE was not available for his review 

and requested a copy in order to be more accurate with regard to her work capacity. 

In a November 5, 2015 letter, OWCP notified appellant that a conflict existed between the 

medical opinion evidence between her treating physician, Dr. Emami, and its second opinion 

physician, Dr. Henderson, regarding her continuing disability. It referred her to Dr. Michael 

Wujciak, a Board-certified orthopedic surgeon, in order to resolve the conflict. 

In a January 30, 2016 independent medical examination, Dr. Wujciak found that appellant 

continued to suffer permanent residuals from her work-related conditions, but was not totally 

disabled and could be gainfully employed with activities in the sedentary to light range. He opined 

that appellant was capable of working sedentary duty for eight hours per day and light duty for 

four hours per day. Appellant’s restrictions included lifting a maximum of 25 pounds with 10 to 

15 pounds frequently and 20 pounds occasionally.

On March 8, 2016 the employing establishment offered appellant a full-time modified 

customer care agent position which was available that day. The sedentary position required 

pushing and pulling four hours each up to 20 pounds and lifting four hours per day with 10 to 15

pounds frequently and 20 pounds occasionally. 
3

In a June 7, 2016 report, Dr. Emami opined that appellant was capable of returning to work 

in a light-duty, part-time position which would be a more sedentary position. He provided the 

following restrictions: no prolonged sitting, standing, and walking for more than 20 to 30 minutes 

at a time and no lifting over 20 pounds. 

By letter dated July 11, 2016, OWCP advised appellant that the customer care agent job 

offer was consistent with her physical limitations and remained open. It afforded her 30 days to 

accept the job or provide a reasonable, acceptable explanation for reusing the offer. OWCP noted 

that, if she refused this employment, or failed to report to work when scheduled, without reasonable 

cause, her compensation benefits would be terminated pursuant to 5 U.S.C. § 8106(c)(2). It noted 

that her right to continued medical treatment would not be terminated.

In response, appellant refused the offer and resubmitted a June 7, 2016 report from

Dr. Emami providing a 20-pound lifting restriction.

In a September 29, 2016 letter, OWCP advised appellant that it had considered her reasons 

for refusal and found them unacceptable. It afforded her 15 days in which to accept the position 

or her compensation benefits would be terminated. OWCP noted that no further reasons for refusal 

would be considered. 

On October 6, 2016 appellant called OWCP to report that she had accepted the job offer, 

but would be pursuing retirement and indicated that the employing establishment would be sending 

in supporting documentation. 

In an October 26, 2016 letter, the employing establishment notified appellant that she had 

been scheduled to report to a call center to begin training for the customer care agent position she 

accepted. The training was to be held from Monday through Friday from 8:00 a.m. to 4:30 p.m. 

for four consecutive weeks commencing October 31, 2016. 

On November 1, 2016 the employing establishment called OWCP to report appellant’s 

intention of staying on retirement and not returning to work or attending the training session 

identified in the October 26, 2016 notice. 

By decision dated November 7, 2016, OWCP terminated appellant’s compensation 

benefits effective that day as had she refused suitable employment. 

On November 27, 2016 appellant requested an oral hearing by a representative of OWCP’s 

Branch of Hearings and Review. 

Appellant submitted a December 9, 2016 report from Dr. Emami who noted that she had 

difficulty going back to work because it was more physically demanding than she could perform. 

A telephonic hearing was held before an OWCP hearing representative on June 13, 2017. 

Appellant provided testimony and the hearing representative held the case record open for 30 days 

for the submission of additional evidence. 

Subsequently, appellant submitted a June 16, 2017 report from Dr. Emami who diagnosed 

spinal stenosis of lumbar region and failed back syndrome and reiterated his opinion that appellant 
4

had difficulty going back to work because it was more physically demanding than she was able to 

perform.

By decision dated August 4, 2017, OWCP’s hearing representative affirmed the prior 

decision, noting that electing to receive retirement is not a valid reason for refusing an offer of 

suitable work. 

LEGAL PRECEDENT

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

compensation benefits.2 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 for the 

employee is not entitled to compensation.3 To justify termination of compensation, OWCP must 

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

to accept such employment.4 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.5

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.6 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.7

Before compensation can be terminated, however, OWCP has the burden of demonstrating 

that the employee can work, setting forth the specific restrictions, if any, on the employee’s ability 

to work, establishing that a position has been offered within the employee’s work restrictions and 

setting forth the specific job requirements of the position.8 In other words, to justify termination 

of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, OWCP has the burden 

of showing that the work offered to and refused by appellant was suitable.9

 

2 See Linda D. Guerrero, 54 ECAB 556 (2003).

3 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

4 See Ronald M. Jones, 52 ECAB 190 (2000).

5 See Joan F. Burke, 54 ECAB 406 (2003).

6 20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

8 See Linda Hilton, 52 ECAB 476 (2001).

9

Id.
5

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

who refuses to work to show that the refusal or failure to work was reasonable or justified.10 The 

determination of whether an employee is physically capable of performing a modified assignment 

is a medical question that must be resolved by medical evidence.11 OWCP procedures provide 

that acceptable reasons for refusing an offered position include medical evidence of an inability to 

do the work.12

ANALYSIS

The Board finds that OWCP properly terminated appellant’s compensation pursuant to 

5 U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016. 

OWCP accepted that appellant sustained a lumbar strain and aggravation of herniated disc 

at L5 and L5-S1 while in the performance of duty. Dr. Emami, an attending Board-certified 

orthopedic surgeon, found appellant totally disabled. Dr. Henderson, a Board-certified orthopedic 

surgeon and second opinion physician, submitted an April 20, 2015 report finding that appellant 

was able to perform full-time, light-duty work with a 25-pound lifting restriction. OWCP found a 

conflict in medical opinion between Dr. Emami and Dr. Henderson and selected Dr. Wujciak, a 

Board-certified orthopedic surgeon, as impartial medical examiner. On January 30, 2016

Dr. Wujciak concluded that appellant was capable of working full-time, sedentary duty with a 

lifting restriction of 25 pounds with 10 to 15 pounds frequently and 20 pounds occasionally.

On March 8, 2016 the employing establishment offered appellant a full-time modified 

customer care agent position which was available that day. The sedentary position required 

pushing and pulling four hours each up to 20 pounds and lifting four hours per day with 10 to 15 

pounds frequently and 20 pounds occasionally. OWCP found the position to be suitable work. 

Appellant accepted the offer, but did not report to the position because she was electing to retire. 

OWCP terminated her compensation benefits effective November 7, 2016 because she had refused 

an offer of suitable work.

The Board finds that the offered limited-duty customer care agent position was within 

appellant’s physical limitation as set forth by Dr. Wujciak on January 30, 2016.

13

 There is no 

indication in the job offer as written that any of the described sedentary duties exceeded

Dr. Wujciak’s restrictions. Moreover, appellant submitted a June 7, 2016 report from her 

attending physician, Dr. Emami, who opined that she was capable of going back to work in a lightduty, part-time position with a 20-pound lifting restriction. The Board further finds that the 

March 8, 2016 job offer was procedurally correct, as it was made in writing, provided a detailed 

description of the assigned duties and their physical requirements, and instructed appellant when 

 

10 20 C.F.R. § 10.517(a).

11 See Gayle Harris, 52 ECAB 319 (2001).

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

(June 2013).

13 See Richard P. Cortes, 56 ECAB 200 (2004).
6

to report for work.14 The Board therefore finds that OWCP met its burden of proof to establish 

that the position was suitable work.15

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), 20 C.F.R. 

§ 10.516, and Board precedent,16 OWCP advised appellant on July 11, 2016 that it found the job 

offer of modified customer care agent to be suitable and gave her an opportunity to provide reasons 

for refusing the position within 30 days. It advised her in a September 29, 2016 letter that her 

reason for refusing based her decision to elect retirement was insufficient and that she had 15 

additional days to accept the offered position. The Board had long held that electing to retire is 

not a justifiable reason to refuse an offer of suitable work.17 The Board finds that OWCP properly 

followed the established procedures prior to the termination of compensation pursuant to section 

8106(c)(2).18

In support of her claim, appellant submitted reports dated December 9, 2016 and June 16, 

2017 from Dr. Emami who diagnosed spinal stenosis of lumbar region and failed back syndrome 

and opined that she had difficulty going back to work because it was more physically demanding 

than she could perform. It is well established that OWCP must consider preexisting and 

subsequently-acquired conditions in evaluating the suitability of an offered position.19 At the time 

that it terminated appellant’s compensation, however, Dr. Emami had advised that she was capable 

of going back to work in a light-duty, part-time position with a 20-pound lifting restriction. 

Therefore, the Board finds that the reports from Dr. Emami lack probative value and fail to 

establish appellant’s claim that the offered position was not suitable.

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 pursuant to 5 

U.S.C. § 8106(c)(2) for refusal of suitable work, effective November 7, 2016.

 

14 See 20 C.F.R. § 10.507.

15 See Marilou Carmichael, 56 ECAB 451 (2005).

16 T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

17 Robert P. Mitchell, 52 ECAB 116 (2000); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers 

and Return to Work, Chapter 2.814.5(c) (June 2013).

18 C.H., Docket No. 17-0938 (issued November 27, 2017).

19 See supra note 13.
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ORDER

IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 18, 2018

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