United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

U.S. POSTAL SERVICE, MID-HUDSON 

PROCESSING & DISTRIBUTION CENTER, 

Newburgh, NY, Employer 

__________________________________________ 

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Docket No. 17-0582 

Issued: September 6, 2017 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 21, 2017 appellant, through counsel, filed a timely appeal from an 

October 25, 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 to consider the merits of this case. 

 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

ISSUE 

The issue properly terminated appellant’s wage-loss compensation effective 

November 30, 2015 for refusal of suitable work under 5 U.S.C. § 8106(c)(2). 

On appeal appellant’s representative contends that the evidence of record establishes that 

the offered position was unsuitable. 

FACTUAL HISTORY 

On August 19, 2013 appellant, then a 51-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging a worsening of her lumbar condition due to moving heavy 

machinery, heavy lifting, and daily twisting and pushing. Her duty station was listed on the 

claim form as a post office facility in Newburgh, NY. Appellant’s home address was in 

Cragsmoor, NY. She stopped work on August 26, 2013 and has not returned. 

OWCP accepted appellant’s claim for lumbar intervertebral disc displacement without 

myelopathy/aggravation of L5-S1 herniated disc. By letter dated January 2, 2014, it placed 

appellant on the periodic rolls for temporary total disability with her first regular payment 

covering the period December 15, 2013 to January 11, 2014. 

In a January 9, 2014 duty status form (Form CA-17), Dr. G. Giudici, a treating physician 

Board-certified in internal medicine and psychiatry, checked a box marked “no” to the question 

of whether appellant was advised that she could resume work. He noted that appellant was 

prohibited from driving due to her pain medication. 

On January 13, 2014 OWCP received an August 2, 2013 notification from the employing 

establishment which was sent to appellant regarding an involuntary reassignment to the Albany 

Processing and Distribution Center as a mail handler for a 120-day detail. The notification did 

not indicate the effective dates of this reassignment. 

In multiple CA-17 forms covering the period February 3 to July 20, 2015, Dr. Giudici 

reiterated appellant’s work restrictions and prohibition on driving. 

In reports dated March 20, April 23, and May 22, 2014, Dr. Giudici reviewed appellant’s 

medical history, objective tests, and treatment and performed a physical and mental examination. 

He diagnosed major depression, adjustment disorder, lumbosacral disease with left-sided L4-5 

and L4-5 herniated discs, L3-4 grade 1 retrolisthesis, L4-5 anterolisthesis, and right knee 

chondromalacia. 

Dr. Giudici submitted multiple work capacity evaluation forms (Form OWCP-5c) and 

attending physician’s reports (Form CA-20) diagnosing lumbar herniated discs and left L4 

radiculopathy. He indicated that appellant had been disabled from work since August 26, 2013, 

that her prognosis was guarded, and she required further treatment. In support of this conclusion, 

Dr. Giudici noted that appellant was prohibited from driving due to her pain medication and 

body collapse caused by motor weakness and left L4 nerve root weakness. 
3

On August 4, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Marie Czaplieki-Margiotti, a Board-certified orthopedic surgeon, for an evaluation of 

appellant’s disability status. 

In an August 6, 2015 investigative memorandum addendum, the employing establishment 

Office of Inspector General (OIG) summarized its findings from a prior December 8, 2014 report 

and provided surveillance video obtained from December 8, 2014 to August 5, 2015. It attached 

a July 20, 2015 video surveillance of appellant for review. 

In a letter dated August 6, 2015, OWCP informed appellant that a report and surveillance 

video from the employing establishment’s OIG had been provided to Dr. Czaplieki-Margiotti. 

In an August 26, 2015 report, Dr. Czaplieki-Margiotti detailed appellant’s medical and 

factual history and reported the findings of the physical examination conducted that day.3

 She 

noted that appellant had good shoulder range of motion, some achiness in the trapezium and 

neck, limited neck range of motion, no motor deficits, negative wrist and elbow Tinel’s signs, 

and negative straight leg testing. Dr. Czaplieki-Margiotti reported that she was unable to 

determine any real motor deficits due to appellant’s failure to provide adequate effort. She found 

no objective findings supporting that the L4-5 lumbar herniated disc was present and that most of 

appellant’s symptoms were subjective. Dr. Czaplieki-Margiotti also opined that the accepted 

employment-related aggravation was not permanent. She noted that appellant’s 2013 magnetic 

resonance imaging (MRI) scan showed improvement over prior scans. Dr. Czaplieki-Margiotti 

opined that appellant’s medical findings showed no residuals or disability due to the accepted 

employment condition and that her complaints were present prior to the 2013 episode. Given the 

surveillance material, it appeared that appellant’s objective findings were questionable in view of 

her movements on the surveillance video taken the prior month.4

 Dr. Czaplieki-Margiotti found 

that appellant might be partially disabled due to some lumbar findings, but that she was capable 

of performing light-duty employment. She opined that she did not believe appellant would ever 

reach full recovery, but that appellant’s current condition was more related to the aging process 

than any specific injury. 

In the attached OWCP-5c form, Dr. Czaplieki-Margiotti diagnosed degenerative disc 

disease and provided permanent restrictions which included a 15-minute break every two hours. 

She noted the strength level was sedentary and physical restrictions included up to five hours of 

standing; up to two hours of reaching, twisting, and bending/stooping; no climbing; up to two 

hours of lifting 20 pounds; and up to four hours of pushing or pulling up to 20 pounds. 

 3

 Subsequent to OWCP’s referral to Dr. Czaplieki-Margiotti, the physician noted that she had been provided a 

copy of the August 6, 2015 OIG investigative memorandum addendum and accompanying surveillance video. 

4

 In her review of the surveillance materials, Dr. Czaplieki-Margiotti noted that there were multiple pictures and 

three video clips of appellant. One clip showed her entering a place called West Gate Pavilion and carrying her cane 

and a heavy pocketbook. Appellant was observed coming out twice to smoke and was seen walking briskly. 

Dr. Czaplieki-Margiotti reported that she did not believe she saw appellant using her cane. The second clip showed 

appellant coming out of a building to smoke and using her cane infrequently and possibly having a limp. Lastly, 

appellant was observed picking up her cigarette lighter after dropping it with no difficulty. 
4

The record contains form reports completed by Dr. Giudici dated July 20 and August 26, 

2015, with findings unchanged from prior form reports. 

In a letter dated September 3, 2015, appellant’s then-representative requested a copy of 

the second opinion physician’s report including the statement of accepted facts (SOAF) and 

questions posed. 

On September 29, 2015 OWCP provided appellant’s then representative with the letter to 

the physician, the SOAF, and August 26, 2015 report. 

On October 20, 2015 the employing establishment offered appellant a modified mail 

handler job located in the Albany, NY Processing & Distribution Center with the restrictions 

noted by Dr. Czaplieki-Margiotti.5

 The work restrictions included up to two hours of standing, 

bending, stooping, and twisting; up to five hours of walking; up to two hours of lifting 20 

pounds; and up to four hours of pushing/pulling up to 40 pounds. The duties of the position were 

described as up to six hours of repairing damaged mail, up to two hours of tray up flats, and up to 

two hours of preparing “PARS.” 

By letter dated October 28, 2015, OWCP advised appellant that it found the job offer 

from the employing establishment to be suitable. Appellant was notified of the provisions of 5 

U.S.C. § 8106(c)(2), and indicated the case record would be held open for 30 days for her to 

submit further evidence. 

In CA-110 telephone call notes dated November 2, 2015, appellant informed OWCP that 

the second opinion physician failed to note or consider all of her prescribed medications. OWCP 

advised appellant to put her contentions in writing. 

By decision dated December 2, 2015, OWCP terminated appellant’s wage-loss 

compensation benefits and schedule award entitlement effective November 30, 2015 under 5 

U.S.C. § 8106(c), as she had refused the offer of suitable work. It found that the offered 

modified mail handler position conformed to the restrictions noted by Dr. Czaplieki-Margiotti 

demonstrating that appellant could perform full-time modified duty. 

On December 14, 2015 appellant, through her representative, requested a telephonic 

hearing before an OWCP hearing representative. 

In a December 22, 2015 report, Dr. Giudici noted that appellant had a herniated lumbar 

disc, left L4 radiculopathy, lower back nerve damage, and decreased lumbar range of motion 

with severe spasm. He noted that appellant could not drive or operate heavy machinery due to 

her prescribed medication. 

On December 30, 2015 OWCP received an undated statement from appellant. She wrote 

that she was unable to drive the 100 miles to the facility where the offered job was located since 

she cannot operate a motor vehicle and was unable to sit for long periods of time. 

 5

 The record establishes that the offered position in Albany, NY is approximately 100 miles from appellant’s 

home in Cragsmoor, NY. 
5

OWCP received medical reports and forms from Dr. Giudici covering the period 

January 22 to August 16, 2016 which reiterated work restrictions, diagnoses, physical findings, 

and medical history as set forth in prior reports and forms. 

At the hearing held on August 10, 2016 appellant’s representative noted that the second 

opinion physician had been sent a surveillance video. In response to questioning by her 

representative, appellant explained that she was at the Westgate Pavilion because she was 

visiting her doctor whose office was located in that facility. Next, she explained that the 

pocketbook seen on the surveillance video might have looked heavy, but actually was quite light 

as it was a quilted bag. Appellant also testified that, according to New York State Law, she was 

precluded from driving due to her prescribed medication. 

By decision dated October 25, 2016, the hearing representative affirmed the December 2, 

2015 OWCP decision. She found the evidence established that the job offer was medically 

suitable. The hearing representative also found that appellant refused to work after suitable work 

was made available to her. 

LEGAL PRECEDENT 

Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek 

suitable work or refuses or neglects to work after suitable work is offered to, procured by, or 

secured for him is not entitled to compensation.6 Once OWCP accepts a claim, it has the burden 

of justifying termination or modification of compensation benefits under section 8106(c) for 

refusing to accept or neglecting to perform suitable work.7 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.8 

To justify termination, OWCP must show that the work offered was suitable and that 

appellant was informed of the consequences of her refusal to accept such employment.9

 

OWCP procedures provide factors to be considered in determining what constitutes 

suitable work for a particular disabled employee, include 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.10

OWCP’s regulations provide that the employing establishment, if possible, should offer 

suitable reemployment in the location where the employee currently resides. If this is not 

 6

 5 U.S.C. § 8106(c)(2). 

7 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

8 H. Adrian Osborne, 48 ECAB 556 (1997). 

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

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offer and Return to Work, Chapter 2.814.4(a)(2) 

(June 2013). 
6

practical, the employing establishment may offer suitable reemployment at the employee’s 

former duty station or other location.11 

ANALYSIS 

The employing establishment offered appellant a sedentary position as a modified mail 

handler job in Albany, NY, which accommodated the work restrictions provided by 

Dr. Czaplieki-Margiotti, the second opinion physician. OWCP reviewed the position and found 

it to be suitable and therefore terminated her wage-loss compensation as it found that she refused 

the employing establishment’s October 20, 2015 job offer. On appeal appellant’s representative 

contends that the location of the offered position rendered it unsuitable as it was located 

approximately 100 miles away from appellant’s home in Cragsmoor, NY and that Dr. CzapliekiMargiotti never addressed appellant’s ability to drive. Her representative also argues that 

surveillance video unjustly influenced Dr. Czaplieki-Margiotti’s opinion.12

The Board finds that OWCP did not meet its burden of proof to establish that the offered 

position was suitable as it did not make any attempt to determine whether suitable employment 

was possible in or around Cragsmoor, NY, appellant’s residence at the time of the job offer. 

The Board has previously recognized that OWCP procedures require that if the job offer 

is for a site outside of the claimant’s residential area, the employing establishment must 

document that it first searched for suitable employment in the claimant’s current geographic 

area.13

The evidence of record indicates that appellant’s residence is geographically located 

approximately 100 miles from the location of the offered position in Albany, NY. OWCP should 

have developed this aspect of the case before finding the offer suitable. Its regulations provide 

that the employing establishment should offer suitable reemployment where the employee 

currently resides, if possible.14 The Board noted in Sharon L. Dean15 that OWCP’s regulations 

provide that the employing establishment “should” offer suitable reemployment where the 

employee currently resides, if possible. The Board further found that it was reversible error for 

OWCP to terminate appellant’s compensation benefits without positive evidence showing that 

such an offer was not possible or practical in appellant’s geographic location. In W.D.,16 the 

 11 20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB 175 (2004). 

12 OWCP has the responsibility to make the claimant aware of videotape evidence it has provided to a medical 

expert. It properly did so here by informing appellant on August 6, 2015 that the surveillance video and report had 

been provided to Dr. Czaplieki-Margiotti. If the employee requests a copy of the videotape, one should be made 

available and the employee given a reasonable opportunity to offer any comment or explanation regarding the 

accuracy of the recording. Appellant provided testimony at OWCP’s hearing regarding the activities seen on the 

video. See J.J., Docket No. 15-0475 (issued September 28, 2016). 

13 W.D., Docket No. 15-1297 (issued August 23, 2016); supra note 10. 

14 Supra note 10. 

15 Sharon L. Dean, supra note 11; see also L.D., Docket No. 12-816 (issued April 9, 2013). 

16 Supra note 13. 
7

Board reaffirmed that, if the job offer is for a site outside of the employee’s residential area, the 

employing establishment must document that it first searched for suitable employment in the 

employee’s current geographic area. 

The Board finds that OWCP did not substantiate that the employing establishment 

performed a current and proper search for suitable employment in appellant’s geographic area. 

OWCP therefore did not properly find the offered Albany, NY position was suitable. The 

October 25, 2016 termination decision is reversed. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation for refusal of suitable work under 5 U.S.C. § 8106(c)(2). 

ORDER 

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

Compensation Programs dated October 25, 2016 is reversed. 

Issued: September 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board