United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 17-0222

Issued: December 21, 2018

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 8, 2016 appellant, through counsel, filed a timely appeal from a June 2, 2016 

merit decision and a September 20, 2016 nonmerit 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 the 

claim. 

 

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

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s compensation,

effective February 8, 2015, due to her refusal of suitable work under 5 U.S.C. § 8106(c)(2); and 

(2) whether it properly denied appellant’s request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 5, 2001 appellant, then a 49-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that her hand and wrist conditions were due to the repetitive 

motions required by her work duties. Specifically, she claimed that pounding bundles of mail, 

pasting stamps down, and separating and casing mail caused or contributed to injuries to her hands 

and wrists. OWCP accepted the claim for right carpal tunnel syndrome and left wrist sprain.3

Dr. Aerie Rim, appellant’s treating physiatrist, released appellant to return work on May 7, 

2001 with restrictions of no repetitive wrist motion, heavy lifting, or heavy pushing. Appellant 

returned to work in a limited-duty capacity and worked until September 2004 when her limitedduty position was withdrawn. OWCP began paying appellant wage-loss compensation on the 

periodic rolls as of October 3, 2004.4

OWCP subsequently received a series of progress notes from Dr. Adriana Manta, a treating 

physician Board-certified in physical medicine and rehabilitation. In a June 24, 2013 report,

Dr. Manta noted diagnoses of cervical radiculopathy, cervical disc displacement, carpal tunnel 

syndrome, chronic pain, and Chiari I malformation. 

On August 14, 2013 OWCP referred appellant for a second opinion examination to

Dr. Hormozan Aprin, a Board-certified orthopedic surgeon. It provided Dr. Aprin with appellant’s 

medical records and an August 1, 2013 statement of accepted facts (SOAF) referencing OWCP 

File No. xxxxxx906. OWCP asked him to address appellant’s disability status and to address her 

limitations resulting from both her work-related and nonwork-related conditions.

In an October 1, 2013 report, Dr. Aprin noted his review of the SOAF and that appellant 

reported a past medical history of a right shoulder and neck injury since 1996, from which she lost 

10 months of work time. He found that appellant suffered from disabling residuals of her accepted 

right carpal tunnel syndrome and left wrist sprain, which required further medical treatment. 

Dr. Aprin also noted objective findings of cervical radiculopathy, right carpal tunnel syndrome,

and herniated cervical disc. He found that appellant had the following physical limitations due to 

her work-related conditions: weakness in her hands, mostly right; decreased range of motion of 

both wrists; and inability to hold and carry heavy objects. Accordingly, appellant could not push, 

 

3 OWCP assigned the present claim OWCP File No. xxxxxx314. Appellant also has another accepted occupational 

disease claim, under OWCP File No. xxxxxx906, which was accepted for musculoskeletal chest pain. Appellant noted 

that she first became aware of her chest pain on October 10, 2001 which she alleged was caused by repeated lifting of 

mail. OWCP File Nos. xxxxxx314 and xxxxxx906 has have not been administratively combined. 

4 Appellant underwent second opinion evaluations on March 8, 2007 and April 29, 2009. Both second opinion 

physicians found her able to perform limited-duty work. 
3

pull, or lift heavy objects. Dr. Aprin found, however, that appellant was able to work part time in 

a sedentary job with restrictions based on her work-related and nonwork-related hand and neck

conditions. The restrictions involved no more than four hours of bending/stooping, and repetitive 

movements of the wrists and elbow. Also pushing/pulling and lifting were not to exceed 10 pounds 

in four hours. 

On September 17, 2014 the employing establishment offered appellant a modified position 

as a city carrier. The physical requirements of the position included: standing and walking limited 

to four hours; bending/stooping not to exceed four hours; repetitive movement of the wrist/elbows 

not to exceed four hours; pulling/pushing and lifting not to exceed 10 pounds, and limited to four

hours. 

On October 15, 2014 appellant signed the job offer “under protest and under duress.” She 

indicated, in an attached October 14, 2014 statement, that she was unable to work because her 

anxiety attacks would interfere with the limited-duty work and she believed that the job offered 

would aggravate her accepted conditions. Appellant did not report to work.

In a November 12, 2014 notice, appellant was advised that OWCP found the job offer 

suitable and in accordance with her medical limitations provided by Dr. Aprin and that the 

employing establishment confirmed that the position remained open and available to her. OWCP 

allowed appellant 30 days to accept the position or provide her reasons for refusal. It advised that 

an employee who refuses an offer of suitable work without reasonable cause is not entitled to 

further compensation for wage loss or a schedule award. Appellant, however, continued to refuse 

to report to duty for the offered position. 

In an October 1, 2014 report, Dr. Yardley Charles,

5

a Board-certified physiatrist, noted that

appellant had related that her employing establishment requested that she return to work, but she 

did not want to return to work. 

In an October 15, 2014 report, Dr. Charles indicated that appellant was an anxious woman 

who had musculoskeletal chest pain, cervical radiculopathy, bilateral carpal tunnel syndrome, 

cervical disc displacement, and chronic pain due to trauma. She recommended that appellant be 

followed by psychiatry for her anxiety and undergo physical therapy to manage her chronic 

symptoms. Dr. Charles noted that appellant was incapable of returning to work in any capacity 

due to her susceptibility to reinjury and lack of confidence. She indicated that appellant should be

re-examined to determine her disability status before being placed back on active duty.

By notice dated December 16, 2014, OWCP advised appellant that her refusal of the 

offered position was not justified. It afforded her an additional 15 days to accept the offered 

position.

In response to the 15-day notice, OWCP received a December 19, 2014 report from

Dr. Elizabeth Mathew, a Board-certified physiatrist. Dr. Mathew opined that appellant was 

permanently disabled from work due to her accepted injury and was unable to work. 

 

5 As Dr. Rim retired, appellant sought treatment with Dr. Charles.
4

In a December 19, 2014 attending physician’s report (Form CA-20), Dr. Charles diagnosed 

appellant with chronic pain due to old trauma and prescribed physical therapy. She indicated that 

appellant remained totally disabled from work from 2004 to the present due to chronicity of 

symptoms. 

By decision dated January 29, 2015, OWCP terminated appellant’s entitlement to wageloss and schedule award compensation benefits effective February 8, 2015 be she refused an offer 

of suitable work. It found that Dr. Aprin’s report constituted the weight of the medical evidence 

regarding appellant’s work tolerances and limitations.

On February 23, 2015 OWCP received appellant’s February 16, 2015 request for an oral 

hearing before an OWCP hearing representative. A hearing was held on July 20, 2015. 

In a February 17, 2015 report, Dr. Mathew opined that appellant’s symptoms and current 

examination findings were causally related to her accepted work-related injury. She stated that 

whatever the cause, the unending pain, tender points, and insomnia tended to increase anxiety, 

reduced activity, and increased pain. Dr. Mathew opined that appellant was unable to return to the 

work she was doing at the time of injury, in any capacity. She stated that appellant was vulnerable 

to reinjury and was not confident that she could continue to be productive in the work along with 

her ailments and anxieties. Dr. Mathew further opined that Dr. Aprin’s examination was out dated 

and ignored that her symptoms were aggravated by prolonged sitting/standing, repetitive pulling, 

pushing, or lifting affecting her wrists, neck, and hands and would continue if she worked part

time. 

By decision dated September 8, 2015, an OWCP hearing representative affirmed OWCP’s 

January 29, 2015 decision. He found that the medical documentation began to support an inability 

to work due to conditions which were not accepted as work related only after a job was offered. 

The hearing representative also found that the medical opinion of record was completely 

unsupported by any discussion of objective findings of disability related to the myriad of medical 

and psychological conditions which had not been accepted as work related; and were, therefore,

only based upon appellant’s own complaints.

On March 8, 2016 appellant, through counsel, requested reconsideration along with a 

January 26, 2016 statement from appellant. She argued that OWCP’s hearing representative failed 

to take into consideration all of her medical and psychological conditions in finding that the limited 

duty position was suitable. Appellant noted that the job offer came more than one year after she 

saw Dr. Aprin and alleged that Dr. Aprin was unaware of her various conditions and was not 

provided records from her October 10, 2001 work-related injury. Appellant also stated that she 

was very anxious and depressed about her condition and had a fear of reinjury by working at the 

employing establishment. Counsel further alleged that the job offer required a long commute. 

By decision dated June 2, 2016, OWCP denied modification of its September 8, 2015 

decision. The claims examiner noted that appellant was only found totally disabled from work by 

her treating physicians after the job offer was presented, and the evidence of record failed to 

provide objective findings to support her complaints and the myriad medical and psychological 

conditions.
5

On June 27, 2016 appellant, through counsel, requested reconsideration. Copies of reports 

previously of record were not submitted with appellant’s previous request for reconsideration, 

including: a December 22, 2011 report of Dr. Rim, a May 30, 2012 report of Dr. Charles, an 

August 30, 2007 electrodiagnostic testing report of Dr. Rim, and an October 15, 2014 report of

Dr. Charles. 

In a November 20, 2014 report, Dr. Sandeep Gupta, an internist and rheumatologist, 

provided an assessment of polyarthalgia with pains in all four quadrants with increased tender 

points with increased associated symptoms s/o fibromyalgia. 

In a February 20, 2015 report, Dr. Aylin Kiyici, a Board-certified internist, indicated that 

appellant had complaints of musculoskeletal chest pain, lumbar radiculopathy, cervical 

radiculopathy, bilateral carpal tunnel syndrome, and fibromyalgia. She recommended that 

appellant go on early retirement due to her work-related injuries and illness that have affected her 

work. 

In a January 21, 2015 report, Dr. Rajesh Bhatnagar, a neurologist, provided an assessment 

of generalized anxiety disorder, depressive disorder, and fibromyalgia. 

By decision dated September 20, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, finding that the evidence submitted was insufficient to 

require a merit review. 

LEGAL PRECEDENT -- ISSUE 1

Section 8106(c) of FECA provides in pertinent part, “a partially disabled employee who 

(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”

6

 

It is OWCP’s burden of proof to justify termination of compensation under section 8106(c) due to

refusal of suitable work or neglecting to perform suitable work.7 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.8

To support 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 In 

determining what constitutes suitable work for a particular disabled employee, it considers 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 

 

6 5 U.S.C. § 8106(c).

7

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

8 20 C.F.R. § 10.517(a). 

9 Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 

818 (1992).
6

relevant factors.10 OWCP procedures provide that acceptable reasons for refusing an offered 

position include withdrawal of the offer or medical evidence of inability to do the work or travel 

to the job.11 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.12 It is well established under this section of FECA, OWCP must consider both 

preexisting and subsequently-acquired conditions in the evaluation of the suitability of an offered 

position.13

ANALYSIS -- ISSUE 1

The Board finds that OWCP met its burden of proof to justify the termination of appellant’s 

compensation benefits pursuant to 5 U.S.C. § 8106(c) as appellant refused an offer of suitable 

work. 

In August 2013, OWCP referred appellant to Dr. Aprin for a second opinion evaluation to 

determine the nature and extent of her disability. It provided these physicians with an August 1, 

2013 SOAF, as well as appellant’s medical records. In an October 1, 2013 report, following a 

physical evaluation and a review of the August 1, 2013 SOAF, as well as appellant’s medical 

records including Dr. Manta’s recent progress notes, Dr. Aprin concluded that appellant continued 

to experience residuals of her accepted right carpal tunnel syndrome and left wrist sprain as well 

as a prior cervical radiculopathy that rendered her partially disabled. He limited pushing/pulling 

and lifting to items weighing up to 10 pounds for no more than four hours each and no more than 

four hours of bending/stooping and repetitive movements of the wrists and elbow. On 

September 17, 2014 the employing establishment offered appellant a modified position as a city 

carrier in accordance with the restrictions noted by Dr. Aprin. The physical requirements of the 

position included: standing and walking limited to four hours, bending/stooping not to exceed 

four hours, repetitive movement of the wrist/elbows not to exceed four hours, pulling/pushing and 

lifting not to exceed 10 pounds, and limited to four hours. Dr. Aprin provided a well-reasoned 

medical opinion based on a complete medical background and objective findings.14 Therefore, his 

opinion was properly afforded the weight of the evidence.

Subsequent to the suitable work offer, appellant submitted a number of medical reports 

which referenced a myriad of conditions, including anxiety. However, none of the medical reports 

addressed why appellant would be unable to perform the duties of the suitable work position. The 

 

10 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

11 Federal (FECA) Procedure Manual, Part -- Claim, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.5.a (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).

12 Gloria G. Godfrey, 52 ECAB 486 (2001).

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

14 A well-reasoned medical opinion should also be consistent with the findings upon examination. Findings may 

be noted during physical examination, laboratory testing, and diagnostic procedures. Sufficient objective data 

(findings on examination, test results) should be included in the report to support the medical conclusions. See Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.6(a)(2) 

(September 2010).
7

Board finds that there was no medical evidence of record showing that the offered position 

exceeded appellant’s then-current medical restrictions.15

In her December 19, 2014 report, Dr. Mathew opined that appellant had suffered a 

permanent disability due to her work-related injury and was unable to work due to the chronicity 

of the symptoms and persistence of neurological deficits. Dr. Charles concurred. The Board has 

held that a medical report is of limited probative value on a given medical matter if it contains a 

conclusion which is unsupported by medical rationale.16 While both Dr. Mathew and Dr. Charles 

opined that appellant was totally disabled, neither physician offered an opinion as to why appellant 

was medically disabled from performing the offered position. These physicians also failed to 

support their diagnoses with objective findings. As such, their medical reports are of limited 

probative value regarding appellant’s medical ability to perform the offered position.

The Board further finds that OWCP complied with its procedural requirements prior to 

terminating appellant’s compensation. In the November 12, 2014 notice, OWCP provided

appellant with a 30-day opportunity to accept the modified city carrier position offered by the 

employing establishment after informing her that her reasons for initially refusing the position 

were not valid. It advised her in a December 16, 2014 letter that her reason for refusing the offered 

position were insufficient and that she had 15 additional days to accept the offered position. The 

Board finds that OWCP followed the established procedures prior to the termination of 

compensation pursuant to section 8106(c)(2).17 

For these reasons, the Board finds that OWCP properly terminated appellant’s entitlement 

to wage-loss and schedule award compensation, effective February 8, 2015, pursuant to section 

8106(c)(2) of FECA as she refused an offer of suitable work.18 

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

the employee who refuses to work to show that such refusal was justified.19 The employee may 

then submit new medical evidence to OWCP and request reconsideration. The new medical 

evidence must address, with medical rationale, the employee’s ability to perform the offered 

position, at the time of the job offer.20 In the instant case, OWCP continued to receive medical 

evidence following the termination of appellant’s compensation benefits. In her February 17, 2015 

report, Dr. Mathew indicated that appellant’s symptoms were aggravated by prolonged 

sitting/standing, repetitive pulling, pushing or lifting affecting her wrists, neck, and hands and 

would continue if she worked part time. However, she did not provide a rationalized medical 

opinion explaining how or why appellant’s work-related symptoms and current examination 

 

15 See L.D., Docket No. 16-1169 (September 20, 2017). 

16 C.M., Docket No. 14-88 (issued April 18, 2014).

17 See C.H., Docket No. 17-0938 (issued November 29, 2017). 

18 See generally Maggie L. Moore, supra note 9. 

19 See Ronald M. Jones, 48 ECAB 600 (1997).

20 See Lizzie M. Greer, 49 ECAB 681 (1998).
8

findings rendered her totally disabled from performing the offered position, her report is 

insufficient to show that the offered position was not medically suitable.21 

On appeal counsel contends that Dr. Aprin was unaware of appellant’s preexisting medical 

problems. Contrary to counsel’s contentions, however, Dr. Aprin, in his October 1, 2013 report,

noted his review of the August 1, 2013 SOAF as well as appellant’s complete medical record, on 

which he based his findings. Counsel also contends on appeal that OWCP’s hearing representative 

misunderstood the law and erroneously indicated that only the accepted employment-related 

conditions could be considered in relation to the job offer. As noted, OWCP must consider all 

preexisting and subsequently-acquired conditions, regardless of etiology, in evaluating the 

suitability of an offered position.22 

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,23

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.24 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received by OWCP within one year of the date of that decision.25 When a claimant fails to meet 

one of the above standards, OWCP will deny the application for reconsideration without reopening 

the case for review on the merits.26

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration.

In her request for reconsideration, appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law. She submitted a duplicative copy of her January 26, 2016 

statement, which OWCP considered in its June 2, 2016 decision. The assertions and arguments 

contained therein were previously addressed by OWCP and do not show a legal error by OWCP 

 

21 See Eileen Chilek, Docket No. 05-1077 (issued November 14, 2005).

22 See id., Richard P. Cortes, supra note 13 (OWCP is required to consider preexisting and subsequently-acquired 

conditions in evaluating the suitability of an offered position). 

23 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

24 20 C.F.R. § 10.606(b)(3).

25 Id. at § 10.607(a).

26 Id. at § 10.608(b).
9

or advance a new and relevant legal argument.27 Counsel made the vague allegation that the job 

offer required a long commute, but he offered no substantiation of this allegation. While a 

reopening of a case may be predicated solely on a legal premise not previously considered, such 

reopening is not required where the legal contention does not have a reasonable color of validity.28

The underlying issue in this case pertains to whether appellant submitted medical evidence 

establishing that her refusal to accept the suitable work was justified. That is a medical issue which 

must be addressed by relevant new medical evidence.29 However, appellant failed to submit any 

relevant and pertinent new medical evidence in support of her claim. She submitted duplicative 

reports previously of record. While the reports from Dr. Gupta, Dr. Kiyici, and Dr. Bhatnagar 

were new to the record and contained additional diagnoses, they are not relevant to the underlying 

issue as none of the physicians provided an opinion that appellant was disabled from performing 

the offered position. As explained, the underlying issue in this claim is whether the medical 

evidence establishes that appellant’s refusal to accept the suitable work was justified. Appellant’s

submissions on reconsideration are not relevant to this underlying medical issue.30 Therefore, this 

new evidence is insufficient to warrant reopening the case for a merit review.

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence. Pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied merit review. 

CONCLUSION

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

effective February 8, 2015, due to her refusal of suitable work under 5 U.S.C. § 8106(c)(2). The 

Board further finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

27 The submission of evidence or argument that repeats or duplicates evidence or argument already of record does 

not constitute a basis for reopening a case. T.H. Docket Nos. 17-1578 & 17-1651 (issued April 26, 2018); Eugene F. 

Butler, 36 ECAB 393, 398 (1984).

28 John F. Critz, 44 ECAB 788, 794 (1993).

29 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

30 The Board has held that the submission of evidence which does not address the particular issue involved does 

not constitute a basis for reopening a case. See J.J., Docket No. 16-0555 (issued June 2, 2016); Edward Matthew 

Diekemper, 31 ECAB 224 (1979).
10

ORDER

IT IS HEREBY ORDERED THAT the September 20 and June 2, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: December 21, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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