United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

U.S. POSTAL SERVICE, APPALACHIAN 

PERFORMANCE CLUSTER, Charleston, WV, 

Employer

__________________________________________

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Docket No. 18-1727

Issued: May 6, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 13, 2018 appellant, through counsel, filed a timely appeal from a July 13, 

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 July 13, 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 additional 

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 November 30, 2017, due to 

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

FACTUAL HISTORY

On November 21, 2013 appellant, then a 39-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on November 20, 2013, she twisted and sprained her left ankle 

when she stepped in a hole while in the performance of duty. She stopped work on the date of 

injury. OWCP accepted the claim for left ankle and knee sprains, and subsequently expanded 

acceptance of the claim to include left foot tendon rupture. Appellant returned to modified 

sedentary work on May 28, 2014, but stopped work again on June 2, 2014. By decision dated 

March 3, 2015, OWCP accepted her claim for a recurrence of disability beginning June 2, 2014. 

It paid appellant wage-loss compensation on the periodic rolls beginning June 2, 2014.

On February 24, 2014 appellant came under the care of Dr. Kevin Brown, a podiatric 

surgeon, who diagnosed peroneal tendinitis and calcaneofibular sprain. OWCP subsequently

received a number of progress reports from Dr. Brown diagnosing a left foot ruptured tendon and 

plantar fasciitis and in which he related that appellant was unable to work. 

In progress notes dated June 10, 2015 and subsequent reports, Dr. Brown provided a

history of injury and examination findings. He diagnosed plantar fasciitis and left lower limb 

reflex sympathetic dystrophy.

On October 14, 2016 OWCP prepared a statement of accepted facts (SOAF) which noted 

the accepted conditions and diagnostic test results.

In a letter dated October 26, 2016, OWCP referred appellant, the medical record, and the

SOAF to Dr. Anbu K. Nadar, a Board-certified orthopedic surgeon, for a second opinion 

evaluation. 

In a report dated November 16, 2016, Dr. Nadar noted his review of the SOAF and medical 

records. He provided examination findings regarding appellant’s left ankle, foot, and knee. 

Dr. Nadar noted no significant swelling, erythema, warmth, or discoloration on examination of the 

left ankle. The left foot joint was stable to inversion and anterior Drawer test, appellant was able 

to extend her toes, and she was able to flex her forefoot. Dr. Nadar observed that appellant 

ambulated without assistance, but with a limp. A review of an August 8, 2016 magnetic resonance 

imaging (MRI) scan revealed small posterior foot effusions and ankle articulations, but otherwise 

no focal abnormality. Diagnoses included left ankle and foot sprain and left foot ruptured tendon. 

Dr. Nadar opined that appellant’s left knee condition had completely resolved based on the lack of 

physical findings. He found no objective abnormality with her left foot and ankle, only her 

subjective complaints. Dr. Nadar opined appellant was capable of returning to work with 

restrictions and required no additional treatment. In an attached work capacity evaluation form 

(Form OWCP-5c), he provided work restrictions, including no more than two hours of walking 

and standing, and three hours of pushing, pulling, or lifting up to 20 pounds. 
3

In reports dated January 1 and May 8, 2017, Dr. Brown provided examination findings and 

diagnosed plantar fasciitis and left lower limb reflex sympathetic dystrophy. He indicated that 

appellant was to continue with her restrictions. 

In a May 8, 2017 disability note, Dr. Brown opined that appellant was disabled from work 

until July 6, 2017. 

On May 23, 2017 the employing establishment offered appellant the position of a modified 

city carrier, effective June 10, 2017. The duties of the position included: up to two hours of casing 

mail with the use of a rest bar, intermittent; two hours of delivering partial route, interment; two 

to three hours of updating case labels; and approximately one to two hours of driving carriers to 

assigned routes/express mail delivery. The employing establishment noted that the physical 

requirements included: intermittent standing up to two hours per day; intermittent walking up to 

two hours per day; up to three hours of intermittent pushing, pulling, and lifting up to 20 pounds;

and up to eight hours of intermittent reaching, driving, stooping/bending, and twisting.

On June 1, 2017 Dr. Brown opined that appellant was unable to wear regular shoes which 

confined her left ankle due to her ankle tendinitis.

On June 2, 2017 appellant rejected the job offer as her physician restricted her from 

wearing regular shoes.

In a letter dated June 23, 2017, OWCP advised appellant that it found the job offer suitable 

and in accordance with the medical limitations provided by Dr. Nadar. It further noted that the 

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

OWCP explained that the diagnoses of plantar fasciitis and complex regional pain syndrome had 

not been accepted and that Dr. Brown had not provided a rationalized opinion explaining how the 

diagnosed conditions were caused or aggravated by the accepted employment injury. It afforded

appellant 30 days to accept the position or provide her reasons for refusal. OWCP advised her 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.

On July 28, 2017 Dr. Brown reported that appellant continued to experience pain and 

swelling and some plantar fascial changes. He opined that she appeared to have developed 

complex regional pain syndrome/reflex sympathetic dystrophy based on her numbness, weakness 

extending up the left knee, pitting edema, and color changes. Dr. Brown opined that appellant 

could return to a sedentary job with limited walking and standing and ability to elevate and rest 

her left lower extremity.

In a letter dated September 25, 2017, 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.4

By decision dated November 30, 2017, OWCP terminated appellant’s entitlement to wageloss compensation and entitlement to schedule award benefits, effective that date, finding that she 

 

4 The Board notes that OWCP issued a notice dated November 7, 2017 referencing a September 25, 2017 job offer 

from the employing establishment and affording appellant 30 days to accept the position. 
4

had refused an offer of suitable work. It found that Dr. Nadar’s report constituted the weight of 

the medical evidence regarding appellant’s work tolerances and limitations. 

In a letter postmarked December 29, 2017, received by OWCP on January 2, 2018, 

counsel, requested a telephonic hearing before an OWCP hearing representative. 

A January 2, 2018 MRI scan of the left ankle revealed no acute fracture, anterior talofibular 

ligament remote tearing, and peroneus brevis tendon split tearing.

Dr. Brown, in a March 2, 2018 report, detailed the injury history and examination findings. 

He diagnosed small joint effusions and tendinitis, which limited her ability to walk, stand, and 

deliver mail. Dr. Brown reported that appellant periodically experienced lower extremity 

numbness. He further noted that a January 2018 MRI scan revealed anterior talofibular ligament 

remote tear and peroneus brevis tendon split tear, which he opined explained her instability when 

standing and walking, as well as her endurance and balancing issues. Dr. Brown concluded that 

appellant was capable of working a sedentary position which required limited walking and 

standing, and which would allow appellant to elevate her left lower extremity to prevent worsening 

her tendon tear.

In progress notes dated March 12 and May 9, 2018, Dr. Brown provided examination 

findings and reviewed diagnostic tests. He diagnosed left peroneal tendon tear, plantar fasciitis, 

left lower limb complex regional pain syndrome, and left ankle anterior talofibular ligament sprain. 

Dr. Brown noted that appellant was not working at that time. 

A telephonic hearing was held before an OWCP hearing representative on May 30, 2018. 

In a June 13, 2018 report, Dr. Brown noted that appellant had been his patient since 2014 

and had a history of complex regional pain syndrome/reflex sympathetic dystrophy and left ankle 

ligament injury. Due to her severe pain, sensitivity, and swelling, he instructed her to refrain from 

wearing closed-toed shoes. Dr. Brown indicated this was likely a permanent restriction. 

By decision dated July 13, 2018, OWCP’s hearing representative affirmed the

November 30, 2017 termination decision. He found that reports from Dr. Brown were insufficient 

to outweigh the well-rationalized opinion of Dr. Nadar. 

LEGAL PRECEDENT

Section 8106(c)(2) of FECA provides 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 or her is not entitled to compensation.5 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.6 The Board has recognized that 

 

5 5 U.S.C. § 8106(c)(2).

6 M.W., Docket No. 17-1205 (issued April 26, 2018); Howard Y. Miyashiro, 51 ECAB 253 (1999).
5

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.7

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.8 According 

to its procedures, a job offer must be in writing and contain a description of the duties to be 

performed and the specific physical requirements of the position.9 20 C.F.R. § 10.51610 provides 

that an employee who refuses or neglects to work after suitable work has been offered or secured 

for the employee has the burden of establishing that such refusal or failure to work was reasonable 

or justified, and shall be provided with the opportunity to make such showing before a 

determination is made with respect to termination of entitlement to compensation.11

The determination of whether an employee is capable of performing modified-duty 

employment is a medical question that must be resolved by probative medical opinion evidence.12 

All medical conditions, whether work related or not, must be considered in assessing the suitability 

of an offered position.13

ANALYSIS

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 November 30, 2017, due to 

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

Initially, OWCP accepted the claim for left ankle and knee sprains, and subsequently 

expanded acceptance of the claim to include left foot tendon rupture. In subsequent progress notes 

appellant’s treating physician, Dr. Brown, diagnosed the additional conditions of plantar fasciitis 

and complex regional pain syndrome/reflex sympathetic dystrophy. 

On October 14, 2016 OWCP prepared a statement of accepted facts for the second opinion 

physician, Dr. Nadar, which listed appellant’s accepted conditions of left ankle, knee sprains, and 

left foot tendon rupture. It requested that Dr. Nadar address whether the accepted conditions had 

resolved and whether appellant could return to work in the offered position for which there was a

job description provided. Dr. Nadar opined that the accepted conditions had completely resolved 

and that she was capable of returning to work. 

 

7 P.C., Docket No. 18-0956 (issued February 8, 2019); H. Adrian Osborne, 48 ECAB 556 (1997).

8 M.W., supra note 6; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a) 

(June 2013).

10 20 C.F.R. § 10.516.

11 See P.C., supra note 7; Camillo R. DeArcangelis, 42 ECAB 941 (1991).

12 See M.W., supra note 6; Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46 ECAB 1002 (1995).

13 See M.E., Docket No. 18-0808 (issued December 7, 2018); S.Y., Docket No. 17-1032 (issued November 21, 

2017); Mary E. Woodward, 57 ECAB 211 (2005).
6

The Board has held that all conditions, whether work related or not, must be considered in 

assessing the suitability of an offered position.14 Although the SOAF neglected to list the 

unaccepted concurrent conditions of plantar fasciitis and complex regional pain syndrome/reflex 

sympathetic dystrophy, both were specifically addressed by Dr. Nadar. Upon his review of 

appellant’s history, the medical record, and his examination, he indicated that the appellant had 

been treated for plantar fasciitis, but opined citing diagnostic testing, that it had since resolved. He 

also referenced the complex regional pain syndrome/reflex sympathetic dystrophy due to 

appellant’s subjective complaints. He opined, however, that he could not identify that diagnosis 

during his physical examination and that there was no supportive objective testing and therefore

he concluded that he did not agree that appellant had complex regional pain syndrome/reflex 

sympathetic dystrophy. The Federal (FECA) Procedure Manual provides that an OWCP referral 

physician’s findings, be it a second opinion or impartial medical evaluation, must be based on the 

factual underpinnings of the claim.15 Despite the fact that OWCP did not include the concurrent 

diagnoses in the SOAF, the second opinion physician, Dr. Nadar had been provided with the prior 

medical evidence of record and therefore he had knowledge of and fully addressed the two 

concurrent conditions, finding the plantar fasciitis resolved and that complex regional pain 

syndrome/reflex sympathetic dystrophy was non-existent. As such, his opinion relative to the 

appellant’s ability to return to work contemplated these concurrent conditions.16

Subsequent reports were submitted from Dr. Brown regarding his length of treatment and 

a reiteration a history of plantar fasciitis and complex regional pain syndrome/reflex sympathetic 

dystrophy. The Board finds that these reports are insufficient to outweigh the well-rationalized 

report of Dr. Nadar who addressed both the accepted and concurrent conditions.

The Board finds that OWCP properly accorded the weight of medical opinion with

Dr. Nadar who reported that appellant no longer had residuals or disability as a result of the 

November 20, 2013 employment injury. Dr. Nadar based his opinion on a proper factual and

medical history and physical examination findings and provided medical rationale for his opinion 

that she did not have a current residual injury or work limitations and could return to work. The 

Board finds that Dr. Nadar provided a well-rationalized opinion based on medical evidence 

regarding her November 20, 2013 employment injury. Accordingly, OWCP properly relied on his 

November 16, 2016 second opinion relative to work tolerances and limitations in terminating 

appellant’s entitlement to wage-loss compensation and schedule award compensation benefits 

effective the date she refused an offer of suitable work.17 

 

14 E.G., Docket No. 12-1011 (issued November 28, 2012)

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a 

(September 2019).

16 Compare S.Y., Docket No. 17-1032 (issued November 21, 2017).

17 See A.F., Docket No. 16-0393 (issued June 24, 2016).
7

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 November 30, 2017, due to 

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

ORDER

IT IS HEREBY ORDERED THAT the July 13, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 6, 2019

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