United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Warwick, NY, Employer

__________________________________________

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Docket No. 18-1671

Issued: June 13, 2019

Appearances: Case Submitted on the Record

Paul Kalker, 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

JANICE B. ASKIN, Judge

JURISDICTION

On September 4, 2018 appellant, through counsel, filed a timely appeal from an August 14, 

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.

 

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

compensation and entitlement to schedule award benefits, effective August 14, 2018, as she 

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

FACTUAL HISTORY

On September 21, 2013 appellant, then a 59-year-old rural mail carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 18, 2013 she was involved in a motor vehicle 

accident when another vehicle rear-ended her postal vehicle while in the performance of duty. She

stopped work on September 18, 2013 and has not returned. OWCP accepted the claim for lumbar 

sprain, cervical sprain, and joint derangement of right shoulder. It paid appellant wage-loss 

compensation on the supplemental rolls as of November 3, 2013 and she was placed on the 

periodic rolls as of August 24, 2014.

On September 27, 2013 appellant began treatment with Dr. Vincent J. Gulfo, a Boardcertified physiatrist. In a March 4, 2014 report, Dr. Gulfo opined that her electrodiagnostic studies 

were consistent with right cervical radiculopathy, most severely affecting the right C5 nerve root. 

No evidence of myopathy or neuropathy were seen. 

On July 9, 2014 appellant underwent an arthroscopic decompression of the right shoulder, 

which was performed by Dr. Gabriel Dassa, a Board-certified orthopedic surgeon. In a 

September 1, 2015 report, Dr. Dassa provided an impression of status post right shoulder 

arthroscopic surgery and cervical spine disc bulging and disc herniation with radiculopathy. He 

recommended continued physical therapy for the shoulder and pain management for the cervical 

spine. 

In February and December 2014, appellant underwent second opinion evaluations by

Dr. Harvey L. Seigel, a Board-certified orthopedic surgeon. In his December 1, 2014 report,

Dr. Seigel indicated that she had reached maximum medical improvement (MMI). He opined that 

appellant no longer had disabling residuals of the accepted conditions and that she could return to 

her date-of-injury job on a full-duty basis.

A February 16, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine 

revealed mild multilevel disc degenerative and osteoarthritic changes and central disc protrusion 

causing mild central canal stenosis at C4-5 and C6-7. A February 16, 2016 MRI scan of her lumbar 

spine showed multilevel degenerative disc and facet joint changes with small disc bulges. 

On February 23, 2016 OWCP found a conflict in medical opinion between Drs. Gulfo and 

Dassa for the appellant and Dr. Seigel for the government regarding the status of her accepted 

conditions. Appellant was referred along with a statement of accepted facts (SOAF) and the case 

record to Dr. G.K. Bhanusali, a Board-certified orthopedic surgeon, for an impartial medical 

evaluation. In a March 17, 2016 report, Dr. Bhanusali opined that she could return to work in a 

full-time capacity with temporary restrictions on lifting weight, and overhead activities. He 

recommended a functional capacity evaluation (FCE).
3

In an April 29, 2016 report, Dr. Steven K. Jacobs, a neurosurgeon, diagnosed cervical disc 

displacement, mid-cervical region, cervical radiculopathy, and cervicalgia. He opined that he did 

not believe that appellant could return to her prior job as it required lifting 70 pounds or greater. 

Dr. Jacobs referred her for an FCE. 

The September 5, 2016 FCE indicated that appellant could work in a sedentary capacity if 

she received continued physical therapy, a formal work-conditioning program, frequent micro

breaks while working, proper ergonomic set up, and job retraining. 

In a December 14, 2016 report, Dr. Richard D. Semble, a Board-certified orthopedic 

surgeon and OWCP second opinion physician, opined that, based on appellant’s current physical 

examination, she had no residuals, disability, or impairment from the accepted employment injury. 

He opined that she had reached MMI scan and was capable of returning to work full duty without 

an FCE or work hardening program.

A December 27, 2016 MRI scan of appellant’s cervical spine revealed multilevel disc 

degenerative and osteoarthritic changes and mild canal narrowing at C3-4 through C6-7. No disc 

herniation was seen.

In a January 20, 2017 report, Dr. Jacobs recommended anterior cervical discectomy and 

fusion surgery due to a herniated disc at C5-6 with mass effect on the spinal cord. However, on 

June 14, 2017, he recommended against any type of surgical procedure and referred appellant to

pain management.

On August 15, 2017 OWCP found a conflict in medical opinion between Dr. Jacobs and

Dr. Semble regarding appellant’s diagnoses and whether she had continuing disability due to the 

accepted employment injury. Appellant was referred, along with an updated SOAF, a list of 

questions, and the medical record to Dr. C. Tobenna Okezie, a Board-certified orthopedic surgeon, 

for an impartial medical evaluation. 

In an August 30, 2017 report, Dr. Okezie reviewed the SOAF and appellant’s medical 

record. Following her physical examination, he related that there was no objective evidence that 

she was totally or permanently disabled due to the accepted conditions or due to a temporary 

aggravation of her preexisting cervical and lumbar spondylosis. Dr. Okezie opined that appellant 

reached MMI 18 months after the date of injury, but indicated that he would use December 14, 

2016, the date she was evaluated by Dr. Semble, as the date of MMI. He indicated that there were 

no clinically relevant MRI scan finding or objective findings from the 2014 imagining studies that 

would suggest even a remote possibility of a permanent disability. Dr. Okezie explained that 

appellant’s treating physicians utilized mildly positive age-related findings to support subjective 

complaints. He further explained that their interpretations of the imaging studies exceeded those 

of the official radiologic reports and that there was no anatomic rationale to support permanent 

disability. Dr. Okezie opined that appellant was capable of medium level work, noting that the 

FCE indicated that she could perform some work. In response to a question regarding additional 

medical treatment required to treat her accepted employment conditions, he related that a work 

hardening program was necessary to facilitate her return to work. Dr. Okezie found that 

appellant’s lifting capacity was potentially the chief limitation as it was difficult to assess how 

much any 63-year-old female could lift. He completed a Form OWCP-5c, in which he indicated 
4

that she could work a medium strength position full time with six-hour limitation on reaching 

above shoulder and lifting no more than 50 pounds occasionally. 

In an October 23, 2017 letter, OWCP advised the employing establishment that the special

weight of the medical evidence rested with Dr. Okezie. It requested that appellant be offered a 

permanent position within the work restrictions set forth in his report. 

On November 16, 2017 the employing establishment offered appellant a permanent 

position as a modified rural carrier performing intermittent standing, walking, simple grasping,

and fine manipulation as well as occasional bending and stooping for up to eight hours, lifting, 

pushing, and pulling up to 20 pounds intermittently (50 pounds occasionally) for up to eight hours 

per day, and reaching/reaching above shoulder intermittently for six hours per day with occasional 

climbing while delivering mail. The duties of the position consisted of casing and delivering mail 

in varying conditions. It also included processing second notices, customer service, and sales at 

the retail window and/or lobby, assisting with customer service and express mail delivery, for 

which appellant would receive appropriate training. The employing establishment advised that the 

assignment would remain within the physical restrictions of Dr. Okezie.

A revised January 3, 2018 job offer included the start and end times of the work schedule. 

The schedule indicated that appellant’s hours on Saturdays were 8:30 a.m. to 5:00 p.m. with a half 

hour lunch. For Monday, Wednesday, Thursday, and Friday, appellant’s regular work hours were

8:30 a.m. to 6:00 p.m. with an hour and a half for lunch. 

In a December 4, 2017 report, Dr. Aditya Patel, a Board-certified anesthesiologist, noted 

the history of appellant’s September 18, 2013 employment injury, reviewed medical records, and 

presented examination findings. He provided differential diagnoses of herniated cervical disc, 

herniated lumbar disc, electromyograph (EMG) documented cervical radiculopathy and lumbar 

radiculopathy, and internal derangement of the shoulder status postsurgery. 

In a January 15, 2018 report, Dr. Sukdeb Datta, a Board-certified pain medicine specialist, 

opined that the differential diagnoses identified were causally related to the September 18, 2013 

employment injury. He noted that appellant did not want surgical intervention and opined that she 

was at MMI from the pain management point of view. 

On January 3, 2018 appellant refused the job offer. On January 19, 2018 she advised her 

rehabilitation counselor that she was unable to physically perform the duties of the modified-job 

offer. Appellant also indicated that she was thinking of retirement. 

On January 19, 2018 the employing establishment confirmed that the offered position 

remained available to appellant. 

Diagnostic testing from January 26, 2018 was received along with additional reports from 

appellant’s physicians. In a January 31, 2018 report, Dr. Yigal Sasan, a chiropractor, diagnosed 

cervical, thoracic, and lumbar spondylosis which he opined was caused or aggravated by 

appellant’s work-related motor vehicle accident. He indicated that she was totally disabled for the 

period January 22 to February 22, 2018. In a January 31, 2018 note, Dr. Sasan advised that 

appellant needed to attend chiropractic treatment three times a week for a month. He further 

advised that she was unable to perform her job duties at that time. 
5

On February 27, 2018 OWCP advised the employing establishment that the offered 

January 3, 2018 modified rural carrier position was not considered suitable. It noted that 

appellant’s schedule for Monday, Wednesday, Thursday, and Friday was in excess of eight hours

and that she was scheduled to have one and a half hours for lunch on those days. OWCP requested 

that the employing establishment provide a written explanation for the extended lunch. No 

response was received from the employing establishment. 

In an April 2, 2018 letter, OWCP notified appellant that the offered position was suitable 

and remained available to her. It provided her 30 days to accept the position or provide reasons 

for her refusal. OWCP also informed appellant that an employee who refused an offer of suitable 

work was not entitled to compensation.

In an April 6, 2018 letter, counsel indicated that appellant was physically and mentally 

unable to accept the offered position. 

On July 3, 2018 OWCP advised appellant that her reasons for refusing the position were 

invalid and provided her 15 days to accept the position or have her entitlement to wage-loss 

compensation and schedule award benefits terminated. No additional evidence or argument was 

received.

By decision dated August 14, 2018, OWCP terminated appellant’s wage-loss 

compensation and entitlement to schedule award benefits, effective that date, as she had refused 

an offer of suitable work.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.3 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.4 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.5 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.6

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.7 Section 

 

3 T.M., Docket No. 18-1368 (issued February 21, 2019).

4 5 U.S.C. § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018).

5 See T.M., supra note 3.

6

Id.

7 20 C.F.R. § 10.517(a).
6

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.8 Thus, before terminating compensation, OWCP must review the 

employee’s proffered reasons for refusing or neglecting to work.9 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.10

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.11 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.12 In a 

suitable work determination, OWCP must consider preexisting and subsequently acquired medical 

conditions in evaluating an employee’s work capacity.13 Its procedures state that acceptable 

reasons for refusing an offered position include medical evidence of inability to do the work.14

When there exist opposing medical reports of virtually equal weight and rationale and the 

case is referred to an impartial medical examiner (IME) for the purpose of resolving the conflict, 

the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.15 The IME’s report must actually fulfill the purpose 

for which it was intended. It must resolve the conflict in medical opinion.16 OWCP should ensure 

that the IME’s report is comprehensive, clear, and definite, and that it is based on current 

information and supported by substantial medical reasoning, as well as a review of the case file.17 

If the report is vague, speculative, incomplete, or not rationalized, it is OWCP’s responsibility to 

secure a supplemental report from the IME to correct any defects.18

 

8

Id.

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

10 20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003).

11 Supra note 7.

12 Gayle Harris, 52 ECAB 319 (2001).

13 P.S., Docket No. 18-1789 (issued April 11, 2019). 

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

(June 2013).

15 J.T., Docket No. 18-0503 (issued October 16, 2018).

16 Supra note 14 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11d(2) 

(September 2010).

17 Id.

18 Id.
7

ANALYSIS

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

and entitlement to a schedule award, effective August 14, 2018, on the basis that she had refused 

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

The issue of whether an employee has the physical ability to perform a modified position 

offered by the employing establishment is primarily a medical question that must be resolved by 

medical evidence.19 OWCP properly determined that a conflict arose between Dr. Jacobs and

Dr. Semble regarding appellant’s disability status and referred her to Dr. Okezie for an impartial 

medical examination. 

In an August 30, 2017 report, Dr. Okezie found that there was no objective evidence that 

appellant was totally or permanently disabled due to the accepted conditions or the temporary 

aggravation of her preexisting cervical and lumbar spondylosis. He opined that she was capable 

of medium level work and that a work-hardening program was necessary. Dr. Okezie noted that 

appellant’s lifting capacity was potentially the chief limitation regarding her ability to return to 

work as it was difficult to assess how much any 63-year-old female could lift. In his Form OWCP5c, he indicated that she was capable of working full time in a medium strength position with sixhour limitation on reaching above shoulder and lifting no more than 50 pounds occasionally. 

However, before making a suitability determination and subjecting appellant to the penalty 

provision of section 8106(c)(2), OWCP should have requested clarification from Dr. Okezie as to 

whether she could return to work with the 50-pound lifting restriction, without first attending a 

work-hardening program. The Board has previously explained that a medical opinion in a suitable 

work termination case is of reduced probative value if it suggests that additional efforts, including 

a work-hardening program were likely to be necessary to reach a return to an eight-hour workday.20 

Dr. Okezie should have also been asked to clarify whether appellant was capable of performing 

medium level work, if in fact her age and physical condition rendered her lifting restriction difficult 

to determine, and in light of the fact that her September 5, 2016 FCE indicated that she could work 

in a sedentary capacity if she participated in a formal work conditioning program. As OWCP did 

not clarify these issues, Dr. Okezie’s opinion is not entitled to the special weight of the medical 

evidence. 

The Board also notes that OWCP did not properly clarify whether the offered position was 

suitable. In reviewing the offered January 3, 2018 (revised) modified rural carrier position, OWCP 

specifically advised the employing establishment on February 27, 2018 that the position was not 

considered suitable. It noted that appellant’s schedule for Monday, Wednesday, Thursday, and 

Friday was in excess of eight hours and requested an explanation as to why she was scheduled to 

have one and a half hours for lunch on those days. The employing establishment, however, never 

responded. As the defect still exists, OWCP could not then find that the offered position was 

suitable. 

 

19 See D.L., Docket No. 18-0862 (issued October 12, 2018); Kathy E. Murray, 55 ECAB 288 (2004).

20 G.B., Docket No. 07-1783 (issued February 6, 2008). 
8

As OWCP has not established that the work offered to and refused or neglected by 

appellant was a suitable position or medically suitable, the Board finds that it has not met its burden 

of proof. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective August 14, 2018, as she refused 

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

ORDER

IT IS HEREBY ORDERED THAT the August 14, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board