United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Atlanta, GA, 

Employer

__________________________________________

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Docket No. 18-0039

Issued: October 15, 2018

Appearances: Case Submitted on the Record

Wayne Johnson, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 5, 2017 appellant, through counsel, filed a timely appeal from a June 16, 2017 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 Appellant timely requested oral argument. By order dated March 14, 2018, the Board exercised its discretion and 

denied his request as his arguments could be adequately addressed in a decision based on a review of the case record. 

Order Denying Request for Oral Argument, Docket No. 18-0039 (issued March 14, 2018).
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of the case.

4

ISSUE

The issue is whether OWCP properly terminated appellant’s compensation benefits

pursuant to 5 U.S.C. § 8106(c)(2) for abandonment of suitable work, effective March 21, 2016.

FACTUAL HISTORY

On July 27, 2013 appellant, then a 59-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that he felt pain in his right shoulder after he lifted a dock plate

while in the performance of duty. He stopped work that day. OWCP accepted the claim for sprain 

of his right shoulder and upper arm, other specified sites and displacement of cervical 

intervertebral disc without myelopathy. Appellant returned to work on August 24, 2013 in a fulltime modified position. He worked in the modified position until March 1, 2014, when he stopped 

work. By decision dated September 25, 2014, OWCP accepted appellant’s claim of recurrence 

(Form CA-2a) for total disability commencing March 1, 2014. It paid him retroactive wage-loss

compensation benefits on the periodic rolls as of August 24, 2014. 

In a May 9, 2015 report, Dr. Raju Vanapalli, a Board-certified orthopedic surgeon and 

OWCP second opinion physician, reviewed the statement of accepted facts (SOAF) and the 

medical record and provided appellant’s March 13, 2015 examination findings. He indicated that 

appellant continued to suffer residuals of the accepted injury as he had cervical radiculopathy, 

C5-6 with diminished C-spine range of movements and right shoulder rotator cuff tendinopathy 

with adhesive capsulitis. Dr. Vanapalli also indicated that there was permanent exacerbation of 

preexisting degenerative spondylosis superimposed on congenitally narrow spinal canal and 

cervical radiculopathy. He found that appellant could not resume his usual employment, but could 

work a sedentary job eight hours daily with permanent restrictions. In the March 13, 2015 work 

capacity evaluation (Form OWCP-5c), Dr. Vanapalli opined that appellant could perform 

sedentary work with no more than 2 hours reaching, no more than 3 hours of pushing, pulling, and 

lifting up to 10 pounds and 20-minute breaks every 2 hours.

On April 20, 2015 Dr. Zouheir A. Shama, a general surgeon, signed off on appellant’s 

March 28, 2015 functional capacity evaluation (FCE), which revealed that appellant had positive 

orthopedic, neurologic, and diagnostic testing in his cervical spine, right shoulder, and right arm. 

Appellant could not run/jog, carry, push/pull, or work. He had severe difficulty with lifting, 

climbing stairs, driving, dressing, and household chores. Appellant had moderate difficulty with 

walking, bending, standing, sleeping, reading, and watching TV. He also had mild-to-moderate 

difficulty with sitting. The FCE related that appellant should never reach overhead, never be in 

 

3 5 U.S.C. § 8101 et seq.

4 The record provided to the Board includes evidence received after OWCP issued its June 16, 2017 decision. The 

Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
3

postures which involved neck flexion and neck extension, and that he was only able to sit 

infrequently.

By letter dated May 18, 2015, OWCP advised the employing establishment that the weight 

of the medical evidence rested with Dr. Vanapalli’s opinion regarding appellant’s permanent work 

tolerances and limitations and it requested that the employing establishment offer appellant a job

within those restrictions. On May 21, 2018 it referred appellant to vocational rehabilitation as no 

permanent light-duty work was available within appellant’s medical restrictions. 

In a May 26, 2015 report, Dr. Shama noted the history of the July 27, 2013 work injury. 

He noted that the October 28, 2014 magnetic resonance imaging (MRI) scan of the right shoulder 

indicated moderate-to-severe cuff tendinosis, severe degeneration of the superior and 

posterosuperior labrum, and anterior cruciate joint degenerative change. The August 25, 2014 

MRI scan of the cervical spine revealed advanced cervical spondylosis at C3-4 with resultant 

severe central spinal stenosis and myelomalacia; spondylosis at C4-5 with moderate-to-severe 

bilateral foraminal stenosis; and spondylosis at C6-7 with moderate-to-severe left and right 

foraminal narrowing and mild-to-moderate foraminal narrowing on the left at C5-6. Dr. Shama 

indicated that special attention was paid to the FCE of the cervical spine and right shoulder. In a 

May 26, 2015 duty status report (Form CA-17), he indicated that appellant was totally disabled

from work.

In a June 8, 2015 letter, appellant disagreed that the weight of the medical evidence rested 

with Dr. Vanapalli.

In June 29 and July 30, 2015 reports, Dr. Shama noted that disc fusion surgery had been 

recommended, but it could not be performed until appellant’s diabetes was under control. In a 

June 29, 2015 Form CA-17, he opined that appellant was totally disabled. 

On July 22, 2015 a vocational rehabilitation specialist conducted an initial interview with 

appellant. She noted that Dr. Shama related that the recommended disc fusion surgery could not 

be performed until appellant’s diabetes was controlled. The rehabilitation specialist also noted 

that appellant attended physical therapy, occupational therapy, and aquatic therapy three times a 

week and that he took several medications for which he reported side effects.

On August 6, 2015 the employing establishment offered appellant a modified position as a

Sales and Solution Team Member. The position involved contacting customers by telephone and 

answering incoming telephone calls, intermittently six to eight hours, and light data input 

intermittently four hours. The physical requirements of the position involved sitting in an office 

chair intermittently eight hours, simple grasping and pushing/pulling using computer mouse 

intermittently four to eight hours, fine manipulation of keyboard and lifting no more than five

pounds intermittently four to eight hours, and speaking on telephone intermittently six to eight

hours.

In an August 13, 2015 letter, counsel indicated that the employing establishment agreed 

that appellant would not be under a timed performance standard. 
4

On August 17, 2015 appellant returned to modified work as a Sales and Solution Team 

Member. He refused to sign the job offer and took two days off work to attend medical

appointments. 

In an August 18, 2015 CA-17 form, Dr. Melanie Cooper, a Board-certified family 

practitioner, found appellant totally disabled from work.

In an August 19, 2015 letter, Dr. Kathy Edwards, a Board-certified internist, noted that 

appellant was a right-handed type II diabetic with right shoulder pain, neck pain, and cervical 

degenerative disc disease with neuropathy on the right, who had been in rehabilitation and physical 

therapy three days a week since October 2014. She noted that the October 27, 2014 MRI scan of 

C-spine confirmed advanced cervical spondylosis at C3-4 with severe central spinal stenosis. 

Dr. Edwards opined that appellant was medically disabled as his pain and numbness persisted and 

his diabetes was not controlled.

On August 20, 2015 appellant signed the job offer. He worked in the modified position 

until August 25, 2015, when he became ill at work and was taken to the emergency room. An 

August 25, 2015 work excuse note from Grady Hospital Emergency Department noted that 

appellant was unable to return to work for a minimum of 24 hours.

In an August 26, 2015 report, Dr. Cooper noted the history of injury and that appellant was 

off work from March 1, 2014 until August 17, 2015, when he attempted to work. She also noted 

that appellant could not tolerate the activity of working which required stooping, bending, sitting, 

standing, and walking, grasping and pincher movements. Dr. Cooper provided an assessment of 

right shoulder sprain with prolonged tendonesis; spondylosis at C3 to C4 and C4 to C5 and C6 to 

C7; and cervical spine stenosis at C3 and C4.

In a September 4, 2015 statement, appellant stated that he had accepted the modified job 

offer against his doctor’s recommendations. He alleged that he would have been terminated by 

the employing establishment had he not accepted the modified job offer. Appellant stated that 

when he reported to work on August 17, 2015 no work was available within his restrictions, so he 

sat in the office until it was time to go to physical therapy. He indicated that he had prescheduled 

doctor appointments for Tuesday and Wednesday and had took off Thursday and Friday because 

of pain. The following week, appellant reported to work. On August 25, 2015 he collapsed at 

work and was taken to the emergency department. Appellant saw Dr. Cooper the next day and 

was excused from work until September 28, 2015. 

A September 4, 2015 emergency room record indicated that appellant was seen and 

diagnosed with neck pain. He was provided discharge instructions for near syncope. 

In a September 9, 2015 report, Dr. Cooper reported that appellant was given medical leave 

from August 26 to September 30, 2015 due to severe neck pain. She noted that on August 17, 

2015 appellant had received a letter to report to work, which he did, as he did not want to lose his 

job. Dr. Cooper noted that when appellant returned to work, there were no job duties available for 

him so he was advised to do data entry, answer telephone calls, and perform basic office duties. 

Appellant was also told that he must make 60 calls per day. Dr. Cooper noted that appellant did 

not work, but sat for 30 minutes to an hour, in between time walking around due to being 
5

aggravated by pain. Appellant left the job site at 12:30 p.m. and did not return because he had 

therapy scheduled that day. The next day he reported to work and could not perform again. 

Appellant did not report to work until August 24, 2015 due to neck pain. On August 25, 2015 he

collapsed to the floor secondary to severe pain. Paramedics were called and appellant went to the 

emergency room at Grady Hospital. Dr. Cooper noted the results of the objective testing and the 

March 28, 2015 FCE.5 She opined that appellant was permanently disabled and had a material 

worsening of his incapacitation due to events demanding return to work. Dr. Cooper further 

opined that appellant was incapacitated and could not work until he received a second opinion or 

pursued surgery.

On October 2, 2015 appellant filed Form CA-7s claiming compensation for recurrent 

disability commencing August 25, 2015. 

In an October 7, 2015 letter, OWCP advised appellant that additional evidence was needed 

to establish disability for work from August 25, 2015. It informed him that pain was not a 

diagnosis and that he needed to provide medical evidence to support why he did not work the lightduty assignment which was available within his medical restrictions with the employing 

establishment during the period claimed. OWCP afforded appellant 30 days to submit the 

requested information.6

OWCP received an October 28, 2015 statement from appellant and emergency room 

discharge notes dated September 4 and October 27, 2015, where he was diagnosed with neck pain 

and cervical stenosis, respectively. 

In an August 26, 2015 Form CA-17, Dr. Cooper diagnosed neck stiffness and right 

shoulder pain due to work injury. She opined that appellant was totally disabled and could not lift, 

twist, bend, turn, walk long distances, or grasp. Dr. Cooper excused appellant from work from 

August 26 to September 30, 2015 as he required further testing and specialist consultations.

In a September 28, 2015 report, Dr. Hassan Monfared, a physiatrist, noted the history of 

the work injury. He provided an assessment of cervical myelopathy and right shoulder 

impingement syndrome possibly secondary to subacromial bursitis versus rotator cuff tendinitis. 

Dr. Monfared scheduled appellant for an evaluation with a spine surgeon, but indicated that he was 

probably not a good surgical candidate at this point. He also ordered a new MRI scan. 

In an October 22, 2015 report, Dr. Keith W. Michael, a Board-certified orthopedic 

surgeon, noted the history of the work injury and diagnosed cervical spondylosis with myelopathy. 

He advised that appellant had cord compression with T2 signal on his MRI scan and clinical 

symptoms of myelopathy with significant right arm weakness. Dr. Michael also suspected a right 

shoulder problem. He advised that, while appellant was a candidate for cervical surgery, he needed 

 

5 Dr. Cooper decreased appellant’s aquatic physical therapy to twice a week. 

6 On October 8 and 23, 2015 appellant requested a change of physicians from Drs. Shama and Cooper to Dr. Jay B. 

Bender, a physiatrist. On November 4, 2015 OWCP approved appellant’s change of physician to Dr. Bender. 
6

to improve his sugar level and quit smoking. Dr. Michael opined that given appellant’s significant 

right upper extremity weakness, he would not be able to function at his prior work capacity.

In a November 16, 2015 report, Dr. Bender noted the history of the July 27, 2013 work 

injury. He opined that appellant was totally incapacitated. In a November 18, 2015 report,

Dr. Bender noted the history of the July 27, 2013 work injury and reviewed MRI scan reports. He 

diagnosed cervical herniated nucleus and spinal stenosis and right shoulder pain, which he opined 

were due to the work injury. Dr. Bender also opined that appellant was incapacitated. In a 

November 18, 2015 Form CA-17, he opined that appellant was unable to return to work. 

On December 18, 2015 the employing establishment confirmed that the August 6, 2015 

position remained available.

In a December 21, 2015 letter, OWCP noted that appellant had returned to work as a Sales 

and Solution Team Member on August 17, 2015, but stopped work and claimed compensation for 

recurrent disability, effective September 21, 2015.7 It advised him that the job offer of August 6, 

2015 as a Sales and Solution Team Member was currently available and medically suitable within 

the limitations provided by Dr. Vanapalli in his March 13, 2014 report. OWCP advised appellant

that the evidence was insufficient to establish a recurrence of disability as there was no rationalized 

medical evidence as to why he was unable to perform the sedentary duties listed in the August 6, 

2015 job offer. It further advised appellant that, if he failed to establish a recurrence of disability,

failed to return to the August 6, 2015 position, and failed to demonstrate that his refusal of suitable 

work was justified, his compensation benefits would be terminated pursuant to 5 U.S.C. 

§ 8106(c)(2). OWCP afforded appellant 30 days to provide the requested information.

In a December 9, 2015 report, Dr. Vidyadhar Chitale, a Board-certified neurosurgeon, 

noted the history of the July 27, 2013 work injury. He provided an impression of lumbar spinal 

stenosis, differential diagnoses for cervical spine include nerve root and/or cord compression C5 

through C6, brachial plexus injury, and neuropathy. Dr. Chitale also provided copies of the 

December 9, 2015 MRI scan of the lumbar spine and December 9, 2015 nerve conduction studies. 

In a December 9, 2015 report, Dr. Alan Maloon, a Board-certified neurologist, noted the 

history of the July 27, 2013 work injury and diagnosed post work-related right shoulder 

arthropathy with possible rotator cuff tear, chronic neck pain predominantly left-sided with 

occipital radiation, and chronic right knee pain. A copy of the December 9, 2016 MRI scan of the 

right shoulder was provided. 

In medical reports dated November 18, 2015 through January 27, 2016, Dr. Bender 

continued to opine that appellant was totally incapacitated from the July 27, 2013 work injury. 

Physical therapy reports were also received along with Form CA-7 claims for 

compensation, and a January 20, 2016 letter from counsel. Also received was a January 4, 2016 

letter from the Social Security Administration which indicated that appellant was entitled to 

monthly disability benefits beginning August 2014, and a PS Form 50 from the employing 

 

7 Appellant claimed recurrent disability effective August 25, 2015 and continuing.
7

establishment, which noted that appellant’s FEGLI insurance status was terminated effective

September 19, 2015.

On January 19, 2016 OWCP received the August 25, 2015 emergency medical service 

report. Appellant reported feeling dizzy while walking into work. He also complained of chronic 

neck pain and right shoulder pain.

On February 12, 2016 the employing establishment indicated that the job offer was still 

available. 

By letter dated February 18, 2016, OWCP advised appellant that he had not returned to 

work and had not provided any valid reasons for his refusal to return to the position of Sales and 

Solution Team Member. It also found that the evidence of record failed to establish a recurrence 

of disability. OWCP notified appellant that the position was still available and allowed him 15 

days to accept and report to the position or his entitlement to compensation benefits would be 

terminated pursuant to 5 U.S.C. § 8106(c)(2).

Appellant continued to submit CA-7 forms, claiming wage-loss compensation. In a 

March 4, 2016 letter, counsel stated that he had not been provided a copy of OWCP’s February 18, 

2016 letter. He argued that no physician had concluded that the offered position was medically 

suitable to appellant. In the alternative, counsel argued that a medical conflict of opinion existed 

between Dr. Vanapalli and the opinions of Dr. Bender, Dr. Shama and Dr. Cooper on appellant’s 

ability to work.

Dr. Bender continued to submit progress reports which diagnosed cervical herniated 

nucleus and right shoulder pain. He also continued to opine that appellant was incapacitated. 

In an August 19, 2015 report, Dr. Edwards diagnosed neck pain, diabetes, cervical disc 

disease, sprains and strains of shoulder and upper arm, and neuropathy. She agreed with 

appellant’s plan to retire. Dr. Edwards also instructed him not to return to work or to lift anything 

greater than five pounds. She indicated that appellant would need a discectomy and/or fusion due 

to right arm neuropathy and several cervical disc displaced and compression. 

By decision dated March 21, 2016, OWCP terminated his entitlement to wage-loss and 

schedule award compensation as of March 21, 2016. It found that the August 6, 2015 job offer 

was suitable work based on the work restrictions provided by Dr. Vanapalli on March 13, 2015 

and that he had abandoned the suitable work without a valid reason. OWCP found that no medical 

conflict of opinion existed as the treating physicians had not provided any evidence to support 

disability. It also found that appellant had not established a recurrence of disability as the medical 

evidence of record lacked rationale as to why he was totally disabled from performing any duties 

due to his July 27, 2013 work-related injury.

Appellant continued to submit Form CA-7 claims for compensation. He also continued to 

submit medical reports regarding his medical status after March 7, 2016, which related to his 

continuing disability. 

On March 20, 2017 appellant, through counsel, requested reconsideration. Counsel argued 

that appellant had suffered a material deterioration/worsening of his accepted conditions which 
8

made the job offer no longer valid. Also the August 25, 2015 event resulted in a worsening of 

appellant’s condition. Counsel argued that the job was outside of Dr. Vanapalli’s restrictions and 

presented an affidavit from appellant attesting to the duties of the job. He also noted that appellant 

was not allowed 20-minute breaks every 2 hours and that Dr. Vanapalli never approved the job. 

Counsel argued that OWCP used the wrong standard in determining whether a recurrence occurred 

to negate the suitability determination.

In support of his reconsideration request, counsel submitted appellant’s March 20, 2017 

affidavit attesting to his inabilities. Appellant continued to submit medical evidence regarding his 

current medical status. 

In a June 14, 2017 letter, counsel argued that appellant was unable to vocationally perform 

the duties of the offered position and was further ineligible for the position.

By decision dated June 16, 2017, OWCP denied modification of its prior decision. It noted 

that there were discrepancies regarding why appellant had refused to continue working and that 

there was a preexisting disabling diabetes condition. OWCP found that the medical evidence 

lacked objective findings provided by contemporaneous medical reports of sufficient weight to 

overturn the evidence of record at the time of the ruling. 

LEGAL PRECEDENT

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

modification of compensation benefits.8 After it has determined that an employee has disability 

causally related to his or her federal employment, OWCP may not terminate compensation without 

establishing that the disability has ceased or that it is no longer related to the employment.9 Section 

8106(c) of FECA10 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. Section 10.517 of the applicable regulations11 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 proof to show 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. To establish that a claimant has abandoned 

suitable work, OWCP must make a finding of suitability. To establish that a claimant has 

abandoned suitable work, OWCP must make a finding of suitability. 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.12 Section 8106(c) will be narrowly 

 

8 L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

9 G.R., Docket No. 16-0455 (issued December 13, 2016).

10 5 U.S.C. § 8106(c)(2).

11 20 C.F.R. § 10.517(a).

12 L.L., supra note 8; Arthur C. Reck, 47 ECAB 339, 341-42 (1995).
9

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.13

According to OWCP’s 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.14 Its 

regulations provide factors to be considered in determining what constitutes suitable work for a 

particular disabled employee, including 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.15 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. All impairments, whether 

work related or not, must be considered in assessing the suitability of an offered position.16 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 proof 

to show that such refusal or failure to work was reasonable or justified.17 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.18

After termination or modification of benefits clearly warranted on the basis of the evidence, 

the burden for reinstating compensation benefits shifts to appellant.19

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to establish that appellant 

abandoned suitable work pursuant to 5 U.S.C. § 8106(c)(2). OWCP failed to establish that he 

was capable of performing the Sales and Solution Team Member position given his accepted as 

well as preexisting and subsequently-acquired medical conditions.

The employing establishment offered appellant a position as a Sales and Solution Team 

Member on August 6, 2015. Appellant worked in that position from August 17 to 25, 2015, when 

he was taken to the hospital for dizziness from hypoglycemia and neck pain. OWCP subsequently 

found that he abandoned suitable work in violation of 5 U.S.C. § 8106(c)(2). The initial question 

presented under 5 U.S.C. § 8106(c)(2) is whether the job was medically suitable.

 

13 L.L., id.

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

15 J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

16 Id.

17 Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

18 Id. at § 10.516.

19 K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller, 47 ECAB 673, 679 (1996); see also 

George Servetas, 43 ECAB 424 (1992).
10

OWCP relied on Dr. Vanapalli’s March 13, 2015 medical limitations, which were set forth 

in a May 9, 2015 report, to find that the August 6, 2015 job offer was medically suitable. The 

physical requirements of the position involved sitting in an office chair intermittently eight hours, 

simple grasping and pushing/pulling using computer mouse intermittently four to eight hours, fine 

manipulation of keyboard, lifting no more than five pounds intermittently four to eight hours, and 

speaking on telephone intermittently six to eight hours. 

On April 20, 2015 Dr. Shama, however, signed off on appellant’s March 28, 2015 FCE, 

which revealed that appellant had positive orthopedic, neurologic, and diagnostic testing in his 

cervical spine, right shoulder, and right arm. The FCE specifically found that appellant should 

never reach overhead, should not perform work in postures which involved neck flexion and neck 

extension, and should only sit infrequently. Dr. Shama attested to appellant’s cervical and right 

upper extremity conditions by interpreting the diagnostic testing performed in 2014, and he 

indicated in June 29 and July 30, 2015 reports that cervical disc fusion surgery had been 

recommended, but could not be performed until appellant’s diabetes was under control. He also 

opined that appellant was totally disabled. 

OWCP did not attempt to clarify the FCE results with Dr. Vanapalli or discuss the physical 

requirements of the August 6, 2015 job offer as to the FCE recommendations of no overhead 

reaching, no work in postures which involved neck flexion and neck extension, and infrequent 

sitting. It also did not discuss appellant’s need for cervical surgery or his diabetic condition.

Nevertheless, on December 21, 2015, OWCP advised appellant that the position of Sales 

and Solution Team Member, as set forth in the August 6, 2015 job offer, was within his medical 

restrictions as provided by Dr. Vanapalli in his March 13, 2014 report. The record thereafter 

reflects that appellant developed additional medical conditions involving his right shoulder. Also,

his sugar levels were still uncontrolled such that he could not undergo the recommended cervical 

and shoulder surgeries. OWCP again did not attempt to clarify the FCE with either Dr. Vanapalli 

or against the position requirements, but rather terminated appellant’s wage-loss compensation and 

entitlement to schedule award benefits, effective March 21, 2016 for abandoning suitable work. 

OWCP bears the burden of proof to terminate compensation due to abandonment of suitable work, 

and the Board finds that OWCP did not meet its burden of proof in this case.

As previously noted, OWCP must consider all of appellant’s conditions, preexisting, work 

related, and subsequently-acquired medical conditions in determining whether a position is 

suitable for appellant. The record does not substantiate that OWCP considered the medical 

limitations set forth in the May 28, 2015 FCE, which Dr. Shama signed off on April 20, 2015, his 

uncontrolled diabetic condition, his cervical spondylosis with myelopathy and cord compression, 

and right shoulder conditions, before terminating his compensation, effective March 21, 2016. 

Rather the termination decision dated March 21, 2016, and OWCP’s June 16, 2017 decision 

denying modification, based the finding of abandonment of suitable work only on the accepted 

work-related conditions and the treating physician’s opinions regarding total disability, which it 

found were insufficiently rationalized. In this regard, the Board notes that the work restrictions 

from appellant’s treating physicians as well as knowledge of appellant’s preexisting diabetic 
11

condition and need for cervical surgery were provided prior to appellant’s attempt to return to work 

in August 2016. Therefore, OWCP failed to meet its burden of proof in this case.20

As a penalty provision, section 8106(c)(2) must be narrowly construed.21 Based on the 

evidence of record, the Board finds that OWCP improperly determined that the modified position 

offered to appellant constituted suitable work within his physical limitations and capabilities. 

Consequently, OWCP did not meet its burden of proof to justify the termination of his 

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

CONCLUSION

The Board finds that OWCP improperly terminated appellant’s compensation benefits 

pursuant to 5 U.S.C. § 8106(c)(2), for abandonment of suitable work effective March 21, 2016.

ORDER

IT IS HEREBY ORDERED THAT the June 16, 2017 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: October 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 See H.L., Docket No. 16-1810 (issued March 16, 2017).

21 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).