United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooksville, FL, Employer

__________________________________________

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Docket No. 18-1399

Issued: April 1, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 10, 2018 appellant, through counsel, filed a timely appeal from a May 3, 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 May 3, 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 compensation, effective August 31, 2017,

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

FACTUAL HISTORY

On December 8, 2015 appellant, then a 56-year-old supervisor of customer service, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained injuries to her right side, neck, 

shoulder, and lower back at work on December 7, 2015 due to “excessive walking and bending 

while working window unit.” She stopped working on December 9, 2015 and then voluntarily 

retired, effective May 26, 2017. 

OWCP initially denied the claim by decision dated February 1, 2016. Appellant requested 

reconsideration on February 17, 2016. By decision dated April 7, 2016, OWCP vacated its prior 

decision and accepted the claim for wedge compression fracture of the T9-10 and T11-12 vertebra 

(closed fracture) and other intervertebral disc displacement, thoracolumbar region. OWCP placed 

appellant on the periodic compensation rolls and paid wage-loss compensation benefits. 

A magnetic resonance imaging (MRI) scan of the lumbar spine dated December 10, 2015 

revealed compression fractures of several lower dorsal vertebral bodies and L1, disc space 

desiccation and narrowing at multiple thoracic levels as well as L3-4 and L5-S1, retrolisthesis at 

T12 on L1, and L5-S1 right paracentral herniation with posterior displacement and encroachment 

upon the right S1 nerve root. 

A September 23, 2016 work capacity evaluation form (Form OWCP-5c) signed by an 

unidentifiable healthcare provider indicated that appellant was unable to work and had not reached 

maximum medical improvement (MMI). 

An October 25, 2016 MRI scan of the thoracic spine showed mild scoliosis, no evidence 

for compression fracture, and no disc pathology or canal stenosis. 

An October 25, 2016 MRI scan of the lumbar spine demonstrated remote compression 

fracture of L1, no evidence for an acute fracture, central to right paracentral protrusion at L5-S1 

with mild canal stenosis and bilateral foraminal narrowing in conjunction with facet arthropathy, 

and disc bulge at T12-L1 without canal stenosis.

In a December 13, 2016 report, Dr. Robert R. Reppy, an osteopath specializing in family 

medicine, related that appellant’s accepted diagnoses were wedge compression fracture of T9-10 

and T11-12; other intervertebral disc displacement; fracture of lumbar vertebra; cerebellar 

contusion; contusion of face, scalp, and neck; cervical disc displacement; lumbar disc 

displacement; rotator cuff tear, right; umbilical hernia; and ventral hernia. He noted that appellant 

had sustained two work injuries, the first on February 20, 2014 and another on December 7, 2015. 

Dr. Reppy opined that appellant’s conditions were permanent unless surgery could be successfully 

performed for her retrolisthesis and discectomies in the cervical and lumbar spine. He advised that 

appellant was not capable of lifting the loads, such as mailbags and bundles, required by her work. 

Dr. Reppy further advised that appellant was not capable of walking due to her retrolisthesis and 

wedge fractures. He opined that appellant would be capable of modified duties that would keep 
3

her sedentary, required no lifting, allowed her 15-minute breaks from sitting each hour, and 

precluded any walking. 

OWCP referred appellant to Dr. Fanourios Ferderigos, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine the nature and extent of her accepted 

employment-related conditions. In his March 6, 2017 report, Dr. Ferderigos reviewed a statement 

of accepted facts (SOAF), history of the injury, and the medical evidence of record. He conducted 

a physical examination and found mild tenderness to palpation over the paravertebral region of the 

cervical spine. The flexion of the cervical spine was approximately 45 degrees, extension was 10 

degrees, rotation to the right was 50 degrees, rotation to the left was 60 degrees, bending to the 

right was 35 degrees, and bending to the left was 30 degrees. Examination of the thoracic spine 

revealed no tenderness along the paravertebral region. Evaluation of the lumbar spine revealed 

tenderness to palpation over the right side of the lumbar spine from L1 to approximately S1 region. 

Measurements of the lumber spine included flexion was 45 degrees, extension was 10 degrees, 

rotation to the right was 60 degrees, rotation to the left was 60 degrees, bending to the right was 

30 degrees, and bending to the left was 30 degrees. Appellant also had increased discomfort with 

flexibility of the lumbar spine, especially at the extremes of motion. Examination of the lower 

extremities revealed no sensory changes, equal bilaterally. Reflexes of the knees were 2+, the 

right ankle was 1+, and the left ankle was absent. Motor activity was 5/5 of the lower extremities 

and straight leg raising was negative bilaterally, except for some increased discomfort to the low 

back. 

Evaluation in the office with x-rays of the thoracic spine, AP and lateral, revealed some 

degenerative changes of the thoracic spine, but no obvious compression fractures on the thoracic 

spine that could be appreciated on the plain films. Evaluation of the lumbar spine revealed 

degenerative changes of the lumbar spine. There was mild irregularity of the anterior part of the 

superior endplate of L1 which could be consistent with an old mild compression fracture. 

Dr. Ferderigos diagnosed cephalgia, hypertonicity of the cervical spine with decreased range of 

motion, thoracic spine with a history of compression fractures without evidence of compression 

fractures, compression fracture of L1 superior endplate, and chronic lumbago. He opined that the 

compression fractures of the thoracic spine that continued to be present, as shown on the MRI scan 

from December 10, 2015, were healed and there was no obvious evidence of compression fractures 

on plain films or in the MRI scan that was performed on October 25, 2016. Dr. Ferderigos further 

concluded that the disc herniation at L5-S1 had not been resolved. He also noted that appellant 

exhibited subjective findings of having left radiculopathy with absent left ankle reflexes and 

concluded that appellant was not able to return to her date-of-injury job, but she was capable of 

working with restrictions for sitting, bending, or standing of more than two hours per day. 

In a March 16, 2017 report, Dr. Reppy noted that appellant had been seen for a second 

opinion evaluation and was found to have the capacity for light duty. However, appellant advised 

him that “there was no such thing as light duty in a management position.” Dr. Reppy also noted 

that appellant had been approved for social security and had plans to retire on June 1, 2017.

In a May 17, 2017 work capacity evaluation form (Form OWCP-5c), Dr. Reppy advised 

that appellant had reached MMI and was “retiring in a few days.” He opined that she would 

“never” be able to achieve an eight-hour workday and was not capable of working for the next six 

weeks.
4

In a subsequently received work capacity evaluation form (Form OWCP-5c) dated May 15, 

2017, Dr. Ferderigos also advised that appellant had reached MMI, but he opined that she was 

capable of light-duty work with restrictions of sitting, walking, and standing for up to two hours 

per day; pushing, pulling, and lifting no more than 20 pounds up to two hours per day; and no 

squatting.

On May 22, 2017 the employing establishment offered appellant an employment position 

as a modified customer service supervisor, effective May 27, 2017. The description of duties to 

be performed included supervising employee activities, the distribution and dispatch of mail, 

window services to the public, and ensuring compliance with vehicle maintenance and inspection 

schedules. The physical requirements of the position included: lifting, pushing, and pulling no 

more than 20 pounds for two hours; sitting, standing, and walking for two hours; simple grasping 

and fine manipulation for zero to six hours; and no squatting. All physical requirements were to 

be performed intermittently.

In a June 1, 2017 letter, the employing establishment requested a suitability ruling from 

OWCP on the permanent modified job offer for appellant. In the letter it indicated that she had 

refused the job offer and elected retirement, effective May 26, 2017. 

In a work capacity evaluation form (Form OWCP-5c) dated June 14, 2017, Dr. Reppy 

related that appellant’s work restrictions were “moot” because she had retired.

By letter dated June 27, 2017, OWCP advised appellant that the modified customer service 

supervisor position had been found to be suitable and conformed to the work limitations provided 

by Dr. Ferderigos in his second opinion reports dated March 6 and May 15, 2017. The employing 

establishment confirmed that the position remained available. OWCP allowed appellant 30 days 

to accept the position or provide her reasons for refusal and advised that an employee who refuses 

an offer of suitable work without reasonable cause is not entitled to compensation. It also noted 

that even if she was retired, her retirement was not a valid reason for refusing a suitable offer of 

employment.

In a report dated May 17, 2017, received on July 10, 2017, Dr. Reppy responded to an 

inquiry posed by OWCP regarding whether appellant was capable of returning to her date-of-injury 

position, to which he replied “No, she may not.” He explained that appellant was no longer capable 

of lifting loads, such as mailbags and bundles required by her assigned job duties, noting that she 

“drops objects frequently, making her a potential danger to herself and her fellow workers.”

Dr. Reppy pointed out that, “[t]his is consequential to the cervical disc disease and its 

radiculopathy affecting the upper extremities, especially the poor grip strength.” He noted that 

appellant could only perform modified-duty work “that would keep her sedentary, not require any 

lifting, allow her 15-minute breaks from sitting once an hour, and not require any walking.” He 

pointed out that appellant’s “ability to walk is less than that required by her job.” Dr. Reppy 

concluded that “the present level of disability is a direct result of the work-related condition.” In 

response to OWCP’s inquiry as to the estimated date that appellant could return to duty, Dr. Reppy 

responded that appellant’s injuries were permanent. 

Attached to Dr. Reppy’s report was a work restriction evaluation (Form OWCP 5c). He 

held appellant off work for six weeks. Appellant would then be released to sedentary light-duty 

work and her restrictions were permanent. When asked whether appellant would be capable of 

working an eight-hour workday, he responded “never.” 
5

On July 13, 2017 Dr. Reppy reported that appellant related a lessening of her low back pain 

and neck pain, which she “attributed to the fact that she had not done her exercise routine of 

walking over a mile for the last two days.”

In a July 20, 2017 report, Dr. Reppy noted that Dr. Ferderigos had spent “30 minutes total”

with appellant, as opposed to the “many, many hours” he had spent with her. He disagreed with

Dr. Ferderigos’ reading of appellant’s MRI scan as showing only “minor scoliosis” and “no 

evidence of compression fractures.” Dr. Reppy indicated that the radiologist who saw the 

diagnostics results reported a disc herniation at L5-S1 and retrolisthesis of T12 upon L1. He also 

reported that OWCP had erroneously indicated that no cervical or lumbar diagnoses were accepted 

under appellant’s claim, and yet she clearly had an “intervertebral disc displacement, 

thoracolumbar region” as one of her accepted diagnoses.

By letter dated August 10, 2017, OWCP confirmed that the modified customer service 

supervisor position remained available to appellant. It informed her that it had considered all 

reasons she had provided for refusing to accept the offered position and did not find them to be 

valid. OWCP allowed her an additional 15 days to accept and report to the position. It advised 

her that if she did not accept and report to the position during the allotted period, her entitlement 

to wage-loss compensation and schedule award benefits would be terminated.

In response, appellant submitted an August 24, 2017 report from Dr. Reppy who indicated 

that both appellant’s neck and low back pain had increased after helping her mother up from a fall 

out of her wheelchair.

By decision dated August 31, 2017, OWCP terminated appellant’s wage-loss 

compensation and entitlement to schedule award compensation effective that day because she had 

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

On September 7, 2017 counsel requested a telephonic hearing by a representative of 

OWCP’s Branch of Hearings and Review. 

Appellant also submitted reports dated September 20 and October 18, 2017 from Dr. Reppy 

who indicated that appellant walked with a two-pound weight in each hand for an hour, or about 

1.5 miles. Dr. Reppy also advised on November 16, 2017 that her walking tolerance was 15 

minutes or a quarter of a mile. On December 14, 2017 he noted again that appellant reported a 

lessening of her low back pain and neck pain, which she “attributed to the fact that she had not 

done her exercise routine of walking over a mile for the last two days.” Then Dr. Reppy advised 

on January 17, 2018 that her walking limit was one hour.

In reports dated January 8 and 29, 2018, Dr. Reppy continued to opine that appellant was 

not capable of returning to work because she could no longer lift the loads required by her work 

specifications due to her herniated lumbar disc, compression fractures, and retrolisthesis.

A telephonic hearing was held on February 16, 2018 before an OWCP hearing 

representative. Appellant provided testimony and the hearing representative held the case record 

open for 30 days for the submission of additional evidence.

Appellant subsequently submitted reports dated February 26, March 8, and April 11, 2018 

from Dr. Reppy who reiterated his medical opinions and provided progress notes.
6

By decision dated May 3, 2018, the hearing representative affirmed OWCP’s August 31, 

2017 decision, finding that Dr. Ferderigos represented the weight of the medical evidence. She 

found that the duties of the modified job offer indicated that appellant would only supervise and 

the medical evidence appellant submitted failed to establish why she could not perform the 

modified customer service supervisor position. 

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of justifying termination or modification of 

compensation benefits.4 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.5 Section 8106(c)(2) 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 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.8

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

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

determining what constitutes suitable work for a particular disabled employee, OWCP 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 

relevant factors.10 OWCP procedures state 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 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

 

4 See Mohamed Yunis, 42 ECAB 325, 334 (1991).

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

6 See Joan F. Burke, 54 ECAB 406 (2003).

7 20 C.F.R. § 10.517(a).

8

Id. at § 10.516.

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

818 (1992).

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

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

(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
7

third physician who shall make an examination.12 The implementing regulation provides that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.13

In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical examiner 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.14

ANALYSIS

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

and entitlement to schedule award compensation pursuant to 5 U.S.C. § 8106(c)(2), effective 

August 31, 2017, as there remains an unresolved conflict in medical opinion evidence between

Dr. Reppy, appellant’s attending physician, and Dr. Ferderigos, the second opinion physician.

In his March 6, 2017 report, Dr. Ferderigos found that appellant was capable of working 

with restrictions of sitting, bending, or standing more than two hours per day. In his work capacity 

evaluation form (Form OWCP-5c) dated May 15, 2017, he further advised that appellant had 

reached MMI and he opined that she was capable of light-duty work, again noting restrictions of 

sitting, walking, and standing for up to two hours per day; pushing, pulling, and lifting no more 

than 20 pounds for no more than two hours per day; and no squatting. 

On May 22, 2017 the employing establishment offered appellant a modified job as a 

modified customer service supervisor effective May 27, 2017. The description of duties to be 

performed included supervising employee activities, the distribution and dispatch of mail, window 

services to the public, and ensuring compliance with vehicle maintenance and inspection 

schedules. The physical requirements of the position included lifting, pushing, and pulling no 

more than 20 pounds for two hours, sitting, standing, and walking for two hours, simple grasping 

and fine manipulation for zero to six hours, and no squatting. All physical requirements were to 

be performed intermittently. 

In his several reports, Dr. Reppy opined that appellant’s conditions were permanent unless 

she underwent surgery. As such, he concluded that she was incapable of lifting loads, such as 

mailbags and bundles, and drops objects frequently, “making her a potential danger to herself and 

her fellow workers,” adding that “[t]his is consequential to the cervical disc disease and its 

radiculopathy affecting the upper extremities, especially the poor grip strength.” Dr. Reppy 

recommended sedentary work requiring no lifting, precluded walking due to retrolisthesis and 

wedge fractures, and allowed for 15-minute breaks per hour from sitting, all contrary to the 

restrictions recommended by Dr. Ferderigos. Dr. Reppy concluded in his May 17, 2017 work 

 

12 5 U.S.C. § 8123(a); see L.B., Docket No. 18-0560 (issued August 20, 2018).

13 20 C.F.R. § 10.321; see L.B., id.

14 A.E., Docket No. 18-0891 (issued January 22, 2019); R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 

313 (2003); David W. Pickett, 54 ECAB 272 (2002).
8

capacity evaluation that appellant would “never” be capable of working an eight-hour day and that 

she was incapable of working for the next six weeks.

Appellant’s treating physician, Dr. Reppy, and OWCP’s second opinion physician,

Dr. Ferderigos, disagreed regarding her work capacity. As such, the Board finds that a conflict of 

medical opinion exists relative to this issue. OWCP should have resolved the conflict of medical 

opinion evidence before terminating compensation. As OWCP failed to resolve the conflict of 

medical opinion evidence, the Board finds that it has not met its burden of proof to terminate 

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

5 U.S.C. § 8106(c)(2).15

CONCLUSION

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

and entitlement to schedule award benefits, effective August 31, 2017.

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 1, 2019

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

 

15 See generally, P.P., Docket No. 17-0023 (issued June 4, 2018) (the Board reversed OWCP’s termination decision 

due to an unresolved conflict in medical opinion between appellant’s treating physician and OWCP’s second opinion 

physician regarding appellant’s ability to return to his full-duty position and his need for ongoing medical treatment).