United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kearny, NJ, Employer

__________________________________________

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Docket No. 19-0206

Issued: August 14, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 5, 2018 appellant, through counsel, filed a timely appeal from an 

October 12, 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 properly terminated appellant’s wage-loss compensation and 

entitlement to a schedule award effective September 28, 2017 because he refused an offer of 

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

FACTUAL HISTORY

On December 29, 2004 appellant, then a 45-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a neck injury when engaging in repetitive 

lifting while in the performance of duty. He indicated that he first became aware of his claimed 

injury on July 1, 2004 and first realized that it was related to his federal employment on that same 

date. Appellant began working in a light-duty position. OWCP accepted that he sustained cervical 

spondylosis without myelopathy and displacement of cervical intervertebral disc myelopathy.3

On November 10, 2015 appellant underwent OWCP-approved cervical surgery, including 

discectomies and foraminotomies at C3-4 and C4-5. Due to disability caused by this surgery, 

OWCP paid him wage-loss compensation on the daily rolls commencing November 10, 2015 and 

on the periodic rolls commencing November 15, 2015. 

On November 8, 2016 OWCP referred appellant for a second opinion examination to

Dr. John Klein, a Board-certified orthopedic surgeon. It requested that Dr. Klein provide an 

opinion regarding a treatment plan review, the extent of appellant’s disability, and, suitability for 

vocational rehabilitation. In a December 20, 2016 report, he discussed appellant’s factual and 

medical history and reported the findings of the physical examination he conducted on that date. 

Dr. Klein indicated that appellant exhibited neck pain upon range of motion of his neck. He posited 

that appellant had cervical stenosis, documented by diagnostic testing, which was aggravated by 

his work. In response to a question regarding appellant’s physical limitations resulting from his 

work-related disability, Dr. Klein noted, “The only restrictions that I would put on the patient are 

that he is not allowed to do any pushing, pulling, lifting, squatting, kneeling, climbing, or twisting 

at work.”

4

 He attached a December 20, 2016 work capacity evaluation (Form OWCP-5c) in which 

he indicated that appellant was unable to perform his usual job. Dr. Klein indicated that, due to 

 

3 OWCP paid appellant partial wage-loss compensation on the daily and periodic rolls for intermittent periods of 

disability commencing April 14, 2005. Appellant stopped working for the employing establishment in late-2008 and 

elected to receive Office of Personnel Management benefits in early January 2009. He had private employment as a 

school crossing guard between 2009 and 2015 and elected to receive FECA benefits again in late-2015. Appellant

has a prior claim, filed under a separate claim number, for a 1998 injury that was accepted for right carpal tunnel 

syndrome.

4 Dr. Klein indicated that, through vocational rehabilitation, appellant might be able to find a job that is sedentary 

in nature where he does not have to frequently lift, carry, push, or pull objects. He noted that a sedentary job would 

involve sitting most of the time and indicated, “A sedentary job, I think, he would be able to do.”
3

his neck pain, appellant was limited to performing sedentary work for eight hours per day.5 He

provided further clarification regarding appellant’s ability to work by identifying limitations on 

specific activities. Dr. Klein indicated that appellant could not perform any of the following 

activities: lifting, pushing, pulling, twisting, bending, stooping, squatting, kneeling, and climbing.

He further indicated that appellant could perform the following activities for eight hours per day: 

sitting, walking, standing, reaching above the shoulder level, and repetitive wrist/elbow motion.

On December 29, 2016 OWCP sent Dr. Klein a new work capacity evaluation form (Form

OWCP-5c), which contained a definition of sedentary work, and requested that he complete and 

return the form in order to clarify the fact that he had indicated appellant could perform sedentary 

work, but also completely restricted him from lifting, pushing, and pulling. The cover letter which 

was attached to the new work capacity evaluation form discussed the definition of sedentary work 

contained in the form. There is no indication in the case record that Dr. Klein responded to 

OWCP’s request.

On January 13, 2017 the employing establishment offered appellant a job as a modified 

mail handler on a full-time basis. The position included such duties as: walking up and down 

aisles to visually check mail and replace mail trays weighing 1⁄2 pound (2 to 3 hours per day), 

walking the work floor to count mail types and mark tallies (1 to 3 hours), checking delivery 

confirmations and printing data (1⁄2 to 11⁄2 hours), and occasionally answering the telephone. The 

physical requirements of the position included: intermittent standing/walking for brief periods;

intermittent simple grasping, intermittent driving; intermittent writing, keyboarding up to 15 

minutes at a time; and lifting/carrying up to 1⁄2 pound for 2 to 3 hours per day.

In a January 15, 2017 letter received by OWCP on January 20, 2017, appellant asserted 

that he had several conditions, including obsessive compulsive disorder (OCD), post-traumatic 

stress disorder (PTSD), and depression, which prevented him from working as a modified mail 

handler. He submitted a January 19, 2017 report from Dr. Fred Wiggins, a clinical psychologist, 

who indicated that appellant was a former patient who had been seen on October 20, 2015 and 

February 10, 2016. Dr. Wiggins indicated that appellant had been diagnosed with unspecified 

depressive disorder and other specified anxiety disorder with panic and OCD features. He advised 

that these were “long standing conditions that have adversely affected his functional capacity in 

occupational and social settings.” In a February 2, 2017 report, Dr. Robert Chalemian, a Boardcertified psychiatrist, indicated that he treated appellant for depressive and anxiety disorder in the 

1990s.

In a February 2, 2017 letter, OWCP advised appellant of its determination that the modified 

mail handler position offered by the employing establishment was suitable. It informed him that

the weight of the medical opinion evidence with respect to his ability to work rested with the 

 

5 On the first page of the work capacity evaluation form, Dr. Klein also checked a box indicating that appellant 

could work at the “Sedentary” strength level. The record contains a blank four-page copy of a work capacity 

evaluation (Form OWCP-5c) which has a definition of the “Sedentary” strength level on its second page. In part, 

sedentary work was defined as exerting up to 10 pounds of force occasionally or a negligible amount of force 

frequently to lift, carry, push, pull, or otherwise move objects, including the human body.
4

December 20, 2016 report of Dr. Klein.

6

 OWCP advised appellant that his wage-loss 

compensation and entitlement to a schedule award would be terminated if he did not accept the 

modified mail handler position or provide good cause for not doing so within 30 days of the date 

of the letter.

In response, appellant subsequently submitted a January 26, 2017 note from Dr. Sheldon 

Weiser, a Board-certified psychiatrist, who indicated that appellant had been his patient in the 

1990s for anxiety and depression. In a February 26, 2017 report, Dr. Linda Russek, a clinical 

psychologist, indicated that she evaluated appellant on an unspecified date. She noted that she 

agreed with other providers’ diagnoses of PTSD and OCD and she questioned whether the risk 

was worth the potential benefits in trying to get appellant back to work.

In a March 1, 2017 letter, appellant advised OWCP that he was refusing the modified mail 

handler position because he had severe anxiety, major depressive disorder, OCD, and PTSD. 

In a March 9, 2017 letter, OWCP informed appellant that his wage-loss compensation and 

entitlement to a schedule award would be terminated if he did not accept the position or provide 

good cause for not doing so within 30 days of the date of the letter. Appellant submitted records 

from a psychiatric hospitalization in 1985 and treatment notes from Dr. Jennifer Treusch, a Boardcertified psychiatrist, which discussed her treatment of his psychiatric condition in 2015.

In a June 22, 2017 letter, OWCP advised appellant that his reasons for refusing to accept 

the modified mail handler position offered by the employing establishment were unjustified. It 

discussed the evidence submitted by appellant, but found that this evidence did not provide a valid 

reason for refusing to accept the position. OWCP advised appellant that his wage-loss 

compensation and entitlement to a schedule award would be terminated if he did not accept the 

position within 15 days of the date of the letter. Appellant did not accept the modified mail handler 

position within the allotted period.

Appellant submitted additional reports from attending Board-certified psychiatrists, 

including reports from 2014 of a Dr. Maria Reckart and reports from 2016 of a Dr. Stephen 

Streitfeld.

On September 22, 2017 the employing establishment advised OWCP that the modified 

mail handler position remained available to appellant.

By decision dated September 28, 2017, OWCP terminated appellant’s wage-loss 

compensation and entitlement to a schedule award effective September 28, 2017 because he 

refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the weight 

of medical evidence with respect to his ability to work rested with the December 20, 2016 report 

of Dr. Klein. OWCP found that appellant did not submit a rationalized medical report showing 

that a psychiatric condition prevented him from working in the modified mail handler position 

which had been identified as suitable. 

 

6 OWCP indicated that appellant had not submitted medical evidence sufficient to support his assertion that OCD, 

PTSD, and depression prevented him from working as a modified mail handler.
5

On October 12, 2017 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. Appellant subsequently submitted an 

undated report from Dr. George Goldman, a clinical psychologist, who discussed his evaluation of 

appellant on October 19 and December 14, 2017. He posited that appellant’s OCD made it 

impossible for him to work. During the hearing held on March 15, 2018, counsel reiterated that 

appellant’s psychological conditions prevented him from performing any work.

By decision dated May 30, 2018, OWCP’s hearing representative affirmed OWCP’s 

September 28, 2017 decision. She noted that the weight of the medical opinion evidence with 

respect to appellant’s ability to work continued to rest with the December 20, 2016 report of

Dr. Klein.

On July 16, 2018 appellant, through counsel, requested reconsideration of the May 30, 

2018 decision. Appellant submitted a June 10, 2018 note from Dr. Goldman who diagnosed 

bipolar disorder, major depressive disorder, and OCD, and he indicated that appellant’s emotional 

vulnerability and fragility made him a hazard to himself and others in a work environment. 

By decision dated October 12, 2018, OWCP denied modification of the May 30, 2018 

decision. 

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

termination or modification of an employee’s compensation benefits.7 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.8 To 

justify termination of compensation, OWCP must show that the work offered was suitable, that 

the employee was informed of the consequences of refusal to accept such employment, and that 

he or she was allowed a reasonable period to accept or reject the position or submit evidence to 

provide reasons why the position is not suitable.9 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.10

Section 10.517(a) of FECA’s implementing regulations provide that an employee who 

refuses or neglects to work after suitable work has been offered or secured, has the burden of 

showing that such refusal or failure to work was reasonable or justified.11 Pursuant to section 

 

7 See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005).

8 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

9 See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

10 S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

11 20 C.F.R. § 10.517(a).
6

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.12

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.13 OWCP procedures 

provide that acceptable reasons for refusing an offered position include withdrawal of the offer or 

medical evidence of inability to do the work or travel to the job.

14

 In a suitable work determination, 

OWCP must consider preexisting and subsequently-acquired medical conditions in evaluating an 

employee’s work capacity.15

ANALYSIS

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

and entitlement to a schedule award effective September 28, 2017 because he refused an offer of 

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

The employing establishment offered appellant a modified mail handler position in 

January 2017 and OWCP determined it to be suitable in February 2017. The physical 

requirements of the position included lifting/carrying up to 1⁄2 pound for 2 to 3 hours per day. The 

record does not reveal that the position was temporary in nature.16

The Board notes, however, that the evidence of record does not show that appellant is 

physically capable of performing the modified mail handler position offered by the employing 

establishment and determined to be suitable by OWCP. In determining that appellant was

physically capable of performing the modified mail handler position, OWCP relied on the 

December 20, 2016 opinion of Dr. Klein, the OWCP referral physician. The Board notes that

Dr. Klein did not provide a clear opinion that appellant could perform the lifting duties of the 

modified mail handler position.

In his December 20, 2016 report, Dr. Klein noted, “The only restrictions that I would put 

on the patient are that he is not allowed to do any pushing, pulling, lifting, squatting, kneeling, 

climbing, or twisting at work.” He attached a December 20, 2016 work capacity evaluation form 

(Form OWCP-5c) in which he indicated that appellant was not able to perform his usual job. 

Dr. Klein advised that, due to his neck pain, appellant was limited to performing sedentary work 

 

12 Id. at § 10.516.

13 M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

14 See 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).

15 See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

16 If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a 

permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), 9 (June 2013).
7

for eight hours per day.17 He indicated that appellant could not perform any of the following 

activities: lifting, pushing, pulling, twisting, bending, stooping, squatting, kneeling, and climbing.

In a December 29, 2016 e-mail, an OWCP official acknowledged that Dr. Klein’s 

December 20, 2016 report was contradictory with respect to work restrictions. On December 29, 

2016 OWCP sent Dr. Klein a new work capacity evaluation form, which contained a definition of 

sedentary work, and requested that he complete and return the form in order to clarify the fact that 

he had indicated that appellant could perform sedentary work, but also completely restricted him 

from lifting, pushing, and pulling. 

There is no indication in the case record that Dr. Klein responded to OWCP’s request for 

a supplemental report and Dr. Klein’s opinion regarding appellant’s ability to perform the lifting 

duties of the modified mail handler position offered by the employing establishment remain 

unclear. 

For these reasons, the Board finds that OWCP has not established that the modified mail 

handler position offered by the employing establishment was suitable. Therefore, OWCP 

improperly terminated appellant’s wage-loss compensation and entitlement to a schedule award 

effective September 28, 2017 because he refused an offer of suitable work.

18

CONCLUSION

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

and entitlement to schedule award compensation effective September 28, 2017 because he refused 

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

 

17 On the first page of the work capacity evaluation form, Dr. Klein also checked a box indicating that appellant 

could work at the “Sedentary” strength level. As noted above, the record contains a blank four-page copy of a work 

capacity evaluation form which has a definition of the “Sedentary” strength level on its second page. In part, sedentary 

work was defined as exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, 

carry, push, pull, or otherwise move objects, including the human body. It is unclear whether Dr. Klein referenced 

the second page of a work capacity evaluation form when he checked the box indicating that appellant could work at 

the “Sedentary” strength level.

18 See supra note 11.
8

ORDER

IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 14, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board