United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.B., Appellant

and

U.S. POSTAL SERVICE, BOWLING GREEN 

STATION, New York City, NY, Employer

__________________________________________

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Docket No. 17-0216

Issued: February 13, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 7, 2016 appellant filed a timely appeal from an October 5, 2016 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits on October 5, 2016 pursuant to 5 U.S.C. § 8106(c). 

HISTORY

On February 24, 1978 appellant, then a 31-year-old supply clerk, fractured her left ankle 

when she fell from a platform at work. She stopped work that day. OWCP initially accepted 

closed fracture of the medial malleolus of the left ankle, which was repaired surgically on 

 

1 5 U.S.C. § 8101 et seq.
2

March 3, 1978. Appellant received continuation of pay from February 25 to April 10, 1978, and 

wage-loss compensation benefits until she returned to work on August 11, 1978.

Appellant continued to work until October 7, 1998, when she had surgery for screw 

removal and left ankle fusion. She thereafter received wage-loss compensation and was placed 

on the periodic compensation rolls. Appellant returned to a modified position for a brief period 

in July 1999. OWCP thereafter accepted a July 17, 1999 recurrence of disability, and she did not 

return to work after that date. Appellant had additional left ankle surgery on December 2, 1999. 

She retired from the employing establishment, effective October 11, 2001, and moved from New 

York to Pennsylvania. Appellant continued to receive FECA benefits on the periodic rolls. In 

2012 she moved to North Carolina.

Dr. Mark W. Puffenberger, a family physician, submitted reports and work capacity 

evaluations (Form 5c) dated June 9, 2008 to March 23, 2015 in which he noted appellant’s 

complaint of chronic joint pain in her left ankle following a fall at work in 1978. He described 

physical examination findings and diagnosed osteoarthrosis of the ankle/foot. Dr. Puffenberger 

advised that appellant was totally disabled and could never return to work.

In a November 14, 2014 report, Dr. Glenn E. MacNichol, Board-certified in 

anesthesiology, advised that appellant was under treatment for the conditions of chronic pain of 

the left ankle, bilateral hip pain, and chronic low back pain associated with intermittent lumbar 

radiculopathy. He advised that appellant’s ankle pain was due to the previous ankle fracture and 

that her back pain was multifactorial, indicating that her gait disturbance aggravated her back 

pain.

In April 2015 OWCP referred appellant to Dr. Lawrence N. Larabee, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. The statement of accepted facts (SOAF) 

provided to the physician indicated that the additional condition of general osteoarthritis, 

multiple sites, left, had been accepted. In a May 27, 2015 report, Dr. Larabee noted the history 

of injury and his review of the SOAF and medical record. He noted moderate swelling and 

marked deformity present in examination of the left ankle and that appellant limped with a leftsided antalgic gait. Dr. Larabee diagnosed fixed deformity and ankylosed midfoot and advised 

that the accepted conditions had not resolved. He indicated that appellant could work eight hours 

a day in a sitting position and that she had reached maximum medical improvement (MMI) in 

2007. Dr. Larabee provided restrictions of eight hours sitting and four hours operating a motor 

vehicle, with no walking, standing, twisting, bending, stooping, or climbing.

OWCP asked that the employing establishment prepare a modified job offer that 

comported with the restrictions provided by Dr. Larabee. The employing establishment offered 

appellant a modified mail processing clerk position on February 22, 2016. The job offer was in 

New York City, with duties of casing manual letters for eight hours. The physical requirements 

were sitting up to eight hours with pushing, pulling, and lifting up to 20 pounds intermittently for 

eight hours. Appellant refused the offer on March 3, 2016, noting that she attached a report from

Dr. Thomas Gennosa.2

 

2 No report from Dr. Gennosa is found in the case record.
3

In a supplemental report dated April 18, 2016, Dr. Larabee advised that appellant could 

walk as a part of her work duties for 30 minutes daily, could walk coming and going from work 

for 30 minutes daily, that she could not stand and work, but could stand for 30 minutes coming 

and going from work. He reviewed the February 22, 2016 job offer and advised that she could 

perform the position. In an attached work capacity evaluation, Dr. Larabee provided permanent 

restrictions that appellant could walk for 1.5 hours daily, stand for 30 minutes, operate a motor 

vehicle for 4 hours at work and 4 hours to and from work, and that she could not twist, bend, 

stoop, or climb.

On May 6, 2016 the employing establishment informed OWCP that it had completed the 

search for a modified assignment in appellant’s geographical area and had been unable to 

identify a suitable assignment that fit her restrictions. A priority for assignment worksheet was 

attached.

By letter dated May 23, 2016, OWCP informed the employing establishment that the 

February 22, 2016 job offer was found suitable except that relocation expenses were not 

authorized. It explained that, as the evidence of record indicated that appellant was no longer on 

the employing establishment rolls, in accordance with OWCP regulations relocation expenses 

should be provided since she had moved from her previous duty station.

On July 26, 2016 the employing establishment again offered appellant the modified 

processing clerk position. It noted that relocation expenses were authorized when the offer was 

accepted. Appellant refused the position on August 1, 2016, stating that she was under pain 

management and that she took hydrocodone four times daily, all due to her fractured left ankle.

By letter dated August 11, 2016, OWCP advised appellant that the position offered was 

suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to section 8106(c)(2) of FECA, her right wage-loss 

compensation or a schedule award would be terminated. She was afforded 30 days to respond.

On September 9, 2016 appellant forwarded her August 1, 2016 refusal of the job offer. 

Medical evidence attached included a May 11, 2015 magnetic resonance imaging (MRI) scan of 

lumbar spine that demonstrated severe stenosis from L3-4 through L5-S1, moderate-to-severe 

facet degenerative disease, grade 1 anterolisthesis of L4 on L5, and moderate-to-severe loss of 

disc space height. A November 11, 2015 left ankle fracture demonstrated surgical changes and 

considerable degenerative change. An incomplete, unsigned emergency department report date 

August 4, 2016 noted diagnoses of fall with abrasion of cheek. In an August 30, 2016 report, 

Kristin W. Warren, a physician assistant, noted diagnoses of diabetes mellitus, tobacco 

dependence syndrome, localized osteoarthrosis, osteoarthritis of ankle, ankle joint pain, low back 

pain, and elevated blood pressure. She indicated that left ankle examination demonstrated 

swelling, pain with palpation, limited range of motion due to fusion, and a slight limp without 

ambulation. Ms. Warren diagnosed left ankle pain, described appellant’s medication regimen, 

and advised that she could continue activities as tolerated. On September 2, 2016

Dr. Akpomudiare Otuguor, a Board-certified family physician, advised that appellant had 

chronic medical problems including bulging disc at the lower back for which she received steroid 

injections. He further noted the history of multiple surgeries including fusion of the left ankle, 
4

that she attended pain management, and that she ambulated with a cane. Dr. Otuguor concluded 

that, due to these medical conditions, appellant would have difficulty with work.

By letter dated September 12, 2016, OWCP advised appellant that her reasons for 

refusing the offered position were not valid. Appellant was afforded an additional 15 days to 

accept the offered position. On October 3, 2016 the employing establishment indicated that the 

offered position remained available.

In an October 5, 2016 decision, OWCP terminated appellant’s wage-loss compensation

and right to a schedule award effective that date because she refused an offer of suitable work. It 

noted that the medical evidence submitted by appellant did not contain an explanation of why 

she could not perform the offered position and found that the weight of medical evidence rested 

with the opinion of Dr. Larabee who provided the second opinion evaluation.

LEGAL PRECEDENT

Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who 

(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”

3

 

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept 

suitable work or neglecting to perform suitable work.4 The implementing regulations provide 

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

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

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

entitlement to compensation is terminated.5 To justify termination, OWCP must show that the 

work offered was suitable and that appellant was informed of the consequences of his refusal to 

accept such employment.6 In determining what constitutes “suitable work” for a particular 

disabled employee, it 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.7 

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.8 In assessing medical evidence, the number of physicians supporting one 

position or another is not controlling. The weight of such evidence is determined by its 

reliability, its probative value, and its convincing quality. The factors that comprise the 

evaluation of medical evidence include the opportunity for and the thoroughness of physical 

 

3 5 U.S.C. § 8106(c)(2).

4

Joyce M. Doll, 53 ECAB 790 (2002).

5 20 C.F.R. § 10.517(a).

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

818 (1992).

7 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8 Gayle Harris, 52 ECAB 319 (2001).
5

examination, the accuracy and completeness of the physician’s knowledge of the facts and 

medical history, the care of analysis manifested, and the medical rationale expressed in support 

of the physician’s opinion.9

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.10 If possible, the employing establishment should offer suitable employment in the location 

where the employee currently resides. If this is not practical, it may offer suitable reemployment 

at the employee’s former duty station or other location.11

ANALYSIS

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

modification of compensation benefits.12 This includes cases where OWCP terminates 

compensation under section 8106(c) of FECA for refusal of suitable work.13 Section 8106(c) is a 

penalty provision and shall be narrowly construed.14

The Board finds that OWCP did not meet its burden of proof to terminate wage-loss 

compensation on October 5, 2016. OWCP found that the weight of the medical evidence rested 

with the opinion of Dr. Larabee who provided a second opinion evaluation. However, the Board 

finds that Dr. Larabee’s reports are lacking because his answers in both the May 27, 2015 and 

April 18, 2016 reports were cursory and not well reasoned and were thus insufficient to meet 

OWCP’s burden of proof.

In his May 27, 2015 report, Dr. Larabee provided few physical examination findings, 

merely noting that the left ankle had moderate swelling with a marked deformity evident and an 

ankylosed mid-foot. When asked for objective findings to support disability, he merely indicated 

“same,” fixed deformity and ankylosed mid-foot. Likewise, in his April 18, 2016 supplemental

report, Dr. Larabee gave only abbreviated answers and no rationale for the time restrictions he 

listed. To meet its burden of proof to establish that an offered position is suitable, the medical 

evidence on which OWCP relies should be based on current examination findings, the medical 

record, and a SOAF and clearly explain that appellant is physically capable of performing the 

 

9 Maurissa Mack, 50 ECAB 498 (1999).

10 Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity, 

Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).

11 20 C.F.R. § 10.508; see S.H., Docket No. 15-0329 (issued June 5, 2015).

12 Supra note 7.

13 Y.A., 59 ECAB 701 (2008).

14 Stephen A. Pasquale, 57 ECAB 396 (2006). 
6

duties of the offered position.15 The medical evidence should be clear and unequivocal that the 

claimant could perform the offered employment position.16

The issue of whether a claimant is able to perform the duties of the offered employment 

position is a medical one and must be resolved by probative medical evidence.17 While OWCP 

found that Dr. Larabee’s opinion contained sufficient medical rationale to support that appellant 

could perform the duties of the offered position,18 the Board finds his opinion lacks sufficient 

rationale to meet OWCP’s burden of proof. The medical evidence of record, therefore, fails to 

establish that the offered position was suitable.19

The employing establishment offered appellant a modified mail processing clerk position 

on February 22, 2016 and noted that relocation expenses were authorized when the offer was 

accepted. Appellant refused the position on August 1, 2016, stating that she was under pain 

management and that she took hydrocodone four times daily, all due to the fractured left ankle.

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

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 

appellant’s lumbar disc disease or pain medications in reaching its decision. Therefore, OWCP 

has not met its burden of proof in this case.20

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

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

offered appellant constituted suitable work within her physical limitations and 

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

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

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation on October 5, 2016 pursuant to 5 U.S.C. § 8106(c). 

 

15 See generally, E.F., Docket No. 15-0103 (issued May 12, 2015).

16 D.G., Docket No. 16-1492 (issued January 3, 2017).

17 Supra note 8.

18 Supra note 9.

19 See Patrick A. Santucci, 40 ECAB 151 (1988).

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

IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed.

21

Issued: February 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

21 Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board 

effective December 11, 2017.