United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.N., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, JFK

INTERNATIONAL AIRPORT, Jamaica, NY, 

Employer

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Docket No. 18-0501

Issued: February 20, 2020

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 10, 2018 appellant, through counsel, filed a timely appeal from a December 19, 

2017 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 December 19, 2017 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 

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 a schedule award, effective December 20, 2017, for refusing an 

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

FACTUAL HISTORY

On May 4, 2015 appellant, then a 50-year-old administrative aid, filed a traumatic injury 

claim (Form CA-1) alleging that on that day he injured his right shoulder when he fell on a wet 

floor while in the performance of duty. He stopped work that same date.

On June 25, 2015 OWCP accepted appellant’s claim for right shoulder sprain and later 

expanded acceptance of the claim to include the additional condition of partial tear of the right 

rotator cuff. A right shoulder arthroscopy was authorized on October 22, 2015. 

Appellant continued to submit frequent progress notes from his treating physician,

Dr. Tony N. Quach, a Board-certified orthopedic surgeon, dated August 14, 2015 to June 9, 2016. 

Dr. Quach reported that appellant was disabled due to his employment injury. He also noted 

appellant’s history of polio and reported that he wore braces on his legs and required crutches to 

ambulate.

On July 15, 2016 Dr. Quach diagnosed partial thickness rotator cuff tear and full thickness 

rotator cuff tear. He advised that appellant was disabled from work. In an undated attending 

physician’s report (Form CA-20), Dr. Quach advised that appellant underwent surgery and was 

totally disabled from work commencing October 22, 2015. In a duty status report (Form CA-17) 

dated July 29, 2016, he diagnosed right shoulder rotator cuff tear status post rotator cuff repair and

noted that appellant could not resume work. 

Appellant was referred by OWCP for a second opinion examination along with the 

record and a statement of accepted facts (SOAF) to determine his disability status. In a July 25, 

2016 report, Dr. Arnold Goldman, a Board-certified orthopedic surgeon serving as a second 

opinion physician, noted his review of the SOAF, medical records, and that he conducted a 

physical examination. He opined that appellant had disabling residuals due to his accepted 

employment injury. Dr. Goldman noted that appellant had a complicated medical history of polio 

since the age of four and a half and he wore braces on both lower extremities. Findings on 

examination revealed well-healed arthroscopic portals of the right shoulder, forearm atrophy, 

range of motion (ROM) of the right shoulder was limited, and strength of 4/5 on the right and 5/5

on the left. Dr. Goldman advised that the conditions had not resolved due to atrophy and decreased 

ROM caused by the fall and injury. He noted no aggravated preexisting conditions. Dr. Goldman

advised that appellant had not reached maximum medical improvement (MMI). He indicated that 

appellant was not capable of returning to his date-of-injury job, but could work four hours a day 

through September 2016 and then increase to an eight-hour day with restrictions secondary to the 

surgery. Dr. Goldman noted that appellant’s prognosis was guarded for return to his preinjury 

level of work, but the prognosis was good for a return to work in a light-duty capacity for eight 

hours per day. In a work capacity evaluation (Form OWCP-5c), he noted that appellant was not 

capable of returning to his usual job due to pain and atrophy of the right arm, but could return to 

work four hours per day with a gradual increase to eight hours per day with restrictions necessary 

due to his shoulder surgery. 
3

Appellant continued to submit reports from Dr. Quach dated September 16, 2016 to 

January 30, 2017 in which he noted appellant’s continued complaints of right shoulder pain. On 

December 27, 2016 Dr. Quach indicated that appellant reported using his wheelchair the majority 

of the time as he lacked endurance to use crutches for long periods of time. He diagnosed right 

shoulder rotator cuff tendon tear after a mechanical fall at work in May 2015. Dr. Quach noted 

that the tear required operative intervention and appellant subsequently developed left shoulder 

symptoms and a partial thickness rotator cuff tear secondary to overuse of the left shoulder after 

his right shoulder surgery. He noted the history of polio. Dr. Quach opined that appellant was 

unable to return to work. 

On March 30, 2017 OWCP determined that there was a conflict of opinion between

Dr. Quach, appellant’s treating physician who opined that appellant was totally disabled from 

work, and Dr. Goldman, the second opinion physician, who opined that appellant was capable of 

working in a part-time, limited-duty capacity with a gradual increase to eight hours. 

On April 3, 2017 Dr. Quach noted appellant’s continued complaints of significant pain and 

weakness of the right shoulder. He reported appellant’s inability to walk given the history of polio 

and requirement of crutches to walk despite appellant’s shoulder conditions. Dr. Quach opined 

that appellant was totally disabled.

In a June 15, 2017 letter, OWCP referred appellant for an impartial medical examination 

with Dr. Eial Faierman, a Board-certified orthopedic surgeon. 

In a report dated June 27, 2017, Dr. Faierman noted reviewing the SOAF, medical history, 

and the medical record. He noted that appellant presented using a motorized wheelchair and 

carried his crutches. A physical examination of both shoulders revealed nonanatomic tenderness 

in all bony, tendon, and ligamentous surfaces; no swelling or effusion; full ROM of the shoulders;

apprehension testing was within normal limits; Yergason testing for biceps subluxation was 

normal; and drop arm testing was negative. Dr. Faierman diagnosed right shoulder rotator cuff 

repair/distal clavicle resection and left shoulder complaints. He noted that appellant had full ROM

in both shoulders and unrelated polio residuals of severe atrophy in the bilateral lower extremities. 

Dr. Faierman advised that appellant had nonwork-related disability due to the polio. He noted that 

appellant reached MMI and no longer required medical treatment as the rotator cuff repair was 

successful and he had full ROM of both shoulders. Dr. Faierman noted that appellant’s weakness 

made it difficult for him to walk prolonged distances or stand for prolonged periods of time due to 

the preexisting polio and shoulder surgery. He opined that appellant was able to return to his 

preinjury job, but the job must allow for a wheelchair and not require more than 10 pounds of 

lifting. In a work capacity evaluation (OWCP-5c) dated June 27, 2017, Dr. Faierman provided 

work restrictions for appellant, which were permanent. He noted that appellant was unable to 

perform his regular job without restrictions as he was wheelchair bound except he could walk 10

feet on crutches. Dr. Faierman advised that appellant could work eight hours per day in a sedentary 

position with restrictions of sitting for eight hours a day; repetitive movements of the wrists and 

elbow for eight hours a day; pushing, pulling, and lifting limited to eight hours per day up to 10 

pounds; no walking, standing, reaching, reaching above the shoulder, twisting, bending/stooping, 

squatting, kneeling, climbing, operating a motor vehicle at work, or operating a motor vehicle to 

and from work.

On August 22, 2017 OWCP inquired whether the employing establishment could offer 

appellant a permanent position within the restrictions set forth in Dr. Faierman’s report. On 
4

August 29, 2017 the employing establishment offered appellant the modified position of 

inspectional aide at JFK International airport. The salary for the position was the same as 

appellant’s current GS-7 Step 9 salary of $58,775.00. The job description listed that duties would

be performed up to eight hours a day and included answering the telephone and data input which 

had minimal physical requirements and could be performed while sitting. The days off and the

available shift were from 7:00 a.m. to 3:00 p.m., Monday through Friday, with breaks taken when 

required and around operational requirements or as directed by appellant’s attending physician. 

On September 1, 2017 appellant, through counsel, indicated that he was medically unable 

to accept the offered position as a result of continuing work-related disability. He further indicated 

that he applied to the Office of Personnel Management (OPM) for disability retirement benefits. 

In a September 1, 2017 report, Dr. Quach noted that appellant needed crutches for walking 

and also had problems with prolonged walking.

In an e-mail dated October 11, 2017, the employing establishment confirmed that the lightduty job was wheelchair accessible.

In a letter dated October 26, 2017, OWCP advised appellant of its determination that the 

inspectional aide position, offered by the employing establishment on August 29, 2017 was 

suitable. It indicated that the position was based upon the opinion of Dr. Faierman, the impartial 

medical examiner (IME), who opined that he was capable of working eight hours per day, 

sedentary work, with restrictions. The employing establishment confirmed that the position 

remained available to appellant. OWCP instructed him that he must, within 30 days, either accept 

the position or provide a written explanation of the reasons he refused to accept the position. 

Appellant was informed that he could lose his right to compensation pursuant to 5 U.S.C. § 8106(c) 

of FECA. 

On November 3, 2017 appellant, through counsel, responded to the October 26, 2017 letter 

and indicated that he was medically unable to accept the offered position as the duties of the 

assignment were inconsistent with his medical restrictions and disabilities. Counsel noted that the 

report of Dr. Faierman was internally inconsistent, contradictory, and could not constitute the 

special weight of the medical evidence. Appellant asserted that the report of Dr. Faierman should 

be discounted and the medical evidence from appellant’s treating physicians should constitute the 

weight of the medical evidence.

In a November 28, 2017 letter, OWCP found that the reasons appellant provided for 

refusing the offered position were invalid. It gave him 15 additional days to accept the position or 

to make arrangements to report to this position. OWCP noted that if appellant did not accept the 

position within 15 days of the date of the letter, his right to wage-loss compensation and a schedule 

award would be terminated pursuant to section 8106 of FECA. It would not consider any further 

reasons for refusal of the offered position. 

In a December 1, 2017 report, Dr. Quach indicated that appellant still required crutches to 

walk more than 10 to 15 feet and was mostly wheelchair bound due to his lower extremity issues. 

He noted that appellant was status post right shoulder surgery and was applying for long-term 

disability given his other comorbidities. Dr. Quach noted that appellant was applying for OPM 

long-term disability benefits given his other comorbidities. 
5

In a letter dated December 4, 2017, appellant, through counsel, indicated that he was 

medically unable to accept the offered position as the duties of the assignment were inconsistent 

with his medical restrictions and disabilities. Counsel noted that the report of Dr. Faierman was 

internally inconsistent, contradictory, and could not constitute the special weight of the medical 

evidence. He also alleged that the assignment was inconsistent with his medical restrictions and 

disabilities. 

By decision dated December 19, 2017, OWCP terminated appellant’s wage-loss 

compensation and entitlement to a schedule award, effective December 20, 2017, finding that he 

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

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

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 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.6 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.7

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

considers the employee’s current physical limitations, whether the work was available within the 

employee’s demonstrated commuting area, the employee’s qualifications to perform such work,

and other relevant factors.8 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.9

Section 8123(a) of FECA provides in pertinent part 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 third physician who shall make an examination.10 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

 

4 S.D., Docket No. 18-1641 (issued April 12, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

(2005); Paul L. Stewart, 54 ECAB 824 (2003).

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

6 S.D., supra note 4; Ronald M. Jones, 52 ECAB 406 (2003).

7 S.D., id.; Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

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

Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).

9 L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle 

Harris, 52 ECAB 319 (2001).

10 5 U.S.C. § 8123(a).
6

who has no prior connection with the case.11 When there exist opposing medical reports of 

virtually equal weight and rationale and the case is referred to an IME for the purpose of resolving 

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

factual background, must be given special weight.12

ANALYSIS

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective December 20, 2017, for refusing an 

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

OWCP accepted that, as a result of the May 4, 2015 employment injury, appellant sustained 

a right shoulder sprain and a partial tear of the right rotator cuff and he underwent arthroscopic 

surgery. Dr. Quach opined that appellant was unable to return to work noting that his history was 

significant for polio and he wore braces on his legs and relied on crutches to ambulate. Appellant 

was referred for a second opinion evaluation with Dr. Goldman who opined that appellant was 

unable to returning to his date-of-injury job, but could work four hours a day through 

September 2016 and then increase to an eight-hour day with restrictions secondary to the surgery. 

OWCP properly found a conflict in the medical opinion evidence and referred appellant to

Dr. Faierman for an impartial medical examination.13

In a June 27, 2017 impartial medical examination report, Dr. Faierman noted that appellant 

had full ROM in both shoulders and unrelated polio with severe atrophy in the bilateral lower 

extremities. He opined that appellant was able to return to his preinjury job, however, the job must 

allow for a wheelchair and not require more than 10 pounds of lifting. Dr. Faierman provided 

detailed permanent work restrictions and also noted that appellant was wheelchair bound except 

he could walk 10 feet on crutches. The Board finds that Dr. Faierman’s opinion is entitled to the 

special weight of the medical evidence accorded an IME because he based his opinion as to 

appellant’s ability to return to employment on a proper factual background, after a review of the 

medical record, and following physical examination and provided a well-rationalized opinion that 

appellant was capable of a sedentary level of light-duty work. 

On August 29, 2017 the employing establishment offered appellant a limited-duty position 

as inspectional aide. The employing establishment listed the duties of the position to be performed 

up to eight hours a day included answering the telephone and data input which could be performed 

while sitting. The physical requirements of the position were minimal and breaks were permitted 

as medically necessary. The Board finds that the physical requirements of the offered position of 

inspectional aide fell within appellant’s work restrictions as provided by Dr. Faierman. The weight 

of the evidence of record establishes that appellant was no longer totally disabled from work and 

had the physical capacity to perform the duties listed in the August 29, 2017 job offer. Thus, 

OWCP properly relied on Dr. Faierman’s opinion in finding the inspectional aide position suitable. 

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised 

appellant on October 26, 2017 that it found that the job offer of inspectional aide to be suitable and 

 

11 20 C.F.R. § 10.321.

12 K.S., Docket No. 19-0082 (issued July 29, 2019).

13 Id.
7

afforded him an opportunity to provide reasons for refusing the position within 30 days. Following 

appellant’s reply it advised him, in a November 28, 2017 letter, that his reasons for refusing were 

deficient and properly allowed 15 additional days to accept the offered position. The Board finds 

that OWCP followed the established procedures prior to the termination of his wage-loss 

compensation pursuant to section 8106(c). 

Subsequent to the November 28, 2017 letter from OWCP, appellant submitted a 

December 1, 2017 report from Dr. Quach, who indicated that appellant required crutches to walk 

more than 10 to 15 feet and was mostly wheelchair bound due to his lower extremity issues. 

Dr. Quach noted that appellant was applying for OPM long-term disability benefits given his other 

comorbidities. Dr. Quach, however, was on one side of the conflict in the medical opinion that

Dr. Faierman resolved, and his report and progress notes are thus insufficient to overcome the 

special weight accorded the impartial specialist or to create a new medical conflict.14

The Board finds that the position offered to appellant was medically and vocationally 

suitable and OWCP complied with the procedural requirements of section 8106(c) and therefore

OWCP has met its burden of proof to terminate his wage-loss compensation benefits and 

entitlement to a schedule award based on his refusal to accept the offered position. 

On appeal counsel asserts that appellant was medically unable to accept the offered position 

as duties of the assignment were inconsistent with his medical restrictions and disabilities. He 

further asserted that the report of Dr. Faierman was internally inconsistent, contradictory, and 

could not constitute the special weight of the medical evidence. As discussed above, the Board 

finds that OWCP properly referred appellant to Dr. Faierman to resolve the conflict in the medical 

opinion evidence and that his opinion was well rationalized and sufficient to establish that the 

offered position was suitable. 

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective December 20, 2017, for refusing an 

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

 

14 Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000). 
8

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 20, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board