United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

San Francisco, CA, Employer

__________________________________________

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Docket No. 18-1161

Issued: March 20, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 22, 2018 appellant filed a timely appeal from a November 27, 2017 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 to 

consider the merits of this case.

ISSUE

The issue is whether OWCP properly terminated appellant’s entitlement to wage-loss and 

schedule award compensation, effective April 8, 2016, for refusal of suitable work pursuant to 5 

U.S.C. § 8102(c)(2).

FACTUAL HISTORY

On August 31, 2012 appellant, then a 53-year-old process control assistant, filed an

occupational disease claim (Form CA-2) alleging that, on or before September 22, 2010, sitting on 

 

1 5 U.S.C. § 8101 et seq. 
2

a hard chair while in the performance of duty caused pain and paresthesias throughout her spine 

and extremities, as well as emotional stress. She did not initially stop work. On November 3, 

2012 appellant began working in a new position with reduced computer use. By decision dated 

February 10, 2014, OWCP accepted that she had sustained bilateral ischial tuberosity bursitis 

(enesopathy of hips), sciatic nerve lesion, and a temporary aggravation of lumbar spinal stenosis. 

It paid appellant compensation for attendance at medical appointments commencing 

March 3, 2014. On June 17, 2014 OWCP expanded its acceptance of the claim to include a neck 

sprain, brachial neuritis or radiculitis, bilateral shoulder bursitis or tendinitis, and bilateral bicipital 

tenosynovitis.

In a report dated July 15, 2014, Dr. Michael E. Hebrard, an attending Board-certified 

physiatrist, limited appellant to working sedentary duty for 4 hours a day, with 5-minute breaks 

every 45 minutes. On July 15, 2015 appellant began working a four-hour-a-day schedule. OWCP 

paid appellant wage-loss compensation for four hours a day commencing July 15, 2014.

On December 10, 2014 appellant signed and accepted a job offer as a modified human 

resources management specialist. On January 13, 2015 the employing establishment offered her

a position as a modified customer support/window supervisor for four hours a day. The position 

required appellant to sit, walk, bend, lift, grasp, push, pull, and reach. Appellant signed and 

accepted the job offer on January 21, 2015. 

In a report dated February 25, 2015, Dr. Hebrard diagnosed thoracic outlet syndrome and 

sciatica.2 In a work slip dated March 17, 2015, he held appellant off from work from March 17

to 25, 2015.3

Dr. Hebrard held appellant off work through April 17, 2015 due to an exacerbation of the 

accepted conditions caused by installing a point-of-service machine at work in March 2015. In a 

report dated April 17, 2015, Dr. Hebrard returned appellant to sedentary duty for four hours a day, 

with lifting, pulling, and pushing up to 10 pounds, typing, grasping, or pinching up to 20 minutes 

an hour, bending, stooping, crouching, kneeling for up to 5 minutes an hour, alternating sitting and 

standing every 30 minutes, and 10-minute breaks each hour.

The employing establishment’s Office of the Inspector General submitted investigative 

reports dated from April 24 to 29, 2015 describing eight incidents in April 2015 where appellant 

had been observed walking continuously for up to two-and-a-half hours, and one occasion where 

appellant knelt to observe flowers in a garden. When interviewed, appellant contended that 

walking was relaxing for her following a March 2015 employment injury sustained while installing 

a point-of-service (POS) machine.4 The employing establishment placed her on administrative 

 

2 A February 19, 2015 lumbar magnetic resonance imaging (MRI) scan showed mild annular bulging at L2-3, L4-

5, and L5-S1 without focal protrusion, herniation or nerve root displacement.

3

In a letter dated March 23, 2015, R.D., appellant’s supervisor, noted that appellant alleged on March 3, 2015 that 

her assigned duties exceeded her medical restrictions. He contended that although the customer service window 

position required “virtually no lifting or physical activity except standing and walking around,” he offered appellant 

a supervisory position that required only issuing instructions. Appellant declined the position as she believed her 

physician would hold her off from work the following week. 

4

In a report dated May 26, 2015, Dr. Hebrard opined that appellant aggravated accepted sciatica at work on 
3

leave effective April 24, 2015.5 OWCP paid appellant wage-loss compensation for four hours a 

day.

A July 27, 2015 functional capacity evaluation demonstrated appellant’s ability to perform 

light-duty work with occasional lifting up to 15 pounds.

On December 1, 2015 the employing establishment offered appellant a modified position 

as a customer support supervisor for four hours a day, performing finance and window supervisor 

duties with the assistance of a subordinate. The position required lifting, pulling, and pushing up 

to 10 pounds; typing, grasping, or pinching up to 20 minutes an hour; bending, stooping, 

crouching, or kneeling up to 5 minutes an hour; alternating sitting and standing every 30 minutes;

and 10-minute breaks each hour. The position would be available to appellant as of 

December 4, 2015.

In a report dated January 25, 2016, Dr. Hebrard released appellant to sedentary work four

hours a day. He modified appellant’s work restrictions to reduce repetitive typing, grasping, or 

pinching from 20 to 10 minutes an hour and increased her necessary position changes from every 

30 minutes to every 10 minutes.

Appellant did not return to work. She claimed wage-loss compensation for four hours a 

day.

In a notice dated February 10, 2016, appellant was informed that OWCP found the job 

offer suitable and in accordance with her medical limitations provided by Dr. Hebrard and that the 

employing establishment confirmed that the position remained open and available to her. OWCP 

allowed her 30 days to accept the position or provide her reasons for refusal. It advised that an 

employee who refuses an offer of suitable work without reasonable cause is not entitled to further 

compensation for wage loss or a schedule award. Appellant, however, continued to refuse to report 

to duty for the offered position.

In a statement dated March 1, 2016, appellant alleged that the physical requirements of the 

offered modified customer support supervisor position exceeded her medical restrictions, that there 

was no one available to assist her as the office was understaffed, and that she had aggravated the 

accepted conditions on March 5, 2015 after she “spent more than four hours” installing a point-ofservice machine.

 

March 9, 2015 while bending and kneeling for one hour to install a POS machine. In a letter dated June 3, 2015, 

appellant clarified that she installed the unit on March 5, 2015.

5 On May 22, 2015 appellant claimed leave buyback (Form CA-7) for 272 hours of sick leave used for the period 

November 22, 2011 through May 18, 2012. By decision dated March 1, 2016, OWCP denied appellant’s request for 

leave buyback for the period November 22, 2011 to April 28, 2012 as the medical evidence of record was insufficient 

to support the claimed period of disability. Following a hearing conducted June 29, 2016, by decision dated 

August 24, 2016, an OWCP hearing representative affirmed the March 1, 2016 OWCP decision which denied 

appellant’s request for leave buyback.
4

By notice dated March 17, 2016, OWCP advised appellant that her refusal of the offered 

position was not justified. It afforded her an additional 15 days to accept the offered position. 

In response to the 15-day notice, OWCP received appellant’s April 3, 2016 letter, 

contending that she informed her supervisor on March 28, 2016 that she would accept the position,

but not report for work as she intended to apply for disability retirement. 

By decision dated April 8, 2016, OWCP terminated appellant’s entitlement to wage-loss

and schedule award compensation benefits effective that day as she refused an offer of suitable 

work. It found that Dr. Hebrard’s reports constituted the weight of the medical evidence regarding 

appellant’s work tolerances and limitations.

On April 14, 2016 appellant accepted and signed the December 1, 2015 job offer, but did 

not return to work. In a letter dated April 19, 2016, she contended that the offered position 

exceeded the January 25, 2016 medical restrictions provided by Dr. Hebrard.

On May 3, 2016 appellant requested a hearing before an OWCP hearing representative. At

the hearing, held on August 25, 2016, she confirmed that she did not return to work as she had 

elected disability retirement benefits through the Office of Personnel Management (OPM). 

Appellant submitted reports dated April 25 and September 29, 2016 from Dr. Hebrard finding her

totally disabled for work due to pain and weakness throughout her spine and extremities.6

By decision dated November 9, 2016, an OWCP hearing representative affirmed OWCP’s 

April 8, 2016 decision terminating her entitlement to wage-loss and schedule award compensation. 

On February 28, 2017 OPM approved appellant’s application for disability retirement. 

Appellant separated from the employing establishment effective March 24, 2017.

On October 31, 2017 appellant requested reconsideration. She contended that the offered 

position exceeded her work restrictions. Appellant submitted additional evidence.

In reports dated February 14, April 3, and June 1, 2017, Dr. Hebrard found appellant totally 

disabled from work due to cervical and lumbar spine pain with weakness and paresthesias in all 

extremities. He attributed these symptoms to an occupational aggravation of the accepted 

conditions.

Appellant also submitted August 27, 2014 imaging studies of the cervical and lumbar spine 

which demonstrated no significant changes from prior scans, and prescriptions for gym 

membership and a gel seat cushion.

By decision dated November 27, 2017, OWCP affirmed the prior decision, finding that the 

offered position did not exceed her medical restrictions.

 

6 Appellant also submitted March 17 and September 23, 2015 physical therapy treatment notes and copies of 

evidence previously of record. A May 24, 2016 lumbar MRI scan showed severe bilateral L4-5 stenosis due to disc 

bulging and impingement on both descending L5 nerve roots, and severe anterior L4-5 degenerative disc disease.
5

LEGAL PRECEDENT

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

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 and must inform appellant of the consequences of refusal 

to accept such employment.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 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 establishing that such refusal or failure to work was reasonable or justified.11 

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.12

Before compensation can be terminated, however, OWCP has the burden of establishing 

that the employee can work, setting forth the specific restrictions, if any, on the employee’s ability 

to work, establishing that a position has been offered within the employee’s work restrictions, and 

setting forth the specific job requirements of the position.13 In other words, to justify termination 

of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, OWCP has the burden 

of establishing that the work offered to and refused by appellant was suitable.14

Once OWCP establishes that the work offered is suitable, the burden shifts to the employee 

who refuses to work to show that the refusal or failure to work was reasonable or justified.15 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.16 OWCP procedures provide 

 

7 S.E., Docket No. 17-0222 (issued December 21, 2018) J.V., Docket No. 17-1944 (issued December 18, 2018); see 

Linda F. Guerrero, 54 ECAB 556 (2003).

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

9 See Ronald M. Jones, 52 ECAB 190 (2000).

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

11 20 C.F.R. § 10.517(a).

12 Id. at § 10.516.

13 S.E., supra note 7; J.V., supra note 10; see Linda Hilton, 52 ECAB 476 (2001).

14 Id.

15 20 C.F.R. § 10.517(a).

16 S.E., supra note 7; J.V., supra note 7; see Gayle Harris, 52 ECAB 319 (2001).
6

that acceptable reasons for refusing an offered position include medical evidence of an inability to 

do the work.17

ANALYSIS

The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and 

schedule award compensation, effective April 8, 2016, pursuant to 5 U.S.C. § 8106(c)(2) for 

refusal of suitable work. 

The Board finds that the evidence of record establishes that appellant was capable of 

performing the modified customer support supervisor position offered by the employing 

establishment on December 1, 2015. The offered position required lifting, pulling, and pushing 

up to 10 pounds; typing, grasping, or pinching up to 20 minutes an hour; bending, stooping, 

crouching, or kneeling up to 5 minutes an hour; alternating sitting and standing every 30 minutes;

and a 10-minute break each hour, all within conformance of the work restrictions provided by

Dr. Hebrard, on April 17, 2015.18

The Board notes that Dr. Hebrard subsequently modified appellant’s restrictions on 

January 25, 2016, reducing repetitive typing, grasping or pinching from 20 minutes to 10 minutes 

an hour, and alternating sitting and standing every 10 minutes. However, he did not identify any 

objective deterioration in appellant’s condition to support the January 25, 2016 increase in work 

limitations. Despite the amended restrictions, OWCP still found the offered position to be suitable 

work, as the job duties did not exceed the additional work restrictions assessed by Dr. Hebrard in 

his January 25, 2016 report. Appellant accepted the offer, but did not report to the position because 

she elected to retire. 

The Board finds that the December 1, 2015 job offer was promulgated correctly, as it was 

made in writing, provided a detailed description of the assigned duties and their physical 

requirements, and instructed appellant when to report for work.19 The Board therefore finds that 

OWCP has met its burden of proof to establish that the position was suitable work.20

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), 20 C.F.R. 

§ 10.516, and Board precedent,21 OWCP advised appellant on February 10, 2016 that it found the 

job offer of modified customer care agent to be suitable and afforded her an opportunity to provide 

reasons, within 30 days, for refusing the position. It advised her in a March 17, 2016 letter that 

her refusal, based on her decision to elect retirement, was insufficient and that she had an additional 

15 days to accept the offered position. The Board has long held that electing to retire is not a 

 

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

(June 2013).

18 See Richard P. Cortes, 56 ECAB 200 (2004).

19 See 20 C.F.R. § 10.507.

20 See Marilou Carmichael, 56 ECAB 451 (2005).

21 T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).
7

justifiable reason to refuse an offer of suitable work.22 The Board finds that OWCP properly 

followed the established procedures prior to the termination of compensation pursuant to section 

8106(c)(2).23

Following the termination of appellant’s entitlement to wage-loss and schedule award 

compensation, she submitted reports dated April 25 and September 29, 2016 and February 14, 

April 3, and June 1, 2017 from Dr. Hebrard opining that she was totally disabled for work due to 

cervical and lumbar spine pain and generalized paresthesias. It is well established that OWCP 

must consider preexisting and subsequently-acquired conditions in evaluating the suitability of an 

offered position.24 However, Dr. Hebrard did not identify objective changes in appellant’s 

condition on and after December 1, 2015 that would disable her from performing the offered 

suitable work position. Further, the Board has held that pain is a symptom, not a medical 

diagnosis.25 At the time that OWCP terminated appellant’s compensation, however, Dr. Hebrard 

had advised that she was capable of going back to work in a sedentary, part-time position with a 

10-pound lifting restriction. Therefore, the Board finds that Dr. Hebrard’s reports prior to April 8, 

2016 establish that the offered position was suitable work.

26

Appellant also submitted prescription notes and August 27, 2014 imaging studies. As both 

the diagnostic studies and prescription slips lack medical rationale explaining why appellant’s 

condition had worsened such that she could not perform the offered customer support supervisor 

position, they are irrelevant to the claim.27

Thus the Board finds that OWCP has met its burden to justify the termination of appellant’s 

wage-loss and schedule award compensation.

On appeal appellant contends that she submitted a signed job offer following OWCP’s 

April 8, 2016 termination of her entitlement to wage-loss and schedule award compensation. 

However, as explained above, she did not accept the offered position or report for work prior to 

the April 8, 2016 termination decision. 

 

22 Robert P. Mitchell, 52 ECAB 116 (2000); see supra note 17.

23 C.H., Docket No. 17-0938 (issued November 27, 2017).

24 Supra note 21.

25 Z.B., Docket No. 17-1336 (issued January 10, 2019).

26 Supra note 21.

27 S.E., supra note 10. The Board has also held that reports of diagnostic tests lack probative value as they do not 

provide an opinion on causal relationship between appellant’s employment duties and a diagnosed condition. K.L., 

Docket No. 18-1029 (issued January 9, 2019).
8

CONCLUSION

The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and 

schedule award compensation, effective April 8, 2016, pursuant to 5 U.S.C. § 8102(c)(2), due to 

her refusal of an offer of suitable work.

ORDER

IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 20, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board