United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, BARTLETT POST 

OFFICE, Memphis, TN, Employer

__________________________________________

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Docket No. 20-0240

Issued: January 26, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 11, 2019 appellant filed a timely appeal from an October 25, 2019 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 has met its burden of proof to terminate appellant’s entitlement 

to wage-loss compensation and schedule award benefits, effective October 24, 2019, because he 

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

FACTUAL HISTORY

On December 21, 2016 appellant, then a 53-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained severe right wrist pain due to his federal 

employment duties, including frequent handling and lifting of large boxes and heavy objects. He

 

1 5 U.S.C. § 8101 et seq.
2

stopped work on December 16, 2016 and returned to part-time work on January 2, 2017. OWCP 

accepted the claim for unspecified right wrist sprain. Appellant underwent right scapulate 

ligament repair with intercarpal pinning surgery, which occurred on May 31, 2017, and removal 

of right wrist implants, which occurred on July 18 and August 23, 2017. OWCP paid appellant 

wage-loss compensation on the supplemental rolls effective March 13, 2017 and on the periodic 

rolls effective June 25, 2017.

In a September 27, 2017 report, Dr. David L. Cannon, a Board-certified orthopedic and 

hand surgeon, noted appellant’s history of injury and medical treatment. He also related 

appellant’s physical examination findings. Dr. Cannon diagnosed status right scapholunate 

ligament disruption, status post intercarpal pinning repair, and status post implants removal and 

referred appellant for physical therapy. He attached a form report, dated September 27, 2017, in 

which he noted that he had released appellant to return to light-duty work, wearing a wrist brace,

and with a restriction of no lifting or gripping more than 15 pounds.

On October 26, 2017 Dr. Cannon related that appellant’s right wrist condition was 

improving, with increased motion and strength. He indicated that appellant was capable of lightduty work and he increased appellant’s lifting/carrying limitation to 30 pounds. Dr. Cannon again 

attached a form report dated October 27, 2017 in which he noted that appellant should work with 

a wrist brace, and not perform lifting or gripping over 30 pounds with the right hand.

On November 8, 2017 the employing establishment offered appellant a modified 

assignment as a city carrier. The duties of the job required two to four hours of casing mail and 

two to eight hours of delivering routes. The physical restrictions listed were four to eight hours of 

lifting up to 30 pounds, four to eight hours pulling/pushing, and up to eight hours walking and 

simple grasping. On November 10, 2017 appellant refused the modified job offer asserting that 

the limitations required modification.

Dr. Cannon, in a report and form dated November 27, 2017, indicated that appellant was 

capable of light-duty work with use of a brace and no lifting or gripping more than 35 pounds.

In a December 8, 2017 letter, Susan Townsend, a registered nurse in Dr. Cannon’s office 

advised that appellant’s work restrictions included no twisting of the wrist.

Dr. Cannon reported on January 8, 2018 that appellant’s right wrist mobility was 

improving, but he was not gaining as much improvement regarding increased strength. He 

concluded that appellant should be allowed to work with a brace, and with a lifting restriction of 

35 pounds.

In a letter dated February 1, 2018, OWCP forwarded the November 8, 2017 modified job 

offer to Dr. Cannon for his opinion as to whether appellant could perform the offered job. It 

requested a response within 30 days.

In response, OWCP received a form report dated January 8, 2018 in which Dr. Cannon 

noted that appellant should work in a brace, and with restrictions of no lifting or gripping over 35 

pounds with the right hand/wrist, and no twisting of the wrist.
3

On February 7, 2018 OWCP referred appellant for a second opinion evaluation with

Dr. James T. Galyon, a Board-certified orthopedic surgeon, to determine the status of his accepted 

condition and work capacity.

Dr. Cannon provided in a February 19, 2018 report, that appellant’s work restrictions were 

working with a wrist brace and no lifting more than 35 pounds. In a form report of the same date, 

he noted appellant’s restrictions as “work in brace, no lifting or gripping over 35 pounds with the 

right hand/wrist, and no twisting of the wrist.”

In a February 28, 2018 report, Dr. Galyon noted appellant’s histories of injury and medical 

treatment. He indicated that appellant’s physical examination of the left wrist revealed pain on 

excess strain, weakness, and restricted range of motion. Dr. Galyon opined that appellant 

sustained a left wrist sprain on December 16, 2016 and that he currently had a persistent left

scapholunate subluxation at the scaphoid joint. He reviewed the November 8, 2017 modified job 

offer and concluded that the job was not suitable. Dr. Galyon explained that appellant still had 

significant restricted lifting and pulling ability and he did not believe appellant was capable of two 

to eight hours of casing and delivering mail. In an attached work capacity evaluation (Form 

OWCP-5c), he indicated that appellant was capable of working up to two hours per day with 

restrictions and that his restrictions were permanent. The restrictions included up to one hour of 

reaching/reaching above the shoulder, one hour of repetitive wrist motion, and pulling/pushing/

lifting limited to five pounds.

Dr. Galyon, in a March 28, 2018 supplemental report, advised that he mistakenly referred 

to the left wrist when the examination was of the right wrist.

In an April 2, 2018 report, Dr. Cannon noted that appellant was seen for right wrist pain 

complaint. He provided appellant’s physical examination findings and concluded that appellant 

still had some limitations, but this did not mean that appellant could not return to work in some 

capacity at the employing establishment. Dr. Cannon reported that appellant continued to have 

the same limitation of 35 pounds lifting and gripping, and that he should be able to use a splint at 

work. He completed an April 2, 2018 form report wherein he again provided appellant’s 

restrictions as “work in brace, no lifting or gripping over 35 pounds with the right wrist/hand, no

twisting wrist.”

On April 9, 2018 appellant underwent a functional capacity evaluation (FCE) as ordered 

by Dr. Cannon. The FCE found appellant was capable of performing medium work range of 21 

to 50 pounds, and occasional gripping and pinching of the right upper extremity for one minute, 

up to 2 hours and 30 minutes based on an 8-hour day.

On May 2, 2018 the employing establishment offered appellant a modified assignment as 

a city carrier. The duties of the job required two to four hours of casing mail and two to eight 

hours of delivering routes. The physical restrictions listed were four to eight hours of lifting up to 

35 pounds, four to eight hours pulling/pushing, and up to eight hours walking and simple grasping. 

On May 2, 2018 appellant refused the offered modified job asserting it was not based on

Dr. Galyon’s work restrictions.

On July 30, 2018 the employing establishment offered appellant a modified assignment as 

a city carrier. The duties of the job required one hour of casing mail and one to three hours of 
4

taking parcels and cut offs to streets. The physical restriction listed were one to three hours of 

lifting up to five pounds, one to eight hours of walking/driving, one to three hours of simple grasps, 

and one hour of reaching. Appellant accepted the job offer. 

Dr. Cannon, in an August 20, 2018 report, provided physical examination findings and 

concurred with Dr. Galyon’s work restrictions, which were for administrative or clerical work.

In a letter dated August 30, 2018, the employing establishment informed OWCP that while 

appellant accepted the July 30, 2018 job offer, he had not reported to work.

On August 31, 2018 OWCP requested that Dr. Galyon review an updated statement of 

accepted facts (SOAF)2and the April 9, 2018 FCE, and advise whether there was any change in 

appellant’s work restrictions.

On October 22, 2018 OWCP received an updated modified city carrier job offer dated 

August 17, 2018. Work hours were listed as 8:00 a.m. to 16:50 p.m. The duties of the job required 

one hour of casing routes, one hour of removing and replacing case labels, and one hour of 

sedentary work. The physical restrictions were one hour of lifting up to five pounds, one hour of 

walking, one hour of reaching/reaching above the shoulder, and one hour of pushing/pulling. On 

November 4, 2018 appellant refused the job offer.

In a November 16, 2018 supplemental report, Dr. Galyon reviewed appellant’s April 9, 

2018 FCE, which he advised clearly showed significant right wrist loss of dexterity and strength. 

He opined that appellant had sustained a serious injury with progressive deterioration. Dr. Galyon 

indicated that “he will not be able to do repetitious work with his right hand, even light work like 

5 or 10 pounds repetitious or frequent.” He also indicated that appellant could lift up to 25 pounds 

occasionally, but not repeatedly, and that there was a possibility that appellant’s work restrictions 

would progress.

In a letter dated December 3, 2018, OWCP advised appellant of its determination that the 

modified city carrier position offered by the employing establishment was suitable based on the 

February 28, 2018 report and November 16, 2018 supplemental report from Dr. Galyon and the 

April 9, 2018 FCE. OWCP noted that the position was within his work restrictions. It advised 

appellant that pursuant to 5 U.S.C. § 8106(c)(2) his wage-loss compensation and entitlement to a 

schedule award would be terminated if he did not accept the job offer or provide good cause for 

not doing so within 30 days of the date of the letter.

Subsequent to the December 3, 2018 letter, OWCP received an October 22, 2018 report 

from Dr. Cannon. Dr. Cannon provided physical examination findings and diagnosed right 

de Quervain’s syndrome, which he opined was likely due to his prior wrist injuries and surgeries. 

Appellant stated that he would like to return to work, but that the employing establishment was 

not providing work within his restrictions.

In a December 3, 2018 report, Dr. Cannon noted appellant’s physical examination findings. 

He concluded that appellant’s right de Quervain’s syndrome had resolved.

 

2 The August 31, 2018 SOAF noted appellant’s accepted condition as “Unspecified Sprain of Right Wrist.”
5

On December 26, 2018 OWCP received undated letters from appellant to the employing 

establishment concerning a new modified job offer delivered to his home by certified mail on 

December 19, 2018.

Appellant retired from the employing establishment effective February 28, 2019.

On February 4, 2019 OWCP requested that Dr. Galyon provide an updated Form OWCP5c in order to assist it with obtaining suitable employment for appellant. In a February 25, 2019 

Form OWCP-5c, Dr. Galyon diagnosed right wrist ligament tear and failed repair. He determined

that appellant was capable of working four hours per day with restrictions. The restrictions

included up to three hours of reaching, up to one hour of pulling and pushing, up to 10 pounds and 

lifting, and up to one hour of repetitive wrist and elbow movements, and no climbing. He advised, 

in a March 1, 2019 report, that appellant could perform light or sedentary with a 10-pound lifting 

limit.

On April 11, 2019 the employing establishment offered appellant a modified city carrier 

job working 8:00 a.m. to 12:30 p.m. The duties of the position required up to one hour of casing 

mail, up to one hour of casing labels, up to one hour of handling undeliverable bulk business mail, 

and up to one hour performing administrative duties. The physical requirements of the position 

included up to one hour of lifting no more than eight pounds, up to one hour of walking, up to one 

hour of reaching/reaching above the shoulder, and up to one hour pushing/pulling. On the second 

page of the job offer, the employing establishment noted that the restrictions were based on the 

opinion of second opinion physician including no more than four hours of work per day, reaching 

up to three hours per day, up to one hour per day of repetitive wrist and elbow movement, up to 

one hour per day of pushing/pulling/lifting up to 10 pounds per day, and no climbing. Appellant 

refused the job offer asserting that it did not meet his physical restrictions.

In a letter dated June 18, 2019, OWCP advised appellant of its determination that the 

modified city carrier position offered by the employing establishment by notice dated April 11, 

2019 was suitable based on the February 28, 2018 report and supplemental reports dated 

November 16, 2018, February 25, and March 1, 2019 from Dr. Galyon. It noted that the position 

was within his work restrictions. OWCP advised appellant that pursuant to 5 U.S.C. 

§ 8106(c)(2) his wage-loss compensation and entitlement to a schedule award would be terminated 

if he did not accept the job offer or provide good cause for not doing so within 30 days of the date 

of the letter.

On June 25, 2019 OWCP received appellant’s undated response. Appellant asserted that 

the April 11, 2014 job offer was not within Dr. Galyon’s work restrictions. He noted that the job 

offer lacked any specific weight restrictions with respect to pushing and pulling.

In a July 17, 2019 letter to the employing establishment, OWCP noted that the April 11, 

2019 modified job offer failed to contain the weight restriction for pulling and pushing.

In a letter dated August 13, 2019 to OWCP, the employing establishment noted that a 

permanent job offer was not available, but a modified assignment had been identified within 

appellant’s restrictions, and the job offer remained available. It attached a copy of the April 11, 

2019 modified job offer. On the second page of the job offer the employing establishment noted 

that “this assignment is currently available and is subject to revision based on changes in your 
6

physical restrictions and/or the availability of work. If a revision is necessary, you will be given a 

revised written modified assignment.”

OWCP, in an August 13, 2019 letter, advised appellant that his reasons for refusing to 

accept the modified city carrier position were unjustified. On July 17, 2019 the employing 

establishment clarified that the April 11, 2014 job offer appellant had been given consisted of two 

pages with weight limits for pushing/pulling/lifting noted on the second page of the job offer. It 

advised him that his wage-loss compensation and entitlement to a schedule award would be 

terminated if he did not accept the position and report to the position within 15 days of the date of 

the letter.

On September 6, 2019 appellant elected to receive retirement benefits from the Office of 

Personnel Management in lieu of FECA benefits effective August 18, 2019.

By decision dated October 25, 2019, OWCP terminated appellant’s entitlement to wageloss compensation and a schedule award effective October 24, 2019, because he refused an offer 

of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the duties and physical 

requirements of the April 11, 2019 job offer were suitable based on the work restrictions prescribed 

by Dr. Galyon. OWCP found that appellant’s reasons for his job refusal and his failure to report 

to work were not justified because the position was within his treating physician’s restrictions.

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.3 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.4

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.5 Section 8106(c)(2) of FECA 

(5 U.S.C. § 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

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 

 

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

197 (2005).

4 5 U.S.C. § 8106(c)(2).

5 R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000); see also Federal 

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

6 S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).
7

and other relevant factors.7 A temporary job will be considered unsuitable for the purposes of 5 

U.S.C. § 8106(c)(2) unless the claimant was a temporary employee when injured and the

temporary job reasonably represents the claimant’s wage-earning capacity. Even if these 

conditions are met, a job which will terminate in less than 90 days will be considered unsuitable.8

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.9 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.10 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.11

ANALYSIS

The Board finds that OWCP has not met it burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and schedule award benefits, effective October 24, 2019, 

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

On April 11, 2019 the employing establishment offered appellant the position of modified 

city carrier. The physical requirements of the offered position were within appellant’s medical 

restrictions provided by Dr. Galyon, in his capacity as a second opinion referral physician. 

However, the employing establishment advised OWCP by letter dated August 13, 2019 that a 

permanent job offer was not available and that the April 11, 2019 modified assignment had been 

identified to be within appellant’s restrictions. It confirmed that the modified job offer remained 

available. 

As previously noted, OWCP’s procedures relate that a temporary job will be considered

unsuitable for the purposes of 8106(c) unless the claimant was a temporary employee when injured 

and the temporary job reasonably represents the claimant’s wage-earning capacity.12

The record does not support a finding that appellant was a temporary employee at the time 

of injury. The employing establishment explained in its August 13, 2019 letter that the April 11, 

2019 modified job offer was made because a permanent job offer was not available. The Board 

thus finds that the April 11, 2019 modified job offer was temporary in nature and not a permanent 

job offer. 

 

7 Supra note 6 at Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.(4)(c) (June 2013).

8

Id. at Chapter 2.814.4(c)(5) (June 2013); see also R.A., Docket No. 19-0065 (issued May 14, 2019); Leonard W. 

Larson, 48 ECAB 507 (1997).

9 20 C.F.R. § 10.517(a).

10 Id.

11 Id. at 10.516.

12 Supra footnote 10. 
8

The Board therefore finds that OWCP improperly determined that the April 11, 2019 

modified job offer was suitable.13 OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits pursuant to 5 U.S.C. § 8106(c)(2). 

CONCLUSION

The Board finds that OWCP has not met it burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and schedule award benefits, effective October 24, 2019, 

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

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: January 26, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 Id.