United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Athens, GA, Employer

__________________________________________

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Docket No. 19-0686

Issued: November 13, 2019

Appearances: Case Submitted on the Record

Sara Kinkaid, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 9, 2019 appellant, through counsel, filed a timely appeal from an October 19, 

2018 nonmerit decision and a December 19, 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 these decisions.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, 2018 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 

additional evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and entitlement to schedule award compensation, effective December 16, 2016, 

because she refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether 

OWCP properly denied her request for a review of the written record in response to the denial of her 

request for surgery, as it was untimely filed.

FACTUAL HISTORY

On August 26, 2011 appellant, then a 41-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a bilateral upper extremity condition due to 

the repetitive handling of mail required by her job. OWCP accepted appellant’s claim for adhesive 

capsulitis of the left shoulder, bilateral carpal tunnel syndrome, bilateral disorder of bursae and 

tendons of the shoulder region, other bilateral affections of the shoulder region, other bilateral 

synovitis and tenosynovitis, bilateral elbow and forearm sprains, bilateral mononeuritis multiplex, 

and late effects of complications of medical/surgical care.4

Appellant stopped work on January 8, 2014 and, on the same date, she underwent OWCPauthorized revision of carpal tunnel release surgery.

5

 She periodically returned to light-duty work 

and OWCP paid her appropriate wage-loss compensation for periods of work stoppage. Appellant 

stopped work on July 22, 2014. 

Appellant participated in a functional capacity evaluation (FCE) on November 17, 2014. 

A report of the FCE indicated that the results suggested that appellant gave a self-limited effort 

and that she demonstrated patterns of movement and physiological responses that were 

inconsistent with maximal effort.6

OWCP referred appellant to Dr. Eric S. Furie, a Board-certified orthopedic surgeon, for a 

second opinion examination and requested that he provide an opinion detailing appellant’s ability 

to work.

In a July 28, 2015 report, Dr. Furie discussed appellant’s factual and medical history and 

detailed the findings of his physical examination. He advised that appellant’s active diagnoses 

were left trapezial strain, frozen left shoulder, and mild right lateral epicondylitis. Dr. Furie noted 

that it appeared that appellant’s bilateral carpal tunnel syndrome had resolved and indicated that 

she had good range of motions of her wrists and adequate strength. Appellant did not appear to 

 

4 The case record contains an authorization for examination and/or treatment form (Form CA-16) which was signed 

by an authorizing official on September 2, 2011.

5 OWCP authorized several other surgeries, including January 31, 2014 right shoulder subacrominal 

decompression, labral debridement, and synovectomy, March 20, 2014 left shoulder subacrominal decompression and 

repair of superior labrum anterior and posterior tear, April 30, 2014 revision of left carpal tunnel release surgery, and 

April 21, 2016 left shoulder revision subacrominal decompression, biceps tenodesis, lysis of adhesions, and labral 

debridement. 

6 The report indicated that, during the FCE, appellant demonstrated the ability to frequently carry five pounds, but 

it was noted this was a self-limited representation of her abilities and that her actual abilities were most likely greater 

than those demonstrated.
3

have any sensory loss in her fingers and her elbows had excellent range of motion. Dr. Furie 

advised that appellant exhibited tenderness at the lateral epicondyle of her right elbow which was 

mild-to-moderate in nature. He reported that she had a good outcome from her right shoulder 

surgery with good strength and excellent range of motion. Appellant had some decreased range 

of motion of her left shoulder and some tenderness at the trapezius and anterior aspect. Dr. Furie

noted that her “subjective complaints outweigh her objective findings” and he that, other than the 

lack of motivation evidenced by her FCE results, she should be able to participate in vocational 

rehabilitation efforts. He maintained that the only difficulties appellant would have with 

performing her date-of-injury job as a mail handler would be lifting over her shoulder level or 

lifting 70 pounds with her left arm.7

In an August 25, 2015 work capacity evaluation form (OWCP-5c), Dr. Furie indicated that 

appellant could work eight hours per day with restrictions of lifting, pushing, and pulling no more 

than 30 pounds for up to eight hours per day. Appellant could not reach about her shoulder level 

with her left arm.

In an October 13, 2015 report, Dr. Obinwanne Ugwonali, a Board-certified orthopedic 

surgeon, indicated that he had reviewed the work restrictions from Dr. Furie’s July 28, 2015 report 

and noted that “[a]ccording to the restrictions she was allowed up to 70 pounds.” He noted that, 

based on his history with appellant, she was not able to lift more than 30 pounds continuously 

without a significant amount of pain. Dr. Ugwonali noted, “I therefore would disregard that 

advice.”

In early November 2015 appellant began participating in an OWCP-sponsored vocational 

rehabilitation program designed to return her to work. 

On November 12, 2015 the employing establishment offered appellant a full-time position 

as a modified mail handler. The position involved culling and prepping mail for up to eight hours 

per day.8 The physical requirements included standing for up to eight hours per day and lifting 

flat mail bundles weighing up to 30 pounds for up to eight hours per day. In a December 8, 2015 

letter, the employing establishment advised OWCP that appellant had not accepted the offered 

position.

Appellant’s vocational rehabilitation counselor determined that appellant was vocationally 

and educationally capable of working in the modified mail handler position offered by the 

employing establishment. 

In a December 31, 2015 letter, OWCP advised appellant of its determination that the 

modified mail handler position offered by the employing establishment was suitable based on the 

evaluation of Dr. Furie. It informed her that her compensation would be terminated if she did not 

accept the position or provide good cause for not doing so within 30 days of the date of the letter.

 

7 Dr. Furie discussed appellant’s ability to perform the requirements of her date-of-injury job as a mail handler, 

such as standing for six hours per day and walking for six hours per day. He did not provide any indication that his 

comments regarding these requirements represented the limits of appellant’s physical abilities.

8 These processes included cutting straps, removing rubber bands, and placing mail in containers.
4

In response, appellant submitted a January 5, 2016 report in which Dr. Ugwonali advised 

that appellant had been capable of returning to work since October 31, 2015 and was capable of 

lifting up to 30 pounds on a continuous basis. In a January 29, 2016 document, counsel indicated 

that an attempt was being made to obtain additional new medical evidence from Dr. Ugwonali.

In a February 8, 2016 letter, OWCP advised appellant that her reasons for not accepting 

the modified position offered by the employing establishment were unjustified. It advised her that 

her compensation would be terminated if she did not accept the position within 15 days of the date 

of the letter. Appellant did not accept the mail handler position within the allotted period.9

By decision dated December 15, 2016, OWCP terminated appellant’s compensation and 

entitlement to schedule award compensation effective December 16, 2016 because she refused an 

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

On December 6, 2017 appellant, through counsel requested reconsideration of the 

December 15, 2016 decision. Counsel continued to argue that the opinion of Dr. Ugwonwali 

showed that appellant could not work as a modified mail handler. By decision dated December 13, 

2017, OWCP denied modification of the December 15, 2016 decision. 

In June 2018 Dr. Ugwonwali submitted a request, on appellant’s behalf, for authorization 

of a proposed revised ulnar nerve surgery at the right elbow. Appellant submitted June 11 and 

July 9, 2018 reports from Dr. Ugwonali who described appellant’s right elbow symptoms and 

opined that they were employment related. 

Appellant also submitted a July 19, 2018 report from Dr. Ugwonali who indicated that it 

was his opinion that appellant was not capable of performing the modified mail handler position 

at the time it was offered in late-2015. He noted that appellant was able to lift 30 pounds at that 

time, but that she was not capable of engaging in repetitive arm motion. 

By decision dated August 10, 2018, OWCP denied appellant’s request for authorization of 

surgery because she did not submit sufficient medical evidence to establish that the proposed right 

elbow surgery was necessitated by an employment-related condition. 

In a document dated September 10, 2018 and received by OWCP on September 11, 2018, 

appellant requested a review of the written record with a representative of OWCP’s Branch of 

Hearings and Review with respect to the August 10, 2018 decision. By decision dated October 19, 

2018, OWCP denied appellant’s request for a hearing in the form of a review of the written record. 

It found that her request was untimely as it was not filed within 30 days of the issuance of the 

August 10, 2018 merit decision. OWCP indicated that, in its discretion, it had carefully considered 

appellant’s request and had determined that the issue of the case could equally well be addressed 

by requesting reconsideration and submitting additional medical evidence.

 

9 Appellant later submitted additional reports, dated February 23 and November 1, 2016 in which Dr. Ugwonali 

advised that appellant was capable of lifting up to 30 pounds. On April 21, 2016 she underwent left shoulder revision 

subacrominal decompression, biceps tenodesis, lysis of adhesions, and labral debridement. During the several-month 

recovery period after this surgery, Dr. Ugwonali recommended more restrictive lifting restrictions ranging from no 

lifting with the right arm to no lifting more than 20 pounds.
5

By decision dated December 19, 2018, OWCP denied modification of its December 13, 

2017 decision.

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of an employee’s compensation benefits.10 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.11 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.12 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.13

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.14 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.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 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.17 In a suitable work determination, 

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

employee’s work capacity.18

 

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

197 (2005).

11 5 U.S.C. § 8106(c)(2).

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

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

14 20 C.F.R. § 10.517(a).

15 Id. at § 10.516.

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

17 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).

18 See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).
6

ANALYSIS -- ISSUE 1

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

entitlement to schedule award compensation, effective December 16, 2016, because she refused 

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

The evidence of record demonstrates that appellant is capable of performing the modified 

mail handler position offered by the employing establishment and determined to be suitable by 

OWCP in December 2015. The position involved culling and prepping mail for up to eight hours 

per day. The physical requirements included standing for up to eight hours per day and lifting flat 

mail bundles weighing up to 30 pounds for up to eight hours per day. The record does not reveal 

that the mail handler position was temporary in nature.19 

Appellant’s vocational rehabilitation counselor determined that appellant was vocationally 

and educationally capable of working in the modified mail handler position offered by the 

employing establishment and OWCP properly relied on the opinion of appellant’s counselor in 

finding that she was vocationally and educationally capable of performing the offered position.20

In determining that appellant was physically capable of performing the modified mail 

handler position, OWCP properly relied on the opinion of Dr. Furie, OWCP’s referral physician. 

In his June 28 and August 25, 2015 reports, Dr. Furie comprehensively discussed appellant’s 

medical condition and provided an opinion that appellant could work eight hours per day with 

restrictions of lifting, pushing, and pulling no more than 30 pounds for up to eight hours per day. 

The Board notes that these work restrictions would allow appellant to work in the modified mail 

handler position offered by the employing establishment in late-2015. Dr. Furie noted that 

appellant could not reach about her shoulder level with her left arm, but there is no indication that 

the modified mail handler position required such activity.

The Board notes that, therefore, OWCP has established that the modified mail handler 

position offered by the employing establishment was suitable. As noted above, once OWCP has 

established that a particular position is suitable, an employee who refuses or neglects to work after 

suitable work has been offered has the burden of showing that such refusal to work was justified. 

The Board has reviewed the evidence and argument submitted by appellant in support of 

her refusal of the modified mail handler position and notes that it is insufficient to justify her 

refusal of the position. On appeal counsel argues that the results of the November 17, 2014 FCE 

and an October 13, 2015 report of Dr. Ugwonali established that appellant could not perform the 

duties of the modified mail handler position offered by the employing establishment. However, 

the Board notes that, in his October 13, 2015 report, Dr. Ugwonali actually indicated that appellant 

could frequently lift up to 30 pounds and this assessment of appellant’s lifting ability is in 

accordance with the requirements of the modified mail handler position offered by the employing 

establishment. Moreover, the Board notes that the report of the November 17, 2014 FCE 

 

19 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).

20 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4 

(June 2013).
7

specifically provided that appellant’s activities during the FCE were self-limited and that her actual 

abilities were likely far greater.21 

The Board finds that OWCP complied with its procedural requirements prior to terminating 

appellant’s wage-loss compensation and entitlement to schedule award compensation, including 

providing appellant with an opportunity to accept the position offered by the employing 

establishment after informing her that her reasons for initially refusing the position were not 

valid.22

For these reasons, OWCP properly terminated appellant’s wage-loss compensation and 

entitlement to schedule award compensation, effective December 16, 2016, because she refused 

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

23

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

Office representative, provides in pertinent part: “Before review under section 8128(a) of this title, 

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request 

made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a 

representative of the Secretary.”

24

 As section 8124(b)(1) is unequivocal in setting forth the time 

limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless 

the request is made within the requisite 30 days.25 The date of filing is fixed by postmark or other 

carrier’s date marking.26

 

21 In addition, the report of the November 17, 2014 FCE was prepared by a physical therapist and does not constitute 

probative medical evidence as a physical therapist is not considered to be a physician within the meaning of FECA. 

See M.M., Docket No. 17-1641 (issued February 15, 2018). Appellant also submitted a July 19, 2018 report from

Dr. Ugwonali who indicated that it was his opinion that appellant was not capable of performing the modified mail 

handler position at the time it was offered in late-2015. The Board notes, however, that this report was submitted well 

after OWCP issued its February 8, 2016 letter advising appellant that her reasons for not accepting the offered position 

were unjustified and that her compensation would be terminated if she did not accept the position within 15 days of 

the date of the letter. Similarly, the fact that appellant had lifting limitations due to April 2016 right shoulder surgery 

would not invalidate OWCP’s termination action.

22 See generally C.V., Docket No. 14-1572 (issued June 19, 2015); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d 

on recon., 43 ECAB 818 (1992).

23 The case record contains a Form CA-16 which was signed by an authorizing official on September 2, 2011.A 

properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical 

facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the 

employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. The 

period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless 

terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., 

Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

24 5 U.S.C. § 8124(b)(1).

25 C.K., Docket No. 18-0607 (issued October 18, 2018); Ella M. Garner, 36 ECAB 238, 241-42 (1984).

26 See 20 C.F.R. § 10.616(a).
8

The Board has held that OWCP, in its broad discretionary authority in the administration of 

FECA, has the power to hold hearings in certain circumstances where no legal provision was made 

for such hearings and that OWCP must exercise this discretionary authority in deciding whether to 

grant a hearing.27 Specifically, the Board has held that OWCP has the discretion to grant or deny a 

hearing request on a claim involving an injury sustained prior to the enactment of the 1966 

amendments to FECA which provided the right to a hearing,28 when the request is made after the 

30-day period for requesting a hearing,29 when the request is for a second hearing on the same issue,30

and when the request is made after a reconsideration request was previously submitted.31 In these 

instances, OWCP will determine whether a discretionary hearing should be granted or, if not, will 

so advise the claimant with reasons.32

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly improperly denied her request for a review of the 

written record, in response to the denial of her request for surgery, as it was untimely filed. 

In this case, appellant’s letter requesting a hearing from OWCP’s August 10, 2018 decision 

denying authorization for surgery was dated September 10, 2018. The record does not contain the 

envelope in which the letter was sent, which would include the postmark. OWCP’s Branch of 

Hearings and Review is required to retain an envelope in which a request for a hearing is made so 

as to determine the timeliness of the request for a hearing.33 Because appellant submitted a request 

for a hearing which was dated September 10, 2018 and the record contains no envelope with a 

postmark, her request is deemed to have been made on September 10, 2018.34 The Board has held 

that, in computing a time period, the date of the event from which the designated period of time 

begins to run shall not be included while the last day of the period so computed shall be included 

unless it is a Saturday, a Sunday, or a federal holiday.35 The 30-day time period for determining 

the timeliness of appellant’s hearing request began on August 10, 2018 and ended on September 9, 

2018, a Sunday. The first regular business day after September 9, 2018 was Monday, 

 

27 D.T., Docket No. 18-0871 (issued February 11, 2019); Henry Moreno, 39 ECAB 475, 482 (1988).

28 T.R., Docket No. 18-1272 (issued February 15, 2019); Rudolph Bermann, 26 ECAB 354, 360 (1975).

29 See C.K., supra note 25; Herbert C. Holley, 33 ECAB 140, 142 (1981).

30 See T.R., supra note 28; Johnny S. Henderson, 34 ECAB 216, 219 (1982).

31 R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007). 

Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).

32 See C.K., supra note 25.

33 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.3a (October 2011). OWCP procedures further provide that the request is timely if it was mailed (as determined 

by the postmark or other carrier’s date marking) within 30 days of the date of the district office’s decision. If the 

postmark is not legible, the request will be deemed timely unless OWCP has kept evidence of date of delivery on the 

record reflecting that the request is untimely. Id. at Chapter 2.1601.4a.

34 See id.

35 B.W., Docket No. 16-1860, Order Remanding Case (issued May 4, 2017).
9

September 10, 2018. As appellant’s request for a review of the written record was made on 

September 10, 2018, her request was timely.36 Consequently, the case must be remanded for 

OWCP to provide appellant an appropriate hearing under section 8124 of FECA. Upon return of 

the case record, OWCP should schedule an appropriate hearing with a representative of OWCP’s 

Branch of Hearings and Review. After such further development it deems necessary, OWCP shall 

issue a de novo decision regarding appellant’s request for authorization of surgery.

CONCLUSION

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

entitlement to schedule award compensation, effective December 16, 2016, because she refused 

an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP 

improperly denied her request for a review of the written record, in response to the denial of her 

request for surgery, as it was untimely filed. 

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. The October 19, 2018 decision of OWCP is 

reversed, and the case is remanded for further development consistent with this decision of the 

Board.

Issued: November 13, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

36 See id.