United States Department of Labor

Employees’ Compensation Appeals Board

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J.W., Appellant

and

OFFICE OF SPECIAL COUNSEL, EMPLOYEE 

RELATIONS OFFICE, Washington, DC, 

Employer

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Docket No. 19-1271

Issued: February 14, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 20, 2019 appellant filed a timely appeal from a January 31, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 31, 2019 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

ISSUE

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

entitlement to schedule award compensation, effective October 14, 2018, because she refused an 

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

FACTUAL HISTORY

On March 28, 2003 appellant, then a 56-year-old administrative assistant, filed an 

occupational disease claim (Form CA-2) alleging that she sustained injury to her arms and hands 

due to typing on a computer and handling files while in the performance of duty. She indicated 

that she first became aware of her claimed injury and realized its relation to factors of her federal 

employment on March 14, 2003. 

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, villonodular 

synovitis of the forearms/wrists, bilateral tenosynovitis (de Quervain’s), and abscesses of the 

tendon sheath of each hand. Appellant stopped work on September 9, 2003 and, on the same date, 

underwent OWCP-authorized right carpal tunnel syndrome surgery. OWCP paid her wage-loss 

compensation benefits on the daily rolls commencing September 9, 2003 and on the periodic rolls 

commencing March 20, 2005.

3

Beginning in 2004, appellant participated in vocational rehabilitation efforts, but these 

efforts did not result in her returning to employment for an extended period.4 She retired from the 

employing establishment in 2008. By decision dated January 15, 2009, OWCP reduced 

appellant’s wage-loss compensation effective January 18, 2009 based on her ability to earn wages 

in the constructed position of receptionist. 

Appellant received treatment for her medical problems from several attending physicians, 

including Dr. Reza Ghorbani, a Board-certified anesthesiologist. In a January 26, 2017 report,

Dr. Ghorbani diagnosed several conditions, including carpal tunnel syndrome, low back pain, 

radiculopathy (lumbar region) affecting the right leg, and intervertebral lumbar disc displacement.5

In February 2017, OWCP referred appellant to Dr. Donald B. Haskins, a Board-certified 

orthopedic surgeon, for a second opinion examination and opinion on her ability to work. 

In a March 28, 2017 report, Dr. Haskins reported his physical examination findings and 

diagnosed bilateral carpal tunnel syndrome, degenerative joint disease of both hands, and bilateral 

tenosynovitis/de Quervain’s syndrome. He opined that appellant could perform work requiring 

limited data entry on a full-time basis. In an attached March 30, 2017 work capacity evaluation 

(Form OWCP-5c), Dr. Haskins indicated that appellant could perform repetitive wrist motion for 

 

3 By decision dated January 15, 2009, OWCP reduced appellant’s wage-loss compensation effective January 18, 

2009 based on her ability to earn wages in the constructed position of receptionist. 

4 Appellant returned to part-time work for a brief period beginning in mid-2004, but she later stopped work. 

5

In 2014 appellant underwent first carpometacarpal joint arthroplasty of the left hand and, in 2016, she underwent 

right thumb trigger release surgery. 
3

up to one hour per day, repetitive elbow motion for up to one hour, and engage in 

pushing/pulling/lifting of up to five pounds (for up to two hours per day for each action). Appellant 

could not engage in climbing. 

On May 5, 2017 the employing establishment offered appellant a job as a program assistant 

on a full-time basis. The position involved using a computer to enter information pertaining to 

agency case file records, retrieving and scanning records relating to the Freedom of Information 

Act and the Privacy Act, filing documents, and drafting documents on the computer. The position 

required up to one hour per day of repetitive wrist motion, up to one hour of repetitive elbow 

motion, and engaging in pushing/pulling/lifting of up to five pounds (for up to two hours per day 

for each action). The program assistant position did not require climbing. 

Appellant refused the offered program assistant position and advised the employing 

establishment that she had no intention of returning to work.

Appellant submitted a June 23, 2017 from Dr. Ricardo Pyfrom, a Board-certified 

orthopedic surgeon, who diagnosed left-sided lumbago with sciatica, trigger finger of the right ring 

finger, unilateral primary osteoarthritis of the first carpometacarpal joint of the right hand, and 

radial styloid tenosynovitis (de Quervain’s). Dr. Pyfrom advised that she was not a candidate for 

return to work doing repetitive hand/wrist activities given the condition of her hands. 

In an August 7, 2017 medical conflict statement, OWCP determined that there was a 

conflict in the medical opinion evidence between Dr. Haskins and Dr. Pyfrom regarding 

appellant’s ability to work. On August 7, 2017 it referred appellant to Dr. Sankara Kothakota, a 

Board-certified orthopedic surgeon, for an impartial medical examination and his opinion on her

ability to work. 

In a September 12, 2017 report, Dr. Kothakota detailed appellant’s factual and medical 

history and reported the findings of his physical examination. He noted that her grip strength was 

within normal limits bilaterally and that the Tinel’s sign was negative bilaterally. Dr. Kothakota 

indicated that there was no significant loss of upper extremity sensation and that there was no 

significant atrophy. He noted that appellant had successful carpal tunnel surgery in 2003 and that 

her present bilateral carpal tunnel symptoms were minimal and he indicated that, based on this 

condition, she could perform the duties of the program assistant position offered by the employing 

establishment.

Appellant submitted a December 14, 2017 report from Dr. Pyfrom, who diagnosed leftsided lumbago with sciatica, bilateral carpal tunnel syndrome, trigger finger of the right ring finger, 

unilateral primary osteoarthritis of the first carpometacarpal joint of the right hand, and radial 

styloid tenosynovitis (de Quervain’s). Dr. Pyfrom advised that she was not a candidate for return 

to work doing repetitive hand/wrist activities and that she was limited from pulling, carrying, and 

lifting more than five pounds with either hand.

In a February 1, 2018 letter, OWCP discussed the contents of Dr. Pyfrom’s December 14, 

2017 report and requested that Dr. Kothakota examine appellant again and provide a supplemental 

report regarding her ability to work which considered all her medical conditions. 
4

In a June 4, 2018 supplemental report, Dr. Kothakota reported the findings of his 

reexamination of appellant on that date. He noted that she did not have any signs of bilateral 

de Quervain’s syndrome upon examination. When appellant’s attention was diverted, she did not 

have pain upon ulnar deviation over the thumbs and there was no evidence of any nodule over the 

first dorsal compartments. Dr. Kothakota indicated that she exhibited full flexion of the lumbar

spine without weakness or loss of sensation. Appellant did not exhibit signs of triggering of the 

right thumb, the left index finger, or any other digit. Dr. Kothakota concluded that her medical 

conditions did not prevent her from working as a program assistant. 

In a July 12, 2018 letter, OWCP advised appellant of its determination that the program 

assistant position offered by the employing establishment was suitable. 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.6

Appellant asserted that she was unable to work and she submitted several reports from 

attending physicians detailing her treatment for various medical problems. In a June 28, 2018 

report, Dr. Pyfrom indicated that her lumbar spine condition affected her ability to stand, sit, or 

walk for long periods. He noted that appellant’s left leg had paresthesias and that “it is also one 

of the reasons [appellant] is unable to work.”

7

In an August 13, 2018 letter, OWCP advised appellant that her reasons for not accepting 

the program assistant 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.8

In an October 1, 2018 decision, OWCP terminated appellant’s wage-loss compensation 

and entitlement to schedule award compensation, effective October 14, 2018, because she refused 

an offer of suitable work. It found that the special weight of the medical evidence with respect to 

her ability to work rested with the well-rationalized opinion of Dr. Kothakota, the impartial 

medical specialist.

On November 5, 2018 appellant requested reconsideration of the October 1, 2018 decision. 

She subsequently submitted additional medical reports, including October 4, November 1, and 

December 27, 2018 reports from Dr. Ghorbani. In these reports, Dr. Ghorbani discussed 

appellant’s medical problems. In an October 18, 2018 report, Dr. Pyfrom indicated that he advised 

her to consider applying for disability retirement. 

 

6

In late-2017, OWCP confirmed with the employing establishment that the program assistant position was still 

available. 

7 Dr. Pyfrom also indicated that appellant was not a candidate for return to work doing repetitive hand/wrist 

activities and that she was limited form pulling, carrying, and lifting more than five pounds with either hand.

8 After receiving the August 13, 2018 letter, appellant submitted an August 9, 2018 report from Dr. Ghorbani who 

discussed her various upper extremity and back complaints. She also submitted an August 16, 2018 report in which

Dr. Pyfrom provided an opinion on her ability to work which was similar to that provided in his June 28, 2018 report. 
5

By decision dated January 31, 2019, OWCP denied modification of the October 1, 2018 

decision, finding that appellant had not submitted probative medical evidence justifying her refusal 

of suitable work. 

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.9 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.10 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.11 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.12

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.13 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.14

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.15 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.

16

 In a suitable work determination, 

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

employee’s work capacity.17

 

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

197 (2005).

10 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

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

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

13 20 C.F.R. § 10.517(a).

14 Id. at § 10.516. 

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

16 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).

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

Section 8123(a) of FECA provides in pertinent part: “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.”

18

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist 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.19

ANALYSIS

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

entitlement to schedule award compensation, effective October 14, 2018, because she refused an 

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

The evidence of record shows that appellant is capable of performing the program assistant

position offered by the employing establishment in May 2017 and determined to be suitable by 

OWCP in July 2018. The position involved using a computer to enter information pertaining to 

agency case file records, retrieving and scanning records, filing documents, and drafting 

documents on the computer. The position required up to one hour per day of repetitive wrist

motion, up to one hour of repetitive elbow motion, and engaging in pushing/pulling/lifting of up 

to five pounds (for up to two hours per day for each action). The record does not reveal that the 

program assistant position was temporary in nature.20 

The Board finds that case record reflects that appellant was vocationally and educationally 

capable of performing the program assistant position as she formerly worked in similar position 

as an administrative assistant.

In determining that appellant was physically capable of performing the program assistant 

position, OWCP properly relied on the opinion of Dr. Kothakota, the impartial medical specialist. 

It properly determined that there was a conflict in the medical opinion evidence regarding her

ability to work between Dr. Pyfrom, an attending physician, and Dr. Haskins, an OWCP referral 

physician and referred appellant to Dr. Kothakota in order to resolve this conflict, pursuant to 

section 8123(a) of FECA.

21

 In September 12, 2017 and June 4, 2018 reports, Dr. Kothakota noted 

that he had reviewed the description of the program assistant position offered by the employing 

establishment and determined that appellant was able to perform the position. In these reports, he

collectively considered her various medical conditions and their effect on her ability to work. 

Dr. Kothakota noted that appellant had no significant back condition and had limited or no signs 

 

18 5 U.S.C. § 8123(a).

19 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

20 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 supra note 16 at

Chapter 2.814.4c(5), 9 (June 2013).

21 See supra note 18.
7

of such conditions as bilateral carpal tunnel syndrome, bilateral de Quervain’s syndrome, and 

trigger finger.

The Board finds that OWCP properly accorded the special weight of the medical evidence 

opinion to Dr. Kothakota, who reported that appellant was capable of working as a program 

assistant.

22

 Dr. Kothakota based his opinion on a proper factual and medical history and physical 

examination findings, and he provided medical rationale for his opinion. The Board finds that he

provided a well-rationalized opinion regarding appellant’s ability to work. Accordingly, OWCP 

properly relied on Dr. Kothakota’s September 12, 2017 and June 4, 2018 reports relative to work 

tolerances and limitations in terminating her wage-loss compensation and entitlement to schedule 

award compensation, effective October 14, 2018, due to her refusal of an offer of suitable work.23

Appellant submitted reports from attending physicians regarding her ability to work which 

were contemporaneous with Dr. Kothakota’s reports. For example, she submitted December 14, 

2017, June 28, and August 16, 2018 reports in which Dr. Pyfrom opined that she had hand, wrist, 

and back conditions which limited her ability to work. The Board has reviewed these reports and 

finds that they are insufficient to outweigh the well-rationalized opinion of Dr. Kothakota who 

addressed both the accepted and concurrent conditions. 

The Board finds that, therefore, OWCP has established that the program assistant position 

offered by the employing establishment is 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 program assistant position and notes that they are insufficient to justify her refusal of the 

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

terminating her compensation, including providing her 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.24

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

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

entitlement to schedule award compensation, effective October 14, 2018, because she refused an 

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

 

22 See supra note 19.

23 See A.F., Docket No. 16-0393 (issued June 24, 2016).

24 See generally D.M., Docket No. 19-0686 (issued November 13, 2019); Maggie L. Moore, 42 ECAB 484 (1991), 

reaff’d on recon., 43 ECAB 818 (1992).
8

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 14, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board