United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jersey City, NJ, Employer

__________________________________________

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Docket No. 20-1007

Issued: June 15, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

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 April 5, 2020 appellant, through counsel, filed a timely appeal from a February 28, 

2020 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.

 

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.
2

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award effective September 15, 2019, as he refused an 

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

FACTUAL HISTORY

On December 19, 2008 appellant, then a 45-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 2, 2008 he sustained an injury to his right arm and 

hand while pushing a mail cart up a hill while in the performance of duty. He stopped work on 

December 3, 2008. On April 7, 2011 OWCP accepted the claim for a superior labrum anterior and 

posterior (SLAP) tear of the right shoulder, and cervical radiculopathy. On September 16, 2014 it 

accepted the claim for displacement of cervical disc at C5-6 on the left. OWCP paid appellant

compensation on the supplemental rolls beginning January 1, 2011 and on the periodic rolls 

beginning July 31, 2011.

On May 14, 2009 appellant underwent a right shoulder arthroscopic synovectomy and

debridement, arthroscopic repair of SLAP lesion, and limited acromioplasty and subacromial

bursectomy. On November 11, 2013 he underwent arthroscopic acromioplasty, arthroscopic 

debridement of partial labral tear, and autologous tissue platelet graft of the right shoulder. 

On November 6, 2018 OWCP referred appellant to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the extent and degree 

of appellant’s work injury-related residuals, if any. 

In a November 30, 2018 report, Dr. Dinenberg noted appellant’s history of injury and 

medical treatment. He related appellant’s physical examination findings and opined that appellant

could work full time with restrictions. Dr. Dinenberg explained that appellant remained

symptomatic regarding the right shoulder secondary to persistent impingement with diminished 

range of motion and positive impingement sign on the right shoulder and that appellant’s accepted 

right shoulder condition had not resolved. He noted that brachial neuritis was not indicated on the 

statement of accepted facts and that appellant had subjective complaints of right upper radicular 

symptomatology not objectively seen on examination. Dr. Dinenberg opined that the displacement 

of appellant’s C5-6 herniated disc had not resolved. He advised that appellant could not return to 

his full work duties and would need permanent restrictions as a result of his cervical spine and 

right shoulder conditions. Dr. Dinenberg indicated that appellant could participate in vocational 

rehabilitation. He completed a work capacity evaluation (Form OWCP-5c) and provided work 

restrictions to include no reaching above the right shoulder, and pushing, pulling, and lifting 

limited to no more than three hours and 20 pounds. 

In a March 18, 2019 report, Dr. David Lalli, an osteopathic physician Board-certified in 

orthopedic surgery, noted appellant’s history of injury and medical treatment. He examined 

appellant and diagnosed bicipital tendinitis of the right shoulder, complete rotator cuff tear and 

rupture of the right shoulder, strain of the muscle tendon and rotator cuff of the right shoulder, and 

superior glenoid labrum lesion of the right shoulder, subs. Dr. Lalli also completed a duty status 
3

report (Form CA-17), wherein he indicated appellant’s work restrictions, including lifting/carrying 

no more than five pounds continuously and intermittently during an eight-hour day. 

On April 1, 2019 the employing establishment offered appellant a part-time flexible carrier 

position. It listed appellant’s medical restrictions as lifting, pushing, and pulling up to three hours 

per day and up to 20 pounds, and no reaching above the right shoulder. The physical requirements 

of the position were listed as: sit/stand/walk; simple grasping; fine manipulation; pushing/pulling/

lifting up to 20 pounds; and reaching/driving. OWCP clarified by a memorandum of telephone 

call (Form CA-110) with the employing establishment that the position was full time, not part 

time. 

On April 8, 2019 appellant refused to sign the modified offer. In a letter dated April 9, 

2019, he noted that he had refused the job offer and explained that the only reason he refused the 

job offer in New Jersey was that he had lived in Florida since 2009. Appellant requested a clerical 

position in Lougham, Florida. 

By letter dated July 9, 2019, the employing establishment requested that OWCP determine 

whether the offered position was suitable. It noted that a 50-mile search was completed from 

appellant’s place of residence in Florida with a negative outcome. 

By letter dated July 18, 2019, OWCP advised appellant of its determination that the fulltime city carrier position offered by the employing establishment was suitable based on

Dr. Dinenberg’s Form OWCP-5c and recommended work restrictions. It noted that appellant’s 

residence in a different geographical location from where the injury occurred was not a valid 

reason for refusing an offer of suitable employment and that it had confirmed, by letter dated 

July 9, 2019, that no suitable work was available in his current commuting area. The employing 

establishment informed appellant that his compensation would be terminated, if he did not accept 

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

By letter dated July 26, 2019, counsel argued that it was “difficult to believe that

[employing establishments] in Florida within 50 miles of [appellant’s home] had no window clerk

jobs or light jobs that he could handle.” 

In a letter dated August 19, 2019, the employing establishment confirmed that the modified 

permanent assignment offer remained available “indefinitely as long as [appellant] does not have 

medical which compels a change in restrictions.” 

By letter dated August 19, 2019, OWCP advised appellant that he had not provided a valid 

excuse for refusing to accept the offered position. It notified him that he had 15 days to accept the 

offered position or his entitlement to wage loss and schedule award benefits would be terminated.

In a letter dated August 26, 2019, counsel argued that OWCP did not explain why his legal 

arguments were invalid and that the burden was on the employing establishment to show that a 

search was made near appellant’s home. 

By decision dated September 9, 2019, OWCP terminated appellant’s compensation 

benefits and entitlement to a schedule award effective September 15, 2019, because he refused an 

offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It found that Dr. Dinenberg’s 
4

November 30, 2018 report constituted the weight of the medical evidence and established that 

appellant could perform the duties of the offered modified position. OWCP also related that the 

employing establishment had confirmed that no suitable work was available within appellant’s 

current commuting area. 

On September 16, 2019 counsel requested a telephonic hearing, which was held before a 

representative of OWCP’s Branch of Hearings and Review on January 6, 2020. During the 

hearing, counsel argued that Dr. Lalli’s March 18, 2019 report found that appellant was five foot 

six, that appellant was unable to reach up above that height, and that this precluded appellant from 

putting mail in boxes as required in the job description. Counsel argued that the offered job was 

not within appellant’s work restrictions. He also argued that appellant had resided in Florida for 

the past 10 years, and that he should not have to move to another area, as there were multiple post

offices within 50 miles of his Florida residence. 

In a letter dated February 3, 2020, L.T., an employing establishment specialist, noted that 

a search for a position was conducted near appellant’s place of residence and attached a copy of a 

“Priority for Assignment Worksheet” signed on February 11, 2019. L.T. explained that one office 

wanted to employ appellant within his medical restrictions, however, they did not have a funded 

vacancy. L.T. indicated that all other offices had a negative response. L.T. also noted that the 

only hiring in appellant’s area was for noncareer employment, with no benefits and no guarantee 

of 40 hours per week, which excluded appellant’s career position. 

By decision dated February 28, 2020, OWCP’s hearing representative affirmed the 

September 9, 2019 termination decision, finding that the report of the second opinion physician,

Dr. Dinenberg, was entitled to the weight of the medical evidence and that the offered position 

was suitable based on Dr. Dinenberg’s work restrictions. The hearing representative also found 

that no rationalized conflicting medical evidence was submitted and that the employing 

establishment properly assessed the availability of positions near appellant’s place of residence.

LEGAL PRECEDENT

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

compensation benefits.3 Section 8106(c)(2) of FECA4 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, it 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 

 

3 T.M., Docket No. 18-1368 (issued February 21, 2019); Linda D. Guerrero, 54 ECAB 556 (2003).

4 Supra note 2.

5

Id. at § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018); Geraldine Foster, 54 ECAB 

435 (2003).

6

J.V., Docket No. 17-1944 (issued December 18, 2018); Ronald M. Jones, 52 ECAB 190 (2000).
5

provision, which may bar an employee’s entitlement to compensation based on a refusal to accept 

a suitable offer of employment.7

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 showing that such refusal or failure to work was reasonable or justified.8 Section 

10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is 

suitable and provide 30 days for the employee to accept the job or present any reasons to counter 

OWCP’s finding of suitability.9

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

demonstrate that the employee can work, setting forth the specific restrictions, if any, on the 

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

work restrictions and setting forth the specific job requirements of the position.10 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 showing that the work offered to and refused by appellant was suitable.11

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

employee who refuses to work to show that the refusal or failure to work was reasonable or 

justified.12 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.13 OWCP 

procedures state that acceptable reasons for refusing an offered position include medical evidence 

of inability to do the work.14

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, pursuant to 5 U.S.C. § 8106(c)(2),

effective September 15, 2019.

15

 

7 S.B., Docket No. 18-0039 (issued October 15, 2018); Joan F. Burke, 54 ECAB 406 (2003).

8 20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

9

Id. at § 10.516.

10 M.H., Docket No. 17-0210 (issued July 3, 2018).

11 J.V. supra note 6; Linda Hilton, 52 ECAB 476 (2001).

12 20 C.F.R. § 10.517(a).

13 D.M., Docket No. 17-1235 (issued February 15, 2018); Gayle Harris, 52 ECAB 319 (2001).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4) 

(June 2013).

15 See E.W., Docket No. 19-1711 (issued July 29, 2020); C.E., Docket No. 19-0614 (issued November 1, 2019).
6

In its February 28, 2020 termination decision, OWCP found that the April 1, 2019 job offer 

was suitable based on the work restrictions provided by Dr. Dinenberg in his November 30, 2018 

report. The Board finds that OWCP improperly relied on Dr. Dinenberg’s November 30, 2018 

report in determining that the modified position offered by the employing establishment 

constituted suitable employment.16

Dr. Dinenberg indicated that appellant could work with restrictions including no reaching 

above the right shoulder, and pushing, pulling, and lifting for no more than three hours and 20 

pounds. The Board notes that the position offered by the employing establishment listed 

appellant’s medical restrictions as being no reaching above the right shoulder, and lifting, pushing, 

and pulling three hours per day up to 20 pounds. However, the employing establishment listed the 

physical requirements of the position to include: sit/stand/walk; simple grasping; fine 

manipulation; pushing/pulling/lifting up to 20 pounds; and reaching/driving. The employing 

establishment did not specify what type of reaching appellant would be required to perform as part 

of the physical requirements of the position. This is important as Dr. Dinenberg indicated that 

appellant could not reach above the right shoulder. The physical requirements of the position did 

not specify that no reaching above the shoulder would be required. Thus, the Board finds it is 

unclear whether the duties described are within appellant’s medical restrictions, provided by

Dr. Dinenberg.

17

 The Board also notes that appellant’s treating physician, Dr. Lalli, completed a 

Form CA-17 on March 18, 2019 wherein he indicated appellant’s work restrictions, including 

lifting/carrying no more than five pounds continuously and intermittently during an eight-hour 

day. The job offer, however, would require lifting and carrying up to 20 pounds a day. OWCP 

did not specifically address Dr. Lalli’s restrictions. 

The Board has held that in order for OWCP to meet its burden of proof in a suitable work 

termination, the medical evidence should be clear and unequivocal that the claimant could perform 

the offered position.

18

 The issue of whether a claimant is able to perform the duties of the offered 

employment position is a medical one and must be resolved by probative medical evidence. While 

OWCP found that Dr. Dinenberg’s opinion contained sufficient medical rationale to support that 

appellant could perform the physical duties contained in the offered position,19 OWCP did not 

request that he review a job offer, which clearly explained the physical requirements of the offered 

position, and provide a reasoned opinion as to its suitability for appellant.

20

 The medical evidence 

of record, therefore, fails to establish that the offered position was suitable.

As a penalty provision, section 8106(c)(2) of FECA must be narrowly construed.21 Based 

on the evidence of record, the Board finds that OWCP improperly determined that the modified 

position offered to appellant constituted suitable work within his physical limitations and 

 

16 R.A., Docket No. 19-0065 (issued May 14, 2019).

17 M.E., Docket No. 18-0808 (issued December 7, 2018).

18 P.P., Docket No. 18-1232 (issued April 8, 2019).

19 See G.M., Docket No. 18-1236 (issued June 18, 2019).

20 See S.Y., Docket No. 17-1032 (issued November 21, 2017).

21 D.H., Docket No. 17-1014 (issued October 3, 2017).
7

capabilities. Consequently, OWCP has not met its burden of proof to justify the termination of his 

compensation benefits and entitlement to a schedule award.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award effective September 15, 2019.

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 15, 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