United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.S., Appellant

and

U.S. POSTAL SERVICE, DEL MAR POST 

OFFICE, Del Mar, CA, Employer

__________________________________________

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Docket No. 21-0302

Issued: April 13, 2022

Appearances: Case Submitted on the Record

Wandra Evans, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 21, 2020 appellant, through counsel, filed a timely appeal from a 

December 3, 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 May 28, 2020, because she refused 

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

FACTUAL HISTORY

On March 4, 2019 appellant, then a 48-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained hand and elbow injuries due to factors of her federal 

employment. In a narrative statement dated February 13, 2019, she explained that she had worked 

for the employing establishment as a mail carrier for the past 41⁄2 years, performing duties, which 

required repetitive gripping and grasping of mail, as well as lifting trays, bundles of mail, and 

parcels up to 70 pounds, 8 to 10 hours per day. OWCP accepted the claim for bilateral carpal 

tunnel syndrome, right ulnar nerve forearm injury, and bilateral elbow medial and lateral 

epicondylitis. It paid appellant wage-loss compensation on the supplemental rolls as of May 11, 

2019, and on the periodic rolls as of February 2, 2020.

On November 20, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. William P. Curran, Jr., an 

orthopedic surgeon, for a second opinion evaluation regarding the status of appellant’s accepted 

work-related conditions.3

In a November 21, 2019 report, Dr. Karl T. Nguyen, a Board-certified plastic surgeon and 

treating physician, noted that appellant’s symptoms of ulnar nerve entrapment at the medial right 

elbow resolved after several months of conservative management. He noted that the posterior right 

elbow pain persisted with any lifting. Dr. Nguyen indicated that, since the entrapment symptoms 

had resolved, surgery to relieve the ulnar nerve at the right elbow was no longer necessary. He 

explained that the persistent posterior right elbow pain may be due to epicondylitis versus distal 

tricep tendinitis, and these two diagnoses were not amendable to surgery. Dr. Nguyen 

recommended conservative management with physical therapy, rest, cool compresses, and 

nonsteroidal anti-inflammatory drugs (NSAIDs), and also advised that steroid injections would be 

better choices for the nonoperative diagnoses of epicondylitis and tendinitis. He noted that a

second opinion from an elbow orthopedic specialist could provide further clarity regarding 

appellant’s condition.

In a December 9, 2019 report, Dr. Sidney H. Levine, an orthopedic surgeon and appellant’s 

treating physician, diagnosed upper extremity overuse syndrome and bilateral elbow medial 

epicondylitis. He opined that appellant became symptomatic as a result of repetitive trauma 

associated with her work activities. Dr. Levine recommended physical therapy and ultrasoundguided injection of the right elbow. He noted that, if this produced positive results, she should 

also be provided this treatment for the left elbow.

3 OWCP requested that the second opinion physician confirm the diagnosed conditions, clarify the extent and 

duration of disability, and review appellant’streatment plan.
3

In a report dated January 6, 2020, Dr. Curran, OWCP’s second opinion physician, noted 

appellant’s history of injury and treatment. He examined appellant and found palpable tenderness 

over the right lateral epicondyle and common extensor tendon, and palpable tenderness of the left 

lateral epicondyle and common extensor tendon as well as the left forearm, with no swelling or 

deformity of the either elbow. Dr. Curran provided range of motion (ROM) measurements for the 

elbows and wrists. He noted that a February 15, 2019 magnetic resonance imaging (MRI) scan of 

appellant’s wrists and elbows revealed bilateral cubital syndrome; bilateral lateral epicondylitis; 

tear of the right common extensor tendon of right elbow; bilateral carpal tunnel syndrome; tears 

of the bilateral scapholunate ligaments; and bilateral osteoarthritis of the wrists. Dr. Curran 

indicated that periods of temporary total disability commenced March 14, 2019 and ceased on 

January 6, 2020. He found no preexisting disability. Dr. Curran explained that, while appellant 

had subjective complaints of residuals from her work-related injuries, his physical examination 

failed to yield any objective findings to substantiate her current subjective complaints, noting that 

a positive Phalen’s test was subjective and not objective.

Dr. Curran opined that authorization for repair/revision of the wrist joint/bursa was not 

recommended. He recommended home exercises; bilateral wrist and hand splints, as needed; and 

use of over-the-counter anti-inflammatory medications and analgesics. Dr. Curran found that 

appellant had reached maximum medical improvement (MMI) and was capable of returning to 

work with restrictions. He completed a work capacity evaluation (Form OWCP-5c), dated 

January 7, 2020,and provided permanent sedentary work restrictions including: no more than four

hours of twisting of the wrists; no more than six hours of repetitive movements of the elbows; no 

more than four hours of pushing, pulling or lifting of no more than five pounds; no climbing; and 

five-minute breaks every hour.

In a January 16, 2020 report, Dr. Levine noted that he had reexamined appellant. He 

related that, when she drove more than 20 minutes, she developed numbness in her fingers. 

Dr. Levine examined the upper extremities and found tenderness over the ulnar nerve in the cubital 

tunnel on the right, tenderness over the medial and lateral epicondyles on the right, trace tenderness 

over the lateral epicondyle on the left, and pain with wrist and finger extension against resistance 

on the right. He provided a detailed physical examination, which noted a positive Tinel sign, 

negative percussion over the ulnar nerves in the cubital tunnels bilaterally, no pain associated with 

wrist extension against resistance bilaterally, no evidence of volar ganglion over the right wrist,

full and equal ROM of both wrists, and sensation intact throughout the upper extremities. 

Dr. Levine provided Jamar grip findings, girth findings, and results of x-rays for both extremities. 

He noted that there was no evidence of fractures, soft tissue calcification, or bony abnormalities,

and a normal x-ray examination of the elbows and wrists. Dr. Levine diagnosed overuse syndrome, 

upper extremities, and medial epicondylitis, right and left elbow. He recommended that appellant 

continue her physical therapy and be provided with the opportunity to undergo ultrasound guided 

injection of the right elbow. Dr. Levine noted that, if she had good results, then she should be 

provided the opportunity to undergo a similar injection in the left elbow. He opined that there was 

a reasonable medical certainty that appellant became symptomatic due to repetitive trauma 

associated with her work activities. Dr. Levine noted that appellant was temporarily totally 

disabled from work. He enclosed an attending physician’s report (Form CA-20) dated 

December 16, 2019, which noted that appellant would be totally disabled from work through 

January 15, 2020.
4

In letters dated January 17 and 27, 2020, OWCP requested that Dr. Levine review

Dr. Curran’s report and provide an opinion regarding appellant’s conditions.

In a February 4, 2020 report, Dr. Levine noted his review of Dr. Curran’s report and his 

reexamination of appellant. He noted that she had tenderness over the superior aspect of the lateral 

epicondyle of the right elbow, as well as tenderness over the medial epicondyle. Dr. Levine again 

recommended ultrasound-guided injection for the medial epicondylitis, initially as it related to the 

right elbow, and if there was a positive response, a similar injection to the lateral epicondyle. He

opined that, “[a]t this time she is disabled from carrying out her regular work activities.” In a 

January 16, 2020 Form CA-20, Dr. Levine noted that appellant was still awaiting an injection to 

the right elbow and placed her off work for three months. In a February 4, 2020 Form CA-20, he

related that appellant was temporarily totally disabled from work as she was still awaiting a right 

elbow injection.

In a letter dated February 26, 2020, OWCP requested that the employing establishment 

offer appellant a job within Dr. Curran’s restrictions.

On March 5, 2020 the employing establishment offered appellant a modified city carrier 

position. The duties of the position included: up to one hour of case routing; up to 2 hours of 

delivering route on the curb side; and up to 1 hour of casing down route (as needed). The physical 

requirements of the position involved up to 4 hours of lifting, pushing and pulling (5 pounds);

simple grasping and fine manipulation; up to 4 hours of sitting (intermittently), standing 

(intermittently), and reaching above the shoulder; up to 2 hours of bending, stooping, or twisting, 

(intermittently); up to 2 hours of walking; up to 3 hours of driving; and up to 30 minutes of 

kneeling. The regular work hours for the position were 7:50 a.m. to 11:50 a.m., with scheduled 

days off on Sunday, rotating. It was noted that appellant could manage her duties to work safely 

within her restrictions, would be given assistance with items over her weight limitations, and 

would take a 10-minute break every hour and wear wrist splints as needed.

Appellant refused the job offer on March 5, 2020, based upon her doctor’s restrictions.

On March 9, 2020 OWCP contacted the employing establishment and confirmed that the 

job remained available and that it was “not a temporary offer.”

By letters dated March 11 and 16, 2020, OWCP advised appellant that the modified city 

carrier position offered on March 5, 2020 was suitable and in accordance with the medical 

restrictions provided by Dr. Curran in his January 7, 2020 report. It found the weight of the 

medical opinion evidence rested with Dr. Curran regarding appellant’s work restrictions. OWCP

notified appellant that, if she failed to report to work or failed to demonstrate that the failure was 

justified, her compensation for wage loss or entitlement to a schedule award would be terminated

pursuant to 5 U.S.C. § 8106(c)(2). It afforded her 30 days to respond.

On March 13, 2020 the employing establishment advised appellant that the most recent 

medical report dated January 7, 2020 set forth restrictions of lifting, pushing, and pulling, up to 

five pounds, 4 hours per day; repetitive movements of the wrists, up to 4 hours per day; elbows up 

to 6 hours per day; twisting up to 4 hours per day; no climbing; and 10-minute breaks every hour. 

The employing establishment noted that she was instructed not to work outside her medical 
5

restrictions and must take the required breaks. Appellant was further advised to notify the 

employing establishment if this was not her current medical report, or if other medical evidence 

should be considered with regard to her limited-duty assignment.

A March 5, 2020 priority for assignment worksheet from the employing establishment 

noted that they were only able to find three hours of work for appellant.

A March 5, 2020 chart note from Dr. Levine indicated that appellant had persistent pain in 

both her hands, more pronounced in the left hand, and pain within her right elbow. Dr. Levine

related that she also complained of pain in her hands if she drove for more than 20 minutes and 

that she developed tingling and numbness in all of her fingers. He examined appellant’s right 

elbow and noted 3+tenderness in the medial epicondyle, pain with wrist flexion against resistance, 

2+ tenderness over triceps insertion, full ROM with full extension to 135 degrees of flexion; 

sensation intact to pinwheel and to touch, and Tinel’s sign negative to percussion median nerve 

with the carpal tunnel. Dr. Levine opined that she remained disabled from work. He reiterated 

that appellant was awaiting ultrasound-guided steroid injection in the region of the medial 

epicondyle of her right elbow and he completed a Form CA-20 noting the same.

In a March 30, 2020 statement, appellant indicated that she could not accept the job offer 

because it involved doing “the same thing that caused my injuries in the 1st place.” She indicated 

that she had to limit her driving to under 30 minutes, she could not hold anything in her right arm 

for more than 60 seconds before it locked up, her grasp in both hands was deteriorating, and she 

dropped items frequently. Appellant also noted that Dr. Curran did not mention grasping in his 

report and his handwritten notes were unreadable. She related that her physician had taken her off 

work pending an injection.

In an April 10, 2020 report, Dr. Levine noted that appellant persisted with right elbow and 

right upper extremity pain and that she was awaiting a steroid injection in the right elbow. He 

explained that she had difficulty driving for more than 20 minutes and, therefore, her driving 

should be restricted, followed by a 10-minute break from driving. Dr. Levine also indicated that 

appellant should have a lifting limit of five pounds and no repetitive gripping or power gripping 

or repetitive pushing or pulling.

On April 24, 2020 OWCP confirmed with the employing establishment that the job offer 

remained available.

By letter dated April 27, 2020, OWCP notified appellant that her reasons for refusing the 

position were not valid and that the medical evidence submitted was insufficient to support refusal,

as it did not address whether she was capable of performing the offered position. It provided her 

15 days to accept the position or have her entitlement to wage-loss compensation and schedule 

award benefits terminated. OWCP further advised appellant that the offered position remained 

available.

Dr. Levine completed a May 8, 2020 Form CA-20 and reiterated that appellant could not 

perform repeated gripping, grasping, pushing, pulling, and no power gripping. He noted that she

was awaiting an injection to the right elbow.
6

On May 28, 2020 OWCP confirmed with the employing establishment that the limitedduty position remained available, and that appellant had not accepted the position or returned to 

work.

By decision May 28, 2020, OWCP terminated appellant’s wage-loss compensation and 

entitlement to a schedule award, effective May 28, 2020, as she had refused an offer of suitable 

work pursuant to 5 U.S.C. § 8106(c)(2). It noted that she had not accepted the offered position or 

resumed work following its 15-day letter. OWCP determined that the opinion of Dr. Curran, as 

provided in his January 7, 2020 report, constituted the weight of the evidence and established that 

appellant could perform the duties of the offered position. It further noted that Dr. Levine based 

his medical opinion upon appellant’s subjective complaints of pain and, as a result, had failed to 

provide a medical opinion on the issue of disability. OWCP determined that appellant’sjob refusal 

and failure to report to the offered position were not justified.

On June 8, 2020 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

September 18, 2020.

OWCP subsequently received a copy of the May 8, 2020 Form CA-20 from Dr. Levine, 

who restricted appellant to no repeated grasping, pinching, pulling or power gripping. Dr. Levine

advised that she was awaiting an injection for the right elbow. He also submitted a June 19, 2020 

Form CA-20, again noting that she was awaiting an injection for the right elbow.

In a June 19, 2020 progress note, Dr. Levine noted that he examined appellant. He noted 

that she was not working, utilized over-the-counter pain medication, and continued to have pain 

in the right elbow that increased with any attempts to grip, push, or pull. Dr. Levine indicated that 

appellant continued to wait for an ultrasound steroid injection to the right elbow for her persistent 

medial epicondylitis. He noted that she could carry out modified work activity, avoiding any 

repetitive gripping, power gripping, pushing, and/or pulling.

In a September 11, 2020 chart note,Dr. Levine noted that he examined appellant. He noted 

that she indicated that she had retired and was awaiting previously-recommended medical 

treatment to include a steroid injection to the medial aspect of her right elbow. Dr. Levine 

indicated that appellant had pain with any activities that required pushing, pulling, or gripping, and 

limited motion of her elbow. He opined that she was not capable of carrying out the work activities 

of a mail carrier, which requires activities of repetitive pushing, pulling, gripping, carrying/sorting 

mail, and carrying trays weighing up to 50 pounds. Should appellant attempt to return to her 

former type of work activities, this would only lead to further disability and the potential need for 

surgical treatment. Dr. Levine also completed a Form CA-20, noting appellant was still awaiting 

treatment for her right elbow.

By decision dated December 3, 2020, OWCP’s hearing representative affirmed the 

May 28, 2020 decision.
7

LEGAL PRECEDENT

Under FECA,4 once OWCP accepts a claim and pays compensation, it has the burden of 

proof to justify termination or modification of compensation benefits. 5 Section 8106(c)(2) of 

FECA provides that a partially disabled employee who refuses or neglects to work after su itable 

work is offered to, procured by or secured for the employee is not entitled to compensation.6

Section 10.517 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 proof to show that such refusal or failure to work was reasonable or justified. 7 

Pursuant to section 10.516, the employee shall be provided with the opportunity to make such 

showing before a determination is made with respect to termination of entitlement to 

compensation.8

To justify termination of compensation, OWCP must show that the work offered was 

suitable, that appellant was informed of the consequences of his or her refusal to accept such 

employment, and that he or she was allowed a reasonable period to accept or reject the position 

and submit evidence or provide reasons why the position is not suitable. 9 Section 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. 10

Section 8123(a) of FECA which provides that, 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 (known as a referee physician or impartial medical 

specialist) who shall make an examination.11 This is called a referee examination and OWCP will 

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.12 When there exists opposing reports of virtually equal weight and rationale and the 

4

Supra note 2.

5 B.H., Docket No. 21-0366 (issued October 26, 2021); M.S., Docket No. 20-0676 (issued May 6, 2021); D.M., 

Docket No. 19-0686 (issued November 13, 2019); L.L., Docket No. 17-1247 (issued April12, 2018); Mohamed Yunis, 

42 ECAB 325, 334 (1991).

6

Supra note 2 at § 8106(c)(2); see also M.S., id.; M.J., Docket No. 18-0799 (issued December 3, 2018); Geraldine 

Foster, 54 ECAB 435 (2003).

7

20 C.F.R. § 10.517.

8

Id. at § 10.516; see M.S., supra note 5; Ronald M. Jones, 52 ECAB 406 (2003).

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

See also M.S., id.; R.A., Docket No. 19-0065 (issued May 14, 2019).

10 M.S., id.; C.M., Docket No. 19-1160 (issued January 10, 2020); see also JoanF. Burke, 54 ECAB 406 (2003).

11 5 U.S.C. § 8123(a); E.L., Docket No. 20-0944 (issued August 30, 2021); A.E., Docket No. 18-0891 (issued

January 22, 2019); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); 

M.S., 58 ECAB 328 (2007).

12 20 C.F.R. § 10.321; I.L., Docket No. 18-1399 (issued April1, 2019); R.C., 58 ECAB 238 (2006).
8

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.13

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits and entitlement to a schedule award, effective May 28, 2020, for 

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

OWCP referred appellant for a second opinion evaluation with Dr. Curran. In his report 

dated January 6, 2020, Dr. Curran opined that appellant could return to modified work with a 

number of restrictions.

The employing establishment thereafter on March 5, 2020 offered appellant a modified 

city carrier position, which was purportedly within the restrictions provided by Dr. Curran. The 

duties of the position required up to one hour of case routing; up to two hours of delivering route 

on the curb side; and up to one hour of casing down route. The physical requirements of the 

position involved up to four hours of lifting, pushing and pulling (five pounds), simple grasping 

and fine manipulation; up to four hours of sitting (intermittently); standing (intermittently); and 

reaching above the shoulder; up to 2 hours bending, stooping, twisting, (intermittently); walking 

up to 2 hours; up to 3 hours of driving, and up to 30 minutes of kneeling. 

In a February 4, 2020 report, appellant’s treating physician, Dr. Levine, opined that 

appellant was disabled from carrying out her regular work activities. In a CA-20 of even date, he 

related that she was temporarily totally disabled from work. In his reports dated April 10 and 

May 8, 2020, Dr. Levine related that appellant could perform modified work, however that she 

could not perform repetitive gripping or power gripping or repetitive pushing or pulling. Since the 

modified job position included duties which would require repetitive gripping, pulling and 

pushing, the Board finds that there is a conflict in the medical opinion evidence regarding 

appellant’s ability to perform the duties of the offered position.

Before terminating compensation, OWCP should have resolved the conflict in the medical 

opinion evidence by referring appellant to a third physician serving as an impartial medical 

specialist.

14

 As it failed to resolve the conflict of medical opinion evidence, the Board finds that 

OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation and 

entitlement to a schedule award, effective May 28, 2020, for refusal of an offer of suitable work 

pursuant to 5 U.S.C. § 8106(c)(2).

13 V.S., Docket No. 19-1792 (issued August4, 2020); A.E., supra note 13; Darlene R. Kennedy, 57 ECAB 414 

(2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

14 K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued June 4, 2018).
9

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 May 28, 2020.

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 13, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board