United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bayonne, NJ, Employer

__________________________________________

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Docket No. 21-0366

Issued: October 26, 2021

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 8, 2021 appellant, through counsel, filed a timely appeal from an August 25, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 The Board notes that appellant also requested an appeal from a June 23, 2020 overpayment determination. 

However, as more than 180 days has elapsed since the merit decision dated June 23, 2020, to the filing of this appeal,

pursuant to the 5 U.S.C. § 8101 et seq. and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review

the June 23, 2020 overpayment determination.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

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 August 26, 2020, because she refused 

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

FACTUAL HISTORY

On December 14, 2009 appellant, then a 59-year-old mail processing clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she sustained head and neck injuries 

when a box fell off the top of a postal containerstriking the back of her head and her right shoulder. 

She stopped work on the date of injury. OWCP accepted the claim for right shoulder contusion 

and right cervical strain/sprain. It authorized anterior cervical discectomy and fusion at C3-4, C4-

5, C5-6, and C6-7, which was performed on April 1, 2010 and additional spinal fusion, which was 

performed on September 26, 2011. OWCP paid her wage-loss compensation on the supplemental 

rolls, effective January 29, 2010, and on the periodic rolls, effective March 14, 2010. 

On January 20, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Lynne Carmickle a Boardcertified neurologist, for a second opinion evaluation regarding the status of appellant’s accepted 

right shoulder and cervical conditions and ability to work. In a February 7, 2020 report,

Dr. Carmickle reviewed the SOAF and the medical record, notingthat the claim had been accepted 

for right shoulder contusion and cervical strain/sprain. A physical examination revealed no pain 

on palpation of the cervical elements, lumbar flexibility was within normal limits, no lumbar spasm 

or tenderness on palpation, negative bilateral straight leg raising. A sensory examination was 

normal. With respect to whether appellant’s headaches were employment related, Dr. Carmickle

was unable to offer an opinion on causal relationship as she did not have any records prior to 2016 

pertaining to treatment for appellant’s headaches. She opined that appellant’s subjective 

complaints were not supported by the objective evidence and her disability was due to a nonworkrelated lumbar condition. Dr. Carmickle found appellant was not capable of performing her dateof-injury job, but was capable of working within restrictions. She determined that appellant was 

capable of working eight hours per day in a sedentary position and that she had reached maximum 

medical improvement. In an attached work capacity evaluation (Form OWCP-5c), Dr. Carmickle 

detailed work restrictions, which allowed up to six hours of sitting, up to four hours of walking 

and standing, up to two hours of reaching, no reaching above the shoulder, twisting, or 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that, following the August 25, 2020 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.
3

bending/stooping, up to two hours of pushing, pulling, and lifting up to 10 pounds, a 10-minute 

break four times per day; and a 20-minute break twice a day.

On May 7, 2020 the employing establishment offered appellant a modified mail processing 

clerk position. The duties of the position included two to three hours of manual letters/flats, three 

to four hours of scanning packages, one and one-half hours of mark-ups, and one and one-half 

hours of “CFS/RFS.” The physical requirements of the position involved three to six hours of 

sitting, three to four hours of standing, two hours of lifting up to 10 pounds, and two hours of 

reaching. The regular work hours were 5:00 a.m. to 1:30 p.m., with scheduled days off on Saturday 

and Sunday. The position was located at the Bayonne Post Office. The position description also 

noted Dr. Carmickle’s restrictions and indicated that it was the responsibility of the employee and 

the employing establishment to ensure that the physician’s restrictions were not exceeded. The 

employing establishment also noted that the job offer was permanent and would remain available 

until medical documentation compelled a change. 

Appellant refused the job offer on May 11, 2020, asserting that she could not perform any 

of the duties of the position. 

OWCP thereafter received an April 2, 2020 report from Dr. Ravi Tikoo, a Board-certified 

neurologist, detailing medical history and treatment and providing examination find ings. 

Appellant stated that her pain was the same and she continued to have headaches and migraines.

Dr. Tikoo reported appellant’s headaches and migraines were responding to treatment as they were 

less severe.

In a June 3, 2020 addendum, Dr. Carmickle detailed the additional evidence provided by 

OWCP pertaining to treatment prior to 2016 for appellant’s headaches. Based on the new evidence 

provided by OWCP, she concluded that appellant’s headache and complaints of cervical pain were 

causally related to the accepted work accident. Dr. Carmickle indicated that her opinion regarding 

the lack of objective evidence supporting appellant’s subjective complaints was unchanged. 

According to Dr. Carmickle, appellant’s nonwork-related lumbar condition precluded a return to 

her date-of-injury job. She concluded that appellant was capable of performing sedentary work 

and her restrictions had been provided in her prior Form OWCP-5c.

On June 10 and 12, 2020 the employing establishment advised that the May 7, 2020 job 

offer remained available to appellant as long as her restrictions remained unchanged. 

On June 15, 2020 OWCP received a March 23, 2020 report from Dr. Hiral Patel, a Boardcertified physiatrist, noting appellant’s December 4, 2009 employment injury and medical history. 

Dr. Patel diagnosed cervical disc displacement, lumbar intervertebral disc displacement, 

cervicalgia, right hip trochanteric bursitis, postlaminectomy syndrome, right hip and right shoulder 

pain, headache, cervical spine fusion, and lumbar and cervical spondylosis without radiculopathy 

or myelopathy.

By letter dated June 16, 2020, OWCP advised appellant that the position offered on May 7, 

2020 was suitable in accordance with the medical limitations provided by Dr. Carmickle in her 

February 7, 2020 report and June 3, 2020 addendum. It noted the April 2, 2020 report from

Dr. Tikoo offered no opinion regarding whether appellant was capable of work and was based on 
4

appellant’s subjective complaints. Thus, OWCPfound the weight of the medical opinion evidence 

rested with Dr. Carmickle regarding appellant’s work restrictions. It notified her that, if she failed 

to report to work or failed to demonstrate that the failure was justified, pursuant to 5 U.S.C. 

§ 8106(c)(2), her right to compensation for wage loss or a schedule award would be terminated. 

OWCP afforded appellant 30 days to respond.

In a June 19, 2020 report by Dr. Giovanni Ramundo, a Board-certified anesthesiologist 

specializing in pain medicine, noted appellant’s December 4, 2009 employment injury and medical 

history. Dr. Ramundo diagnosed cervical disc displacement, lumbar intervertebral disc 

displacement, cervicalgia, right hip trochanteric bursitis, postlaminectomy syndrome, right hip and 

right shoulder pain, headache, cervical spine fusion, and lumbar and cervical spondylosis without 

radiculopathy or myelopathy. 

In a June 29, 2020 letter, appellant again stated that she was unable to perform any of the 

duties listed in the offered position due to her pain and complications from her surgery and injury. 

She stated that her condition and pain would be aggravated by grasping, sitting, trying to lift 

objects, and standing. In addition, appellant stated her balance was unstable after standing or 

sitting for short periods of time.

A June 29, 2020 report by Dr. Tikoo noted that appellant was seen that day for a 

neurological examination. The report repeated the findings outlined in his prior report. 

On July 17, 2020 the employing establishment advised that the offered position remained

available. 

On July 23, 2020 OWCP received a May 7, 2020 report from Dr. Tikoo, noting that 

appellant was seen for a neurological evaluation that day and was unchanged from his May 2, 2020 

report. 

By letter dated July 23, 2020, OWCP notified appellant that her reasons for refusing the 

position was not valid and the medical evidence submitted insufficient to support refusal as it did 

not address whether appellant was capable of performing the offer position. It provided her 15 

days to accept the position or have her entitlement to wage-loss compensation benefits terminated.

OWCP advised appellant that the offered position remained available.

By decision dated August 25, 2020, OWCP terminated appellant’s wage-loss 

compensation and entitlement to a schedule award, effective August 26, 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. Carmickle as provided in her February 7, 2020 report and June 3, 2020 addendum 

constituted the weight of the evidence and established that appellant could perform the duties of 

the offered position.
5

LEGAL PRECEDENT

Under FECA,5 once OWCP accepts a claim and pays compensation, it has the burden of 

proof to justify termination or modification of compensation benefits. 6 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.7

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. 8 

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.9

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.10 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.11

ANALYSIS

The Board finds that OWCP met it burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective October 3, 2019, because she refused

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

On May 7, 2011 the employing establishment offered appellant a position as a modified 

mail processing clerk position and on August 25, 2020 OWCP determined that the position was 

suitable. The duties of the position included two to three hours of manual letters/flats, three to 

four hours of scanning packages, one and one-half hours of mark ups, and one and one-half hours 

5

Supra note 3.

6 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).

7

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

Foster, 54 ECAB 435 (2003).

8

20 C.F.R. § 10.517.

9

Id. at § 10.516; see M.S., supra note 6; Ronald M. Jones, 52 ECAB 406 (2003).

10 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).

11 M.S., id.; C.M., Docket No. 19-1160 (issued January10, 2020); see also JoanF. Burke, 54 ECAB 406 (2003).
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of “CFS/RFS.” The physical requirements of the position included three to six hours of sitting, 

three to four hours of standing, two hours of lifting up to 10 pounds, and two hours of reaching.

The Board finds that the May 11, 2020 job offer was within the restrictions as prescribed 

by the second opinion physician, Dr. Carmickle. In a June 7, 2020 addendum, Dr. Carmickle 

determined that appellant’s headache and cervical pain were causally related to her accepted 

December 14, 2009 employment injury and that work restrictions were unchanged from her prior 

report. She reported that appellant could perform sedentary work including up to six hours of 

sitting, up to four hours of walking and standing, up to two hours of reaching, no reaching above 

the shoulder, twisting, or bending/stooping, two hours of pushing, pulling and lifting up to 10 

pounds, a 10-minute break four times per day, and a 20-minute break twice a day. Dr. Carmickle

attributed the work restrictions to appellant’s nonwork-related lumbar condition. The Board notes 

that the actual duties of the modified mail processing clerk position were within the restrictions 

found by Dr. Carmickle in her February 7, 2020 report and June 3, 2020 addendum.

The Board finds that OWCP properly accorded the weight of medical opinion to the reports 

of Dr. Carmickle who opined that, while appellant required work restrictions, she was capable of 

returning to sedentary work. Dr. Carmickle based her opinion on a proper factual and medical 

history. She also provided appropriate physical examination findings. OWCP properly relied on 

her reports to determine that the offered position was suitable.12

Subsequent to the suitable work offer, appellant submitted a number of medical reports 

from Drs. Ramundo and Tikoo. Neither physician, however, addressed the relevant issue of 

whether appellant was capable of performing the duties of the offered position. Therefore, their

opinions are of little probative value.

13

The Board finds that OWCP properly followed its established procedures prior to the 

termination of appellant’s compensation pursuant to 5 U.S.C. § 8106(c)(2), 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. 14

For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss 

compensation and entitlement to a schedule award, effective August 26, 2020, because she refused 

an offer of suitable work.15

12 M.S., id.; S.V., Docket No. 19-0349 (issued October 18, 2019).

13 M.S., id.; R.R., Docket No. 19-0173 (issued May 2, 2019).

14 K.S., Docket No. 19-1650 (issued April28, 2020); C.H., Docket No. 17-0938 (issued November 27, 2017).

15 See M.H., Docket No. 17-0210 (issued July 3, 2018).
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CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective August 25, 2020, because she refused 

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

ORDER

IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 26, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board