United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.C., Appellant

and

U.S. POSTAL SERVICE, FORDHAM POST 

OFFICE, Bronx, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-1275

Issued: March 21, 2023

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

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 August 20, 2021 appellant filed a timely appeal from an April 30, 2021 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. 

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective May 20, 2020, for refusing 

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

an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether appellant met her 

burden of proof to establish that her refusal of suitable work was justified. 

FACTUAL HISTORY

On May 2, 2012 appellant, then a 52-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she fractured her left shoulder when a door struck her and 

she fell to the floor. OWCP initially accepted her claim for left humerus closed fracture of the 

greater tuberosity. It subsequently expanded the acceptance of the claim to include left 

tenosynovitis and left shoulder impingement syndrome. 

On December 5, 2013 appellant underwent an OWCP-authorized arthroscopy of the left 

shoulder with debridement of the rotator cuff, glenoid labrum, bicep tendons, and hypertrophic 

synovium with acromioplasty.

On August 16, 2019 Dr. David Benatar, a Board-certified orthopedic surgeon acting as 

second opinion physician, opined that appellant’s work-related impingement syndrome and biceps 

tenosynovitis had not resolved. He further noted that she could not return to duty as a letter carrier 

and that this was a permanent circumstance. Dr. Benatar stated that appellant could work in a 

sedentary occupation for up to eight hours per day. He provided work restrictions of no lifting, 

pushing, and pulling more than 10 pounds; avoidance of carrying; no climbing on ladders; no 

reaching above the head with the left shoulder; and limited reaching in any direction with her left 

upper extremity. 

On December 10, 2019 the employing establishment offered appellant a limited-duty job 

as a modified city carrier. The duties of the modified position involved driving postal vehicles to 

shuttle carriers to and from their routes and to deliver Express Mail and packages under 10 pounds. 

The physical requirements of the modified assignment included: sitting and driving a postal 

vehicle for up to eight hours per day intermittently; standing, bending, and twisting for up to two 

hours per day intermittently; walking for up to four hours per day intermittently; lifting, carrying, 

pushing, and pulling up to 10 pounds for up to one hour per day intermittently; and reaching below 

the shoulder for up to six hours intermittently. Dr. Benatar’s work restrictions were summarized 

as including: lifting and pulling for up to one hour per day with a weight restriction of 10 pounds; 

sitting for up to eight hours per day; no reaching above the left shoulder; and a 10- to 15-minute 

break every two hours. Appellant refused the job offer.

On March 9, 2020 OWCP advised appellant that it found the December 10, 2019 job offer 

was suitable work within the work limitations provided by Dr. Benatar. It afforded her 30 days to 

accept the offered position or to provide valid reasons for refusal.

In a statement dated April 6, 2020, appellant explained that Dr. Benatar had recommended 

a limitation regarding reaching in any direction, even below shoulder height, and that, as such, the 

modified-duty assignment, which included driving in the performance of duty, was not suitable. 

On April 30, 2020 OWCP notified appellant that the job remained available to her and that 

she had 15 days to accept the offered modified position and report for work. It further notified her

that if she either did not provide a valid reason for accepting the job offer, or failed to report for 

work, it would terminate her compensation benefits and entitlement to a schedule award, pursuant 
3

to 5 U.S.C. § 8106(c)(2). OWCP noted that appellant’s reasons for refusing the offered position 

were not justified, noting that, while Dr. Benatar limited her to one hour of occasional pushing, 

pulling, and lifting of no more than 10 pounds with the left shoulder, appellant was not limited in 

the use of her right upper extremity. It stated that Dr. Benatar had not specifically limited her 

capacity to drive at work and that she was able to be seated up to eight hours per day. OWCP

further noted that appellant would only have to deliver express packages of less than 10 pounds 

for up to one hour per day. 

By decision dated May 20, 2020, OWCP terminated appellant’s wage-loss compensation 

and entitlement to schedule award benefits, effective that date, under 5 U.S.C. § 8106(c)(2) as she 

refused an offer of suitable work. It found that the job offer was suitable based upon her current 

work restrictions as provided by Dr. Benatar on August 16, 2019.

OWCP thereafter received a progress report dated May 20, 2020 from Dr. Eial Faierman, 

a Board-certified orthopedic surgeon, who diagnosed status post left shoulder arthropathy. It also 

received an attending physician’s report (Form CA-20) of the same date, in which he opined that 

appellant had been totally disabled since May 2, 2012. OWCP continued to receive progress 

reports from Dr. Faierman dated August 6 and December 1, 2020; and February 10 and 

April 14, 2021. In these reports, Dr. Faierman diagnosed status post left shoulder arthropathy, 

noted physical findings, and advised continuation of pain medications and home exercise. 

On February 23, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

May 20, 2020 termination decision.3

By decision dated April 30, 2021, OWCP denied modification. 

LEGAL PRECEDENT -- ISSUE 1

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

compensation benefits.4 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.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 

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

a suitable offer of employment.7

3

In an accompanying statement in support of reconsideration, counsel referred to “Exhibit A” as an October 1, 

2020 detailed narrative report from Dr.Faierman, not previously considered by OWCP. However, the Board notes 

that an October 1, 2020 medical report is not found in the case record.

4 T.M., Docket No. 18-1368 (issued February 21, 2019).

5

5 U.S.C. § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018).

6

Supra note 4.

7

Id.
4

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 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.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 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. 11 In a suitable work 

determination, OWCP must consider preexisting and subsequently-acquired medical conditions in 

evaluating an employee’s work capacity.12

ANALYSIS -- ISSUE 1

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

compensation and entitlement to schedule award benefits, effective May 20, 2020, for refusing an 

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

The evidence of record establishes that appellant was capable of performing the modified 

city carrier position offered by the employing establishment on March 8, 2018 and determined to 

be suitable by OWCP on March 9, 2020. The duties of the modified position involved driving 

postal vehicles to shuttle carriers to and from their routes, and to deliver Express Mail and packages 

under 10 pounds. The physical requirements of the modified assignment included: sitting and 

driving a postal vehicle for up to eight hours per day intermittently; standing, bending, and twisting 

for up to two hours per day intermittently; walking for up to four hours per day intermittently; 

lifting, carrying, pushing, and pulling up to 10 pounds for up to one hour per day intermittently; 

and reaching below the shoulder for up to six hours intermittently. Dr. Benatar’s work restrictions 

were summarized as including: lifting and pulling for up to one hour per day with a weight 

restriction of 10 pounds; sitting for up to eight hours per day; no reaching above the left shoulder; 

and a 10- to 15-minute break every two hours. The record does not indicate that the modified city 

carrier position was temporary in nature.13

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

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

11 M.A., Docket No. 18-1671 (issued June 13, 2019).

12 Id.

13 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).
5

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

carrier position, OWCP properly relied on the August 16, 2019 work restrictions provided by

Dr. Benatar, the OWCP referral physician. On that date, Dr. Benatar opined that she could work 

in a sedentary occupation for up to eight hours per day. He provided work restrictions of no lifting, 

pushing, and pulling more than 10 pounds; avoidance of carrying; no climbing on ladders; no 

reaching above the head with the left shoulder; and limited reaching in any direction with her left 

upper extremity. The Board finds that Dr. Benatar provided a well-rationalized opinion based on 

medical evidence regarding appellant’s work capabilities. Accordingly, OWCP properly relied on 

his opinion in terminating appellant’s wage-loss compensation and entitlement to schedule award 

benefits following her refusal of suitable work.14

The Board thus finds that OWCP has established that the modified city carrier position 

offered by the employing establishment was suitable. For these reasons, OWCP properly 

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

effective May 20, 2020, because she refused an offer of suitable work.15

LEGAL PRECEDENT -- ISSUE 2

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

who refuses to work to show that the refusal or failure to work was reasonable or justified. 16 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.17 

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish that her refusal 

of suitable work was justified. 

As noted above, after a termination or modification of benefits clearly warranted on the 

basis of the evidence at the time of the decision, the burden for reinstating compensation benefits 

shifts to appellant.18 The Board has explained that, if a claimant requests reconsideration of a 

suitable work termination, the issue remains whether appellant has established that he or she was 

unable to perform the duties of the offered position.19

Following OWCP’s May 20, 2020 termination decision, appellant requested 

reconsideration and submitted additional evidence. In a progress report dated May 20, 2020,

Dr. Faierman diagnosed status post left shoulder arthropathy. In an accompanying Form CA-20 

14 See V.R., Docket No. 20-1478(issued November 28, 2022); A.F.,Docket No. 16-0393 (issued June 24, 2016).

15 See V.R., id.; M.H., Docket No. 17-0210 (issued July 3, 2018).

16 20 C.F.R. § 10.517(a); see L.A., Docket No. 20-0946 (issued June25, 2021).

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

18 K.P., Docket No. 19-1917 (issued October 5, 2021); K.J., Docket No. 17-1971 (issued March 5, 2018); Talmadge 

Miller, 47 ECAB 673, 679 (1996);see also George Servetas, 43 ECAB 424 (1992).

19 See K.P., id.; W.L.,Docket No. 18-1192 (issued August 14, 2019); K.J.,id.
6

of the same date, he opined that appellant had been totally disabled since May 2, 2012. In progress 

reports dated August 6 and December 1, 2020, and February 10 and April 14, 2021, Dr. Faierman 

diagnosed status post left shoulder arthropathy, noted physical findings, and advised continuation 

of pain medications and home exercise. However, he failed to provide an opinion regarding 

whether appellant could perform the modified job duties.20

As the evidence submitted by appellant in support of her refusal of the modified city carrier 

position is insufficient to justify her refusal of the position, the Board finds that she has not met 

her burden of proof.

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 met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to schedule award benefits, effective May 20, 2020, for refusing an 

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

has not met her burden of proof to establish that her refusal of suitable work was justified.

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

20 See V.R., supra note 14; T.M.,Docket No. 18-1368 (issued February 21, 2019).
7

Issued: March 21, 2023

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