United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.G., Appellant

and

U.S. POSTAL SERVICE, PUNTA GORDA 

POST OFFICE, Punta Gorda, FL, Employer

__________________________________________

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Docket No. 21-1404

Issued: August 3, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 23, 2021 appellant filed a timely appeal from a May 10, 2021 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 May 10, 2021 decision, and on appeal, appellant submitted additional 

evidence. However, the Board’s Rules of Procedureprovides: “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 a ppeal. Id.
2

ISSUE

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

compensation and entitlement to a schedule award, effective May 6, 2021, as she refused an offer 

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

FACTUAL HISTORY

On April 29, 2019 appellant, then a 41-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on April 25, 2019 she sustained injury to her back when 

lifting a tray of mail to reload her truck while in the performance of duty. She stopped work on 

April 26, 2019. By decision dated November 14, 2019, OWCP accepted appellant’s claim for 

sprain of ligaments of the lumbar spine, and on March 10, 2020 expanded the acceptance of her 

claim to include an annular tear at L4-L5. It paid her wage-loss compensation on the supplemental 

rolls for disability from work commencing June 10, 2019 and commencing December 8, 2019 on 

the periodic rolls.

In an electromyogram/nerve conduction velocity study (EMG/NCV) dated March 4, 2020,

Dr. Paul H. Lento, a Board-certified physiatrist,found that appellant’s study was normal. He noted 

that there was no electrophysiological evidence of a peripheral neuropathy or left lumbar 

radiculopathy based upon his examination.

In a functional capacity evaluation (FCE) dated June 16, 2020, Eric Pecoraro, a physical 

therapist, tested appellant’s physical capacities and compared them to her occupation as a mail 

carrier. He concluded that appellant was unable to return to work at the defined strength capacity, 

as her maximum lifting capacity was 18 pounds.

On June 23, 2020 OWCP referred appellant to Dr. William Dinenberg, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine appellant’s work capacity.

In a report dated July 1, 2020, Dr. Ashot Kotcharian, a Board-certified physiatrist, 

examined appellant and reviewed her FCE. On physical examination, he observed that appellant 

used a walker to ambulate, limped, and had visible pain on movement. Appellant’s lumbar range 

of motion was limited and painful and appellant was unable to stay in one position for a long period 

of time due to pain. Dr. Kotcharian diagnosed left lumbar intervertebral disc disorder with 

radiculopathy and low back pain. He noted that her work restrictions should be as per the FCE.

In a second opinion report dated July 21, 2020, Dr. Dinenberg reviewed the medical record 

and a statement of accepted facts (SOAF). On physical examination he observed appellant 

ambulated with a walker, she had tenderness to palpation of the lumbar spine, diminished sensation 

in a stocking deformity of the left lower extremity, give way strength in all muscle groups tested 

on the left, lumbar flexion to 30 degrees, and inability to perform lumbar extension. Dr. Dinenberg

opined that appellant’s sprain of the lumbar spine had resolved, but that her annular tear had not 

resolved, and it was not anticipated that it would resolve. He stated that there were no objective 

findings on examination to explain the degree of appellant’s symptomology, as she had minimal 

degenerative findings on magnetic resonance imaging (MRI) studies and compute rized 

tomography (CT) scan studies with no neural impingement. Dr. Dinenberg noted that her 
3

EMG/NCV study was negative. He opined that given the absence of objective findings, no 

orthopedic restrictions would be given to prevent appellant from returning to full duty. 

Dr. Dinenberg stated that given appellant’s subjective complaints, it may be difficult for her to 

return to work even with restrictions, but that from an orthopedic standpoint, he could not find 

objective evidence that would give an etiology to the severity of appellant’s subjective complaints. 

He opined that appellant was able to participate in vocational rehabilitation.

On September 18, 2020 OWCP referred appellant to Dr. Bradford A. Slutsky, a Boardcertified orthopedic surgeon serving as an impartial medical examiner (IME) to resolve the conflict 

of medical opinion relative to her work restrictions between Dr. Kotcharian, appellant’s treating 

physician, and Dr. Dinenberg, the second opinion physician.

In an attending physician’s report (Form CA-20) dated September 21, 2020,

Dr. Kotcharian diagnosed a lumbar herniated disc. In an accompanying duty status report (Form 

CA-17), he recommended that appellant resume work on August 10, 2020, but that she was unable 

to perform regular work and that her work restrictions would be “as per [the] FCE.”

In a report dated November 4, 2020, Dr. Slutsky, the IME, reviewed a SOAF and the 

medical record. He reviewed her history of present illness and conducted a physical examination. 

Appellant presented using a walker with wheels and a slow gait. On physical examination of the 

lumbar spine, Dr. Slutsky observed no tenderness over the cervical or thoracic spine, diffuse 

tenderness to the upper lumbar spine on light touch, pain with any attempted range of motion of 

the lumbar spine, flexion to 25 degrees, extension to 15 degrees limited to severe pain, and rotation 

of about 15 degrees in either direction. A straight leg raise test produced severe lower back pain. 

Appellant had decreased sensation of the entire left leg and a glove and stocking distribution to 

pin prick. She had 3+/5 weakness of every muscle group in her left leg compared to her right leg. 

Dr. Slutsky opined that he could not explain her weakness and sensory deficit in the left lower 

extremity based on the diagnostic reports. He further noted that he would strongly encourage 

appellant to have a full neurological work-up for other etiologies of her symptoms unrelated to her 

accepted diagnoses. Based upon appellant’s accepted conditions of lumbosacral strain and tearing 

of the L4 annulus, Dr. Slutsky recommended work restrictions of lifting no more than 25 pounds 

and no prolonged bending or stooping. He further noted that appellant’s restrictions could not all 

be attributed to the accepted diagnoses, and again he related that he would recommend a full 

neurologic work-up. In an attached work capacity evaluation (Form OWCP-5c), Dr. Slutsky 

recommended that appellant was able to work an eight-hour day with restrictions. He 

recommended light-duty work with restrictions of a 15-minute break every 4 hours from 

bending/stooping, a 15-minute break every 2 hours from squatting and lifting no more than 25 

pounds.

On December 17, 2020 the employing establishment offered appellant a modified-duty 

position as a city carrier assistant 2. The position involved casing and pulling down mail for two 

hours per day, delivering city routes for six hours per day; delivering parcels within restrictions 

from six to eight hours per day, and other carrier tasks as assigned within restrictions for six to 

eight hours per day. The physical requirements of the modified assignment included no lifting 

over 25 pounds and no prolonged bending or stooping.
4

On December 22, 2020 appellant refused the modified assignment offer. She noted that 

she could not physically perform the duties of a carrier position.

By notice dated January 28, 2021, OWCP advised appellant that it had determined that she 

refused or failed to report to the offered position as a city carrier assistant. It informed her that it 

had reviewed the offered position and found it was suitable and in accordance with the medical 

restrictions provided by the IME, Dr. Slutsky, in his November 4, 2020 report. OWCP noted that 

appellant would get a 15-minute break twice a day along with a 30-minute lunch break. Pursuant 

to 5 U.S.C § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to 

provide adequate reasons for refusal. It informed her that an employee who refuses an offer of 

suitable work without cause is not entitled to wage-loss or schedule award compensation.

In reports dated February 10 and March 8, 2021, Dr. Kotcharian diagnosed lumbar 

intervertebral disc disorder with radiculopathy and low back pain. He recommended that appellant 

have her four-wheeled rolling walker to prevent falls and to reduce further injury, along with work 

restrictions per the FCE.

In an April 19, 2021 letter, OWCP advised appellant that her reasons for not accepting the 

position offered by the employing establishment were not valid. 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. Appellant did not respond.

By decision dated May 10, 2021, OWCP terminated appellant’s compensation and 

entitlement to a schedule award effective May 6, 2021, as she refused an offer of suitable work, 

pursuant to 5 U.S.C. § 8106(c)(2).

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.3 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.4 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.5 Section 8106(c)(2) will be narrowly construed 

3

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

197 (2005).

4

5 U.S.C. § 8106(c)(2); see also B.H., Docket No. 21-0366 (issued October 26, 2021); Geraldine Foster, 54 ECAB 

435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); RonaldM. Jones, 52 ECAB 190 (2000).
5

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.6

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. 7 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.8

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. 9 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.10 In a suitable work determination, 

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

employee’s work capacity.11

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or IME) who shall make an examination.12 

This is called an IME and OWCP will select a physician who is qualified in the appropriate 

specialty and who has no prior connection with the case.13 When there exists 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.14

6

S.D., Docket No. 18-1641 (issued April12, 2019); JoanF. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.517(a).

8

Id. at § 10.516.

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

10 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).

11 See G.R., Docket No. 16-0455 (issued December 13, 2016); RichardP. Cortes, 56 ECAB 200 (2004).

12 5 U.S.C. § 8123(a); R.R., Docket No. 19-0086 (issued February 10, 2021);see R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).

13 20 C.F.R. § 10.321;R.R., id.; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

14 Y.I., Docket No. 20-0263 (issued November 30, 2020); DarleneR. Kennedy, 57 ECAB 414 (2006); GloriaJ. 

Godfrey, 52 ECAB 486 (2001).
6

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, effective May 6, 2021, because she refused 

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

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

carrier assistant 2 position, OWCP relied upon the opinion of Dr. Slutsky, the IME.

In a November 4, 2020 report, Dr. Slutsky, serving as the IME, reviewed a SOAF and the 

medical record. He reviewed her history of present illness and conducted a physical examination. 

Appellant presented using a walker with wheels and a slow gait. On physical examination of the 

lumbar spine, the Dr. Slutsky observed no tenderness over the cervical or thoracic spine, diffuse 

tenderness to the upper lumbar spine on light touch, pain with any attempted range of motion of 

the lumbar spine, flexion to 25 degrees, extension to 15 degrees limited to severe pain, and ro tation 

of about 15 degrees in either direction. A straight leg raise test produced severe lower back pain. 

Appellant had decreased sensation of the entire left leg and a glove and stocking distribution to 

pin prick. She had 3+/5 weakness of every muscle group in her left leg compared to her right leg. 

Dr. Slutsky opined that he could not explain her weakness and sensory deficit in the left lower 

extremity. Based upon appellant’s accepted conditions of lumbosacral strain and tearing of the L4 

annulus, Dr. Slutsky recommended that appellant work an eight-hour day with restrictions. He 

recommended light-duty work with restrictions of a 15-minute break every 4 hours from 

bending/stooping, a 15-minute break every 2 hours from squatting and lifting no more than 25 

pounds. While Dr. Slutsky based appellant’s work restrictions on her accepted conditions, all 

medical conditions, whether work related or not, must be considered in assessing the suitability of 

an offered position.15

Consequently, the Board finds that there remains an unresolved conflict in the medical 

opinion evidence with respect to the termination. Because OWCP relied on the opinion of

Dr. Slutsky to terminate appellant’s wage-loss compensation medical benefits and entitlement to 

a schedule award, effective May 6, 2021, without having resolved the existing conflict in the 

medical opinion evidence, OWCP failed to meet its burden of proof to terminate appellant’s wageloss compensation benefits and entitlement to a schedule award pursuant to 5 U.S.C. § 8106(c)(2).

The Board finds that OWCP improperly terminated appellant’s entitlement to wage-loss 

and schedule award compensation effective May 6, 2021 because she refused an offer of suitable 

work.16

15 C.M., Docket No. 19-1160 (issued January 10, 2020).

16 See generally MaggieL. Moore, 42 ECAB 484 (1991),reaff’d on recon., 43 ECAB 818 (1992).
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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 6, 2021, as she refused an 

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

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: August 3, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board