United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.I., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Harrisburg, PA, Employer

__________________________________________

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Docket No. 21-0565

Issued: July 20, 2022

Appearances: Case Submitted on the Record

Ronald Thomas Tomasko, Esq., for the appellant1

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 December 8, 2020 appellant, through counsel, filed a timely appeal from a June 15, 

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.3

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.

3 The Board notes that,following the June 15, 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.
2

ISSUE

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

compensation and entitlement to a schedule award, effective May 26, 2019, because he refused an 

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

FACTUAL HISTORY

On June 20, 2007 appellant, then a 52-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 19, 2007 he injured his left knee when his left foot slipped off 

a deteriorating concrete step while in the performance of duty. He did not stop work. OWCP 

accepted the claim for left knee lateral meniscus tear and left chondromalacia patellae. It

authorized left knee arthroscopic surgery, which was performed on October 15, 2007. Appellant 

returned to full-duty modified work on January 12, 2008. OWCP paid him compensation on the 

supplemental rolls for intermittent total disability commencing October 5, 2007 and on the 

periodic rolls for total disability commencing April 7, 2013.4 

In a July 10, 2013 work capacity evaluation (Form OWCP-5c), Dr. Richard H. Hallock, a 

Board-certified orthopedic surgeon, provided permanent work restrictions for full-time work. He

noted that appellant was taking medication which affected his concentration, attention to tasks and 

alertness, and which may impact his driving ability.

On November 13, 2014 the employing establishment offered appellant a modified clerk 

position based on the work restrictions provided by Dr. Hallock. Appellant refused the offered 

position on November 21, 2014stating that he was unable to perform the job due to medical issues. 

On December 8, 2014 OWCP referred appellant, together with the medical record, 

statement of accepted facts (SOAF), and list of questions, to Dr. Robert F. Draper, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine appellant’s work 

capacity. In a report dated January 13, 2015, Dr. Draper opined that appellant was capable of 

working eight hours per day with restrictions. In an attached Form OWCP-5c, he listed permanent 

restrictions which included up to two hours of walking or standing and six hours of sitting. 

On January 28, 2016 Dr. Hallock advised that appellant was unable to return to work 

without restrictions due to his left knee condition, which required limited standing or walking. 

However, he noted that appellant had other orthopedic conditions unrelated to his accepted 

employment condition which precluded him from performing other physical activities. 

On March 22, 2016 Dr. Hallock opined that appellant could return to work with restrictions

of limited standing and walking, based upon appellant’sleft knee condition. He also recommended 

that a functional capacity evaluation (FCE) be performed.

On March 23, 2016 OWCP referred appellant, together with the medical record, SOAF, 

and list of questions, to Dr. Peter A. Feinstein, a Board-certified orthopedic surgeon, for a second 

opinion evaluation to determine appellant’s work capacity. 

4 Appellant retired effective January23, 2012. 
3

In a report dated April 5, 2016, Dr. Feinstein opined that appellant was capable of working 

a sedentary job with restrictions of no walking or standing for more than 15 minutes at a time. In 

an attached Form OWCP-5c, he related that appellant could work eight hours a day provided 

permanent work restrictions which included up to one hour of walking or standing a day, and no

twisting, bending, squatting, kneeling, or climbing. 

On September 2, 2016 the employing establishment offered appellant a modified clerk 

position, for eight hours of work per day. The physical requirements of the position were standing 

and walking for 10 minutes at a time, lifting, and separating different types of mail into tubs, trays, 

and containers for transport. It also noted that a chair/stool would be available for appellant to sit 

or stand as necessary or needed. 

In a report dated October 3, 2016, Dr. John P. Welch, a Board-certified family medicine 

physician, diagnosed left knee degenerative arthritis/end-stage degenerative joint disease. 

Additionally, he reported that appellant had bilateral knee, chronic back pain, and cervical disc 

disease, which decreased his range of motion. Dr. Welch opined that appellant was precluded 

from any repetitive sitting, standing, walking, climbing, bending, kneeling, stooping, pulling, 

pushing, or twisting. Based on a review of the modified job offer, he concluded that it would be 

detrimental to appellant’s health if he attempted to perform the job duties. 

On October 7, 2016 the employing establishment advised that the offered position was 

within the work restrictions set by Dr. Feinstein. 

An October 11, 2016 FCE indicated that appellant was capable of performing modified 

sedentary work for four hours per day. 

On October 17, 2016 appellant refused the offered position noting that his primary care 

physician advised that he could not meet the requirements of the position. 

On October 24, 2016 the employing establishment clarified that the physical requirements 

of the offered job would not require walking or standing for more than 15 minutes at a time and 

for no more than an hour total.

In letters dated October 25, 2016, OWCP requested that Drs. Welch and Feinstein review 

an enclosed job offer and provide a medical opinion as to whether appellant could perform the 

position for four or eight hours a day.

On November 2, 11, and 18 2016 Dr. Welch responded to OWCP’s request for 

clarification. He noted that appellant continued to suffer severe osteoarthritis of the knees, 

intervertebral disc disorder of the cervical spine, and bilateral hip arthritis, which continued to 

limit appellant’s ability to stand or walk for any length of time. Dr. Welch further explained that 

the cement floors in the lobby would aggravate appellant’s limitations, that appellant would be 

unable to assist clients while sitting, and his current narcotic use may hamper thought processes 

and speech. He concluded that while appellant might be able to perform some tasks as noted in 

the FCE, he did not believe that appellant had the stamina to work in any of the offered job

positions on a daily basis. 

On March 24, 2017 OWCP referred appellant, together with the medical record, SOAF, 

and list of questions, to Dr. Craig W. Fultz, a Board-certified orthopedic surgeon, to serve as an 
4

impartial medical examiner (IME) to resolve the conflict in the medical opinion evidence. It

declared that the conflict arose between Dr. Feinstein, a second opinion physician, who opined 

that appellant was capable of working eight hours per day with restrictions, and Dr. Welch, an 

attending physician, who opined that appellant could only work parttime in a very limited capacity 

and could not perform the job offered on October 24, 2016. 

In a report dated June 8, 2017,Dr. Fultz, based upon a review of the medical record, SOAF, 

and physical examination, noted that the accepted conditions were left knee lateral meniscal tear 

and left knee chondromalacia. He opined that the June 19, 2007 work injury also aggravated

appellant’s preexisting osteoarthritis. Dr. Fultz opined that appellant was partially disabled and 

was capable of work with restrictions. In an attached Form OWCP-5c, he indicated that appellant 

was capable of working a maximum of four hours per day with restrictions of two hours of sitting 

and walking, one hour of standing, pulling, pushing, and lifting up to 20 pounds; no squatting, 

kneeling, or climbing, and breaks for 5 minutes every 30 minutes.

On June 12, 2017 OWCP expanded the acceptance of appellant’s claim to include left knee 

traumatic osteoarthritis. 

On July 17, 2017 the employing establishment offered appellant a permanent modified

clerk job working four hours per day. The duties of the position were up to two hours of

Unendorsed Bulk Business Mail (UBBM) verification, four hours of lobby director to include 

Mobile Point-of-Sale (MPOS) and Self-Service Kiosk (SSK), and up to two hours of second 

notices and boxing service as needed. The physical requirements of the position were standing for 

one hour, walking and sitting for two hours, and intermittent lifting of up to 20 pounds. It also 

noted that a chair/stool would be available for appellant to sit or stand as necessary or needed. 

In a letter dated August 16, 2017, OWCP requested that Dr. Fultz provide a supplemental 

opinion. It noted that the employing establishment did not address the restrictions he had provided 

of a five-minute break every half hour and no squatting, kneeling, or climbing. OWCP requested

that Dr. Fultz address Dr. Welch’s concern regarding appellant’s ability to drive 20 to 25 minutes 

from his home. It also requested that Dr. Fultz address appellant’s ability to work on concrete 

floors for four hours per day. 

In a September 5, 2017 supplemental report, Dr. Fultz responded to the questions posed by 

OWCP. He advised that appellant should not be driving while taking any medication impacting 

cognitive ability. Dr. Fultz also explained that standing or walking on a hard surface such as 

concrete can increase the stress on appellant’s knee and potentially increase his symptoms. He

concluded that appellant could tolerate working four hours per day with frequent five-minute 

breaks and changing positions as needed. 

In a January 5, 2018 report, Dr. Hallock advised that appellant was capable of working a 

sedentary job with limited walking and standing. He did not specify the number of hours appellant 

could work. 

On October 19, 2018 the employing establishment offered appellant a modified city carrier 

position working eight hours per day based on the restrictions noted by Dr. Hallock in his 

January 5, 2018 report. The duties of the position were described as UBBM verification, lobby 

director/MPOS/SSK, boxing section and red book maintenance, Enterprise Customer Care (ECC)
5

cases, and answering telephones. The physical requirements of the position noted eight hours of 

sitting and eight hours of simple grasping. 

On October 26, 2018 appellant refused the offered position and enclosed Dr. Fultz’ reports 

limiting appellant to working four hours per day with restrictions. He also noted that Dr. Hallock 

had not released him to return to work. 

In a note dated November 14, 2018, Dr. Hallock advised that appellant could not return to 

work. In a January 4, 2019 report, he diagnosed left knee post-traumatic osteoarthritis. 

Dr. Hallock advised that appellant was capable of working in a sedentary job with limited walking 

and standing. He again did not specify the number of hours that appellant could work. 

On February 6, 2019 the employing establishment confirmed that the offered position was 

still available. 

In a February 6, 2019 letter, OWCP advised appellant that it had reviewed the modifiedcity carrier position offered on November 2, 2018 and found that it was suitable in accordance 

with the medical limitations provided by Dr. Hallock in his January 4, 2019 report. It notified him 

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

pursuant to 5 U.S.C. § 8106(c)(2), his right to compensation for wage-loss compensation or a 

schedule award would be terminated. OWCP afforded appellant 30 days to respond. 

In a report dated February 19, 2019, Dr. J. Kent L. Wagner, a Board-certified family 

medicine physician, diagnosed severe osteoarthritis from end-stage left knee degenerative joint 

disease and bilateral hip arthritis. He explained that these conditions limited appellant’s ability to 

stand or work for any length of time as appellant needs to rest and sit frequently. Appellant also 

required both “ANSAIDS” and narcotic pain medication, which hampered his thought processes 

and speech. Dr. Wagner opined that appellant was unable to perform any of the offered job duties. 

Additionally, he did not believe that appellant had the stamina to work on a daily basis. 

In a letter dated March 5, 2019, appellant’s counsel advised that the offered position was 

not suitable asthe medical evidence established that appellantwas not capable of working an eighthour day. Additionally, counsel asserted that both Dr. Hallock and Dr. Wagner found appellant 

disabled from work. 

By letter dated April 10, 2019, OWCP notified appellant that his reason for refusing the 

position was not valid and provided him 15 days to accept the position or have his entitlement to 

wage-loss compensation benefits terminated. It advised him that the offered position remained 

available. 

Dr. Wagner, in a report dated April 15, 2019, diagnosed left knee osteoarthritis and low 

back pain. He reported that appellant had decreased stamina as the result of limited mobility from 

his knee pain. Dr. Wagner also noted that appellant had problems with cognition due to his 

medication and occasional issues with simple instructions. 

In a letter dated April 25, 2019, counsel again asserted that the medical evidence 

established that the offered position was not suitable as appellant could not work eight hours per 

day. He asserted that no physician had released appellant to return to any type of full-time work. 
6

By decision dated May 17, 2019, OWCP terminated appellant’s wage-loss compensation 

and entitlement to a schedule award, effective May 26, 2019, as he had refused an offer of suitable 

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

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

provided in his January 4, 2019 report constituted the weight of the evidence and established that 

appellant could perform the duties of the offered position. 

OWCP thereafter received reports dated May 20, June 20, July 22, and August 22, 2019 

from Dr. Wagner, which repeated findings from prior reports. 

On May 28, 2019 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The hearing was held on August 20, 2019. 

By decision dated September 30, 2019, an OWCP hearing representative affirmed the 

May 17, 2019 decision. 

Dr. Wagner continued to submit reports which were repetitive of his prior reports. 

In a note dated November 27, 2019, Dr. Hallock indicated that appellant could not return 

to work. 

On March 27, 2020 appellant, through counsel, requested reconsideration. In a letter dated 

March 19, 2020, counsel asserted that the offered job was not suitable as appellant could not 

perform the duties of the offered position and could not work an eight-hour day. 

By decision dated June 15, 2020, OWCP denied modification. 

LEGAL PRECEDENT

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.5 It has authority undersection 8106(c)(2) of FECA 

5 U.S.C. § 8106(c)(2), to terminate compensation for any partially disabled employee who refuses 

or neglects to work after suitable work is offered. To justify termination, OWCP must show that 

the work offered was suitable, that appellant was informed of the consequences of his refusal to 

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

the position or submit evidence or provide reasons why the position is not suitable. 6 In determining 

what constitutes suitable work for a particular disabled employee, it considers the employee’s 

current physical limitations, whether the work was available within the employee’s demonstrated 

commuting area, and the employee’s qualifications to perform such work.7

5 T.M., Docket No. 20-0401 (issued February 26, 2021); E.W, Docket No. 19-1711 (issued July 29, 2020);

BernadineP. Taylor, 54 ECAB 342 (2003).

6

5 U.S.C. § 8106(c)(2); see also Federal (FECA) Procedure Manual, Part 2 --Claims, Reemployment: Determining 

Wage-Earning Capacity, Chapter 2.814.4 (June 2013).

7

20 C.F.R. § 10.500(b).
7

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.8 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.9 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.10

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.

11

 Its procedures state that acceptable reasons for refusing an offered position include 

medical evidence of inability to do the work.

12

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 26, 2019, because he 

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

In terminating appellant’s compensation benefits, OWCP primarily relied upon the

January 4, 2019 report of Dr. Hallock, his attending physician. On January 4, 2019 Dr. Hallock 

opined that appellant was capable of working in a sedentary position, with limited standing and 

walking. In this report he did not specify whether appellant could work four or eight hours a day. 

Dr. Hallock had previously requested an FCE be performed to determine appellant’s work 

capability and an October 11, 2016 FCE determined appellant was capable of performing modified 

sedentary work for four hours per day. 

The Board notes that OWCP had also previously referred appellant to Dr. Fultz for an 

impartial medical examination to resolve the conflict in the medical opinion evidence,

Dr. Feinstein, a second opinion, who opined that appellant was capable of working eight hours per 

day with restrictions, and Dr. Welch, an attending physician, who opined that appellant could only 

work part time in a very limited capacity. Dr. Fultz found that appellant could work four hours 

per day in a sedentary position with restrictions including four hours per day with frequent fiveminute breaks and changing positions as needed.

Contrary to the recommendations of Dr. Hallock, appellant’s treating physician, and

Dr. Fultz, an IME, who found that appellant could only work four hours per day in a sedentary 

position with restrictions, the employing establishment offered him a full-time position as a 

8 T.M., supra note 5; E.W., supra note 5; JoanF. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 

1002 (1995).

9

20 C.F.R. § 10.517(a).

10 Id. at § 10.516.

11 Id. at § 10.517(a).

12 Supra note 6 atChapter 2.814.5a(4) (2013); see D.C., Docket No. 19-1297 (issued October 5, 2021); J.K., Docket 

No. 19-0064 (issued July 16, 2020).
8

modified city carrier on November 2, 2018, noting the job was sedentary. While the offered 

position was ostensibly based upon Dr. Hallock’s sedentary work restrictions, Dr. Hallock did not 

specify the number of hours appellant was capable of working in his January 5, 2018 or January 4, 

2019 reports. Moreover, OWCP failed to consider the evidence of record, including the reports

from its IME, Dr. Fultz and the FCE which found that appellant was only capable of working four 

hours per day in a sedentary position. 

The Board has held that, 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.13 As a penalty provision, 5 U.S.C. § 8106(c)(2)must be narrowly construed.

14

 

The Board finds that OWCP has not established that appellant could perform the suitable work 

position for eight hours a day. Therefore, the Board finds that it has not met its burden of proof 

and thus erroneously terminated his compensation entitlement under 5 U.S.C. § 8106(c)(2).

CONCLUSION

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 26, 2019, because he 

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

13 D.C., id.; A.F., Docket No. 19-0453 (issued July 6, 2020); Annette Quimby, 49 ECAB 304 (1998).

14 D.C., id.; A.F., id.; StephenA. Pasquale, 57 ECAB 396 (2006).
9

ORDER

IT IS HEREBY ORDERED THAT the June 15, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 20, 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