United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, METUCHEN POST 

OFFICE, Metuchen, NJ, Employer

__________________________________________

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Docket No. 23-0097

Issued: June 21, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 31, 2022 appellant filed a timely appeal from an August 18, 2022 merit 

decision and a September 30, 2022 nonmerit 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

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective June 15, 2020, because he refused an offer of suitable work, 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the September 30, 2022 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

pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether OWCP properly denied appellant’s request 

for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On March 18, 1976 appellant, then a 32-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his lower back and both knees and calves on that date 

when he was attacked by a dog while in the performance of duty. He stopped work on 

March 18, 1976 and has not returned. OWCP accepted the claim for chronic lumbar strain and 

herniated nucleus pulposus (HNP) at L5-S1. It paid appellant wage-loss compensation on the 

periodic rolls. 

On September 30, 2019 OWCP referred appellant, together with a statement of accepted 

facts (SOAF), the case record, and a series of questions, to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the nature of his 

employment-related conditions, and extent of his disability and work restrictions.

In an October 22, 2019 medical report, Dr. Dinenberg reviewed the SOAF, the medical 

record, and the history of appellant’s March 18, 1976 employment injury. He reported findings 

on physical examination. Dr. Dinenberg provided an impression of the accepted conditions of 

chronic lumbar sprain with persistent lumbar pain and HNP at L5-Sl. He also provided an 

impression of multi-level lumbar degenerative disc/facet disease that was not related to the 

March 18, 1976 employment injury. Dr. Dinenberg opined that appellant did not have total 

disability as a result of the work injury, but that he could work full time, eight hours per day,

with permanent restrictions of no lifting, pushing, or pulling more than 20 pounds for more than 

three hours a day, and bending, kneeling, climbing, crawling, and stooping only on a seldom 

basis. He advised that appellant could participate in active training and ultimate job placement. 

Dr. Dinenberg related that in the absence of employment for the past 43 years, there was a low 

likelihood of appellant’s reemployment although he could participate in vocational rehabilitation 

services. In an accompanying work capacity evaluation (Form OWCP-5c) dated October 22, 

2019, he reiterated his opinion on appellant’s work capacity and permanent work restrictions. 

In a letter dated November 21, 2019, OWCP requested that the employing establishment 

offer appellant a position, in writing, within the restrictions provided by Dr. Dinenberg, the 

second opinion physician.

On January 17, 2020 the employing establishment offered appellant a permanent fulltime position as a modified city carrier, based on Dr. Dinenberg’s October 22, 2019 permanent

work restrictions. The position was in Metuchen, New Jersey. The employing establishment 

noted that it had investigated and verified that no work was available within 50 miles of 

appellant’s residence in Sarasota, Florida. The duties of the position included: casing mail 

approximately one and one-half hours; delivering mail by driving out on a park and loop walking 

route approximately four hours; and assisting with Express Mail/parcels and answering 

telephones/handling customer complaints when needed. The physical requirements included 

sitting/standing/walking; regular grasping; pushing/pulling/lifting up to 20 pounds for three

hours a day; reaching/reaching above shoulder; and driving a postal vehicle.
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On January 22, 2020 appellant rejected the January 17, 2020 job offer, contending that it 

was unreasonable for him to relocate from Florida to Metuchen, New Jersey, he had not worked

since 1976, and he was unable to withstand cold weather due to his bilateral knee condition.

In a January 28, 2020 letter, the employing establishment requested that OWCP make a 

suitability determination regarding its January 17, 2020 job offer. It advised that the offered 

position remained available.

OWCP subsequently received a January 28, 2020 progress note by Dr. Fabian A. Ramos, 

a Board-certified anesthesiologist. Dr. Ramos examined appellant and provided impressions of 

other spondylosis and spinal stenosis of the lumbosacral regions; other intervertebral disc 

displacement and other intervertebral disc degeneration of the lumbar and lumbosacral regions; 

and other long-term (current) drug therapy and use of opiate analgesic. 

On February 26, 2020 the employing establishment confirmed that the January 17, 2020 

job offer remained available to appellant.

By letter dated March 6, 2020, OWCP informed appellant that it had been notified that he 

had refused or failed to report to the modified city carrier position offered by the employing 

establishment. It advised him of its determination that the offered position was suitable and in 

accordance with the medical limitations provided by Dr. Dinenberg in his October 22, 2019

report. OWCP further advised appellant that the fact that he resided in a different geographic 

area from where the injury occurred, was not a valid reason for refusing a suitable offer of 

employment, since the employing establishment confirmed by notice dated January 17, 2020 that 

no suitable work was available in his current commuting area. Pursuant to 5 U.S.C. 

§ 8106(c)(2), it afforded him 30 days to accept the position or to provide reasons for the refusal. 

OWCP advised appellant that his wage-loss compensation and entitlement to a schedule award 

would be terminated if he did not accept the modified city carrier position or provide good cause 

for refusing the job offer.

In a March 5, 2020 letter received by OWCP on March 9, 2020, appellant contended that 

he was unable to accept the offered position because he sustained a permanent work-related back 

injury on March 18, 1976 and currently used a handicap placard.

Appellant submitted a May 17, 2014 report from Dr. Onefater Vladimir, a physiatrist, 

who provided assessments of lumbar sprain, lumbago with sciatica, bulging lumbar disc, lumbar 

radiculopathy, and myalgia myositis. In a June 6, 2014 report, Dr. Vladimir provided 

impressions of chronic low back pain, flare up of low back pain that was more pronounced on 

the left, and myofascial pain.

Thereafter, on several occasions, the employing establishment informed OWCP that 

appellant had not returned to work and continued to confirm that the offered position remained 

available.

In an April 29, 2020 letter, OWCP informed appellant that the offered position remained 

suitable and available to him, and that his reasons for refusing to accept the offered position were 
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not valid. It advised him that his wage-loss compensation and schedule award benefits would be 

terminated if he did not accept the position within 15 days of the date of the letter. 

In a May 6, 2020 response, appellant contended that Dr. Dinenberg did not perform a 

complete, fair, and just evaluation as his Form OWCP-5c report did not include his limitations 

set forth in handicap placards signed by Dr. Judy C. Gordon, a family practitioner.

Appellant submitted Dr. Gordon’s applications for disabled person parking permit 

placard dated January 19, 2016 and April 1, 2019. Dr. Gordon checked a box indicating that 

appellant was permanently disabled due to severe limitation in his ability to walk due to an 

arthritic, neurological, or orthopedic condition.

Subsequently, on several occasions, the employing establishment again informed OWCP 

that appellant had not returned to work and the offered position was still available. 

By decision dated June 15, 2020, OWCP terminated appellant’s wage-loss compensation 

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

based on his refusal of suitable work. It found that the weight of the medical evidence rested 

with the October 22, 2019 report of Dr. Dinenberg, who provided a well-reasoned opinion as to 

appellant’s current work limitations and the employing establishment offered him a job within 

those restrictions. OWCP further found that his failure to report to the offered position was not 

justified.

On July 24, 2020, June 9, August 9, and November 2, 2021, and February 9 and June 4, 

2022 appellant requested reconsideration of OWCP’s termination decision. 

In support of his requests, appellant submitted letters dated July 24, 2020 and June 5, 

August 9, November 2, 2021, February 9, June 4 and 15, 2022, contending that he was unable to 

accept the offered position due to his disabling back conditions.

Appellant also submitted medical evidence. In progress notes dated June 16, July 9, 2020

and April 13, May 6, August 26, October 21, 2021, and reports dated September 3, October 22, 

December 17, 2020, and February 9, June 22, 2021, and July 28, 2022, Dr. Robert F. Benson, an 

attending anesthesiologist and pain medicine specialist, provided assessments of other 

spondylosis and spinal stenosis of the lumbosacral region; other intervertebral disc displacement

and other intervertebral disc degeneration of the lumbar and lumbosacral regions; and other long 

term (current) drug therapy and use of opiate analgesic. In a March 4, 2021 order form, he 

requested a lumbar spine magnetic resonance imaging (MRI) scan to assess appellant’s other 

intervertebral disc displacement of the lumbar region.

Laboratory reports dated February 11 and June 30, 2020, June 2, 2021, and May 16 and

June 1, 2022 provided drug screening test results.

In a July 7, 2020 report, Dr. Frank C. Biondolillo, an emergency medicine specialist, 

diagnosed lumbosacral strain and muscle pain. 

In a July 9, 2020 letter, Danny Delgado, a certified physician assistant, noted that 

appellant’s low back symptoms correlated with lumbar spine MRI scan findings of advance 
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lumbar spondylosis, advance degenerative disc disease, and moderate lumbar foraminal stenosis. 

He listed appellant’s physical restrictions. 

In letters dated July 24, 2020 and March 31, 2021, Dr. Gordon noted that appellant had a 

history of low back problems with severe exacerbations. She opined that he was totally disabled 

from work. Dr. Gordon related that appellant was unable to walk, stand, or sit for more than 15 

to 20 minutes before experiencing severe pain, and that he used a cane or walker during 

exacerbations. 

Orders dated September 3 and 10, 2020 and signed by a provider with an illegible 

signature requested a brace to treat appellant’s diagnosis of other spondylosis and other 

intervertebral disc degeneration of the lumbar region.

In a March 8, 2021 lumbar spine MRI scan report, Dr. Lidia Linetsky, a Board-certified 

diagnostic radiologist, provided impressions of interval development of right lateral posterior 

disc herniation at the L3-4 level; right paracentral posterior disc herniation at the L4-5 and L5-S1 

level, stable; diffuse advanced lumbar spondylosis accompanied by moderate-to-advanced 

degenerative disc disease at the levels described above and mild s-shaped scoliosis, stable; mild 

central spinal canal stenosis at the L4-5 level, stable; some degree of multi-level neural foraminal 

stenosis, not significantly changed; and malalignment of the lumbar vertebrae, stable.

An October 22, 2014 Form OWCP-5c report by Dr. Fanourios Ferderigo, an orthopedic 

surgeon, advised that appellant was totally disabled from work and listed his permanent work

restrictions.

Dr. Ramos, in progress notes dated June 22, 2021, March 17, and May 12, 2022, 

reiterated his prior assessments of other spondylosis and spinal stenosis of the lumbosacral 

regions; other intervertebral disc displacement and other intervertebral disc degeneration of the 

lumbar and lumbosacral regions; and other long-term (current) drug therapy and use of opiate 

analgesic. 

A May 20, 2009 Form OWCP-5c report by Dr. William F. Bennett, a Board-certified 

orthopedic surgeon, indicated that appellant was unable to perform his usual job, but he could 

work four hours per day with indefinite restrictions.

By decisions dated November 18, 2020, July 26 and October 4, 2021, and January 31, 

May 10, and August 18, 2022, OWCP denied modification of its termination decision, finding 

that the evidence submitted was insufficient to outweigh the opinion of Dr. Dinenberg.

On September 3, 2022 appellant requested reconsideration of the August 18, 2022 

decision. In support of the request, he submitted an August 31, 2022 Form OWCP-5c report

from Dr. Sajeev Kumar, an anesthesiologist and pain medicine specialist. Dr. Kumar advised

that appellant was totally disabled from work and listed his work restrictions.

OWCP, by decision dated September 30, 2022, denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
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LEGAL PRECEDENT -- ISSUE 1

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) 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.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

If possible, the employing establishment should offer suitable employment in the location 

where the employee currently resides. If this is not practical, it may offer suitable reemployment 

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); Ronald M. Jones, 52 ECAB 190 (2000).

6 Y.J., Docket No. 20-1562 (issued December 14, 2021); S.D., Docket No. 18-1641 (issued April 12, 2019);

Joan F. 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); Richard P. Cortes, 56 ECAB 200 (2004).
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at the employee’s former duty station or other location.12 Where the distance between the 

location of the offered job and the location were the employee currently resides is at least 50 

miles, OWCP may pay such relocation expenses as are considered reasonable and necessary if 

the employee has been terminated from the employing establishment’s rolls and would incur 

relocation expenses by accepting the offered employment. 13

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s 

wage-loss compensation, effective June 15, 2020, because he refused an offer of suitable work, 

pursuant to 5 U.S.C. § 8106(c)(2).

On January 17, 2020 the employing establishment offered appellant a position as a 

modified city carrier and on March 6, 2020 OWCP determined that the position was suitable. 

The January 17, 2020 job offer was within the restrictions as prescribed by the second opinio n 

physician, Dr. Dinenberg. Dr. Dinenberg reported that appellant could perform full-time work, 

eight hours per day, with permanent restrictions that included no lifting, pushing, or pulling more 

than 20 pounds, and bending, kneeling, climbing, crawling, and stooping only on a seldom basis. 

However, Dr. Dinenberg in assessing appellant’s disability status opined that appellant did not 

have total disability as a result of the work injury. But he also provided an impression of multilevel lumbar degenerative disc/facet disease that was not related to the March 18, 1976 

employment injury. Dr. Dinenberg did not address whether this additional subsequently 

developed nonwork-related condition caused additional disability. In a suitable work 

determination, OWCP must consider preexisting and subsequently acquired medical conditions 

in evaluating an employee’s work capacity.14

As a penalty provision, the termination of compensation benefits is narrowly construed. 15 

As Dr. Dinenberg did not address whether appellant subsequently developed nonwork-related 

condition affected appellant’s work capacity, the Board finds that OWCP failed to meet its 

burden of proof to terminate appellant’s compensation entitlement under 5 U.S.C. § 8106(c)(2).16

CONCLUSION

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 June 15, 2020, because 

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

12 20 C.F.R. § 10.508; S.H., Docket No. 15-0329 (issued June 5, 2015).

13 20 C.F.R. § 2.814.6(d)(2); see A.P., Docket No. 17-1135 (issued February 12, 2018); W.B., Docket No. 

13-0947 (issued August 16, 2013).

14 Supra note 11. 

15 R.M., Docket No. 19-1236 (issued January 24, 2020); R.A.,supra note 5; see also Federal (FECA) Procedure 

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

16 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot. 
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ORDER

IT IS HEREBY ORDERED THAT the August 18, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 21, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board