United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 22-0594

Issued: October 16, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 3, 2022 appellant filed timely appeals from September 21 and 29, 2021 merit

decisions 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 reduce appellant’s 

compensationto zero, effective September 21, 2021, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519, for failure to cooperate with the early stages of vocational rehabilitation without good 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the September 29, 2021 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

cause; and (2) whether OWCP has met its burden of proof to terminate appellant’s entitlement to 

wage-loss compensation and a schedule award, effective September 29, 2021, as he refused an 

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

FACTUAL HISTORY

On September 7, 2007 appellant, then a 40-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 29, 2007 he sustained a left knee injury when he stood 

up after delivering mail through a slot while in the performance of duty. He stopped work on 

August 30, 2007. OWCP accepted the claim for derangement of the posterior horn of the medial 

meniscus. It authorized left knee arthroscopic surgery, which was performed by Dr. Eric Freeman, 

a Board-certified orthopedic surgeon, on June 27, 2008. OWCP paid appellant wage-loss 

compensation on the supplemental rolls from October 13 through November 24, 2007 and on the 

periodic rolls from November 25, 2007 through October 25, 2008. It subsequently paid him wageloss compensation on the supplemental rolls for intermittent disability from work. 

In a work capacity evaluation (Form OWCP-5c) dated October 7, 2008, Dr. Freeman 

released appellant to return to work modified duty, five hours per day, effective October 22, 2008,

with no lifting, pushing, or pulling greater than 15 pounds and no bending or stooping. 

On October 20, 2008 appellant accepted a part-time, modified-duty carrier position, 

working five hours per day. The duties of the assignment required casing and tying out his route, 

answering telephones, updating carrier books, creating labels, and lifting, pushing, and pulling up 

to 15 pounds. 

In a Form OWCP-5c dated October 7, 2009, Dr. Freeman released appellant to return to 

work five hours per day with limitations of lifting, pushing, and pulling no more than 20 pounds. 

He thereafter released appellant to return to work six hours per day with a 10-pound limitation,

effective November 6, 2012, and for six hours per day with a 20-pound limitation, effective 

October 15, 2014. 

Commencing October 24, 2009, OWCP paid appellant compensation on the periodic rolls 

for 2.5 hours per day based on an informal loss of wage-earning capacity (LWEC) determination. 

On November 20, 2019 OWCP referred appellant, along with a statement of accepted facts 

and a series of questions, to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a second 

opinion examination and evaluation.

On December 3, 2019 appellant explained that he had suffered a heart attack in July 2019 

and was disabled.

Appellant resigned from the employing establishment effective January 7, 2020. 

In a January 8, 2020 report, Dr. Sultan noted appellant’s history of left knee injury resulting 

in surgery performed by Dr. Freeman on June 27, 2008, including abrasion arthroplasty of the 

patella, extensive tricompartmental synovectomy with partial medial and lateral meniscectomy 

and removal of loose body. He further noted that appellant had returned work light duty casing 

mail for six hours per day in 2010 and that he had a myocardial infarction on July 21, 2019 for 
3

which he had undergone two stent insertions and wore a device for an irregular heartbeat.

Dr. Sultan diagnosed medial and lateral meniscal tears with post-traumatic synovitis and grade 2 

changes involving the medial facet of the patella consistent with post-traumatic chondromalacia. 

He opined that these conditions were caused by the August 29, 2007 work injury. Dr. Sultan 

advised that appellant was unable to return to full duty, but could continue light duty casing mail 

for six hours per day. He noted that part of the work restrictions were “secondary to [appellant’s]

underlying heart condition.”

On February 10, 2021 OWCP requested thatDr. Sultan provide a supplemental opinion for 

clarification.

In a report dated March 3, 2021, Dr. Sultan noted that he had previously seen appellant 

regarding his August 29, 2007 employment injury. He summarized appellant’s history of injury 

and medical treatment. Dr. Sultan related that appellant’s physical examination findings included 

atrophy of the left distal thigh, patellofemoral crepitus, left knee pain with squatting, and favoring 

of the left lower extremity when ambulating. He again diagnosed medial and lateral meniscal tears 

with post-traumatic synovitis and grade 2 changes involving the medial facet of the patella 

consistent with post-traumatic chondromalacia due to the August 29, 2007 work injury. Dr. Sultan 

determined that appellant had reached maximum medical improvement and that his prognosis was 

“guarded to poor.” He opined that “from an orthopedic standpoint” appellant could return to lightwork activity casing mail for six hours per day, five days per week, and that his nonaccepted heart 

conditions had “no pertinence on [appellant’s] work status and restrictions” and that his “work 

restrictions are solely due to the injuries sustained on August 29, 2007and not due to any nonworkrelated conditions.” Dr. Sultan further opined that “a part of [appellant’s] work restrictions are 

secondary to the underlying heart condition” and that appellant’s current level of disability was 

“related in part” to his preexisting heart condition.

In a work capacity evaluation (Form OWCP-5c) of even date, Dr. Sultan noted that 

appellant was capable of working six hours per day with no pushing, pulling, or lifting over 20 

pounds. 

On March 10, 2021 OWCP referred appellant for vocational rehabilitation services based 

on Dr. Sultan’s March 3, 2021 report. 

In a letter dated April 8, 2021, the employing establishment requested that appellant attend

an interview on April 21, 2021 to discuss the possibility of returning to work in a permanent 

modified-duty assignment. Attached to the letter was a job description for a modified city carrier 

including casing mail, delivering mail and packages up to 20 pounds, and scanning parcels up to 

20 pounds, for six hours per day. 

In a July 28, 2021 development letter, OWCP informed appellant that the offered modified 

city carrier position was suitable work and comported with the physical restrictions of Dr. Sultan, 

which it had accorded the weight of the evidence. It noted that it had not received medical notes 

from any of his treating providers since the April 25, 2017 note of Dr. Freeman. OWCP further

noted that the position was still available and afforded appellant 30 days to accept the position and 

report to duty. It advised that, if he failed to accept the position, he had 30 days to provide a written 

explanation. OWCP further advised appellant that, at the end of the 30-day period, if his reasons 
4

for refusing the suitable work position were not considered justified, his right to wage-loss 

compensation and schedule award benefits would be terminated.

By letter dated August 4, 2021, OWCP informed appellant that it had been advised that he 

had been unresponsive to attempts by a vocational rehabilitation counselor to contact him by 

telephone and written correspondence on several occasions between July 12 and 30, 2021. It 

notified him that, pursuant to section 8113(b) of FECA, if an employee without good cause failed 

to undergo vocational rehabilitation when so directed, OWCP may reduce compensation 

prospectively based on what would have been the employee’s LWEC had he or she not failed to 

undergo vocational rehabilitation. OWCP also informed appellant that, if he refused to cooperate 

with the essential preparatory efforts, it would assume absence evidence to the contrary that the 

vocational rehabilitation effort would have resulted in a return to work with no loss of LWEC in 

accordance with 20 C.F.R. § 10.519. It advised him that his case would be held open for 30 days 

to afford him an opportunity to make a good faith effort to participate in the rehabilitation effort. 

OWCP further notified him that, if during the allotted 30-day period he did not comply with the 

instruction to undergo the rehabilitation effort, or did not show good cause for not participating, 

the rehabilitation effort would be terminated, and action would be initiated to reduce his 

compensation to zero. No evidence was received.

By decision dated September 21, 2021, OWCP reduced appellant’s wage-loss 

compensation to zero pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective that date,

due to his failure to cooperate with vocational rehabilitation without good cause. It found that his 

failure to undergo the essential preparatory effort of vocational testing did not permit OWCP to 

determine what would have been his LWEC had he undergone the testing and rehabilitation effort.

By decision dated September 29, 2021, OWCP terminated appellant’s entitlement to wageloss compensation and schedule award benefits, pursuant to 5 U.S.C. § 8106(c)(2), effective that 

date. It found that the offered modified city carrier position was within the restrictions provided 

by Dr. Sultan in his March 3, 2021 report.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim, it has the burden of proof to establish that the disability has 

ceased or lessened before it may terminate or modify compensation benefits. 3 Section 8104(a) of 

FECA provides that OWCP may direct a permanently disabled employee to undergo vocational 

rehabilitation.4

Section 8113(b) of FECA5 provides that, if an individual without good cause fails to apply 

for an undergo vocational rehabilitation when so directed under section 8104 of this title, the 

Secretary, on review under section 8128 of this title and after finding that in the absence of the 

failure the LWEC of the individual would probably have substantially increased, may reduce 

3

S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. Wade, 37 ECAB 556 (1986).

4

5 U.S.C. § 8104(a).

5

Supra note 1.
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prospectively the monetary compensation of the individual in accordance with what would 

probably have been his LWEC in the absence of the failure, until the individual in good faith 

complies with the direction of the OWCP.

6

OWCP’s regulations, at 20 C.F.R. § 10.519, provide in pertinent part:

“If an employee without good cause fails or refuses to apply for, undergo, 

participate in, or continue to participate in a vocational rehabilitation effort when 

so directed, OWCP will act as follows --

“(a) Where a suitable job has been identified, OWCP will reduce the 

employee’s future monetary compensation based on the amount which 

would likely have been his or her [LWEC] had he or she undergone 

vocational rehabilitation. OWCP will determine this amount in accordance 

with the job identified through the vocational rehabilitation planning 

process, which includes meetings with OWCP nurse and the employer. The 

reduction will remain in effect until such time as the employee acts in good 

faith to comply with the direction of OWCP.

“(b) Where a suitable job has not been identified, because the failure or 

refusal occurred in the early, but necessary stages of a vocational 

rehabilitation effort (that is, meetings with OWCP nurse, interviews, 

testing, counseling, functional capacity evaluations [(FCE)], and work 

evaluations) OWCP cannot determine what would have been the 

employee’s [LWEC].

“(c) Under the circumstances identified in paragraph (b) of this section, in 

the absence of evidence to the contrary, OWCP will assume that the 

vocational rehabilitation effort would have resulted in a return to work with 

no [LWEC], and OWCP will reduce the employee’s monetary 

compensation accordingly (that is, to zero). This reduction will remain in 

effect until such time as the employee acts in good faith to comply with the 

direction of OWCP.”

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ANALYSIS -- ISSUE 1

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s 

compensation, effective September 21, 2021, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519.

On February 10, 2021 OWCP properly referred appellant to Dr. Sultan for a second 

opinion evaluation to determine whether appellant had any remaining residuals and/or disability 

6

5 U.S.C. § 8113(b).

7

20 C.F.R. § 10.519(a) – (c); see D.W., Docket No. 20-0840 (issued August 19, 2021); R.H., Docket 58 ECAB 

654 (2007).
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due to his accepted August 29, 2007 employment injury and also whether his nonaccepted heart 

conditions contributed to any ongoing disability. In his March 3, 2021 report, Dr. Sultan 

determined that, “from an orthopedic point of view,” appellant was capable of light-work activity 

casing mail six hours per day, five days per week, with no lifting, pushing, or pulling greater than 

20 pounds. He further opined that appellant’s heart condition had “no pertinence on his work 

status and restrictions” and that his work restrictions were “solely due” to the August 29, 2007 

employment injury and “not due to any nonwork-related conditions.” However, in the same report,

Dr. Sultan also opined that “a part of [appellant’s] work restrictions” were “secondary to the 

underlying heart condition” and appellant’s “current level of disability” was “related in part” to a 

preexisting heart condition. OWCP did not seek clarification from Dr. Sultan regarding these

contradictory statements in his March 3, 2021 report.

OWCP’s procedures provide in pertinent part that there should not be any outstanding 

medical issues, work related or nonwork related, precluding participation in the rehabilitation 

effort. If there are nonwork-related conditions apparent in the file, any restrictions resulting from 

those conditions should be clarified prior to referral.8

The evidence of record established that appellant suffered a myocardial infarction on 

July 21, 2019 for which he had undergone two stent insertions and was wearing a device for an 

irregular heartbeat. In his March 3, 2021 report, Dr. Sultan’s opinions were contradictory as to the 

nature and extent of any disability attributable to his nonaccepted heart conditions. As such, the 

claims examiner should have sought clarification from Dr. Sultan.

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 Thus, the Board finds that 

OWCP failed to meet its burden of proof.

LEGAL PRECENT -- ISSUE 2

As noted above, once OWCP accepts a claim, it has the burden of justifying termination or 

modification of compensation benefits.10 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. 11 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. 12 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. 13

8 Federal (FECA) Procedure Manual, Part 2 --Claims, Reemployment: Vocational Rehabilitation Services, Chapter 

2.813.5(c)(4) (February 2011).

9

Id.; see S.B., Docket No. 19-0781 (issued February 2, 2022).

10 Supra note 3.

11 5 U.S.C. § 8106(c)(2); see J.K., Docket No. 19-0064 (issued July 16, 2020); Geraldine Foster, 54 ECAB 

435 (2003).

12 A.F., Docket No. 19-0453 (issued July 6, 2020); Y.A., 59 ECAB 701 (2008).

13 P.C., Docket No. 20-0395 (issued February 19, 2021); J.K., supra note 11; JoanF. Burke, 54 ECAB 403 (2003).
7

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. 14 Section 

10.516 provides that OWCP shall advise the employee that it has found the offered work to be 

suitable and afford the employee 30 days to accept the job or present any reasons to counter its 

finding of suitability. If the employee presents such reasons and OWCP determines that the 

reasons are unacceptable, it will notify the employee of that determination and that he or she has 

15 days in which to accept the offered work without penalty. At that point in time, OWCP’s 

notification need not state the reasons for finding that the employee’s reasons are not acceptable.15

The determination of whether an employee is capable of performing modified-duty work 

is a medical question that must be resolved by probative medical opinion evidence.16 All medical 

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

offered position.17

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.18 OWCP’s procedures state that acceptable reasons for refusing an offered position 

include medical evidence of inability to do the work.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and a schedule award, effective September 29, 2021, as it 

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

As noted above, a determination of whether an employee can perform modified-duty work 

is a medical question that must be resolved by probative medical opinion evidence.20 All medical 

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

offered position.21

In terminating appellant’s compensation benefits, OWCP relied on the March 3, 2021 

second opinion evaluation of Dr. Sultan in finding that the offered modified city carrier position 

constituted suitable work. However, as explained above, the March 3, 2021 report was internally 

14 20 C.F.R. § 10.517(a); J.S., Docket No. 19-1399 (issued May 1, 2020); RichardP. Cortes, 56 ECAB 200 (2004).

15 Id. at § 10.516; see S.M., Docket No. 19-1227 (issued August 28, 2020); see Melvin James, 55 ECAB 406 (2004).

16 C.M., Docket No. 19-1160 (issued January 10, 2020); Gloria J. Godfrey, 52 ECAB 486 (2001).

17 Id.

18 20 C.F.R. § 10.517(a).

19 Supra note 8 at Chapter 2.814.5a(4) (June 2013); P.C., supra note 13; see J.K., supra note 11.

20 Supra note 16.

21 Id.
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inconsistent as to the nature and extent of any disability attributable to his nonaccepted heart 

conditions. 

The Board has held that medical reports are of limited probative value if they are internally 

inconsistent.22 Therefore, OWCP erred in according the weight of the evidence to Dr. Sultan’s 

March 3, 2021 second opinion evaluation as it was insufficient to meet OWCP’s burden of proof.

CONCLUSION

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation to 

zero pursuant to 5 U.S.C. § 8113(b), effective September 21, 2021, for failing to cooperate with 

the early stages of vocational rehabilitation. The Board further finds that OWCP failed to meet its 

burden of proof to terminate appellant’s entitlement to wage-loss compensation and a schedule 

award, effective September 29, 2021, as it improperly determined that he refused an offer of 

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

ORDER

IT IS HEREBY ORDERED THAT the September 29 and 21, 2021 decisions of the 

Office of Workers’ Compensation Programs are reversed.

Issued: October 16, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

22 L.L., Docket No. 18-0861 (issued April5, 2019); S.K., Docket No. 18-0836 (issued February 1, 2019); E.D., 

Docket No. 17-1064 (issued March 22, 2018).