United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.G., Appellant

and

U.S. POSTAL SERVICE, NEW JERSEY 

NETWORK DISTRIBUTION CENTER, 

Jersey City, NJ, Employer

__________________________________________

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Docket No. 23-0842

Issued: October 31, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 2, 2023 appellant, through counsel, filed a timely appeal from a January 3, 2023

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 January 3, 2023decision, 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 is whether OWCP has met its burden of proof to terminate appellant’s entitlement 

to wage-loss compensation and schedule award benefits, effective June 23, 2022, because she 

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

FACTUAL HISTORY

On September 16, 2019 appellant, then a 57-year-old bulk mail dock clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on September 15, 2019 she sustained a left ankle injury 

when she was struck by a pallet jack while in the performance of duty. She stopped work on 

September 15, 2019 and has not returned. OWCP accepted the claim for left foot displaced lateral 

cuneiform fracture, left foot displaced medial cuneiform fracture, left foot fracture, left foot 

navicular (scaphoid) displaced fracture, and complex regional pain syndrome of the left lower 

limb. OWCP paid appellant on the supplemental rolls commencing October 31, 2019 and on the 

periodic rolls commencing March 1, 2020. 

In a letter dated December 3, 2020, OWCP referred appellant, together with a statement of 

accepted facts (SOAF), medical record, and list of questions, for a second opinion evaluation with

Dr. Paul Teja, an osteopathic Board-certified orthopedic surgeon, to determine the status of her 

accepted conditions and work capacity.

In a report dated December 29, 2020, Dr. Teja noted appellant’s history of injury and 

medical course. He indicated that appellant’s physical examination revealed ambulation with a 

cane, significant left side antalgic gait, mild left foot swelling, a six centimeter (cm) incision along 

the mid left foot dorsum, a seven cm incision along the left foot medial border, left foot 

hypersensitivity, no left foot deformities were noted, significant tenderness noted diffusely from 

midfoot through first and second metatarsals through metatarsophalangeal joints up to the ankle 

joint both laterally and medially and slightly along the Achilles tendon insertion. Dr. Teja

diagnosed left foot lateral cuneiform displaced fracture, left foot medical cuneiform displaced 

fracture, left foot fracture, and left foot navicular displaced fracture. He found that appellant 

continued to suffer from left foot disabling residuals including decreased range of motion (ROM)

and significant left foot hypersensitivity and decreased sensation. Dr. Teja opined that appellant 

was disabled from her date-of-injury job, but was capable of working eight hours per day in a 

sedentary position. In an attached work capacity evaluation form (Form OWCP-5c), he provided 

work restrictions for a sedentary position, noting the length of the work restrictions was unknown 

and that she had not reached maximum medical improvement (MMI). The restrictions included: 

two hours of walking and standing; no bending/stooping, operating a motor vehicle at work, 

squatting, kneeling, and climbing; and eight hours of lifting, pulling, and pushing 10 pounds. 

On January 25, 2021 the employing establishment offered appellant a modified assignment 

as a customer care agent at the customer care center in Edison, NJ. The duties of the job required 

eight hours of handling inbound customer calls, eight hours of using the computer/telephone to 

interact by voice/e-mail, eight hours of researching information to answer and respond to 

customers, and eight hours of “see attached job description for additional duties.” It noted that the 

job was available indefinitely during appellant’s period of recovery while her work restrictions 

were temporary in nature.
3

On February 1, 2021 appellant rejected the job offer.

A January 25, 2021 x-ray demonstrated stable postoperative changes in the medial of the 

left midfoot, some sclerosis of the cuneiform consistent with healing, and small plantar spur.

In progress notes dated January 28, 2021, Dr. Frank Liporace, a Board-certified orthopedic 

surgeon, noted that appellant was doing well following removal of left foot hardware. On physical 

examination of the left foot, he reported no peri-incisional drainage or erythema, minimal 

tenderness along the mid foot and forefoot, and intact sensation to light tough over the lateral foot. 

Dr. Liporace noted that from an orthopedic perspective that nothing further could be done and 

referred her to physical medicine and rehabilitation (PM&R) for evaluation and management for 

her chronic pain due to the crush injury. 

In a report dated February 17, 2021, Dr. Basil Kurdali, a physician Board-certified in 

anesthesiology and interventional pain medicine, noted injury and medical histories, reviewed 

diagnostic tests, and provided physical examination findings. He reported lateral and medial 

malleolus tenderness, limited range of motion with pain on active plantar flexion and dorsiflexion, 

and well-healed incision along the dorsum and medical aspect without erythema. Diagnoses 

included: left foot complex regional pain syndrome (CRPS) and left ankle crush injury status post 

ORIF and removal of hardware. In an attached undated attending physician’s report (Form 

OWCP-20), Dr. Liporace diagnosed left foot crush status post ORIF and removal of hardware, and 

left foot CRPS. He advised that appellant was totally disabled beginning February 17, 2021, the 

date of his examination, and that she could not return to work at that time.

On March 3, 2021 OWCP requested Dr. Teja review a January 25, 2021 diagnostic test and

Dr. Liporace’s January 28, 2021 report and provide an opinion on whether appellant was able to 

return to work as per his December 29, 2020 report. It noted that appellant claimed she was unable 

to work due to nerve damage in her foot.

In a report dated March 17, 2021, Dr. Kurdali noted medical records reviewed and 

appellant’s complaints of constant left foot pain with associated swelling, which is aggravated by 

standing and walking. On physical examination of the left foot and ankle, he reported an antalgic 

gain with a cane, tenderness along medial and lateral malleolus, limited ROM, hypersensitivity to 

light touch along the dorsum of the foot, and swelling along the lateral and medial malleolus. 

Diagnoses included left foot CRPS and left ankle crush injury status post ORIF and removal of 

hardware. Dr. Kurdali recommended that appellant continue with physical therapy.

In a March 19, 2021 Form OWCP-20, Dr. Kurdali again related appellant’s diagnoses and 

related that appellant was totally disabled from work.

Dr. Teja, in an April 5, 2021 addendum, noted review of additional medical records. He 

opined that appellant was capable of performing light-duty sedentary work and that she was 

capable of performing the offered position. Dr. Teja advised that appellant’s restrictions were 

permanent.

In an April 21, 2021 report, Dr. Kurdali reiterated the findings noted in his prior reports.

In an e-mail dated May 5, 2021, the employing establishment confirmed that the offered 

job remained available for appellant and that she has not returned to work.
4

On May 11, 2021 OWCP advised appellant that it found the January 25, 2021 job offer was 

suitable work within the work limitations provided by Dr. Teja. It afforded her 30 days to accept 

the offered position or to provide valid reasons for refusal.

In a letter dated May 25, 2021, counsel asserted that the job offer was not suitable and 

submitted appellant’s statement, a February 11, 2021 Form CA-20, and a copy of the January 28, 

2021 report from Dr. Liporace. 

In a February 11, 2021 Form OWCP-20, Dr. Liporace noted an injury date of 

September 15, 2019 and found appellant totally disabled. He explained that appellant had longterm nerve pain/symptoms, no further orthopedic treatment was needed, and she had been referred 

to a pain management specialist for work status and care.

In a May 20, 2021 electromyograph (EMG) test, Dr. Fergie Montero-Cruz, an osteopath

and Board-certified physiatrist, diagnosed left L5 radiculopathy with active denervation and no 

evidence of peripheral neuropathy.

On May 28, 2021 Dr. Kurdali diagnosed left CRPS. A left lumbar L3 sympathetic block 

was performed for treatment of left foot CRPS.

Dr. Kurdali, in a report dated June 8, 2021, noted appellant’s medical history, reviewed

diagnostic tests, and related that her physical examination findings remained unchanged. He 

reviewed an electromyogram study (EMG) dated May 20, 2021 and related an impression of left 

L5-S1 radiculopathy. Dr. Kurdali diagnosed left lower limb CRPS and lumbar radiculopathy.

In a Form OWCP-20 dated June 11, 2021, Dr. Kurdali found appellant totally disabled 

from work. 

In a letter dated June 15, 2021, the employing establishment advised that the permanent 

rehabilitation assignment remained available to appellant until there was a change in her medical 

restrictions.

In progress notes dated July 7, 16, August 4, and September 8, 2021, Dr. Kurdali diagnosed 

lumbar radiculopathy, CRPS throughout appellant’s body, as well as CRPS of the left foot.

In a letter dated March 4, 2022, OWCP referred appellant, together with a SOAF, medical 

record, and list of questions, for a second opinion evaluation with Dr. Sean Lager, a Board-certified 

orthopedic surgeon, to determine the status of her accepted conditions and work capacity.

In a report dated March 31, 2022, Dr. Lager noted medical course, reviewed medical 

records, the SOAF, list of questions, and the modified job offer. He noted that OWCP had accepted 

lumbar and groin region sprains due to a February 18, 2007 injury under OWCP File No. 

xxxxxx248, accepted lumbosacral sprain due to a February 6, 2019 under OWCP File No. 

xxxxxx079, accepted left breast contusion due to a July 18, 2018 under OWCP File No. 

xxxxxx144. Dr. Lager also noted that appellant had filed a claim for a right shoulder injury due to 

an August 3, 2016 injury under OWCP File No. xxxxxx079, which had not been formally

adjudicated. On physical examination he provided findings regarding appellant’s left lower 

extremity, detailed a shuffling, labored gait, hyperpigmentation of the foot, no left foot medial 

sensation, and diminished left foot and ankle dorsolateral and plantar aspect sensation. Dr. Lager
5

reported decreased left foot and ankle ROM including 50 degrees left foot dorsiflexion, 10 degrees 

left plantar flexion, 6 degrees left inversion and no left eversion. Diagnoses include left foot 

displaced fracture of the lateral and medial cuneiforms and navicular bones and CRPS. Dr. Lager

opined that appellant was not able to return to her date-of-injury job, but was capable of performing 

a sedentary job with a 10-pound lifting restriction.

On April 26, 2022 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 

to 5 U.S.C. § 8106(c)(2).

OWCP received a May 16, 2022 progress report and Form OWCP-20 from Dr. Kurdali, 

wherein he reiterated his prior findings.

Physical therapist reports from Elise Burnell, dated May 23 and June 7, 2022 found 

appellant was capable of workingpart-time work for up to 5 hours and 17 minutes with restrictions. 

The restrictions include no stair climbing; occasional bending reaching, walking, squatting, sitting 

and standing, and occasional lifting, pushing, and pulling up to 10 pounds.

In a letter to the employing establishment dated June 17, 2022, OWCP advised the weight 

of the medical evidence rested with Dr. Lager’s March 31, 2022 report and requested it offer 

appellant a job with the restrictions noted by Dr. Lager. 

By decision dated June 23, 2022, 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. Teja in his December 29, 2020 report and April 5, 2021 

addendum and Dr. Lager’s March 31, 2022 report.

On June 30, 2022 appellant, through counsel requested a hearing before an OWCP hearing 

representative. A telephonic hearing was held on October 9, 2022. 

OWCP received additional progress reports from Dr. Kurdali dated August 10 and 

October 19, 2022.

By decision dated January 3, 2023, OWCP’s hearing representative affirmed OWCP’s

June 23, 2022 decision.

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.

4

 Section 8106(c)(2) of 

4

See S.W., Docket No. 20-0240 (issued January 26, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018); 

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECB 197 (2005).
6

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, 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.

6

 Section 8106(c)(2) of FECA 

(5 U.S.C. § 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.

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. 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

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 .

10

 OWCP’s 

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.

11

 In a suitable work 

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

evaluating an employee’s work capacity.

12

ANALYSIS

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

and entitlement to a schedule award, effective June 23, 2022.

OWCP accepted the claim for left foot displaced lateral cuneiform fracture, left foot 

displaced medial cuneiform fracture, left foot fracture, left foot navicular (scaphoid) displaced 

fracture, and left lower limb CRPS. OWCP determined that the January 25, 2021 job offer was 

5

5 U.S.C. § 8106(c)(2).

6 R.A., Docket No. 19-0065 (issued May 14, 2019); RonaldM. Jones, 52 ECAB 190 (2000); see also Federal 

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

7

S.W., supra note 4; S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a).

9

Id. at 10.516.

10 M.W., Docket No. 21-0649 (issued December 8, 2022); M.A.,Docket No. 18-1671 (issued June13, 2019); Gayle 

Harris, 52 ECAB 319 (2001).

11 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a 

(June 2013); see M.W., id.; E.B., Docket No. 13-0319 (issued May 14, 2013).

12 See M.W., id.; G.R.,Docket No. 16-0455 (issued December 13, 2016);RichardP. Cortes, 56 ECAB 200 (2004).
7

suitable and in accordance with the limitations provided by Dr. Teja in his December 29, 2020 

report, April 5, 2021 addendum, and confirmed by Dr. Lager in his March 31, 2022 report, after 

their review of appellant’s accepted conditions. However, Dr. Lager noted that appellant had prior 

injuries and had preexisting conditions of lumbar and groin region sprains, left breast contusion, 

and a right shoulder injury. Neither Dr. Teja nor Dr. Lager addressed whether appellant’s 

preexisting conditions caused additional disability. The Board also notes that Dr. Kurdali, in a 

report dated June 8, 2021, reviewed an electromyogram study (EMG) dated May 20, 2021 and 

related an impression of left L5-S1 radiculopathy. In subsequent progress reports dated from 

July 7, 2021. Dr. Kurdali diagnosed lumbar radiculopathy, CRPS throughout appellant’s body, as 

well as CRPS of the left foot.

In a suitable work determination, OWCP must consider preexisting and subsequentlyacquired medical conditions in evaluating an employee’s work capacity.

13

 As a penalty provision, 

the termination of compensation benefits is narrowly construed.

14

 

The Board finds that as OWCP did not obtain a medical opinion which addressed whether 

all of appellant’s preexisting and subsequently-acquired conditions affected her work capacity, 

OWCP failed to meet its burden of proof to terminate appellant’s compensation entitlement under 

5 U.S.C. § 8106(c)(2).

15

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 23, 2022. 

13 See J.M., Docket No. 23-0097 (issued June 21, 2023); L.H., Docket No. 21-0244 (issued October 27, 2022); 

B.H., Docket No. 20-0729 (issued March 19, 2021).

14 R.M., Docket No. 19-1236 (issued January 24, 2020); R.A., supra note 6.

15 B.G., Docket No. 21-1404 (issued August 3, 2022); C.M., Docket No. 19-1160 (issued January 10, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2023 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: October 31, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board