M.S. and U.S. Postal Service, Ricon Station (Board decision, May 2, 2025)

ECAB final decision. The Board affirmed OWCP's decision that the postal worker had not justified refusing suitable work. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal carrier challenged OWCP's finding that she refused a suitable job after an accepted right-hand condition. The Board reviewed her stated reasons for declining the offer and found they did not establish a justified refusal under FECA. It affirmed OWCP's decision on suitable work.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Suitable-work refusal finding affirmed.
• Key point: The record did not establish a valid reason for declining the offered suitable position.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.S., Appellant
)
)
and ) Docket No. 22-0867
)
Issued: May 2, 2025
U.S. POSTAL SERVICE, RICON STATION, )
POST OFFICE, Tucson, AZ, Employer )
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
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 May16, 2022 appellant, through counsel, filed a timely appeal from an April 12, 2022 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.

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.
ISSUE

The issue is whether appellant has met her burden of proof to establish that her refusal of suitable work was justified.

FACTUAL HISTORY

This case has previously been before the Board. 3 The facts and circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease claim (Form CA-2) alleging that she sustained a right-hand condition causally related to factors of her federal employment, including repeated trauma caused by casing and carrying mail. OWCP accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the right hand. It paid appellant wage-loss compensation on the supplemental rolls effective October 29, 2016, and on the periodic rolls effective April 2, 2017.

On May 30, 2019 the employing establishment offered appellant a position as a modified city carrier. The duties included assisting customers at the lobby window, providing verbal information and directions for six to seven hours per day; safety observations, intermittently observing inside work areas and outside areas for potential safety hazards and reporting to management for one to three hours per day; and answering telephones intermittently for up to one hour per day. The physical requirements included sitting/walking/standing and changing positions as needed for up to eight hours; rare repetitive movement of the right wrist (per IME limit of four hours per day); occasionally pushing, pulling, and lifting no more than 10 pounds intermittently from one to four hours per day; no heavy lifting, intermittent simple grasp, nonrepetitive up to four hours per day; no casing mail; and no driving work vehicle.

Appellant refused the position on June 24, 2019.

By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss compensation and schedule award benefits, effective October 3, 2019, based on her refusal of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

On October 18, 2019 appellant requested reconsideration of the October 3, 2019 termination decision. She resubmitted medical evidence previously of record, including a November 9, 2017 narrative report and a November 9, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R. Klein, a Board-certified orthopedic surgeon.

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified orthopedic surgeon, noted that appellant had returned to work. He indicated that she was “doing well,” but with continued pain on the ulnar side of her right wrist.

3
Docket No. 21-1087 (issued March 1, 2022); Docket No. 20-0676 (issued May 6, 2021).

2
On February 6, 2020 appellant appealed the October 3, 2019 termination decision to the Board.

OWCP subsequently received a February 7, 2020 work release form bearing an illegible signature. It also received copies of medical reports previously of record.

By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and entitlement to schedule award benefits, effective October 3, 2019, as she refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

On May 14, 2021 appellant, through counsel, requested reconsideration.

By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for reconsideration, pursuant to 5 U.S.C. § 8128(a).

On July 12, 2021 appellant, through counsel, filed a timely appeal from the June 1, 2021 nonmerit decision of OWCP.

By decision dated March 1, 2022, the Board set aside OWCP’s June 1, 2021 decision, finding that the case was not in posture for decision as OWCP had not reviewed evidence submitted on reconsideration, including a December 20, 2019 progress report from Dr. Braunstein and a February 7, 2020 work release form. The Board remanded the case for OWCP to consider and address all of the evidence of record to be followed by a de novo decision.

By decision dated April 12, 2022, OWCP denied modification.

LEGAL PRECEDENT

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.4 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. 5

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that her refusal of suitable work was justified.

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant submitted prior to the issuance of the October 3, 2019 termination decision because the Board

4
Id. at § 10.517(a).
5
M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

3 considered that evidence in its May 6, 2021 decision. Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 8128 of FECA. 6

Following OWCP’s October 3, 2019 termination decision, appellant submitted a December 20, 2019 report, wherein Dr. Braunstein noted that appellant had returned to work. He indicated that she was “doing well,” but with continued pain on the ulnar side of her right wrist. Dr. Braunstein, however, did not provide an opinion regarding whether appellant could perform the modified job duties.7

OWCP also received a February 7, 2020 work release form bearing an illegible signature.
The Board has held that a report that is unsigned or bears an illegible signature is not considered probative medical evidence since the author cannot be identified as a physician. 8

Appellant also resubmitted duplicate copies of documents. However, these documents were previously reviewed and considered by OWCP. 9

As the evidence submitted by appellant in support of her refusal of the modified city carrier position is insufficient to justify her refusal of the position, the Board finds that she has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that her refusal of suitable work was justified.

6
M.V., Docket No. 24-0092 (issued March 28, 2024); R.P., Docket No. 23-0638 (issued November 30, 2023); A.D., Docket No. 20-0553 (issued April 19, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998).

7
See E.C., Docket No. 21-1275 (issued March 21, 2023); H.T., Docket No. 18-1161 (issued March 20, 2019).
8
See T.J., Docket No. 22-0729 (issued November 15, 2022); R.C., Docket No. 20-1525 (issued June 8, 2021);
I.M., Docket No. 19-1038 (issued January 23, 2020).
9
See supra note 4.

4
ORDER

IT IS HEREBY ORDERED THAT the April 12, 2022 merit decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 2, 2025
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

5