D.H. and U.S. Postal Service, Hartford Post Office (Board decision, March 12, 2025)

ECAB final decision. The Board reversed OWCP's termination of wage-loss and schedule-award benefits for refusal of a purportedly suitable job. 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 worker declined a modified rural carrier position after a work injury. Her physician and OWCP's referral physician disagreed about her work restrictions. The Board found that conflict prevented OWCP from proving the offered position was suitable and reversed the forfeiture.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Suitable-work benefit termination reversed.
• Key point: Unresolved medical disagreement prevented a suitable-work finding.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and ) Docket No. 25-0290
)
Issued: March 12, 2025
U.S. POSTAL SERVICE, HARTFORD POST )
OFFICE, Hartford, CT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Robert O. Laviana, Esq. 1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 4, 2025 appellant, through counsel, filed a timely appeal from a January 22, 2025 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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 Appellant, through counsel, timely requested oral argument before the Board, explaining her disagreement with OWCP’s decisions. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). The Board in exercising its discretion, denies appellant’s request for oral argument because this matter pertains to an evaluation of the weight of the medical evidence presented. As such, the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. Accordingly, the oral argument request is denied, and this decision is based on the case record as submitted to the Board. Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 4

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and entitlement to a schedule award, effective July 3, 2024, because she refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether appellant has met her burden of proof to establish that her refusal of suitable work was justified .

FACTUAL HISTORY

On November 3, 2021 appellant, then a 40-year-old rural delivery specialist, filed a traumatic injury claim (Form CA-1) alleging that on November 1, 2021 she injured her right foot when she retrieved and stepped awkwardly over a bucket in her long-life vehicle (LLV) while in the performance of duty. She stopped work on the date of injury. OWCP accepted the claim for right anterior talofibular ligament (ATFL) sprain, right peroneal tendon strain, and right posterior tibial tendon strain. It paid appellant wage-loss compensation on the supplemental rolls effective December 18, 2021, and on the periodic rolls, effective November 6, 2022.

On October 24, 2022 appellant underwent an OWCP-authorized surgery to the right ankle, performed by Dr. Vinayak Sathe, a Board-certified orthopedic surgeon, including right ankle arthroscopy with extensive debridement, lateral ligament repair with fiber tack suture anchors, and peroneus longus tendon debridement and repair.

An April 21, 2023 magnetic resonance imaging (MRI) scan of the right ankle demonstrated chronic tears of the ATFL and calcaneofibular ligament. The peroneus brevis and longus tendons were intact.

In a letter dated July 12, 2023, Dr. Sathe released appellant to return to part-time regular- duty work, three days per week, for two weeks. He noted that she would require assistance with heavy lifting. Dr. Sathe anticipated that appellant would thereafter be capable of returning to full- time, full-duty work.

On July 24, 2023 appellant accepted an offer for a part-time modified rural carrier position, with no lifting greater than 15 pounds.

In a follow-up report dated August 16, 2023, Dr. Sathe indicated that appellant related diffuse pain around the lateral aspect of the right ankle, hindfoot, medial aspect of the foot, and

3
5 U.S.C. § 8101 et seq.
4
The Board notes that, following the January 22, 2025 decision, OWCP received additional evidence. 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 plantar area. In a letter of even date, he recommended that she remain off work for the next six weeks and obtain a second opinion.

On December 28, 2023, OWCP referred the case record, a statement of accepted facts (SOAF), and a series of questions to Dr. John Corsetti, a Board-certified orthopedic surgeon, for a second opinion evaluation.

In a January 18, 2024 report, Dr. Corsetti reviewed the SOAF and medical evidence of record. He noted that appellant related complaints of right ankle pain, which she indicated had worsened since the October 24, 2022 surgery. Dr. Corsetti performed a physical examination, where he observed a reduced range of motion in plantar flexion and dorsiflexion and tenderness about the Achilles tendon posteriorly and along the peroneal tendon laterally . He also noted that appellant had full eversion and inversion and no instability. Dr. Corsetti diagnosed right lateral ankle sprain, status post ligament reconstruction, and chronic peroneal and Achilles tendinitis. He indicated that appellant was not capable of returning to her preinjury position due to ongoing pain but could perform full-time work with restrictions. In an attached work capacity evaluation (Form OWCP-5c), Dr. Corsetti released her to sedentary-duty work with one hour of walking, one hour of standing, lifting 10 pounds for up to two hours per day, and no climbing.5

In a medical report dated March 15, 2024, Dr. Amanda Fantry, a Board-certified orthopedic surgeon, noted that appellant complained of pain over her right lateral ankle, which she related had worsened since undergoing surgery. She performed a physical examination and noted pain during standing double heel raise, sensitivity over the surgical incision, tenderness over the peroneal and lateral ligaments, and very limited eversion. Dr. Fantry recommended an updated MRI scan.

In a letter dated April 16, 2024, the employing establishment offered appellant a limited- duty assignment, effective April 15, 2024, based on Dr. Corsetti’s January 18, 2024 second opinion evaluation. The position required intermittent mounted delivery (seated) for up to five to six hours per day and casing mail for up to three to four hours per day. The physical requirements of the position involved lifting 10 pounds intermittently for up to two hours per day , walking intermittently for up to one hour per day, and standing intermittently for up to one hour per day. The April 15, 2024 job offer also noted that appellant would be provided with a stool while casing mail, that she would receive assistance as needed with loading and unloading, and that there would be no climbing.

On April 18, 2024, appellant refused the job offer. She provided an April 18, 2024 letter by her counsel, who noted that she was awaiting an updated MRI scan and follow-up appointment

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On February 2, 2024, the employing establishment offered appellant a full-time modified rural carrier position, effective immediately. The position involved casing mail intermittently for up to three to four hours per day and performing mounted delivery intermittently for up to five to six hours per day. The physical requirements included lifting up to 10 pounds intermittently for up to two hours, walking intermittently for up to one hour, and standing intermittently for up to one hour. Appellant declined the job offer on February 6, 2024. On February 8, 2024, the employing establishment issued a revised job offer, which was identical to the previous offer but specified that the mounted delivery duty would be performed while seated. On March 6, 2024, appellant refused the job offer dated February 8, 2024.

3 by Dr. Fantry on May 2, 2024. Counsel asserted that operating an LLV would be outside the sedentary release by Dr. Corsetti due to use of foot controls.

On April 22, 2024, the employing establishment confirmed that the April 15, 2024 job offer remained available to appellant.

By letter dated April 22, 2024, OWCP advised appellant of its determination that the April 15, 2024 modified rural carrier position was suitable in accordance with the medical limitations provided by Dr. Corsetti in his January 18, 2024 report and remained available to her. It informed her that her compensation would be terminated, pursuant to 5 U.S.C. § 8106(c)(2), if she did not accept the position or provide good cause for not doing so within 30 days of the date of the letter.

By letter dated April 23, 2024 appellant, through counsel, noted that appellant was prohibited from driving an LLV due to a lack of mandatory driver retraining and that she was unable to effectively accelerate, brake, or dismount from the LLV or stand to case mail due to her right ankle condition. He enclosed an MRI referral order dated April 18, 2024 by Dr. Fantry, who indicated that she should remain off work until her next appointment on May 2, 2024.

An MRI scan of the right ankle dated April 25, 2024 demonstrated surgical changes and thinning of the peroneus longus around the midfoot.

In a medical report dated May 2, 2024, Dr. Fantry documented physical examination findings and reviewed the April 25, 2024 MRI scan of the right ankle. In a work status note of even date, she released appellant to return to seated work, effective May 10, 2024, and indicated that this restriction was permanent.

The employing establishment again confirmed that the April 15, 2024 job offer remained available.

By letter dated June 14, 2024, OWCP notified appellant that her reasons for refusing the April 15, 2024 position offered by the employing establishment were unjustified. It provided her 15-days to accept the position or have her entitlement to wage-loss compensation and schedule award compensation, pursuant to 5 U.S.C. § 8106(c)(2).

In a June 25, 2024 letter, counsel argued that the April 15, 2024 modified-duty job offer was outside the May 10, 2024 seated-duty work restrictions of Dr. Fantry, noting that a rural carrier must dismount an LLV to deliver certified mail, parcel, large envelope, and cluster box unit deliveries; that older LLV models required hyperextension of leg and foot operation; and that casing mail and loading an LLV required continuous standing.

The employing establishment again confirmed that the April 15, 2024 job offer remained available.

By decision dated July 3, 2024, OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule award, effective that date, pursuant to 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 work restrictions as provided by Dr. Corsetti in his January 18, 2024 report. OWCP also found that appellant’s reasons for job refusal were not justified.

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OWCP thereafter received a June 20, 2024 medical report by Dr. Fantry, who noted that appellant related that she was off ered “the same job that she is unable to do” and that she was “certainly incapable of delivering mail on a mail route secondary to her chronic ankle pain.” Dr. Fantry documented physical examination findings including pain and very limited eversion in the right ankle. She opined that appellant could perform “seated work only,” and that “she may participate in any type of office work where she may sit as needed but may not work on a mail route.”

On July 29, 2024 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

In an August 26, 2024 medical report and restriction assessment form, Dr. Fantry noted that appellant required help with parcels, frequent breaks as needed, use of her boot as needed, retraining, and a newer LLV vehicle. She also noted that she could not lift greater than 20 pounds independently, and was limited to intermittent standing, walking, and stair climbing.

In a September 19, 2024 note, Bonnie Lender, a physician assistant, recommended that appellant be permitted to work in a different location due to post-traumatic stress disorder symptoms “provoked by work and work-related events.”6

In a November 8, 2024 letter, counsel noted appellant’s application for reasonable accommodations.

A hearing was held on November 8, 2024.

OWCP thereafter received an April 11, 2024 medical report by Dr. Fantry, who documented physical examination findings including very limited right ankle eversion, tenderness, and pain throughout the entire ankle. In a September 26, 2024 medical report, Dr. Fantry related that appellant was offered a position which did not include her permanent restrictions .

In a narrative report dated November 20, 2024, John Chapdelaine, a licensed counselor, indicated that he had treated appellant for six years for emotional stress and anguish, which she attributed to harassment from her colleagues in August 2018 and her November 1, 2021 right foot injury. He related that she had difficulty with sleep and emotional regulation and had a depressed and anxious mood due to fear of financial instability.

In a December 12, 2024 permanent impairment evaluation report, Dr. Fantry indicated that appellant had permanent restrictions of driving only a new postal vehicle, needing help with parcels, rest as needed, wearing her boot as needed, and no lifting over 20 pounds independently.

In notes dated December 9, 2024 and January 16, 2025, Dr. Yanet Ravelo, a Board- certified internist, indicated that appellant related “emotional distress, depression, and anxiety related to workplace injury and harassment.” She indicated that she had reviewed

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OWCP assigned the current claim OWCP File No. xxxxxx552. Appellant previously filed occupational disease claims (Form CA-2) for April 1 and August 6, 2018 emotional conditions, which OWCP denied under OWCP File Nos. xxxxxx315 and xxxxxx447, respectively. She also filed a subsequent Form CA-2 for a November 20, 2024 emotional condition claim, which OWCP assigned File No. xxxxxx942. OWCP has not yet issued a formal decision with respect to the November 20, 2024 emotional condition claim.

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Mr. Chapdelaine’s November 20, 2024 narrative report and agreed with his assessment. Dr. Ravelo opined appellant’s inability to obtain adequate accommodations at work had worsened her mood and triggered anxiety and panic attacks.

By decision dated January 22, 2025, OWCP’s hearing representative affirmed OWCP’s July 3, 2024 decision terminating appellant’s wage-loss compensation and entitlement to a schedule award, effective that date, pursuant to 5 U.S.C. § 8106(c)(2), as she refused an offer of suitable work. 7

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. 8 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. 9 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 po sition or submit evidence to provide reasons why the position is not suitable. 10 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. 11

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, has the burden of showing that such refusal or failure to work was reasonable or justified. 12 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. 13

The determination of whether an employee is physically capable of performing a modified assignment is a medical question that must be resolved by probative medical evidence.14 OWCP’s

7
The hearing representative noted that appellant also claimed that she had an employment-related emotional/stress- related condition. Upon the return of the case record, OWCP was to administratively combine OWCP File Nos. xxxxx552, xxxxxx315, xxxxxx447, and xxxxxx942. Therefore, the issue of expansion of the claim to include an emotional/stress-related condition is in an interlocutory posture. See 20 C.F.R. 501.2(c)(2). 8 See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005). 9 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). 10 See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).
11
S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).
12
20 C.F.R. § 10.517(a).
13
Id. at § 10.516.
14
M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

6 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. 15 In a suitable work determination, OWCP must consider preexisting and subsequently acquired medical conditions in evaluating an employee’s work capacity. 16

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician (known as a referee physician or an impartial medical examiner (IME)) who shall make an examination.”17 This is called an impartial medical examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior connection with the case. 18 When there exist opposing medical reports of virtually equal weight and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special weight. 19

ANALYSIS -- ISSUE 1

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation and entitlement to schedule award benefits, effective July 3, 2024.

In a January 18, 2024 report, Dr. Corsetti, OWCP’s referral physician, reported the findings of his physical examination, including reduced range of motion in plantar flexion and dorsiflexion and tenderness about the Achilles tendon posteriorly and along the peroneal tendon laterally. He also noted that appellant had full eversion and inversion and no instability. Dr. Corsetti diagnosed right lateral ankle sprain, status post ligament reconstruction, and chronic peroneal and Achilles tendinitis. He indicated that appellant was not capable of returning to her full-duty position due to ongoing pain, but could return to full-time work with restrictions. Dr. Corsetti completed a Form OWCP-5c, noting that appellant was capable of sedentary duty work with one hour of walking, one hour of standing, no climbing, and lifting up to 10 pounds for up to two hours per day.

In contrast, in a medical report dated March 15, 2024, Dr. Fantry related that appellant complained of pain over her right lateral ankle, which she related had worsened since undergoing surgery. She noted pain during standing double heel raise, sensitivity over the surgical incision, tenderness over the peroneal and lateral ligaments, and very limited eversion. Dr. Fantry recommended an updated MRI scan. In a medical report dated May 2, 2024, Dr. Fantry documented physical examination findings and reviewed the April 25, 2024 MRI scan of the right

15
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).
16
See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).
17
5 U.S.C. § 8123(a).
18
20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).
19
See W.N., Docket No. 21-0123 (issued December 29, 2021); A.G., Docket No. 21-0315 (issued December 29, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001) James P. Roberts, 31 ECAB 1010 (1980).

7 ankle. In a work status note of even date, she released appellant to return to seated work, effective May 10, 2024, and indicated that this restriction was permanent.

As noted above, if there is a disagreement between an employee’s physician and an OWCP referral physician, OWCP will appoint an IME who shall make an examination. 20

As a penalty provision, section 8106(c)(2) must be narrowly construed. 21 Due to this conflict in the medical opinion evidence, OWCP improperly relied on the opinion of Dr. Corsetti in determining that appellant was physically capable of performing the modified rural carrier position.22 Therefore, it failed to establish that the modified rural carrier position was suitable, and appellant’s rejection of the position would not subject her to the penalty provisions of section 8106(c)(2) of FECA.23

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 July 3, 2024.

20
See E.B., Docket No. 23-0169 (issued August 24, 2023); S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
21
See J.O., Docket No. 24-0278 (issued May 17, 2024); B.H., Docket No. 22-0993 (issued November 28, 2022);
S.S., Docket No. 20-0123 (issued July 28, 2022); A.M., Docket No. 12-1301 (issued March 14, 2013). 22 5 U.S.C. § 8123(a); see F.S., Docket No. 23-0576 (issued October 2, 2023); E.L., Docket No. 20-0944 (issued August 30, 2021); D.M., Docket No. 18-0746 (issued November 26, 2018); P.R., Docket No. 18-0022 (issued April 9, 2018); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007). 23 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 January 22, 2025 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: March 12, 2025
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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