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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of MARVIN L. WYATT and U.S. POSTAL SERVICE,

CRANWOOD POST OFFICE, Cleveland, OH

 

Docket No. 97-2118; Submitted on the Record;

Issued August 19, 1999

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DECISION and ORDER

 

Before   DAVID S. GERSON, MICHAEL E. GROOM,

BRADLEY T. KNOTT

 

 

            The issue is whether the Office of Workers’ Compensation Programs properly terminated appellant’s compensation on the grounds that he refused an offer of suitable work.

            The Board has carefully reviewed the case record and finds that the Office met its burden of proof in terminating appellant’s compensation.

            Once the Office accepts a claim it has the burden of proving that the employee’s disability has ceased or lessened before it may terminate or modify compensation benefits.[1]  Section 8106(c)(2) of the Federal Employees’ Compensation Act[2] provides that the Office may terminate the compensation of a partially disabled employee who refuses or neglects to work after suitable work is offered to, procured by, or secured for the employee.[3]  The Board has recognized that section 8106(c) is a penalty provision that must be narrowly construed.[4]

            The implementing regulation[5] provides that an employee who refuses or neglects to work after suitable work has been offered or secured for the employee has the burden of showing that such refusal or failure to work was reasonable or justified and shall be provided with the opportunity to make such a showing before entitlement to compensation is terminated.[6]  To justify termination, the Office must show that the work offered was suitable and that appellant was informed of the consequences of his refusal to accept such employment.[7]

            Office procedures state 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.[8]  Unacceptable reasons include relocation, lack of promotion potential, or job security.[9]  Thus, the Board has held that if an employee on the employing establishment’s rolls moves from the area in which the employing establishment is located, such a move is an unacceptable reason for refusing an offer of suitable work.[10]  Similarly, personal desires to work certain hours or for a specific supervisor or in a particular location are unacceptable reasons for refusing suitable work.[11]

            In this case, appellant’s notice of traumatic injury, filed on May 26, 1989, was accepted for a temporary aggravation of the anterior cruciate ligament in his left knee, based on the report of Dr. R. Denison Stewart, a Board-certified orthopedic surgeon, who explained that appellant reinjured his chronically unstable knee when a bulk mail carrier struck him on April 11, 1989.[12]

            Appellant returned to limited duty on March 4, 1990, but filed notices of recurrence of disability on March 22, 1991 and July 15, 1992, which the Office accepted.  The Office also accepted a July 29, 1996 recurrence of disability and authorized a stabilizing knee brace for appellant.  She stopped work and did not return.

            On February 17, 1997 Dr. Stewart approved a modified carrier position offered by the employing establishment as within appellant’s physical restrictions.  He had stated in a letter dated October 21, 1996, that appellant could no longer perform the duties of a mail carrier because of the continuing instability in his left knee.

            On March 27, 1997 the Office informed appellant that the offered position had been found to be suitable and that he had 30 days to accept the job or provide reasons for refusing it.  Appellant failed to respond and on May 5, 1997 the Office terminated appellant’s compensation on the grounds that he had refused an offer of suitable work.

            On May 13, 1997 appellant’s representative requested reconsideration on the grounds that while appellant, a minister in his church, was physically capable of performing the job duties, the hours required -- 9:30 p.m. to 6:00 a.m. with Wednesday and Thursday nights off -- would “interfere with the practice of his religion.”  The representative added:  “if the job offer could be modified to accommodate [appellant’s] religious beliefs, it would then be acceptable.”

            On May 22, 1997 the Office denied appellant’s request on the grounds that the evidence submitted in support of reconsideration was irrelevant and, therefore, insufficient to warrant merit review of its prior decision.  The Office noted that religious reasons were not considered relevant on the issue of whether a job offer was suitable.

            The Board finds that appellant’s reasons for refusing the offered position are not justified.  The offered position was medically suitable because appellant’s long-time treating physician reviewed the duties of the modified carrier job and found appellant physically capable of performing the work despite his chronic knee problem.  Further, appellant admitted that he was not refusing the job offer for medical reasons.

            As the Office explained, acceptable reasons for refusing an offer of work found to be suitable are:  (1) withdrawal of the offered position, (2) medical evidence establishing that appellant’s condition has worsened to the point of preventing him from performing the duties of the offered position and (3) acceptance of other work that fairly and reasonably represents his wage-earning capacity.  Appellant’s proffered preference for a different work schedule for “religious reasons” does not justify his refusal of a valid job offer.[13]  His vague assertion on reconsideration about interference with the “practice of his religion” is insufficient to fall within any of the acceptable reasons for refusing an offered position.[14]

            The Board also finds that the Office complied with its procedural requirements by providing notice to appellant that the offered position was found to be suitable and that the penalty for unjustified refusal of the offer was termination of compensation.[15]  Because appellant did not respond to the Office’s March 27, 1997 letter and provide reasons for refusing the job

offer, the Office was not required to provide appellant with an additional 15 days to accept the suitable position.[16]

            The May 22 and May 5, 1997 decisions of the Office of Workers’ Compensation Programs are affirmed.

Dated,  Washington, D.C.

            August 19, 1999

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Bradley T. Knott

                                                                                                            Alternate Member