United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Northport, NY, Employer 

__________________________________________ 

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Docket No. 14-0621 

Issued: August 20, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 24, 2014 appellant, through counsel, filed a timely appeal of a 

December 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

concerning the termination of her monetary compensation based on her refusal of suitable work. 

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. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s compensation effective 

March 19, 2013 on the grounds that she refused an offer of suitable work, pursuant to 5 U.S.C. 

§ 8106(c). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 10, 2012 appellant, then a 56-year-old civilian pay technician, filed an 

occupational disease claim alleging that on June 14, 2007 she first realized that her bilateral 

carpal tunnel syndrome was due to her employment duties. OWCP accepted the claim for 

bilateral carpal tunnel syndrome and authorized right carpal tunnel surgery which occurred on 

October 8, 2012. Appellant stopped work on December 20, 2011. 

OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic surgeon. 

In an April 21, 2012 report, Dr. Sultan, reviewed the statement of accepted facts and 

medical evidence and conducted a physical examination. He diagnosed bilateral carpal tunnel 

syndrome which he attributed to appellant’s duties as a civilian pay technician. Dr. Sultan 

concluded that she was totally disabled from her date-of-injury position, but was capable of 

working full time in a limited-duty job with no repetitive movement of her wrists or hands. He 

stated that the duties appellant was able to perform included working as a receptionist, light 

clerical work, and answering the telephone. In concluding, Dr. Sultan related that following 

bilateral carpal tunnel surgery and postoperative exercises she could return to work for eight 

hours a day about three months after surgery. 

On December 21, 2012 OWCP referred appellant back to Dr. Sultan for a determination 

on her work capability. 

In a January 10, 2013 report, Dr. Sultan provided physical and range of motion findings 

for both hands and wrists. Based on this examination, he found appellant has restricted right 

wrist dorsiflexion and palmar flexion and the right carpal tunnel syndrome appeared in 

remission. However, Dr. Sultan noted that she had positive residual findings due to 

postoperative changes. He concluded that appellant’s left carpal tunnel syndrome appeared to be 

in remission as testing did not confirm any residual carpal tunnel. Dr. Sultan stated that left hand 

sensory testing revealed unremarkable provocative testing and a well preserved hand. Based on 

the positive right hand and wrist clinical findings, he indicated that appellant was capable of 

working an eight-hour day in sedentary or strict light work. Restrictions included avoiding 

repetitive activities such as computer work and typing and no lifting, pushing, or pulling more 

than 20 pounds at a time with both hands. Work activities appellant was capable of performing 

included: light file work; opening mail; and answering the telephone. 

On January 24, 2013 the employing establishment offered appellant the light-duty 

position of civilian pay technician. The job provided receptionist and telephone duties including: 

greeting visitors; scanning paperwork; proof reading; and working with payroll, accounting. The 

employing establishment noted the physical demands included up to one-hour of computer work 

(intermittent only), no over head lifting and a maximum 20 pounds of lifting, pushing and 

pulling. It stated that “[I]f necessary, assistive devices such as telephone headsets, worksite 

adjustments, ergonomic assessments, or tools may be considered.” The job offer also provided 

that the employee will be free to change positions as needed. 

By letter dated January 28, 2013, OWCP advised appellant of its determination that the 

civilian pay technician position offered by the employing establishment was suitable. It 
3

indicated that the position was based upon the opinion of Dr. Sultan who opined that appellant 

was capable of working eight hours a day with restrictions. The employing establishment 

confirmed that the position remained available to appellant. OWCP instructed appellant that she 

must, within 30 days, either accept the position or provide a written explanation of the reason she 

did not accept the position or she could lose her right to compensation under 5 U.S.C. § 8106(c) 

of FECA. 

In a January 28, 2013 letter, appellant noted that she had been approved to receive social 

security disability benefits and submitted a copy of the award. 

On February 1, 2013 OWCP received a January 23, 2013 disabilty note from Dr. Gus 

Katsigiorgis, a treating osteopathic and Board-certified orthopedic surgeon, indicating that she 

had received medical treatment that day and was totally disabled from working. 

In a February 4, 2013 letter, appellant stated that she refused the offered position as the 

right carpal tunnel surgery was only partially successful and she continues to have diffulty 

working with her right hand. She related that she had been approvded for social security 

disability benefits and submitted an application for disability retirement with the Office of 

Personnel Management. Appellant stated that she is currently attending physical therapy three 

times a week and she continues to experience a lot of pain in her right arm and hand. 

On February 15, 2013 OWCP received a February 1, 2013 report from Dr. Katsigiorgis 

prescibing physical therapy and restricting activities. A physical examination revealed restricted 

range of motion and tenderness of the right hand as well as increasing numbness. 

In a March 1, 2013 letter, OWCP found the reasons given by appellant for refusing the 

offered position were not valid. It gave her 15 additional days to accept the position or to make 

arrangements to report to this position. OWCP noted that if appellant did not accept the position 

within 15 days of the date of the letter, her right to compensation for wage loss or a schedule 

award would be terminated pursuant to section 8106 of FECA. It would not consider any further 

reasons for refusal. In a March 6, 2013 disabilty note, Dr. Katsigiorgis, indicated that appellant 

had received medical treatment that day and was totally disabled from working. 

By decision dated March 20, 2013, OWCP terminated appellant’s wage-loss 

compensation benefits effective March 19, 2013 on the grounds that she refused an offer of 

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

Subsequent to the decision OWCP received a March 14, 2013 report from 

Dr. Katsigiorgis prescibing physical therapy and restricted activities. A physical examination 

revealed restricted range of motion and tenderness of the right hand as well as increasing 

numbness. 

In an April 17, 2013 disabilty note, Dr. Katsigiorgis indicated that appellant had received 

medical treatment that day and was totally disabled from working. 

In a July 18, 2013 report, Dr. Katsigiorgis prescribed continued physical therapy and 

resticted activity. A physical examination of both hands revealed tenderness and intact 

neurovascularly. 
4

In an August 13, 2013 report, Dr. Katsigiorgis noted the medical and work histories. A 

physical examination of the right hand revealed tenderness and reduced range of motion in 

dorsiflexion and palmar flexion. Dr. Katsigiorgis reported left hand thenar atrophy, a positive 

carpal tunnel compression test for the left hand as well as positive Tinel’s and Phalen’s signs. 

Diagnoses included continued symptomatology in the right hand following carpal tunnel release 

and left carpal tunnel syndrome. Dr. Katsigiorgis recommened continued physical therapy and 

indicated that appellant was disabled from working. 

In a letter dated September 24, 2013, counsel requested reconsideration and submitted 

physical therapy notes for services rendered on behalf of Dr. Katsigiorgis as well as progress 

notes from himself in support of appellant’s request. He also argued that there was an 

unresolved conflict in the medical opinion evidence. 

By decision dated Decmeber 18, 2013, OWCP denied appellant’s request for 

modification of the March 20, 2013 decision terminating her wage-loss compensation pursuant 

to section 8106(c). 

LEGAL PRECEDENT 

Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek 

suitable work or refuses or neglects to work after suitable work is offered to, procured by or 

secured for her is not entitled to compensation.2 Once OWCP accepts a claim, it has the burden 

of justifying termination or modification of compensation benefits under section 8106(c) for 

refusing to accept or neglecting to perform suitable work.3 The Board has recognized that 

section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future 

compensation and, for this reason, will be narrowly construed.4 To justify termination, OWCP 

must show that the work offered was suitable and that appellant was informed of the 

consequences of her refusal to accept such employment.5

 According to OWCP procedure, a job 

offer must be in writing and contain a description of the duties to be performed and the specific 

physical requirements of the position.6 Section 10.516 of the Code of Federal Regulations7

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 showing before a 

determination is made with respect to termination of entitlement to compensation.8 

 2 Id. at § 8106(c)(2). 

3 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

4 H. Adrian Osborne, 48 ECAB 556 (1997). 

5 T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000). 

6 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.4(a) (July 1997). 

7

 20 C.F.R. § 10.516. 

8 See Camillo R. DeArcangelis, 42 ECAB 941 (1991). 
5

ANALYSIS 

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized 

right carpal tunnel surgery which occurred on October 8, 2012. In reports dated April 21, 2012 

and January 10, 2013, Dr. Sultan, a Board-certified orthopedic surgeon and OWCP referral 

physician, concluded that appellant’s positive clinical findings with regard to her right hand and 

wrist will prevent her from full unrestricted work activity as a civilian pay technician, however, 

she was capable of working eight hours a day in a limited-duty position such as answering the 

telephone, light clerical work and working as a receptionist. In his January 10, 2013 report, he 

indicated that she may engage in strict light or sedentary work for eight hours a day but should 

avoid repeated activities such as typing or doing computer work, light clerical work activities 

however would be permitted. Further, Dr. Sultan limited appellant to no more than 20 pounds of 

lifting, pushing, and pulling. 

On January 24, 2013 the employing establishment offered appellant a full-time position 

as a civilian pay technician, requiring up to one hour of intermittent computer work and scanning 

of paperwork. Appellant declined the position and noted that she had been approved for social 

security disability. Dr. Katsigiorgis indicated in various reports and disability notes that she was 

disabled from working and required continued physical therapy. 

OWCP advised appellant by a January 28, 2013 letter that the offered position was 

suitable work within her medical limitations. On March 1, 2013 it afforded her 15 days to accept 

the position or her wage-loss compensation benefits would be terminated. OWCP terminated 

appellant’s wage-loss compensation benefits and schedule award eligibility effective 

March 19, 2013 under section 8106(c) of FECA on the grounds that she had refused an offer of 

suitable work. The Board finds that the offered civilian pay technician position was suitable 

work as it was within medical restrictions provided by Dr. Sultan. 

The civilian pay technician position offered to appellant on January 24, 2013 required 

light or sedentary employment activity. Dr. Sultan is clear in his work restrictions that appellant 

avoid repetitive activities such as typing or computer work. The job offer provides for specific 

amounts of time for each series of light-duty activities. Included in the duties is intermittent use 

of a computer up to one hour a day. This singular activity of up to one hour a day does not 

constitute a repetitive activity through the course of an eight-hour workday. 

The Board therefore finds that the offered position was medically suitable and as such has 

met its burden of proof in terminating appellant’s wage-loss compensation. 

On appeal, appellant contends that the offered position was outside her work restrictions 

and that OWCP failed to consider medical evidence submitted by her treating physician. 

CONCLUSION 

The Board finds that OWCP met its burden to terminate appellant’s compensation 

benefits pursuant to 5 U.S.C. § 8106. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 18, 2013 is affirmed. 

Issued: August 20, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board