United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, RALEIGH 

PROCESSING & DISTRIBUTION CENTER, 

Raleigh, NC, Employer 

__________________________________________ 

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Docket No. 14-1378 

Issued: February 5, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 28, 2014 appellant, through his attorney, filed an appeal from a May 5, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). 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 benefits 

effective August 13, 2013, pursuant to 5 U.S.C. § 8106(c). 

On appeal his attorney asserts that the job offer was not valid, the position did not 

comport with appellant’s restrictions, and OWCP procedures were not followed. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, then a 47-year-old clerk, filed an occupational disease claim on 

January 11, 2004. He stopped work on December 19, 2003. OWCP accepted cervical disc 

displacement at C3-4 and C5-6 and authorized cervical discectomy and fusion surgery on 

August 30, 2005. Appellant received compensation benefits. After a brief return to work in 

November 2005, he sustained a recurrence of disability and was placed on the periodic rolls. 

On May 10, 2013 the employing establishment offered appellant a modified position as a 

custodial laborer for four hours daily.2

 It indicated that the position was based on a November 5, 

2012 report from Dr. Robert J. Wilson, an attending physician who is Board-certified in physical 

medicine, rehabilitation, and pain medicine, who provided permanent restrictions with physical 

activity limited to four hours a day and occasional lifting to 15 pounds. 

By letter dated July 3, 2013, OWCP advised appellant that the offered custodial position 

was suitable and provided him 30 days to either accept the position or to provide an explanation 

for his refusal. It further notified appellant of the penalties for refusing suitable work under 

section § 8106(c) of FECA.3

In response, on July 22, 2013 appellant submitted a May 14, 2013 report in which 

Dr. Wilson noted reviewing the duties of the position offered appellant and found that “all 

information really I think relates to quite a lot of repetitive bending and twisting activities. 

Clearly stated I did not want him to do any repetitive lifting, bending, [or] twisting activities as 

per his disability issues addressed November 15, 2012. I believe these issues spell out clearly his 

physical capabilities. I believe these issues are permanent as it relates to disability and would 

recommend no more than three to four hours per day activities with 10- to 15-minute breaks each 

hour.” 

On August 5, 2013 OWCP ascertained that appellant had not returned to work and that 

the offered position remained available. By decision dated August 13, 2013, it terminated 

appellant’s wage-loss compensation on the basis that he refused an offer of suitable work under 

section 8106(c). OWCP noted that appellant had not responded to the 30-day letter. 

Appellant timely requested a hearing that was held on February 18, 2014. At the hearing 

appellant’s attorney argued that OWCP committed procedural error by not considering the 

evidence sent in response to the 30-day letter. In a May 5, 2014 decision, an OWCP hearing 

representative affirmed the August 13, 2013 decision, finding that appellant could work within 

certain medical restrictions four hours per day. 

 2

 The position was effective “estimated June 1, 2013.” The duties included sweeping and mopping floors, 

occasionally emptying trash receptacles weighing less than 15 pounds, washing counters and table tops, dusting, 

vacuuming rugs, cleaning blinds, and washing glass doors and windows. The physical requirements were 

intermittent walking, standing, pushing, pulling and lifting of no more than 15 pounds, and 10- to 15-minute breaks 

each hour were provided. 

3

 5 U.S.C. § 8106(c). 
3

LEGAL PRECEDENT 

Section 8106(c) of FECA provides in pertinent part: “A partially disabled employee who 

(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4

 

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept 

suitable work or neglecting to perform suitable work.5

 The implementing regulations provide 

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, OWCP must show that the work offered was suitable and that 

appellant was informed of the consequences of his refusal to accept such employment.7

 In 

determining what constitutes “suitable work” for a particular disabled employee, OWCP 

considers the employee’s current physical limitations, whether the work is available within the 

employee’s demonstrated commuting area, the employee’s qualifications to perform such work, 

and other relevant factors.8

 The issue of whether an employee has the physical ability to perform 

a modified position offered by the employing establishment is primarily a medical question that 

must be resolved by medical evidence.9 OWCP 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.10 

When OWCP considers a job to be suitable, it shall advise the employee of its finding 

and afford him or her 30 days to either accept the job or present any reasons to counter OWCP’s 

finding of suitability.11 If the employee presents such reasons and OWCP determines that the 

reasons are unacceptable, it will notify the employee of that determination and further inform the 

employee that he has 15 days within which to accept the offered work without penalty.12 After 

providing the 30-day and 15-day notices, OWCP will terminate the employee’s entitlement to 

 4 Id. 

5 Joyce M. Doll, 53 ECAB 790 (2002). 

6

 20 C.F.R. § 10.517(a). 

7 Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 

818 (1992). 

8

 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004). 

9 Gayle Harris, 52 ECAB 319 (2001). 

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

Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000). 

11 20 C.F.R. § 10.516. 

12 Id. 
4

further wage-loss compensation and schedule award benefits.13 The employee, however, 

remains entitled to medical benefits.14 

ANALYSIS 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

compensation benefits as it did not comply with its own procedural requirements. As noted 

above, OWCP regulations and procedures and Board precedent provide that OWCP must inform 

the employee of the consequences of refusing suitable work and allow him an opportunity to 

provide reasons for declining the offered position.15 If the employee presents reasons for 

refusing the offered position, OWCP must inform him if it finds the reasons inadequate to justify 

the refusal of the offered position and afford the employee a final opportunity to accept the 

position.16 

Following receipt of the medical report from Dr. Wilson, who explained his opinion on 

the position offered, OWCP terminated appellant’s wage-loss benefits on August 13, 2013 

without advising him that the medical report was an insufficient basis upon which to refuse the 

position and that he had 15 days to accept the job offer without penalty. 

As asserted on appeal, the Board noted in the case Maxine D. Riggs,

17 as in the instant 

case, that while claimant did not either accept or reject the offered position, she had submitted a 

medical report from her physician which stated that the claimant continued to have difficulties 

with her back with radiation of pain to her lower right extremity. The Board found that, under 

current OWCP procedures, she was entitled to be notified that the report from her physician did 

not constitute good reasons for refusing the position. In addition, she was entitled to a 

reasonable amount of time to accept the job offer or face termination of benefits. 

In this case, as in Riggs,

18 appellant submitted a medical report in response to the 30-day 

OWCP letter. In issuing the August 13, 2013 decision, OWCP implicitly determined that the 

evidence submitted by appellant in support of his refusal to accept the offered position was 

unacceptable and in doing so, finalized its preliminary decision on suitability under section 

8106(c), thereby denying appellant an opportunity to accept the position.19 The Board finds that 

OWCP did not comply with the proper notice requirements prior to termination. Thus, under the 

facts of this case, OWCP committed error in its invocation of section 8106(c) and improperly 

 13 Id. at § 10.517(b). 

14 Id. 

15 Id. at §§ 10.516-10.517; Federal (FECA) Procedure Manual, supra note 10; see also Maggie L. Moore, supra 

note 7. 

16 Id. 

17 Docket No. 96-228 (issued November 10, 1997). 

18 Id. 

19 See A.W., Docket No. 13-1738 (issued December 17, 2013). 
5

terminated appellant’s compensation effective August 13, 2013 on the grounds that he refused 

suitable work.20 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits, effective August 13, 2013, pursuant to 5 U.S.C. § 8106(c). 

ORDER 

IT IS HEREBY ORDERED THAT the May 5, 2014 decision of the Office of Workers’ 

Compensation Programs is reversed. 

Issued: February 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 20 See A.H., Docket No. 13-686 (issued June 15, 2013).