United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.V., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

BROCKTON VETERANS ADMINISTRATION 

MEDICAL CENTER, Brockton, MA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1845 

Issued: February 2, 2016 

Appearances: Case Submitted on the Record

Allan J. Shapiro, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant, through counsel, filed a timely appeal of the June 8, 

2015 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 appellant has established that his refusal of suitable work was 

justified. 

FACTUAL HISTORY 

This case has been before this Board on prior appeal. The facts as set forth in the Board’s 

previous decision are incorporated herein by reference.2 The relevant facts are as follows. On 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 14-1181 (issued October 20, 2014). 
2

April 15, 2009 appellant, then a 54-year-old housekeeping aid, filed a traumatic injury claim 

(Form CA-1) alleging that on April 10, 2009 he sustained a right knee sprain while “bending 

down cleaning.” OWCP accepted his claim for right knee strain, effusion right knee, and 

chondromalacia patella. It paid appellant wage-loss compensation and medical benefits and 

placed him on the periodic rolls effective December 19, 2010. A dispute arose between 

appellant’s treating Board-certified orthopedic surgeon, Dr. Anthony Schena, and the second 

opinion Board-certified orthopedic surgeon, Dr. Stanley Hom, with regard to the nature of 

appellant’s work capacity. In order to resolve the conflict, OWCP referred appellant for an 

impartial medical examination with Dr. Harvey Taylor, a Board-certified orthopedic surgeon. 

Dr. Taylor diagnosed appellant with right knee patellofemoral degenerative joint disease, 

right knee status post trochlear resurfacing and patellar replacement, and significant right 

quadriceps weakness. He opined that appellant’s current condition was 50 percent related to his 

preexisting patellofemoral arthritis and 50 percent related to his significant quadriceps weakness. 

Dr. Taylor placed restrictions on appellant, of standing and walking limited to 15 to 20 minutes a 

day, driving to work limited to 15 to 20 minutes, lifting limited to one to two pounds, and he 

prohibited appellant from bending/stooping, squatting, kneeling, and climbing. 

By letter dated April 1, 2013, the employing establishment offered appellant a position as 

a housekeeping aide in patient effects which was within the limitations as set by Dr. Taylor. It 

indicated that it was prepared to offer appellant a transit subsidy for his commute. Although 

appellant initially accepted the offer, there was evidence that he was disruptive and did not 

cooperate with the employing establishment with regard to accepting the position. On July 3, 

2013 OWCP issued a decision terminating appellant’s compensation effective July 28, 2013 for 

refusal of suitable work, and a hearing representative affirmed this determination in a decision 

dated December 16, 2013. The Board affirmed this determination on October 20, 2014, finding 

that the employing establishment offered appellant a position that was medically and 

vocationally suitable and that OWCP complied with the procedural requirements of section 

8106(c).3

 

By letter dated November 25, 2014, appellant, through counsel, requested reconsideration 

and again argued that the employing establishment refused to employ appellant. In support 

thereof, appellant submitted a certificate of medical examination signed by a nurse practitioner 

whose signature is illegible at the employing establishment on June 27, 2013, wherein she listed 

appellant’s work restrictions and indicated that appellant may walk no more than 10 to 15 

minutes, stand for more than 15 to 20 minutes, and that lifting was limited to one to two pounds. 

The nurse practitioner noted that appellant was prohibited from bending, stooping, squatting, 

kneeling, or climbing, and was only allowed to operate a motor vehicle to and from work for 15 

to 20 minutes. She checked a box indicating a recommendation that the employing 

establishment “take action to separate or do not hire,” and noted that appellant was “unable to 

meet current restrictions.” 

Appellant also submitted a December 8, 2014 medical report detailing an examination of 

that date by Dr. Schena. Dr. Schena noted that appellant did have some mild swelling in his 

knee and a 1+ effusion, but when compared to his last visit, his quadriceps were stronger and 

 3 Id. 
3

bulkier. He noted that appellant still did not have full strength when compared to his left side, 

but that his quad strength was much better. Dr. Schena suspected that the swelling and stiffness 

that appellant has been experiencing was secondary to the chondromalacia noted at the time of 

his last surgery. He stated that as long as appellant was not having any pain and as long as his 

knee continued to function as it was, he would not recommend any intervention. 

In a March 5, 2015 letter, the employing establishment argued that the prior decisions 

should be affirmed, noting that the factual evidence failed to support that appellant was incapable 

of performing the duties outlined in the April 1, 2013 job offer. It contended that appellant’s 

own actions on June 27, 2013 led to the delay in his return to work.4

 The employing 

establishment stated that on that date the nurse practitioner noted that appellant’s pain was 8/10 

as compared to 7 days prior when it was 1/10. Appellant informed the nurse practitioner that he 

could not do the job offer, and that one of the workers’ compensation specialists, Ray Collins, 

came down to deal with appellant and his concerns. The nurse practitioner contended that during 

this encounter appellant became verbally abusive towards Mr. Collins. 

By decision dated June 8, 2015, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.5

 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.6 OWCP may not terminate 

compensation without establishing that the disability ceased or that it is no longer related to the 

employment.7 The Board has stated that monetary compensation payable to an employee under 

section 8107 are payments made from the Employees’ Compensation Fund and are, therefore, 

subject to provision of section 8106(c).8

Section 10.517(a) of FECA’s implementing regulations provide that an employee who 

refused to work after suitable work has been offered to or secured for the employee has the 

burden of showing that such refusal or failure to work was reasonable or justified.9 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.10

 4

 Although the employing establishment indicated June 27, 2014 as the date, it is clear from the context of the 

statement that June 27, 2014 is the correct date. 

5 Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995); see also M.B., Docket No. 

12-728 (issued September 26, 2012). 

6

 5 U.S.C. § 8106(c)(2); see also Linda D. Guerro, 54 ECAB 556 (2003). 

7 Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995). 

8 Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992). 

9

 20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 7. 

10 Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004). 
4

After termination or modification of benefits clearly warranted on the basis of the 

evidence, the burden for reinstating compensation benefits shifts to appellant.11

ANALYSIS 

The Board finds that appellant has failed to submit evidence sufficient to modify the prior 

determination that OWCP properly terminated appellant’s compensation for his refusal to accept 

a suitable offer of employment. 

The Board has previously determined that the position of the modified housekeeping aide 

offered by the employing establishment was suitable for appellant, as it was within the work 

capacity limitations set by the impartial medical examiner, Dr. Taylor. On appeal appellant 

submitted a certificate of medical examination by an unknown nurse practitioner for the 

employing establishment, dated June 27, 2013, wherein she indicated that action should be taken 

to separate or not hire as appellant was “unable to meet the current restrictions.” The nurse 

practitioner noted that appellant could only walk for 15 to 20 minutes, stand for 15 to 20 

minutes, lift one to two pounds, and operate a motor vehicle to and from work for 15 to 20 

minutes. She noted that appellant was unable to bend, stoop, squat, kneel or climb. These are 

the very restrictions set by Dr. Taylor and the restrictions that were utilized to develop the 

position of modified housekeeping aide for appellant. Even though certain boxes were checked 

by the nurse practitioner who made certain recommendations, her entire report does not 

constitute probative medical opinion evidence as a nurse practitioner is not considered a 

physician as defined under FECA.12 

The employing establishment has consistently stated that the position of modified 

housekeeping aide was available to appellant, and that it was appellant’s refusal to cooperate 

with the process of returning to work which resulted in his not being able to work at the 

employing establishment. 

Appellant also submitted a new medical report by Dr. Schena dated December 8, 2014. 

However, Dr. Schena did not discuss any work restrictions, and noted that, although appellant 

had some mild swelling in his knee, his quadriceps was stronger and bulkier. He did not indicate 

that appellant could not perform the duties of the job assignment. Furthermore, the Board notes 

that Dr. Schena was on one side of a conflict in medical evidence that was resolved by 

Dr. Taylor and Dr. Schena did not provide any new findings or rationale to support a greater 

restriction on appellant’s ability to work. Reports from a physician who was on one side of a 

medical conflict that an impartial medical examiner resolved are generally insufficient to 

 11 Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992). 

12 L.B., Docket No. 13-1253 (issued September 18, 2013) (physician assistants, physical therapists, physical 

therapy assistants, and nurse practitioners do not qualify as physicians under FECA and therefore their medical 

reports do not qualify as probative medical evidence supportive of a claim for federal workers’ compensation, unless 

such medical reports are countersigned by a physician). See 5 U.S.C. § 8101(2) (defines the term physician as used 

in FECA); see also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in 

general, can only be given by a qualified physician). 
5

overcome the weight accorded to the report of the impartial medical examiner, or to create a new 

conflict.13

Accordingly, after reviewing the new evidence of record, the Board finds that the 

position offered by the employing establishment was medically and vocationally suitable. The 

evidence submitted is not sufficient to establish that the refusal to accept the suitable job offer 

was justified. It is appellant’s burden of proof and he has not met his burden in this case.14

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 established that his refusal of suitable work was 

justified. 

 13 I.J., 59 ECAB 408, 414 (2008) 

14 See, e.g., Hazel N. Clark, Docket No. 04-0905 (issued August 13, 2004) (the Board had previously found the 

offered position to be suitable. Appellant requested reconsideration. The Board affirmed OWCP’s finding that 

appellant did not meet her burden of proof to establish that her refusal to accept the suitable job offer was justified. 
6

ORDER 

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

Compensation Programs dated June 8, 2015 is affirmed. 

Issued: February 2, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board