United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

DEPARTMENT OF THE ARMY, 

FORT POLK, LA, Employer 

__________________________________________ 

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Docket No. 15-1539 

Issued: November 18, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 8, 2015 appellant, through counsel, filed a timely appeal of a March 30, 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 OWCP properly terminated appellant’s compensation benefits 

effective August 26, 2012 pursuant to 5 U.S.C. § 8106(c)(2). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has been before the Board on prior appeal.2 On November 15, 2013 the Board 

affirmed the termination of compensation benefits, effective August 26, 2012, pursuant to 

5 U.S.C. § 8106(c)(2) as appellant had refused an offer of suitable work.3 The facts relevant to 

this appeal are set forth below. 

On June 30, 2009 appellant, then a 41-year-old nursing assistant, injured her right ankle. 

OWCP accepted a claim for right ankle fracture and nonunion of right ankle fracture. It paid 

appellant compensation for temporary total disability compensation. 

On June 14, 2010 appellant underwent right foot bone graft surgery to repair the 

nonunion of the right distal fibula. The procedure was performed by Dr. J. David De Lapp, 

Board-certified in orthopedic surgery. 

In a February 4, 2012 report, Dr. Oghale Eleyae, a specialist in podiatry, noted 

appellant’s history of right foot pain and trauma. He advised that she had developed arthritis in 

her right ankle and was experiencing sharp and burning pain with walking. Dr. Eleyae reported 

that appellant had developed chronic regional pain syndrome. He advised that she had been 

restricted to a desk chair but still complained of pain and swelling to her right foot and ankle 

after sitting for long periods. Dr. Eleyae opined that appellant would not be able continue 

working even with light-duty limitations. He recommended that she be referred to her primary 

care physician for a disability evaluation. 

In order to determine appellant’s current condition and ascertain her ability to engage in 

gainful employment, she was referred to Dr. John P. Sandifer, Board-certified in orthopedic 

surgery, for a second opinion examination. In a report dated February 14, 2012, Dr. Sandifer 

advised that appellant had continued complaints of pain and numbness in her right ankle and 

right foot and had apparently developed reflex sympathetic dystrophy. He noted that appellant 

had also undergone additional surgery for extensive tendon repair. Dr. Sandifer reported that 

appellant was not able to return to her prior employment as a nursing assistant; he opined, 

however, that she could work in a limited work, sedentary job. He outlined restrictions of no 

standing for more than 15 to 20 minutes at a time or more than 2 hours in an 8-hour day. 

Dr. Sandifer asserted that appellant needed to elevate her foot and ankle frequently, during the 

day. In a work capacity evaluation accompanying his report, he noted that she could work an 

eight-hour a day with these additional restrictions: intermittent sitting for no more than four 

hours per day; walking, standing and lifting not exceeding five pounds for no more than 

one-hour per day; pushing, pulling not exceeding five pounds for no more than two hours per 

day; and no bending, stooping, squatting, kneeling, or climbing. 

 2

 In Docket No. 12-624 (issued August 2, 2012) the Board found that OWCP properly determined that appellant 

had received an overpayment of compensation due to the incorrect deduction of health benefit premiums and that the 

overpayment should not be waived. 

3

 Docket No. 13-1046 (issued November 15, 2013). 
3

On March 14, 2012 Dr. De Lapp advised with his signature that he approved of 

Dr. Sandifer’s opinion that appellant could work an eight-hour day within his reported 

restrictions, for one year. 

On March 30, 2012 the employing establishment offered appellant a job as a modified 

nursing assistant based on the restrictions set forth by Dr. Sandifer and approved by 

Dr. De Lapp. The job entailed calling patients to verify appointments; taking vital signs sitting 

down or intermittently standing up; advising patients of their appointment time; advising patients 

to reschedule appointments if they cancelled; providing patients with the appointment line 

number to reschedule appointments; bringing specimens to the lab twice a day; communicating 

closely with providers and coworkers; attending a four-hour BLS class; intermittently weighing 

adult patients by having them step on a scale and using a computer with her left hand and arm 

only. In addition, the employing establishment noted that appellant would be provided with a 

foot stool to elevate her right ankle and would be permitted to intermittently stand up and move 

around as needed. 

On March 30, 2012 appellant accepted the employing establishment’s modified job offer. 

The employing establishment advised, however, that on April 3, 2012 she contacted her 

supervisor and requested that she be placed in a leave-without-pay status. 

In an April 5, 2012 report, Dr. De Lapp noted that appellant still had pain and swelling in 

her right ankle but was feeling much better. He advised that her condition was essentially the 

same as it had been and had basically stabilized since her distal fibula procedure. Dr. De Lapp 

related that appellant’s supervisors believed that appellant could continue to perform light duty, 

though she did not think they had actually made any accommodations for her. He advised that 

appellant was under the influence of prescription narcotics and felt very distraught and anxious 

about her multiple problems, including her foot, ankle, and hip. 

Dr. De Lapp noted that x-rays of appellant’s right ankle showed a well-healed distal 

fibula previous nonunion, with intact hardware, no evidence of loosening and no acute bony 

abnormalities. He also advised that she had a negative bone scan for complex regional pain 

syndrome. Dr. De Lapp opined that appellant could continue light duty pursuant to the 

functional capacity evaluation he had submitted with his report. He submitted an April 5, 2012 

duty status report (Form CA-17) which outlined restrictions of intermittent simple grasping and 

fine manipulation for four hours per day; intermittent sitting, standing, and walking for no more 

than four hours per day; intermittent bending, stooping twisting, pulling, pushing and reaching 

above her shoulder for no more than one-hour per day and intermittent lifting not exceeding 10 

pounds for no more than one-hour per day. 

By letter dated June 5, 2012, OWCP advised the claimant that the offered position was 

suitable, advised her of the sanctions for refusal of suitable work, and allowed her 30 days to 

reply. No response was received.4

 

 4

 Appellant did file a Form CA-7, requesting a schedule award on June 27, 2012. 
4

By letter dated July 6, 2012, OWCP advised appellant that the modified manual 

distribution job was suitable and that she had provided no valid reason for refusing the suitable 

position. Appellant was advised that, pursuant to section 8106(c)(2), she had 15 days to accept 

the job otherwise her entitlement to compensation benefits would be terminated. She did not 

respond within the allotted time. 

By decision dated August 13, 2012, OWCP terminated appellant’s eligibility for 

compensation benefits and for schedule award benefits effective August 26, 2012 as she had 

refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). It found that the position 

offered by the employing establishment was within her treating physician’s prescribed work 

restrictions and found that the medical evidence established that she was capable of performing 

the modified nursing assistant’s job. OWCP also noted that appellant had been afforded the 

requisite 15-day notice and opportunity to comply with 5 U.S.C. § 8106(c)(2). Appellant did file 

a Form CA-7, requesting a schedule award on June 27, 2012. 

By letter dated August 23, 2012, counsel requested an oral hearing, which was held 

before an OWCP hearing representative on December 7, 2012. 

By decision dated February 20, 2013, an OWCP hearing representative affirmed the 

August 13, 2012 decision. 

Appellant, through counsel, timely appealed the Board’s decision on March 26, 2013. In 

a decision dated November 15, 2013, the Board affirmed OWCP’s February 20, 2013 decision.5

 

On November 13, 2014 appellant, through counsel, requested reconsideration. Appellant 

submitted a November 13, 2014 report from Dr. Barton L. Warren, Board-certified in orthopedic 

surgery, who noted that she was having difficulty maintaining her weight due to a loss of 

appetite; he noted that she had lost over 100 pounds in recent months and was experiencing 

severe right foot pain which limited her ability to work. Dr. Warren advised that appellant had 

several other orthopedic problems which caused her constant pain and was also experiencing 

severe depression and anxiety. He asserted that she continued to have severe emotional fallout 

due to the fact that she had always worked but was no longer able to keep up the pace she 

maintained prior to the injury, and was currently unable to engage in gainful employment. 

Dr. Warren opined that appellant’s severe depression and anxiety led her to develop 

psychomotor retardation, and insomnia. He asserted that she was severely depressed and had 

nutritional deficiencies which were causing her to be significantly weak and fatigued. 

By decision dated March 30, 2015, OWCP denied modification of the August 13, 2012 

decision. 

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.”6

 

 5

 Docket No. 13-1046 (issued November 15, 2013). 

6

 5 U.S.C. § 8106(c). 
5

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

suitable work or neglecting to perform suitable work.7

 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.8

 

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.9

 In 

determining what constitutes “suitable work” for a particular disabled employee, it 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.10 Section 8106(c) 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

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.12 It is well established that OWCP must consider preexisting and 

subsequently acquired conditions in the evaluation of suitability of an offered position.13

ANALYSIS 

The Board finds that appellant has not met her burden of proof to establish that the 

March 30, 2012 job offer was not suitable and that her refusal to accept the offer was reasonable 

or justified. As noted above, OWCP terminated appellant’s monetary compensation effective 

August 26, 2012 on the basis that she refused a March 30, 2012 offer of suitable work. It found 

that the weight of the medical evidence established that the modified nursing assistant’s position 

was within the physical restrictions set forth by Dr. Sandifer, the referral physician, and 

approved by Dr. De Lapp, her treating physician. The Board’s previous review of evidence 

regarding the suitable work termination is res judicata.

14 The issue currently on appeal is 

whether the evidence submitted established that the termination decision should be modified. 

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

8

 20 C.F.R. § 10.517(a). 

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

818 (1992). 

10 20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004). 

11 Gloria G. Godfrey, 52 ECAB 486 (2001). 

12 Gayle Harris, 52 ECAB 319 (2001). 

13 Richard P. Cortes, 56 ECAB 200 (2004). 

14 See G.S., Docket No. 14-408 (issued June 10, 2014). 
6

The Board has explained that, if a claimant requests reconsideration of a suitable work 

termination, the issue remains whether appellant has established that she was unable to perform 

the duties of the offered position, as of the date of the termination.15 

Appellant requested reconsideration and submitted the November 13, 2014 report from 

Dr. Warren, who opined that she was experiencing weight loss due to loss of appetite, additional 

orthopedic problems which caused her constant pain, and severe depression, and anxiety. 

Dr. Warren asserted that she continued to have severe emotional fallout due to the fact that she 

had always worked but was no longer able to keep up the pace she maintained prior to the injury 

and was currently unable to engage in gainful employment she was disabled. He opined that 

appellant’s severe depression and anxiety led her to develop psychomotor retardation, and 

insomnia. Dr. Warren asserted that she was severely depressed and had nutritional deficiencies 

which were leading her to be significantly weak and fatigued a diagnosis of reflex sympathy 

dystrophy. He, however, did not address the central issue in this case, that is whether appellant 

was unable to perform the duties of the offered position as of the date of termination. Such an 

explanation is necessary to support that appellant was disabled from performing the offered 

position to reverse the sanction decision.16 An employee who refuses or neglects to work after 

suitable work has been offered has the burden of showing that such refusal to work was 

justified.17 As appellant has still failed to provide an acceptable reason for neglecting to work in 

the suitable work position, OWCP properly denied modification of its sanction decision. 

The Board finds that OWCP properly terminated appellant’s monetary compensation due 

to her refusal of suitable work and that she did not thereafter establish that her refusal of suitable 

work was justified. The Board therefore affirms OWCP’s March 30, 2015 decision denying 

modification of the August 13, 2012 decision which terminated appellant’s compensation 

pursuant to 5 U.S.C. § 8106(c)(2). 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation 

pursuant to 5 U.S.C. § 8106(c)(2). 

 15 See J.J., Docket No. 14-951 (issued September 2, 2014). 

16 Id. 

17 5 U.S.C. § 8106(c)(2). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 18, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board