United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NATIONAL CEMETARY, Eagle Point, OR, 

Employer 

__________________________________________ 

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Docket No. 16-1913 

Issued: April 11, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 29, 2016 appellant filed a timely appeal from a June 23, 2016 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.2

ISSUE 

The issue is whether OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits effective June 23, 2016 under 5 U.S.C. § 8106(c)(2) for refusal of suitable 

work. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant requested oral argument before the Board. By order dated February 7, 2017, the Board exercised its 

discretion and denied the request, finding that the issues could properly be adjudicated based on the evidence of 

record. Order Denying Oral Argument, Docket No. 16-1913 (issued February 7, 2017). 
2

FACTUAL HISTORY 

On January 10, 2013 appellant, then a 59-year-old cemetery caretaker, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his right knee in the performance of duty on 

January 4, 2013. He alleged that while setting up a casket-lowering device the ground gave way, 

causing him to fall and twist his right knee. On May 21, 2013 OWCP accepted the claim for 

right medial meniscus derangement, right knee internal derangement, and tibiofibular ligament 

sprain. 

In a report dated August 2, 2013, Dr. David Galt, a Board-certified orthopedic surgeon, 

indicated that appellant had undergone a partial medial and lateral meniscectomy that date. 

Appellant stopped work and began receiving wage-loss compensation as of August 23, 2013. 

On March 10, 2014 appellant underwent a total right knee replacement surgery. A 

nurse’s report dated July 1, 2014 indicated that appellant had returned to work on June 9, 2014 at 

four hours per day, increasing to six hours per day as of June 30, 2014. 

Appellant underwent a functional capacity evaluation (FCE) on September 30, 2014. By 

letter dated August 14, 2015, the employing establishment offered him a position as an 

information receptionist consistent with the FCE restriction. The job required standing or 

walking for one half to one hour in duration, no more than four hours in an eight-hour day. On 

August 24, 2015 appellant rejected the job offer because he claimed that he could not physically 

perform the position. 

OWCP referred appellant, along with medical records and a statement of accepted facts 

(SOAF), to Dr. Ronald Teed, a Board-certified orthopedic surgeon. In a report dated October 3, 

2015, Dr. Teed provided a history, reviewed medical evidence, and provided results on 

examination. He diagnosed resolved tibiofibular ligament sprain, resolved medial meniscus 

derangement of the right knee, resolved internal right knee derangement, degenerative joint 

disease, status post total knee arthroplasty, right knee arthrofibrosis, and chronic right knee pain. 

Dr. Teed wrote that appellant’s right knee condition was significantly limiting. He indicated that 

the arthroplasty surgery was for degenerative joint disease, unrelated to the January 4, 2013 

employment injury. As to work restrictions from employment injuries or preexisting conditions, 

Dr. Teed wrote, “light activities with intermittent standing and walking no greater than six-hour 

workday.” He completed a Form OWCP-5C dated December 15, 2015. Dr. Teed indicated that 

appellant could work an eight-hour day, with restrictions of no more than two hours standing and 

walking.3

 He also indicated that appellant had a 20-pound lifting restriction, with no squatting or 

kneeling. 

By letter dated February 29, 2016, the employing establishment again offered appellant a 

full-time position as an information receptionist. It indicated that the position would conform to 

work restrictions provided by Dr. Teed, of two hours standing and walking, with no squatting or 

kneeling. A position description indicated that the job was performed in an office setting with no 

physical demands. 

 3

 The form indicated that Dr. Teed initially checked a box to indicate that appellant could not work eight hours, 

but crossed this out and initialed the change, checking a box that appellant could work eight hours per day. 
3

On March 11, 2016 appellant rejected the job offer. He wrote that he had developed back 

problems from sitting, he had not received proper care after his knee surgery, and he was still in 

pain. 

In a letter dated March 29, 2016, OWCP advised appellant that it found the job offer of 

information receptionist to be a suitable position. It indicated that the case would be held open 

for 30 days with the expectation that appellant would accept the position. The provisions of 

5 U.S.C. § 8106(c)(2) were noted, and appellant was advised that if he failed to accept the 

position or provide adequate reasons for refusing the job offer, his right to compensation would 

be terminated. 

On April 6, 2016 appellant submitted an undated letter writing that he was appealing 

OWCP’s decision and had an appointment with Dr. Galt. He asserted that the case needed to be 

looked at again and he felt he was still injured. On April 25, 2016 appellant submitted a form 

report from Dr. Galt dated April 21, 2016. Dr. Galt indicated that appellant could lift up to 25 

pounds occasionally, with no squatting or kneeling. He wrote that appellant should be able to 

stand or walk for a total of two hours, with a break every half hour, and should be able to sit six 

hours, with a break every two hours. 

Appellant, through his congressional representative, submitted additional statements on 

April 27, 2016. He argued that he was permanently disabled and discussed the history of his 

knee injury. 

By letter dated May 6, 2016, OWCP advised appellant’s congressional representative that 

it expected to make a decision by May 16, 2016. On June 13, 2016 it received a May 23, 2016 

FCE. The report included Dr. Galt’s name and was signed by occupational and physical 

therapists. 

By decision dated June 23, 2016, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective June 23, 2016. It found that he had refused an offer of suitable 

work and terminated his compensation pursuant to 5 U.S.C. § 8106(c)(2). OWCP found it “did 

not receive a written explanation to the 30-day notice regarding any reason for refusing the 

position.” 

LEGAL PRECEDENT 

5 U.S.C. § 8106(c) 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.” 

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

suitable work or neglecting to perform suitable work.4 To justify such a termination, OWCP 

must show that the work offered was suitable.5 

 4 Henry P. Gilmore, 46 ECAB 709 (1995). 

5 John E. Lemker, 45 ECAB 258 (1993). 
4

With respect to the procedural requirements of termination under section 8106(c), the 

Board has held that OWCP must inform appellant of the consequences of refusal to accept 

suitable work, and allow him an opportunity to provide reasons for refusing the offered position.6

 

If appellant presents reasons for refusing the offered position, OWCP must inform the employee 

if it finds the reasons inadequate to justify the refusal of the offered position and afford appellant 

a final opportunity to accept the position.7

 

Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the 

employee that it has found the offered work to be suitable and afford the employee 30 days to 

accept the job or present any reasons to counter OWCP’s finding of suitability.8

 If the employee 

presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the 

employee of that determination and that he or she has 15 days in which to accept the offered 

work without penalty. At that point in time, OWCP’s notification need not state the reasons for 

finding that the employee’s reasons are not acceptable.9

 After providing the 30- and 15-day 

notices, OWCP will terminate the employee’s entitlement to further wage-loss compensation and 

schedule award benefits.10 However, the employee remains entitled to medical benefits.11 

ANALYSIS 

In the present case, the employing establishment offered appellant the full-time position 

of information receptionist on February 29, 2016. Appellant rejected the offer, asserting that he 

had developed back problems from sitting and ongoing knee pain. As such, he could not 

physically perform the offered position. OWCP terminated appellant’s wage-loss compensation 

and medical finding that appellant had refused an offer of suitable work under 5 U.S.C. 

§ 8106(c)(2). 

OWCP issued a letter dated March 29, 2016, advising appellant that it found the offered 

information reception position suitable, but, in the final decision dated June 23, 2016, it found 

appellant had not submitted a written explanation to the March 29, 2016 letter, regarding reasons 

for refusing the position. OWCP did not discuss any additional evidence received between 

March 29 and June 23, 2016. 

The record indicates that appellant did respond in writing to the March 29, 2016 letter 

with reasons for refusing the position. Appellant submitted a statement on April 6, 2016 

contesting the suitable work letter. He wrote that he felt he was still injured and his claim should 

be reevaluated. On April 25, 2016 appellant submitted the April 21, 2016 report from Dr. Galt 

 6 Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992). 

7 Id.

8

 20 C.F.R. § 10.516. 

9 Id. 

10 Id. at § 517. 

11 Id. 
5

with work restrictions. He subsequently submitted additional statements through his 

congressional representative on April 27, 2016, arguing that he was permanently disabled. 

Under established procedures as noted above, OWCP should have issued a letter with 

respect to the evidence and arguments received after the March 29, 2016 letter. As appellant 

submitted additional evidence within the 30-day period afforded by OWCP of responding to the 

suitability determination, he was entitled to have this evidence evaluated to determine whether or 

not he had provided acceptable reasons for refusing the offer of suitable work.12 OWCP should 

have reviewed the evidence and argument, and if it determined the reasons unacceptable, issued 

a 15-day letter providing appellant a final opportunity to accept the position.13 ` 

The Board accordingly finds that OWCP failed to follow established procedures with 

respect to termination of compensation under 5 U.S.C. § 8106(c). The Board has recognized that 

5 U.S.C. § 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.14 It is OWCP’s burden of 

proof to terminate compensation and, due to the above-noted procedural error, the Board finds 

that OWCP failed to meet its burden of proof. 

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s compensation effective 

June 23, 2016 under 5 U.S.C. § 8106(c)(2) for refusal of suitable work. 

 12 C.C., Docket No. 15-1778 (issued August 16, 2016). Even if submitted after the 30-day period, but prior to the 

final decision, OWCP must evaluate the evidence to determine if acceptable reasons for refusing the position. See 

M.M., 59 ECAB 680 (2008). 

13 R.G., Docket No. 15-0492 (issued November 16, 2015); see also Maggie L. Moore, supra note 6; Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(e)(3) (June 2013) (if 

new evidence received, it should be identified in the 15-day letter). 

14 H. Adrian Osborne, 48 ECAB 556 (1997).
6

ORDER 

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

Compensation Programs dated June 23, 2016 is reversed. 

Issued: April 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board