United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Gainesville, FL, Employer 

__________________________________________ 

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Docket No. 16-1665 

Issued: April 13, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 17, 2016 appellant, through counsel, filed a timely appeal from a July 26, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.

3

 The Board notes that appellant submitted new evidence following the July 26, 2016 decision. Since the Board’s 

jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not 

consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 

126 (2005). 
2

ISSUE 

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

benefits effective October 29, 2015 as she refused an offer of suitable work under 5 U.S.C. 

§ 8106(c). 

FACTUAL HISTORY 

On June 22, 1989 appellant, then a 48-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on June 5, 1989 she felt a sharp pain in her left hip radiating 

down to her left leg when she lifted a patient into an ambulance. She stopped work and returned 

to light duty on October 27, 1989. OWCP accepted appellant’s claim for lumbar strain and 

aggravation of degenerative disc disease. 

Appellant stopped work again on February 12, 1990 and filed a claim for recurrence of 

disability. She underwent lumbar surgery on July 16, 1990 and continued to seek medical 

treatment for her accepted June 5, 1989 employment injury. Appellant was placed on the 

periodic rolls as of June 16, 2002. 

Dr. John Stevenson, a Board-certified neurological surgeon, submitted office notes dated 

January 23 to June 19, 2015, which he related appellant’s complaints of continued back and leg 

pain. He noted that she had regular steroid epidural injections, which provided good relief. 

Dr. Stevenson indicated that appellant had known preexisting multilevel degenerative disc 

disease and degenerative facet disease. Upon examination, he observed normal muscle tone and 

strength in both lower extremities. Sensory function was intact. Vance Amos, a certified 

physician assistant for Dr. Stevenson completed a work capacity evaluation form, which found 

appellant not capable of working. 

On April 13, 2015 OWCP referred appellant, the case file, a statement of accepted facts, 

and a series of questions to Dr. Steven J. Lancaster, for a second opinion examination to 

determine the nature and extent of her disability. In a June 12, 2015 report, Dr. Lancaster 

accurately described the June 5, 1989 employment injury and reviewed her medical history. He 

noted that appellant continued to receive medical treatment for her back and bilateral lower 

extremity symptoms and received epidural injections every three months. Upon examination of 

her lumbar spine Dr. Lancaster observed no paraspinal spasms, but he noted complaints of pain 

in the low back, left buttock, and sacroiliac area. Straight leg raise testing was negative 

bilaterally and sensation was full. Dr. Lancaster reported that examination of appellant’s hips 

showed in both hips internal and external rotation to 40 degrees and flexion to 90 degrees. 

Examination of appellant’s knees showed range of motion in both knees to 120 degrees with no 

instability. Dr. Lancaster diagnosed herniated nucleus pulposus at L4-5 with radiculopathy and 

status post total knee replacement bilaterally. 

Dr. Lancaster responded to OWCP’s questions and related that appellant’s accepted 

condition of lumbar sprain would have resolved approximately six months after the June 5, 1989 

employment injury. He reported that the accepted condition of aggravation of degenerative disc 

disease was permanent and still persisted. Dr. Lancaster opined that appellant could work in a 

modified-duty capacity, but not at her previous level of heavy lifting. He advised that she could 
3

sit for eight hours, walk and stand for three hours, and push, pull, or lift up to 20 pounds for three 

hours. Dr. Lancaster completed a work capacity evaluation form which outlined appellant’s 

work restrictions. 

In a June 29, 2015 magnetic resonance imaging (MRI) scan report of the lumbar spine, 

Dr. Richard E. Kinard, a Board-certified diagnostic radiologist, noted no overall significant 

change with appellant’s small central disc extrusion T12-L1. He observed resolution of the 

previous L4-5 disc protrusion with mild right foraminal stenosis and moderate degenerative disc 

disease. Dr. Kinard further reported moderate left foraminal and extraforaminal disc protrusion 

L3-4, causing mild displacement of the left exiting L3 nerve root unchanged, and small 

foraminal disc-osteophyte complex L5-S1 on the left changed. 

Dr. Stevenson provided results of a July 30, 2015 examination and noted that appellant 

was doing well with her intermittent epidural steroid injections. He noted that she had a normal 

neurological examination. Dr. Stevenson related that a recent MRI scan showed multilevel 

degenerative disc and joint disease with minimal nerve compromise. He recommended that 

appellant continue with epidural steroid injections as needed. Dr. Stevenson completed a work 

capacity evaluation form, which noted that she was not able to work. 

By letter dated August 12, 2015, OWCP contacted the employing establishment and 

provided a copy of Dr. Lancaster’s June 12, 2015 second opinion report. It determined that the 

weight of the medical evidence rested with the second opinion physician. OWCP requested that 

the employing establishment determine whether a job position was available to accommodate 

appellant’s restrictions and if so, to provide a written job offer to her. 

On August 13, 2015 the employing establishment provided a job offer of information 

receptionist position, GS-03, step 10. The duties involved welcoming visitors in person or on the 

telephone, answering or referring inquiries from visitors and staff, and directing visitors to clinic 

areas. No computer or typing skills or use of fax or copy machine were required. The 

employing establishment noted that the job offer for information receptionist was provided 

pursuant to Dr. Lancaster’s June 12, 2015 second opinion report. It related that the physical 

demands of the job position required sitting, with the discretion to stand or change positions as 

frequently as needed, infrequently lifting file folders weighing up to one pound, and no pushing, 

pulling, squatting, reaching, or reaching above the shoulders. 

Appellant declined the job offer for the position of information receptionist on 

September 2, 2015. 

On September 14, 2015 OWCP verified with the employing establishment that the 

August 13, 2015 job offer remained available. 

In a letter dated September 16, 2015, OWCP advised appellant that the position of 

information receptionist offered by the employing establishment in a notice dated August 13, 

2015 was found to be suitable to her capabilities and was currently available. It found that the 

weight of the medical evidence rested with Dr. Lancaster, the second opinion examiner, because 

he provided medical rationale for his opinion on the nature and extent of her accepted conditions. 

OWCP determined that the position of information receptionist was within the restrictions set 
4

forth by Dr. Lancaster in his June 12, 2015 report. It provided appellant 30 days to accept the 

position or provide written reasons for her refusal. OWCP informed her that if she failed to 

accept the offered position and failed to demonstrate that the refusal of the offer of suitable work 

was justified, her compensation would be terminated pursuant to 5 U.S.C. § 8106(c)(2). 

Appellant did not respond within the allotted 30-day time period. 

By decision dated October 29, 2015, OWCP terminated appellant’s compensation and 

entitlement to claim a schedule award effective October 30, 2015 as she refused an offer of 

suitable work under section 8106(c)(2). It noted that she had not responded to the proposed 

termination of her compensation within the allotted 30-day time period. OWCP determined that 

the weight of medical evidence rested with the June 12, 2015 report of Dr. Lancaster, who 

determined that appellant was capable of working within the restrictions of the modified job 

offer. It found that her failure to report to the offered position were not justified. 

On November 9, 2015 appellant, through counsel, requested a telephone hearing before 

an OWCP hearing representative. 

In a February 23, 2016 note, Dr. Stevenson indicated that appellant continued to 

complain of low back pain and radiating left leg pain down the calf. He noted that she had 

lumbar degenerative disc disease and moderate degenerative disc disease at L4-5 with facet 

arthrosis, moderate left foraminal stenosis with an extraforaminal disc protrusion causing 

posterior displacement of the left L3 nerve root. Dr. Stevenson recommended 

electromyography/nerve conduction velocity studies (EMG/NCV) to evaluate appellant’s 

radiating leg pain and to rule out radiculopathy. He completed a work capacity evaluation which 

indicated that she was not able to work. 

Appellant began to receive medical treatment from Dr. Prathmia Reddy, Board-certified 

in physical medicine and rehabilitation. In a March 8, 2016 treatment note, Dr. Reddy related 

appellant’s complaints of low back pain radiating down the left leg. She reviewed appellant’s 

history and provided results on examination. Dr. Reddy observed that appellant’s lumbar spine 

was limited in flexion and extension. Examination of appellant’s hip revealed full range of 

motion and normal pedal pulses bilaterally. Dr. Reddy diagnosed radiculopathy of the lumbar 

region. She indicated that she would “defer work restrictions and MMI [maximum medical 

improvement] to Dr. Stevenson.” Dr. Reddy provided an EMG/NCV report, which indicated a 

normal study with no evidence of lumbar radiculopathy. 

In treatment notes dated April 7 to July 5, 2016, Dr. Reddy noted appellant’s complaints 

of pain in the lower back radiating to the buttocks and legs. Upon physical examination, she 

observed limited lumbar range of motion in flexion and extension and tenderness and spasm. 

Dr. Reddy reported full range of motion of the bilateral hip, knee, and ankle. She diagnosed 

radiculopathy of the lumbar region, low back pain, and sacroilitis. Dr. Reddy explained that 

since appellant was not considering surgical intervention she was at MMI with future palliative 

and conservative care. She opined that appellant had 10 percent whole person impairment. 

Dr. Reddy related that appellant was disabled and that she would defer work restrictions to 

Dr. Stevenson. 
5

On April 18, 2016 appellant filed a claim for a schedule award (Form CA-7). 

On June 13, 2016 a hearing was held. Appellant testified about the education she had 

received and the jobs she had held before she worked for the employing establishment. She 

noted that she had worked for the employing establishment as a nursing assistant for 191⁄2 years 

and that she still experienced lower back pain and pain in her left buttocks that radiated down her 

left leg, which continued to require her to still take various pain medications. Appellant noted 

that she had other nonwork-related medical conditions which required coronary bypass surgery 

and two knee replacement surgeries, but that it was just her back condition which currently 

caused limitations. She explained that she could not work as an information receptionist because 

there were some mornings when she could not get out of bed. Appellant related that she could 

not get out of bed until about nine o’clock and took pain medication to help her relax. She noted 

that she would not make it to work on time and she would not be able to be there every day. 

Appellant believed that she would not be able to sit all day long if not taking medication because 

she needed to lie down and let it wear off. She pointed out that she also had difficulties with 

various activities of daily living such as cleaning the house. 

Appellant also provided a treatment note from Dr. Robert G. Valentine, an 

anesthesiologist and pain medicine specialist. In the June 2, 2016 examination note, 

Dr. Valentine related her complaints of low back pain radiating down the left leg. He reviewed 

appellant’s history and conducted an examination. Dr. Valentine observed limited range of 

motion in flexion or extension and pain with end range extension. He diagnosed other 

intervertebral disc degeneration of the lumbar region, lumbar radiculopathy, low back pain and 

sacroilitis, and other lumbar region spondylosis. Dr. Valentine reported that appellant was not 

able to resume work and was permanently and totally disabled. 

By decision dated July 26, 2016, an OWCP hearing representative affirmed the 

October 29, 2015 decision finding the weight of the medical evidence rested with Dr. Lancaster, 

who found that appellant was capable of performing the duties of the offered information 

receptionist position. She found that OWCP properly terminated appellant’s compensation 

pursuant to 5 U.S.C. § 8106(c)(2). 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

termination or modification of an employee’s benefits.4

 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.5

 To justify 

termination of compensation, OWCP must show that the work offered was suitable, that the 

employee was informed of the consequences of refusal to accept such employment, and that she 

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

5

 5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003). 
6

was allowed a reasonable period to accept or reject the position or submit evidence to provide 

reasons why the position is not suitable.6 

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.7

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

who refuses or neglects to work after suitable work has been offered or secured, has the burden 

of showing that such refusal or failure to work was reasonable or justified.8

 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.9

OWCP has the burden of demonstrating that the employee can work, setting forth the 

specific restrictions, if any, on the employee’s ability to work, establishing that a position has 

been offered within the employee’s work restrictions and setting for the specific job 

requirements of the position.10 After termination or modification of benefits clearly warranted 

on the basis of the evidence, the burden for reinstating benefits shifts to the employee.11

ANALYSIS 

OWCP accepted that appellant sustained a lumbar strain and aggravation of degenerative 

disc disease as a result of a June 5, 1989 employment injury. Appellant stopped work on 

February 12, 1990 and did not return. OWCP terminated her compensation effective October 30, 

2015 pursuant to 5 U.S.C. § 8106(c)(2) because she refused an offer of suitable work. The 

Board finds that OWCP met its burden of proof to terminate appellant’s compensation benefits 

based upon her refusal to accept a suitable position within her medical restrictions. 

Appellant was referred to Dr. Lancaster, the second opinion physician, to determine the 

nature and extent of her work capacity and disability. In a June 12, 2015 report, Dr. Lancaster 

provided an accurate history of injury and provided findings on physical examination. In 

response to OWCP’s questions, he explained that appellant’s accepted lumbar sprain would have 

resolved approximately six months after the accepted June 5, 1989 injury. Dr. Lancaster 

reported that she continued to suffer from residuals of the accepted aggravation of degenerative 

disc disease, but that she could work in a modified-duty capacity. He determined that appellant 

could sit for eight hours, walk and stand for three hours, and push, pull, or lift up to 20 pounds 

for three hours. 

 6 See Ronald M. Jones, 52 ECAB 190 (2000). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.4 (June 2013). 

7 Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995). 

8

 20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6. 

9 Id. at § 10.516. 

10 See Linda Hilton, 52 ECAB 476 (2001).

11 Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992). 
7

On August 13, 2015 the employing establishment offered appellant a position working as 

an information receptionist which required eight hours of sitting, with the discretion to stand or 

change positions as frequently as needed, infrequent lifting of file folders weighing up to one 

pound, and no pushing, pulling, squatting, reaching, or reaching above the shoulders. The 

employing establishment noted that no computer or typing skills or use of fax or copy machine 

were required. 

The Board has held that 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 Appellant has testified that it is her back 

condition which limited her ability to accept the modified position. In this case, OWCP properly 

determined that the physical demands of the position of information receptionist were within the 

restrictions set forth by Dr. Lancaster in his June 12, 2015 second opinion report.13 The Board 

finds, therefore, that the medical evidence has established that appellant is physically able to 

perform the position of information receptionist.14 As the offered position of information 

receptionist was suitable, OWCP met its burden of proof to terminate appellant’s claim pursuant 

to 5 U.S.C. 8106(c)(2).15

Appellant was treated by Dr. Stevenson who indicated in a July 30, 2015 office note that 

she continued to complain of low back pain. Dr. Stevenson related that she was currently doing 

well with intermittent epidural steroid injections. He reported that a recent diagnostic 

examination revealed multilevel degenerative disc and joint disease with minimal nerve 

compromise. Dr. Stevenson completed a work capacity evaluation form and indicated that 

appellant was not able to work. The Board finds, however, that he did not provide any rationale 

for his finding that she was unable to work nor did he provide an opinion on the relevant issue of 

whether she could perform the duties of an information receptionist offered on 

August 13, 2015.16 Likewise, Dr. Kinard’s June 29, 2015 MRI scan report also failed to contain 

an opinion on the relevant issue of whether appellant could not perform the duties of the 

specified position.17 

The certified physician assistant completed work capacity evaluation forms dated 

January 23 to June 19, 2015, which noted that appellant was not capable of working. His notes, 

 12 T.M., Docket No. 16-0065 (issued April 4, 2016); Kathy E. Murray, 55 ECAB 288 (2001). 

13 Supra note 10. 

14 The Board has held that in order to justify termination or modification of compensation benefits when a 

position is selected to represent suitable work, OWCP must show that a claimant has the physical ability to perform 

the position. T.M., supra note 14; M.R., Docket No. 09-1811 (issued April 12, 2010). 

15 Supra note 6. 

16 K.S., Docket No. 16-0401 (issued July 12, 2016). 

17 Id. 
8

however, do not constitute competent medical evidence as a physician assistant is not considered 

a physician under FECA.18

Subsequent to OWCP’s termination of compensation, appellant submitted a February 23, 

2016 office note by Dr. Stevenson. Dr. Stevenson diagnosed lumbar degenerative disc disease, 

moderate degenerative disc disease at L4-5 with facet arthrosis, and moderate left foraminal 

stenosis with an extraforaminal disc protrusion causing posterior displacement of the left L3 

nerve root. He provided a work capacity evaluation form, which indicated that appellant was not 

able to work. Dr. Stevenson did not, however, provide any medical rationale or explanation for 

why she was not able to work or why she was unable to perform the duties of an information 

receptionist.19 Similarly, in his June 2, 2016 examination note, Dr. Valentine did not offer any 

explanation for his determination that appellant was totally disabled.20

In examination notes dated March 8, to July 5, 2016, Dr. Reddy reviewed appellant’s 

history and provided physical examination findings. She diagnosed radiculopathy of the lumbar 

region. Dr. Reddy noted that she would “defer work restrictions and MMI to Dr. Stevenson.” 

The Board notes that she did not provide any opinion on appellant’s work capacity or ability to 

perform the duties of an information receptionist. Dr. Reddy’s examination notes, therefore, are 

of limited probative value and are insufficient to establish that appellant could not physically 

perform the offered job position.21

On appeal counsel alleges that OWCP’s decision was contrary to fact and law. Despite 

his argument, however, the record establishes that OWCP met its burden of proof to terminate 

appellant’s wage-loss compensation benefits pursuant to 5 U.S.C. § 8106(c) because she refused 

an offer of suitable work. 

CONCLUSION 

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

benefits effective October 29, 2015 as she refused an offer of suitable work under 5 U.S.C. 

§ 8106(c). 

 18 Section 8101(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. As physician assistants are not “physicians” as defined by FECA, their medical opinions are of no 

probative medical value. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). 

19 The Board has held that medical conclusions unsupported by rationale are of diminished probative value. See 

Jacquelyn L. Oliver, 48 ECAB 232 (1996). 

20 Id. 

21 The Board has found that medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition or disability is of limited probative value. C.B., Docket No. 09-2027 (issued May 12, 2010); 

J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D., 58 ECAB 149 (2006). 
9

ORDER 

IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board