United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Minneapolis, MN, Employer 

__________________________________________ 

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Docket No. 15-329 

Issued: June 5, 2015 

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 December 1, 2014 appellant filed a timely appeal from the August 22, 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 appellant refused an offer of suitable work and is therefore not 

entitled to compensation under 5 U.S.C. § 8106(c)(2). 

FACTUAL HISTORY 

On December 7, 1993 appellant, then a 47-year-old licensed practical nurse, filed an 

occupational disease claim alleging that her left leg became numb from her hip to her toes. 

 1

 5 U.S.C. § 8101 et seq.
2

OWCP accepted her claim for left subtrochanter bursitis and iliosacral strain.2 Appellant 

received compensation for temporary total disability on the periodic rolls. 

In August 2010, Dr. Raymond R. Fletcher, a Board-certified orthopedic surgeon and 

second opinion physician, evaluated appellant and found that she remained totally disabled for 

all work. Appellant’s subjective complaints correlated with objective findings and were 

supported by several abnormal musculoskeletal findings. There was no evidence of secondary 

gain. Appellant demonstrated no nonphysiologic findings. She provided good voluntary effort 

and was cooperative during the evaluation. Dr. Fletcher completed a work capacity evaluation 

stating that appellant was not able to work. He found that she had reached maximum medical 

improvement and that her disability was permanent. 

A conflict later arose between Dr. John C. Huntwork, the attending Board-certified 

internist specializing in rheumatology, and Dr. Eugene T. Saiter, a Board-certified orthopedic 

surgeon and second opinion physician. In May 2012, Dr. Huntwork found that appellant 

remained disabled for all work: “I do not think she can do any job, whether part or full time, 

with or without restrictions.” He explained that there was no treatment plan to facilitate her 

recovery and return to productive, suitable employment because such a plan was not a realistic 

expectation, as was established in the past. Dr. Huntwork found appellant’s problems to be 

stable and permanent. Dr. Saiter found that the accepted conditions had not resolved and that she 

was stable and stationary. He believed there were no forms of treatment that would cause 

significant improvement. Nonetheless, Dr. Saiter found that appellant was able to work four 

hours a day with restrictions. He completed a work capacity evaluation showing her physical 

limitations. Dr. Saiter did not anticipate an increase in the number of hours appellant would be 

able to work. 

Appellant was separated from the employing establishment and moved from Minnesota 

to Mississippi in 1997. In February 2013, the employing establishment contacted the Gulf Coast 

Veterans Health Care System in Biloxi, Mississippi, to inquire whether they could place her in a 

position that was within her restrictions.3

 Gulf Coast advised that it had no positions in which to 

place appellant. 

The employing establishment then offered appellant a part-time position as a telemetry 

monitor technician at her former duty station in Minneapolis. Appellant refused the offer. She 

argued it would be a hardship to move from Mississippi. Appellant also argued that she could 

not perform the physical demands of the position, which can involve walking, pushing, bending, 

standing, and moderate lifting. 

The employing establishment requested a suitability determination from OWCP. It 

advised that it had attempted to find a federal job within a better commuting area for appellant at 

the Gulf Coast Veterans Health Care System in Biloxi. The employing establishment noted that 

the medical center in Jackson, Mississippi, was a three-hour drive from Gulfport. 

 2

 OWCP later identified the accepted conditions as enthesopathy of the left hip region, disorders of sacrum, and 

lumbosacral spondylosis without myelopathy. 

3

 Appellant had not renewed her license. 
3

To resolve whether appellant was totally disabled for all work, OWCP referred her, 

together with the case record and a statement of accepted facts, to Dr. Donald C. Faust, a Boardcertified orthopedic surgeon with a subspecialty in hand surgery, who evaluated her on 

October 29, 2013. Dr. Faust related her history, functional capacities, and present complaints. 

Appellant was able to drive and get around. She was able to walk about the house. Appellant 

could take out light trash, no more than 10 pounds. Surgery had helped her back pain. 

Dr. Faust described his findings on physical examination. Appellant walked well with 

minimal dorsiflexion weakness apparent on the left. She was able to heel and toe stand, 

dorsiflexing her toes better than her ankle. Appellant showed no paraspinous spasm. She could 

laterally bend her back 40 degrees, extend 10 degrees, and forward flex 45 degrees both standing 

and kneeling. Appellant had diminished pinprick sensation on the lateral aspect of the left lower 

extremity with weak dorsiflexion of the ankle. Straight leg raising hurt at 90 degrees. An 

evaluation of hip or sacroiliac joint pathology was negative. Appellant had no tenderness along 

the trochanter or sciatic notch. 

Dr. Faust reviewed appellant’s medical record, including the reports of Dr. Fletcher, 

Dr. Huntwork, and Dr. Saiter. He noted that she appeared to be active and independent. 

Dr. Faust believed that the accepted trochanter bursitis had resolved, but appellant still suffered 

from left foot weakness related to her 1993 work exposure. He also found that she was capable 

of gainful employment “as outlined in her work capacity evaluation.” When asked specifically 

about the conflict between Dr. Huntwork and Dr. Saiter, Dr. Faust repeated that he thought 

appellant was capable of gainful employment. Specifically, he found that she was capable of 

performing the duties of the offered position of telemetry monitor technician. Dr. Faust added: 

“I would restrict [appellant] from lifting more than 20 [pounds] and would not require her to sit 

for more than 1 to 1/2 hour[s] with a 5[-] to 10[-]minute break.” 

In a supplemental report, Dr. Faust clarified that appellant was capable of performing the 

modified work for eight hours a day. 

On February 25, 2014 the employing establishment offered appellant a full-time position 

as a telemetry monitor technician at her former duty station in Minneapolis. It advised that the 

Gulf Coast Veterans Health Care System in her commuting area had been contacted and “at the 

present time” did not have any vacancies that would be appropriate for her and her restrictions. 

The employing establishment informed appellant that her relocation expenses would be 

authorized and paid by the Veterans Affairs Health Care System in Minneapolis. 

Appellant refused the job offer. She explained that it would be an emotional hardship for 

her to leave her significant other, with whom she had lived for the last 17 years. Appellant also 

argued that she could no longer perform the offered job as of January 2014 because of her low 

back.4

 She had to have a lumbar nerve block in February and was to have it repeated to hold off 

her back pain so she could walk. Appellant noted that she was seeking retirement benefits. 

 4

 In March 2014, appellant informed OWCP of an incident in which she bent over in a recliner to pick up a laptop 

and felt a painful pull in her back. An x-ray showed severe stenosis. Appellant’s doctors told her not to bend at all, 

as it was pressing on her nerves. Appellant had eight injections after the incident and was having some bladder 

incontinence at night. 
4

OWCP notified appellant that it had reviewed the job offer and found it suitable to the 

medical limitations given by Dr. Faust in his October 29, 2013 report because the work duties 

were well within the sedentary level. It contacted the employing establishment to confirm that 

the offered position remained available. After notifying appellant of the provisions of 5 U.S.C. 

§ 8106(c)(2), OWCP advised that appellant had 30 days to accept the offer or provide a written 

explanation for not accepting. 

In June 2014, Dr. Huntwork provided a report that was nearly identical to his report in 

May 2012. He added his understanding that appellant had an independent medical evaluation at 

some point, “but the nature of her problems over time are such that, in my opinion, they could 

not be adequately assessed by a single ad hoc evaluation, no matter how competent the 

examiner.” 

In July 2014, OWCP informed appellant that it had considered the reasons she provided 

for refusing to accept the offered position and did not find them to be valid. It advised that the 

position remained available and that she now had 15 days to accept and report to the position. 

“If you do not accept and report to the position during the allotted period, your entitlement to 

wage loss and schedule award benefits will be terminated.” 

Dr. Huntwork submitted an office note dated May 20, 2014. Appellant presented with 

osteoarthritis affecting the low back and hip, the symptoms of which were intermittent and the 

severity of which was incapacitating. The primary symptoms were pain, stiffness, and functional 

limitations. Associated symptoms included fatigue, morning stiffness, and urinary symptoms. 

Problems in the past few months included an episode of severe back and gluteal pain associated 

with incontinence. Appellant received pain injections, which substantially relieved her pain, and 

she was no longer incontinent. Noting that she was sent by OWCP to a physician who found she 

could work eight hours a day including two hours of lifting and carrying weights up to 20 

pounds, Dr. Huntwork found that the basis of those conclusions, in a single contact with the 

patient and with her history, was obscure. He diagnosed lumbago and thoracic or lumbar 

radiculitis. “The idea that [appellant] has recovered the capacity to work, lost 18 years ago at 

this point, seems absurd. If one wanted to argue that she was never incapacitated, that would at 

least be intellectually honest, if, in my opinion, erroneous.” Dr. Huntwork advised that appellant 

was to limit her weight bearing. Appellant was to avoid activities that required repetitive 

bending, lifting, stooping, pushing, and pulling. “Even if she could accomplish these once or 

twice, or for a brief period of time, her history, age, etc. preclude her from engaging in such 

activities which would only invite additional injuries.” 

After confirming once more that the position remained available, OWCP issued a 

decision on August 22, 2014 terminating appellant’s wage-loss compensation and entitlement to 

any schedule award for refusing suitable work. 

On appeal, appellant notes that Dr. Huntwork and two workers’ compensation doctors 

found that she could not work. She asks the Board to review the medical reports from 

Dr. Fletcher, Dr. Huntwork, Dr. Saiter, and Dr. Faust. 
5

LEGAL PRECEDENT 

Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to 

seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, 

or secured for her is not entitled to compensation.5 OWCP has authority under this section to 

terminate compensation for any partially disabled employee who refuses or neglects suitable 

work when it is offered. Before compensation can be terminated, however, it has the burden of 

demonstrating that the employee can work and setting forth the specific restrictions, if any, on 

the employee’s ability to work. OWCP also has the burden of establishing that a position has 

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

requirements of the position.6 In other words, to justify termination of compensation under 

Section 8106(c)(2), which is a penalty provision, it has the burden of showing that the work 

offered to and refused or neglected by appellant was suitable.7

If possible, the employing establishment should offer suitable reemployment in the 

location where the employee currently resides. If this is not practical, it may offer suitable 

reemployment at the employee’s former duty station or other location.8

If the job offer is for a site outside of the claimant’s residential area, the employing 

establishment must document that it first searched for suitable employment in the claimant’s 

geographic area before it settled for a position outside of it. It must provide this information to 

OWCP.9

If there is disagreement between the physician making the examination for the United 

States and the physician of the employee, the Secretary shall appoint a third physician who shall 

make an examination.10 When there exist opposing medical reports of virtually equal weight and 

rationale, and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a 

proper factual background, must be given special weight.11

ANALYSIS 

As Dr. Fletcher, the second opinion orthopedic surgeon, confirmed in 2010, appellant 

was totally disabled for all work. Although he believed that her disability was permanent, a 

 5

 5 U.S.C. § 8106(c)(2). 

6 Frank J. Sell, Jr., 34 ECAB 547 (1983). 

7 Glen L. Sinclair, 36 ECAB 664 (1985). 

8

 20 C.F.R. § 10.508. 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4.a(2) 

(June 2013). 

10 5 U.S.C. § 8123(a). 

11 Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980). 
6

conflict in medical opinion later arose between Dr. Huntwork, the attending internist, and 

Dr. Saiter, the second opinion orthopedic surgeon, on the extent of appellant’s capacity to 

perform work. To resolve this conflict, OWCP referred appellant to an impartial medical 

specialist, Dr. Faust, an orthopedic surgeon. 

It was Dr. Faust’s opinion that appellant was no longer totally disabled for all work. He 

noted that she appeared to be active and independent. Appellant was able to drive and get 

around and walk about the house and take out light trash. Surgery in 2009 had helped her back 

pain. Appellant still had minimal dorsiflexion weakness apparent on the left. She also had 

diminished pinprick sensation on the lateral aspect of the left lower extremity, and positive 

straight leg raising hurt at 90 degrees, but she walked well and showed no paraspinous spasm. 

Although her claim was accepted for left subtrochanter bursitis and iliosacral strain, appellant 

now showed no tenderness along the trochanter or sciatic notch, and an evaluation of hip or 

sacroiliac pathology was negative. 

The evidence thus supported Dr. Faust’s opinion that the accepted trochanter bursitis had 

resolved and that appellant possessed functional capacities that allowed her to perform some 

kind of gainful employment. Specifically, Dr. Faust found that appellant was capable of 

performing the duties of the offered position of telemetry monitor technician. He found that she 

could perform these duties full time, so long as she lifted no more than 20 pounds and took 

occasional short breaks while sitting. 

OWCP provided Dr. Faust with appellant’s case record and a statement of accepted facts 

so that he could base his opinion on a proper factual and medical history. Dr. Faust reviewed the 

conflict between Dr. Huntwork and Dr. Saiter and came to at an unequivocal conclusion. His 

opinion that appellant could perform the duties of the offered position is consistent with the 

history of her functional capacities and her findings on physical examination. The Board finds 

that Dr. Faust’s opinion is sufficiently well rationalized that it must be accorded special weight in 

resolving the conflict over the extent of appellant’s capacity to work. 

Dr. Huntwork objected to Dr. Faust’s conclusion for two reasons. Appellant had been 

totally disabled for all work in the past, so it seemed absurd to think that she could recover any 

capability to work. Dr. Huntwork did not believe that a physician could reach such a conclusion 

having evaluated appellant only once. 

Dr. Huntwork did not explain why a single, current evaluation of appellant was 

insufficient to evaluate her current physical condition. Also, Dr. Faust did more than evaluate 

her. He reviewed appellant’s medical record, including the reports of Dr. Huntwork. Dr. Faust 

reviewed the statement of accepted facts. He considered the history that appellant had related to 

him. Dr. Huntwork did not deny that she had the capacity to perform activities of daily living, 

with some limits. He did not explain why, possessed of these capacities, appellant could not 

perform sedentary duty with restrictions and occasional breaks. Dr. Huntwork advised that she 

was to limit weight bearing and avoid repetitive bending, lifting, stooping, pushing, and pulling, 

but he did not explain how these restrictions were incompatible with a sedentary position 

monitoring telemetry. 
7

The Board finds that the weight of the medical opinion evidence establishes the medical 

suitability of the offered position of telemetry monitor technician. The employing establishment 

offered the job, but appellant refused, in part because she had lived in Mississippi since 1997, 

and the offered position was located at her former duty station in Minnesota. 

As noted previously, if the job offer is for a site outside of the claimant’s residential area, 

the employing establishment must document that it first searched for suitable employment in the 

claimant’s geographic area before it settled for a position outside of it. In this case, it looked for 

suitable employment at the Gulf Coast Veterans Health Care System in Biloxi, Mississippi, a 

mere 13 miles from Gulfport, but this was in February 2013. A full year later, in February 2014, 

the employing establishment offered appellant the telemetry monitor technician position in 

Minnesota. The offer stated that Gulf Coast did not have any vacancies “at the present time,” but 

the employing establishment failed to document this. There is no evidence that the employing 

establishment conducted a current search for suitable employment in appellant’s geographic area 

prior to the February 2014 offer. 

Given the penalty under 5 U.S.C. § 8106(c)(2), the Board finds that not only must the 

availability of the offered position be current,12 but the unavailability of suitable employment in 

the claimant’s geographic area must be current as well. Without both, an offer outside the 

geographic area cannot be considered suitable. The assertion made in the February 2014 job 

offer that there were no appropriate vacancies in Biloxi “at the present time” is simply not 

established. The contact made with Gulf Coast Veterans Affairs Health Care System in 

February 2013 had grown stale. There is no evidence that the employing establishment made 

any current search for suitable employment in appellant’s geographic area before settling on a 

position in Minnesota. 

In the case of M.R., Docket No. 11-1566 (issued February 8, 2012), the claimant moved 

to a different region within the state of New York after her injury. A few months later she 

declined a job offer at her previous duty station contending that it was unsuitable because it was 

approximately 230 miles away from her current residence. The Board reversed OWCP’s 

termination of wage-loss compensation under 5 U.S.C. § 8106(c)(2) as OWCP had failed to 

determine whether suitable employment was possible in or around the claimant’s residence at the 

time of the job offer. The Board held that it should have developed this aspect of the case before 

finding the offer suitable. 

Although OWCP did make an attempt in the present case to determine whether suitable 

employment was possible in or around appellant’s current location that attempt was a year old 

and no longer current. It did not reasonably reflect conditions at the time of the February 2014 

job offer. Accordingly, the Board finds that the offered position was not established to be 

suitable. OWCP failed to meet its burden to justify imposing the penalty under 5 U.S.C. 

§ 8106(c)(2). The Board will, therefore, reverse OWCP’s August 22, 2014 decision. 

 12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.0814.4.d 

(June 2013). After assessing the position and determining that it is a suitable offer of employment, OWCP must 

confirm with the employing establishment that the job remains open and available to the claimant. This must be 

documented in the file. 
8

CONCLUSION 

The Board finds that appellant did not refuse an offer of suitable work. OWCP did not 

establish that the work offered to and refused by her was suitable. Although the weight of the 

medical opinion evidence established the position’s medical suitability, the evidence failed to 

establish that the employing establishment conducted any current search for suitable employment 

in appellant’s geographic area. 

ORDER 

IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: June 5, 2015 

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