United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.L., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Altoona, PA, Employer 

__________________________________________ 

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Docket No. 17-0338 

Issued: July 25, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 December 5, 2016 appellant, through counsel, filed a timely appeal from a 

September 30, 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 September 30, 2016 decision. However, 

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 November 2, 2015 pursuant to 5 U.S.C. § 8106(c)(2) as he abandoned suitable 

work. 

FACTUAL HISTORY 

On May 2, 2013 appellant, then a 33-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on April 15, 2013 his left leg became swollen as a result of 

defensive tactics training in the performance of duty. He did not stop work. OWCP accepted 

appellant’s claim for osteochondritis dissecans of the left lateral femoral condyle. 

On July 13, 2013 appellant resigned from federal employment. 

In October 2013 appellant moved to North Carolina and began to attend college. 

On October 9, 2013 appellant underwent authorized left knee surgery. He stopped work 

and filed claims for wage-loss compensation (Forms CA-7) for the period October 9 to 

November 1, 2013. OWCP paid disability compensation beginning October 9, 2013 and placed 

appellant on the periodic rolls. Appellant continued to receive medical treatment. 

OWCP expanded acceptance of appellant’s claim on March 6, 2014 to include postsurgery deep vein thrombosis of the left leg and left knee lateral meniscus tear. 

On October 16, 2014 appellant was examined by Dr. Craig Mauro, a Board-certified 

orthopedic surgeon, who related in a work capacity evaluation form (OWCP-5C) that appellant’s 

condition was accepted for osteochondritis dissecans. He checked a box marked “no” that 

appellant was not capable of performing his usual job. Dr. Mauro related that appellant could 

work full time with restrictions of standing and walking limited to two hours, reaching above the 

shoulder and operating a motor vehicle limited to one hour, pushing, pulling, and lifting limited 

to less than 10 pounds for less than one hour, and no squatting, kneeling, bending, or climbing. 

He also recommended 15-minute breaks “as needed.” 

By letter dated November 12, 2014, OWCP requested that the employing establishment 

provide appellant with a job, if possible, within the restrictions as outlined in Dr. Mauro’s 

October 16, 2014 OWCP-5c form. It informed the employing establishment that the job offer 

must be in writing and include a description of the duties to be performed, the specific physical 

requirements of the position, the geographic location, the date on which the job will be available, 

and the rate of pay for the position. 

On November 13, 2014 OWCP referred appellant for vocational rehabilitation services. 

In a December 30, 2014 office visit note, Dr. Mauro related appellant’s complaints of 

persistent pain and continued inability to run. Examination of appellant’s left knee revealed 

primary tenderness anterolaterally over his trochlea, but no tenderness over his joint lines. 

Dr. Mauro indicated that a left knee magnetic resonance imaging (MRI) scan showed some 

chondrosis at the level of the donor sites, but no significant effusion or other abnormality. He 
3

opined that appellant was one year status post left knee surgery with patellofemoral pain and 

chondrosis. 

Appellant underwent a left lower extremity MRI scan on December 30, 2014 with 

Dr. Amitesh Prasad, a Board-certified diagnostic radiologist, who noted appellant’s history of 

knee pain. He reported that appellant was post procedure at the posterior aspect of the lateral 

femoral condyle with overlying cartilage intact. Dr. Prasad also noted some chondrosis near the 

margin of the surgical site in the central aspect of the lateral femoral condyle, some minor 

blunting of the medial meniscus, edema and cystic changes at the margin of the lateral aspect of 

lateral trochlea with subchondral cystic changes, and slight lateral tilt of the patella with some 

capsular edema anterolaterally. 

In a letter dated March 13, 2015, the employing establishment offered appellant a 

permanent position as a security clerk for the employing establishment in Pennsylvania. It 

informed him that it attempted to find a suitable position within the commuting radius of his 

proposed new address in Tennessee, but was informed on March 5, 2015 that he had relocated to 

Ohio. The employing establishment noted that a suitable vacancy was available in Pennsylvania 

and advised appellant that moving expenses would be provided. The job offer described the 

physical requirements of the position as: “The work is sedentary in nature and normally 

performed sitting.” The employing establishment noted that appellant’s physician provided him 

with physical limitations of sedentary duty, 10 pounds lifting restriction, no climbing, crawling, 

squatting, or kneeling, and may get up and move around as needed. It indicated that this position 

appeared to be a suitable assignment and within his medical restrictions since he performed these 

duties from May 24 to July 14, 2013. The employing establishment afforded appellant until 

March 27, 2015 to review and accept the position or provide a valid reason explaining why the 

position was not suitable. It advised him that according to 5 U.S.C. § 8106(c)(2), a claimant who 

refused an offer of suitable employment was not entitled to continuing compensation benefits. 

The employing establishment instructed appellant to report for duty on April 6, 2015. 

On March 24, 2015 appellant declined the job offer and noted that the job had an 

undesirable location and pay plan/grade. 

In a letter dated March 30, 2015, appellant informed OWCP that he was relocating to 

Ohio starting April 1, 2015 and provided his new address. 

Dr. Mauro provided an April 10, 2015 work status report where he noted a diagnosis of 

status post left knee surgery. He indicated that appellant was able to work limited duty with 

restrictions of lifting, pushing, and pulling up to 10 pounds, limited standing, walking, and 

driving, sitting as tolerated, and no climbing, crawling, squatting, and kneeling. Dr. Mauro 

continued to treat appellant and provided work status reports dated June 17 to July 2, 2015. 

By letter dated May 4, 2015, OWCP informed appellant that the security clerk position as 

offered in the March 13, 2015 letter was found suitable and within the medical restrictions as 

provided by Dr. Mauro. The employing establishment confirmed that this position continued to 

be open and available to appellant. OWCP instructed appellant that he had 30 days to accept the 

position or provide a valid reason in writing for his refusal. It further informed him that, if he 
4

failed to work when suitable work was provided for him, he would not be entitled to further 

compensation for wage loss or a schedule award pursuant to 5 U.S.C. § 8106(c)(2). 

On June 15, 2015 appellant accepted the suitable work offer and returned to limited duty. 

Appellant was examined on June 25, 2015 by Dr. Matthew C. Schaffer, Board-certified 

in family medicine. He reported that on physical examination appellant’s left knee was tender 

but there was no evidence of an active infection. Dr. Schaffer indicated that appellant received 

an injection into his left knee and would follow-up in one week for another injection. 

In a letter dated August 8, 2015, appellant informed the employing establishment that his 

last day working in the position of security clerk for the employing establishment would be 

August 19, 2015. 

Dr. Mauro continued to treat appellant and in an August 19, 2015 work status report 

indicated that appellant could continue to perform limited duty with the same work restrictions. 

On August 20, 2015 the employing establishment informed OWCP via Form CA-110 

that appellant had resigned effective August 19, 2015. 

In a letter dated August 26, 2015, OWCP advised appellant that the security clerk 

position, which he worked from June 17 to August 19, 2015, was found suitable and within the 

medical restrictions as provided by Dr. Mauro. The employing establishment confirmed that this 

position continued to be open and available to appellant. OWCP instructed appellant that he had 

30 days to accept the position or provide a valid reason in writing for his refusal. It also 

informed appellant that if he believed he had sustained a recurrence of disability he must provide 

factual and medical evidence to establish that he was unable to work due to a spontaneous 

worsening of his accepted injury or withdrawal of a light-duty assignment made specifically to 

accommodate his work-related injury. OWCP advised appellant that the current evidence of 

record was insufficient to establish a recurrence of disability. Appellant was afforded 30 days to 

submit additional information. OWCP advised appellant that if at the end of the 30-day period 

he failed to establish a recurrence of disability, failed to return to the offered position, and his 

reasons for refusing were not deemed justified, his right to compensation and schedule award 

benefits would be terminated in accordance with 5 U.S.C. § 8106(c)(2). 

OWCP received an August 19, 2015 treatment report from Dr. Mauro who related that 

appellant continued to complain of symptoms over the trochlear and patellofemoral joint. 

Dr. Mauro reported tenderness over appellant’s iliotibial (IT) band, lateral compartment, and 

trochlea and patellofemoral joint. He indicated that appellant was capable of working limited 

duty, but would be undergoing surgery. 

In a letter dated September 18, 2015, appellant provided OWCP with his new address in 

Columbus, OH. 

In a decision dated November 2, 2015, OWCP terminated appellant’s entitlement to 

wage-loss compensation and schedule award benefits effective November 2, 2015 because he 

refused suitable work without justification in accordance with 5 U.S.C. § 8106(c)(2). It 

determined that the security clerk position was suitable and within the medical restrictions of 
5

Dr. Mauro, appellant’s treating physician. OWCP noted that appellant did not respond to its 

August 26, 2015 letter, and thus, failed to provide any explanation as to why he could no longer 

work the limited-duty position. 

On November 20, 2015 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. Appellant resubmitted various medical reports dated January 3, 2014 to 

November 5, 2015 regarding treatment for his work-related left leg injury. 

On November 23, 2015 appellant underwent authorized left knee surgery. 

Dr. Mauro continued to examine appellant. In a work status note dated December 1, 

2015, Dr. Mauro noted a diagnosis of status post left knee surgery. He indicated that appellant 

was unable to work effective November 23, 2015. A January 8, 2016 work status note, related 

that appellant could work limited duty with restrictions of lifting, pushing, and pulling up to 10 

pounds and no crawling, squatting, climbing, or kneeling. 

In office notes dated March 16 and May 18, 2016, Dr. Mauro related that appellant 

remained symptomatic and was still unable to get back to running. Upon physical examination 

of appellant’s left knee, he observed tenderness over the IT band and minimal tenderness over 

the lateral facet of appellant’s patella. Dr. Mauro reported that appellant was status post 

arthroscopy with persistent lateral knee pain. He recommended IT band injections and 

continuation with a stretching program. 

On July 15, 2016 a telephone hearing was held. Appellant was represented by counsel. 

Counsel pointed out that appellant began working on June 15, 2015 and resigned on August 19, 

2015, 65 days later. He alleged that appellant was only required to work in the offered position 

for 60 days in order to maintain his benefits. Counsel asserted that appellant was under no 

obligation to continue to work and could leave his employment at his own will. He explained 

that appellant stopped work to return to school. Counsel confirmed that appellant had no 

medical reason or disability, which prevented him from working. 

By decision dated September 30, 2016, an OWCP hearing representative affirmed the 

November 2, 2015 decision. She found that OWCP properly terminated appellant’s benefits 

because he did not provide evidence of a recurrence of disability, work withdrawal, or disability 

for work due to the employment injury. The hearing representative noted that appellant’s return 

to school was not considered an acceptable reason to refuse appellant’s light-duty position after it 

was found suitable. She determined that OWCP properly reviewed the evidence of record and 

found that the job offer was suitable. As appellant refused or neglected to work after suitable 

work was offered to him, OWCP properly terminated his benefits under 5 U.S.C. § 8106(c). 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s compensation benefits.4

 Section 8106(c)(2) of 

FECA provides that a partially disabled employee who refuses or neglects to work after suitable 

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 
6

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 

he 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

 

To establish that a claimant has abandoned suitable work, OWCP must make a finding of 

suitability.8

 In determining what constitutes suitable work, OWCP 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.9

 

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. The weight of medical evidence must establish that the employee is physically 

capable of carrying out any physical requirements of the job.10 OWCP procedures state that 

acceptable reasons for refusing an offered position include withdrawal of the offer or medical 

evidence of inability to do the work or travel to the job.11

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.12 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.13

ANALYSIS 

OWCP accepted that appellant sustained a left knee injury in the performance of duty on 

April 15, 2013. On October 9, 2013 appellant underwent authorized left knee surgery and 

stopped work. OWCP placed appellant on the periodic rolls. On March 13, 2015 the employing 

establishment offered appellant a modified-duty position as a security clerk based on the 

 5

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

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

Offers and Return to Work, Chapter 2.814.4(a) (June 2013). 

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

8

 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.814.8 (June 2013). 

9 Supra note 2 at § 8123(a); see Y.A., 59 ECAB 701 (2008). 

10 20 C.F.R. § 10.321. 

11 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.814.5(a) (June 2013). 

12 Supra note 10 at § 10.517(a); see Ronald M. Jones, supra note 6. 

13 Id. at § 10.516. 
7

October 16, 2014 medical restrictions of Dr. Mauro, appellant’s treating physician. On June 15, 

2015 appellant began modified duty in the security clerk position. He resigned from federal 

service on August 19, 2015. In a decision dated November 2, 2015, OWCP terminated 

appellant’s entitlement to wage-loss compensation and schedule award benefits effective 

November 2, 2015 in accordance with 5 U.S.C. § 8106(c)(2). 

The Board finds that OWCP has met its burden of proof to justify termination of 

appellant’s entitlement to wage-loss compensation or schedule award benefits pursuant to 

5 U.S.C. § 8106(c) because he abandoned suitable work. 

The Board finds that the security clerk position as offered in OWCP’s March 13, 2015 

letter was within appellant’s work restrictions and was properly found to be medically suitable. 

In an October 16, 2014 work capacity evaluation form, Dr. Mauro indicated that appellant could 

work full time with restrictions of standing and walking with breaks for two hours, reaching, 

reaching above the shoulder, and operating a motor vehicle for one hour, pushing, pulling, and 

lifting less than 10 pounds for less than one hour, and no squatting, kneeling, bending or 

climbing. He also recommended 15-minute breaks “as needed.” Dr. Mauro continued to note in 

August 19 and December 1, 2015 reports that appellant was capable of working limited duty 

with the same restrictions. A March 13, 2015 job offer from the employing establishment 

outlined that the physical requirements of the security clerk position were “sedentary in nature” 

with physical limitations of lifting up to 10 pounds, no climbing, crawling, squatting, or 

kneeling, and getting up and moving around as needed. The Board finds that the physical 

requirements of the security clerk position were in accord with appellant’s existing medical 

restrictions provided by his treating physician. There is no medical evidence of the record 

relating that appellant was unable to perform the duties of the security clerk position. The Board 

finds, therefore, that appellant was physically able to perform the modified-duty security position 

as described in the employing establishment’s March 13, 2015 job offer.14 

Because OWCP has established that the security position abandoned by appellant was 

suitable, he has the burden to show that his refusal or failure to work was reasonable or 

justified.15 On June 15, 2015 appellant returned to limited duty as a security clerk. He stopped 

work on August 19, 2015. In the July 15, 2016 telephone hearing, counsel confirmed that 

appellant had no medical reason or disability to prevent him from working, but that he stopped 

work to return to school. The Board has found, however, that this reason does not constitute an 

acceptable reason for abandoning suitable work.16 Accordingly, appellant has failed to establish 

that his failure to return to work was justified. 

The Board further notes that OWCP followed its proper procedures in this case. After 

appellant resigned from the suitable work position, OWCP notified appellant by letter dated 

August 26, 2015 that the security clerk position was found to be suitable, discussed the 

 14 See D.S., Docket No. 16-1593 (issued December 21, 2016). 

15 Supra note 12. 

16 See Donald Reynolds, Docket No. 00-2682 (issued August 17, 2001). See also Federal (FECA) Procedure 

Manual, supra note 6 at Chapter 2.814.8(b)3iii (June 2013). Insufficient reasons for abandonment of suitable work 

include a return to college. 
8

provisions of 5 U.S.C. § 8106(c)(2), and provided 30 days to respond.17 The August 26, 2015 

letter advised appellant that if he failed to establish a recurrence of disability, failed to return to 

the security clerk position, and failed to provide a valid reason for not returning to the position, 

his right to compensation and schedule award benefits would be terminated in accordance with 

5 U.S.C. § 8106(c)(2). 

The Board finds that, based on the evidence of record, OWCP properly terminated 

appellant’s compensation, effective November 2, 2015, pursuant to 5 U.S.C. § 8106(c)(2). The 

position that appellant performed from June 15 to August 19, 2015 was suitable work, and he did 

not provide valid reasons for the work stoppage.18

Counsel argued that a suitable work termination was improper as appellant had worked in 

the position for 60 days. He provided no legal basis for his argument. The Board notes that 

OWCP may determine a claimant’s loss of wage-earning capacity after 60 days of work. 

However, in case of abandonment of suitable work this procedure does not preclude OWCP from 

a suitable work termination.19 

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

reasons discussed above, however, the Board finds that OWCP properly terminated 

compensation in this case. 

CONCLUSION 

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

benefits effective November 2, 2015 pursuant to 5 U.S.C. § 8106(c) as he abandoned suitable 

work. 

 17 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.814.8(b) (June 2013). 

18 Id. 

19 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.814.4(b) (June 2013). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 25, 2017 

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