United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.A., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

INSPECTION OPERATIONS PROGRAM, 

Minneapolis, MN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0407 

Issued: May 25, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 29, 2015 appellant, through counsel, filed a timely appeal from a 

September 15, 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 entitlement to wage-loss and 

schedule award compensation, effective October 8, 2014 because he refused an offer of suitable 

work. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 12, 2011 appellant, then a 50-year-old meat inspector, filed a traumatic 

injury claim (Form CA-1) alleging that on December 5, 2011 he sustained a left ankle injury 

when he slipped on a drain cover. OWCP accepted that appellant sustained a stress fracture of 

his left tibia/fibula, left ankle sprain, and left peroneal nerve injury.2

 Appellant stopped work on 

December 8, 2011 and received disability compensation on the daily roll beginning 

January 23, 2012. He returned to modified duty on a part-time basis in July 2012. 

On July 1, 2013 Dr. Steven Howell, a Board-certified orthopedic surgeon, performed 

OWCP-authorized decompression surgery on the common and deep peroneal nerves of 

appellant’s left knee and foot. Appellant stopped work after undergoing this surgery. 

In a December 31, 2013 report, Dr. Howell indicated that appellant could work eight 

hours per day with restrictions including sitting for eight hours per day, walking/standing for 

three hours, reaching for eight hours, reaching above the shoulders for eight hours, twisting for 

eight hours, bending/stooping for three hours, operating a motor vehicle at work and to/from 

work for eight hours, engaging in repetitive movements of the wrists and elbows for eight hours, 

pushing/pulling for three hours, lifting 12 pounds for three hours, squatting/kneeling for three 

hours, and climbing for three hours.3

 

On February 20, 2014 appellant filed a claim for a schedule award (Form CA-7) due to 

his December 5, 2011 employment injury. 

In a March 3, 2014 report, Dr. Alan Snodgrass, an attending Board-certified family 

practitioner, reported findings on physical examination including limitation of left ankle motion. 

He indicated that appellant had subjective complaints of experiencing pain upon any degree of 

standing, walking, or climbing. Dr. Snodgrass noted that appellant was unable to maintain his 

balance upon slick surfaces and could not walk without slipping. He opined that instability and 

limited motion of appellant’s left ankle placed him at risk for additional injury.4

On June 26, 2014 the employing establishment offered appellant a modified position as a 

food inspector. The duties involved inspecting slaughtered poultry to make sure that it was fit 

for human consumption.5

 The physical requirements of the permanent job offer included 

optional sitting/standing for a combined total of up to 8 hours per day, walking less than 30 

minutes, lifting up to 5 pounds, no squatting, no crawling, no crouching, no kneeling, very 

occasional bending/stooping, occasional balancing/climbing stairs for less than 3 minutes at a 

 2

 The findings of December 8, 2011 x-ray testing of appellant’s left foot showed no acute osseous abnormality, 

minimal degenerative changes, moderate-sized plantar calcaneal spur, and probable forefoot soft tissue swelling. 

3

 In another December 31, 2013 report, Dr. Howell indicated that appellant had 10 percent permanent impairment 

of his left lower extremity. 

4

 In a March 3, 2014 note, Dr. Snodgrass indicated that appellant could not return to work due to left ankle 

instability. 

5

 The record contains descriptions of the food inspector position from earlier in 2014, but it does not appear that 

the position was formally offered to appellant at that time. 
3

time, and frequent fine manipulation, simple grasping, and firm hand grasping. Appellant did 

not accept the food inspector position offered by the employing establishment. 

In an August 28, 2014 letter, OWCP advised appellant of its determination that the food 

inspector position offered by the employing establishment was suitable. It noted that the medical 

opinion of Dr. Howell showed that appellant was physically able to perform the position. 

OWCP informed appellant that his compensation would be terminated if he did not accept the 

position or provide good cause for not doing so within 30 days of the date of the letter. 

Appellant did not respond to OWCP’s August 28, 2014 letter within the allotted period. 

In an October 6, 2014 decision, OWCP terminated appellant’s wage-loss and schedule 

award compensation, effective October 8, 2014 because he refused an offer of suitable work. It 

found that the food inspector position was vocationally and physically suitable and that he did 

not provide good cause for refusing the position. 

By decision dated December 5, 2014, OWCP granted appellant a schedule award for 10 

percent permanent impairment of his left lower extremity. The award ran for 21.86 weeks from 

May 8 to October 7, 2014. OWCP indicated, “On October 6, 2014 this office notified [appellant] 

by letter that your entitlement to compensation for wage loss and schedule award has been 

terminated effective October 8, 2014 for refusal of suitable work, in accordance with 5 U.S.C. 

§ 8106(c)(2). Therefore, payment of your award ends on October 7, 2014.” 

Appellant, through counsel, requested a telephone hearing before an OWCP hearing 

representative. During the June 26, 2015 hearing, counsel argued that the opinion of 

Dr. Snodgrass showed that appellant could not work as a food inspector. Counsel noted that the 

percentage of impairment awarded was not in dispute. 

By decision dated September 15, 2015, the hearing representative affirmed OWCP’s 

termination of appellant’s wage-loss and schedule award compensation, effective 

October 8, 2014. He indicated that the opinion of Dr. Snodgrass did not show that appellant was 

physically unable to perform the duties of the food inspector position offered by the employing 

establishment. The hearing representative further found that the proper termination action under 

section 8106(c)(2) of FECA dictated that both appellant’s wage-loss and schedule award 

compensation were terminated, effective October 8, 2014.6

 

LEGAL PRECEDENT 

It is well settled that once OWCP accepts a claim, it has the burden of justifying 

termination or modification of compensation benefits.7

 Section 8106(c)(2) of FECA provides 

that a partially disabled employee who refuses or neglects to work after suitable work is offered 

 6

 The hearing representative indicated that he was affirming OWCP’s December 5, 2014 decision, which found 

that appellant was not entitled to schedule award compensation after October 7, 2014. He did not make any 

determination regarding the percentage of impairment awarded on December 5, 2014 and this matter is not currently 

before the Board. 

7 See Mohamed Yunis, 42 ECAB 325, 334 (1991). 
4

to, procured by, or secured for the employee is not entitled to compensation.8

 Section 

8106(c)(2) 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.9

 The Board has held that section 8106(c)(2) of FECA serves as a bar to receipt of 

further compensation for a period of disability arising from the accepted employment injury. 

This includes cases where a claimant who has had compensation terminated under 5 U.S.C. 

§ 8106(c)(2) claims later periods of disability for conditions that were accepted prior to the 

termination.10 The Board has also held that termination under section 8106(c)(2) of FECA 

serves as a bar to receipt of compensation in the form of schedule award compensation.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 by the employee, 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 

To justify termination, OWCP must show that the work offered was suitable and that 

appellant was informed of the consequences of his or her refusal to accept such employment.14 

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, and the employee’s qualifications to perform such work.15 

OWPC 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.16

ANALYSIS 

OWCP accepted that on December 5, 2011 appellant sustained a stress fracture of his left 

tibia/fibula, left ankle sprain, and left peroneal nerve injury. On July 1, 2013 Dr. Howell, a 

Board-certified orthopedic surgeon, performed OWCP-authorized decompression surgery on the 

common and deep peroneal nerves of appellant’s left knee and foot. Appellant stopped work 

 8

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

9 See Joan F. Burke, 54 ECAB 406 (2003). 

10 See Ronald M. Jones, 52 ECAB 190 (2000). 

11 See Pete F. Dorso, 52 ECAB 424 (2001). 

12 20 C.F.R. § 10.517(a). 

13 Id. at § 10.516. 

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

818 (1992). 

15 20 C.F.R. § 10.500(b). 

16 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a 

(June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013). 
5

after this surgery. By decision dated December 5, 2014, OWCP granted appellant a schedule 

award for 10 percent permanent impairment of his left lower extremity. The award ran for 21.86 

weeks from May 8 to October 7, 2014. 

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

award compensation, effective October 8, 2014, because he refused an offer of suitable work. 

On June 26, 2014 the employing establishment offered appellant a modified position as a 

food inspector. The position involved inspecting slaughtered poultry to make sure that it was fit 

for human consumption.17

The evidence of record shows that appellant is capable of performing the food inspector 

position offered by the employing establishment and determined to be suitable by OWCP in 

August 2014. In determining that appellant was physically capable of performing the food 

inspector position, OWCP properly relied on the opinion of Dr. Howell, an attending Boardcertified orthopedic surgeon. On December 31, 2013 Dr. Howell indicated that appellant could 

work eight hours per day with restrictions, including sitting for eight hours per day, 

walking/standing for three hours, and reaching for eight hours.18 The Board finds that these 

work restrictions would fit into the work restrictions of Dr. Howell and allow appellant to 

perform the physical duties of the food inspector position offered by the employing 

establishment. 

Appellant submitted a March 3, 2014 report in which Dr. Snodgrass, an attending 

Board-certified family practitioner, indicated that he had subjective complaints of experiencing 

pain upon any degree of standing, walking, or climbing. Dr. Snodgrass noted that appellant was 

unable to maintain his balance upon slick surfaces and could not walk without slipping.19 

However, his opinion does not contain medical rationale in support of his conclusions regarding 

appellant’s ability to work. The Board has held that a medical report is of limited probative value 

on a medical matter if it contains a conclusion regarding that medical matter which is unsupported 

by medical rationale.20 Dr. Snodgrass generally indicated that instability and limited motion of 

appellant’s left ankle placed him at risk for additional injury. He did not provide any opinion 

explaining how specific findings on physical examination and diagnostic testing supported 

limitations which would prevent appellant from working in the food inspector position offered 

 17 The physical requirements of the permanent job offer included optional sitting/standing for a combined total of 

up to 8 hours per day, walking less than 30 minutes, lifting up to five pounds, no squatting, no crawling, no 

crouching, no kneeling, very occasional bending/stooping, occasional balancing/climbing stairs for less than 

3 minutes at a time, and frequent fine manipulation, simple grasping, and firm hand grasping. 

18 Dr. Howell also recommended restrictions of reaching above the shoulders for eight hours per day, twisting for 

eight hours, bending/stooping for three hours, operating a motor vehicle at work and to/from work for eight hours, 

engaging in repetitive movements of the wrists and elbows for eight hours, pushing/pulling for three hours, lifting 

12 pounds for three hours, squatting/kneeling for three hours, and climbing for three hours. 

19 In a March 3, 2014 note, Dr. Snodgrass indicated that appellant could not return to work due to left ankle 

instability. 

20 C.M., Docket No. 14-88 (issued April 18, 2014). 
6

by the employing establishment. Dr. Snodgrass only noted that appellant’s complaints were 

subjective in nature and he did not provide an objective basis for their existence.21

The record does not reveal that the food inspector position offered by the employing 

establishment was temporary in nature.22 Appellant has not alleged that he was not vocationally 

capable of performing the food inspector position and the record reveals that he was in fact 

vocationally capable of performing the food inspector position as he was working as a meat 

inspector for the employing establishment at the time of his December 5, 2011 employment 

injury. 

The Board finds, therefore, that OWCP has established that the food inspector position 

offered by the employing establishment is suitable. As noted above, once OWCP has established 

that a particular position is suitable, the employee who refuses or neglects to work after suitable 

work has been offered to him has the burden of showing that such refusal to work was justified.23 

Appellant did not respond to OWCP’s August 28, 2014 preliminary suitability determination and 

the evidence of record does not justify his refusal of the food inspector position. 

The Board notes that OWCP properly terminated both appellant’s wage-loss and 

schedule award compensation effective October 8, 2014. As noted above, section 8106(c)(2) of 

FECA serves as a bar to receipt of further compensation for a period of disability arising from 

the accepted employment injury as well as a bar to receipt of schedule award compensation 

arising from the accepted employment injury.24 

For these reasons, OWCP properly terminated appellant’s wage-loss and schedule award 

compensation effective October 8, 2014 because he refused an offer of suitable work. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and 

schedule award compensation, effective October 8, 2014, because he refused an offer of suitable 

work. 

 21 Moreover, there is no indication in the record that the food inspector position required walking on slippery 

floors. 

22 If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a 

permanent job at the time of injury, the penalty language of section 8106(c)(2) cannot be applied. See Federal 

(FECA) Procedure Manual, supra note 16 at Chapter 2.814.4c(5), 9 (June 2013). 

23 See supra note 12. 

24 See supra notes 10 and 11. 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 25, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board