United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

OCCUPATIONAL HEALTH CLINIC, 

Gainesville, FL, Employer 

__________________________________________ 

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Docket No. 17-0723 

Issued: September 26, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 February 13, 2017 appellant filed a timely appeal from an October 28, 2016 merit 

decision and a January 26, 2017 nonmerit 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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and schedule award benefits effective February 5, 2016 

as she refused an offer of suitable work under section 8106(c)(2) of FECA; and (2) whether 

OWCP properly denied appellant’s request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board on appeal. The relevant facts of that 

decision are incorporated herein. The facts relevant to the current appeal are set forth below. 

On May 29, 2005 appellant, then a 47-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging on May 28, 2005 she injured her right hand due to constant repositioning 

of a patient with feeding tubes pursuant to the physicians orders 

On November 28, 2005 OWCP denied appellant’s claim finding that she had failed to 

submit sufficient evidence to establish a diagnosed condition due to the accepted employment 

incident. Appellant, through counsel, requested reconsideration on December 1, 2005. By 

decision dated January 17, 2006, OWCP found that she had not established a causal relationship 

between her bilateral wrist conditions and her employment. Counsel requested reconsideration. 

By decision dated June 20, 2006, OWCP denied modification of its prior decision.2 By Order 

Remanding Case, dated October 31, 2006,3 the Board remanded appellant’s claim to OWCP for 

reassemblage of the record and issuance of an appropriate decision.4 

In a decision dated November 3, 2006, OWCP found that appellant had not submitted 

sufficient medical evidence to establish a causal relationship between her accepted employment 

activities on May 28, 2005 and her right wrist condition. Counsel appealed to the Board. In its 

August 6, 2007 decision, the Board affirmed this decision.5 

Counsel requested reconsideration on August 5, 2008. On October 23, 2008 OWCP 

accepted appellant’s claim for right wrist strain, but found that she had no disability due to this 

condition after August 18, 2005. On February 23, 2009 it accepted the additional condition of 

volar intercalated segmental instability (VISI) deformity of the right wrist secondary to ligament 

injury. On September 15, 2009 counsel requested that a diagnosed emotional condition be 

accepted as causally related to her work injury. OWCP denied this request in a January 22, 2010 

decision. After counsel requested an oral hearing, in a March 16, 2010 decision, an OWCP 

hearing representative found that the issue was not in posture for a decision and remanded the 

claim for further development by OWCP. 

OWCP accepted appellant’s claim for a temporary aggravation of depression for the 

period May 28, 2005 through October 5, 2010. In a decision dated March 29, 2011, it terminated 

medical and wage-loss benefits for her mental condition effective October 5, 2010. OWCP 

noted that benefits for other accepted conditions were not terminated. Following counsel’s 

request for an oral hearing, on January 11, 2012 OWCP’s hearing representative affirmed the 

March 29, 2011 decision. Appellant elected FECA benefits from December 16, 2005 through 

October 6, 2010 rather than disability retirement benefits. On February 20, 2012 counsel filed on 

 2

 This decision, however, was not in the record at the time of appellant’s initial appeal to the Board. 

3 Order Remanding Case, Docket No. 06-1740 (issued October 31, 2006). 

4

 On September 27, 2006 the Office of Personnel Management granted appellant disability retirement. 

5 Docket No. 07-0502 (issued August 6, 2007). 
3

her behalf claims for compensation (Form CA-7) for the period beginning October 6, 2010. By 

decision dated April 6, 2012, OWCP paid wage-loss benefits beginning October 6, 2010. It 

thereafter placed appellant on the periodic compensation rolls. 

Dr. Roger D. Powell, a Board-certified orthopedic surgeon, examined appellant on 

December 1, 2008 and opined that she was not capable of pulling and pushing heavy patients due 

to her wrist condition. He also reported that she had chronic pain due to a herniated disc and 

bipolar personality disorder. Dr. Powell found that appellant could use her right hand, but could 

not lift patients. He completed a work capacity evaluation on April 14, 2014 and indicated that 

she could not perform her usual job and could not work eight hours a day, but could work in a 

limited-duty position. 

In a note dated April 14, 2014, Dr. Powell noted that appellant had experienced several 

nonemployment-related illnesses including cancer. He diagnosed right wrist injury. Dr. Powell 

found limited range of motion, mild tenderness over the distal radius, and minimal swelling. He 

completed an additional work capacity evaluation and again found that appellant could not work. 

Dr. Powell indicated that his restrictions were permanent. He noted that appellant could not 

reach for more than one hour, could not reach above the shoulder on the right, and restricted her 

repetitive movements of her wrists to 15 minutes within an hour. Dr. Powell further restricted 

her pushing and pulling to five pounds on the right side and indicated that she could not climb 

ladders. 

Dr. Powell completed another report on April 28, 2014 and noted appellant’s ongoing 

right wrist conditions. He diagnosed extensor carpi ulnaris (ECU) tenosynovitis. Dr. Powell 

indicated that appellant had difficulty with heavy lifting and would be unable to lift 50 pounds. 

He found that she could stand eight hours a day, sit eight hours a day, and walk intermittently for 

eight hours a day. Dr. Powell reported that appellant could not kneel, bend, or stoop as she could 

not push up on the right wrist. He found that she could not push or pull for eight hours a day, but 

could climb stairs intermittently. On April 28, 2014 Dr. Powell examined appellant due to pain 

on the ulnar aspect of her right wrist and provided a cortisone injection. He provided a second 

injection on May 28, 2014 due to her moderate discomfort from ECU tenosynovitis. 

In November 14 and December 1, 2014 notes, Dr. James W. Berk, Board-certified in 

family and sports medicines, diagnosed lumbar degenerative disc disease with facet arthropathy. 

He noted that appellant reported chronic low back pain with moderate-to-severe pain in the low 

back. Dr. Berk listed the additional conditions of lung cancer and history of chronic pain 

syndrome. He examined appellant and found that she was able to get up from a seated position 

without difficulty. Dr. Berk diagnosed L5-S1 facet arthropathy and spinal stenosis L4-5. 

On January 8, 2015 the employing establishment offered appellant a permanent full-time 

position as an information receptionist. This position required lifting up to five pounds, sitting 

up to eight hours a day, standing and walking up to one hour intermittently, and intermittent 

reaching above the shoulder and fine manipulation. 

Appellant refused the job offer on February 3, 2015 and asserted that she had developed 

additional conditions which prevented her from returning to work. These alleged new conditions 

included lumbar degenerative disc disease with severe facet arthrosis L5-S1. Appellant alleged 
4

that she was not capable of sitting for long periods of time, walking long distances, and driving 

two hours to and from the employing establishment. She noted that she was receiving treatment 

for kidney stones and had been diagnosed with lung cancer which required periodic treatment. 

Dr. Powell completed a duty status report on November 17, 2014 and indicated that 

appellant could perform the duties of an information receptionist. 

On June 16, 2015 OWCP referred appellant, a statement of accepted facts, and list of 

questions for a second opinion evaluation with Dr. George C. Hochreiter, an osteopath. 

Dr. Powell completed a work capacity evaluation on June 29, 2015 and provided 

restrictions for appellant’s right hand only. He found that appellant could reach above the 

shoulder for one hour a day and that she could perform repetitive movements of the wrists for 

one hour. Dr. Powell also restricted appellant’s repetitive pushing of the right hand. He noted 

that she required a 10-minute break every hour. Dr. Powell reported that appellant underwent 

back surgery on May 17, 2015 with additional required restrictions. He completed a note on 

June 29, 2015 and again diagnosed ECU tenosynovitis and ulnar wrist pain on the right. 

Dr. Powell opined that appellant could work light duty with no long-term repetitive motion and 

no lifting more than 10 pounds on the right. He found that she would require frequent breaks. 

On June 30, 2015 appellant asserted that it would be difficult for her to travel more than 

60 miles to the second opinion examination due to her recent back surgery which had occurred 

on May 17, 2015. She requested a second opinion examination with a physician closer to her 

residence. OWCP scheduled an additional appointment with Dr. Hochreiter on August 10, 2015. 

In a report dated September 16, 2015, Dr. Hochreiter diagnosed postoperative ulnar 

shortening and four corner fusion of the right wrist with persistent discomfort. He found that 

appellant had continuing symptoms of her right wrist condition including tenderness to palpation 

and mildly limited motion. Dr. Hochreiter opined that these conditions were causally related to 

the accepted employment injury. He found that appellant was not totally disabled, but did have 

right wrist limitations with pinching grip. Dr. Hochreiter also noted that she had other 

limitations because of her back. He indicated that appellant would be restricted with lifting, 

pushing, and pulling. Dr. Hochreiter found that she could lift up to 30 pounds rarely, 20 pounds 

occasionally, and 15 pounds frequently. He determined that appellant could lift 20 pounds up to 

three hours in an eight-hour day. Dr. Hochreiter opined that appellant could push and pull 40 

pounds up to three hours in an eight-hour day. He completed the work capacity evaluation with 

these restrictions and noted that she could work eight hours a day at the light strength level. 

On October 30, 2015 the employing establishment again offered appellant the position of 

information receptionist at the Lake City Veteran Affairs Medical Center. Appellant’s tour of 

duty would be from 8:00 a.m. to 4:30 p.m. or eight hours a day. The position was classified as 

sedentary with eight hours of sitting, although she was free to stand or change positions as 

frequently as needed. The position could infrequently require lifting file folders up to one pound 

in weight, but no pushing, pulling, squatting, reaching, or reaching above the shoulder was 

required. The duties were welcoming visitors by greeting them in person or on the telephone, 

answering or referring inquiries from visitors and staff, and directing visitors to the clinic areas. 

The position did not require use of the fax or copy machine, computer skills, or typing work. 
5

In a letter dated November 5, 2015, appellant noted that she had a subsequently arising 

back condition and noted difficulty in making the drive from her home to the employing 

establishment. By letter dated November 9, 2015, the employing establishment addressed her 

concerns noting that the offered position was sedentary, and required lifting only up to one 

pound. It noted no pushing, pulling, squatting, reaching, or reaching above the shoulders was 

required. The employing establishment also reported that, based on computer calculations, it 

was located 33 miles from appellant’s home. 

On November 17, 2015 OWCP informed appellant that the offered position of 

receptionist was suitable based on the medical evidence. It also noted that the position remained 

available. OWCP reviewed appellant’s listed concerns and noted that the lifting requirements of 

the position were within the restrictions imposed by both Drs. Powell and Hochreiter. OWCP 

further noted that she was capable of working eight hours a day in accordance to both physicians. 

It addressed appellant’s alleged additional medical conditions and noted that there was no 

medical evidence of record supporting her inability to perform the offered position due to these 

conditions. OWCP afforded her 30 days to accept the position or offer her written reasons for 

refusal. 

On December 11, 2015 appellant provided additional medical evidence in support of her 

claim of limitations on sitting and driving. Dr. Laurel Ann Warwicke, a physician Boardcertified in radiation oncology, examined appellant on October 5, 2012 and diagnosed poorly 

differentiated squamous cell carcinoma in the lung or stage IIIA nonsmall cell lung cancer. She 

recommended chemotherapy. 

On September 8, 2015 Dr. Prathima Reddy, a Board-certified physiatrist, examined 

appellant due to severe low back pain following a motor vehicle accident which had occurred in 

2006. She found limited range of motion in the lumbar spine and diagnosed degenerative lumbar 

intervertebral disc and post-laminectomy syndrome in the lumbar area. Dr. Reddy noted that 

appellant had a lumbar decompression with fusion at L4-5, and that appellant had persistent 

lower back pain due to L5-S1 degenerative disc and facet arthritis. 

Appellant submitted a November 11, 2015 chest computerized tomography scan which 

demonstrated no evidence of lung cancer recurrence or metastasis. She also submitted a 

November 17, 2015 note from a nurse practitioner. 

Dr. Robert G. Valentine, a pain management physician, examined appellant on 

December 1, 2015 due to low back pain. He diagnosed lumbosacral spondylosis, degenerative 

lumbar intervertebral disc, post-laminectomy syndrome, and diabetes. 

In a letter dated January 14, 2016, OWCP informed appellant that it found the offered 

position of receptionist suitable on November 17, 2015 and had afforded her 30 days to accept 

the position or provide her reasons for refusal. It reviewed the evidence submitted since the 

November 17, 2015 letter and found that it did not address her disability for work in the offered 

position of receptionist due to any diagnosed condition. OWCP informed appellant that the 

evidence submitted did not establish that the offered position was not suitable work. It afforded 

her an additional 15 days to accept the offered position and noted that if she refused the position 

her entitlement to wage-loss compensation and schedule award benefits would be terminated. 
6

Appellant responded on January 20, 2016 and noted that the records she submitted were 

not exhaustive. She asserted that she was not asked to provide records that specifically 

addressed her inability to perform the offered position. Appellant noted that on January 6, 2016 

she underwent a nerve ablation on her lower back and that Dr. Rosario suspected bone spurs. 

She contended that there were other factors that affected her wage-earning capacity. On 

January 31, 2016 appellant again alleged that OWCP was ignoring her other medical conditions 

in finding the receptionist position suitable work. She alleged additional conditions including the 

inability to see at night, social phobia and anxiety, limitations due to her back pain, drowsiness 

due to medications, and heel spurs. Appellant asserted that OWCP had an obligation to develop 

the medical evidence to determine all her work restrictions including nonwork-related 

conditions. 

By decision dated February 4, 2016, OWCP terminated appellant’s wage-loss 

compensation and entitlement to schedule award benefits effective February 5, 2016 as she had 

refused suitable work in accordance with 5 U.S.C. § 8106(c)(2). It noted that the decision did 

not affect coverage of her medical benefits which were still authorized if needed to treat her 

accepted work-related conditions.6

 

Appellant requested an oral hearing on February 18, 2016. She argued that her benefits 

were wrongly terminated as OWCP did not consider her work restrictions due to her back injury. 

In a note dated February 17, 2016, Dr. Valentine found that appellant had a great deal of low 

back pain which severely limited her activities and her ability to sit. He noted that she was 

unable to sit longer than an hour without having to lie down to relieve her back pain. Appellant 

also submitted notes from a physical therapist. 

Dr. Paul W. Snider, a physician Board-certified in emergency medicine, examined 

appellant on October 9, 2006 due to progressive low back pain. He diagnosed lumbar strain. 

Appellant underwent a lumbar epidural injection on May 12, 2007. She underwent a lumbar 

magnetic resonance imaging (MRI) scan on May 14, 2007. Dr. Steven A. Reid, a Boardcertified neurosurgeon, examined appellant on July 16, 2007 following a September 20, 2006 

motor vehicle accident when a sport utility vehicle backed into the passenger door of appellant’s 

car. He reviewed a May 14, 2007 lumbar MRI scan which showed a central and left paracentral 

disc protrusion at the L5-S1 level with posterior displacement of the descending S1 nerve root. 

Appellant reported increased symptoms when sitting or walking. On December 4, 2007 Dr. Reid 

recommended an L5-S1 microsurgical hemilaminotomies with discectomy. 

In a letter dated March 2, 20016, appellant changed her request for an oral hearing to a 

request for a review of the written record. In a June 30, 2016 decision, a hearing representative 

found that there was no medical evidence of record supporting her disability for work in the 

offered receptionist position and affirmed the December 4, 2016 decision. 

On October 11, 2016 appellant requested reconsideration and noted that she underwent a 

laminectomy with fusion on May 15, 2015. On October 10, 2016 Dr. Valentine diagnosed 

 6

 In a February 16, 2016 preliminary decision, OWCP found that appellant received a $268.33 overpayment for 

the period February 5 through 6, 2015 as her compensation was terminated on February 5, 2016. It administratively 

terminated this debt on March 24, 2016. 
7

severe low back pain limiting activity and even sitting. He noted that the sitting issue suggested 

a discogenic component, compatible with her L5-S1 degenerative disc disease. Dr. Valentine 

diagnosed intractable lumbar pain due to degenerative disc disease L5-S1. He opined, “Sitting 

increases intradiscal pressure, intensifying pain in a sensitized lumbar disc. Therefore, 

[appellant] is unable to tolerate prolonged sitting and is restricted to sitting no more than one 

hour before lying down, or 30 minutes before standing. She is unable to engage in prolonged 

sitting. This precludes employment in a typical sedentary position unless accommodations can 

be made for the previously noted position changes.” 

By decision dated October 28, 2016, OWCP denied modification of its prior decisions. It 

noted that the offered position allowed appellant to stand or change positions as frequently as 

needed. OWCP found that there was no rationalized medical evidence supporting her claim that 

the offered position was not suitable. 

Appellant requested reconsideration on December 9, 2016. She disagreed with OWCP’s 

assessment of the medical evidence and alleged that she would be required to drive four hours 

round trip to the employing establishment. 

By decision dated January 26, 2017, OWCP declined to reopen appellant’s claim for 

consideration of the merits. It found that her letter neither raised substantive legal questions nor 

included new and relevant evidence. 

LEGAL PRECEDENT -- ISSUE 1 

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

termination or modification of compensation benefits.7 As OWCP in this case terminated 

appellant’s compensation under 5 U.S.C. § 8106(c), OWCP must establish that she refused an 

offer of suitable work. Section 8106(c) of FECA8 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. OWCP’s 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 the finding of suitability. If the employee 

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

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

without penalty.9

 

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

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

8

 5 U.S.C. § 8106(c)(2). 

9

 20 C.F.R. § 10.516. 

10 D.C., Docket No. 16-1665 (issued April 13, 2017); Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson,

46 ECAB 1002 (1995). 
8

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.11 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.12

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.13 It is well established that OWCP must consider preexisting and 

subsequently acquired conditions in the evaluation of suitability of an offered position.14 After 

termination or modification of benefits clearly warranted, on the basis of the evidence, the 

burden for reinstating benefits shifts to the employee.15

ANALYSIS -- ISSUE 1 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and schedule award benefits effective February 5, 2016 

under section 8106(c)(2) of FECA. 

OWCP accepted appellant’s claim for right wrist strain and VISI deformity of the right 

wrist secondary to ligament injury. On October 30, 2015 the employing establishment offered 

her a position as an information receptionist at Lake City Veteran Affairs Medical Center. The 

position was classified as sedentary with hours of sitting, although she was free to stand or 

change positions as frequently as need. The position required lifting file folders up to one pound 

in weight, but no pushing, pulling, squatting, reaching, or reaching above the shoulder was 

required. This position was within the restrictions set by both appellant’s attending physician 

and OWCP’s referral physician, Dr. Hochreiter for her right arm. However, in his September 16, 

2015 report, Dr. Hochreiter noted that appellant had other limitations because of her back. 

Dr. Powell also noted opined on June 29, 2015 that she underwent back surgery on May 17, 2015 

and that she would require additional restrictions due to her back conditions beyond those 

offered for her right arm. 

OWCP informed appellant that the position was suitable on November 17, 2015. The 

Board notes, however, that the medical evidence clearly reflects that she was receiving medical 

treatment for a subsequently arising back condition. Dr. Hochreiter indicated that he had not 

reviewed the offered position prior to determining whether appellant was capable of performing 

the position.16 Dr. Hochreiter and Dr. Powell had both indicated that she had additional 

 11 20 C.F.R. § 10.517(a). 

12 Id. at § 10.516. 

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

14 Richard P. Cortes, 56 ECAB 200 (2004). 

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

16 Y.A., 59 ECAB 701 (2008). 
9

restrictions due to her back condition. OWCP’s procedures provide that the claimant must be 

taken as a whole person. If a nonwork-related condition results in work restrictions, those must 

be considered. The Board finds that OWCP failed to establish a suitable work position as it did 

not develop the medical evidence to determine whether appellant was capable of performing the 

position of receptionist given her subsequently arising back condition. As a penalty provision, 

section 8106(c)(2) must be narrowly construed.17 OWCP did not discharge its burden of proof to 

justify the termination of appellant’s wage-loss compensation and schedule award benefits.18 

CONCLUSION 

The Board finds that OWCP failed to meet its burden to terminate appellant’s entitlement 

to wage-loss compensation and schedule award benefits effective February 5, 2016 as she 

refused an offer of suitable work under section 8106(c)(2) of FECA. 

ORDER 

IT IS HEREBY ORDERED THAT January 26, 2017 and October 28, 2016 decisions 

of Office of Workers’ Compensation Programs are reversed. 

Issued: September 26, 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 

 17 See Karen Spurling, 56 ECAB 189 (2004); Christine P. Burgess, 43 ECAB 449 (1992). 

18 Due to the disposition of this issue, it is not necessary for the Board to address the nonmerit issue on appeal.