United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Fresno, CA, 

Employer

__________________________________________

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Docket No. 19-1650

Issued: April 28, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 30, 2019 appellant, through counsel, filed a timely appeal from a June 4, 2019 

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.

 

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.
2

ISSUE

The issue is whether OWCP has met it burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective November 10, 2018, for refusing an 

offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

FACTUAL HISTORY

On December 30, 2005 appellant, then a 47-year-old mail/file clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on December 19, 2005 she injured her right knee when she slipped 

in a puddle of water covered with leaves, while in the performance of duty. OWCP accepted the 

claim for sprain/strain of the right knee/leg, right closed fracture of tibia and fibula, sprain/strain 

of the cruciate ligament of the right knee, and right knee meniscus tear. Appellant underwent right 

knee surgical procedures on March 28, 2006, and October 6, 2011. On June 27, 2012 OWCP 

expanded acceptance of the claim to include consequential injuries of left knee strain and left hip 

strain. Appellant stopped work on July 19, 2012. She underwent left knee surgery on August 21, 

2012, and has not returned to work. OWCP paid appellant wage-loss compensation on the periodic 

rolls effective December 16, 2012.

In a November 3, 2017 report, Dr. Gary Hatcher, an osteopathic physician specializing in 

occupational medicine noted that appellant was awaiting authorization for another left knee 

surgery. He indicated that appellant was given an opportunity to return to modified-duty work and

he opined that given her work restrictions, “she certainly can be in the workplace.” Dr. Hatcher 

explained that appellant had a history of multiple injuries for which she had undergone left hip 

replacement for a nonwork-related condition, and multiple surgeries to both knees for work-related 

conditions. He opined that her current claim was related to a 2005 injury and that it was difficult 

to understand why all of the treatment she received was necessary for her accepted claim as she 

was a clerical worker and performed her work sitting 90 percent of the time. Dr. Hatcher diagnosed 

internal derangement of both knees. He provided modified-duty work restrictions indicating that 

appellant could sit 50 percent of each hour, and could not squat, kneel, or climb ladders. 

On April 10, 2018 the employing establishment offered appellant a modified mail/file clerk 

position. The limited-duty offer indicated that no kneeling or squatting was required and the 

position was to be performed while seated 50 percent of the time. Appellant did not return to work.

In a report dated April 25, 2018, Dr. Hatcher related that appellant had wanted to undergo 

a left total knee replacement and wanted to be placed on total disability because walking from her 

car to her workstation would be difficult. However, he opined that she was not totally disabled 

and she was capable of work. Dr. Hatcher related that appellant could perform work sitting 90 

percent per hour, with no squatting, kneeling, or climbing ladders or stairs.

In a letter dated May 2, 2018, the employing establishment informed OWCP that appellant 

had not accepted or declined the job offer. 

In a letter dated May 11, 2018, OWCP advised the employing establishment that the 

offered position was not determined to be suitable because a more detailed job offer was required

with regard to the physical requirements and duties being offered. 
3

On May 17, 2018 the employing establishment provided appellant a new offer of 

light/limited duty as a modified mail/file clerk. This offer described the duties of the position and 

noted that the physical aspects of the modified mail file clerk position included sitting for 90 

percent of each hour, no kneeling, no squatting, and no ladder or stair climbing. 

In a letter dated May 29, 2018, OWCP advised appellant of its determination that the 

modified mail file clerk position offered by the employing establishment was suitable based on the 

April 25, 2018 report of Dr. Hatcher. OWCP noted that the position was sedentary 90 percent of 

the time and required no squatting, kneeling, or climbing of ladders and stairs. It advised appellant 

that pursuant to 5 U.S.C. § 8106(c)(2) her wage-loss compensation and entitlement to a schedule 

award would be terminated if she did not accept the job offer or provide good cause for not doing 

so within 30 days of the date of the letter. 

In a June 12, 2018 memorandum of telephone call (Form CA-110), appellant advised 

OWCP that she received a job offer, but did not believe she could return to work. OWCP noted 

that she was advised to provide a written response if she disagreed with the May 29, 2018 letter.

OWCP subsequently received evidence which included a copy of the April 10, 2018 job 

offer. Appellant circled the notation related to 50 percent sitting and indicated it was not in keeping 

with her 90 percent sitting requirement. She also provided a copy of the May 17, 2018 job offer.

On June 29, 2018 OWCP received a letter from appellant in which she noted her 

disagreement with Dr. Hatcher’s opinion that she could return to work. She contended that she 

still required additional medication and diagnostic testing

On August 8, 2018 the employing establishment advised OWCP that appellant had not 

reported to work.

In a letter dated September 19, 2018, the employing establishment advised appellant that 

she had an intermittent work schedule; however, she was expected to report to work, if work was 

available. 

In a September 24, 2018 Form CA-110, the employing establishment confirmed that the 

May 17, 2018 limited-duty job offer remained available.

In a September 24, 2018 letter, OWCP advised appellant that her reasons for refusing to 

accept the May 17, 2018 modified mail file clerk position were unjustified. It discussed the 

evidence submitted by her and found that she did not provide a valid reason for refusing to accept 

the position. OWCP advised appellant that her wage-loss compensation and entitlement to a 

schedule award would be terminated if she did not accept the position within 15 days of the date 

of the letter. Appellant did not respond.

On November 1 and 5, 2018 the employing establishment again advised OWCP that 

appellant had not reported to work and that the offered job remained available. 

By decision dated November 5, 2018, OWCP terminated appellant’s wage-loss 

compensation and entitlement to a schedule award effective November 10, 2018, because she 

refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the duties 
4

and physical requirements of the May 17, 2018 job offer were suitable based on the work 

restrictions prescribed by her physician, Dr. Hatcher, in his April 25, 2018 report. OWCP found 

that appellant’s reasons for her job refusal and her failure to report to work were not justified 

because the position was within her treating physician’s restrictions.

On November 7, 2018 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. 

On December 6, 2018 OWCP received an unsigned statement of even date indicating that 

appellant had bragged about receiving workers’ compensation. The statement was forwarded by 

a special agent for the employing establishment, who indicated that it was from a coworker of 

appellant’s who did not want to be identified. 

By decision dated June 4, 2019, OWCP’s hearing representative affirmed the November 5, 

2018 decision.

LEGAL PRECEDENT

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

termination or modification of an employee’s compensation benefits.3 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. 4 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 or she was allowed a reasonable period to accept or reject the position or submit evidence to 

provide reasons why the position is not suitable.5 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.6

Section 10.517(a) of FECA’s implementing regulations provides 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.7 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.8

 

3

See J.R., Docket No. 19-0206 (issued August 14, 2019); R.P., Docket No. 17-1133 (issued January 18, 2018);

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

4

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

5

See R.A.,Docket No. 19-0065 (issued May 14, 2019); RonaldM. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.517(a).

8

Id. at § 10.516.
5

The determination of whether an employee is physically capable of performing a modified 

assignment is a medical question that must be resolved by medical evidence.9 OWCP’s procedures 

provide 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.10 In a suitable work determination, 

OWCP must consider preexisting and subsequently-acquired medical conditions in evaluating an 

employee’s work capacity.11

ANALYSIS

The Board finds that OWCP has met it burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective November 10, 2018, for refusing an 

offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

On May 17, 2018 the employing establishment offered appellant a modified mail file clerk 

position, and on May 29, 2018, OWCP determined that position to be suitable. The physical 

requirements of the position included sitting for 90 percent of each hour with no kneeling,

squatting, ladders, or stairs. The Board finds that the May 17, 2018 job offer was within the 

restrictions of treating physician Dr. Hatcher. Appellant’s disagreement with her own treating 

physician’s opinion is insufficient to justify her refusal of the offered position. 

Accordingly, OWCP properly relied on Dr. Hatcher’s restrictions in determining that the 

job offer was suitable. 

The Board finds that OWCP properly followed its established procedures prior to the 

termination of appellant’s compensation pursuant to 5 U.S.C. § 8106(c)(2), including providing 

her with an opportunity to accept the position offered by the employing establishment after 

informing her that her reasons for initially refusing the position were not valid.

12

For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and 

schedule award compensation, effective November 10, 2018 because she refused an offer of 

suitable work.13

 

9 M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

10 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. 13-0319 (issued May 14, 2013).

11 See G.R., Docket No. 16-0455 (issued December 13, 2016); RichardP. Cortes, 56 ECAB 200 (2004).

12 C.H., Docket No. 17-0938 (issued November 27, 2017).

13 See M.H., Docket No. 17-0210 (issued July 3, 2018).
6

CONCLUSION

The Board finds that OWCP has met it burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective November 10, 2018, for refusing an 

offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 28, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board