United States Department of Labor

Employees’ Compensation Appeals Board

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R.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS BENEFITS ADMINISTRATION, 

San Juan, PR, Employer

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Docket No. 20-1670

Issued: September 15, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 29, 2020 appellant filed a timely appeal from an April 2, 2020 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 has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective April 2, 2020, as she refused an offer 

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

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 22, 1999 appellant, then a 42-year-old contact representative/veterans 

benefits counselor, filed an occupational disease claim (Form CA-2) alleging that factors of her 

federal employment, including repetitive writing and entering data into the computer, caused

bilateral hand and back conditions. OWCP accepted the claim for left carpal tunnel syndrome. 

The record reflects that OWCP paid appellant wage-loss compensation on the periodic rolls as of 

June 16, 2002. Appellant relocated to Virginia from Puerto Rico prior to September 2003. On 

May 28, 2009 appellant notified OWCP that she had relocated to Killeen, Texas.

On February 4, 2019 OWCP referred appellant for a second opinion examination with

Dr. James Butler, a Board-certified orthopedic surgeon. It provided Dr. Butler with appellant’s 

medical records and a statement of accepted facts (SOAF). OWCP asked him to address 

appellant’s disability status and her limitations resulting from both her work-related and nonworkrelated conditions.

In a March 19, 2019 report, Dr. Butler noted appellant’s history of injury and medical

treatment. He noted that appellant’s accepted condition was left carpal tunnel syndrome. 

Dr. Butler related that an electromyography (EMG) scan from 2004 showed severe bilateral 

median neuropathies and that appellant currently had subjective complaints of pain in both wrists, 

numbness, and tingling in both hands and fingers. He advised that the residuals on examination 

revealed persistent tenderness and decreased range of motion of both wrists, decreased sensation 

in the right hand and fingers in median nerve distribution, and positive Tinel’s sign and Phalen’s

test at the right wrist. Dr. Butler explained that the accepted condition had not completely 

resolved, but had been stable for several years. He opined that, due to the lack of improvement 

from prior treatment and her decision not to have surgery, no further treatment was warranted and 

appellant had reached maximum medical improvement (MMI). Dr. Butler noted that appellant 

failed to attend a scheduled functional capacity evaluation (FCE) and he opined that, based on his 

examination, appellant was able to perform modified duties. He provided an April 30, 2019 work 

capacity evaluation (Form OWCP-5c), indicating that appellant could perform sedentary work. 

Dr. Butler noted appellant’s restrictions, indicating that appellant could perform repetitive 

movements of the wrists for two hours per day and no pushing/pulling/lifting of more than 10 

pounds for more than two hours per day.

On July 9, 2019 the employing establishment offered appellant a position as a Program 

Support Worker in Guaynabo, Puerto Rico. The duties and physical requirements of the offered 

position included no repetitive fine motor skills more than two hours per day and no heavy 

lifting/pushing/pulling of more than 10 pounds per day.

On July 23, August 26, September 21, and December 20, 2019, the employing 

establishment noted that appellant did not report to the position.

On January 14, 2020 the employing establishment confirmed that the position remained 

available.

On January 14, 2020 OWCP informed appellant that it found the job offer suitable and in 

accordance with the work restrictions provided by Dr. Butler. It noted that the employing 
3

establishment confirmed that the position remained open and available to her. OWCP allowed 

appellant 30 days to accept the position or provide her reasons for refusal. It advised that, pursuant 

to 5 U.S.C. § 8106(c)(2), an employee who refuses an offer of suitable work without reasonable 

cause is not entitled to further compensation for wage loss or a schedule award.

In a letter dated February 12, 2020, appellant responded to OWCP regarding her refusal to 

return to work. She indicated that she was still totally disabled, that her physician had found her 

totally disabled, and that Dr. Butler’s examination was incomplete because the FCE was not 

performed. Appellant further argued that the job offer was not suitable because she had lived in 

Texas for the past 12 years and the job offer was located in Puerto Rico. She further noted that 

the job offer had a report by date of less than two weeks from the initial offer, which was not 

feasible.

On February 27, 2020 the employing establishment confirmed that the position remained 

available.

By notice dated March 3, 2020, OWCP advised appellant that her refusal of the offered 

position was not justified. It afforded her an additional 15 days to accept the offered position.

In response to the 15-day notice, OWCP received letters from appellant relating to her 

requests for documentation regarding Dr. Butler’s selection as a second opinion physician, and 

letters explaining her inability to attend scheduled medical appointments.

On April 2, 2020 the employing establishment confirmed that the position remained 

available.

By decision dated April 2, 2020, OWCP terminated appellant’s wage-loss and entitlement 

to schedule award compensation benefits, effective that date, as she refused an offer of suitable 

work pursuant to 5 U.S.C. § 8106(c)(2). It found that Dr. Butler’s report constituted the weight of 

the medical evidence regarding appellant’s work limitations.

LEGAL PRECEDENT

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.2 It has authority under 5 U.S.C. § 8106(c)(2) of 

FECA to terminate compensation for any partially disabled employee who refuses or neglects to 

work after suitable work is offered. To justify termination, OWCP must show that the work offered 

was suitable, that appellant was informed of the consequences of the refusal to accept such 

employment, and that he or she was allowed a reasonable period to accept or reject the position or 

 

2

See T.M., Docket No. 20-0401 (issued February 26, 2021); E.W, Docket No. 19-1711 (issued July 29, 2020); 

BernadineP. Taylor, 54 ECAB 342 (2003).
4

submit evidence or provide reasons why the position is not suitable.3 In determining what 

constitutes suitable work for a particular disabled employee, it considers the employee’s current 

physical limitations, whether the work was available within the employee’s demonstrated 

commuting area, and the employee’s qualifications to perform such work.4

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. 5 

Its regulations provide that the employing establishment, if possible, should offer suitable 

reemployment in the location where the employee currently resides. If this is not practical, the 

employing establishment may offer suitable reemployment at the employee’s former duty station 

or other location.6

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 2, 2020, for refusal of an 

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

The employing establishment offered appellant a modified position in

Guaynabo, Puerto Rico. However, the record reflects that she had relocated and had lived in Texas 

for the past 12 years. OWCP did not explain why the location of the offered position was in Puerto 

Rico and it did not indicate that it made an attempt to determine whether suitable employment was 

available in Texas where appellant resides.

The Board has previously recognized that OWCP procedures require that, 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 current geographic area.7

The evidence of record indicates that the offered position in Guaynabo, Puerto Rico is 

located approximately 2,000 miles from appellant’s residence in Killeen, Texas. OWCP should 

have developed this aspect of the case before finding the offer suitable. Its regulations provide 

 

3

5 U.S.C. § 8106(c)(2); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to 

Work, Chapter 2.814.2e.(June 2013) (the claims examiner (CE) must make a finding of suitability, advise the claimant 

that the job is suitable and that refusal of it may result in application of the penalty provision of 5 U.S.C. § 8106(c)(2), 

and allow the claimant 30 days to submit his or her reasons for refusing or abandoning the position. If the claimant 

submits evidence and/or reasons for refusing or abandoning the position, the CE must carefully evaluate the claimant’s 

response and determine whether the claimant’s reasons for doing so are valid. See R.A.,Docket No. 19-0065 (issued 

May 14, 2019); RonaldM. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore, 42 ECAB 484, 488 (1991), 

reaff’d on recon., 43 ECAB 818, 824 (1992).

4

20 C.F.R. § 10.500(b).

5

Supra note 3at Chapter 2.814.5a (June 2013).

6

20 C.F.R. § 10.508; see S.W., Docket No. 18-0857 (issued November 26, 2018); D.C., Docket No. 17-0582 (issued 

September 6, 2017); SharonL. Dean, 56 ECAB 175 (2004).

7

See A.P., Docket No. 17-1135 (issued February 12, 2018); W.D., Docket No. 15-1297 (issued August 23, 2016);

supra note 3at Chapter 2.814.4a.(2) (June 2013).
5

that the employing establishment should offer suitable reemployment where the employee 

currently resides, if possible.8 The Board also noted in Sharon L. Dean9that the employing 

establishment should offer suitable reemployment where the employee currently resides, and 

found that it was reversible error for OWCP to terminate appellant’s compensation benefits 

without positive evidence showing that such an offer was not possible or practical in appellant’s 

geographic location. In W.D.,

10 the Board reaffirmed that, if the job offer is for a site outside of 

the employee’s residential area, the employing establishment must document that it first searched 

for suitable employment in the employee’s current geographic area.

The Board finds that OWCP did not substantiate that the employing establishment 

performed a current and proper search for suitable employment in appellant’s geographic area. 

OWCP, therefore, did not properly determine that the offered position was suitable. The April 2, 

2020 termination decision is reversed.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 2, 2020, for refusal of an 

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

 

8

Id.

9

56 ECAB 175 (2004).

10 Docket No. 15-1297 (issued August23, 2016).
6

ORDER

IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: September 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board