United States Department of Labor

Employees’ Compensation Appeals Board

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A.H., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURE MARKETING SERVICE; 

POULTRY GRADING BRANCH, Austin, TX, 

Employer

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Docket No. 22-0681

Issued: December 7, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 14, 2022 appellant filed a timely appeal from a February 24, 2022 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 to 

consider the merits of this case.

ISSUE

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

compensation and entitlement to a schedule award, effective February 24, 2022, because he 

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

This case has previously been before the Board on different issues.2 The facts and 

circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by 

reference. The relevant facts are as follows.

On February 23, 1983 appellant, then a 32-year-old egg shell grader, filed a traumatic 

injury claim (Form CA-1) alleging that on February 21, 1984 he sustained a lower back injury 

when he caught a case of eggs that was falling from the top of a skid, while in the performance of 

duty. He stopped work on February 23, 1984. OWCP accepted the claim for lumbosacral strain 

and herniated disc at L4-5. It paid wage-loss compensation on the supplemental rolls beginning

July 18, 1994.3 

Appellant alleged a recurrence of total disability beginning November 1, 1995. By 

decision dated August 8, 2008,4the Board found that appellant had established a recurrence of 

total disability on November 1, 1995 and directed OWCP to authorized appropriate compensation 

benefits beginning on that date.

Appellant continued to seek medical treatment for his accepted right knee and lower back

injuries from Dr. Thomas Martens, an osteopath and family medicine specialist. Dr. Martens

found in reports dated from October 24, 2016 through January 29, 2019 that appellant could return 

to work with restrictions on walking, standing, sitting, carrying, lifting, bending, twisting, pushing, 

and pulling. He prescribed pain and anti-inflammatory medications to decrease pain due to 

activities of daily living and found that he could not drive while using these medications. 

Dr. Martens reported that vocational rehabilitation services were not appropriate and that appellant 

was retired.

In notes dated October 9, 2019 through January 31, 2020, Dr. Karla S. Hinze, a Boardcertified family practitioner, diagnosed chronic right knee and low back pain.

On April 27, 2021 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

list of questions to Dr. Matthew T. Burrus, Board-certified in orthopedic sports medicine, for a 

second opinion examination.

In his April 23, 2021 report, Dr. Burrus reviewed the SOAF, medical reports, and 

diagnostic testing, and performed a physical examination. He noted that appellant limped on his 

2 Order Reversing Case, Docket No. 07-2018 (issued August 8, 2008); Docket No. 07-48 (issued June 4, 2007); 

Docket No. 04-1758 (issued March 1, 2005); Docket No. 03-1859 (issued December 19, 2003); Docket No. 01-1591 

(issued November 14, 2001); Docket No. 98-161 (issued December 13, 1999); Docket No. 94-2143 (issued August22, 

1996); Docket No. 93-72 (issued January 6, 1994); Docket No. 93-185 (issued December 17, 1993); Docket No. 

91-1301 (issued January 31, 1992); Docket No. 89-1496 (issued July 3, 1990); Docket No. 84-1203 (issued 

September 27, 1984).

3 OWCP previously accepted under OWCP File No. xxxxxx282 that on April5, 1979 appellant sustained a right 

knee effusion and internal derangement. It also accepted that he developed permanent aggravation of right knee 

degenerative joint disease. The current claim, OWCP File No. xxxxxx571and OWCP File No. xxxxxx282have been 

administratively combined by OWCP,with the latterserving as the master file. 

4 Order Reversing Case, Docket No. 07-2018 (issued August8, 2008).
3

right leg and used a cane to ambulate. Dr. Burrus found that appellant could sit comfortably. He 

reported decreased sensation on the lateral aspect of the right knee, tenderness on palpation of the 

right knee, and loss of strength of 4/5 throughout the right lower extremity. Dr. Burrus also found 

tenderness on the right side of the lumbar spine at L2-5. He diagnosed displacement of lumbar 

intervertebral disc without myelopathy, internal derangement of the right knee, right lower leg 

pain, and osteoarthritis of the right lower leg and opined that these conditions were the direct result 

of appellant’s accepted employment injuries. Dr. Burrus referred him for a functional capacity 

evaluation (FCE) on May 12, 2021 and as a result of this testing determined that he could not 

return to his date-of-injury position. He found that appellant could perform sedentary work with 

restrictions of standing and walking for two hours each, and no twisting, bending, stooping, 

squatting, kneeling, or climbing. Dr. Burrus restricted appellant’s pushing, pulling, and lifting to 

10 pounds for two hours a day.

In an undated note, Dr. Hinze reported that, due to his chronic medical conditions, 

appellant had difficulty sitting for extended periods of time or driving for longer distances. She 

concluded that it would be difficult for him to travel more than an hour from home for work.

On July 26, 2021 the employing establishment offered appellant a permanent modified 

light-duty position as an administrative assistant. The work was defined as sedentary and typically 

required sitting, but would also include some walking, standing, bending, and carrying of light 

items such as papers or books. The assigned tasks included activities pertaining to travel, budget, 

personnel, procurement, administrative services, and support activities. The tour of duty was 8:00 

a.m. to 4:30 p.m., Monday through Friday. The position was located at an employing 

establishment service center in Edna, Texas. The employing establishment requested a response 

within 14 days.

In a letter dated October 27, 2021, OWCP advised appellant that the offered position of 

administrative assistant was found to be suitable to his capabilities and was currently available. It 

found the position suitable and in accordance with his medical limitations. OWCP provided 

appellant 30 days to accept the position or provide written reasons for his refusal. It informed him 

that if he failed to accept the offered position and failed to demonstrate that the refusal of the offer 

of suitable work was justified, his compensation would be terminated, pursuant to 5 U.S.C. 

§ 8106(c)(2).

Appellant responded on November 2, 2021 and asserted that the offered position was 

located more than one hour drive from his home, in violation of Dr. Dr. Hinze’s restrictions. He 

also noted that his pain medication made him sleepy and light-headed, which would affect his 

driving and working abilities. Appellant alleged additional conditions prevented him from 

performing the offered position and that Dr. Hinze should be allowed to provide work restrictions.

In a December 7, 2021 letter, OWCP advised appellant that the offered position remained 

suitable and available to him, and that his reasons for refusing to accept the offered position were 

not valid. It afforded him 15 additional days to accept and report to that position or his entitlement 

to wage-loss compensation and schedule award benefits would be terminated. No response was 

received.

By correspondence dated February 15, 2022, OWCP informed appellant of its intent to 

terminate his wage-loss compensation and entitlement to a schedule award effective that date as 
4

he refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It noted that he had not 

accepted the position within the allotted 15-day time period. OWCP determined that the job was 

suitable as the position may be performed within the prescribed restrictions. It found that 

appellant’s failure to report to the offered position was not justified as he had not submitted 

evidence that the position was beyond his abilities. This correspondence did not include appeal 

rights.

By decision dated February 24, 2022, OWCP terminated appellant’s wage-loss 

compensation and entitlement to a schedule award, effective that date, as he refused an offer of 

suitable work, pursuant to 5 U.S.C. § 8106(c)(2) and provided his appeal rights. It noted that he 

had not accepted the position within the allotted 15-day time period. OWCP determined that the 

job was suitable as the position may be performed within the prescribed restrictions. It found that 

appellant’s failure to report to the offered position was not justified as he had not submitted 

evidence that the position was beyond his abilities.

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.5 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. 6 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.7 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.8

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. 9 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. 10

5

See T.H., Docket No. 19-1143 (issued May 13, 2022); R.P.,Docket No. 17-1133 (issued January 18, 2018); S.F.,

59 ECAB 642 (2008); KellyY. Simpson, 57 ECAB 197 (2005).

6

5 U.S.C. § 8106(c)(2); see also B.H.,Docket No. 21-0366 (issued October 26, 2021); Geraldine Foster, 54 ECAB 

435 (2003).

7

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

8 Y.J.,Docket No. 20-1562 (issued December 14, 2021); S.D.,Docket No. 18-1641 (issued April12, 2019); Joan F. 

Burke, 54 ECAB 406 (2003).

9

20 C.F.R. § 10.517(a).

10 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. 11 OWCP 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.12 In a suitable work determination, 

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

employee’s work capacity.13

ANALYSIS

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

wage-loss compensation and entitlement to a schedule award, effective February 24, 2022.

To determine appellant’s ability to return to work, OWCP referred him for a second opinion 

evaluation with Dr. Burrus. In his report dated April 23, 2021, Dr. Burrus opined that appellant 

could return to modified work with a number of restrictions including no twisting, bending, 

stooping, squatting, kneeling, or climbing.

The employing establishment, thereafter on July 26, 2021, offered appellant a modified 

administrative assistant position, which was purportedly based on the restrictions provided by

Dr. Burrus. The duties of the position, however, included some walking, standing, bending, and 

carrying of light items such as papers or books. 

The Board has held that, for OWCP to meet its burden of proof in a suitable work 

termination, the medical evidence should be clear and unequivocal that the claimant could perform 

the offered position.

14

 As a penalty provision, the termination of compensation benefits is 

narrowly construed.15 The modified duty position did not on its face meet Dr. Burrus’restrictions. 

He opined that appellant could not bend, which was a requirement of the offered position The 

Board finds that OWCP has not established that the suitable work position was within appellant’s 

work restrictions, as provided by Dr. Burrus. Therefore, the Board finds that it has not met its 

burden of proof and thus erroneously terminated appellant’s compensation entitlement under 

section 8106(c)(2).

CONCLUSION

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

wage-loss compensation and entitlement to a schedule award, effective February 24, 2022.

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

12 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).

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

14 See D.C., Docket No. 19-1297 (issued October 5, 2021); A.F.,Docket No. 19-0453 (issued July 6, 2020); Annette 

Quimby, 49 ECAB 304 (1998).

15 R.M., Docket No. 19-1236 (issued January 24, 2020); R.A.,Docket No. 19-0065 (issued May 14, 2019; see also

Federal (FECA) Procedure Manual, Part 2 --Claims, Job Offers and Return to Work, Chapter 2.814.4 (June2013).
6

ORDER

IT IS HEREBY ORDERED THAT the February 24, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: December 7, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board