United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL BASE 

KITSAP, Keyport, WA, Employer

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Docket No. 19-1143

Issued: May 13, 2022

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant1

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 April 22, 2019 appellant, through counsel, filed a timely appeal from an October 23, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, counsel asserted that oral argument should be granted because OWCP’s 

decision was invalid as it was unsigned. He also asserted thatthe employing establishment’slight-duty job offer was 

invalid. The Board, in exercising its discretion, denies appellant’s request for oral argument because the arguments 

on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal 

would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request 

is denied.
2

Federal Employees’ Compensation Act3(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 met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective January 8, 2014, as he refused an 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On February 11, 2013 appellant, then a 54-year-old firefighter, filed an occupational 

disease claim (Form CA-2) alleging bilateral hearing loss and tinnitus due to factors of his federal 

employment. He noted that he first became aware of his condition and realized its relation to his

federal employment on December 14, 2012.5 OWCP accepted the claim for bilateral hearing loss. 

On June 13, 2013 appellant was advised of the employing establishment’s inability to 

accommodate him in his firefighter position. On July 23, 2013 the employing establishment 

offered him the position of security clerk (office automation) as a permanent reasonable 

accommodation. The accompanying position description noted that the physical requirements of 

the position included work that was primarily sedentary; however,some standing, bending, lifting, 

and walking were required. The position also required “a great deal of visual computer contact.”

The position was located in the pass and identification office, which was “an office setting 

involving everyday risks or discomforts which require normal safety precautions typical of such 

places” and the work area was noted to be “adequately lighted.” 

Appellant declined the job offer on August 14, 2013. 

In a letter dated September 10, 2013, OWCP advised appellant that the offered position of 

security clerk was found to be suitable to his capabilities and was currently available. It found the 

position suitable and in accordance with his medical limitations for his date-of-injury job as a 

firefighter because it did not involve any significant noise exposure or the need for normal hearing, 

with or without hearing aids. Appellant was provided 30 days to accept the position or provide 

written reasons for his refusal. OWCP informed him that if he failed to accept the offered position 

3

5 U.S.C. § 8101 et seq.

4 Docket No. 16-0800 (issued December 15, 2017). 

5 OWCP assigned the present claim OWCP File No. xxxxxx016. Appellant also has a prior claim under OWCP 

File No. xxxxxx133, accepted for bilateral hearing loss. His claims under OWCP File Nos. xxxxxx016 and xxxxxx133 

have been administratively combined by OWCP with the latter serving as the master file.
3

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).

In a November 19, 2013 letter, OWCP advised appellantthat 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 decision dated January 8, 2014, OWCP terminated appellant’s wage-loss compensation 

and entitlement to a schedule award effective January 8, 2014 as he refused an offer of suitable 

work under 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 ability or 

required him to be exposed to excessive noise. 

On January 10, 2014 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings & Review. The hearing was held June 27, 2014. 

By decision dated September 11, 2014, the hearing representative affirmed the January 8, 

2014 OWCP decision. 

On November 18, 2014 appellant requested reconsideration. Additional evidence 

regarding noise exposure was submitted. 

By decision dated April 23, 2015, OWCP denied modification of the September 11, 2014 

decision.

On September 28, 2015 appellant requested reconsideration. In a September 23, 2015 

report, Dr. Michael McManus, Board-certified in occupational medicine, opined that appellant 

should not be exposed to any levels of hazardous noise at the workplace.

By decision dated November 17, 2015, OWCP denied appellant’s request for 

reconsideration. 

Appellant, through counsel, filed a timely appeal to the Board. By decision dated 

December 15, 2017, the Board set aside OWCP’s November 17, 2015 nonmerit decision, finding 

that he had submitted relevant and pertinent new evidence on reconsideration that was not 

previously considered by OWCP. The Board remanded the case to OWCP for an appropriate merit 

decision.

6

 

By decision dated October 23, 2018, OWCP denied modification of its April 23, 2015

decision. 

6

Id.
4

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.7 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.8 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.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 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

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.13 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.14 In a suitable work determination, 

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

employee’s work capacity.15

7

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005).

8

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).

9

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

10 Y.J., Docket No. 20-1562 (issued December 14, 2021); S.D., Docket No. 18-1641 (issued April 12, 2019); 

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

11 20 C.F.R. § 10.517(a).

12 Id. at § 10.516.

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

14 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).

15 See G.R., Docket No. 16-0455 (issued December 13, 2016); RichardP. Cortes, 56 ECAB 200 (2004).
5

ANALYSIS

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

compensation and entitlement to a schedule award, effective January 8, 2014, as he refused an 

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

Appellant worked for the employing establishment as a firefighter. OWCP accepted his

claim for bilateral hearing loss. On June 13, 2013 appellant was advised of the employing 

establishment’s inability to accommodate him in his firefighter position. On July 23, 2013 the 

employing establishment offered him the position of security clerk (office automation) as a 

permanent reasonable accommodation. The accompanying position description noted that the 

physical requirements of the position included work that was primarily sedentary, however, some 

standing, bending, lifting, and walking were required. The position also required “a great deal of 

visual computer contact.” Itwas located in the pass and identification office, which was “an office 

setting involving everyday risks or discomforts which require normal safety precautions typical of 

such places” and the work area was noted to be “adequately lighted.”

The case record does not contain medical evidence establishing that appellant was totally 

disabled from work or otherwise incapable of performing the duties listed in the job offer. Thus, 

OWCP properly found the offered position suitable.

In accordance with the procedural requirements under 5 U.S.C. § 8106(c)(2), OWCP 

advised appellant on September 10, 2013 that it found the job offered position to be suitable and 

afforded him an opportunity to provide reasons for refusing the position within 30 days. In a 

November 19, 2013 letter, it advised him that the offered position remained suitable and available 

to him, and that his reasons for refusing to accept the offered position were not valid. OWCP

afforded appellant 15 additional days to accept and report to that position or his entitlement to 

wage-loss compensation and schedule award benefits would be terminated. The Board finds that 

OWCP followed the established procedures prior to the termination of his wage-loss compensation 

and entitlement to schedule award benefits pursuant to 5 U.S.C. § 8106(c)(2).

The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and entitlement to a schedule award based on his refusal to accept the 

offered position.

On appeal counsel arguesthat OWCP’s decision was invalid as it was unsigned. However, 

the decision was properly signed, pursuant to FECA Bulletin No. 18-07 (issued August 17, 2018). 

Counsel further argues OWCP erroneously terminated appellant’s compensation. As explained 

above, OWCP met its burden of proof in terminating appellant’s wage-loss compensation and 

entitlement to schedule award benefits pursuant to 5 U.S.C. § 8106(c)(2). 

CONCLUSION

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

compensation and entitlement to a schedule award, effective January 8, 2014, as he refused an 

offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). 
6

ORDER

IT IS HEREBY ORDERED THAT the October 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 13, 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