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this instance the CE will need to evaluate the request according to the customary criteria for
modifying a formal LWEC decision (see paragraph 11 below). If the claimant retires, the CE should
offer an election between FECA and OPM benefits if appropriate. A penalty decision under 5 U.S.C.
8106(c) should not be issued.
b. No Formal LWEC Decision Issued. If no formal LWEC decision has been issued, the CE must
ask the claimant to state his or her reasons for ceasing work and make a suitability determination
on the job in question. If the job is considered suitable, the CE then advises the claimant that he
or she has the burden of proving total disability (Cloteal Thomas, 43 ECAB 1093) after return to
work and invite the claimant to submit a Form CA-2a.
(1) If the reasons stated by the claimant amount to an argument for a recurrence, the
CE should develop and evaluate the medical and factual evidence upon receipt of Form
CA-2a. In Terry Hedman, 38 ECAB 222, the Board held that a partially disabled claimant
who returns to a light-duty job has the burden of proving that he or she cannot perform the
light duty, if a recurrence of total disability is claimed. The Board held that the claimant
"must show a change in the nature and extent of the injury-related condition, or a change
in the nature and extent of the light-duty job requirements."
(a) If the recurrence is approved, compensation for total wage loss should be
paid until the claimant can return to work. If the claimant cannot return to work, the
CE will refer the case for vocational rehabilitation services.
(b) If the claimant fails to meet his or her burden of proving a recurrence of total
disability, a formal decision denying the recurrence is necessary.
(2) If no claim for recurrence is filed, and a retroactive LWEC is not appropriate (see
paragraph 7e), the CE should consider applying the penalty
provision of Section 8106(c)(2). This section may be invoked if an employee is shown to
have abandoned a suitable job without good reason and subsequently claims benefits, but
the reasons for abandoning employment must be explored before the penalty provision is
applied (Mary A. Howard,Docket No. 92-886, issued May 19, 1994, and Tobey A. Rael,
Docket No. 94-537, issued November 17, 1994). See paragraph 10 below.
2-0814-10 Abandonment of Job
10. Abandonment of Job. The 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 abandoning the job. If the claimant submits
evidence and/or reasons for abandoning the job, the CE must carefully evaluate the claimant's response
and determine whether the claimant's reasons for doing so are valid.
a. Examples. Situations where the Board held that the OWCP properly terminated
compensation pursuant to Section 8106(c)(2) are described below:
(1) Where the claimant elected to receive disability retirement rather than accept
suitable work. See Roy E. Bankston, 38 ECAB 380 (1987) (ECAB affirmed the OWCP’s
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