United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.F., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

FOREST SERVICE, Platina, CA, Employer 

__________________________________________ 

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Docket No. 16-0851 

Issued: June 19, 2017 

Appearances: Case Submitted on the Record

Edward L. Daniel, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 21, 2016 appellant, through his representative, filed a timely appeal from a 

September 23, 2015 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 met its burden of proof to terminate appellant’s wage-loss 

compensation effective February 8, 2015 based on his refusal of an offer of temporary suitable 

employment pursuant to 20 C.F.R. § 10.500(a). 

On appeal, appellant’s representative contends that the employing establishment’s 

January 30, 2015 job offer was not valid because it failed to provide the specific requirements of 

the position. He further contends that OWCP did not consider travel restrictions imposed by an 

attending physician. 

FACTUAL HISTORY 

OWCP accepted that on October 19, 20123

 appellant, then a 46-year-old supervisory 

forestry technician, sustained a back sprain while lifting a gear bag out of a cross box from the 

back of his pick-up truck at work. Appellant stopped work on October 26, 2012 and returned to 

full-time modified duty on December 10, 2012. 

In a May 9, 2014 medical report, Dr. Rodney T. Phillips, an attending family practitioner, 

reviewed diagnostic test results and provided findings on physical examination. He diagnosed 

lumbar radiculopathy, lumbar disc disease, low back pain, and herniated disc. Dr. Phillips 

advised that appellant could perform modified activity with restrictions as of the date of his 

examination. The restrictions included: no lifting, pushing; pulling, or carrying over 20 pounds; 

no prolonged walking, standing, or sitting; no bending/stooping; and no driving for more than 20 

minutes. 

In a September 10, 2014 report, Dr. Phillips reiterated his diagnosis of low back pain. He 

found that appellant could work four hours a day with restrictions. Dr. Phillips reiterated his 20-

minute driving restriction. He recommended limited continuous sitting to 20 minutes and 40 

minutes total in 1 hour to 4 hours total in one shift. Continuous standing was limited to 15 

minutes and 30 minutes total in 1 hour to 4 hours total in one shift. Continuous walking was 

limited to 15 minutes and 30 minutes total in 1 hour to 4 hours total in one shift. The record 

reflects that, from September 11 to 26, 2014, OWCP paid appellant wage-loss compensation on 

the supplemental rolls for four hours daily, for a total of 52 hours. 

In a September 29, 2014 report, Dr. Phillips noted that appellant wished to have 

additional diagnoses added to his claim. He reiterated his diagnoses of lumbar disc disease, 

lumbar radiculopathy, and low back pain and restricted appellant from reaching over shoulder 

level, squatting, and kneeling, lifting, pushing, pulling, carrying, sitting, standing, walking, 

bending, and stooping. Dr. Phillips placed him off work on the date of his examination. OWCP 

commenced payment for temporary total disability compensation on the supplemental rolls on 

September 29, 2014. Wage-loss benefits were paid pursuant to a Form CA-7 claim for 

compensation submitted on appellant’s behalf by the employing establishment. 

 3

 The Board notes that OWCP referred to October 18, 2012 as the date of injury. However, appellant’s Form 

CA-1 indicates that the date of injury was October 19, 2012. 
3

In an October 7, 2014 letter, OWCP advised appellant that it had received a telephone 

call from his physician’s office explaining to OWCP that appellant’s lumbar disc disease and 

lumbar radiculopathy was a consequence of his accepted condition. It informed him of the 

deficiencies of his claim and afforded 30 days to submit additional evidence and respond to its 

inquiries. 

In an October 9, 2014 report, Dr. Phillips noted a history of the October 19, 2012 

employment injury and appellant’s subsequent medical treatment. He indicated that his 

continuing back symptoms had improved, but related that a magnetic resonance imaging scan 

revealed a herniated disc at L5-S1 with two- to three-millimeter displacement of the left S1 nerve 

root. Dr. Phillips related that appellant was six months out from the original onset which spoke 

for some stability. He related, however, that even patients who had surgery could have 

additional movement of the disc material which would cause more symptoms when they 

resumed normal activities. Dr. Phillips maintained that this was a risk that appellant needed to 

recognize as he resumed work. He recommended that appellant work smart and limit his risk as 

much as possible. Dr. Phillips opined that appellant’s lumbar herniated disc and nerve root 

impingement conditions were work related. He proposed injections to help with these 

conditions. Dr. Phillips related that, if the injections were not helpful, then surgery was the only 

recourse. 

On November 4, 2014 OWCP referred appellant, together with a statement of accepted 

facts and the medical record, to Dr. Charles F. Xeller, a Board-certified orthopedic surgeon, for a 

second opinion as to whether the proposed lumbar surgery was related to his accepted 

employment injury. 

In a December 5, 2014 report, Dr. Xeller provided a history of the October 19, 2012 

employment injury and appellant’s medical treatment. He reported findings on examination and 

provided an impression of an injury consistent with more than a back sprain/strain but, rather a 

herniated disc at L4-L5. Dr. Xeller recommended acceptance of this condition as related to the 

October 19, 2014 employment incident. He noted that appellant’s condition was nonresponsive 

to conservative treatment. Dr. Xeller recommended a trial of epidural steroid injections and 

related that if it was unsuccessful, then a discectomy was needed. He concluded that due to the 

herniated disc at L4-L5, appellant could only perform sedentary work with restrictions. In a 

work capacity evaluation (Form OWCP-5c), Dr. Xeller indicated that appellant was not capable 

of performing his usual job, but could work eight hours a day with physical restrictions. He 

recommended that appellant avoid bending, stooping, and lifting. Dr. Xeller also recommended 

no squatting, climbing, engaging in repeated bending, or lifting more than 10 pounds. 

On January 12, 2015 OWCP accepted appellant’s claim for lumbar disc protrusion/ 

herniation at L5-S1. Appellant continued to receive wage-loss compensation on the 

supplemental rolls. 

By letter dated January 12, 2015, OWCP requested that the employing establishment 

offer appellant a light-duty position within the restrictions set forth by Dr. Xeller. 

On January 30, 2015 the employing establishment offered appellant a temporary lightduty sedentary position as a supervisory forestry technician, effective February 8, 2015, eight 
4

hours a day, with a tour of duty from 8:00 a.m. to 4:30 p.m. Monday through Friday based on the 

restrictions found by Dr. Xeller. It stated that the position was being offered during his period of 

recovery until his physician fully releases him for his date-of-injury position. Restrictions for the 

position included avoiding bending, stooping, and lifting and no squatting, climbing, repetitive 

bending, or lifting more than 10 pounds. Physical requirements of the position were sitting, 

walking, standing, reaching, reaching above the shoulder, twisting, operating a motor vehicle at 

work and to and from work, repetitive wrist and elbow movements, pushing, pulling, and 

kneeling. 

Duties of the position included developing and tracking training on the unit, developing 

the annual District Fire Preparedness Review Plan, and administrative tasks within an assigned 

office consisting of answering telephones, taking messages, filing, updating records, recording 

data, data entry, copying, printing, computer updates, and the revision of the District Safety Plan. 

Additional duties included jobs as assigned within restrictions such as driving, attending local 

meetings, and assisting with local training course presentations. The employing establishment 

informed appellant that his assigned duties would come from the reporting office at Harrison 

Gulch Ranger Station in Platina, California, and his duties would be accomplished at Hayfork 

District Office in Hayfork, California. 

On February 5, 2015 appellant declined the position. He stated that the drive from his 

residence to Harrison Gulch Ranger Station was 53.82 miles one way or 1 hour and 10 minutes 

based on MapQuest.com.4

 Appellant related that he would have to drive an additional 27.12 

miles or 42 minutes to the Hayfork District Office based on the same internet-based service.5

 He 

asserted that his commute exceeded his attending physician’s 20-minute driving restriction. 

In a February 2, 2015 Form OWCP-5c, Dr. Phillips found that while appellant could not 

perform his usual job, he could perform sedentary work, eight hours a day with restrictions. He 

could sit, stand, and walk, eight hours a day. Dr. Phillips restated his bending, stooping, 

squatting, kneeling, reaching, and 20-minute driving restrictions. He advised that appellant 

could not carry or lift more than 10 pounds. In a February 2, 2015 narrative report, Dr. Phillips 

reiterated his prior diagnoses of low back pain, lumbar disc disease, and lumbar radiculopathy. 

He released appellant to return to modified activity with restrictions on February 9, 2015. The 

restrictions included no pushing or pulling more than 10 pounds. Dr. Phillips restated appellant’s 

sitting, standing, and walking restrictions. 

On February 23, 2015 appellant filed a claim for compensation (Form CA-7) for leave 

without pay (LWOP) from February 8 to 21, 2015. 

In a March 4, 2015 letter, OWCP advised appellant that it had reviewed the temporary 

light-duty job offer by the employing establishment and found it to be within the restrictions set 

 4

 Appellant supplied OWCP with a change of address on August 4, 2014. According to a recent search at 

www.MapQuest.com, the distance from appellant’s address of record to the Harrison Gulch Ranger Station is 53.1 

miles with an estimated travel time of one hour and two minutes. 

5

 According to another recent search at www.MapQuest.com, the distance from the Harrison Gulch Ranger 

Station to the Hayfork District Office is 28.8 miles with an estimated travel time of 45 minutes. 
5

forth by Dr. Xeller. It stated that Dr. Phillips’ report and Form OWCP-5c dated February 2, 

2015 did not outweigh the weight accorded to Dr. Xeller who provided a well-rationalized 

opinion and was better qualified as a Board-certified orthopedic surgeon. OWCP noted that 

upon acceptance of the assignment, appellant would be paid compensation based on the 

difference (if any) between the pay of the temporary light-duty assignment and the current pay of 

his date-of-injury position.6

 It discussed its regulations at 20 C.F.R. § 10.500(a) and advised 

appellant that his entitlement to wage-loss compensation would be terminated under 20 C.F.R. 

§ 10.500(a) if he did not accept the temporary offered assignment or provide a written 

explanation of his reasons for not doing so within 30 days of the date of the letter. 

On March 23, 2015 appellant informed the employing establishment that he was unable 

to drive from his home to the Harrison Gulch duty station.7 He requested an assignment to a 

different location, but was told there was no available work assignment out of that office. 

In a March 23, 2015 report, Dr. Michael D. Jorde, a Board-certified family practitioner, 

and in the same practice with Dr. Phillips, noted that appellant attempted to return to work on 

that date, but he was unable to drive one and one-half hours due to back pain. He reported 

findings on physical examination and diagnosed low back pain and lumbar disc disease. 

Dr. Jorde concluded that appellant could perform modified work with restrictions as of the date 

of his examination. The restrictions were the same restrictions, with the exception of the 20-

minute driving restriction, set forth in Dr. Phillips’ February 2, 2015 Form OWCP-5c and 

narrative reports. 

In a March 25, 2015 report, Dr. Phillips noted that appellant had a “severe lapse” from 

driving one and one-half hours. He provided examination findings and reiterated his prior 

diagnoses of low back pain and lumbar disc disease. Dr. Phillips advised that appellant could 

perform modified work with restrictions as of March 23, 2015. In this report and a March 25, 

2015 Form OWCP-5c, he reiterated appellant’s sitting and driving restrictions. 

By decision dated April 6, 2015, OWCP terminated appellant’s wage-loss compensation, 

effective February 8, 2015. It noted that he had not accepted the temporary light-duty 

assignment, which was within his medical restrictions set forth by Dr. Xeller. OWCP further 

noted that the offered assignment was for 40 hours per week with wages of $61,307.00 per year, 

an amount that met or exceeded the current wages of appellant’s date-of-injury position, and that, 

therefore, he would not suffer any wage loss if he accepted the assignment. It discussed its 

regulations at 20 C.F.R. § 10.500(a) and advised that his entitlement to wage-loss compensation 

would be terminated under 20 C.F.R. § 10.500(a) if he did not accept the offered assignment or 

provide good cause for not doing so within 30 days of the date of the letter. OWCP found that, 

therefore, the termination of appellant’s wage-loss compensation effective February 8, 2015 was 

justified under 20 C.F.R. § 10.500(a). 

 6

 The record reveals that the annual salary of the offered temporary light-duty assignment was $61,307.00 and the 

current pay of appellant’s date-of-injury position was $60,700.00. 

7

 On March 24, 2015 the employing establishment informed OWCP that appellant had gone to his desired office 

location rather than the office location of the offered position. 
6

On April 20, 2015 appellant filed an additional claim for compensation (Forms CA-7) for 

the period February 22 to April 4, 2015. 

In a June 27, 2015 letter, appellant, through his representative, requested reconsideration. 

He asserted that the January 30, 2015 job offer was not valid because it failed to provide the 

specific requirements of the position and any special demands of the workload or unusual 

working conditions. The representative further asserted that Dr. Xeller’s report did not constitute 

the weight of the medical opinion evidence as he had not addressed appellant’s sitting and 

driving restrictions. He also asserted that OWCP failed to request a supplemental report from 

Dr. Xeller clarifying whether his restrictions were temporary or permanent. 

In a decision dated September 23, 2015, OWCP denied modification of its April 6, 2015 

termination decision. It again found that appellant failed to accept the temporary light-duty 

assignment offered by the employing establishment which was within his medical restrictions. 

OWCP also found that, therefore, the termination of appellant’s wage-loss compensation 

effective February 8, 2015 was justified under 20 C.F.R. § 10.500(a). 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of compensation benefits.8 Section 10.500(a) states that appellant is 

only entitled to wage-loss compensation for the periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.9

OWCP procedures note that 20 C.F.R. § 10.500 provides the basic rules governing 

continuing receipt of compensation benefits and return to work as follows: 

(a) Benefits are available only while the effects of a work-related condition 

continue. Compensation for wage loss due to disability is available only for any 

periods during which an employee’s work-related medical condition prevents him 

or her from earning the wages earned before the work-related injury. For 

example, an employee is not entitled to compensation for any wage-loss claimed 

on a Form CA-7 to the extent that evidence contemporaneous with the period 

claimed on a Form CA-7 establishes that an employee had medical work 

restrictions in place; that light duty within those work restrictions was available; 

and that the employee was previously notified in writing that such duty was 

available. Similarly, an employee receiving continuing periodic payments for 

disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing establishment had 

offered, in accordance with OWCP procedures, a temporary light-duty assignment 

 8 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

9

 20 C.F.R. § 10.500(a). 
7

within the employee’s work restrictions. (The penalty provision of 5 U.S.C. 

8106(c)(2) will not be imposed on such assignments under this paragraph.)”10

When it is determined that an employee is no longer totally disabled from work and is not 

on the periodic rolls, OWCP procedures state that the claims examiner should determine whether 

light-duty work was available within the employee’s medical restrictions during the period for 

which compensation is claimed and a development letter should be sent to appellant setting forth 

the standards under section 10.500(a) including medical evidence required to establish a claim 

for wage-loss compensation. The claims examiner should also obtain documentation from the 

employing establishment that written notification of light-duty work availability was provided to 

the employee, if not already in the file.11 The claims examiner, when adjudicating the claim for 

wage-loss compensation, must also determine whether the evidence of record establishes that the 

employee was provided with written notification of a light-duty job assignment, that the job was 

within the employee’s restrictions, and that the job was available to the employee during the 

period wage-loss compensation was claimed.12

ANALYSIS 

OWCP accepted that appellant sustained an employment-related back sprain and lumbar 

disc protrusion/herniation at L5-S1. Appellant received disability compensation on the 

supplemental rolls. On January 30, 2015 the employing establishment offered appellant a 

temporary, light-duty, sedentary position as a supervisory forestry technician on a full-time basis. 

The position involved developing and tracking training on a unit, developing the annual District 

Fire Preparedness Review Plan, performing administrative tasks within the assigned office that 

consisted of answering telephones, taking messages, filing, updating records, recording data, data 

entry, copying, printing, computer updates, and plan revision such as District Safety Plan. 

Additional duties included jobs as assigned within restrictions that included driving, attending 

local meetings, and assisting with local training course presentations. Physical requirements of 

the position were sitting, walking, standing, reaching, reaching above the shoulder, twisting, 

operating a motor vehicle at work and to and from work, repetitive wrist and elbow movements, 

pushing, pulling, and kneeling. Restrictions for the position included avoiding bending, 

stooping, and lifting and no squatting, climbing, repetitive bending, or lifting more than 10 

pounds. The position required appellant to report to the Harrison Gulch Ranger Station in 

Platina, California and the Hayfork District Office in Hayfork, California to perform his work 

duties. The employing establishment maintained that the duties of the position met the 

restrictions provided by Dr. Xeller, a Board-certified orthopedic surgeon and OWCP referral 

physician. In a December 5, 2014 report, Dr. Xeller examined appellant and found that he could 

only perform sedentary work with restrictions that included no stooping, squatting, climbing, 

repeated bending, or lifting more than 10 pounds. Appellant refused to accept the position and, 

 10 Id. at § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to 

Work, Chapter 2.814.2(c)(a) (June 2013). 

11 Id. at Chapter 2.814.9(b)(2) (June 2013). 

12 Id.; see also Chapter 2.814.9(b)(3) (June 2013). 
8

as a result, in decisions dated April 6 and September 23, 2015, OWCP terminated his wage-loss 

compensation, effective February 8, 2015, under 20 C.F.R. § 10.500(a). 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation 

effective February 8, 2015 under 20 C.F.R. § 10.500(a). Appellant did not accept a temporary 

light-duty assignment offered by the employing establishment, which was within his medical 

restrictions and his vocational ability. The assignment would have paid wages that exceeded 

those paid by his date-of-injury position. Therefore, the termination of appellant’s wage-loss 

compensation effective February 8, 2015 was justified under 20 C.F.R. § 10.500(a).13

The Board also finds that the medical evidence of record shows that appellant could in 

fact perform the temporary light-duty assignment offered by the employing establishment in 

January 2015. The physical requirements of the offered temporary light-duty assignment were 

within his medical restrictions as provided by Dr. Xeller in his December 5, 2014 report. The 

Board notes that the medical restrictions provided by Dr. Xeller in this report constitutes the best 

picture of appellant’s ability to work around the time that the employing establishment offered 

him the temporary light-duty assignment. His report, which is detailed and well rationalized, is 

entitled to the weight of the evidence and establishes that he has the ability to perform the 

offered light-duty employment.14

Appellant contended before OWCP and on appeal that Dr. Xeller had not considered the 

sitting and driving restrictions of Dr. Phillips, his attending family practitioner. Dr. Phillips 

examined appellant and diagnosed work-related lumbar strain, lumbar radiculopathy, herniated 

disc at L5-S1, and nerve root impingement at left S1. He found that appellant could perform 

modified work, four hours a day with restrictions that included, among other things, no 

continuous sitting for 20 minutes or 40 minutes total in one hour shift and no driving longer than 

20 minutes. Dr. Phillips recommended that he recognize the risk of additional movement of disc 

material, which would cause more symptoms, when he returned to work. He suggested that 

appellant work smart and limit his risk as much as possible. Although Dr. Phillips suggested that 

his work-related conditions necessitated the above-noted restrictions, he did not provide a clear 

opinion in this regard or provide a rationalized medical opinion explaining how a work-related 

condition justified such restrictions. He did not explain how specific findings on examination 

and/or diagnostic testing supported this level of disability. The Board has held that a medical 

opinion not fortified by medical rationale is of little probative value.15 Moreover, Dr. Phillips 

attributed appellant’s need for work restrictions as a way to prevent future injury. The Board has 

long held that prophylactic work restrictions do not establish a basis for wage-loss 

compensation.16 A fear of future injury is not compensable under FECA.17 In addition, the 

Board notes that unlike Dr. Phillips, Dr. Xeller is a specialist in the appropriate field of 

 13 See supra note 10. 

14 See generally H.Y., Docket No. 14-0019 (issued March 24, 2014). 

15 See George Randolph Taylor, 6 ECAB 986, 988 (1954). 

16 K.J., Docket No. 16-0846 (issued August 18, 2016); D.N., Docket No. 14-657 (issued June 26, 2014). 

17 K.J., id., Manuel Gill, 52 ECAB 282, 286 n.5 (2001). 
9

medicine.18 The Board finds, therefore, that Dr. Phillips’ opinions are insufficient to establish 

that appellant was physically unable to perform the duties of the offered position. Dr. Xeller’s 

opinion continues to carry the weight of the medical evidence. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

compensation effective February 8, 2015 based on his refusal of an offer of temporary suitable 

work pursuant to 20 C.F.R. § 10.500(a). 

ORDER 

IT IS HEREBY ORDERED THAT the September 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 19, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 Elizabeth Merriweather, Docket No. 93-1486 (issued September 15, 1994); Elmore T. Carter, Docket No. 

93-2475 (issued February 23, 1994).