United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.K., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, 

San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1635 

Issued: September 15, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 26, 2015 appellant, through counsel, timely appealed an April 13, 2015 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 the claim. 

ISSUE 

The issue is whether appellant is entitled to compensation for a loss in wage-earning 

capacity effective December 14, 2014. 

FACTUAL HISTORY 

Appellant, a 54-year-old former maintenance worker, injured his lower back in the 

performance of duty on November 10, 2012. At the time of injury, he was constructing a horse 

 1

 5 U.S.C. §§ 8101-8193. 
2

gate, which involved moving nine buckets of gravel from the back of a pick-up truck. Appellant 

also graded dirt and removed vegetation. While lifting the last bucket of gravel, he felt a dull, 

achy pain that turned to a sharper pain in his left waistband, buttock, and hamstring. 

On February 7, 2013 OWCP accepted the claim for lumbosacral sprain. Appellant 

received continuation of pay from November 14 through February 1, 2012.2

 Afterwards, OWCP 

paid him wage-loss compensation for temporary total disability through November 7, 2013. 

Appellant worked from November 8 until December 19, 2013, when the employing 

establishment sent him home because it was unable to accommodate his latest work restrictions. 

OWCP resumed payment of wage-loss compensation through January 11, 2014. Appellant 

returned to his full-time, regular duties effective January 14, 2014. 

Dr. Michael E. Hebrard, a Board-certified physiatrist, provided new work restrictions on 

March 17, 2014, which included limitations on lifting, bending, stooping, sitting, and walking.3

 

On March 31, 2014 he extended the previous work restrictions, and imposed a two-hour 

limitation with respect to driving. 

In a follow-up report dated May 12, 2014, Dr. Hebrard advised that appellant was 

restricted to performing sedentary work. He imposed a 10-pound limitation with respect to 

lifting, pushing, and pulling. Additionally, appellant was precluded from working at or above 

shoulder level. Lastly, Dr. Hebrard indicated that appellant should be allowed to sit and stand at 

will. 

On May 20, 2014 the employing establishment processed a claim for compensation 

(Form CA-7) for intermittent wage loss during the period May 4 to 17, 2014. Under section 14 

(remarks) of the employing establishment’s portion of the claim form it was note that as of 

June 2, 2014, “no work available to accommodate work restrictions/limitations.” 

On June 2, 2014 the employing establishment informed appellant that there was no 

limited-duty work available within his limitations. Dan Collman advised appellant via e-mail 

that upon reviewing his physician’s restrictions and the upcoming work schedule, he did not see 

any work that met appellant’s limitations. Consequently, he instructed appellant to turn in his 

sensitive property the following morning. Mr. Collman also requested that appellant notify him 

immediately should his condition change, and further advised that he would notify appellant 

when there was limited-duty work available within his restrictions. 

On June 26, 2014 appellant reached a settlement agreement with the employing 

establishment regarding an equal employment opportunity (EEO) complaint he had filed more 

than a year prior. The May 7, 2013 EEO complaint was for alleged discrimination based on age, 

race, national origin, physical disability, and reprisal. In accordance with the June 26, 2014 

settlement agreement, the employing establishment placed appellant on administrative leave as 

 2

 In February 2013, appellant was released to return to work in a limited-duty capacity; however, the employing 

establishment advised that it was unable to accommodate his work restrictions. 

3

 Dr. Hebrard began treating appellant on November 30, 2012. His initial diagnoses included lumbar radiculitis, 

sciatica, lumbosacral strain, and underlying bilateral hip strain. 
3

of June 1, 2014, and he was to remain in paid leave status for up to one year (June 1, 2015). 

During this one-year period, appellant was expected to apply for federal disability retirement 

through the Office of Personnel Management (OPM). The employing establishment also agreed 

to support his application for disability retirement, as well as attempt to secure work within his 

medical restrictions. Appellant could also seek early retirement or find a transferrable position 

within the Federal Government on his own. If a year passed without securing a new position or 

obtaining OPM’s approval for disability retirement, the settlement agreement allowed the 

employing establishment to then terminate his services because of a medical inability to perform 

the essential functions of his job. The employing establishment also agreed to pay appellant 

$7,500.00 within 60 days of execution of the settlement agreement. According to paragraph five 

(Complainant’s Knowing and Voluntary Release of All Claims), “nothing in [the] agreement 

[was] to be construed as a waiver of [appellant’s] right to file an OWCP claim....” 

In a July 14, 2014 follow-up report, Dr. Hebrard advised that appellant was “medically 

disabled from his previous course of employment.” 

An August 26, 2014 lumbar x-ray revealed grade 1 anterolisthesis (L4 over L5), with 

bilateral facet joint arthrosis. In a similarly dated report, Dr. Hebrard requested that appellant’s 

claim be expanded to include lumbosacral radiculitis and lumbar disc degeneration.4

 He also 

noted that appellant was restricted to sedentary work where he could sit and stand as needed. 

In his September 16, 2014 follow-up treatment notes, Dr. Hebrard again requested that 

appellant’s claim be expanded to include lumbosacral radiculitis, spondylodesis, and lumbar disc 

degeneration. Additionally, he noted that appellant was restricted to sedentary work. 

Effective December 14, 2014, appellant returned to work as a medical support assistant 

with the Department of Veterans Affairs (DVA) in Palo Alto, CA.5 Personnel records (Standard 

Form 50/B) indicated that his employment with the National Park Service (NPS) ended on 

December 13, 2014. Appellant had been earning $28.47 a hour as a NPS maintenance worker 

(GS-8, Step 3). His new position with DVA paid an annual salary of $39,941.00 (GS-5, Step 3). 

On January 12, 2015 appellant filed a claim (Form CA-7) for lost wages beginning 

December 14, 2014, which he identified as a “Downgrade.” He later explained that he was 

seeking compensation due to a loss in wage-earning capacity as a result of his December 14, 

2014 transfer to DVA. 

OWCP subsequently inquired about the circumstances surrounding appellant’s 

December 2014 transfer from NPS to DVA. In a January 25, 2015 response, appellant indicated 

that NPS was unable to accommodate his work restrictions as of June 1, 2014. At that time, he 

was sent home and placed on administrative leave. NPS reportedly placed appellant on paid 

leave rather than process his recurrence claim (Form CA-2a) and/or claim for compensation 

(Form CA-7). Appellant further indicated that he did not resign from NPS, nor was he forced to 

transfer to DVA; however, he noted that NPS would have dropped him from its rolls as of 

 4

 Dr. Hebrard previously made similar requests to expand appellant’s accepted condition(s). 

5

 Appellant previously worked for DVA in 2010 as a housekeeping aide. 
4

June 2015. He stated that he applied for the DVA position through USAJOBS, and had also 

applied for numerous other positions within the Department of Interior (DOI) that met his current 

work limitations. Lastly, appellant explained that once he obtained employment, DVA’s human 

resources department advised NPS/DOI of the employment offer, and submitted a request for 

transfer. 

On February 26, 2015 OWCP requested additional information from both appellant and 

NPS. It provided NPS a copy of his January 25, 2015 statement and asked for comment. OWCP 

also requested confirmation of appellant’s leave status at the time of separation, and the actual 

date he was last employed by NPS/DOI. Additionally, it asked NPS/DOI to state the reason for 

appellant’s separation. Lastly, OWCP asked appellant’s former employer if it was able to 

accommodate appellant’s work-related injury. Both parties were allotted 30 days to submit the 

requested factual information. 

NPS did not respond to OWCP’s February 26, 2015 inquiry. 

Appellant responded on February 29, 2015. He re-submitted Mr. Collman’s June 2, 2014 

e-mail advising that there was no limited-duty work available at NPS. Appellant also provided 

OWCP a copy of the June 26, 2014 EEO settlement agreement. He stated that between June 2 

and 26, 2014, NPS refused to process his Form CA-7s, and instead placed him on paid 

administrative leave. Appellant further explained that in accordance with the June 26, 2014 EEO 

settlement agreement, he remained on paid administrative leave until his (December 13, 2014) 

separation from NPS and had he not found other employment or retired, NPS would have 

separated him from service after one year of paid administrative leave. 

OWCP also received follow-up treatment notes from Dr. Hebrard dated January 22 and 

February 10, 2015. Dr. Hebrard reported that appellant was currently working at a new facility 

performing administrative work while seated at a desk. He also reported that appellant’s long 

commute -- 11⁄2 to 21⁄2 hours in each direction -- severely aggravated his lower back. Dr. Hebrard 

continued to restrict appellant to performing sedentary work, and asked that he be allowed to 

work an early schedule (7:30 a.m. to 4:30 p.m.) so as to avoid driving in heavy traffic conditions. 

Dr. Mohinder S. Nijjar, a Board-certified orthopedic surgeon and OWCP referral 

physician, examined appellant on February 10, 2015. He diagnosed lumbar sprain/strain and 

grade 1 anterolisthesis (L4 over L5), with bilateral facet joint arthrosis. Dr. Nijjar explained that 

so-called developmental/degenerative anterolisthesis is usually found at the L5-S1 level, whereas 

the traumatic type is found at the L4-5 level, as was the case with appellant’s anterolisthesis. 

Accordingly, he attributed appellant’s current lumbar condition to the November 10, 2012 

employment injury. Dr. Nijjar indicated that appellant continued to suffer residuals of the work 

injury, which included radicular pain with hypoesthesia in the lower extremity. Although aware 

that appellant currently worked as a medical support assistant, he did not otherwise comment on 

whether the injury-related residuals limited the type of work appellant could perform. 

In a March 24, 2015 follow-up report, Dr. Hebrard noted that appellant’s current physical 

examination revealed left lower extremity weakness, as well as paresthesia radiating at the L4-5 

nerve distribution. He also reported that appellant ambulated with an antalgic gait on the left 

side. Dr. Hebrard continued to restrict appellant to sedentary work. 
5

In April 2015, OWCP expanded appellant’s claim to include grade 1 anterolisthesis (L4 

over L5) with bilateral facet joint arthrosis. 

In an April 13, 2015 decision, OWCP denied appellant’s claim for wage-loss 

compensation beginning December 14, 2014. It found that he was not actually sent home 

without pay or terminated, but instead chose to resign to take another position. OWCP further 

explained that had appellant waited until his administrative leave was exhausted, he would not 

have experienced wage loss as of December 14, 2014. 

LEGAL PRECEDENT 

Each disabled employee is obligated to perform such work as he can.6 If an employee 

cannot return to the job held at the time of injury due to partial disability from the effects of the 

work-related injury, but has recovered enough to perform some type of work, he or she must 

seek work.7 In the alternative, the employee must accept suitable work offered to him.8 This 

work may be with the original employing establishment or through job placement efforts made 

by or on behalf of OWCP.9

 From time to time, OWCP may require the employee to report his 

efforts to obtain suitable employment, whether with the Federal Government, State and local 

Governments, or in the private sector.10 Compensation for partial disability is determined in 

accordance with 5 U.S.C. § 8115 and 20 C.F.R. § 10.403. If the employee has actual earnings 

which fairly and reasonably represent his wage-earning capacity, those earnings will form the 

basis for payment of compensation for partial disability.11

ANALYSIS 

OWCP denied appellant’s claim for compensation because he returned to work too soon. 

As noted, appellant filed a claim for lost wages beginning December 14, 2014 because the 

position he accepted with DVA paid less than his date-of-injury position as a maintenance 

worker with NPS. He apparently had not worked since June 3, 2014, but reportedly continued to 

receive his regular pay based on a June 26, 2014 EEO settlement agreement and according to the 

agreement, under certain circumstances he could have continued to receive paid administrative 

leave through June 1, 2015. However, appellant found suitable employment with another federal 

agency, and returned to work on December 14, 2014. Based on the limited information 

provided, it appears that his new job with DVA paid approximately $9.00 less an hour than what 

he earned as a maintenance worker with NPS. 

 6

 20 C.F.R. § 10.500(b). 

7 Id. at § 10.515(b). 

8 Id.

9 Id.

10 Id. at § 10.515(e). 

11 Id. at § 10.403(a). 
6

In its April 13, 2015 decision, OWCP explained that “[u]nfortunately, your proactive 

behavior of finding a suitable position -- albeit at a lower pay -- in this case prevents you from 

being entitled to benefits because but for this action you would have still been paid 

administrative leave and no wage loss would have occurred [as of December 14, 2014].” As 

noted, it essentially denied wage-loss compensation because appellant returned to work too soon. 

Although the EEO settlement agreement is relevant to the current issue, this agreement 

does not dictate or otherwise alter the parties’ rights and responsibilities under FECA. 

Moreover, the EEO agreement clearly indicated that “nothing in [it] ... [was] to be construed as a 

waiver of [appellant’s] right to file an OWCP claim....” 

On June 2, 2014 Mr. Collman advised appellant that NPS was unable to accommodate his 

injury-related work restrictions. It appears that but for the June 26, 2014 EEO settlement 

agreement, appellant would have likely experienced compensable wage loss as of June 3, 2014. 

The agreement required the employing establishment to carry appellant on administrative leave 

for up to one year beginning June 1, 2014. Under the circumstances, appellant could not claim 

FECA wage-loss compensation while receiving pay for leave.12 Effective December 14, 2014, 

he began working for DVA. As such, the employing establishment was no longer required to 

carry him on paid administrative leave. At that point, appellant ostensibly experienced a loss in 

wage-earning capacity because he was earning less as a medical support assistant with DVA than 

he previously earned in his date-of-injury position. In denying his claim for a loss in wageearning capacity, OWCP essentially penalized him for resuming gainful employment sooner 

rather than later. 

The notion that appellant should have remained on paid leave status through June 1, 2015 

is contrary to FECA’s requirement that a partially disabled employee must seek employment and 

accept suitable work offered to him. As such, OWCP’s April 13, 2015 decision shall be set 

aside. 

The Board notes that NPS did not respond to OWCP’s February 26, 2015 development 

letter.13 Thus, it is unclear if NPS made any effort to accommodate appellant’s injury-related 

work restrictions between June 3 and December 13, 2014. Moreover, it is unclear whether NPS 

facilitated appellant’s transfer to DVA. Also, apart from a few SF-50s, there is scant information 

about appellant’s pay status during the above-noted period. Additionally, the record is devoid of 

any information about the specific duties and physical requirements of appellant’s latest job such 

that a determination as to suitability can be made. As such, the case shall be remanded for 

further development and proper adjudication of the issue of whether appellant demonstrated a 

loss in wage-earning capacity on or after December 14, 2014. 

 12 Id. at § 10.401(a). 

13 The employing establishment is responsible for submitting to OWCP all relevant and probative factual and 

medical evidence in its possession, or which it may acquire through investigation or other means. 20 

C.F.R. § 10.118. As evidence appearing in the employer’s files is not generally available to claimants, the 

employing establishment must assemble and submit such evidence. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Initial Development of Claims, Chapter 2.800.4(b) (June 2011). 
7

After OWCP has developed the record consistent with the above-noted directive, it shall 

issue a de novo decision regarding appellant’s claim for wage-loss compensation beginning 

December 14, 2014. 

CONCLUSION 

The case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the April 13, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: September 15, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board