United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Shasta Lake, CA, Employer

__________________________________________

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Docket No. 17-0557

Issued: December 21, 2017

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 15, 2017 appellant, through her representative, filed a timely appeal from a 

September 27, 2016 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 properly reduced appellant’s wage-loss compensation to 

zero effective April 1, 2015 under 20 C.F.R. § 10.500(a) based on her earnings had she accepted 

a light-duty assignment. 

FACTUAL HISTORY

On September 4, 2014 appellant, then a 62-year-old distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained a back condition causally 

related to factors of her federal employment. She stopped work on August 8, 2014. OWCP 

accepted the claim for lumbar sprain, sacroiliac sprain, and neck sprain. It paid appellant

compensation on the supplemental rolls for total disability beginning August 20, 2014.

In a report dated August 20, 2014, Dr. Michael E. Hebrard, a Board-certified physiatrist, 

diagnosed lumbar discogenic dysfunction and sacroiliac sprain. He found that appellant could 

perform sedentary employment lifting no more than 10 pounds, alternating standing and sitting 

every half hour, and performing no repetitive bending.

By decision dated October 22, 2014, OWCP denied authorization for continued medical 

treatment with Dr. Hebrard as his office location was more than a reasonable distance from 

appellant’s residence.3

OWCP, on October 31, 2014, referred appellant to Dr. Charles F. Xeller, a Boardcertified orthopedic surgeon, for a second opinion examination.

Dr. Richard P. Musselman, an osteopath, evaluated appellant on November 3, 2014 for 

pain in the right knee, back, neck, left elbow, and left hand. He discussed her work duties and 

the results of objective testing. Dr. Musselman suggested diagnostic testing to evaluate a lipoma 

of the pelvis. He diagnosed cervical and lumbar radiculitis, brachial neuritis, degenerative joint 

disease of the right knee, vertebral retrolisthesis, anterolisthesis, facet hypertrophy, ligamentum 

flavum hypertrophy, lumbar canal stenosis, a bulging lumbar disc, and dextroscoliosis.

Dr. Musselman also recommended electrodiagnostic testing.

In a report dated November 29, 2014, Dr. Xeller reviewed the history of injury. On 

examination, he found tingling in the digits of both hands and pain with back flexion and 

bending to the side, but normal motor and sensory function. Dr. Xeller agreed with

Dr. Musselman’s recommendation for electrodiagnostic testing. He also noted that appellant 

required a pelvic magnetic resonance imaging (MRI) scan to “workup [a] large lipomatous 

mass” which he advised was not employment related. Dr. Xeller diagnosed chronic low back 

sprain/strain superimposed on underlying spondylosis and disc degeneration and bulging. He

found that appellant’s “underlying comorbid arthritis would certainly be aggravated by her years 

 

3 Appellant, on October 20, 2014, requested a review of the written record regarding OWCP’s October 22, 2014 

denial of authorization for medical treatment with Dr. Hebrard. In a May 20, 2015 decision, an OWCP hearing 

representative affirmed the October 22, 2014 decision. She found that OWCP properly denied authorization for 

appellant to obtain treatment with Dr. Hebrard as his office was over 100 miles away.
3

at work.” Dr. Xeller advised that if her electromyogram and nerve conduction study were 

positive she may need nerve root injections. He opined that appellant could work eight hours per 

day in sedentary employment pushing, pulling, and lifting less than 10 pounds, reaching over the 

shoulder with less than 10 pounds, and with the option to sit or stand. Dr. Xeller indicated that 

appellant could not perform repetitive bending. 

The employing establishment, on March 3, 2015, offered appellant a modified position as 

a sales, services, and distribution associate working from 7:00 a.m. to 9:30 a.m. boxing letters 

and flats. The duties included fine manipulation and reaching up to three hours, standing and 

walking up to three hours, and bending up to one hour. The job included that appellant would 

have the option to sit and stand and that pushing, pulling, and lifting would be under 10 pounds. 

Appellant refused the offered position on March 18, 2015, asserting that it was not within her 

work restrictions. 

An October 13, 2014 lumbar spine MRI scan, received by OWCP on May 6, 2015, 

showed severe canal stenosis at L4-5 with moderate-to-severe bilateral foraminal narrowing and 

bilateral and ligamentum flavum hypertrophy.

In a March 16, 2015 work status report, Dr. Musselman diagnosed cervical and lumbar 

radiculitis, and degenerative joint disease of the right knee. He found that appellant could return 

to employment performing no overhead work, repeated bending or stooping, or continual 

standing, walking, or sitting. Dr. Musselman related, “[Appellant] cannot stoop or repetitively 

bend for one hour. She can sit on a stool where she can get up and stand as necessary and move 

around. [Appellant] has to work at waist level and not above the shoulder at this time. She must 

have intermittent activities. [Appellant] cannot do any one activity for three hours at a time.” In 

a March 16, 2015 narrative report, Dr. Musselman noted that the employing establishment had 

offered appellant a position which she maintained was not within her physical capacity. He

provided multiple diagnoses, including lumbar stenosis, a bulging lumbar disc, facet 

hypertrophy, lumbar and cervical radiculitis, and retrolisthesis of the vertebrae. 

In a March 26, 2015 duty status report (Form CA-17), Dr. Musselman found that 

appellant could perform intermittent bending and stooping less than two hours per day, sit, stand, 

and walk intermittently up to four hours per day, and lift up to 10 pounds. On March 30, 2015

he diagnosed anxiety and lumbar stenosis.

Electrodiagnostic studies obtained on March 16, 2015 revealed mild right carpal tunnel 

syndrome and moderate left carpal tunnel syndrome and mild radiculopathy on the right at S1.

An agent with the employing establishment’s Office of the Inspector General (OIG) 

provided an April 23, 2015 report of investigation describing surveillance conducted on 

appellant from January 23 to April 23, 2015. Appellant performed activities during this time that 

included walking her dog and driving. The OIG agent showed the surveillance video to

Dr. Musselman on March 26, 2015 and he related that she had psychological problems delaying 

improvement. He advised that he believed that the job offered by the employing establishment 

was “good, but that [appellant] had come in very agitated and stated [that] she could not do that 

work, so he tightened the restrictions and hoped [the employing establishment] would be able to 
4

revise a job offer fitting within the new restrictions.” Dr. Musselman indicated that appellant

could work with restrictions and advised that she should have a psychological evaluation.

On April 25, 2015 appellant filed a claim for compensation (Form CA-7) for wage loss 

beginning April 1, 2015. 

OWCP, in a May 11, 2015 letter, advised appellant that she had not submitted evidence 

to support that she was totally disabled beginning April 1, 2015. It noted that the light-duty 

position offered by the employing establishment on May 3, 2015 was within the limitations 

provided by Dr. Hebrard. OWCP advised that the position remained available as of 

May 4, 2015. It requested that appellant submit additional evidence explaining why she was 

unable to perform the offered modified position.

On May 26, 2015 Dr. Hebrard reviewed the job offer and noted that it included one hour 

of bending.4 He opined that appellant was unable to bend at the waist.

In a report dated June 1, 2015, Dr. Musselman described appellant’s work at the 

employing establishment. He advised that her disc bulges and annular bulging resulted from 

repetitive bending and lifting. Dr. Musselman opined that lifting and bending repetitively 

moving heavy packages injured appellant’s lumbar and cervical discs, causing bulging discs at 

L4 to S1, and a disc space narrowing at C5-6. Repetitive work duties also aggravated a lumbar 

facet joint condition. Dr. Musselman diagnosed cervical and lumbar radiculitis, anterolisthesis, 

facet hypertrophy, lumbar canal stenosis, bulging lumbar discs, cervical neuritis, dextroscoliosis, 

de Quervain’s tenosynovitis, carpal tunnel syndrome, anxiety, and cervical degenerative disc 

disease. Regarding the March 3, 2015 job offer, he noted that Dr. Xeller found that appellant 

could not repetitively bend, but the offered position specified bending of up to an hour without 

indicating whether it would be repetitive. Dr. Musselman also advised that she could not reach 

as a result of her cervical condition. He opined that appellant was totally disabled and 

recommended a psychological evaluation.

Dr. Hebrard, in a June 8, 2015 report, discussed his August 20, 2014 work restrictions. 

He asserted that appellant’s work duties “increased the stress along the cervical and lumbar spine 

which led to bulging of the discs which pressed against the adjacent nerve endings.” Dr. Hebrard 

diagnosed cervical and lumbar radiculopathy and spondylosis. He found that appellant could no 

longer perform her usual work duties and advised that she could not “tolerate prolonged sitting, 

bending at the waist, lifting, pushing, pulling, reaching below, at and above the level of the head, 

and twisting and bending of the head and neck.” Dr. Hebrard opined that she was permanently 

disabled.

 

4 Dr. James D. Tate, a Board-certified neurosurgeon, evaluated appellant on April 29, 2015 at the request of

Dr. Musselman. He noted that she had not worked since an August 2014 injury. Dr. Tate found no “significant 

symptoms of lumbar stenosis with radiculopathy” and recommended one or two steroid injections. On May 1, 2015 

he diagnosed a lesion at C4 possibly due to degenerative changes and most likely unrelated to her work injury and 

lumbar spondylolisthesis that was likely congenital. Dr. Tate recommended disability retirement.
5

Counsel, on June 9, 2015, related that the March 3, 2015 offered position was not suitable 

as it required bending of up to one hour and did not qualify whether the bending was repetitive.5

In a report dated July 28, 2015, Dr. David McGee-Williams, a clinical neuropsychologist, 

discussed appellant’s work duties, her August 2014 work injury, and her current complaints.

6

 He 

diagnosed chronic pain syndrome and depressive disorder and recommended cognitive 

behavioral therapy.

Dr. Musselman, in a September 4, 2015 progress report, diagnosed lumbar radiculitis. He 

advised that appellant sustained a mental condition as a “direct result of her physical problems 

and the stress of this case.”

By decision dated October 15, 2015, OWCP denied appellant’s claim for compensation 

beginning April 1, 2015 under 20 C.F.R. § 10.500(a) as the employing establishment had offered 

her a light-duty assignment in writing within her medical restrictions. It found that she had not 

submitted medical evidence showing that the position no longer reflected her work restrictions or 

was no longer available. OWCP noted that the job limited appellant to bending for one hour 

through the course of her workday from 7:00 a.m. to 9:30 a.m.

Appellant, on October 30, 2015, requested a telephone hearing before an OWCP hearing 

representative. 

In a November 13, 2015 work status report, Dr. Musselman found that appellant was 

unable to work pending evaluation in four weeks.7 He opined that she could not participate in 

questioning or interviews due to psychological stress and cognitive difficulties. In a 

November 13, 2015 progress report, Dr. Musselman treated appellant for cervical radiculopathy. 

He discussed her history of injury and found that her lumbar disc bulging, cervical disc space 

narrowing, and carpal tunnel syndrome resulted from repetitive work duties.

Dr. Musselman, in work status reports dated February through April 2016, found that 

appellant could return to work on restrictions that included no overhead work, continual sitting, 

standing, or walking, or repetitive bending or stooping.

At a telephone hearing, held on July 14, 2016, appellant related that Dr. Xeller, OWCP’s

referral physician, found that she had a permanent aggravation of arthritis as a result of her work 

 

5 Appellant, in an August 7, 2015 statement, related that she was disabled as the employing establishment did not 

accommodate Dr. Hebrard’s August 20, 2014 work restrictions. She noted that Dr. Xeller and Dr. Musselman also 

found that she could not perform repetitive bending.

6 Dr. Annie Purcell, an osteopath, evaluated appellant on July 17, 2015 for back pain that began “in August 2014 

with gradual onset and no history of trauma.” She diagnosed cervical stenosis, lumbar radiculopathy with possible 

sciatic neuropathy, a right gluteal lipoma or liposarcoma with sciatic nerve compression, lumbar spondylosis, and 

carpal tunnel syndrome and found that appellant could no longer perform her mail carrier duties as a result of her 

injury. 

7

In an October 16, 2015 progress report, Dr. Musselman advised that appellant was psychologically incapable of 

working. Dr. Tate, in an amended report dated November 4, 2015, evaluated her for low neck pain and low back 

pain radiating into the right and sometimes left leg. He advised against surgery.
6

injury, but OWCP had not expanded acceptance of her claim to include that condition. She 

advised that she did not accept the position offered by the employing establishment because it 

did not specify the bending requirement and thus was not in accordance with Dr. Xeller’s 

restrictions. Appellant’s representative asserted that an offered position must consider both work 

and nonwork-related conditions. He also indicated that OWCP procedures provided that the job 

offered must be for at least half the hours the employee was able to work. The representative 

maintained that the job offer did not identify whether the bending was repetitive in nature and 

thus violated appellant’s work restrictions.

By decision dated September 27, 2016, OWCP’s hearing representative affirmed the 

October 15, 2015 decision. She found that the March 2015 offered position was within

Dr. Xeller’s restrictions, that Dr. Musselman had not provided rationale for his increased 

restrictions, and that Dr. Hebrard’s opinion was speculative in nature. The hearing representative 

advised that, as appellant was not on the periodic roll, the job offer did not need to be at least half 

of the hours she was capable of working.

On appeal appellant’s representative contends that Dr. Xeller agreed that appellant 

required electrodiagnostic testing. He asserts that the position offered by the employing 

establishment did not specify whether the bending was repetitive, noting that on June 1, 2015

Dr. Musselman found that she could not perform the offered position. The representative 

maintains that bending for one hour of the two and a half hour a day job would be repetitive, 

citing J.N.8 He also contends that OWCP should have expanded acceptance to include an 

aggravation of arthritis and that the offered position was not valid as it was for less than half of 

the total hours she was released for work. The representative additionally asserts that

Dr. Musselman explained in his June 1, 2015 report why appellant could not perform the offered 

position and that Dr. Hebrard found that she could not bend at the waist. He contends that the 

position offered was temporary and thus not suitable and that it did not take into account all her 

conditions, including her psychological difficulties.

LEGAL PRECEDENT

Section 10.500(a) states that appellant is only entitled to wage-loss compensation for the 

periods during which an employee’s work-related medical condition prevents her from earning 

the wage earned before the work-related injury. It further provides: 

“[A]n employee is not entitled to compensation for any wage loss claimed on 

[Form] CA-7 to the extent that evidence contemporaneous with the period 

claimed on [a] 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.”

9

 

8 Docket No. 09-1621 (issued July 14, 2010). In J.N., the Board reversed a termination of appellant’s 

compensation for refusing suitable work under 5 U.S.C. § 8106(c). It found that the medical evidence indicated no 

bending, but the offered position contained a discrepancy regarding whether bending was required.

9

20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to 

Work, Chapter 2.814.9(a) (June 2013).
7

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

on the periodic roll, OWCP procedures provide that the claims examiner should determine 

whether light-duty work was available within the claimant’s medical restrictions during the 

period for which compensation is claimed and a development letter should be sent to the 

claimant setting forth the standards under section 10.500(a) including medical evidence required 

to establish a claim for wage-loss compensation.10 The claims examiner, when adjudicating the 

claim for wage-loss compensation, must also determine whether the evidence of record 

establishes that appellant was provided with written notification of a light-duty job assignment, 

that the job was within her restrictions, and that the job was available during the period wageloss compensation was claimed.11

Proceedings under FECA are not adversarial in nature is OWCP a disinterested arbiter.12 

While the claimant has the responsibility to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. It has the obligation to see that justice is 

done.13 Accordingly, once OWCP undertakes to develop the medical evidence further, it has the 

responsibility to do so in the proper manner.14

ANALYSIS

OWCP accepted that appellant sustained lumbar sprain, sacroiliac sprain, and neck sprain 

causally related to factors of her federal employment. It paid her compensation for total 

disability on the supplemental rolls as of August 20, 2014.

Dr. Hebrard, in an August 20, 2014 report, diagnosed sacroiliac sprain and lumbar 

discogenic dysfunction. He determined that appellant could work lifting no more than 10 

pounds, alternating sitting and standing, and performing no repetitive bending.

On October 31, 2014 Dr. Xeller, an OWCP referral physician, diagnosed low back 

sprain/strain superimposed on preexisting spondylosis and disc bulging and degeneration. He 

indicated that appellant’s work duties would have aggravated her arthritis, but that she also had a 

“nonwork-related component to this condition.” Dr. Xeller concurred with Dr. Musselman’s 

recommendation for electrodiagnostic testing. He found that appellant could work full time in 

sedentary employment reaching over her shoulder with less than 10 pounds, pushing, pulling, 

and lifting less than 10 pounds, having an option to sit or stand, and performing no repetitive

bending. Dr. Xeller did not directly address the conditions to which he attributed her limitations. 

On March 3, 2015 the employing establishment offered appellant a modified position as a 

sales, services, and distribution associate working for two and a half hours per day boxing letters 

 

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

11 Id.

12 See B.S., Docket No. 17-0070 (issued September 14, 2017); Vanessa Young, 55 ECAB 575 (2004).

13 Richard E. Simpson, 55 ECAB 490 (2004).

14 See M.E., Docket No. 16-0770 (issued July 26, 2016); Melvin James, 55 ECAB 406 (2004).
8

and flats. The requirements consisted of reaching up to three hours, standing and walking up to 

three hours, and bending for one hour. The job provided the option to sit or stand and required 

lifting under 10 pounds above the shoulder and pushing, pulling, and lifting up to 10 pounds.

Appellant refused the position, asserting that it was outside of her work restrictions. The 

Board finds that the evidence fails to establish that the offered position was within the limitations 

set forth by Dr. Xeller, OWCP’s referral physician. OWCP found that appellant was not entitled 

to disability compensation beginning April 1, 2015 as the weight of the evidence, represented by 

the opinion of Dr. Xeller, established that she could perform the light duty offered by the 

employing establishment. Dr. Xeller, however, found that she could not perform repetitive 

bending and the offered position required bending for up to one hour per day during a two and a 

half hour work period. Dr. Musselman and Dr. Hebrard also opined that appellant was unable to 

perform repetitive bending. The March 3, 2015 job offer did not clarify whether the bending for 

one hour was repetitive and thus, it is not clear that it was within claimant’s work restrictions.15

As discussed, proceedings under FECA are not adversarial in nature and OWCP is not a 

disinterested arbiter. Once OWCP undertakes development of the record, it must do a complete

job in procuring medical evidence that will resolve the relevant issues in the case.16 Dr. Xeller 

found that employment factors, including moving boxes and repeated lifting, aggravated her 

underlying arthritis and further diagnosed low back strain/sprain and underlying spondylosis 

with disc degeneration and bulging. OWCP accepted only lumbar, neck, and sacroiliac sprains. 

It did not seek clarification from Dr. Xeller regarding whether appellant’s claim should be 

expanded to include additional work-related conditions. OWCP further did not provide him with 

the results of the October 13, 2014 lumbar MRI scan study or the March 16, 2015 

electrodiagnostic testing even though he found that appellant might need nerve root injections if 

she had positive electrodiagnostic testing.

17

 Additionally, as noted, it is unclear whether 

appellant can perform the duties of the position based on the bending restrictions found by

Dr. Xeller. As OWCP failed to obtain medical evidence sufficient to resolve the relevant 

medical issues in this case, the Board finds that OWCP failed to meet its burden of proof.

 

15 See generally E.B., Docket No. 13-0319 (issued May 14, 2013) (finding that OWCP improperly terminated 

appellant’s compensation under section 8106(c) as the medical evidence restricted her to two hours a day of bending 

and the job offer did not identify the extent of bending required by the position).

16 See R.H., Docket No. 15-1696 (issued April 7, 2016); Richard F. Williams, 55 ECAB 343 (2004).

17 Counsel contends that OWCP erred in finding the offered position suitable as it was for less than half of the 

total hours appellant was able to work, was temporary in nature, and did not consider all of her conditions, including 

a psychological condition. Regarding temporary positions, OWCP procedures provide that if a claimant is on the 

periodic roll, the position must take into account her employment-related condition as well as preexisting and 

subsequently arisen conditions, and must be for a least half of the total hours that the claimant was released for 

work. If the claimant is not on the periodic roll, the evidence must show that work was provided within appellant’s 

injury-related restrictions. Supra note 10 at Chapter 2.814.9(b)(1) and (c)(2) (June 2013). Appellant was not paid 

on the periodic roll, and thus there was no requirement for OWCP to consider nonemployment-related conditions or 

the amount of hours offered by the employing establishment. 
9

CONCLUSION

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation to 

zero, effective April 1, 2015, under 20 C.F.R. § 10.500(a) based on her earnings had she 

accepted a light-duty assignment. 

ORDER

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed.

18

Issued: December 21, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

18 Colleen Duff Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.