United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jamaica Plains, MA, Employer

__________________________________________

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Docket No. 17-1268

Issued: March 23, 2018

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 22, 2017 appellant, through counsel, filed a timely appeal from an April 21, 

2017 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 May 3, 2015, based on his refusal of an offer of temporary suitable 

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

On appeal counsel contends that the employing establishment’s job offer was not valid 

because it was temporary, that it did not comply with OWCP procedures, and that it was not 

within appellant’s medical restrictions. She further contends that OWCP erred by not providing 

a preliminary notice following a second, revised job offer by the employing establishment. 

FACTUAL HISTORY

On October 17, 2012 appellant, then a 38-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that being on his feet all day at work caused left foot plantar 

fasciitis. In an attached statement, he wrote that his left foot pain began in November 2011 

which increased despite treatment by a podiatrist who diagnosed plantar fasciitis. Appellant

indicated that delivering mail exacerbated his left foot condition. 

In an undated letter, Dr. Lindsay Johnson, a podiatrist, noted treating appellant since 

April 2012 for left foot and heel pain. She described his treatment and diagnosed plantar 

fasciitis. Dr. Johnson recommended decreased physical activity including limited-work duty. 

On January 2, 2013 OWCP accepted left foot plantar fasciitis. 

A January 13, 2013 magnetic resonance imaging (MRI) scan of the left foot demonstrated 

mild plantar fasciitis. 

Appellant filed Form CA-7 claims for compensation for the period November 24 to 30, 

2012, and January 12 to 25, 2013 and continuing. OWCP paid appropriate compensation, and 

placed appellant on the periodic compensation rolls in April 2013. 

On August 29, 2013 Dr. Bobby Kuruvilla, a podiatrist, performed authorized

microtenotomy of the left plantar fascia. He saw appellant monthly for follow-up appointments. 

On a work capacity evaluation (Form OWCP-5c) dated September 27, 2013, Dr. Kuruvilla

advised that appellant could not walk or stand, and that he could not work, but could return to an 

eight-hour workday on December 1, 2013. 

In December 2013 OWCP referred appellant to Dr. Gary Count, a podiatrist, for a second

opinion evaluation. Dr. Count was specifically asked to comment on appellant’s work 

capabilities. 

By report dated February 18, 2014 with a February 19, 2014 addendum, Dr. Count

described appellant’s employment duties and recounted the treatment he had received for the 

diagnosed left plantar fasciitis. The left foot examination demonstrated pain to palpation of the 

heel and central and medial plantar aspects and mild sensitivity with calcaneal compression. 

Dr. Count diagnosed equinus deformity of the left foot, foot pain, pes planus, pronation 

syndrome, and plantar fasciitis of the left foot. He noted that appellant continued to have left 
3

foot pain despite not working since November 2012. Dr. Count advised that maximum medical 

improvement had been reached, and that appellant’s prognosis was guarded. In an attached work 

capacity evaluation, he advised that appellant could work eight hours of modified duty daily with 

restrictions. Dr. Count limited walking, standing, and climbing to one hour daily, with a 25-

pound weight restriction. 

In an April 2, 2014 report, Dr. Kuruvilla noted appellant’s complaint of continued left 

foot pain, even when sitting. He commented that he agreed with Dr. Count’s assessment, 

advising that appellant was a candidate for reemployment. Dr. Kuruvilla indicated that 

appellant’s symptoms did not entirely fit a picture of plantar fasciitis, and referred appellant to 

pain management. In reports dated June 4 and July 16, 2014, he reiterated his findings and 

conclusions. Dr. Kuruvilla noted that appellant did not want alternative care. He did not 

enumerate physical restrictions in either report. 

On July 1, 2014 OWCP referred appellant to Christopher Wood, Ph.D., for vocational 

rehabilitation services. 

The employing establishment offered appellant a modified position as a member of the 

sales retention team on July 8, 2014, which was available on July 16, 2014 at the Boston 

Processing and Distribution Center (P&DC). The job duties consisted of contacting customers 

by telephone for six to eight hours intermittently, with light typing/data entry, answering 

telephone, and back office administrative assistance/computer-type duties for four to eight hours 

intermittently. Physical requirements were sitting in an office chair with a supportive back and 

occasional standing for eight hours intermittently, simple grasping/pushing/pulling one pound 

(computer mouse, telephone) for four to eight hours intermittently, and fine manipulation 

(computer keyboard) and lifting telephone (up to two pounds) to speak for six to eight hours 

intermittently. Attached correspondence from the employing establishment to appellant 

indicated that the position was temporary, effective July 16, 2014, and that training would be 

provided. The employing establishment informed appellant that, if he believed he was unable to 

perform the job duties, he must provide supportive written medical evidence no later than 

July 8, 2014. 

Appellant did not respond to the job offer. On August 6, 2014 the employing 

establishment confirmed that the position was still available.

In reports dated July 13 and August 4, 2014, Dr. Wood, the rehabilitation counselor,

noted appellant’s belief that he could not do even sedentary work. He also reported that 

appellant was caring for his six-year-old daughter while his wife worked.

In a notice dated August 8, 2014, OWCP proposed to terminate appellant’s wage-loss 

compensation. It advised him that it had reviewed the work restrictions provided by Dr. Count 

and determined that the position offered appellant was within his restrictions. OWCP informed 

appellant of the provisions of 20 C.F.R. § 10.500(a) and advised him that his entitlement to 

wage-loss compensation would be terminated under this provision if he did not accept the 

offered temporary assignment or provide a written explanation with justification for his refusal 

within 30 days. It noted that upon acceptance, as appellant’s pay would be equal to or greater 
4

than the current pay of the job held on the date of injury, he would have no loss of wage-earning 

capacity. 

On September 4, 2014 counsel responded that medical evidence of record indicated that 

appellant could not perform the physical requirements of the offered position.3 She further 

indicated that, as appellant was limited to one hour standing and walking, the job offer indicated

occasional standing for eight hours intermittently, and because his doctor indicated he must keep 

the left foot elevated, the offered position was outside his restrictions. Counsel also maintained 

that appellant was not capable of travelling to the workplace, noting that the facility was large 

and would require 30 minutes to get inside and 30 minutes to return to his car. She further 

indicated that, as the offered position was temporary and appellant’s date-of-injury position was 

permanent, it was unsuitable, and that Dr. Count did not base his opinion on the statement of 

accepted facts (SOAF).

On November 17, 2014 OWCP asked the employing establishment if the offered position 

remained available. The employing establishment notified OWCP that a daily shuttle brought 

employees from the parking lot to the work facility, and that the position offered was sedentary. 

The employing establishment again offered appellant the modified position on 

November 18, 2014. The job duties and physical requirements were exactly the same. The 

attached correspondence from the employing establishment to appellant indicated that the 

position was temporary. It noted that regular bus transportation was scheduled from the parking 

lot to the P&DC. The employing establishment asked that appellant respond no later than 

November 26, 2014. On March 10, 2015 the employing establishment notified OWCP that 

appellant did not respond to the job offer. 

By decision dated April 23, 2015, OWCP terminated appellant’s wage-loss compensation

in accordance with 20 C.F.R. § 10.500(a), effective May 3, 2015. It noted that he had not 

accepted the temporary modified position which was within the restrictions provided by

Dr. Count.

Appellant timely requested a hearing before a representative of OWCP’s Branch of 

Hearings and Review. 

In a May 8, 2015 report, Dr. Johnson noted seeing appellant for a foot evaluation. She

reported that appellant had not been seen for heel pain in a year. Dr. Johnson’s examination 

demonstrated mild pain at the insertion of the plantar fascia of the left foot with no pain along the 

course of the plantar fascia, no pain at the Achilles insertion, no pain with medial/lateral 

compression of the heel, no bursa, no ecchymosis, and no edema. She noted that she reviewed 

an MRI scan and diagnosed plantar fasciitis, pain, pes planus, and equinus deformity of the left 

foot. Dr. Johnson discussed treatment options and exercise recommendations and advised

appellant to follow-up on an as needed basis. Information relating to a diagnosis of plantar 

fasciitis with recommended exercises and shoes was attached.

 

3 Appellant authorized Stephanie N. Leet, Esquire, to represent him on August 19, 2014. 
5

At the hearing, held on December 15, 2015, counsel maintained that Dr. Count was not 

provided a SOAF and the medical record, and that his medical restrictions were not specific 

enough on which to base a suitable position. She further asserted that a great deal of walking 

was necessary to enter the employing establishment, including just to get to the shuttle, and that 

the July and November job offers were different. Counsel concluded that Dr. Kuruvilla’s 

restriction of sedentary work with the ability to elevate his foot periodically conflicted with those 

of Dr. Count such that a conflict in medical evidence had been created. The hearing transcript 

was forwarded to appellant and the employing establishment on December 28, 2015. The 

employing establishment was given 20 calendar days to respond. 

In correspondence dated January 13, 2016, counsel reiterated her arguments that the 

offered position was not suitable, noting that the job offer did not state that it was a sedentary 

position or describe the duties that required one hour of walking, standing, and climbing each 

day. She further maintained that Dr. Count’s restrictions were vague and in conflict with those 

provided by Dr. Kuruvilla. 

By letter dated January 15, 2016, scanned received by OWCP on Tuesday, January 19, 

2016, an employing establishment health and resources management specialist provided 

comments to the December 15, 2015 hearing. She indicated that the second job offer was only a 

continuation of the initial job offer as time had passed and noted that appellant did not respond to 

either the July or November 2014 offer. The specialist maintained that the offer was within the 

restrictions provided by Dr. Count and indicated that appellant would be able to change positions 

and elevate his foot at work. She related that, while occasional standing was required, there was 

no walking required for the position, noting that any walking would be in the parking lot, to the 

workstation, and to the men’s room. The specialist further noted that handicapped parking was 

located directly across from the shuttle stop, and that the shuttle stopped directly in front of the 

employing establishment building.

In correspondence dated January 27, 2016, counsel maintained that the January 15, 2016 

letter from the employing establishment should be excluded because it was not submitted until 

more than 20 calendar days from the December 28, 2015 transmittal of the hearing transcript. 

She reiterated her arguments that the position offered was not suitable. 

By decision dated February 24, 2016, an OWCP hearing representative affirmed the 

April 23, 2015 decision. He noted that the record contained only one opinion of appellant’s 

work capacity in the past two years, and credited the opinion of Dr. Count. The hearing 

representative indicated that, although counsel argued that Dr. Kuruvilla restricted appellant to 

sedentary work with his left foot elevated, the record contained no such report, noting that

Dr. Kuruvilla indicated that he agreed with Dr. Count’s assessment. He found counsel’s further 

contentions without merit and concluded that OWCP properly terminated appellant’s wage-loss 

compensation on May 5, 2015 in accordance with 20 C.F.R. § 10.500. 

On February 16, 2017 appellant, through counsel, requested reconsideration. Counsel 

reiterated her contentions that, based on the medical evidence including the opinions of

Dr. Count and Dr. Kuruvilla, the offered position was unsuitable. She continued to argue that 

the January 15, 2016 response to hearing testimony should be excluded because it was submitted 

late and concluded that the termination of benefits should be reversed. 
6

Counsel attached a July 16, 2014 report in which Dr. Kuruvilla advised that appellant was 

seen that day and reported symptoms not consistent with plantar fasciitis. There was very mild 

tenderness on palpation. Appellant’s weight-bearing was limited to one hour per day. Counsel

also submitted Dr. Kuruvilla’s April 2, 2014 treatment note which indicated his agreement with

Dr. Count’s assessment and a portion of Dr. Count’s report. On April 19, 2016 Dr. Christopher 

Teitleman, a Board-certified internist, completed a retirement form for appellant. He checked 

“yes,” indicating that, because of appellant’s medical condition, he could not perform his current 

job duties and the condition was expected to continue for at least one year. 

On February 21, 2017 Dr. Robert Sands, Board-certified in internal medicine and 

rheumatology, advised that appellant had been under his care since October 21, 2014 for a 

connective tissue disease. He advised that appellant was unable to sit, stand, or walk for greater 

than 30 minutes, could not drive long distances, was unable to lift more than 25 pounds, and 

lifting was limited to one hour a day. Dr. Sands indicated that appellant had trouble with fatigue, 

kneeling, squatting, and pulling, had intermittent ankle swelling, widespread aches and pains, 

including chronic coccygeal pain, and was being followed by a pain clinic.

In a February 28, 2017 report, Dr. Johnson advised that appellant had continued pain in 

his left heal. She noted that appellant was being seen by Dr. Sands for diagnoses of lupus and 

fibromyalgia. Dr. Johnson described examination findings, and reiterated her diagnoses. She 

indicated that she had advised appellant that it was possible that autoimmune disease and 

fibromyalgia contributed to his lower extremity pain and discussed the importance of weight 

loss. Dr. Johnson concluded that patients usually did not remain out of work for plantar fasciitis. 

A left foot x-ray that day showed flattening of plantar arch, narrowed lateral aspect of the fifth 

tarsometatarsal joint, and a tiny inferior calcaneal spur. A March 31, 2017 MRI scan of the 

lower left ankle demonstrated slight thickening of the plantar fascia adjacent to the calcaneus. 

In a merit decision dated April 21, 2017, OWCP denied modification of the prior 

decisions. 

LEGAL PRECEDENT

Under FECA, once OWCP has accepted a claim it has the burden of justifying 

termination or modification of compensation benefits.4 

Section 10.500(a) of the Code of Federal Regulations provides:

“(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; 

 

4

I.J., 59 ECAB 408 (2008).
7

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 

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.)”

5

OWCP procedures also provide that if the evidence establishes that injury-related 

residuals continue and result in work restrictions, that light duty within those work restrictions is 

available, and the employee was notified in writing that such light duty was available, then 

wage-loss benefits are not payable for the duration of light-duty availability, since such benefits 

are payable 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.

6

 The claims 

examiner must provide a pretermination notice if the claimant is being removed from the 

periodic rolls.7 When a temporary light-duty assignment either ends or is no longer available, 

the claimant is entitled to compensation and should be returned to the periodic rolls immediately 

as long as medical evidence supports any disabling residuals of the work-related condition.8

ANALYSIS

OWCP accepted appellant’s occupational disease claim for left foot plantar fasciitis. It 

also authorized left foot surgery performed by Dr. Kuruvilla on August 29, 2013. OWCP paid 

appellant wage-loss compensation for total disability, and he was placed on the periodic 

compensation rolls in April 2013. 

On July 8, 2014 the employing establishment offered appellant a temporary modified 

assignment as a sales retention team member on a full-time basis at the Boston P&DC. The 

assignment involved contacting customers by telephone for six to eight hours intermittently per 

day, light typing and data entry for one hour intermittently, answering the telephone for four to 

eight hours intermittently, providing administrative assistance to the back office, and engaging in 

computer-type duties for four to eight hours intermittently. The assignment required sitting in an 

office chair with supportive back and occasional standing for eight hours intermittently per day, 

simple grasping/pushing/pulling of one pound (computer mouse, telephone) for one hour 

intermittently, fine manipulation (computer keyboard) for one hour intermittently, and lifting 

telephone (up to two pounds) to speak for six to eight hours intermittently. 

Following further development of the record regarding concerns raised by appellant, on 

November 18, 2014, the employing establishment again offered appellant the position. In 

 

5 20 C.F.R. § 10.500(a).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9c(1)(a)

(June 2013).

7

Id. at Chapter 2.814.9c(1)(b).

8

Id. at Chapter 2.8149c(1)(d).
8

correspondence sent to appellant by the employing establishment with the November 18, 2014 

job offer indicated that regular bus transportation was provided from the parking lot to the 

P&DC. 

The determination of whether an employee has the physical ability to perform a position 

offered by the employing establishment is primarily a medical question that must be resolved by 

the medical evidence.9

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

the temporary limited-duty assignment offered by the employing establishment in July and 

November 2016. The physical requirements of the offered temporary limited-duty assignment 

were within the medical restrictions as provided by Dr. Count in his February 18, 2014 reports.

10

 

Furthermore, Dr. Kuruvilla, an attending podiatrist, advised on April 2, 2014 that he agreed with

Dr. Count’s assessment. The Board finds that the medical restrictions provided by Dr. Count and 

agreed to by Dr. Kuruvilla constitute the best picture of appellant’s ability to work at the time the 

employing establishment offered him the temporary limited-duty assignment.11

The Board further finds that OWCP complied with its procedural requirements by 

advising appellant that the offered assignment was suitable, providing him the opportunity to 

accept the assignment or provide reasons for his refusal, and notifying him that his wage-loss 

compensation would be reduced or terminated if he failed to submit sufficient evidence showing 

such reduction was not justified.12 

As noted, the Board finds that medical evidence supports that appellant could have 

performed the duties on the sales retention team. Furthermore, as noted by the employing 

establishment, shuttle bus transportation was furnished from the parking lot to the P&DC, and 

handicapped parking was available adjacent to the parking lot bus stop. Counsel further asserted 

that the position was not suitable as it was temporary, and that OWCP did not provide appellant 

with a second notice of proposed termination following the November 2015 job offer. OWCP, 

however, did not invoke the penalty provision of 5 U.S.C. § 8106(c) and terminate appellant’s 

compensation for refusing suitable work, but instead reduced his wage-loss compensation under 

20 C.F.R. § 10.500(a). As discussed, it complied with the procedural requirements prior to the 

reduction, as appellant was previously notified in writing that this same modified job was 

available. A reduction of compensation based on a temporary position is allowed under section 

10.500(a).13 

 

9 See N.D., Docket No. 15-0027 (issued February 4, 2016).

10 Dr. Count advised that appellant could work eight hours of modified duty daily with restrictions. He limited 

walking, standing, and climbing to one hour daily, with a 25-pound weight restriction. 

11 J.J., Docket No. 17-0885 (issued June 16, 2017).

12 Federal (FECA) Procedure Manual, supra note 6; id.

13 20 C.F.R. § 10.500(a); B.W., Docket No. 16-0120 (issued July 22, 2016).
9

The evidence of record reflects that appellant declined the temporary limited-duty 

assignment offered by the employing establishment, which was suitable and would have paid 

him wages equal to those of his date-of-injury job.14 Therefore, OWCP properly terminated

appellant’s wage-loss compensation, effective May 3, 2015, under 20 C.F.R. § 10.500(a) based 

on his earnings had he accepted the temporary limited-duty assignment.15

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 May 3, 2015, based on his refusal of an offer of temporary suitable 

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

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 23, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 The record supports that, had appellant accepted the position, his pay would have been equal to or greater than 

the current pay of the job held on the date of injury. As such, he would have no loss of wage-earning capacity.

15 G.C., Docket No. 17-0140 (issued April 13, 2017).