United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Auburn, WA, Employer

__________________________________________

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Docket No. 17-0405

Issued: January 25, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 14, 2016 appellant, through counsel, filed a timely appeal from an 

October 19, 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.

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s entitlement 

to wage-loss compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).

 

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

FACTUAL HISTORY

On April 7, 2014 appellant, then a 35-year-old sales associate, filed a traumatic injury 

claim (Form CA-1) alleging that on April 4, 2014 she strained her left shoulder when lifting a 

full tub of flats while in the performance of duty. OWCP accepted the claim on April 28, 2014 

for left shoulder muscle spasm. On July 1, 2014 it expanded acceptance of the claim to include 

left shoulder closed acromioclavicular dislocation, left superior glenoid labrum lesion, and other 

affections of the left shoulder not otherwise classified.

Appellant submitted claims for compensation (Form CA-7) for disability from work 

commencing June 4, 2014. The time analysis forms (Form CA-7a) indicated that she was 

working intermittent part-time hours. Appellant stopped work on August 9, 2014. On 

October 3, 2014 she underwent left shoulder arthroscopic surgery. Appellant began receiving 

wage-loss compensation on the periodic rolls commencing September 21, 2014.

The record indicates that on February 9, 2015 the employing establishment offered 

appellant a temporary, four-hour per day, light-duty job as a sales solution team member, which 

required intermittent use of a telephone and intermittent light typing. Other physical 

requirements of the modified employment position were provided. A statement of accepted facts 

(SOAF) dated September 3, 2015, indicates that appellant accepted that light-duty job and 

returned to part-time work for four hours per day beginning February 17, 2015.3 She thereafter 

filed Form CA-7 claims for compensation for the remaining four hours of wage loss each day. 

In a letter dated March 26, 2015, Dr. Nha Ton, an osteopath, explained that appellant had 

been excused from work for the period March 19 to 26, 2015, but was cleared to return to work 

on March 27, 2015. In a report dated April 21, 2015, he provided a history and results on 

examination. Dr. Ton reported that appellant had left shoulder pain with intermittent numbness, 

and would decrease her work to four days per week at four hours per day. Appellant stopped 

work again on April 29, 2015, but later returned to part-time work on intermittent dates, working 

up to four hours per day. 

By report dated May 27, 2015, Dr. Ton indicated that appellant reported that her left 

shoulder had been getting worse and she had to leave work the previous day due to shoulder 

pain. He opined that she could only work light duty for four hours a day, three days per week.

On September 3, 2015 OWCP referred appellant along with a SOAF and the medical 

record to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for a second opinion 

examination to determine the nature and status of her left shoulder condition. 

Appellant stopped work again on October 7, 2015 as Dr. Ton recommended time off 

from work due to clicking and popping with movement, bicep pain, and some numbness over the 

left deltoid area. OWCP continued to pay her wage-loss compensation at the established four 

hours per day on the supplemental rolls. 

 

3 A fiscal note dated March 2, 2015 reveals that appellant continued to receive wage-loss compensation on the 

periodic rolls through March 7, 2015, which created an overpayment of compensation in the amount of $1,827.35.
3

In a report dated October 20, 2015, Dr. Dinenberg provided a history and results on 

examination. He diagnosed chronic left shoulder impingement, causally related to the April 4, 

2014 employment injury and noted objective findings including diminished range of motion of 

the left shoulder secondary to pain. Dr. Dinenberg did not consider further surgical treatment to 

be necessary as a result of the accepted employment injury. He found that appellant was at 

maximum medical improvement (MMI) for her left shoulder condition. Dr. Dinenberg opined 

that she could work full time in the sales solution team position, without restrictions. In an 

attached work capacity evaluation form (Form OWCP-5c) he assigned restrictions for the left 

shoulder for reaching above the shoulder level, and for repetitive pushing, pulling, and lifting up 

to 10 pounds for three hours per day.

On November 5, 2015 the employing establishment offered appellant a temporary fulltime, light-duty position as a sales solution team member. The job offer indicated that the 

employment position was available beginning November 9, 2015, and that it was subject to 

revision based on changes in appellant’s physician restrictions or the availability of adequate 

work. 

On November 9, 2015 Dr. Ton opined that appellant should remain off work until 

November 16, 2015 due to her left shoulder injury.

On November 12, 2015 OWCP issued appellant a notice of proposed termination. It

noted that it had been advised that she had not reported for the job assignment offered by the 

employing establishment on November 5, 2015. Appellant was advised that OWCP found that 

the job was within the work restrictions provided by Dr. Dinenberg in his second opinion 

examination. OWCP noted that her family physician, Dr. Ton, had not discussed a reason for 

reducing her work hours or placing her off work. It indicated that its procedures held that a 

temporary light-duty job may be provided when a claimant has stable and had well-defined or 

permanent restrictions. OWCP cited to 20 C.F.R. § 10.500(a) and asserted that a claimant who 

declines a temporary light-duty job assignment is not entitled to compensation for the duration of 

the assignment. It further advised appellant “If you decline to report to the temporary 

light[-]duty assignment on a full-time basis and you fail to demonstrate that the declination is 

justified (within the allotted 30 days), your right to wage[-]loss compensation will be terminated 

indefinitely since this light[-]duty assignment has no projected end date. [Appellant’s]

entitlement to medical benefits or schedule award will not be affected by this determination.” 

Beginning November 27, 2015, appellant filed Form CA-7 claims for wage-loss 

compensation for total disability from work from November 16 through December 25, 2015. In 

support of her claims, she filed additional medical evidence including a November 19, 2015 note 

from Dr. Ton, wherein he contended that her absences from November 16 to 23, 2015 should be 

excused due to left shoulder pain. In a note dated November 23, 2015, appellant opined that she

should remain off work on December 24, 2015.4

 

4 Appellant remained on the supplemental rolls through December 25, 2015, with payment for 40 hours of lost 

time for the period December 14 through 25, 2015.
4

In a report dated January 4, 2016, Dr. Ton noted appellant’s job offer and released her to 

light-duty work from January 4 through 10, 2016 and then full-duty work starting on 

January 11, 2016.

By decision dated January 11, 2016, OWCP terminated appellant’s entitlement to wageloss compensation, effective January 11, 2016.5

 It explained that the termination was due to her

failure to accept the November 5, 2015 temporary light-duty offer.

On January 19, 2016 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. A hearing was held on August 11, 2016. During the hearing, appellant 

asserted that she had accepted the job on January 11, 2016. She indicated, however, that she was 

told the job was no longer available. Appellant further noted that she again returned to work as 

of February 9, 2016 at a new duty station after an additional offer of work was made by the 

employing establishment.

By decision dated October 19, 2016, OWCP’s hearing representative affirmed the 

January 11, 2016 decision. The hearing representative found that OWCP had properly 

terminated appellant’s entitlement to wage-loss compensation, effective January 11, 2016,

pursuant to 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.6 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.7

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 

 

5 OWCP initially issued a decision dated December 23, 2015 that terminated wage-loss compensation effective 

December 28, 2015. However, it subsequently determined that appeal rights had not been properly included with 

that decision. 

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

7 20 C.F.R. § 10.500(a).
5

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).”

8

ANALYSIS

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

compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a) as the medical 

evidence of record shows that she could in fact perform the light-duty assignment offered by the 

employing establishment on November 5, 2015. 

The physical requirements of the offered temporary light-duty assignment were within 

appellant’s medical restrictions provided by Dr. Dinenberg, in his capacity as a second opinion 

referral physician. 

In his report dated October 20, 2015, Dr. Dinenberg noted appellant’s history of injury 

and treatment and opined that she was at MMI for her left shoulder condition and was not in 

need of additional surgical treatment. He further opined that she was capable of working full

time in the temporary light-duty sales solution team position without restrictions after reviewing 

the position description provided to him for review. Dr. Dinenberg did note that appellant

required work restrictions for her left shoulder, but they did not impact her ability to perform the 

full-time position.

The evidence establishes temporary light-duty work within the restrictions set by

Dr. Dinenberg was available as of November 5, 2015 and that appellant was notified in writing 

on November 5, 2015 of the available job which was within her work restrictions.

9

 

Furthermore, appellant’s own treating physician, Dr. Ton, in a January 4, 2016 note, 

released appellant to full-duty employment starting on January 11, 2016, which is the date that 

OWCP used as the effective date of the termination. There is no contemporaneous medical 

evidence of record which restricted appellant from returning to work in the offered temporary 

light-duty position of a sales solution team member at the time of the termination pursuant to 20 

C.F.R. § 10.500(a). 

Thus, the Board finds that OWCP met its burden of proof to terminate appellant’s

entitlement to compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).

 

8

Id.; see also T.F., 16-0851 (issued June 19, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims, Job 

Offers and Return to Work, Chapter 2.814.2(c)(a) (June 2013).

9 See S.M., Docket No. 15-1667 (issued April 20, 2016).
6

On appeal, counsel contends that the decision of October 19, 2016 is contrary to fact and 

law. For the reasons set forth above the Board finds that, under the provisions of 20 C.F.R.

§ 10.500(a), OWCP properly terminated appellant’s compensation. 

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s entitlement 

to wage-loss compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

10

Issued: January 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

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

effective December 11, 2017.