United States Department of Labor

Employees’ Compensation Appeals Board

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A.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Washougal, WA, Employer

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Docket No. 18-0960

Issued: January 29, 2019

Appearances: Case Submitted on the Record

Howard L. Graham, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2018 appellant, through counsel, filed a timely appeal from a February 20, 

2018 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.3

 

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. 

3 The Board notes that by a November 11, 2017 decision, OWCP granted appellant a schedule award for six percent 

permanent impairment of the right upper extremity. As appellant has not appealed from the November 11, 2017 

OWCP decision, it is not properly before the Board for review. See 20 C.F.R. § 501.3.
2

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

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

FACTUAL HISTORY

On December 7, 2015 appellant, then a 55-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she injured her right upper extremity due to excessive use

while in the performance of duty. She stopped work on December 3, 2015. 

OWCP initially denied the claim on April 7, 2016 as appellant had not established the 

alleged employment factors. In correspondence dated January 6, 2017, received by OWCP on 

January 9, 2017, appellant, through counsel, requested a hearing with OWCP’s Branch of Hearings 

and Review.4 By decision dated February 2, 2017, an OWCP hearing representative denied the 

hearing request because it was untimely filed, noting that the issue could equally be addressed by 

requesting reconsideration with OWCP. 

On April 3, 2017 appellant, through counsel, requested reconsideration. In a duty status 

report (Form CA-17) dated March 9, 2017, Dr. David J. Hagen, a Board-certified family 

physician, advised that appellant could return to work in a modified position. He provided 

restrictions of lifting and carrying five pounds for two hours daily, kneeling, bending, stooping, 

simple grasping, and fine manipulation to four hours daily, driving a vehicle to two hours daily, 

and no climbing, pulling, pushing, or reaching above the shoulder.

By decision dated June 21, 2017, OWCP found the evidence submitted sufficient to 

warrant modification and vacated the April 7, 2016 decision.5 It accepted tenosynovitis of the 

right shoulder, medial epicondylitis of the right elbow, and infective tenosynovitis of the right 

wrist. 

Appellant thereafter submitted claims for compensation (Form CA-7) for the period 

December 20, 2015 to February 19, 2016, March 7 to May 25, 2016, and May 26, 2016 to 

June 25, 2017. She also forwarded a June 12, 2017 letter from the Office of Personnel 

Management (OPM) indicating that her disability retirement application had been approved. 

In duty status reports dated April 11 and June 30, 2017, Dr. Hagen repeated his restrictions. 

Appellant telephoned OWCP, indicating that she was electing disability retirement effective 

May 26, 2016. OWCP paid appellant supplemental rolls wage-loss compensation from 

December 20, 2015 to February 19, 2016, and March 7 to May 25, 2016.

 

4 Counsel attached a hearing request dated April 18, 2016. There is no record of its receipt by OWCP prior to 

January 9, 2017. 

5 The record indicates that under OWCP File No. xxxxxx007 OWCP accepted right radial styloid tenosynovitis and 

right shoulder tendinitis, and that under that claim appellant returned to full duties in July 2013. In a February 21, 

2017 decision, under that claim, an OWCP hearing representative denied appellant’s claim for recurrent disability. 

He noted that she had filed the instant claim, adjudicated under OWCP File No. xxxxxx464.
3

On July 6, 2017 the employing establishment offered appellant a modified rural carrier 

assignment. The duties were: case labels for 1 hour; Redbook and WebEES for 30 minutes to 2 

hours; pull weeds and trim bushes for 4 to 6 hours; and sweep sidewalks and rake for 1 to 2 hours. 

The physical requirements included: standing, walking, and twisting 8 hours intermittently; 

kneeling, bending, and stooping 2 to 4 hours intermittently; simple grasping 0 to 4 hours 

intermittently; and fine manipulation 30 minutes to 2 hours. The effective/available date was 

July 8, 2017. 

Appellant telephoned OWCP on July 10, 2017, indicating that she had retired. An 

employing establishment notice of separation and notification of personnel action processed on 

July 10, 2017 indicated that appellant retired on OPM disability effective June 26, 2017.

By letter dated July 10, 2017, counsel maintained that the job offer was unacceptable 

because appellant did not have the physical ability to pull weeds, trim bushes, sweep, and rake. 

On July 17, 2017 OWCP paid appellant compensation on the supplemental rolls for the 

period May 26, 2016 through June 23, 2017.

In a treatment note dated June 30, 2017, received by OWCP on July 18, 2017, Dr. Hagen 

noted that appellant’s right upper extremity pain remained problematic and that she could not use 

her right arm for any repetitive motion or activity above the chest level. Following physical 

examination, he diagnosed tenosynovitis of the right shoulder which disabled her from the rural 

carrier job, medial epicondylitis of the right elbow, aggravated by gripping, and tenosynovitis of 

the right wrist. Dr. Hagen advised that appellant was totally disabled from the rural mail carrier

position. 

In a notice dated August 7, 2017, OWCP proposed to terminate appellant’s wage-loss 

compensation.6 It advised her that it had reviewed the work restrictions provided by Dr. Hagen on 

June 30, 2017 and determined that the modified rural carrier position offered appellant was within 

her restrictions. OWCP informed appellant of the provisions of 20 C.F.R. § 10.500(a) and advised 

her that her entitlement to wage-loss compensation would be terminated under this provision if she 

did not accept the offered temporary assignment or provide a written explanation with justification 

for her refusal within 30 days. It noted that upon acceptance, as appellant’s pay would be equal to 

or greater than the current pay of the job held when injured, she would have sustained no wage

loss if she had accepted the position.

Dr. Hagen forwarded treatment notes dated July 25 and August 7, 2017 in which he 

described physical examination findings, reiterated his diagnoses, and noted that appellant was 

permanently disabled from her job. On a work capacity evaluation (Form OWCP-5c) dated 

July 25, 2017, Dr. Hagen again provided physical limitations with a 10-pound lifting restriction 

for 2 hours daily. He continued to advise that appellant could not push, pull, or reach above the 

shoulder.

 

6 The notice was initially sent on July 17, 2017, but as it was not forwarded to counsel, it was resent on 

August 7, 2017. 
4

By decision dated September 11, 2017, OWCP terminated appellant’s wage-loss 

compensation in accordance with 20 C.F.R. § 10.500(a), effective September 8, 2017. It noted 

that she had not accepted the temporary modified position which was found to be within

Dr. Hagen’s restrictions.

In a request postmarked September 19, 2017, appellant requested a review of the written 

record by a representative of OWCP’s Branch of Hearings and Review. She resubmitted the 

July 25, 2017 work capacity evaluation completed by Dr. Hagen.

By decision dated February 20, 2018, an OWCP hearing representative affirmed the 

September 11, 2017 decision that terminated appellant’s wage-loss compensation pursuant to 20 

C.F.R. § 10.500(a). She found that the offered position was within Dr. Hagen’s restrictions, and 

that appellant had been afforded 30 days to accept the position. The hearing representative 

concluded that, as OWCP complied with the provisions of section 10.500(a) of its regulations, it 

properly terminated appellant’s wage-loss compensation effective September 8, 2017. 

LEGAL PRECEDENT

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

or modification of compensation benefits.7

OWCP regulations at 20 C.F.R. § 10.500(a) provides:

“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 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 restrictions was available; and that the employee was previously 

notified in writing that such duty was available.... (The penalty provision of 5 

U.S.C. § 8106(c)(2) will not be imposed on such assignments under this 

paragraph.)”

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

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

whether light-duty work is 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 

 

7 S.V., Docket No. 17-1268 (issued March 23, 2018); I.J., 58 ECAB 408 (2008).
5

to the employee, if not already in the file.8 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.9 

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation under section 20 C.F.R. § 10.500(a).

The Board finds that appellant filed claims for compensation (Form CA-7) and received 

compensation on the supplemental rolls through June 23, 2017. No additional claims for 

compensation were filed. The Board further finds that OWCP had not made a determination as to 

appellant’s loss of wage-earning capacity (LWEC). As of June 25, 2017 appellant commenced 

receipt of OPM retirement benefits and no longer sought benefits under FECA. As appellant was 

not on the periodic rolls, nor was there an LWEC determination in place, OWCP erred in invoking 

the termination provisions of 20 C.F.R. § 10.500(a). 

Should appellant file a proper election form and choose to return to FECA compensation 

by filing a claim for compensation, and she returns to the periodic compensation rolls, OWCP may 

request that the employing establishment offer appellant a light-duty employment position and 

then invoke the provisions of section 10.500(a).

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation pursuant to 20 C.F.R. § 10.500(a).

 

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(b)(2) 

(June 2013).

9

Id.; see also Chapter 2.814.9(b)(3) (June 2013).
6

ORDER

IT IS HEREBY ORDERED THAT the February 20, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 29, 2019

Washington, DC

Christopher J. Godfrey, 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