United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.C., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, City of Industry, CA, 

Employer

__________________________________________

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Docket No. 18-1719

Issued: June 19, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 11, 2018 appellant filed a timely appeal from an April 25, 2018 merit 

decision and an August 16, 2018 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly reduced appellant’s wage-loss compensation 

effective April 29, 2018, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he accepted 

 

1 The Board notes that following the August 16, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.

2 5 U.S.C. § 8101 et seq.
2

a temporary, limited-duty position; and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On November 4, 2005 appellant, then a 46-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome while performing 

federal employment duties. On December 30, 2005 OWCP accepted his claim for bilateral carpal 

tunnel syndrome and tenosynovitis/tendinitis. On February 20, 2007 appellant returned to 

modified work. He stopped work on June 2, 2009 and underwent left carpal tunnel release. On 

July 8, 2009 OWCP placed appellant on the periodic rolls. Appellant underwent right carpal tunnel 

release on September 29, 2009. He did not return to work.

Appellant’s physicians, Dr. Mumtaz A. Ali, a Board-certified neurologist, and Dr. Hamid

Rahman, an orthopedic surgeon, found that he was totally disabled for the period September 29, 

2009 through January 12, 2015. Beginning on February 9, 2015, Dr. Ali indicated that appellant 

could return to modified-duty work. In a duty status report (Form CA-17) dated February 8, 2016, 

he noted that appellant could not return to his date-of-injury position as a mail handler, but that he 

could lift up to 10 pounds and sit, stand, walk, bend, and stoop for eight hours a day. Dr. Ali 

further found appellant could twist, push, pull, reach above the shoulder, as well as perform simple 

grasping each for one hour a day. The employing establishment did not have light-duty work 

available within appellant’s restrictions in February 2016.

On October 17, 2016 OWCP referred appellant, a statement of accepted facts (SOAF), and 

a list of questions to Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, for a second 

opinion evaluation. In his November 17, 2016 report, Dr. Einbund reviewed the SOAF and the 

medical evidence. He listed his findings on physical examination, including mild tenderness of 

the right wrist with normal sensation, negative Tinel’s sign, and negative Phalen’s test. In regard 

to appellant’s left wrist, Dr. Einbund found volar tenderness, positive Phalen’s test, and 

questionably positive Tinel’s sign. He also reported loss of light touch over appellant’s thumb, 

index, and long fingers with normal two-point discrimination. Dr. Einbund diagnosed ongoing 

carpal tunnel syndrome. He found that appellant could perform sedentary work, lifting, pushing, 

and pulling up to 20 pounds for three hours a day. Dr. Einbund recommended vocational 

rehabilitation and noted that appellant was hearing impaired.3 

In a January 4, 2017 supplemental report, Dr. Einbund reviewed appellant’s December 23, 

2016 electromyogram and nerve conduction velocity (EMG/NCV) test results and found persistent 

or recurrent bilateral carpal tunnel syndrome. On January 4, 2017 he completed a work capacity 

evaluation (OWCP-5c) and indicated that appellant could work eight hours a day with restrictions. 

Dr. Einbund found that appellant could perform repetitive movements of his wrists for up to four 

hours a day. He also indicated that appellant could lift, push, and pull up to 20 pounds for three

hours a day.

 

3 OWCP authorized American Sign Language interpreters for appellant’s medical and vocational rehabilitation 

appointments.
3

On January 31, 2017 OWCP referred appellant for vocational rehabilitation services.

On April 13, 2017 appellant requested disability retirement and submitted a form report 

completed by Dr. Ali on April 10, 2017. Dr. Ali found that appellant could lift up to 20 pounds 

intermittently and could sit, stand, walk, and climb stairs continuously. He also indicated that 

appellant could bend, kneel, stoop, and twist continuously and perform reaching above the 

shoulder, fine manipulation, simple grasping, pushing, and pulling intermittently.

In notes dated August 17, October 2, and December 7, 2017, Dr. Ali noted appellant’s 

report of constant pain and numbness in both wrists and hands. He found loss of range of motion 

in both wrists and that both wrists were tender to palpation. Dr. Ali diagnosed status postsurgical 

release of bilateral carpal tunnel syndrome with residual bilateral carpal tunnel syndrome and mild 

right ulnar neuropathy entrapment at the elbow. He found that appellant could perform modified 

work.

In a letter dated January 5, 2018, the employing establishment noted on December 15, 2017 

that it had offered appellant a temporary modified mail handler position working eight hours a day 

which required him to prepare the mail for up to three hours and to perform quality control by 

comparing labels to sacks for up to five hours a day. The physical requirements of the position 

required appellant to lift, push, and pull one to three pounds for three hours intermittently. 

Appellant was also required to stand, walk, bend, twist, and perform simple grasping for eight 

hours intermittently. The vocational rehabilitation counselor assessed the job offer on 

December 21, 2017 and found as it required minimal lifting it was within appellant’s work 

restrictions. On February 7, 2018 she found that that position was within 50 miles of appellant’s 

home. Appellant did not respond to the offered position.

In a letter dated March 9, 2018, OWCP provided appellant notice of its proposed reduction 

of his wage-loss compensation as he had refused to accept a temporary limited-duty assignment 

which accommodated his work-related limitations as determined by Dr. Einbund and would have 

paid him $1,120.00 a week for working 40 hours. It advised him of the provisions of 20 C.F.R. 

§ 10.500(a) and explained to him that his entitlement to wage-loss compensation would be reduced 

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.

In a March 19, 2018 letter, appellant asserted that he could not perform the offered lightduty position due to his right shoulder condition. He indicated that he required disability 

retirement. Appellant provided a January 18, 2018 note from Dr. Ali which indicated that 

appellant had pulled a muscle in his right shoulder a month earlier. He otherwise repeated his 

previous findings and conclusions.

By decision dated April 25, 2018, OWCP reduced appellant’s wage-loss compensation 

effective April 29, 2018 as he had not accepted the temporary limited-duty position offered on 

December 15, 2017 by the employing establishment. Using the formula set forth in Albert C. 

Shadrick4it noted his salary on the date disability began, June 2, 2009, was $1,065.42 per week 

and the current pay rate for his job and step when injured was $1,227.75, effective 

 

4 5 ECAB 376 (1953) (codified by regulation at 20 C.F.R. § 10.403).
4

December 15, 2017. OWCP found appellant capable of earning $1,120.23 per week, the pay rate 

of the modified mail handler position. It determined that he had 91 percent wage-earning capacity 

which resulted in an adjusted wage-earning capacity of $969.53 and a loss in earning capacity of 

$95.89 per week or $291.00 each four weeks. After deductions for health benefits, basic life 

insurance, and optional life insurance, this yielded a new compensation rate equal to $5.38 each

four weeks.

On July 5, 2018 appellant requested reconsideration of the April 25, 2018 decision. On 

February 19, March 29, April 26, May 24, and June, 21, 2018 Dr. Ali completed treatment notes

and diagnosed bilateral carpal tunnel syndrome and mild right ulnar nerve neuropathy entrapment

at the elbow. He indicated that appellant was capable of light-duty work. Dr. Ali signed April 26, 

May 24, and July 19, 2018 duty status reports (Form CA-17) and indicated only that appellant’s 

restrictions were unchanged.

By decision dated August 16, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim finding that Dr. Ali’s notes were cumulative.

LEGAL PRECEDENT -- ISSUE 1

OWCP’s regulations at section 10.500(a) provide in relevant part: 

“(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 available. Similarly, an 

employee receiving continuing periodic payments for disability was not prevented 

from earning the wages earned before the work-related 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.”

5

When it is determined that an appellant is no longer totally disabled from work and is on 

the periodic rolls, OWCP procedures provide that the claims examiner should evaluate whether 

the evidence establishes that light-duty work was available within his or her restrictions. The 

claims examiner should provide a pretermination or prereduction notice if appellant is being 

removed from the periodic rolls.6 When the light-duty assignment either ends or is no longer 

 

5 20 C.F.R. § 10.500(a); M.K., Docket No. 18-0907 (issued February 7, 2019).

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

(June 2013); M.K., id.
5

available, the claimant should be returned to the periodic rolls if medical evidence supports 

continued disability.7

OWCP procedures further provide, “If there would have been wage loss if the claimant had 

accepted the light-duty assignment, the claimant remains entitled to compensation benefits based 

on the temporary actual earnings WEC [wage-earning capacity] calculation (just as if he/she had 

accepted the light-duty assignment).”

8

A part-time light-duty assignment may be appropriate if it is for at least half of the total 

hours that the claimant was released for work, is not less than two hours per day, and there is 

written verification from the employing establishment verifying that it is not able to provide work 

for the total hours that the claimant was released for work.9

ANALYSIS -- ISSUE 1

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

effective April 29, 2018 pursuant to section 10.500(a), for refusing a temporary limited-duty 

position. 

On December 15, 2017 the employing establishment offered appellant a temporary 

modified mail handler position working eight hours a day which required him to prepare the mail 

on the AFSM 100 for up to three hours and to perform quality control by comparing labels to sacks 

for up to five hours a day. The physical requirements of the position required him to lift, push, 

and pull one to three pounds for three hours intermittently. Appellant was also required to stand, 

walk, bend, twist, and perform simple grasping for eight hours intermittently. 

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.10

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 December 2017. 

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

medical restrictions as provided by Dr. Einbund in his November 17, 2016 and January 4, 2017 

 

7

Id.

8

Id. at Chapter 2.814.8(c)(10).

9

Id. at Chapter 2.814.9(d).

10 See M.K., supra note 7; J.J., Docket No. 17-0885 (issued June 16, 2017); G.C., Docket No. 17-0140 (issued 

April 13, 2017); N.D., Docket No. 15-0027 (issued February 4, 2016); T.T., 58 ECAB 296 (2007).
6

reports11 as well as within Dr. Ali’s April 10, 2017 report.

12

 The Board finds that the medical 

restrictions provided by these physicians reflect appellant’s ability to work at the time that the 

employing establishment offered him the temporary limited-duty assignment. These reports, 

which are detailed and well rationalized, are entitled to the weight of the evidence and establishes 

that appellant has the ability to perform the offered limited-duty employment.13

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

appellant on March 9, 2018 of the offered assignment in writing and by providing him a 

pretermination notice, with opportunity to respond, since he was receiving wage-loss benefits on 

the periodic rolls. The Board notes that no procedural requirements beyond those set forth in 20 

C.F.R. § 10.500(a) need be afforded to appellant prior to reduction of his benefits.14 OWCP 

properly applied the provisions of Shadrick in determining his loss of wage-earning capacity. The 

offered position was for eight hours a day.

15

The remaining evidence of record is insufficient to contradict that appellant had the 

capacity to perform the offered limited-duty position. Appellant provided a January 18, 2018 note 

from Dr. Ali which indicated that appellant had pulled a muscle in his right shoulder a month 

earlier. Dr. Ali otherwise repeated his previous findings and conclusions. His January 18, 2018 

note did not address the specific requirements of the offered position and did not offer an opinion 

that appellant could not perform the offered position. Thus, this report is of limited probative value

in supporting appellant’s disability claim.

16

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

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

earnings of $1,120.23 per week. Therefore, OWCP properly reduced his wage-loss compensation, 

effective December 15, 2017, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he 

accepted the temporary limited-duty assignment.

 

11 Dr. Einbund found that appellant could perform sedentary work, eight hours a day, with restrictions on repetitive 

movements of his wrists for more than four hours a day and lifting, pushing, and pulling up to 20 pounds for no more 

than three hours a day.

12 Dr. Ali found that appellant could lift up to 20 pounds intermittently, and could sit, stand, walk, and climb stairs 

continuous. He also indicated that appellant could bend, kneel, stoop, and twist continuously and perform reaching 

above the shoulder, fine manipulation, simple grasping, pushing, and pulling intermittently.

13 Supra note 12.

14 M.K., supra note 7.

15 Id.

16 Id.
7

Appellant may request modification of the loss of wage-earning capacity determination 

supported by new evidence or argument, at any time before OWCP.

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.17

A request for reconsideration must be received by OWCP within one year of the date of its 

decision for which review is sought.18 If it chooses to grant reconsideration, it reopens and reviews 

the case on its merits.19 If the request is timely, but fails to meet at least one of the requirements 

for reconsideration, OWCP will deny the request for reconsideration without reopening the case 

for review on the merits.20

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

Appellant’s July 5, 2018 request for reconsideration of the April 25, 2018 decision did not 

show that OWCP erroneously applied or interpreted a specific point of law, nor did it attempt 

to advance a relevant legal argument not previously considered by OWCP. Accordingly, he is not 

entitled to a review of the merits of his claim based on the first and second above-noted 

requirements under section 10.606(b)(3).21

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted additional notes from Dr. Ali dated February 19, March 29, April 26, May 24, and 

June 21, 2018 as well as April 26, May 24, and July 19, 2018 duty status reports. The Board finds, 

however, that this medical evidence does not constitute relevant and pertinent new evidence not 

previously considered by OWCP. Dr. Ali’s reports repeat evidence already in the case record. 

The reports, therefore, are duplicative and cumulative.22 Therefore, this evidence is insufficient to 

 

17 20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-

1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

18 Id. at § 10.607(a).

19 Id. at § 10.608(a); see also H.H., supra note 17; M.S., 59 ECAB 231 (2007).

20 Id. at § 10.608(b); see also H.H., supra note 17; E.R., Docket No. 09-1655 (issued March 18, 2010).

21 H.H., supra note 17.

22 T.T., Docket No. 18-1682 (issued February 22, 2019).
8

require OWCP to reopen appellant’s claim for consideration of the merits.23 Thus, appellant is not 

entitled to further review of the merits of his claim based on the third above-noted requirement 

under 20 C.F.R. § 10.606(b)(3).

As appellant’s request for reconsideration failed to meet any of the criteria under 20 C.F.R. 

§ 10.606(b)(3), the Board accordingly finds that OWCP properly denied his request for 

reconsideration of the merits of his claim pursuant to 20 C.F.R. § 10.608.

CONCLUSION

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

effective April 29, 2018, pursuant to section 10.500(a), for refusing a temporary limited-duty 

position. The Board further finds that OWCP properly denied his request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the August 16 and April 25, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: June 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

23 Id.; L.H., 59 ECAB 253 (2007).