United States Department of Labor

Employees’ Compensation Appeals Board

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M.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY MEDICAL CENTER, 

Tampa, FL, Employer

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Docket No. 19-0991

Issued: January 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On April 5, 2019 appellant filed a timely appeal from a February 7, 2019 decision of the 

Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards 

docketed the appeal as No. 19-0991.

On April 20, 2017 appellant, then a 49-year-old program support assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on April 18, 2017 she injured both lower extremities when 

she slipped and fell while in the performance of duty. She stopped work on the date of injury. 

OWCP accepted the claim for unspecified closed fracture of shaft of right tibia and expanded 

acceptance of the claim to include sprain of the lumbar spine and pelvis, and sprain of the right 

hamstring. Appellant thereafter filed several claims for compensation (Form CA-7) seeking wageloss compensation benefits. OWCP paid her wage-loss compensation on the supplemental 

compensation rolls commencing June 12, 2017.

 

1 The Board notes that following the February 7, 2019 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 

evidence for the first time on appeal. Id.
2

On September 28, 2017 the employing establishment offered appellant a temporarymodified assignment within the restrictions provided by Dr. William Dinenberg, a Board-certified 

orthopedic surgeon who was serving as an OWCP second opinion physician. Appellant refused 

the offered position on October 3, 2017. 

In a notice dated December 11, 2017, OWCP proposed to terminate appellant’s wage-loss 

compensation, based on the restrictions provided by Dr. Dinenberg. It 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. 

Appellant disagreed with the proposed termination and submitted medical evidence.

By decision dated January 22, 2018, OWCP terminated appellant’s wage-loss 

compensation, effective January 23, 2018, pursuant to 20 C.F.R. § 10.500(a). It notified her that 

if she disagreed with the decision, she should follow the attached appeal rights, and if the 

September 28, 2017 job offer was withdrawn or her work-related medical condition worsened such 

that she could not perform these duties, she could file a notice of recurrence (Form CA-2a).

On April 24, 2018 appellant requested reconsideration and submitted a number of medical 

reports. By letter dated May 4, 2018, OWCP forwarded a copy of appellant’s reconsideration 

request to the employing establishment. By decision dated July 19, 2018, it denied modification 

of its prior decision.

Appellant next requested reconsideration on November 20, 2018 and submitted additional 

medical evidence. Along with her reconsideration request, she submitted a claim for ongoing 

wage-loss compensation (Form CA-7) commencing January 22, 2018. By letter dated 

November 29, 2018, OWCP forwarded a copy of appellant’s reconsideration request to the 

employing establishment.

By decision dated February 7, 2019, OWCP denied modification of its prior decisions. It

found that appellant was not entitled to continuing compensation following the January 23, 2018 

termination since compensation was not payable during the duration of the temporary assignment. 

Having reviewed the case record, the Board finds this case is not in posture for decision.

OWCP’s procedures describe the circumstances for offering a temporary position in 

accordance with 20 C.F.R. § 10.500(a) of its regulations. Section 2.814.9c(1)(d) provides that 

when the temporary light-duty assignment ends or the work is no longer available, the claimant is 

entitled to compensation and should be placed back on compensation rolls as long as medical 

evidence supports any disabling residuals of the work-related disability.2 Section 2.814.9c(10)

provides that when a temporary light-duty assignment ends or the work is no longer available, the 

 

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

(June 2013).
3

claimant should submit a Form CA-2a or Form CA-7, with verification from the employing 

establishment that the work is no longer available.3

Appellant submitted a wage-loss compensation claim, Form CA-7, to OWCP with her 

November 20, 2018 reconsideration request. She had also requested reconsideration on 

April 24, 2018. In its letters to the employing establishment following the April 24 and 

November 20, 2018 reconsideration requests, OWCP did not ask the employing establishment 

whether the temporary assignment remained available.

The Board finds that it is unable to make an informed decision as to whether appellant has 

established entitlement to wage-loss compensation benefits, claimed on her Form CA-7 claims for 

wage-loss compensation, under 20 C.F.R. § 10.500(a) because it did not ascertain whether the 

temporary assignment, on which the termination of wage-loss compensation was based, remained 

available. In the February 7, 2019 decision, OWCP specifically found that appellant was not 

entitled to continuing compensation following the January 23, 2018 termination since 

compensation was not payable during the duration of the assignment. However, OWCP’s finding 

is incorrect as this denial of wage-loss compensation is not a suitable work termination under 5 

U.S.C. § 8106(c)(2), a statutory provision which serves as a penalty for refusing a position found 

to be suitable for an employee on the periodic compensation rolls.4 

It is well established that proceedings under the Federal Employees’ Compensation Act5

(FECA) are not adversarial in nature, and that, while appellant has the burden of proof to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence. 

OWCP has an obligation to see that justice is done.6 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.7

Without information regarding the availability of the temporary-modified position, an 

informed decision cannot be reached on the relevant issue in this case.8 The case must, therefore,

be remanded for OWCP to obtain information from the employing establishment as to whether the 

temporary-modified assignment remains available and, if not, when it became unavailable for the 

periods covered by appellant’s Form CA-7 claims. After such further development as OWCP 

deems necessary, it shall issue a de novo decision.

 

3

Id. at Chapter 2.814c(10).

4 See 5 U.S.C. § 8106(c)(2).

5 5 U.S.C. § 8101 et seq.

6 S.C., Docket No. 19-0920 (issued September 25, 2019).

7 20 C.F.R. § 10.121.

8

I.C., Docket No. 17-1684 (issued January 22, 2019).
4

IT IS HEREBY ORDERED THAT the February 7, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: January 21, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board