United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Connellsville, PA, Employer

__________________________________________

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Docket No. 20-0789

Issued: December 1, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On February 26, 2020 appellant, through counsel, filed a timely appeal from a January 24, 

2020 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, following the January 24, 2020 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

ISSUE

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

compensation, effective August 18, 2019; and (2) whether appellant has established continuing 

disability on or after August 18, 2019 due to her accepted February 28, 2018 employment injury.

FACTUAL HISTORY

On March 1, 2018 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on February 27, 2018 she sustained injuries to her left hip and leg when 

a vehicle struck the side of her delivery vehicle while she was in the performance of duty. She

stopped work on the date of injury. Appellant was transported to a hospital by ambulance 

immediately following the accident. In reports dated February 27, 2018, Drs. Timothy Muchnok 

and Eric L. Wissinger, both Board-certified in emergency medicine, diagnosed cervical spine 

strain, multiple contusions, left hip pain, abdominal pain, acute chest wall pain, and right ankle 

pain.

On March 7, 2018 OWCP accepted a sprain of cervical spine ligaments. It thereafter paid 

appellant wage-loss compensation on the supplemental rolls commencing April 14, 2018 and on 

the periodic rolls commencing December 9, 2018, based on a weekly pay rate of $1,028.06. 

Dr. Gilbert Perez, a Board-certified family practitioner, treated appellant beginning on 

March 8, 2018.4 In periodic reports through July 25, 2018, he observed a left hip contusion and 

swelling in proximal interphalangeal joint of the long finger of the right hand interfering with grip 

strength. Dr. Perez also noted appellant’s complaints of pain in the lumbar and cervical spine, 

right forearm, and left hip. He prescribed physical therapy. Dr. Perez held appellant off work.

Effective July 25, 2018, he released her to sedentary duty for four hours a day, with lifting with 

the right hand limited to one pound.

On July 30, 2018 OWCP expanded its acceptance of the claim to include contusion of the 

right middle finger without damage to nail, and sprain of ligaments of lumbar spine.

In a report dated August 24, 2018, Dr. Perez indicated that appellant could perform 

modified duty up to four hours a day, with limited use of the right upper extremity and minimal 

lifting. He held her off work effective October 10, 2018 due to severe lumbar and right long finger 

pain.5

Dr. Jocelyn R. Idema, an osteopathic physician Board-certified in orthopedic surgery, 

obtained lumbar x-rays on November 20, 2018 which demonstrated mild scoliosis, moderate facet 

arthrosis bilaterally at L5-S1, and decreased disc height at L5-S1. She held appellant off from 

 

4 Appellant was also followed by Dr. Patrick T. McCulloch, a Board-certified orthopedic surgeon specializing in 

surgery of the hand. In a June 25, 2018 report, Dr. McCulloch administered an injection to the right long finger. In 

an August 3, 2018 report, he noted that the injection had improved appellant’s symptoms. 

5 A December 14, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated a central disc 

herniation at L4-5 toward the left with moderate narrowing of the left neural foramen, and a minimal central disc bulge 

at L5-S1.
3

work. In a December 28, 2018 report, Dr. Idema reviewed a December 14, 2018 lumbar MRI scan

and diagnosed lumbar degenerative disc disease with radiculopathy.6

In December 2018, OWCP referred appellant to Dr. Victoria M. Langa, a Board-certified 

orthopedic surgeon, for a second opinion examination as to whether appellant had attained 

maximum medical improvement. The statement of accepted facts (SOAF) provided to Dr. Langa 

listed the cervical sprain as the only accepted condition.

In a January 11, 2019 report, Dr. Langa reviewed the medical record and SOAF. She noted 

that appellant’s neck, shoulder, and hip complaints had resolved. Appellant related lumbar pain 

symptoms with radiation to the coccyx and right lower extremity, and mild symptoms of the right 

middle digit. Dr. Langa noted a history of spina bifida occulta, and that appellant wore a back 

brace. She diagnosed persistent radicular low back pain by history, preexisting lumbar 

degenerative disc/joint disease with a left-sided L4-5 disc herniation, status post sprain/contusion

of the PIP joint of the right middle digit, and status post neck/right shoulder/left hip injuries, 

resolved. Dr. Langa opined that, as the accepted cervical spine sprain, the only condition accepted 

in the claim, had resolved, appellant could return to her date-of-injury job as a rural carrier. She 

recommended that OWCP accept a lumbar condition as the medical record documented “that her 

chief issue from the date of injury onwards has been the lower back and [appellant] has no prior 

history of injuries or complaints with regard to the lower back.” Dr. Langa opined that the lumbar 

condition required additional treatment and recommended a pain management program with a 

series of epidural steroid injections. She completed a work capacity evaluation (Form OWCP-5c) 

and determined that appellant could perform full-time modified duty at the light physical demand 

level, with pulling, pushing, and lifting up to 20 pounds for up to two hours a day, bending and 

stooping for up to one hour a day, frequent changes of position, and no climbing ladders. 

In a report dated March 19, 2019, Dr. Perez disagreed with Dr. Langa’s opinion that 

appellant could return to full-time work. He asserted in a March 20, 2019 report that Dr. Langa 

did not explain why appellant’s occupational lumbar conditions did not warrant restriction of the 

repetitive squatting required by appellant’s date-of-injury position. Dr. Perez noted that appellant 

would require frequent breaks. He opined that she was totally disabled from work due to lumbar 

pain with bilateral radiculopathy.

In a May 1, 2019 letter, OWCP requested that Dr. Langa review Dr. Perez’ March 20, 2019 

report and an updated SOAF which included acceptance of cervical sprain, contusion of right 

middle finger without damage to nail, and sprain of ligaments of lumbar spine.

On May 8, 2019 the employing establishment offered appellant a full-time modified 

assignment as a rural carrier, with wages of $1,066.46 a week. The duties required casing mail 

one to two hours, delivering a route six to eight hours, and express mail delivery two to three hours. 

The physical requirements included pushing and pulling within medical restrictions for two hours, 

driving and sitting up to eight hours, standing and walking up to eight hours, and bending and 

 

6

In a January 16, 2019 report, Dr. Jesse Sally, an osteopathic physician Board-certified in physiatry, diagnosed a 

lumbar strain/sprain. On February 18, 2019 he performed authorized right L4-5 and L5-S1 facet joint injections.

Dr. Sally administered a right sacroiliac joint injection on March 21, 2019 and a right L5-S1 interlaminar epidural 

injection on April 15, 2019.
4

stooping up to one hour. Appellant declined the position on May 8, 2019 contending that she could 

not drive the number of hours required.

In reports dated May 9 and June 6, 2019, Dr. Perez noted chronic lumbar pain unrelieved 

by injections. Appellant noted that driving aggravated her lumbar symptoms and that she had 

difficulty putting on her socks and shoes. Dr. Perez continued to hold appellant off work.

In a May 21, 2019 report, Dr. Idema diagnosed lumbar degenerative disc disease and 

lumbar disc displacement with radiculopathy. She returned appellant to sedentary duty.

In an addendum report received by OWCP on June 17, 2019,7 Dr. Langa noted reviewing

Dr. Perez’ March 20, 2019 report. She disagreed with Dr. Perez’ opinion that appellant was 

“incapable of returning to work in any capacity.” Dr. Langa affirmed her January 11, 2019 

opinion, regarding appellant’s work capacity. Based on her examination of appellant, and a review 

of diagnostic studies, she opined that “with regard to the accepted condition of the cervical sprain 

alone,” appellant could return to her date-of-injury position. Regarding appellant’s lumbar 

condition, Dr. Langa indicated that appellant could return to restricted duty within the limitations 

noted on the January 11, 2019 Form OWCP-5c.

In a notice dated June 26, 2019, OWCP proposed to reduce appellant’s compensation based 

on her refusal of the May 8, 2019 modified position. It advised appellant that it had reviewed the 

work restrictions provided by Dr. Langa and found that her opinion represented the weight of the 

medical evidence. OWCP further determined that the position offered appellant was within her 

restrictions. It informed her of the provisions of 20 C.F.R. § 10.500(a) and advised her that any 

claimant who declined a temporary light-duty assignment deemed appropriate by OWCP was not 

entitled to compensation for total wage loss. OWCP noted that the offered pay rate was greater 

than that when disability began and, therefore, there was no loss of wage-earning capacity. It 

afforded appellant 30 days to accept the assignment and report to duty or provide a written 

explanation of her reasons for not accepting the assignment.

In response, appellant submitted reports by Dr. Perez dated July 3 and 29, 2019, finding 

her disabled from full-time work at the employing establishment due to lumbar pain with 

radiculopathy into both lower extremities, and right long finger dysfunction.

On July 31, 2019 Dr. David DeChellis, an osteopathic physician Board-certified in 

physiatry and pain management, performed lumbar provocative discography at L3-4 and L4-5 

under fluoroscopic guidance.

By decision dated August 15, 2019, OWCP finalized the June 26, 2019 proposal and 

terminated appellant’s wage-loss compensation, effective August 18, 2019, because she failed to 

accept the May 8, 2019 temporary light-duty assignment in accordance with 20 C.F.R. § 10.500(a). 

It found that the weight of the medical evidence rested with Dr. Langa, who provided temporary 

restrictions. OWCP indicated that its procedures provided that a temporary light-duty assignment 

could be provided to an employee during a period of recovery, and that on August 12, 2019

appellant’s employing establishment confirmed that the assignment remained available. Since 

 

7 On its face, Dr. Langa’s report is dated March 20, 2019. However, as it referenced OWCP’s May 1, 2019 request 

to review Dr. Perez’ March 20, 2019 report, the date appears to be a typographical error.
5

appellant would have sustained no wage loss had she accepted the assignment, OWCP determined 

that she was not entitled to compensation.

On August 22, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. She submitted additional medical 

evidence.8

Dr. DeChellis provided reports dated from August 6 through December 6, 2019, diagnosing 

an L4-5 disc protrusion, right lower limb radiculopathy, chronic pain syndrome status post motor 

vehicle accident, lack of clinical benefit from previous therapies, and negative provocative 

discography at L4-5 and L3-4. He recommended a trail of a spinal cord stimulator. Dr. DeChellis 

held appellant off work.

In reports dated from August 20 through December 17, 2019, Dr. Idema diagnosed lumbar 

spondylosis and lumbar degenerative disc disease. She returned appellant to sedentary duty 

effective August 20, 2019 and referred her for pain management.

Appellant also provided reports from Dr. Perez dated from August 26 through

December 27, 2019, holding her off work due to worsening lumbar pain with bilateral 

radiculopathy, aggravated by pressing the accelerator pedal in her car. She also reported 

difficulties opening jars and twisting with her right hand.

In a letter dated September 4, 2019, the employing establishment advised that appellant 

reported to her duty station on August 28, 2019 and indicated that she would accept the May 8, 

2019 job offer. Appellant reported for duty on September 3, 2019, but provided Dr. Idema’s 

August 20, 2019 report returning her to sedentary duty and Dr. DeChellis’ August 30, 2019 report 

holding appellant off from work. The employing establishment provided a copy of the job offer 

signed by appellant on August 28, 2019 indicating that she had accepted the offered position.

By decision dated January 24, 2020, OWCP’s hearing representative affirmed the

August 15, 2019 termination decision.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify

termination or modification of compensation benefits.9

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

“(a) Benefits are available only while the effects of a work-related condition 

continue.

 

8 Appellant also submitted imaging studies. A July 31, 2019 CT scan of the lumbar spine demonstrated diffuse 

annular thinning with broad-based degenerative disc bulges at L3-4 and L4-5 levels with mild degenerative spinal 

stenosis at both levels, a broad-based degenerative disc bulge with vacuum disc phenomenon at L2-3 with mild spinal 

stenosis, and degenerative disc and facet changes at L5-S1 without significant spinal or foraminal stenosis. A 

November 22, 2019 MRI scan of the thoracic spine demonstrated disc herniations at T7-8, T9-10, and T10-11. 

9 D.K., Docket No. 19-1178 (issued July 29, 2020); C.W., Docket No. 18-1779 (issued May 6, 2019); S.F., 59 

ECAB 642 (2008).
6

“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.”

10

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

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

the evidence of record 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.11 When the light-duty assignment either ends or is no longer 

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

continued disability.12

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective August 18, 2019.

The record indicates that appellant was on the periodic rolls on May 8, 2019 when the 

employing establishment offered her the modified rural carrier position. The offer was temporary 

and in writing. It, therefore, comported with the procedural requirements of 20 C.F.R. 

§ 10.500(a).13

The evidence of record establishes that, as of August 18, 2019, the date OWCP terminated 

appellant’s wage-loss compensation, there remained a disagreement between Dr. Langa, OWCP’s 

second opinion orthopedic surgeon, and appellant’s physicians Dr. Perez, a treating family 

practitioner, and Dr. Idema, a Board-certified orthopedic surgeon, as to whether appellant had the 

ability to perform the duties of the offered temporary modified rural carrier position.14

Dr. Perez began treating appellant on March 8, 2018. He initially held her off work, and 

on July 25, 2018 returned her to sedentary duty for four hours a day. Dr. Perez again held appellant 

 

10 20 C.F.R. § 10.500(a).

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

(June 2013).

12 Id.

13 Id.

14 D.K., supra note 9; R.C., Docket No. 18-0463 (issued February 7, 2020).
7

off work effective October 10, 2018 and continuing. He advised that her lumbar pain with bilateral 

radiculopathy, and right long finger dysfunction, had totally disabled her from work. 

Dr. Idema began treating appellant on November 20, 2018. She diagnosed degenerative 

lumbar disc disease, lumbar disc disease with radiculopathy, and lumbar disc displacement with 

radiculopathy. Dr. Idema opined that appellant could perform full-time sedentary duty as of 

May 21, 2019. 

In January 11 and June 17, 2019 reports, Dr. Langa opined that the occupationally-related 

lumbar condition necessitated work restrictions including frequent changes of position, and 

limitations on lifting, pulling, pushing, bending, and stooping. She found appellant able to perform 

full-time modified-duty work within those limitations. 

The Board thus finds that there is an unresolved conflict of medical evidence between the 

opinions of Dr. Langa and Drs. Perez and Idema as to whether appellant could perform the duties 

of the offered position on August 18, 2019, the effective date of the termination of appellant’s

wage-loss compensation. Therefore, OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation as it should have referred appellant for an impartial medical 

evaluation to resolve the conflict prior to a termination of wage-loss compensation benefits.15

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective August 18, 2019.

 

15 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: December 1, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board