United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, SOUTH PARK 

STATION, Alexandria, LA, Employer

__________________________________________

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Docket No. 18-0907

Issued: February 7, 2019

Appearances: Case Submitted on the Record

Daniel E. Broussard, Jr., 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 March 26, 2018 appellant, through counsel, filed a timely appeal from a September 25, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s September 25, 2017 decision was Saturday, 

March 24, 2018. Because the last day of the 180-day filing period fell on a Saturday, the filing period is extended 

until the close of the next business day, which was Monday, March 26, 2018. Accordingly, the appeal is timely filed 

pursuant to 20 C.F.R. § 501.3(f)(2).
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

The issue is whether OWCP properly reduced appellant’s wage-loss compensation 

effective November 13, 2016 under 20 C.F.R. § 10.500(a) based on his earnings had he accepted 

a temporary, limited-duty assignment.

FACTUAL HISTORY

This case has previously been before the Board.

5

 The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are 

as follows. 

On May 13, 1996 appellant, then a 38-year-old rural carrier associate (RCA), filed a 

traumatic injury claim (Form CA-1) alleging that on that day he sustained whiplash, a broken right 

shoulder, and lacerations on his head and chin as a result of a motor vehicle accident while in the 

performance of duty. He stopped work on May 14, 1996.

OWCP accepted the claim for right scapula pain, right knee contusion, rib fracture, right 

rotator cuff tendinitis, post-traumatic headaches, chest wall contusion, and back sprain 

Appellant returned to work in a modified position on October 7, 1997. On November 19, 

1997 he filed a claim for compensation (Form CA-7) for wage loss commencing 

November 5, 1997. After an initial denial of wage-loss benefits, appellant continued to pursue his 

appeal rights. By decision dated May 18, 2001, OWCP accepted his claim for recurrence of 

disability compensation effective November 5, 1997 and paid wage-loss compensation on the daily 

rolls and thereafter on the periodic rolls as of February 24, 2002. 

A work capacity evaluation (Form OWCP-5c) dated February 16, 2015 from

Dr. Stephen P. Katz, an attending pain medicine specialist advised that appellant could return to

full-time sedentary light-duty work with restrictions that included pushing, pulling, and lifting up 

to 25 pounds for 8 hours, and squatting, kneeling, and climbing up to 30 minutes.

In a June 10, 2015 report, Dr. Erich W. Wolf, II, an attending Board-certified

neurosurgeon, diagnosed cervical spondylosis with myelopathy, intervertebral cervical disc 

disorders with myelopathy, and degeneration of the cervical intervertebral disc. He recommended 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence on appeal. 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. 

5 Docket No. 00-1772 (issued November 27, 2000).
3

a computerized tomography (CT) cervical myelogram to better assess osteophytes and nerve root 

impingement prior to pursuing surgical intervention.

On September 15, 2015 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the medical record, and a set of questions, to Dr. Douglas C. Brown, a Board-certified 

orthopedic surgeon, for a second opinion as to whether he had any continuing employment-related 

disability. 

In an October 26, 2015 report, Dr. Brown reviewed the SOAF and medical record. He 

noted a history of the May 13, 1996 employment injury and appellant’s medical background. 

Dr. Brown reported appellant’s physical examination findings and reviewed diagnostic test results. 

He provided an impression of C4-5, C5-6 mild degenerative spondylosis and degenerative disc 

disease, healed right knee sprain, healed lumbar strain, healed right clavicle and scapular fractures 

by history, and chronic headaches, muscular in nature and possibly psychological. 

Dr. Brown advised that appellant could not perform the duties of his rural mail carrier 

position which he described as heavy-duty work. He noted, however, that although appellant was

addicted to Hydrocodone, Soma, and Xanax, he was capable of performing sedentary medium 

work full time with permanent restrictions that included reaching above the shoulder and twisting 

up to 4 hours, 1/2 hour of operating a motor vehicle at work, and 1 hour of operating a motor 

vehicle to and from work due to his Percocet addiction, and pushing, pulling, and lifting up to 35 

pounds for 4 hours. Dr. Brown recommended that he undergo a functional capacity evaluation 

(FCE) and then return to work within identified physical restrictions. On January 12 and 13, 2016 

appellant underwent an FCE with Samuel Forester, a physical therapist. By addendum report dated 

January 27, 2016, Dr. Brown reviewed the January 19, 2016 FCE vocational report and found that 

it demonstrated appellant’s ability to function at a sedentary work level with lifting, carrying, and 

pushing 10 pounds up to 1/3 of the day. He noted that appellant was balancing well up to 1/3 of 

the day and was unable to crouch and work at a low level or above the shoulder. Dr. Brown 

released appellant to return to sedentary light work with the above-noted limitations.

On May 18, 2016 the employing establishment offered appellant a modified temporary 

position for three hours per day, six days per week, effective June 11, 2016. The job title was an

RCA, grade 5, step Z with an hourly salary of $21.40. The job duties consisted of logging in blue 

box and nil bills/regulations highway contract route drivers, hanging express sacks (waist level 

work putting empty sacks on a rack), and office duties (sedentary desk work i.e., computer input, 

reconciling invoices, etc.). Physical requirements were intermittent sitting, standing, and walking 

for three hours, intermittent lifting and pushing no more than 10 pounds for two hours, and 

intermittent simple grasping and reaching for three hours.

The employing establishment, in a May 19, 2016 e-mail, advised that it was unable to 

provide appellant with a permanent job offer and that the availability of hours were limited due to 

the severity of his restrictions. 

In correspondence dated May 25, 2016, appellant rejected the employing establishment’s 

offer of a temporary modified-duty assignment as an RCA. 
4

On June 2, 2016 the employing establishment informed OWCP that appellant was a 

permanent employee. Appellant had worked an average of 32.87 hours per week and had actual 

earnings of $17,615.84 per year. On November 5, 1997 the date his recurrence of disability began, 

he had worked 37.68 hours per week and earned $29,118.94 per year.

By letter dated June 2, 2016, OWCP informed the employing establishment that the offered 

temporary position was not suitable. It explained that appellant was released to return to work 8 

hours per day, 40 hours per week, but the offered position was not for at least half of the total hours 

he was released to work. OWCP further explained that he could not be offered a temporary 

position under section 8106(c) of FECA as the evidence of record did not establish that he was a 

temporary employee on the date of injury. 

In an amended job offer dated June 2, 2016, the employing establishment noted the revised 

work hours as four and one-half hours per day, six days per week. The job duties and physical 

requirements were exactly the same.

On June 16, 2016 appellant again rejected the employing establishment’s offer of a 

temporary modified-duty position.

On June 21, 2016 the employing establishment confirmed to OWCP that the offered 

position remained available. 

By letter dated September 23, 2016, OWCP informed appellant 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. Brown and would have 

paid him $449.40 a week for working 21 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 an October 18, 2016 letter, appellant related that he was not accepting the offered 

assignment due to his medical conditions. He resubmitted Dr. Wolf’s June 10, 2015 report and an 

April 10, 2001 report from Dr. Robert R. Po, a Board-certified orthopedic surgeon and OWCP 

second opinion physician.6

By decision dated November 3, 2016, postmarked November 9, 2016, OWCP reduced 

appellant’s wage-loss compensation, effective November 13, 2016, as he had not accepted the 

temporary limited-duty position offered on June 2, 2016 by the employing establishment. Using

the formula set forth in Albert C. Shadrick7it noted that his salary on the date when he was injured, 

May 13, 1996, was $546.71 per week and the current pay rate for his job and step when injured 

was $787.33, effective August 30, 2016. OWCP found appellant capable of earning $449.40 per

week, the pay rate of a modified RCA. It determined that he had 57 percent wage-earning 

 

6 Dr. Po reported on April 10, 2001 that appellant was totally disabled for work due to the effects of the May 13, 

1996 employment injury.

7 5 ECAB 376 (1953) (codified by regulation at 20 C.F.R. § 10.403).
5

capacity which resulted in an adjusted wage-earning capacity of $235.09 per week. This yielded 

a new compensation rate equal to $934.00 each four weeks. 

In a November 18, 2016 appeal request form, postmarked December 7, 2016, appellant, 

through counsel, requested an oral hearing before an OWCP hearing representative regarding the 

November 3, 2016 OWCP decision, postmarked on November 9, 2016.

8

 

During the July 13, 2017 telephonic hearing, appellant contended that residuals from his 

work-related conditions, as well as the medication he took for them, prevented him from accepting 

the temporary limited-duty RCA position offered to him by the employing establishment. 

Following the July 13, 2017 telephonic hearing, appellant submitted further medical 

evidence. A series of medical records from Dr. Michael W. Dole, a Board-certified physiatrist, 

included a transcript of his deposition taken on May 12, 2017. He noted a history of the May 13, 

1996 employment injury and appellant’s medical treatment. Dr. Dole examined appellant and 

diagnosed cervical radiculopathy, chronic low back pain syndrome, depression, and anxiety. He

advised that appellant’s conditions were due to the accepted work injuries and loss of function. 

Dr. Dole maintained that appellant showed no signs of malingering and that his subjective 

complaints were supported by objective test results. He opined that appellant was unable to return

to his job at the employing establishment or perform any other job because he had residuals of his 

accepted employment-related injuries.

In a report and letter dated June 27, 2017, Dr. James W. Quillin, a psychologist, related 

appellant’s history and discussed findings on physical and mental examination. He provided an 

impression of persisting depressive disorder, chronic pain syndrome, cannabis use, aberrant urine 

drug testing secondary to cannabis use, somatization with anxiety, obsessive compulsive traits, 

and interpersonally distressed pain adjustment classification.

By decision dated September 25, 2017, an OWCP hearing representative affirmed 

OWCP’s November 3, 2016 decision. She found that the medical evidence submitted by appellant 

was insufficient to outweigh Dr. Brown’s opinion. 

LEGAL PRECEDENT

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 

 

8 By decision dated December 20, 2016, OWCP’s Branch of Hearings and Review initially determined that 

appellant’s request for an oral hearing was untimely filed. On January 31, 2017 the Chief Judge of the Branch of 

Hearings and Review found that the December 7, 2016 request was timely filed as the November 3, 2016 decision 

was not mailed until November 9, 2016. 
6

[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.”

9

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.10 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.11

OWCP procedures further advise, “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).”

12

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.13

ANALYSIS

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

effective November 3, 2016 pursuant to section 10.500(a), for refusing a temporary limited-duty 

position.

On May 18, 2016 the employing establishment offered appellant a temporary limited-duty 

assignment as an RCA for three hours per day, six days per week. The written job offer noted 

duties including logging in blue box and nil bills/regulations highway contract route drivers, 

hanging express sacks (waist level work putting empty sacks on a rack), and office duties 

 

9 20 C.F.R. § 10.500(a).

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

(June 2013).

11 Id.

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

13 Id. at Chapter 2.814.9(d).
7

(sedentary desk work i.e., computer input, reconciling invoices, etc.). The assignment required 

intermittent sitting, standing, and walking for three hours, intermittent lifting and pushing no more 

than 10 pounds for two hours, and intermittent simple grasping and reaching for three hours.

After OWCP found that the offered position was not suitable due to the hours of work 

offered, the employing establishment amended the prior job offer on June 2, 2016 to reflect the 

requirement that appellant work four and one-half hours per day, six days per week. The job duties 

and physical requirements remained exactly the same.

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.14

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 June 2016. The 

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

restrictions as provided by Dr. Brown in his October 26, 2015 and January 27, 2016 reports.15 The 

Board finds that the medical restrictions provided by Dr. Brown in these reports reflected 

appellant’s ability to work at the time that the employing establishment offered him the temporary 

limited-duty assignment. Dr. Brown’s report, which is detailed and well rationalized, is entitled 

to the weight of the evidence and establishes that appellant has the ability to perform the offered 

limited-duty employment.16

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

appellant on September 23, 2016 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.17 OWCP 

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

offered position was for four and one-half hours per day and the employing establishment verified 

 

14 See 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).

15 Dr. Brown noted in his October 26, 2015 report that appellant could perform sedentary medium work for eight 

hours per day with permanent restrictions. He could reach above the shoulder and twist up to 4 hours, operate a motor 

vehicle at work for 1/2 hour, operate a motor vehicle to and from work for 1 hour, and push, pull, and lift up to 35 

pounds for 4 hours. After the FCE was performed on January 19, 2016, Dr. Brown reviewed the findings in an 

addendum report of January 27, 2016. He noted that appellant could perform sedentary light work. Appellant could 

lift, carry, and push 10 pounds up to 1/3 of the day and balance well up to 1/3 of the day. He was unable to crouch 

and work at low level or above the shoulder. 

16 See supra note14.

17 G.C., supra note14.
8

that it was unable to provide a job offer for more hours per day due to the severity of appellant’s 

work restrictions.

18

 

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

capacity to perform the offered limited-duty position. In a May 12, 2017 deposition, Dr. Dole, an 

attending physician, diagnosed cervical radiculopathy, chronic low back pain syndrome, 

depression, and anxiety due to the accepted work injuries and appellant’s loss of function. He 

opined that appellant was unable to return to his position at the employing establishment or 

perform any other position because he had residuals of his accepted employment injuries. 

However, this report is of limited probative value regarding appellant’s ability to work because

Dr. Dole did not explain how appellant’s conditions and residuals prevented his return to work in 

the offered limited-duty position. The Board has held that a medical opinion not fortified by 

medical rationale is of diminished probative value.19

On June 10, 2015 Dr. Wolf diagnosed cervical spondylosis with myelopathy, intervertebral 

cervical disc disorders with myelopathy, and degeneration of the cervical intervertebral disc, and 

recommended that appellant undergo a cervical CT myelogram to better asses his cervical 

condition. However, he did not address the relevant issue of whether appellant could perform the 

offered limited-duty employment for four and one-half hours, six days per week, and thus his 

opinion is of limited probative value.20

Likewise, Dr. Quillin’s June 27, 2017 reports are of limited probative value. He provided 

an impression of persisting depressive disorder, chronic pain syndrome, cannabis use, aberrant 

urine drug testing secondary to cannabis use, somatization with anxiety, obsessive compulsive 

traits, and interpersonally distressed pain adjustment classification, but failed to address 

appellant’s ability to perform the duties of the offered limited-duty position.

21

 

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 $449.40 per week. Therefore, OWCP properly reduced his wage-loss compensation,

effective November 13, 2016, pursuant to 20 C.F.R. § 10.500(a) based on his earnings had he 

accepted the temporary limited-duty assignment.

On appeal, counsel contends that Dr. Brown’s opinion cannot constitute the weight of the 

medical opinion evidence as OWCP engaged in “[physician] shopping.” He notes that Dr. Brown 

was the fifth second opinion physician to examine appellant. The Board notes, however, that there 

is no indication of record that any of OWCP’s medical referrals were improper and that OWCP 

 

18 Id.

19 R.P., Docket No. 14-1264 (issued March 9, 2015); F.T., Docket No. 09-0919 (issued December 7, 2009); 

Elizabeth H. Kramm, 57 ECAB 117, 124 (2005); Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 

ECAB 332 (2001) (medical reports not containing rationale on causal relationship are entitled to little probative value).

20 G.C., supra note 14.

21 Id.
9

has the discretion to have a claimant submit to an examination by a physician designated by OWCP 

as frequently and at the times and places as may be reasonably required.22

Counsel further contends on appeal that OWCP erred in discounting Dr. Dole’s deposition 

testimony regarding appellant’s disability and the medical evidence of record which established

that appellant’s medication limited his ability to drive. As discussed above, however, Dr. Dole

failed to provide medical rationale in support of his opinion that residuals of the accepted May 13, 

1996 employment injuries prevented appellant from performing the duties of the offered limitedduty position.

Lastly, counsel asserts that OWCP improperly calculated appellant’s loss of wage-earning 

capacity as his annual salary was $37,776.59 in 1995 and $32,632.77 for four months in 1996, and 

not $28,429.10 as used by OWCP. 

The Board notes that section 8101(4) of FECA defines monthly pay for purposes of 

computing compensation benefits as follows: “[T]he monthly pay at the time of injury, or the

monthly pay at the time disability begins, or the monthly pay at the time compensable disability 

recurs, if the recurrence begins more than six months after the injured employee resumes regular 

full-time employment with the United States, whichever is greater....”

23

 The record documents 

that, on the date of injury and the date disability began, May 13, 1996, he earned $28,429.10 per

year or $546.71 per week based on his base pay as a GS-5, Step Z. While appellant sustained an 

accepted recurrence of disability on November 5, 1997, after returning to modified work on 

October 7, 1997, the recurrence did not occur more than six months after he resumed regular fulltime employment. The Board finds that OWCP properly based its calculations on the $546.71 per 

week pay rate and correctly applied the Shadrick formula to calculate appellant’s loss of wageearning capacity.24

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

effective November 13, 2016 under 20 C.F.R. § 10.500(a) based on his earnings had he accepted 

a temporary limited-duty assignment.

 

22 A.C., Docket No. 12-1114 (issued March 25, 2013); William B. Webb, 56 ECAB 156 (2004).

23 5 U.S.C. § 8101(4).

24 See N.C., Docket No. 18-0172 (issued August 7, 2018). 
10

ORDER

IT IS HEREBY ORDERED THAT the September 25, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 7, 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