United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Loma Linda, CA, Employer

__________________________________________

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Docket No. 19-0241

Issued: August 12, 2019

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 14, 2018 appellant, through counsel, filed a timely appeal from an 

October 29, 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, following the October 29, 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 

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 February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her 

earnings had she accepted a temporary, limited-duty assignment.

FACTUAL HISTORY

On February 9, 2011 appellant, then a 53-year-old medical instrument technician, filed a 

traumatic injury claim (Form CA-1) alleging that on February 1, 2011 she sustained an injury when 

she pulled a chair with a broken wheel while in the performance of duty. OWCP initially accepted 

her claim for lumbar sprain, but later expanded the accepted conditions to include sciatica and 

displacement of lumbar intervertebral disc without myelopathy. Appellant later stopped work and 

received wage-loss compensation on the periodic rolls commencing June 29, 2014.

4

On August 30, 2016 the employing establishment offered appellant a light-duty 

assignment. The assignment was for full-time work and had an annual salary of $61,036.00. The 

assignment’s physical requirements included sitting and using a computer for data entry and 

conducting research. The position allowed for the ability to reposition as needed for comfort and 

required lifting, pushing, and pulling up to 10 pounds. It did not require overhead use of the arms, 

bending, squatting, or twisting.

Appellant did not accept the offered position and she submitted reports from Dr. Babak 

Khamsi and Dr. Thomas Haider, both Board-certified orthopedic surgeons, who provided opinions 

that she was temporarily totally disabled. 

By decision dated November 16, 2016, OWCP terminated appellant’s wage-loss 

compensation effective August 30, 2016 pursuant to 20 C.F.R. § 10.500(a) based on her earnings 

had she accepted the limited-duty assignment. However, by decision dated August 31, 2017, a 

representative of OWCP’s Branch of Hearings and Review reversed OWCP’s termination action 

due to OWCP’s failure to provide her with a notice of proposed termination. 

In September 2017, OWCP referred appellant to Dr. Steven M. Ma, a Board-certified 

orthopedic surgeon, for a second opinion examination and requested that he provide an opinion on 

her ability to work. 

In an October 18, 2017 report, Dr. Ma reported his findings on physical examination and 

noted that they did not support appellant’s severe pain complaints nor did they warrant additional 

surgery. He concluded that the examination findings, as well as the results of a July 20, 2017 

 

4 Appellant has a prior claim, filed under a separate claim number, for an August 27, 2009 injury which was 

accepted for cervical and lumbar strains. She also filed claims for March 11 and July 30, 2003 injuries which were 

administratively handled by OWCP due to no lost time from work. Appellant underwent OWCP-approved low back 

surgery on January 23, 2014 which included decompression/fusion procedures between the L3 and S1 disc levels. 
3

functional capacity evaluation, showed that she could currently perform the duties of the lightduty assignment offered by the employing establishment on August 30, 2016. 

On December 1, 2017 the employing establishment again offered appellant a light-duty 

assignment.5 In a December 1, 2017 letter, a human resources specialist indicated that the medical 

evidence of record showed that she could perform restricted work in a light-duty assignment. The 

specialist indicated that the light-duty assignment was based on appellant’s medical restrictions as 

detailed by Dr. Ma. She noted that the offer served as assurance that appellant’s duties during her 

period of recovery would not exceed the physical requirements outlined in the offer. An attached 

document for the administrative support position bore the heading “Veterans Health 

Administration -- Light[-]Duty Assignment” and described the duties of the assignment which 

were mostly clerical in nature. The assignment was for full-time work and had an annual salary 

of $61,036.00. The assignment’s physical requirements included sitting and using a computer for 

data entry and conducting research. The position allowed the ability to reposition as needed for 

comfort and required lifting, pushing, and pulling up to 10 pounds. It did not require overhead use 

of the arms, bending, squatting, or twisting. 

On December 6, 2017 the employing establishment advised OWCP that appellant had 

refused the offered light-duty assignment and that she had indicated that she would obtain work 

restrictions from her attending physicians. On December 12, 2017 OWCP received an undated 

report from Dr. Khamsi who indicated that appellant could only perform the light-duty position 

for six hours per day with frequent breaks.6

In a December 12, 2017 letter, OWCP advised appellant that it proposed to terminate her 

wage-loss compensation pursuant to 20 C.F.R. § 10.500(a) based on her earnings had she accepted 

a temporary, limited-duty assignment. It noted that it had been advised that she accepted a 

“temporary light[-]duty assignment” offered by the employing establishment on December 1, 

2017, but that she, on her own accord, had limited her performance of work to six hours per day 

effective December 12, 2017. OWCP indicated that the weight of the medical evidence, 

represented by Dr. Ma’s opinion, showed that appellant could perform the temporary assignment

as offered. It noted that her case would be held open for 30 days to afford her an opportunity to 

accept the full assignment and report to duty, or arrange for a report date without penalty. If 

appellant chose not to accept “this assignment in full,” she was required to provide a written 

explanation of her reasons during the allotted period. OWCP noted, “If you decline to report to 

the temporary light[-]duty assignment, and fail to demonstrate that the declination is justified 

(within the allotted 30 days), your right to wage[-]loss compensation will be terminated 

indefinitely since this light[-]duty assignment has no projected end date.”

 

5 The assignment would be available to appellant on December 6, 2017 and it appears that the assignment had the 

same duties/physical requirements as the assignment that was offered to her on August 30, 2016. The Board notes 

that appellant was receiving wage-loss compensation on the periodic rolls at the time the employing establishment 

offered the light-duty assignment on December 1, 2017. 

6

It appears that appellant attempted to perform the offered light-duty position for a brief period. However, the 

precise extent of this attempt is unclear from the case record. 
4

In a January 8, 2018 letter, counsel argued that appellant had not completely abandoned 

the light-duty assignment. She asserted that the reports of attending physicians showed that 

appellant could not perform the assignment for eight hours per day.

Appellant submitted several reports from attending physicians, including a December 26, 

2017 report from Dr. James I. Rho, a Board-certified anesthesiologist, who advised that she

reported that she had returned to work, but could not tolerate an eight-hour work shift. Dr. Rho

recommended that she work six hours per day. In a January 9, 2018 report, Dr. Haider noted that 

appellant had reported her back had worsened due to prolonged sitting at work and he indicated 

that she was temporarily totally disabled. On February 6, 2018 he noted her complaints of back 

pain and indicated that she could not return to work. Dr. Haider advised that appellant was 

awaiting surgery intended to relieve her intense lower back pain.

By decision dated February 16, 2018, OWCP terminated appellant’s wage-loss 

compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her 

earnings had she accepted a temporary, limited-duty assignment. It indicated that the weight of 

the medical evidence, represented by Dr. Ma’s opinion, showed that she could perform the full 

time light-duty assignment. 

On March 13, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing, held on 

August 14, 2018, counsel argued that the reports of attending physicians showed that appellant 

could not perform the offered light-duty assignment on a full-time basis. Appellant submitted 

additional reports of Dr. Khamsi and Dr. Haider which discussed her medical condition in late2018. 

By decision dated October 29, 2018, OWCP’s hearing representative affirmed OWCP’s 

February 16, 2018 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.7

OWCP regulations at 20 C.F.R. § 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 

 

7 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

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.”

8

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.9 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.10

OWCP’s 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 calculation (just as if he/she had accepted the lightduty assignment).”

11

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her 

earnings had she accepted a temporary, limited-duty assignment.

OWCP has terminated appellant’s wage-loss compensation on February 16, 2018 pursuant 

to 20 C.F.R. § 10.500(a). The Board is unable to determine from the current record whether its 

termination of her benefits is proper under section 10.500(a) as it cannot be established whether 

she had been offered a temporary or a permanent employment position. OWCP procedures require 

that, when an employing establishment provides an alternate employment position to a partially 

disabled employee who cannot perform his or her date-of-injury position, it must be determined 

whether the offered position is permanent or temporary in nature.12 If the employment offered to 

an employee on the periodic rolls is temporary and the employee does not accept the position 

section 10.500(a) applies.13 However, if the offered employment is permanent in nature and the 

employee does not accept the position the penalty provisions under 5 U.S.C. § 8106(c) apply.14

 

8 20 C.F.R. § 10.500(a).

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

(June 2013).

10 Id.

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

12 Id. at Chapter 2.814.4.

13 Supra note 8.

14 See C.W., Docket No. 18-1779 (issued May 6, 2019) (termination under 20 C.F.R. § 10.500(a) reversed given 

that it was unclear whether the assignment offered to the claimant on the periodic rolls was temporary in nature).
6

On December 1, 2017 the employing establishment provided appellant a written job offer 

as a full-time modified administrative assistant beginning December 6, 2017. The document 

effectuating the offer bore the heading “Veterans Health Administration – Light[-]Duty 

Assignment.” The assignment was for an administrative assistant with full-time work and had an 

annual salary of $61,036.00. The cover letter for the written job offer, completed by a human 

resources specialist for the employing establishment, provided notice that the offer served as 

assurance that appellant’s duties during her period of recovery would not exceed the physical 

requirements outlined in the offer. However, the specialist did not provide an indication as to 

whether the offered assignment was temporary or permanent and her notice is vague in the absence 

of further clarifying documentation in the case record. When OWCP issued its notice of proposed 

termination of wage-loss compensation on December 12, 2017, it noted that appellant had limited 

her work to six hours per day in the “temporary light-duty assignment” provided by the employing 

establishment.15 The Board finds, however, that there is no documentation of record supporting 

the status of the offered assignment as temporary in nature. 

Appellant was a recipient of wage-loss compensation on the periodic rolls at the time of 

the December 1, 2017 offer of employment. Therefore, to terminate her wage-loss compensation 

pursuant to 20 C.F.R. § 10.500(a), OWCP had the burden of proof to establish that the employment 

position was temporary in nature. This determination is critical as a permanent job offer would 

require OWCP to terminate benefits in compliance with the strict provisions of 5 U.S.C. § 8106(c). 

As it cannot be established that the assignment offered to appellant was a temporary position, 

OWCP has not met its burden of proof to terminate wage-loss compensation pursuant to section 

10.500(a).16

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her 

earnings had she accepted a temporary, limited-duty assignment.

 

15 Although OWCP characterized the assignment as a “temporary light-duty assignment,” it also indicated in its 

December 12, 2017 notice that “this light[-]duty assignment has no projected end date.”

16 See C.W., supra note 14.
7

ORDER

IT IS HEREBY ORDERED THAT the October 29, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board