United States Department of Labor

Employees’ Compensation Appeals Board

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R.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Maria, CA, Employer

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Docket No. 19-1605

Issued: May 28, 2020 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 23, 2019 appellant, through counsel, filed a timely appeal from a June 19, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards docketed the appeal as No. 19-1605.

On January 31, 1998 appellant, then a 30-year-old carrier, filed an occupational disease 

claim (Form CA-2) attributing her lower back, hip, knee, and ankle pain to sorting and carrying 

mail. OWCP accepted the claim for right knee medial meniscus tear, left knee lateral meniscus 

tear, bilateral hips and knee sprain, and greater trochanteric bursitis. Appellant had periods of 

 

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 The Board notes that, following the June 19, 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 additional 

evidence for the first time on appeal. Id.
2

intermittent disability before stopping work on July 31, 2004. OWCP paid appellant wage-loss 

compensation on the periodic rolls for temporary total disability effective August 7, 2005. 

Appellant returned to modified work for four hours per day on March 16, 2016 and OWCP paid 

wage-loss compensation on the supplemental rolls commencing that date. On April 6, 2016 

appellant reduced her work hours to three hours per day, four days per week. 

On January 20, 2017 the employing establishment offered appellant a limited-duty position 

as a modified city letter carrier. Appellant refused the job offer that day indicating that it did not 

accommodate her work restrictions. 

On April 29, 2017 appellant filed a claim for intermittent compensation (Form CA-7) 

requesting wage-loss compensation from March 6 through April 28, 2017. The employing 

establishment advised that work was available within her restrictions for eight hours per day. It 

requested medical verification for the reduced work hours prior to payment.

In a letter dated May 15, 2017, OWCP informed appellant that the record established that 

she had declined to accept an offered position. It informed her that under 20 C.F.R. § 10.500(a)

compensation or total wage-loss compensation was not payable to claimants who declined an 

offered position within their work restrictions for the duration of the assignment. OWCP informed 

appellant that she was expected to accept the position and report for work. It afforded appellant

30 days to report to the assigned position or show that her refusal was justified. 

A supplemental rolls payment record dated May 15, 2017 reflects that OWCP authorized 

payment of intermittent wage-loss compensation for the period March 6 through April 28, 2017. 

On July 11, 2017 appellant filed a claim for intermittent wage-loss compensation (Form 

CA-7) for the period May 1 through June 23, 2017. The employing establishment advised that 

work was available within her restrictions for eight hours per day. It requested medical verification 

for the reduced work hours prior to payment. 

By decision dated July 24, 2017, OWCP denied appellant’s April 29, 2017 claim for 

intermittent wage-loss compensation for the period March 6 through April 28, 2017.

3

 It noted that 

she had declined an offer of temporary light duty, which it found to be suitable as it accommodated 

her work restrictions. 

On December 20, 2017 counsel requested reconsideration. By decision dated 

December 28, 2017, OWCP denied reconsideration finding the evidence insufficient to warrant a 

merit review.

On February 22, 2018 appellant, through counsel, requested reconsideration and submitted 

a February 9, 2018 report from her treating physician.

On March 20, 2019 OWCP referred appellant for impartial medical examination with

Dr. Mitchel Silverman, a Board-certified orthopedic surgeon, to resolve the conflict in the medical 

 

3 Following the July 24, 2017 decision, appellant continued to submit Form CA-7s claiming intermittent 

compensation.
3

opinion evidence between a second opinion physician and her treating physician regarding her 

work restrictions and work capacity. In a May 13, 2019 report, Dr. Silverman concluded that 

appellant was capable of work eight hours per day with restrictions and opined that the January 20, 

2017 modified temporary light-duty job offer was within her work restrictions. 

By decision dated June 19, 2019, OWCP denied modification of the July 24, 2017 decision. 

It noted that the July 24, 2017 decision terminated appellant’s wage-loss compensation pursuant 

to 20 C.F.R. § 10.500(a) as it found the January 20, 2017 modified temporary job offer 

accommodated her work restrictions. OWCP found that Dr. Silverman’s opinion constituted the 

special weight of the evidence regarding her work restrictions and ability to perform the 

January 20, 2017 temporary job offer. 

Having duly reviewed the case record submitted by OWCP, the Board finds that this case 

is not in posture for a decision as OWCP, in its June 19, 2019 decision, failed to correctly identify 

the underlying issue presented in the July 24, 2017 decision, which was the denial of appellant’s 

claim for intermittent wage-loss compensation from March 6 through April 28, 2017. 

OWCP’s regulation at 20 C.F.R. § 10.500(a) specifically provides that 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 light duty was available. 

In its July 24, 2017 decision, OWCP denied appellant’s claim for intermittent wage-loss 

compensation for the period March 6 through April 28, 2017. At the time of the July 24, 2017

decision, appellant was not on the periodic rolls for temporary total disability, she filed Form 

CA-7s claiming wage-loss compensation for intermittent periods of disability for the period 

March 6 through June 23, 2017, and had been receiving intermittent wage-loss compensation on 

the supplemental rolls. Furthermore, on May 15, 2017 the record reflects that OWCP authorized 

payment of intermittent wage-loss compensation for the period March 6 through April 28, 2017. 

OWCP phrased the underlying issue as whether it had properly terminated wage-loss 

compensation under section 10.500(a). As noted above, OWCP did not terminate appellant’s 

wage-loss compensation under section 10.500(a), but instead denied her claim for intermittent 

wage-loss compensation for the period March 6 through April 28, 2017 because appellant had not 

accepted the offered temporary position for eight hours of work per day with restrictions. 

In deciding matters pertaining to a given claimant’s entitlement to compensation benefits, 

OWCP is required by statute and regulation to make proper findings of fact.4 Its procedure further 

specifies that a final decision of OWCP should be clear and detailed so that the reader understands 

 

4 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall 

contain findings of fact and a statement of reasons.
4

the reasons for the disallowance of the benefit.5 These requirements are upheld by Board 

precedent.6 

Accordingly, the Board will set aside the June 19, 2019 decision and remand the case for 

OWCP to make findings of facts and provide reasons for its decision pursuant to the standards 

set forth in 20 C.F.R. §§ 10.500(a) and 10.126. After such further development as OWCP deems 

necessary it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the June 19, 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: May 28, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

6 See James D. Boller, Jr., 12 ECAB 45, 46 (1960); see also J.N., Docket No. 17-1408 (issued December 11, 2017); 

R.B., Docket No. 16-1696 (issued September 7, 2017).