United States Department of Labor

Employees’ Compensation Appeals Board

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S.M., Appellant

and

U.S. POSTAL SERVICE, PLYMOUTH POST 

OFFICE, Plymouth, PA, Employer

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Docket No. 20-1535

Issued: April 7, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 17, 2020 appellant filed a timely appeal from an April 28, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

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

compensation, effective April 24, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her earnings 

had she accepted a temporary limited-duty assignment.

FACTUAL HISTORY

On January 9, 2018 appellant, then a 25-year-old city carrier assistant (CCA), filed a 

traumatic injury claim (Form CA-1), alleging that she injured her right ankle on January 8, 2018 

 

1 5 U.S.C. § 8101 et seq.
2

when she slid on ice while descending porch steps while in the performance of duty. She stopped 

work on January 8, 2018 and was treated in a hospital emergency department.2 OWCP accepted 

the claim for a right ankle contusion and right ankle sprain. It subsequently expanded its 

acceptance of the claim to include instability of the right ankle. 

Dr. Michael P. Banas, a Board-certified orthopedic surgeon, provided reports from 

February 2 through March 29, 2018, who diagnosed a right ankle contusion with bony 

inflammation of the distal tibia, right ankle lateral ligamentous sprain, and right ankle midfoot 

sprain/contusion.3 He noted that physical therapy and an ankle brace had improved appellant’s 

symptoms.

4

 Dr. Banas held appellant off from work. 

On June 12, 2018 Dr. John A. Lynott, Board-certified in orthopedic surgery and orthopedic 

sports medicine, performed an OWCP-authorized right ankle arthroscopy with debridement, open 

peroneal tendon exploration and debridement, and open lateral ligament reconstruction.5 

Appellant remained off work. OWCP paid her wage-loss compensation for work absences 

commencing June 11, 2018. 

On January 9, 2019 OWCP obtained a second opinion report from Dr. Peter A. Feinstein, 

a Board-certified orthopedic surgeon. Dr. Feinstein reviewed medical records and a statement of 

accepted facts (SOAF). On examination he noted multiple surgical scars on right foot, sensory 

changes in the right lateral foot, and an antalgic gait. Dr. Feinstein returned appellant to full-time 

sedentary duty with restrictions of no standing, squatting, kneeling, or climbing, and no walking 

other than bathroom breaks and entering and leaving the premises. In an April 3, 2019 addendum 

report, he clarified that appellant was physically able to drive a motor vehicle to work and that his 

work restrictions were temporary lasting 12 to 18 months.

6

 

2

January 12, 2018 right ankle, foot, and hip x-rays were negative for fracture and dislocation. A January 18, 2018 

magnetic resonance imaging (MRI ) scan of appellant’s right ankle demonstrated contusions of the distal tibia, talus, 

calcaneus, and cuboid bones, with no fracture or internal derangement of the ankle joint. 

3 A March 21, 2018 MRI scan of the right ankle demonstrated contusions of the talus, calcaneus, improving, less 

edema, tenosynovitis of the flexor hallucis longus tendon, flexor digitorum longus tendon, and tibialis posterior 

tendon, and edema of the fibulocalcaneal ligament suggesting a partial tear.

4 Appellant participated in physical therapy treatments from February through May 2018. 

5 Appellant participated in physical therapy treatments from July 2018 through April 2019. 

6 On December 3, 2018 OWCP offered appellant a position as a modified CCA at the sedentary physical demand 

level. The job required answering telephones, filing, stamping envelopes, processing box mail, and unspecified duties 

within her restrictions. Appellant declined the offer on December 14, 2018, and voluntarily resigned from the 

employing establishment that day. By proposed notice dated April 30 and finalized May 31, 2019, OWCP terminated 

her wage-loss compensation effective May 31, 2019 under 20 C.F.R. § 10.500(a) as she declined to accept the offered 

modified-duty assignment. On June 14, 2019 appellant requested reconsideration. She asserted that she resigned 

from the employing establishment due to managerial harassment. By decision dated September 11, 2019, OWCP 

vacated the May 31, 2019 decision and reinstated wage-loss compensation benefits. It found that the December 3, 

2018 job offer did not adequately describe the assigned duties.
3

In a January 17, 2019 report, Dr. Lynott found the offered position suitable work within 

appellant’s medical limitations. He returned her to work effective December 14, 2018. 

In a March 25, 2019 report, Dr. Lynott noted that appellant had experienced right ankle 

swelling after recent long walks and had somewhat limited inversion and eversion of the right 

ankle.

In a September 30, 2019 letter, the employing establishment advised that appellant had 

begun private sector employment in July 2019 as a mailroom clerk and backup driver for a health 

care technology company.

In an October 28, 2019 report, Dr. Lynott noted that appellant felt unable to deliver mail 

due to continued discomfort and paresthesias in the right foot and ankle. On examination he 

observed limited range of right ankle motion with full strength. Dr. Lynott indicated that 

“extended walking as required to deliver mail” would result in incomplete healing. He completed 

a work capacity evaluation -- musculoskeletal conditions (Form OWCP-5c) returning appellant to 

full-time medium duty with squatting and climbing limited to four hours. Dr. Lynott also noted a 

10-pound weight restriction for climbing and a 15-pound weight restriction for squatting.

On October 28, 2019 OWCP referred appellant, the medical record, and updated SOAF to

Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, for a second opinion regarding 

whether appellant continued to have residuals of the accepted injury and if she could return to fullduty work. In a November 19, 2019 report, Dr. Draper noted his review of the medical record and 

SOAF. On examination of the right ankle, he found well-healed surgical scars, 15 degrees 

extension, 40 degrees flexion, 20 degrees inversion, 10 degrees eversion, and a negative anterior 

Drawer sign. Dr. Draper diagnosed a right ankle sprain, right ankle instability, and postsurgical 

status. He opined that appellant had reached maximum medical improvement (MMI), but she 

remained symptomatic and her accepted conditions had not completely resolved. Dr. Draper found 

appellant able to perform modified-duty work with standing and walking for up to four hours, 

pushing and pulling up to six hours, and lifting limited to 50 pounds occasionally and 25 pounds 

frequently. 

On January 23, 2020 OWCP reduced appellant’s wage-loss compensation to zero effective 

July 8, 2019, as she no longer had “any disability as defined in 20 C.F.R. § 10.5(f).” It found that 

her actual private sector earnings of $475.98 a week as a mailroom clerk/backup driver exceeded 

the wages for her job and step as a CCA when injured of $401.94 a week. 

On January 28, 2020 the employing establishment offered appellant a temporary light-duty 

assignment as a CCA, casing mail/centralized delivery up to four hours, curbside delivery up to 

six hours, and park and loop delivery up to four hours. The physical requirements were listed as 

sitting/driving up to six hours, walking and standing up to four hours, lifting and carrying up to 25 

pounds frequently and 50 pounds occasionally up to six hours. The position had a variable 

schedule of 33 to 40 hours a week, with wages of $570.24 to $691.20 a week. Appellant refused

the position and did not report for duty.

In a notice of proposed termination dated March 23, 2020, OWCP proposed to terminate 

appellant’s wage-loss compensation in accordance with 20 C.F.R. § 10.500(a) based on her refusal 
4

of the January 28, 2020 temporary light-duty position. It advised appellant that it had reviewed 

the work restrictions provided by Dr. Draper and found that his 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, he “would not be entitled to ongoing wage-loss 

compensation.” 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. Appellant did not 

respond.

In an April 24, 2020 e-mail, the employing establishment confirmed that the offered 

position remained open and available.

By decision dated April 28, 2020,7 OWCP finalized the March 23, 2020 proposed notice 

of termination and terminated appellant’s wage-loss compensation, effective April 24, 2020, 

because she failed to accept the January 28, 2020 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. Draper, 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 April 24, 2020 the employing establishment confirmed that the assignment 

remained available. As appellant would have sustained no wage loss had she accepted the 

assignment, OWCP determined that she was not entitled to wage-loss compensation; however, her 

medical benefits and entitlement to a schedule award were unaffected.

LEGAL PRECEDENT

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

termination or modification of compensation benefits.8

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.

“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 

 

7 On its face, OWCP’s decision is dated both April 24, 2020 and April 28, 2020. The decision was imaged into 

the electronic case record on April 28, 2020.

8 D.K., Docket No. 19-1178 (issued July 29, 2020); S.F., 59 ECAB 642 (2008).
5

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’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.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

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s 

entitlement to wage-loss compensation, effective April 24, 2020. 

The record indicates that the January 28, 2020 job offer was temporary and in writing. It 

therefore comported with the procedural requirements of 20 C.F.R. § 10.500(a).12

The evidence of record establishes that, as of April 24, 2020, the date OWCP terminated 

appellant’s wage-loss compensation, there was a conflict of medical opinion evidence between

Dr. Draper, OWCP’s second opinion orthopedic surgeon, and appellant’s physician Dr. Lynott, a 

treating orthopedic surgeon, as to whether appellant had the ability to perform the duties of the 

offered temporary modified rural carrier position.13

Dr. Lynott began treating appellant in June 2018 and on June 12, 2018 performed 

authorized right ankle arthroscopy with open lateral ligament reconstruction. He initially held her 

off work, and on December 14, 2018, returned her to modified work. In an October 28, 2019 chart 

note, Dr. Lynott indicated that “extended walking as required to deliver mail” would result in 

incomplete healing of the accepted injury. In an accompanying work capacity evaluation, he found 

appellant able to perform full-time sedentary or medium level work with weight limitations for

climbing and squatting.

 

9 20 C.F.R. § 10.500(a).

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

(June 2013).

11 Id.

12 Id.

13 F.R., Docket No. 20-0789 (issued December 1, 2020); D.K., supra note 8.
6

In contrast, in his November 19, 2019 report, Dr. Draper opined that appellant could 

perform full-time modified duty with standing and walking up to four hours and pulling and 

pushing up to six hours. This difference of opinion is crucial as the offered modified position 

required walking and standing for up to four hours a day. Dr. Draper found appellant able to 

perform these duties, whereas Dr. Lynott opined that she could not.

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

opinions of Dr. Lynott and Dr. Draper as to whether appellant could perform the duties of the 

offered position on April 24, 2020, the effective date of the termination of her wage-loss 

compensation. Therefore, OWCP has not met its burden of proof to terminate appellant’s wageloss compensation as it should have referred her for an impartial medical evaluation to resolve the 

conflict prior to a termination of wage-loss compensation benefits, pursuant to 5 U.S.C. § 8123(a). 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective April 24, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her 

earnings had she accepted a temporary limited-duty assignment.

ORDER

IT IS HEREBY ORDERED THAT the April 24, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board