United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.K., Appellant

and

U.S. POSTAL SERVICE, GREENSBORO 

PROCESSING & DISTRIBUTION CENTER, 

Greensboro, NC, Employer

__________________________________________

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Docket No. 19-1178

Issued: July 29, 2020

Appearances: Case Submitted on the Record

Erik B. Blowers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 2, 2019 appellant, through counsel, filed a timely appeal from November 13 

and 28, 2018, and April 24, 2019 merit decisions 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 April 24, 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

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective November 14, 2018, pursuant to 20 C.F.R. § 10.500(a); and 

(2) whether appellant has met his burden of proof to establish a recurrence of disability, 

commencing September 24, 2018, causally related to his accepted June 3, 2016 employment 

injury.

FACTUAL HISTORY

On June 28, 2016 appellant, then a 38-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that he developed median mononeuropathy, lumbosacral and 

cervical radiculopathy, and Achilles tendinitis due to factors of his federal employment, including 

constant standing, walking, squatting, lifting, pushing, and pulling. He indicated that he first 

became aware of these conditions on June 3, 2016 and realized that they were related to his federal 

employment on June 28, 2016. On April 25, 2017 OWCP accepted cervical and lumbar 

radiculopathy as work-related conditions. It thereafter paid retroactive compensation on the 

supplemental rolls commencing June 3, 2016, and placed appellant on the periodic rolls effective 

April 30, 2017.

On November 1, 2017 OWCP accepted laceration of left hand and concussion with loss of 

consciousness of unspecified duration.4

In a letter dated October 31, 2017, Dr. Rebecca S. Valla, a Board-certified psychiatrist, 

noted that she first saw appellant on September 21, 2017 and indicated that his presenting problem

was depression which, she opined, was related to his medical disability. She noted a history of 

cervical and lumbar radiculopathy caused by lifting, twisting, and pushing required in his job and 

the July 16, 2017 fall when he sustained laceration on his forehead and a concussion. Dr. Valla

described his medical treatment history and complaints of continued post-concussive symptoms 

of episodic headaches, photosensitivity, irritability, and anxiety. She advised that on mental status 

examination appellant had a dysphoric and tearful affect, and his mood was dysthymic and 

hopeless. Dr. Valla diagnosed major depression, recurrent, moderate and referred him to a 

psychotherapist. She opined that appellant developed a consequential emotional condition from 

his employment injuries of lumbosacral radiculopathy, foraminal stenosis, and multilevel facet 

degenerative change. Dr. Valla indicated that his lower leg weakness and pain were the focus of 

emotional and psychological distress, which precluded him from resuming his normal 

employment.

A November 1, 2017 functional capacity evaluation (FCE) was suspended due to left lower 

extremity weakness, client safety, and risk of falling. The report was dated August 29, 2017. 

 

4 Appellant fell at home on July 16, 2017 when his left leg gave way due to back pain and he fell through a glass 

door. He was seen that day in an emergency room and headache and concussion without loss of consciousness were 

diagnosed. A computerized tomography (CT) scan of the head that day demonstrated no acute abnormalities. On 

August 24, 2017 Dr. Christopher Morris, a Board-certified neurologist, noted a history that appellant had a fall at 

home with subsequent post-concussion symptoms. In reports dated March 29 to September 27, 2017, Dr. Andreas 

Runheim, Board-certified in neurology, noted complaints of neck, low back, and left leg pain. Following neurological 

examination, he diagnosed cervical and lumbosacral radiculopathy, acute left carpal tunnel syndrome, neck pain, 

paresthesia, and hypoesthesia of skin. 
3

However, after several cancellations, the FCE was scheduled for November 1, 2017 and signed by 

a physical therapist on November 2, 2017.

On a work capacity evaluation (Form OWCP-5c), Dr. Seth Jaffe, an osteopath, noted that 

he had reviewed the report regarding the suspended FCE. He advised that, while appellant could 

not perform his usual job, he could work eight hours of sedentary duty daily with physical 

restrictions. 

In April 2018 OWCP referred appellant to Dr. Shervin Eshraghi, a Board-certified 

neurologist, for a second opinion examination. In a report dated May 1, 2018, Dr. Eshraghi noted 

his review of the medical record and appellant’s complaints of left leg numbness, tingling, and 

weakness and left inguinal pain. He described examination findings, noting that strength was 5/5 

in both upper extremities and the right lower extremity, but diminished in the left lower extremity. 

Dr. Eshraghi reported that appellant grimaced and verbalized significant discomfort when moving 

his left leg for testing. Fasciculation, atrophy, resting tremor, bradykinesia, and rigidity were not 

present, and sensation to pinprick, cold, vibration, and proprioception were intact. Appellant could 

not perform heel to shin rises on the left due to pain, and his gait was noted to be highly antalgic. 

Dr. Eshraghi indicated that appellant used a cane for stabilization, that he complained of extreme 

discomfort and tingling when taking steps, and that he was quite uncoordinated with several near 

falls without using his cane. He saw no obvious difficulty with dorsiflexion and plantar flexion 

when walking, but indicated that appellant could not do tandem gait. Romberg sign was negative, 

and straight leg raise testing was positive at 45 degrees on the left with pain shooting down the 

posterior thigh. There was no Babinski or Hoffman’s sign, and joints appeared normal without 

swelling, erythema, or tenderness. 

In answer to specific OWCP questions, Dr. Eshraghi advised that appellant had no 

significant objective residuals of his prior concussion, and that his symptoms related to postconcussive syndrome had either resolved or were well controlled with treatment. He opined that 

appellant was capable of working in a sedentary job where he did not have to do lifting. 

Dr. Eshraghi noted that appellant’s history and examination were suggestive of prominent 

lumbosacral radiculopathy, but indicated that appellant’s behavior suggested some embellishment 

of his left leg pain and weakness, out of proportion to what one would expect to see based on his 

preserved reflexes and imaging findings. He noted that appellant’s gait was somewhat inorganic 

and had some features inconsistent with extreme foot drop and plantar flexion weakness, which he 

observed when appellant, was sitting. Dr. Eshraghi suggested that, therefore, there was a 

component of malingering. He advised that appellant had reached maximum medical 

improvement (MMI) with regard to the concussion, noting that appellant’s infrequent headaches 

were easily controlled without prescription medications. Dr. Esraghi observed that appellant had 

no cognitive deficits, and that his irritability and sleep disturbances were being addressed 

appropriately and effectively with medication. He further advised that appellant had not reached 

MMI for his lumbar radiculopathy, noting that he had not responded to physical therapy, rest, 

medication, epidural steroids, or trigger point injections. Dr. Esraghi indicated that a repeat 

electrodiagnostic study by a different neurologist would be reasonable to see if prior findings could

be replicated and/or if it showed progression or improvement from prior findings, noting that this 

would help separate some of the real underlying pathology from appellant’s somatization 

component. He concluded by indicating that, if there were convincing, ongoing electrical findings 

related to severe radiculopathy, then surgical intervention could be warranted. Alternatively, if 
4

not, then Dr. Esraghi would say that appellant’s examination was discordant with imaging and 

electrodiagnostics, he would be considered to be at MMI. 

In April 2018 OWCP also referred appellant to Dr. David M. Susco, a Board-certified 

psychiatrist, for a second-opinion evaluation regarding the emotional conditions. In a report 

received by OWCP on May 16, 2018,5 Dr. Susco described findings from a May 8, 2018 

examination. He noted his review of the medical record and appellant’s complaint of back and leg 

pain, and described the July 16, 2017 fall. Dr. Susco indicated that appellant reported that his 

physical condition had changed his life, leaving him unable to do things he previously enjoyed. 

He performed a mental status examination and diagnosed major depression. Dr. Susco opined that

the diagnosed depression had developed as a consequence of pain due to the employment injury 

that appeared to be successfully treated with medication. He concluded that appellant was not 

disabled due to his psychiatric condition, but that he could not return to his previous job. Dr. Susco

recommended retraining for gainful employment.

On May 29, 2018 OWCP expanded the acceptance of appellant’s claim to include major 

depressive disorder, recurrent, moderate. 

On June 13, 2018 the employing establishment forwarded a job offer dated May 25, 2018

in which it offered appellant a position as a fulltime modified mail processing clerk, effective 

June 2, 2018. The offer listed sedentary physical requirements. Appellant did not respond to the 

job offer.

On June 4, 2018 OWCP notified appellant that, based on the opinion of Dr. Eshraghi, it 

proposed to terminate his medical benefits for the accepted concussion condition. It afforded 

appellant 30 days to submit additional evidence and argument if he disagreed with the proposed 

termination of medical benefits for this condition. 

In a letter dated June 7, 2018, Dr. Valla noted seeing appellant that day. She opined that,

based on her evaluation of appellant’s functioning, appellant could not work at any job at that time,

and she could not predict if or when he would be able to work again.

The employing establishment again offered appellant the modified mail processing clerk 

position on July 9, 2018, effective July 23, 2018.6 The job offer indicated that the assignment 

would remain within the physical restrictions furnished by appellant’s treating physician and 

advised him not to exceed the restrictions. It noted that the assignment was currently available 

and was subject to revision based on changes in his physical restrictions and/or the availability of 

adequate work. It noted that, if a revision were necessary, he would be given a revised written 

modified assignment. 

 

5 The report contains a typographical error. It is dated October 19, 2017, but reports that the examination was 

performed on May 8, 2018. 

6 The initial offer did not include days off. This was corrected in the offer effective July 23, 2018. The duties of 

this modified assignment were to monitor web cameras to determine the number of customers in line for eight hours, 

record and track wait time in line for eight hours, contact customers via e-mail and telephone for eight hours, and light 

data input, and answering telephone calls for eight hours. The physical requirements were a sedentary position, 

speaking on the telephone for eight hours. He could sit and stand as needed, no lifting was required, and he would 

use a computer mouse and do light data input. 
5

On July 18, 2018 appellant, through counsel, informed OWCP that appellant was unable 

to accept the offered position due to medical restrictions of his accepted work injuries. He 

submitted a July 16, 2018 report in which Dr. Tuan Huynh, a family medicine specialist, noted 

that appellant suffered from multiple disc bulges in his lower back and that, due to his inability to 

sit or stand for an extended period, he could not accept the current work assignment.

By decision dated July 23, 2018, OWCP finalized the termination of appellant’s medical 

benefits for the accepted concussion condition.

7

In a letter dated August 6, 2018, OWCP advised appellant of its determination that the 

modified mail processing clerk position offered by the employing establishment was suitable based 

on the opinions of Dr. Eshraghi and Dr. Susco. It noted that it had been informed by the employing 

establishment that the position remained available and advised him that, pursuant to 5 U.S.C. §

8106(c)(2) of FECA, his wage-loss compensation and entitlement to a schedule award would be 

terminated if he did not accept the job offer or provide good cause for not doing so within 30 days 

of the date of the letter.

In correspondence dated August 21, 2018, counsel objected to this proposed termination. 

He maintained that Dr. Huynh’s opinion was sufficient to establish that appellant’s condition 

precluded employment. 

On September 11, 2018 OWCP advised appellant that his reasons for refusing to accept 

the modified mail processing clerk position were unjustified. It discussed the evidence submitted 

by counsel and found that it failed to provide a valid reason for refusing to accept the position. 

OWCP advised appellant that his wage-loss compensation and entitlement to a schedule award 

would be terminated if he did not accept the position within 15 days of the date of the letter.

In correspondence dated September 20, 2018, counsel informed OWCP that, reluctantly 

and against the advice of two of his physicians, appellant would report as ordered, but indicated 

that he had not been provided direction on when, where, and to whom he was to report or how he 

would be accommodated with his cane. He concluded that appellant was awaiting direction to 

report as ordered.8

On Monday, September 24, 2018, A.K., a human resource specialist at the employing 

establishment, advised that appellant reported to work on September 24, 2018, but left after 

approximately one hour, indicating that he could not do the job. She attached a September 21, 

2018 letter in which she informed counsel of appellant’s reporting instructions and that he would 

be managed by B.G. and M.T. Also attached was a September 24, 2018 statement in which B.G.

indicated that appellant had arrived for work at 8:10 that morning, but that she was not expecting 

him. B.G. noted that she asked appellant to wait while she sought clarification from management 

as to how to proceed but, before this was accomplished, he told her that he had been waiting long 

enough and contended that he was unable to perform the duties of the position. 

 

7 Appellant did not timely file an appeal with the Board from that decision.

8 A magnetic resonance imaging scan of the cervical spine, obtained on August 29, 2018 revealed mild spondylosis 

at C4-5 and C5-6 and mild bilateral foraminal stenosis at C4-5. 
6

On September 28, 2018 A.K. forwarded a form report indicating that appellant had refused 

the offered position. She noted that he left after approximately one hour, advising that he could 

not do the job, and had someone bring in a traumatic injury claim (Form CA-1) later that day, 

claiming aggravation of depression and anxiety.9

In a notice dated October 4, 2018, OWCP proposed to reduce appellant’s compensation 

based on his refusal of the July 9, 2018 modified position. It advised him that it had reviewed the 

work restrictions provided by Dr. Eshraghi and Dr. Susco, and found that their opinions 

represented the weight of the medical evidence. OWCP further determined that the position 

offered appellant was within his restrictions. It informed him of the provisions of 20 C.F.R. 

§ 10.500(a) and advised him 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 (LWEC). It afforded appellant 30 days to accept the assignment 

and report to duty or provide a written explanation of his reasons for not accepting the assignment.

On October 10, 2018 appellant filed a notice of recurrence (Form CA-2a). He asserted that 

he had a panic attack from the stress of having to return to work on September 24, 2018, and that 

having to wait there aggravated his anxiety and depression. Appellant indicated that he was unable 

to function in the work environment and had subsequently seen Dr. Valla who diagnosed stress, 

anxiety, and panic attack coupled with post-traumatic stress disorder (PTSD). The employing 

establishment indicated that appellant returned to work for one hour and then filed a new CA-1 

and a CA-2a.

In a development letter dated October 26, 2018, OWCP advised appellant of the type of 

evidence necessary to establish his recurrence claim. It afforded him 30 days to submit the 

requested evidence.

By decision dated November 13, 2018, OWCP finalized the October 4, 2018 proposal and 

terminated appellant’s wage-loss compensation, effective November 14, 2018, because he failed 

to accept the July 9, 2018 temporary light-duty assignment in accordance with 20 C.F.R. 

§ 10.500(a). It found that the weight of medical evidence rested with Drs. Eshraghi and Susco, 

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 November 8, 2018, appellant’s employing establishment confirmed that the assignment 

remained available. Since he would have sustained no wage loss had he accepted the assignment, 

OWCP determined that he was not entitled to compensation.

By decision dated November 28, 2018, OWCP denied appellant’s claim for a recurrence 

of disability. It indicated that appellant had not provided the evidence requested in the October 26, 

2018 development letter and found that the medical evidence failed to establish that he was 

disabled due to a material change or worsening of his accepted conditions. 

 

9 A CA-1 claim form is not found in the record before the Board.
7

On December 11, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review from the November 13, 2018 decision

terminating his wage-loss compensation pursuant to 20 C.F.R. § 10.500(a).

In a March 5, 2019 brief, counsel asserted that the medical evidence refuted the 

termination. He noted Dr. Valla’s diagnosis of PTSD and anxiety, and that OWCP had not 

considered Dr. Huynh’s opinion. 

At the telephonic hearing, held on March 14, 2019, the hearing representative identified 

the issue as termination, and counsel agreed. Dr. Valla testified that she originally diagnosed 

major depression, but that she had additionally diagnosed PTSD because appellant felt he would 

be forced to return to work or lose his compensation. She stated that the PTSD was still in an acute 

phase and became clear after September 24, 2018 and that she had also diagnosed anxiety because 

appellant reported that he could not do the offered job because he could not deal with the public 

or talk on the telephone. Dr. Valla testified that, based on her interactions with appellant, he had 

concentration issues and that she did not think he was malingering. She disagreed with Dr. Susco’s 

opinion that appellant could return to work.10 Appellant briefly testified that when he reported for 

work on September 24, 2018, he was met by a greeter and not by a supervisor. He stated that he 

saw Dr. Valla on September 26, 2018. Counsel disagreed with the termination of wage-loss 

compensation and reiterated the arguments presented in his brief.

By decision dated April 24, 2019, OWCP’s hearing representative identified the issue as 

whether appellant suffered a recurrence of disability; however, she affirmed the November 13, 

2018 termination decision.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

termination or modification of compensation benefits.11

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 

was previously notified in writing that such duty was available. Similarly, an 

employee receiving continuing periodic payments for disability was not prevented 

 

10 Dr. Valla testified that she had produced written reports dated September 20, and 26, and December 3, 2018. 

However, these reports were not in the record before the Board prior to the April 24, 2019 decision. 

11 C.W., Docket No. 18-1779 (issued May 6, 2019); S.F., 59 ECAB 642 (2008).
8

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.”

12

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.13 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.14

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective November 14, 2018, pursuant to 20 C.F.R. § 10.500(a).

The record indicates that appellant was on the periodic rolls on July 9, 2018 when the 

employing establishment offered him the modified mail processing clerk position. The offer was 

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

§ 10.500(a).15 

The evidence of record establishes that, as of November 14, 2018, the date OWCP 

terminated appellant’s wage-loss compensation pursuant to section 10.500(a), there was 

disagreement between Dr. Susco, OWCP’s second opinion psychiatrist, and Dr. Valla, appellant’s 

treating psychiatrist, as to whether appellant had the ability to perform the duties of the offered 

temporary mail processing clerk position.16 

Dr. Valla began treating appellant on September 21, 2017, and on October 1, 2017 she 

opined that appellant had developed a consequential emotional condition, moderate major 

depression. She also advised that appellant could not work due to psychological distress caused 

by his lower leg weakness and pain. Dr. Susco provided a second opinion psychiatric evaluation, 

noting that he saw appellant on May 8, 2018. He advised that appellant was not disabled due to 

his psychiatric condition, but could not return to his previous job. Dr. Susco recommended 

retraining for gainful employment. 

 

12 20 C.F.R. § 10.500(a).

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

(June 2013).

14 Id.

15 Id.

16 R.C., Docket No. 18-0463 (issued February 7, 2020).
9

On May 29, 2018 OWCP accepted major depressive disorder. In correspondence dated 

June 7, 2018, Dr. Valla advised that, based on her evaluation of appellant’s current functioning, 

he could not work at any job and she could not predict when he could return to work. 

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

opinions of Dr. Susco and Dr. Valla as to whether appellant could perform the duties of the offered 

position on November 14, 2018, the effective date of the termination of his wage-loss 

compensation. Therefore, OWCP has not met its burden of proof to terminate appellant’s wageloss 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.

17

Based on the Board’s finding in Issue 1, it is premature to address whether appellant met 

his burden of proof to establish any disability after the termination of wage-loss compensation.18

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective November 14, 2018, pursuant to 20 C.F.R. § 10.500(a).19

 

17 See S.P., Docket No. 20-0196 (issued June 24, 2020).

18 The Board notes that at the March 14, 2019 hearing, the hearing representative identified the issue as termination,

but in her April 24, 2019 decision, she identified the issue as whether appellant established a recurrence of disability,

but then affirmed the November 13, 2018 decision terminating appellant’s wage-loss compensation. 

19 Upon return of the case file OWCP should consider administratively combining File No. xxxxxx135 for a 

September 24, 2018 traumatic injury with the present file. 
10

ORDER

IT IS HEREBY ORDERED THAT the April 24, 2019 and November 13 and 28, 2018 

decisions of the Office of Workers’ Compensation Programs are reversed.

Issued: July 29, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board