United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.Y., Appellant

and

U.S. POSTAL SERVICE, CLEVELAND 

PROCESSING & DISTRIBUTION CENTER, 

Cleveland, OH, Employer

__________________________________________

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Docket No. 21-0746

Issued: January 26, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 21, 2021 appellant, through counsel, filed a timely appeal from a November 4, 

2020 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 November 4, 2020 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

ISSUE

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

compensation effective March 16, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her earnings 

had she accepted a temporary part-time limited-duty assignment.

FACTUAL HISTORY

On March 14, 2018 appellant, then a 57-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on March 13, 2018 she injured her right ankle when she tripped and fell while 

in the performance of duty. She stopped work on March 13, 2018. OWCP accepted the claim for 

a closed fracture of the distal end of the right fibula. It paid appellant wage-loss compensation on 

the supplemental rolls effective April 28, 2018 and on the periodic rolls effective June 24, 2018. 

On April 4, 2018 Dr. Sara Lyn Miniaci-Coxhead, an orthopedic surgeon, performed an 

open reduction and internal fixation of the right fibula and right syndesmosis and a right deltoid 

ligament repair. 

OWCP subsequently expanded the acceptance of the claim to include a right ankle 

syndesmosis disruption and a right ankle sprain of the deltoid.

A November 1, 2018 magnetic resonance imaging (MRI) scan of the right ankle 

demonstrated a healed fracture of the lateral malleolus, small osseous fragments distal to the 

medial malleolus like due to a remote avulsion fracture, mild stress marrow edema within the 

medial malleolus and calcaneus, a chronic deltoid ligament tear, Achilles tendinosis with a possible 

small intrasubstance partial tear within the tendon, and subcutaneous edema. 

In a work capacity evaluation (Form OWCP-5c) dated February 1, 2019, Dr. MiniaciCoxhead advised that she would determine appellant’s work restrictions after a functional capacity 

evaluation (FCE). 

On April 1, 2019 OWCP referred appellant to Dr. David K. Halley, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In an April 24, 2019 response to an inquiry from the employing establishment, Dr. MiniaciCoxhead indicated that appellant could return to work with restrictions on standing and lifting up 

to four hours per day and climbing for two hours per day. 

In a report dated April 25, 2019, Dr. Halley discussed appellant’s history of injury and 

medical treatment received. He described her symptoms of pain with walking and noted that she 

used a wheelchair and crutches. Dr. Halley found mild swelling over the lateral malleolus and 

decreased sensation to light touch of the second and third toes of the right foot. He diagnosed a 

right fibular fracture, right ankle syndesmosis, and a complete rupture of the deltoid ligament, all 

surgically repaired. Dr. Halley further diagnosed a superficial peroneal nerve injury causing 

continued symptoms, which he attributed to the employment-related surgical procedure. He 

opined that appellant could perform sedentary employment with the option to elevate her foot. In 

a work capacity evaluation (Form OWCP-5C) of even date, Dr. Halley found that she could work 

four hours per day constantly sitting and walking and standing for a half hour.
3

A May 10, 2019 FCE indicated that appellant could perform light-duty employment 

working up to 1 hour and 49 minutes per day alternating sitting and standing. 

On September 24, 2019 OWCP referred appellant to Dr. Bienvenido D. Ortega, a Boardcertified neurosurgeon, for a second opinion examination.

In a report dated October 25, 2019,4 Dr. Ortega reviewed the history of injury and 

complaints of right ankle pain. He diagnosed healed right fibula fractures, syndesmosis of the 

right ankle, a repaired complete rupture of the deltoid ligament, and superficial peroneal 

neuropathy. Dr. Ortega attributed the superficial peroneal neuropathy to the accepted surgical 

treatment. In an accompanying Form OWCP-5c, he found that appellant could work up to four 

hours per day with restrictions, including walking and standing for half an hour, twisting for two

hours, and performing occasional lifting up to 10 pounds. In an addendum report dated 

December 5, 2019, Dr. Ortega opined that she could not return to her usual employment without 

physical conditioning, but could start working four hours per day increasing her hours as tolerated. 

He provided a Form OWCP-5c of even date, finding that appellant could work for four hours per 

day, sitting up to four hours, walking and stand up to one-half hour, lifting up to 10 pounds for 

four hours per day, and pushing, pulling, squatting, kneeling, and climbing as tolerated.

On December 18, 2019 OWCP expanded the acceptance of appellant’s claim to include a 

peroneal nerve injury of the right foot. 

On January 4, 2020 the employing establishment offered appellant a position as a modified 

mail processing clerk for four hours per day. The physical requirements included sitting at a 

manual case/table for two to four hours per day, lifting up to 10 pounds for 2 to 4 hours per day, 

walking and standing up to 30 minutes per day, and pushing, pulling, squatting, kneeling, and 

climbing as tolerated. The employing establishment advised that the position was subject to 

revision based on changes in appellant’s work restrictions.

On January 16, 2020 the employing establishment informed OWCP that appellant had not 

responded to the job offer. 

In a report dated January 27, 2020, Dr. Todd S. Hochman, a Board-certified internist, 

obtained a history of appellant falling at work on March 13, 2018. On examination he found some 

ankle swelling, an equivocal Tinel’s sign, tenderness, and weakness. Dr. Hochman diagnosed a 

right ankle deltoid ligament sprain, an injury of the deep peroneal nerve at the right ank le, a 

fracture, and a right tibiofibular ligament sprain. He reviewed Dr. Ortega’s restrictions and opined 

that appellant could return to work for four hours per day lifting up to 10 pounds intermittently, 

sitting for four hours per day with breaks, walking and standing up to one hour a day with breaks, 

and pushing and pulling up to 10 pounds for one hour a day with breaks.

On February 11, 2020 OWCP advised appellant of its notice of proposed reduction of her 

wage-loss compensation in accordance with 20 C.F.R. § 10.500(a) based on her refusal of the 

January 4, 2020 temporary light-duty position for 20 hours per week offered by the employing 

establishment. It advised her that it had reviewed the work restrictions provided by Dr. Ortega 

and found that his opinion represented the weight of the medical evidence. OWCP further 

4 Dr. Ortega indicated that the date of his evaluation was August 22, 2019 and the date of the report was August 25, 

2019; however, it appears these were typographical errors. 
4

determined that the offered position was within appellant’srestrictions. It noted that the employing 

establishment had confirmed on January 16, 2020 that the position remained available. OWCP 

informed appellant 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. It indicated that it would pay her compensation for the 

difference between the current pay for her date-of-injury position and the pay of her temporary 

light-duty assignment. OWCP afforded appellant 30 days to accept the assignment and report to 

duty or demonstrate that her refusal was justified. 

Subsequently, OWCP received an undated letter from appellant advising that she had 

neither accepted nor declined the offered position. 

By decision dated March 16, 2020, OWCP finalized the February 11, 2020 proposed notice 

and reduced appellant’s wage-loss compensation, effective that date, because she failed to accept 

the January 4, 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. Ortega, who provided temporary 

work 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 if appellant had 

accepted the position she would have earned wages of $645.50 per week. It advised appellant that 

her entitlement to medical benefits was not affected.

On March 17, 2020 appellant advised OWCP that she had return to work, but was sent 

home “due to [appellant’s] unsteady gait.” On March 18, 2020 the employing establishment 

informed OWCP that she had arrived at work seeming irrational and acting like she was unable to 

walk. OWCP requested that the employing establishment submit a detailed statement regarding 

the incident.

In a progress report dated March 9, 2020, Dr. Hochman noted that the employing 

establishment had not taken appellant back to work due to her restrictions. He asserted that he 

would update a duty status report (Form CA-17) with Dr. Ortega’s restrictions and see how she

did, and if she had difficulty, modified the restrictions based on an FCE.5 

On March 18, 2020 S.S., a manager, advised that appellant had returned to the employing 

establishment in a wheelchair because of balance issues and indicated that she could not walk from 

the parking lot or climb the ramp. Appellant asked to use the supervisor’s entry door so she could 

“walk down the hallway while holding on to the walls to get to her assignment.” She told S.S. that 

she wanted to work. S.S. related, “I told [appellant] that I was not prepared to offer her a job 

assignment because she stated [that] she was unable to walk without losing her balance.”

In a March 20, 2020 statement, appellant advised that she had returned to work on 

March 16, 2020, but was told to leave after an hour because of her unsteady gait.

In an e-mail dated March 20, 2020, K.L., a supervisor, informed management that appellant 

had stated that she had difficulty walking and needed to hold on to the wall to make it to the 

restroom. 

5 Dr. Hochman completed a Form CA-17 on March 9, 2020. 
5

Appellant received treatment from a physician assistant on March 22, 2018. 

On March 23, 2020 the employing establishment advised that on March 16, 2020 appellant 

had indicated that she was unable to perform her assigned duties.

In an e-mail dated March 25, 2020, a vocational rehabilitation counselor, related that he 

had met with appellant on March 13, 2020 and that she was “seeking advice regarding the process 

for her return to work.” He contacted K.S., a manager, for advice, but she was not in the office. 

On March 16, 2020 appellant told M.A. that she was scheduled to return to work that evening. On 

March 17, 2020 she told him that she had been sent home.

On April 15, 2020 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

In a statement dated April 15, 2020, appellant related that K.H., a manager with the 

employing establishment, had told her to come in at 10:00 p.m. on March 16, 2020. She believed 

that she was at the employing establishment to accept the offered position. Appellant was 

concerned about the ramp to the building and entered it in a wheelchair. A supervisor asked 

appellant about machines that she could work on and told appellant thatshe needed to figure out 

if she could use a walker or hold onto equipment to get around. K.H. told appellant that she needed 

to leave since she was a fall risk. Appellant advised that she did not refuse the position or say that 

she could not walk, but only asked for more time due to her unbalanced gait. She questioned how 

OWCP found that she had refused the job offer as she had accepted the offer on March 10, 2020 

and reported for duty on March 16, 2020. 

In an April 20, 2020 progress report, Dr. Hochman noted that appellant had attempted to 

return to work, but was sent home. On examination he found an antalgic gait, tenderness over the 

plantar fascia and distal Achilles, and trace effusion. Dr. Hochman recommended an FCE.

On June 10, 2020 Dr. Hochman indicated that appellant had seen a physician who wanted 

updated diagnostic studies. 

A June 23, 2020 FCE indicated that appellant could perform light-duty work with 

restrictions, including lifting up to five pounds occasionally. It noted that she had poor balance, 

an antalgic gait, the inability to stand independently, and poor balance.

On July 13, 2020 Dr. Michael Canales, a podiatrist, reviewed appellant’s history of a right 

ankle injury on March 13, 2018 at work. He diagnosed a right lower extremity Achilles tendon 

rupture, peroneal tendon tendinosis of the right lower extremity, post-traumatic arthritis of the right 

ankle after surgery, posterior tibial tendon dysfunction of the right lower extremity, and an 

insufficient deltoid ligament of the right lower extremity. 

In a report dated August 3, 2020, Dr. Canales advised that an MRI scan had demonstrated 

a “rupture of the Achilles tendon and severe peroneal tendon tendinosis” causing appellant’s 

unsteady gait. He recommended surgery.

A telephonic hearing was held on September 10, 2020. Appellant related that she arrived 

at work and informed management that she could not walk from the parking lot so she was given 
6

a wheelchair. K.H. indicated that she was a high-fall risk and sent her home. Appellant related 

that Dr. Canales had identified her problem.

By decision dated November 4, 2020, OWCP’s hearing representative affirmed the 

March 16, 2020 decision. He found that OWCP had reduced appellant’s wage-loss compensation 

without knowledge of her attempt to return to work. The hearing representative found that the 

termination was correct at the time of issuance, but noted that she was subsequently sent home. 

He noted that, if a temporary light-duty assignments ends or is withdrawn, and the medical 

evidence supports continuing residuals, the claimant should be returned immediately to the

periodic rolls. The hearing representative found that there was sufficient evidence of record to 

show that the employing establishment had withdrawn the modified assignment. He also noted 

that appellant had submitted evidence showing that she had an Achilles tendon rupture that might 

be directly related or a consequence of the accepted employment injury. 

LEGAL PRECEDENT

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

termination or modification of compensation benefits.6

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 

[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.”

7

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 she is being 

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

7

20 C.F.R. § 10.500(a).
7

removed from the periodic rolls.8 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.9

ANALYSIS

The Board finds that OWCP has not met its burden of proof to reduce appellant’s wageloss compensation effective March 16, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her 

earnings had she accepted a temporary part-time limited-duty assignment.

The evidence of record establishes that on March 16, 2020 the date OWCP reduced 

appellant’s wage-loss compensation, she had accepted the offered position and returned to work. 

Evidence received subsequent to the termination indicated that appellant had met with her OWCP 

vocational rehabilitation counselor on March 13, 2020 asking for advice on the process for 

resuming work. The vocational rehabilitation counselor had contacted appellant’s manager, K.S., 

who was not in the office. On March 16, 2020 appellant informed her vocational rehabilitation 

counselor that she was scheduled to resume work that evening. She returned to work on 

March 16, 2020. OWCP’s procedures provide that, after issuing a notice of proposed termination 

or reduction of compensation, if no reply is received from the claimant and the claimant does not 

return to work, it should prepare a formal decision.10 As appellant had accepted the position and 

resumed work, OWCP improperly reduced her compensation for failing to accept a light-duty 

position under 20 C.F.R. § 10.500(a).11

CONCLUSION

The Board finds that OWCP has not met its burden of proof to reduce appellant’s wageloss compensation, effective March 16, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her 

earnings had she accepted a temporary part-time limited-duty assignment.

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

(June 2013).

9

Id.

10 Supra note 8 atChapter 2.814.9(c)6(b) (issued July 2013).

11 See generally D.M., Docket No. 17-1235 (issued February 15, 2018) (finding that OWCP erred in terminating 

appellant’s compensation under 5 U.S.C. § 8106(c) when the employing establishment had authorized her absence 

from duty). 
8

ORDER

IT IS HEREBY ORDERED THAT the November 4, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 26, 2022

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