United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DORIS MILLER VA MEDICAL CENTER, 

Waco, TX, Employer

__________________________________________

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Docket No. 21-1207

Issued: July 22, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 4, 2021 appellant, through counsel, filed a timely appeal from a June 29, 2021 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2 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 OWCP received additional evidence following the June 29, 2021 decision. 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 terminate appellant’s wage-loss 

compensation, effective September 13, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her 

earnings had she accepted a temporary light-duty assignment.

FACTUAL HISTORY

On October 3, 2018 appellant, then a 39-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she sustained a groin muscle strain, ankle 

sprain, right knee bruise, shoulder pain, and back pain, when the wheels locked on a tall cart, 

causing heavy pans to fall on her while in the performance of duty. She stopped work at the time 

of injury.

In an October 12, 2018 report, Dr. Gilbert Mayorga, a family practitioner, provided a 

history of injury and noted findings on examination. He diagnosed cervical, thoracic, and 

lumbosacral spine sprains, sprains of the right hip, right knee, right shoulder, left ankle, left wrist, 

and left hand, and contusions of the right shoulder and right knee. Dr. Mayorga submitted periodic 

reports through December 7, 2018 holding appellant off from work.4

On November 19, 2018 OWCP accepted the claim for sprains of the left ankle, left wrist, 

right shoulder, right hip, right knee, cervical spine, thoracic spine, and lumbar spine, and 

contusions of the right shoulder and right knee. It paid appellant wage-loss compensation on the 

supplemental rolls, effective December 8, 2018, and on the periodic rolls, effective

January 6, 2019. Appellant continued to receive medical treatment.5

In reports dated from January 22 through May 29, 2019 reports, Dr. Raymond R. Fulp, an 

osteopathic physician Board-certified in orthopedic surgery, provided a history of injury. He 

diagnosed a lumbar spine sprain, cervical spine sprain, other cervical disc displacement, cervical 

radiculopathy, and a left ankle sprain.

On January 23, 2019 OWCP expanded its acceptance of the claim to include other lumbar 

vertebral disc displacement.6

In a January 25, 2019 work capacity evaluation report (Form OWCP-5c), Dr. Mayorga 

opined that appellant was totally disabled from work for an indefinite period due to the previously

4 Dr. Mayorga ordered imaging studies. A November 20, 2018 magnetic resonance imaging (MRI) scan of the 

lumbar spine demonstrated minimal facet arthropathy at L1-2, mild facet arthropathy at L2-3 with minimal disc 

displacement, mild to moderate facet arthropathy at L3-4, a diffuse disc bulge and moderate facet arthropathy at L4-

5,mild degenerative disc disease, slight retrolisthesis, diffuse disc bulge, subtle central disc protrusion, moderate facet 

arthropathy at L5-S1, degenerative changes at L4-5 and L5-S1 also known as Baastrup’s Disease, and a tiny focal T2 

hyperintensity. A November 28, 2018 MRI scan of the left foot and ankle demonstrated findings indicative of a prior 

low grade strain.

5 On February 7 and March 6, 2019, appellant underwent OWCP-authorized cervical medial branch block 

injections. From April4 through September 5, 2019, appellant underwent a series of OWCP-authorized greater and 

lesser occipital nerve blocks, trigger point injections to the trapezius, rhomboid, cervical paraspinous, and rhomboid 

muscles, cervical medial branch blocks, and thoracic medial branch blocks.

6 A January 23, 2019 MRI scan of the cervical spine demonstrated mild degenerative disc disease at C4-5 and C5-6.
3

diagnosed conditions. He submitted periodic reports through September 23, 2019 holding 

appellant off work. Dr. Mayorga also diagnosed a left medial malleolar fracture and cervical 

intervertebral disc disease attributable to the October 3, 2018 employment incident.

On May 6, 2019 OWCP received an August 24, 2016 official position description for

appellant’s date-of-injury position as a food service worker. The physical demands included the 

ability to lift, push, and/or pull heavy equipment and supplies, frequent lifting up to 45 pounds, 

continuous standing and walking, frequent stooping, and climbing ladders.

In a June 25, 2019 report, Dr. Shawn A. Fyke, a chiropractor, diagnosed cervical paraspinal 

pain and recommended traction, mobilization, and home exercises. 

On July 19, 2019 OWCP referred appellant, the medical record, a statement of accepted 

facts (SOAF), and a list of questions to Dr. James Elmer Butler, III, a Board-certified orthopedic 

surgeon, for a second opinion on the nature and extent of the accepted conditions and appellant’s 

work capacity. In a September 12, 2019 report, Dr. Butler reviewed the medical record, SOAF, 

and provided findings on examination. He opined that appellant had minimal residuals of the 

accepted injuries. Dr. Butler completed a Form OWCP 5c indicating that appellant could perform 

full-time, light-duty work with permanent restrictions with walking, standing, twisting, bending, 

stooping, pulling, pushing, and lifting up to two hours a day, squatting, kneeling, and climbing up 

to one hour a day, and pushing, pulling, and lifting limited to 20 pounds.

In an October 15, 2019 addendum report, Dr. Butler indicated that an OWCP-authorized 

September 25, 2019 functional capacity evaluation (FCE) demonstrated that appellant could 

perform light-duty work with lifting, pulling, and pushing limited to 20 pounds f or up to two hours 

a day, twisting, bending, stooping, squatting, kneeling, and climbing limited to two hours a day, 

and walking limited to four hours a day.

Commencing September 23, 2019, appellant underwent a series of OWCP-authorized 

thoracic medial branch blocks, performed by Dr. David Martincheck, an anesthesiologist 

specializing in pain management.

7

On October 7, 2019 OWCP found a conflict in the medical opinion evidence between

Dr. Butler, for the government, and Dr. Mayorga, for appellant, regarding appellant’s work 

capacity. To resolve the conflict, on October 17, 2019, it referred appellant, the medical record, a 

SOAF, and a list of questions to Dr. Terry J. Beal, a Board-certified orthopedic surgeon, for an 

impartial medical examination and opinion.

Dr. Beal provided a January 13, 2020 report of his December 17, 2019 examination. He 

reviewed the medical record and SOAF. On examination Dr. Beal observed limited range of 

motion throughout the spine, significantly limited active range of motion of the right shoulder, 

normal muscle testing throughout the bilateral upper extremities, normal sensory examination of 

7 On November 14, 2019 Dr.Martincheck performed cervical medial branch blocks at C3, C4, C5, and C6 on the 

left. On December 5, 2019 he performed thoracic medial branch radiofrequency ablation. A January8, 2020 MRI 

scan of the thoracic spine demonstrated a tiny left central disc protrusion at T6-7, and disc desiccation and right central 

disc protrusions at L4-5 and L5-S1. A January15, 2020 left ankle x-ray was within normal limits. January 15, 2020 

spinal x-rays demonstrated mild disc space narrowing at C4-5 with reversal of the cervical curvature, a minimal 

rightward curvature of the thoracic spine possibly attributable to positioning, mild disc space narrowing at L4-5, 

moderate disc space narrowing at L5-S1, and moderate facet hypertrophy at L4-5 and L5-S1.
4

both lower extremities, and the ability to heel and toe walk. He opined that the accepted cervical 

spine sprain remained symptomatic, but required no further treatment. Dr. Beal explained that 

appellant’s lumbar symptoms were due to chronic axial back problems unrelated to the 

employment injuries, and that the other accepted injuries had resolved without residuals. He 

completed a Form OWCP-5c on January 13, 2020 indicating that appellant was able to perform 

light-duty work for eight hours a day, with walking, standing, kneeling, pushing, and pulling 

limited up to two hours a day, twisting, bending, and stooping limited up to one hour a day, 

pushing, pulling, and lifting limited up to 20 pounds, and no climbing. 

On March 24, 2020 the employing establishment offered appellant a full-time, temporary,

limited-duty assignment as a food service worker, with wages of $15.30 an hour. The assigned 

duties entailed wrapping silverware and bread in a seated position on Wednesday, Thursday, and 

Friday, and greeting arriving patients in a seated position at a table or information booth on 

Saturday and Sunday. The position required walking, standing, kneeling, lifting, pulling, and 

pushing for up to two hours per day, twisting, bending, and stooping up to one hour per day, and 

no climbing. Lifting, pulling, and pushing were limited to 20 pounds. The employing 

establishment indicated that it based the position on work restrictions provided by Dr. Beal in his 

January 13, 2020 report. It instructed appellant to report for duty on April 1, 2020.

In an April 1, 2020 statement, appellant noted that she neither accepted nor declined the 

offered position as she had been advised to comply with a recent duty status report (Form CA-17). 

She submitted a March 20, 2020 report by Dr. Mayorga, who reviewed the March 24, 2020 job 

offer. Dr. Mayorga opined that appellant required an updated FCE to determine if the offered 

position exceeded appellant’s medical limitations. He held appellant off from work.

In an April 30, 2020 letter, the employing establishment enclosed a copy of Dr. Beal’s 

January 13, 2020 impartial medical report, and advised appellant that her duties during her period 

of recovery would not exceed the physical requirements listed in the job offer. It enclosed a new 

job offer, dated May 11, 2020, for a full-time, temporary, light-duty assignment as a food service 

worker, with wages of $15.30 an hour. The assigned duties entailed working in a kitchen wrapping 

silverware and bread from a seated position Monday through Friday. The position required 

walking, standing, kneeling, lifting, pushing, and pulling up to two hours a day with lifting, pulling, 

and pushing limited to 20 pounds, twisting, bending, and stooping for up to one hour a day, and 

no climbing. The employing establishment instructed appellant to report for duty on 

May 11, 2020.

Appellant responded on May 8, 2020 that she neither accepted nor declined the position as 

she was awaiting further testing to determine her work capacity. She noted that her physician 

continued to hold her off work.

On May 28, 2020 the employing establishment noted that appellant’s pay rate for her job 

and step when injured was $15.39 an hour. It confirmed that the offered position remained open 

and available.
5

Dr. Martincheck provided progress notes dated from May 26 through June 16, 2020. He 

administered a series of trigger point injections in the trapezius, rhomboid, and cervical 

paraspinous muscles, and cervical medial branch blocks.

8

On July 29, 2020 the employing establishment confirmed that an offered light-duty food 

service worker position remained open and available.

By notice of proposed termination dated August 4, 2020, OWCP informed appellant that 

it had found the March 24, 2020 job offer “appropriately accommodates your current work 

restrictions” as provided by Dr. Beal on January 13, 2020. It noted that the position required 

“wrapping silverware and bread in a seated position in the kitchen.” OWCP explained that,

although appellant had been a permanent employee at the time of injury, as Dr. Beal’s restrictions 

were temporary in nature, a temporary light-duty position may be provided to an employee during 

a period of recovery. It advised appellant that, pursuant to 20 C.F.R. § 10.500(a), an employee 

who “declines a temporary light[-]duty assignment deemed appropriate by OWCP (or fails to 

report for work when scheduled)is not entitled to compensation for total wage lossfor the duration 

of the assignment.” OWCP afforded her 30 days to accept the assignment.

In response, appellant submitted an August 14, 2020 report by Dr. Mayorga. Dr. Mayorga

noted that, based on a June 9, 2020 OWCP-authorized FCE, appellant could perform work at the 

sedentary level with lifting limited to 10 pounds. He disagreed with Dr. Beal’s opinion that 

appellant could lift up to 20 pounds. Dr. Mayorga found appellant able to perform sedentary work 

with no lifting greater than 10 pounds, no forceful pulling/pushing, no repetitive bending/stooping, 

alternate standing and walking, and 15-minute breaks every 2 hours. 

On September 9, 2020 the employing establishment notified OWCP that the offered 

position remained open and available to appellant. 

By decision dated September 10, 2020, OWCP terminated appellant’s wage-loss 

compensation benefits, effective September 13, 2020, pursuant to 20 C.F.R. § 10.500(a), as she 

failed to accept a light-duty position offered to her on March 4, 2020. It explained that had she 

accepted the assignment, she would not have sustained any wage loss as the actual earnings in that 

assignment either met or exceeded the current wages of her date-of-injury position. OWCP 

advised appellant that she remained entitled to medical benefits.

In a September 22, 2020 letter, Dr. Mayorga opined that August 27, 2020 MRI scans of the 

cervical and lumbar spine demonstrated new, significant lesions, including a cervical inferior disc 

extrusion and possible impingement of the L5 and S1 nerve roots. He opined that appellant was 

disabled from all work. 

In a letter dated September 28, 2020, Dr. Mayorga requested that OWCP expand its 

acceptance of the claim to include cervical intervertebral disc disease and intervertebral disc 

disorder with myelopathy.

8

June 2, 2020 left ankle x-rays were within normal limits. 
6

OWCP received additional reports from Dr. Martincheck dated December 8, 2020 through 

June 9, 2021, noting continued cervical and thoracic spine pain attributable to the October 3, 2018 

employment injury. He administered additional injections.

In a March 18, 2021 report, Dr. Ray Dustin Luis, a Board-certified orthopedic surgeon, 

opined that appellant sustained bilateral carpal tunnel syndrome, bilateral trigger thumb, and a left 

wrist sprain “while at work when she tried to catch a heavy food cart that fell.”

In an April 27, 2021 report, Dr. David Masel, a Board-certified neurosurgeon, opined that 

appellant’s continued, worsening low back pain with numbness and tingling in both lower 

extremities was status post the October 3, 2018 accepted injury. He recommended a right-sided 

lumbar rhizotomy.

On June 15, 2021 appellant, through counsel, requested reconsideration and requested that 

OWCP expand its acceptance of the claim to include cervical intervertebral disc disease and 

intervertebral disc disorder without myelopathy.

On June 23, 2021 OWCP received a June 14, 2021 report by Dr. Fyke, who reviewed his 

treatment regimen. 

By decision dated June 29, 2021, OWCP denied modification of the September 10, 2020 

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.9

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 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 

9 C.G., Docket No. 21-0171 (issued November 29, 2021); T.C.,Docket No. 20-1163 (issued July 13, 2021); A.D., 

Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); 

Paul L. Stewart, 54 ECAB 824 (2003).
7

procedures, a temporary light-duty assignment within the employee’s work 

restrictions.”

10

 

When it is determined that an employee 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.11 OWCP’s procedures require that, if an employee declines an 

offered appropriate assignment, it shall issue “a notice of proposed termination or reduction of 

compensation for the duration of the temporary assignment, whether specified or indefinite, and 

provide the claimant with 30 days to respond.”

12

 The notice should advise the claimant of the 

requirements of section10.500, and identify the light-duty assignment by its name and/or date.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

OWCP’s procedures further advise: “If there still would have been wage loss if the 

claimant had accepted the light-duty assignment, the claimant remains entitled to compensation 

benefits based upon the temporary actual earnings WEC [wage-earning capacity] calculation (just 

as if he/she had accepted the light-duty assignment).”

15

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective September 13, 2020, pursuant to 20 C.F.R. § 10.500(a), 

based on her earnings had she accepted a temporary light-duty assignment.

OWCP properly declared a conflict in the medical opinion evidence between Dr. Butler, 

for the government, and Dr. Mayorga, for appellant, regarding appellant’s work capacity, and 

referred her to Dr. Beal for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a). On 

January 13, 2020 Dr. Beal found that appellant was able to perform full-time, light-duty work with 

pushing, pulling, and lifting up to 20 pounds, walking, standing, kneeling, pushing, and pulling 

limited to two hours a day, twisting, bending, and stooping limited to one hour a day, and no 

climbing. Based on these restrictions, the employing establishment offered appellant a temporary 

light-duty position on March 24, 2020 as a food service worker. The assigned duties involved 

wrapping bread and utensils three days a week and screening and greeting patients, providing 

masks, directions, and other information as needed, two days a week. As appellant did not accept 

the March 24, 2020 position on April 30, 2020, the employing establishment offered appellant a 

10 20 C.F.R. § 10.500(a).

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

(June 2013).

12 Id. at Chapter 2.814.9(c)(5).

13 Id.

14 Id.

15 Id. at Chapter 2.814.9(c)(8).
8

different temporary light-duty position as a food service worker, wrapping bread and silverware 

five days a week, commencing May 11, 2020. Appellant did not accept the April 30, 2020 

position. 

In a notice of proposed termination dated August 4, 2020, OWCP advised appellant that 

the March 24, 2020 job offer appropriately accommodated Dr. Beal’s work restrictions; however, 

OWCP attached the job description from the April 30, 2020 job offerto the decision. Additionally, 

it did not confirm that the March 24, 2020 position was still available to appellant. While the 

employing establishment confirmed on July 29, 2020 that an offered light-duty food service 

worker position remained open and available, it did not indicate whether it was referring to the 

March 24, 2020 position or the subsequent April 30, 2020 job offer. Thus, the August 4, 2020 

pretermination notice does not comply with OWCP’s procedures.

16

 The Board, therefore, finds 

that OWCP improperly terminated appellant’s wage-loss compensation, effective 

September 13, 2020.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective September 13, 2020, pursuant to 20 C.F.R. § 10.500(a), 

based on her earnings had she accepted a temporary light-duty assignment.

ORDER

IT IS HEREBY ORDERED THAT the June 29, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 22, 2022

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

16 Supra note 15.