United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.G., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, Dallas, TX, Employer

__________________________________________

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Docket No. 21-0171

Issued: November 29, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 9, 2020 appellant filed a timely appeal from an October 7, 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.2

ISSUE

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

compensation, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the October 7, 2020 decision, appellant submitted additional evidence to OWCP.

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On August 2, 2010 appellant, then a 58-year-old census enumerator, filed a traumatic 

injury claim (Form CA-1) alleging that on July 13, 2010 she sustained bruising to both knees when 

she tripped and fell while in the performance of duty. She stopped work on July 14, 2010. OWCP 

accepted appellant’s claim for neck, back, and knee sprains and subsequently expanded the

acceptance of her claim to include bilateral internal knee derangement, left knee medial meniscus 

tear, and left knee Baker’s cyst. It paid her wage-loss compensation benefits and placed her on 

the periodic rolls, effective July 3, 2011. 

Appellant continued to receive medical treatment. She underwent OWCP-approved left 

knee arthroscopic surgery on December 28, 2011 and right knee arthroscopic surgery on 

November 6, 2013. 

On July 26, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding whether she continued to 

have residuals of the accepted July 13, 2010 employment injury and if she was able to return to 

work. In an August 16, 2019 report, Dr. Dinenberg indicated that he had reviewed the SOAF and 

noted her accepted conditions for cervical, lumbar, and bilateral knee sprains, bilateral internal 

knee derangement, left knee medial meniscus tear, and left knee Baker’s cyst. On examination he 

observed that appellant used a walker for ambulation and had a “very unsteady slow gait.”

Dr. Dinenberg reported that physical examination of her cervical spine revealed diffuse tenderness 

to light touch throughout the paraspinous region and in the midline extending down onto the 

bilateral trapezius. On physical examination of appellant’s lumbar spine, he noted tenderness to 

palpation primarily in the lower paraspinous region. Examination of her bilateral knees 

demonstrated positive medial and lateral joint line tenderness and no effusion, erythema, or 

ecchymosis. 

In response to OWCP’s questions, Dr. Dinenberg indicated that appellant’s cervical, 

lumbar, and bilateral knee sprains had resolved. Regarding her bilateral knee conditions, he opined 

that she remained symptomatic and explained that she had undergone two knee arthroscopic 

surgeries without relief. Dr. Dinenberg also indicated that appellant suffered from degenerative 

disc disease of the cervical and lumbar spines and the bilateral knees, which were not related to 

the July 13, 2010 employment incident. He concluded that she could not return to her date-ofinjury position because she could not perform the duties of intermittent driving, walking, or 

climbing up and down stairs, and occasional bending and stooping. Dr. Dinenberg completed a 

work capacity evaluation form (OWCP-5c form) and noted “no work.” 

3 Docket No. 13-0036 (issued April9, 2013).
3

In a September 12, 2019 letter, the employing establishment, requested that OWCP obtain 

a supplemental report from Dr. Dinenberg, which specifically addressed whether appellant could 

return to sedentary or light-duty work. 

The employing establishment also submitted a September 11, 2019 report by Dr. James 

Caviness, a Board-certified occupational medicine physician, who alleged that Dr. Dinenberg’s 

August 16, 2019 second opinion report was not well reasoned. Dr. Caviness noted that

Dr. Dinenberg had indicated that appellant’s subjective complaints outweighed her objective 

findings and asserted that Dr. Dinenberg did not provide any medical rationale to support his 

opinion that she was totally disabled from work. 

On September 24, 2019 OWCP requested that Dr. Dinenberg provide a supplemental 

opinion clarifying appellant’s ability to work. It specifically requested that he opine on whether 

she was able to work in a sedentary or light-duty position. 

In an October7, 2019 supplemental report, Dr. Dinenberg indicated that he would complete 

a new OWCP-5c form to reflect the restrictions that appellant had secondary to her work-related 

knee injury and that it was “probably best” to alter the restrictions rather than noting that she could 

not work. In an OWCP-5c form, he noted that she could work fulltime with restrictions of walking 

and standing for 30 minutes a day, pushing, pulling, and lifting up to 10 pounds for 3 hours a day, 

and no operating a motor vehicle, squatting, kneeling, or climbing. Dr. Dinenberg further reported 

“permanently sitting duties, no walk or stand [more than 15 minutes at] a time, allow to use a 

walker.” 

OWCP received an offer of modified assignment dated April 3, 2020. The assignment title 

was “modified field representative.” The job offer letter noted that the position was a temporary 

appointment, not-to-exceed 90 days, and would be available on August 4, 2020. It indicated that 

appellant would work a part-time schedule, up to 20 hours per week, by telephone only from her 

home. The duties of the job position required interviewing respondents to collect data required for 

current surveys, one-time surveys, and special census. The physical requirements of the modifiedduty position included intermittent sitting up to 3 to 4 hours per day, intermittent repetitive 

movements, including keyboarding, up to 1 to 2 hours per day, intermittent walking and standing 

up to 30 minutes per day, but no more than 15 minutes at a time, lifting, carrying, pushing, and 

pulling up to five pounds for less than 15 minutes per day, intermittent reaching up to 30 minutes 

per day, bending and turning up to 15 minutes per day, and no stooping, squatting, kneeling, 

climbing, and driving. 

On May 4, 2020 the employing establishment confirmed that the job offer for a modified 

field representative position remained available. 

On May 4, 2020 OWCP informed appellant that it found the April 3, 2020job offer suitable 

and in accordance with the work restrictions provided by Dr. Dinenberg. It noted that the 

employing establishment confirmed that the position remained open and available to her. OWCP 

advised appellant that an employee who refuses an offer of suitable work without reasonable cause 

is not entitled to further compensation for total wage loss. It afforded her 30 days to accept the 

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

assignment. 
4

In a June 5, 2020 letter, OWCP advised appellant that she had an additional 30 days to 

respond to its May 4, 2020 letter and submit additional evidence. 

In a July 7, 2020 letter, appellant asserted that any job offered was unfit due to her 

deteriorating health conditions and physical requirements. She submitted medical reports 

previously of record dated 2010 through 2018, previous correspondence with OWCP, postal 

service tracking information, and copies of prior OWCP decisions. 

On August 25, 2020 the employing establishment confirmed that the April 3, 2020 job 

offer remained available. 

On August 26, 2020 OWCP issued another letter, which informed appellant that the 

April 3, 2020 job offer was found suitable and remained open and available to her. It provided her

an additional 30 days to accept the position or provide her reasons for refusal in writing. 

In a September 18, 2020 letter, appellant noted her disagreement with OWCP’s August 26, 

2020 letter. She asserted that the history provided was inaccurate and also described the 

inconsistencies and inaccuracies she had with Dr. Dinenberg’s examination and report. Appellant 

submitted various medical reports previously of record dated from 2011 to 2017. 

By decision dated October 7, 2020, OWCP terminated appellant’s wage-loss 

compensation, effective that date, pursuant to 20 C.F.R. § 10.500(a). 

LEGAL PRECEDENT

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

termination or modification of compensation benefits.4

OWCP regulations at 20 C.F.R. § 10.500(a) provides 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 

4 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); PaulL. Stewart, 54 ECAB 824 (2003).
5

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

restrictions.”

5

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.6 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.7 

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).”

8

 

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).

By decision dated October 7, 2020, OWCP terminated appellant’s wage-loss compensation 

benefits, pursuant to 20 C.F.R. § 10.500(a), based on the opinion of Dr. Dinenberg, the second 

opinion examiner. 

In an August 16, 2019 report, Dr. Dinenberg provided examination findings and opined 

that appellant’s accepted cervical, lumbar, and bilateral knee sprains had resolved. He further 

reported that she continued to suffer residuals of her bilateral knee conditions and opined that she 

could not return to her date-of-injury position. Dr. Dinenberg completed an OWCP-5c form and 

noted “no work.” In a supplemental October 7, 2019 report, he indicated that it was “probably 

best” to alter appellant’s work restrictions on the OWCP-5c form rather than indicating that she

could not work. Dr. Dinenberg completed a new OWCP-5c form with restrictions of walking and 

standing for 30 minutes a day, pushing, pulling, and lifting up to10 pounds for 3 hours a day, and 

no operating a motor vehicle, squatting, kneeling, or climbing. 

The Board finds, however, that Dr. Dinenberg’s opinion was conclusory in nature and did 

not contain sufficient medical reasoning to establish that appellant was capable of working in a 

modified-duty, sedentary position.9 Rationalized medical evidence must include rationale 

5

20 C.F.R. § 10.500(a).

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

(June 2013).

7

Id. 

8

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

9

See C.G., Docket No. 20-0808 (issued April23, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019).
6

explaining how the physician reached the conclusion he or she is supporting.10 Dr. Dinenberg did 

not provide medical explanation as to how appellant’s physical examination findings established 

that she was capable of working sedentary duty or how she was capable of working even though 

he determined that she continued to suffer residuals of her work-related bilateral knee conditions.

11

 

He merely noted that it was “probably best” to alter her work restrictions even though he had 

previously reported that she was totally disabled from work. Inconsistent and contradictory reports 

from the same physician lack probative value.12 Accordingly, the Board finds that Dr. Dinenberg’s

report lacks sufficient medical reasoning to establish that appellant was capable of working in a 

modified-duty, sedentary position. 

Once OWCP undertook development of the record, it was required to complete 

development of the record by procuring medical evidence that would resolve the relevant issue in 

the case.13 As it did not request that Dr. Dinenberg provide a supplemental opinion clarifying his 

opinion, the Board finds that OWCP did not meet its burden of proof in terminating appellant’s 

wage-loss compensation benefits based on his reports.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation benefits, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).

10 B.B., Docket No. 19-1102 (issued November 7, 2019); BeverlyA. Spencer, 55 ECAB 501 (2004).

11 See C.B., Docket No. 20-0629 (issued May 26, 2021); G.G., Docket No. 20-0513 (issued January 12, 2021).

12 See J.O., Docket No. 19-0850 (issued October 22, 2020); K.S., Docket No. 11-2071 (issued April17, 2012); 

CleonaM. Simmons, 38 ECAB 814 (1987).

13 See J.F., Docket No. 17-1716 (issued March 1, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board