United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, ROCKY POINT POST 

OFFICE, Rocky Point, NY, Employer

__________________________________________

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Docket No. 23-0667

Issued: November 16, 2023

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 5, 2023 appellant, through counsel, filed a timely appeal from a November 9, 

2022 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.

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.
2

ISSUE

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

compensation, effective April 15, 2022, pursuant to 20 C.F.R. § 10.500(a), because she refused a 

temporary, limited-duty assignment. 

FACTUAL HISTORY

On August 14, 2020 appellant, then a 55-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 14, 2020 she sustained left foot and ankle injuries

when she stepped out of her postal vehicle and her ankle rolled while in the performance of duty. 

She stopped work on the date of injury. By decision dated September 18, 2020, OWCP accepted 

appellant’s claim for sprain of the tibiofibular ligament of the left ankle. It paid her wage-loss 

compensation on the supplemental rolls for disability from work commencing October 1, 2020,

and on the periodic rolls commencing June 20, 2021.

On January 25, 2021 appellant underwent OWCP-authorized left ankle arthroscopic 

debridement, Brostrum-Gould reconstruction, and splint application, performed by Dr. John 

Feder, a Board-certified orthopedic surgeon. 

In a report dated September 8, 2021, Dr. Feder followed up with appellant for her left ankle 

condition. On physical examination of the left ankle, he observed minimal diffuse swelling, a 

healed incision, a positive Tinel’s sign, and a mildly antalgic gait. Range of motion testing 

demonstrated dorsiflexion to 15 degrees, plantar flexion to 30 degrees, and inversion and eversion 

to 20 degrees. Strength testing was normal. Dr. Feder noted that appellant could not perform a 

heel rise. He opined that herimpairment was total, and that she could not return to work. Dr. Feder 

diagnosed the accepted condition of sprain of the anterior talofibular ligament of the left ankle. 

He also diagnosed neuropathy of the left peroneal nerve, and possible incisional neuroma.

On October 6, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Leon Sultan, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine her work capacity. 

In a report dated November 2, 2021, Dr. Sultan noted his review of the SOAF, related the 

history of appellant’s August 14, 2020 employment injury, and her subsequent medical treatment. 

He provided findings on examination of her left ankle and foot. Dr. Sultan diagnosed soft tissue 

trauma to the left ankle with multiple ligament disruptions causally connected to the August 14, 

2020 work injury. He opined that appellant’s work-related left ankle condition had not resolved, 

noting that it was still partially active on objective testing, and that it had not yet reached a fixed 

and stable state. Dr. Sultan advised that she was not currently capable of returning to her date-ofinjury position as a rural carrier. He recommended work restrictions of indoor light-duty work. 

Dr. Sultan, in an accompanying work capacity evaluation (Form OWCP-5c) dated November 2, 

2021, indicated that appellant could perform light work with restrictions of no pushing, pulling, or 

lifting over 20 pounds for eight hours per day.

On November 30, 2021 the employing establishment offered appellant a modified-duty 

rural carrier position, which was to become effective on December 4, 2021. The position involved 

withdrawing letters, flats, small parcels and rolls, and parcels up to 1 hour per day; casing flats and 
3

letters, tagging parcels, and ordering small parcels and rolls up to 2 hours per day; pulling down a 

route including, accountable and pickups up to 1 hour per day; maintaining the authorized vehicle 

utilization system (AVUS) and casing other routes for up to 1 hour and 30 minutes per day; filing 

maintenance and paperwork for up to 1 hour per day; inspecting empty equipment for up to 10 

minutes per day; and maintaining case labels throughout the office for up to 1 hour and 20 minutes 

per day. The physical requirements of the modified assignment included pushing, pulling, and 

lifting no more than 20 pounds, eight hours per day. The annual salary was listed as $77,290.00. 

On the second page, the offer of modified assignment noted that “this assignment will remain 

within the physical restrictions furnished by your treating physician. You are advised not to exceed 

these restrictions. This assignment is currently available and is subject to revision based on the 

changes in your physical restrictions and/or the availability of adequate work. If a revision is 

necessary, you will be given a revised written modified assignment.” The offer also advised on 

the third page that this “[j]ob offer is available indefinitely, during the period of recovery while 

[appellant’s] work restrictions are temporary in nature and until medical documentation compels 

a change.”

On December 9, 2021 appellant refused the position. She advised that Dr. Feder had not 

cleared her to accept the job offer. 

On January 3, 2022 OWCP received a May 26, 2021 report from Dr. Feder wherein he 

assessed sprain of the anterior talofibular ligament of the left ankle, and neuropathy of the left 

peroneal nerve. He indicated that appellant could not return to work. 

On January 3, 2022 the employing establishment confirmed that the offered position 

remained available to appellant.

By notice dated January 4, 2022, OWCP advised appellant of its proposed termination of 

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

November 30, 2021 temporary light-duty assignment of a modified rural carrier. It advised that it 

had reviewed the work restrictions provided by Dr. Sultan and found that his opinion represented 

the weight of the medical evidence. OWCP further determined that the offered position was within 

appellant’s restrictions and remained available. It informed 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 actual earnings in the offered temporary light-duty 

assignment met or exceeded the wages of the position appellant had held when injured. It afforded 

her 30 days to accept the assignment and report to duty or demonstrate that her refusal was 

justified.

On January 22, 2022 appellant again refused the modified assignment offer, explaining that 

her refusal was based on the advice of Dr. Feder. She submitteda duty status report (Form CA-17),

and a form dated January 5, 2022 wherein Dr. Feder indicated that appellant could not return to 

work in any capacity at this time. 

In a letter dated January 29, 2022, counsel argued that OWCP had failed to appoint an 

impartial medical examiner (IME) to resolve the conflict of medical opinion between Dr. Sultan 

and Dr. Feder, and thus, had not met its burden of proof to terminate appellant’s wage-loss 

compensation.
4

By decision dated April 15, 2022, OWCP terminated appellant’s wage-loss compensation 

effective that date, because she failed to accept the temporary light-duty assignment in accordance 

with 20 C.F.R. § 10.500(a). It found that, if she had accepted the position, she would have had no 

wage loss.

On October 21, 2022 appellant, through counsel, requested reconsideration. Counsel

provided a September 21, 2022 report from Dr. Feder. On physical examination of the left ankle,

Dr. Feder observed tenderness at the lateral and deltoid ligaments, and a mildly antalgic gait. He 

again diagnosed the accepted condition of left ankle sprain of the anterior talofibular ligament and 

reiterated his diagnosis of neuropathy of the left peroneal nerve. Additionally, Dr. Feder diagnosed

deltoid ankle sprain, talonavicular contusions, and complex regional pain syndrome (CRPS). He 

opined that appellant was disabled from her usual occupation, but that she was a candidate for 

modified work with unscheduled breaks for pain.

By decision dated October 25, 2022, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). It noted that Dr. Feder’s September 21, 

2022 report was not received.

On November 9, 2022 OWCP issued a decision which superseded the October 25, 2022 

decision. It reviewed Dr. Feder’s September 21, 2022 report and denied modification of its 

April 15, 2022 decision. 

LEGAL PRECEDENT

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

termination or modification of an employee’s compensation benefits.3 

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 

3 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).
5

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

restrictions.”

4

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.5 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.6 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 on the temporary actual earnings WEC [wage-earning capacity] 

calculation (just as if he/she had accepted the light[-]duty assignment).”

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ANALYSIS

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

wage-loss compensation, effective April 15, 2022, pursuant to 20 C.F.R. § 10.500(a).

OWCP terminated appellant’s wage-loss compensation on April 15, 2022, pursuant to 20 

C.F.R. § 10.500(a). The Board, however, is unable to determine from the current record whether 

its termination of her benefits is proper under 20 C.F.R. § 10.500(a) since it cannot be established 

whether she had been offered a temporary or a permanent employment position. OWCP’s 

procedures require that, when an employing establishment provides an alternate employment 

position to a partially disabled employee who cannot perform his or her date-of-injury position, it 

must be determined whether the offered position is permanent or temporary in nature. If the 

employment offered to an employee on the periodic rolls is temporary and the employee does not 

accept the position, section 20 C.F.R. § 10.500(a) applies.8 However, if the offered employment 

is permanent in nature and the employee does not accept the position the penalty provisions under 

5 U.S.C. § 8106(c) apply.9

The evidence of record contains a written job dated November 30, 2021, for a modified 

rural carrier position beginning December 4, 2021. The job offer noted the duties and physical 

requirements of the modified assignment. The assignment was for full-time work and had an 

annual salary of $77,290.00. The offer also indicated that the position was available indefinitely 

during the period of recovery while the claimant’s work restrictions were temporary in nature. 

4

20 C.F.R. § 10.500(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, 

Chapter 2.814.9c(1) (June 2013).

5

Id. at Chapter 2.814.9c(1)(b) (June 2013).

6

Id. at Chapter 2.814.9c(1)(d) (June 2013).

7

Id. at Chapter 2.8149c(8) (June 2013).

8 A.W., Docket No. 21-1287 (issued September 22, 2023); R.S., Docket No. 20-1004 (issued March 15, 2021).

9

Supra note 4.
6

OWCP subsequently issued a notice of proposed termination of wage-loss compensation on 

January 4, 2022. It noted that appellant had been provided with a temporary light-duty assignment 

as a modified rural carrier on November 30, 2021. The Board finds, however, that the 

documentation of record supporting that the offered assignment was temporary in nature is 

unclear.10 The November 30, 2021 job offer did not indicate in the description found on the first 

page of the modified job offer whether the position was temporary or permanent. The employing 

establishment provideda cover letter which neither advised appellant nor OWCP as to whether the 

modified rural carrier position was temporary or permanent.

Appellant began receiving wage-loss compensation on the periodic rolls, effective June 20, 

2021, and remained on the periodic rolls at the time of the November 30, 2021 job offer. 

Therefore, to terminate her wage-loss compensation benefits pursuant to 20 C.F.R. § 10.500(a), 

OWCP had the burden of proof to establish that the offered employment position was temporary 

in nature. This determination is critical as a permanent job offer would require OWCP to terminate 

benefits in compliance with the strict provisions of 5 U.S.C. § 8106(c). As it cannot be established 

that appellant’s job offer was a temporary position, the Board finds that OWCP has not met its 

burden of proof to terminate wage-loss compensation pursuant to 20 C.F.R. § 10.500(a).11

CONCLUSION

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

wage-loss compensation, effective April 15, 2022, pursuant to 20 C.F.R. § 10.500(a).

10 See A.W., supra note 8; C.C., Docket No. 19-0241 (issued August 12, 2019).

11 A.W., id.; C.W., Docket No. 18-1779 (issued May 6, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the November 9, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 16, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board