United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.W., Appellant

and

U.S. POSTAL SERVICE, JOHN F. KENNEDY 

AIRPORT POST OFFICE, Jamaica, NY, 

Employer

__________________________________________

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Docket No. 21-1287

Issued: September 22, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 26, 2021 appellant filed a timely appeal from a May 27, 2021 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the May 27, 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 May 27, 2021, pursuant to 20 C.F.R. § 10.500(a), because she refused a 

temporary, limited-duty assignment.

FACTUAL HISTORY

On November 17, 2019 appellant, then a 57-year-old platform clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she slipped on a dock plate and injured her left 

knee while in the performance of duty. She stopped work on the date of injury. OWCP accepted 

appellant’s claim for lumbar sprain, lumbar strain, left knee sprain, left legstrain, right wrist sprain, 

and right wrist strain. It subsequently expanded the acceptance of the claim to include left knee 

medial meniscus tear and left knee derangement.3 OWCP paid appellant wage-loss compensation 

on the supplemental rolls effective January 3, 2020 and on the periodic rolls effective 

April 26, 2020.

In a report dated December 16, 2019, Dr. Thomas Scilaris, Board-certified in orthopedic 

surgery, opined that appellant remained disabled from work. He diagnosed sprain/strain of right 

wrist and left knee, right wrist interstitial scapholunate ligament tear/oblique triangular

fibrocartilage tear, and left knee medial meniscus tear. Regarding causation, Dr. Scilaris opined 

that the work injury was the competent cause of the diagnosed conditions and disability. 

In a January 31, 2020 report, Dr. Orsuville Cabatu, a neuromusculoskeletal medicine 

specialist, also opined that appellant remained totally disabled from work. 

OWCP continued to receive reports, wherein Drs. Scilaris and Cabatu reiterated appellant’s 

disability status. 

On January 13, 2021 OWCP referred appellant, along with a statement of accepted facts, a 

copy of the case record, and a series of questions, to Dr. Andrew Farber, an osteopath and Boardcertified orthopedic surgeon, for a second opinion evaluation regarding her residuals and ability to 

perform her date-of-injury job or a modified position. 

In a February 4, 2021 report, Dr. Farber noted appellant’s history of injury and medical

treatment. He examined her and provided physical examination findings. Dr. Farber diagnosed 

lumbar sprain/strain, left knee strain and medial meniscus tear, and right wrist sprain/strain. He

found tenderness and decreased range of motion (ROM) in the lumbar spine and left knee. 

Dr. Farber opined that the work-related condition had resolved for the right wrist, but had not 

resolved for the lumbar spine and left knee. He indicated that appellant could return to work in a 

full-time, limited-duty,sedentary position, and he provided work restrictions of walking up to four

3 Appellant has prior claims, including a January 8, 2002 traumatic injury claim accepted for a left forearm 

contusion, right shoulder sprain, and thoracic contusion under OWCP File No. xxxxxx908; a December 5, 2007 

traumatic injury claim accepted for cervical sprain, lumbar sprain, left shoulder and upper arm sprain, and left elbow 

and forearm sprain under OWCP File No. xxxxxx852; and a June 1, 2014 traumatic injury claim accepted for left 

shoulder adhesive capsulitis, left shoulder rotator cuff tear or rupture, exacerbation of cervical sprain, lumbar sprain, 

and left shoulder and upper arm sprain, under OWCP File No. xxxxxx043. 
3

hours, standing up to four hours, lifting up to 10 pounds for three hours, and no climbing. 

Dr. Farber also recommended further treatment to include a series of three epidural injections and 

surgical treatment for the left knee, with four weeks of physical therapy, three times per week.

On March 12, 2021 based on Dr. Farber’s work restrictions, the employing establishment 

offered appellant a full-time,modified mail processing clerk position, which required her to use a 

hand scanner to scan mail and trucks, scan placards and trucks with a plastic seal, scan truck 

arrivals and departures into scanner, and assign and close placards to the truck. The physical 

requirements included standing and walking intermittently for up to four hours; lifting up to 10 

pounds intermittently for up to three hours; and simple grasping and use of a scanner for up to 

eight hours. The effective date of the offer was March 19, 2021 and the annual salary was listed 

as $64,216.00. 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 that “This job offer is available indefinitely during the period of recovery while 

[appellant’s] work restrictions are temporary in nature.” 

In a letter dated March 23, 2021, the employing establishment informed OWCP that 

appellant had not responded to the job offer. 

On March 29, 2021 OWCP received a February 12, 2021 report from Dr. Cabatu who 

reiterated his prior opinion that appellant remained totally disabled from work. Dr. Cabatu also 

completed an attending physician’s report (Form CA-20), checked the box marked “Yes” in 

response to whether her condition was caused or aggravated by an employment activity, and 

advised that she was awaiting left knee surgery. 

Appellant refused the March 12, 2021 job offer.

In a March 29, 2021 report, Dr. Scilaris noted that appellant’s objective findings included 

left knee ROM from 0 to 110 degrees, continued tenderness in the medial and lateral compartment, 

pain with patellofemoral compression, and positive McMurray’s sign. He referred to diagnostic 

reports from December 2019, and noted that she was tentatively scheduled for left knee 

arthroscopy on April 6, 2021. 

In an April 19, 2021 e-mail, the employing establishment confirmed that the offered 

position remained available and appellant had not returned to work. 

In a notice of proposed termination dated April 22, 2021, OWCP proposed to terminate

appellant’s wage-loss compensation, in accordance with 20 C.F.R. § 10.500(a), based on her 

refusal of the modified mail processing clerk, temporary light-duty position. It advised her that it 

had reviewed the work restrictions provided by Dr. Farber, the second opinion physician, and 

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

that the position offered to appellant was within those work restrictions. It informed her of the 

provisions of 20 C.F.R. § 10.500(a), and that any claimant who declined a temporary, light-duty 

assignment deemed appropriate by OWCP was not entitled to compensation for total wage loss. 
4

OWCP noted that the offered pay rate of $1,234.92 for 40 hours per week would have met or 

exceeded the wages of the job appellant held when injured, and she would not be entitled to 

ongoing wage-loss compensation. It afforded her 30 days to accept the modified assignment and 

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

On May 24, 2021 the employing establishment confirmed that the pay rate when injured 

was the same salary offered in the limited-duty position. 

OWCP subsequently received a May 7, 2021 prescription note, wherein Dr. Cabatu 

diagnosed right wrist sprain/strain, lumbar strain/sprain, left knee strain/sprain, and left knee tear 

of medial meniscus, and opined that appellant was totally disabled from work.

By decision dated May 27, 2021, OWCP terminated appellant’s wage-loss compensation,

effective as of the date, because she failed to accept the temporary light-duty assignment. It

explained that, had she accepted the temporary light-duty assignment, she would have worked 40 

hours per week, with wages of $1,234.92 per week, and her actual earnings would have met or 

exceeded the current wages of the job held when injured, and she would have sustained no wage 

loss. OWCP found that the assignment was appropriate and within the established work 

restrictions provided by Dr. Farber and appellant was not entitled to compensation.

LEGAL PRECEDENT

Section 10.500(a) of OWCP’s regulations 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 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. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be imposed on 

such assignments under this paragraph).”

4

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 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 

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

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).”

7

ANALYSIS

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

wage-loss compensation, effective May 27, 2021, pursuant to 20 C.F.R. § 10.500(a). 

OWCP terminated appellant’s wage-loss compensation on May 27, 2021 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 March 12, 2021 for a position of 

“modified mail processing clerk” beginning March 19, 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 $64,216.00. 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. OWCP subsequently issued a notice of proposed termination of wage-loss compensation 

on April 22, 2021. It noted that appellant had been provided with a “temporary light[-]duty 

assignment as a modified mail processing clerk” on March 12, 2021. The Board finds, however, 

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

is unclear.

10

 The March 12, 2021 job offer did not indicate in the description found on the first 

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

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 2.814.9c(8).

8 R.S., Docket No. 20-1004 (issued March 15, 2021).

9

Supra note 4.

10 See C.C.,Docket No. 19-0241 (issued August 12, 2019) (the Board reversed the termination of a claimant’s 

wage-loss compensation benefits under 20 C.F.R. § 10.500(a) because it was unclear from the record whether the 

assignment offered to the claimant on the periodic rolls was temporary in nature).
6

establishment also did not provide a cover letter advising appellant or OWCP of whether the 

modified mail processing clerk position was temporary or permanent.

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

April 26, 2020, and was still on the periodic rolls at the time of the March 12, 2021 offer of 

employment. 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 section 8106(c). As it cannot be 

established that appellant’s job offer was a temporary position, 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 May 27, 2021, pursuant to 20 C.F.R. § 10.500(a), because she 

refused a temporary, limited-duty assignment.

ORDER

IT IS HEREBY ORDERED THAT the May 27, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: September 22, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

11 See C.W., Docket No. 18-1779 (issued May 6, 2019).