United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.E., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

SEQUOIA NATIONAL FOREST, 

Portersville, CA, Employer 

__________________________________________ 

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Docket No. 14-1588 

Issued: May 12, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 8, 2014 appellant filed a timely appeal from a February 18, 2014 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. 

ISSUE 

The issue is whether appellant met her burden of proof to modify OWCP’s loss of 

wage-earning capacity (LWEC) determinations. 

On appeal, appellant challenges the correctness of the determinations regarding her 

LWEC. She contends that OWCP improperly found that the position of telemarketer fairly and 

reasonably represented her wage-earning capacity. Appellant argues that there were no 

telemarketing positions within a reasonable commuting distance of her home; that commuting to 

 1

 5 U.S.C. § 8101 et seq. 
2

places where this employment was available would exceed the restrictions set by the physicians; 

that the cost of commuting to the position would exceed her income from stated position; that 

she did not have the physical, mental capacity, or training to perform the constructed 

telemarketer position; and that she required frequent breaks, which would make her unable to 

effectively compete for the telemarketer position. She denied that her activities in her personal 

life, which included raising horses and kayaking, involved extensive physical effort. 

FACTUAL HISTORY 

This case has previously been before the Board. A review of the facts shows that on 

September 18, 1990 appellant, then a 34-year-old forestry technician, filed a traumatic injury 

claim alleging that, while changing a tire on a vehicle on April 17, 1990, the weight of the tire 

hurt her lower back. OWCP accepted her claim for lumbosacral strain, herniated disc L4-5, and 

subsequent microsurgical discectomy. Appellant made several attempts to return to work, but 

has not worked for the employing establishment since May 27, 1992. 

In a March 19, 2012 work capacity evaluation, Dr. Fred G. McQueary, a Board-certified 

orthopedic surgeon, stated that appellant will not be able to work because of a recurrent spasm 

that occurs after she is up for an extended period of time. He then noted that her average 

workday should be six hours at a maximum and may need to be limited to four hours on some 

days. Dr. McQueary noted that appellant had a degenerative process and will establish a 

tendency to become progressively more severe over time. He did not feel that she will improve 

enough to return to a physically demanding job. Dr. McQueary limited appellant to 2 hours and 

30 minutes of sitting, 1 hour of standing, and 4 hours each of walking, reaching, and operating a 

motor vehicle. In a January 2, 2003 letter, he indicated that he believed that she should have the 

option of having a break every hour or so. Dr. McQueary indicated that this may not always be 

necessary but on the days that appellant is having more spasms, the flexibility of having such a 

break will allow her to maintain her employability. 

Appellant was referred to vocational rehabilitation. In a September 2, 2004 report, the 

vocational rehabilitation specialist indicated that she was capable of working as a telemarketer. 

The position of telemarketer was described as: 

“Solicits orders for merchandise or services over telephone. Calls prospective 

customers to explain type of service or merchandise offered. Quotes prices and 

tries to persuade customer to buy, using prepared sales talk. Records names, 

addresses, purchases, and reactions to prospects solicited. Refers orders to other 

workers for filing. Keys data from order card into computer, using keyboard. 

May develop lists of prospects from city and telephone directories. May type 

report on sales activities. May contact driver, sales route to arrange delivery of 

merchandise.” 

The vocational rehabilitation specialist noted that the position was available full time and 

referred OWCP to job searches conducted in 2003 for indications of area state employment 

offices and direct employing establishment contact. He indicated that the job was being 

performed in sufficient numbers to make it reasonably available to the claimant within 

appellant’s commuting area, and indicated that this was confirmed with the state employment 
3

service representative in Jefferson City, Missouri. On November 4, 2004 OWCP received a new 

version of the September 2, 2004 report, wherein the vocational rehabilitation specialist indicated 

that the position of telemarketer was available both full time and part time. 

In a January 4, 2006 memorandum to file, a vocational rehabilitation specialist noted that 

Dr. McQueary indicated that appellant can sit 2.5 hours at a time with a break every 30 to 60 

minutes. He noted that appellant’s permanent work restrictions, specifically being able to sit up 

to 2.5 hours at a time, change position and stand at will at a telemarketing station while talking 

on headset, and the fact that she could work four hours a day allow her to work as a telemarketer 

and to remain within restrictions. On January 4, 2006 OWCP received a portion of an unsigned 

report indicating that positions were available as a telemarketer in Kansas City, Missouri and 

Lawrence, Wichita, and Topeka, Kansas. It also received handwritten notes identifying certain 

positions as a telemarketer. 

In a decision dated December 14, 2004, OWCP reduced appellant’s compensation based 

on her ability to earn wages as a telemarketer working 20 hours a week. It noted that the 

vocational counselor stated that the position was within her commuting area. OWCP noted that 

the Springfield Metropolitan Statistical area includes a five county area with a population of 

385,000 people. It noted that appellant relocated to a rural area outside of Ava, Missouri with a 

population of 11,000 approximately 38 miles from Ozark, Missouri, which is a city of 12,000 

and included in the metropolitan area of Springfield. OWCP noted that she lives approximately 

52 miles from the southeast side of Springfield, and that commuting to work in the Springfield 

area would not be unreasonable. 

In a December 20, 2004 work capacity evaluation, Dr. Nancy Hayes, a family 

practitioner, indicated that appellant could work two hours sitting, one hour standing and four 

hours each walking and reaching. She indicated that appellant could operate a motor vehicle to 

and from work 30 minutes each way and required 30-minute breaks every 1 to 2 hours. 

In a January 4, 2005 memorandum to file, Leslie Nelson, a vocational rehabilitation 

specialist, indicated that appellant’s restrictions as set forth by Dr. McQueary on March 19, 2002 

indicate that she can sit 2.5 hours at time and that she needs a break every 30 to 60 minutes. He 

noted that he contacted telemarketing offices and was told that a telemarketer was provided a 

handset or a regular telephone with handset that the workstation generally is a cubicle, that the 

worker has the ability to stand up, sit down, change position, and move around the workstation at 

will while talking on the telephone. Mr. Nelson noted that workers are provided at least one 

break in the morning and an afternoon and a lunch break and that they may have more breaks 

depending on the job. He indicated that appellant’s permanent work restrictions, specifically 

being able to sit for 2.5 hours at a time, the ability to change position and stand at will at a 

telemarketing station while talking on the headset performing the job, and the fact that she is 

only released to work 4 hours a day, allow her to stay within work restrictions. Mr. Nelson listed 

several places he called that had telemarketing positions available in Kansas City, Missouri and 

Wichita and Topeka, Kansas. 

In a letter from appellant dated March 29, 2007, she listed several telemarketer positions 

within 75 miles from her home and argued the reasons that these positions were not suitable, 
4

including that they would not allow her to walk around, that they required skills or experience 

that she did not have or they required her to work more than 20 hours a week. 

OWCP referred appellant to Dr. Todd J. Harbach, a Board-certified orthopedic surgeon, 

for a second opinion. In a July 10, 2008 report, Dr. Harbach assessed her with intractable low 

back pain status post an accepted on-the-job injury while working as a fire firefighter in 1990; 

status post left-sided L5-S1 microlumbar discectomy that has been successful with near complete 

resolution of her left lower extremity pain and some residual paresthesias in an S1 distribution 

with mild scar entrapped left S1 nerve root; and multilevel lumbar degenerative disc disease. He 

recommended a functional capacity evaluation. Dr. Harbach did not think that appellant was 

capable of performing the jobs required of a firefighter, but opined that she was certainly able to 

perform some sort of employment. He did note that she would have a hard time driving or 

commuting a long distance to go to work, and opined that any distances more than 30 minutes 

would give her difficulties and that she should probably not be required to travel more than that. 

Dr. Harbach noted that appellant certainly could move to a different area for a different 

government job if one became available and could be retained with clerical skills to accomplish 

that. In his work capacity evaluation, he indicated that she was unable to perform her usual 

work, but could work with restrictions of two to four hours each sitting, walking, and standing 

and that she could operate a motor vehicle at work for one hour and to and from work for one 

hour. Dr. Harbach noted that appellant will need breaks of 15 minutes three times in an 8-hour 

shift. 

In a decision dated November 15, 2007, OWCP further reduced appellant’s 

compensation, as it used incorrect figures to compute her compensation. Appellant requested 

reconsideration. In decisions dated November 12, 2008, September 11, 2009, and November 2, 

2010, OWCP denied modification of its decisions after conducting a merit review. By decision 

dated November 16, 2011, it denied appellant’s request for reconsideration as it was untimely 

and failed to establish clear evidence of error. 

In a January 23, 2012 report, Dr. Michael Ball, an osteopath, stated that appellant had 

multilevel degenerative disc disease. He noted that she will never be able to perform the 

firefighting job she had at the time of injury and that she had permanent restriction from her low 

back. Dr. Ball noted that appellant required frequent breaks so that she can lie down and reduce 

the load on the spine regardless of what type of activity she engages in. He further noted that she 

required frequent position changes from sitting to standing and walking. In an attached work 

capacity evaluation, Dr. Ball indicated that appellant could operate a motor vehicle to and from 

work for 30 minutes and could operate a motor vehicle at work for 3 hours. He noted that she 

could sit for three hours, walk for four hours, and stand for one hour. Dr. Ball noted that 

appellant required 30-minute breaks every 30 to 60 minutes. 

On April 16, 2012 appellant requested reconsideration. She argued that the commuting 

time to the telemarketer jobs was too long as evinced by Dr. Ball’s January 23, 2012 report. 

Appellant also argued that in 2008, Dr. Harbach stated that her commuting time should not be 

over 30 minutes one way. She also argued that the pay rate was not set based on jobs in her area. 

By decision dated August 3, 2012, OWCP denied reconsideration without conducting a 

merit review. However, on October 21, 2013, the Board issued an order remanding this case. 
5

The Board found that OWCP should have adjudicated the issue of modification of the LWEC 

determination.2

By letter dated January 15, 2014, appellant again argued that OWCP’s LWEC 

determination should be modified as the commute to the telemarketer positions was far too long, 

her restrictions preclude her from competing in an open market, and the wages used to determine 

her LWEC were incorrect. 

By decision dated February 18, 2014, OWCP determined that appellant had not submitted 

sufficient evidence to modify LWEC decisions of December 14, 2004 and November 15, 2007. 

LEGAL PRECEDENT 

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.3 OWCP procedures at Chapter 2.1501 contain 

provisions regarding the modification of a formal LWEC.4 The relevant part provides that a 

formal LWEC will be modified when: (1) the original rating was in error; (2) the claimant’s 

medical condition has materially changed; or (3) the claimant has been vocationally 

rehabilitated.5

 The burden of proof is on the party attempting to show a modification of the 

wage-earning capacity determination.6

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open 

labor market under normal employment conditions given the nature of the employee’s injuries 

and the degree of physical impairment, his or her usual employment, the employee’s age and 

vocational qualifications, and the availability of suitable employment.7 Accordingly, the 

evidence must establish that the jobs in the position selected or determining wage-earning 

capacity are reasonably available in the general labor market in the commuting area where the 

employee lives.8 

 2

 Docket No. 13-649 (issued October 21, 2013). 

3 Katherine T. Kreeger, 55 ECAB 633 (2004). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity 

Decisions, Chapter 2.1501 (June 2013). 

5 Id. at § 2.1501.3(a). 

6 R.E., Docket No. 14-1217 (issued October 6, 2014). 

7 T.B., Docket No. 14-1529 (issued December 4, 2014). 

8 J.O., Docket No. 10-785 (issued September 21, 2011). 
6

ANALYSIS 

OWCP accepted appellant’s claim for lumbosacral strain, herniated disc L4-5, and 

subsequent microsurgical discectomy. In a decision dated December 14, 2004, it reduced her 

compensation based on her ability to earn wages as a telemarketer working 20 hours a week. 

This decision was modified on November 15, 2007 as OWCP found that incorrect figures were 

used to compute appellant’s compensation. OWCP most recently denied her request for a 

modification of LWEC in its February 18, 2014 decision. 

The Board finds that the original LWEC determination was in error, as it was never 

established that the position of telemarketer was available within appellant’s reasonable 

commuting distance. Appellant lives outside of Ava, Missouri, a rural area. The vocational 

rehabilitation counselor first noted that the telemarketer position was suitable in a September 2, 

2004 report. In that report, he stated that the position was available in appellant’s commuting 

area, and for support referenced job searches that he conducted in 2003. However, the 

vocational counselor’s 2003 reports were prepared for the positions of cashier 2, security guard, 

and recreational leader. 

In its December 14, 2004 decision on LWEC, OWCP noted that appellant was 

approximately 38 miles from Ozark, Missouri and was 52 miles from the southeast side of 

Springfield, Missouri. 

Furthermore, subsequent to OWCP’s December 14, 2004 LWEC decision, a 

December 20, 2004 work capacity evaluation by Dr. Hayes indicated that appellant could operate 

a motor vehicle to and from work for only 30 minutes. Thereafter, the vocational counselor 

submitted a January 4, 2006 report which concluded that positions for telemarketer and sales 

representatives were available in inter alia, Wichita and Topeka, Kansas, as well as Kansas City, 

Missouri. All of these positions were further from appellant’s residence than Springfield, 

Missouri, and all involved a commute outside of the 30 minutes time period for commuting 

recommended by Dr. Hayes. 

In a July 28, 2008 report, Dr. Harbach, the second opinion physician, agreed that 

appellant could not commute longer than 30 minutes each way. In a January 23, 2012 report, 

Dr. Paul also indicated that appellant could only operate a motor vehicle to and from work for 30 

minutes. Although OWCP determined that the position of telemarketer was suitable it did not 

properly discuss appellant’s ability to commute. The proposed employment, a commute which 

appears to involve driving considerably further than 30 minutes each way. Therefore, OWCP 

was in direct controversion of Drs. Hayes, Harbach, and Paul’s opinions relative to the ability of 

appellant to go to, and return from her proposed worksite. OWCP, thus, did not meet its burden 

of proof in reducing appellant’s compensation.9

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof when it made its LWEC 

determination. 

 9 L.D., Docket No. 12-816 (issued April 9, 2013). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensations Programs dated February 18, 2014 is reversed. 

Issued: May 12, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board