United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Colorado Springs, CO, Employer 

__________________________________________ 

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Docket No. 13-604 

Issued: May 8, 2014 

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 16, 2013 appellant, through his attorney, filed a timely appeal of an August 6, 

2012 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 to consider the merits of the case. 

ISSUE 

The issue is whether OWCP met its burden of proof to establish that the selected position 

of customer service representative represented appellant’s wage-earning capacity. 

On appeal counsel argues that appellant was physically unable to reach and perform 

repetitive work. He further alleged that there was an unresolved conflict of medical opinion 

evidence. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On March 4, 2008 appellant, then a 41-year-old automation clerk, filed an occupational 

disease claim alleging that he developed impingement syndrome, bursitis and scapulothoracic 

impingement in the left shoulder due to performance of his federal job duties. He resigned from 

the employing establishment effective June 23, 2009. 

Appellant’s attending physician, Dr. John A. Reister, a Board-certified orthopedic 

surgeon, completed a report on June 23, 2009, noting appellant’s history of left shoulder surgery 

including an arthroscopic Bankart repair for instability on December 14, 2006 and a second 

surgery to debride some of the superomedial angle of the scapula on August 28, 2007. Appellant 

did not have significant relief from these surgeries. Dr. Reister performed an open resection of 

the superomedial angle of the scapula to resolve snapping of the scapula. He reported that 

appellant continued to have complaints in his left shoulder due to instability and that he 

performed an open instability repair. Dr. Reister stated that appellant was continuing to seek 

treatment for his right shoulder. In a work capacity evaluation dated July 15, 2009, he stated that 

appellant could perform no repetitive upper extremity use of the shoulders and indicated that 

appellant could not reach, reach above the shoulder, bend or stoop or operate a motor vehicle at 

work. Dr. Reister also indicated that appellant could not push, pull or lift. 

OWCP accepted appellant’s claim for aggravation of bilateral scapulothoracic crepitus on 

August 20, 2009. In a report dated December 7, 2009, Dr. Jill Castro, a physician Boardcertified in physical medicine and rehabilitation, stated that appellant’s work restrictions per 

surgery were no overhead lifting, no lifting, pushing or pulling more than 10 to 20 pounds 

occasionally. 

OWCP referred appellant for a second opinion evaluation on March 3, 2011. Dr. John D. 

Douthit, a Board-certified orthopedic surgeon and second opinion physician, completed a report 

on June 6, 2011. He noted appellant’s history of injury and medical treatment. Dr. Douthit 

examined him and found limited motion, pain behavior and chronic crepitation of both shoulders 

with grinding. He noted that appellant had slight winging of his right scapula as well as popping 

of the right shoulder with pain. Dr. Douthit provided his range of motion and his complaints of 

pain, but noted that there was no atrophy. He noted appellant’s previous shoulder surgeries 

which had not relieved appellant’s pain. Dr. Douthit diagnosed chronic pain in both shoulders 

with scapulothoracic popping more in the right. He stated that he did not believe that the 

popping correlated with appellant’s pain. Dr. Douthit opined that appellant’s chronic bilateral 

shoulder pain did not correlate well with his clinical findings. He diagnosed bilateral 

scapulothoracic crepitation greater on the right. Dr. Douthit opined that appellant’s pain was out 

of proportion to his physical findings. He stated, “I would conclude that the claimant’s pain in 

his shoulders and neck is a result of his work and was an aggravation of chronic scapulothoracic 

bursitis and cervical arthritis. This is persistent at present and is currently the source of the work 

restrictions that he had from lifting.” Dr. Douthit stated that appellant could not return to his 

date-of-injury position but could perform full-time work with restrictions on lifting over 25 

pounds, overhead work and reaching. He completed a work capacity evaluation and indicated 

that appellant could not reach above the shoulder and was restricted to pushing, pulling and 

lifting no more than 25 pounds. 
3

OWCP referred appellant for vocational rehabilitation services on July 19, 2011. In a 

letter dated August 9, 2011, it noted that he had failed to cooperate with the vocational 

rehabilitation counselor and informed him of the consequences. OWCP directed appellant to 

contact both his claims examiner and his vocational rehabilitation counselor within 30 days to 

commit to a good faith effort to participate in the rehabilitation effort to return him to gainful 

employment. It allowed him 30 days to respond if he felt that he had a good reason for not 

participating in vocational rehabilitation. OWCP directed appellant to provide a letter detailing 

his reasons and submit evidence in support of his position. 

Appellant left a telephone message for the vocational rehabilitation counselor on 

September 8, 2011 stating that he had a sinus infection, was involved in an automobile accident 

and was “in bed” awaiting surgery. 

On October 11, 2011 the vocational rehabilitation counselor identified the positions of 

receptionist and customer service representative with salary of approximately $10.18 to $15.99 

hourly suitable for appellant. She stated that appellant’s original federal job application and the 

description of the work he performed at the employing establishment was reviewed to perform a 

transferable skills analysis. 

In a report dated October 13, 2011, the vocational rehabilitation specialist found that 

appellant could earn $639.00 per week for full-time work as an administrative clerk. He noted 

that these were the median wages for the positions and that this pay rate would be appropriate as, 

according to the rehabilitation counselor’s report, appellant was a high school graduate with two 

years of community college and very good computer skills as well as several years of experience 

in supervisory, clerical and customer service capacities. The position of customer service 

representative was sedentary requiring occasional lifting of 10 pounds and occasional reaching. 

The specific vocational preparation was six months to one year. The job was being performed in 

sufficient numbers as to make it reasonably available to appellant within his commuting area and 

that the weekly wage was between $520.40 and $630.60. 

In a letter dated December 7, 2011, OWCP proposed to reduce appellant’s compensation 

for wage loss based on his capacity to earn wages as a customer service representative at the rate 

of $639.60 per week. It allowed 30 days for a response. OWCP noted that appellant was only 

partially disabled and could work with restrictions on lifting and reaching. 

Counsel responded on January 9, 2011 and stated that appellant was not at maximum 

medical improvement as Dr. Reister had scheduled another surgery. He further argued that there 

was a disagreement regarding appellant’s work restrictions and stated that appellant could not 

perform the repetitive activities necessary for a customer service representative. 

By decision dated January 19, 2012, OWCP finalized the reduction of compensation 

effective January 22, 2012. 

Counsel requested an oral hearing before an OWCP hearing representative on 

February 14, 2012. Dr. Castro completed a report on March 16, 2012 and recommended that 

appellant consult with Dr. Reister regarding surgery on both shoulders. He submitted a series of 

notes from a licensed clinical social worker. 
4

Counsel appeared at the oral hearing on May 16, 2012. He questioned whether the 

reaching involved as a customer service representative included above the shoulder. Counsel 

argued that Dr. Reister’s 2009 work restrictions created a conflict with Dr. Douthit’s report. He 

also noted that OWCP determined that appellant was capable of earning the top end of the pay 

scale. Counsel argued that appellant had several preexisting conditions which needed to be 

considered including depression, anxiety, panic attacks and attention deficit disorder. 

In a report dated June 11, 2012, Dr. Castro stated that appellant’s function had 

deteriorated. She stated, “[h]e was unable to perform activities out of the body or away from the 

body. Appellant cannot move his arms overhead and at waist level is still limited with any reach 

away from the body. He has severe dysfunction in the scapulae as well which contributed to his 

continued pain syndrome and limited mobility. Even sitting at a keyboard in attempts to type is 

limited as appellant cannot sustain even that motion for any period of time.” 

On June 14, 2012 Dr. Martin Reichman, a Board-certified psychiatrist, stated that he 

treated appellant in 2009 due to major depression, generalized anxiety disorder and panic 

disorder with agoraphobia. He also diagnosed attention deficit hyperactivity disorder. 

Dr. Reichman stated that appellant was unable to work in any capacity due to his mental health 

problems and his physical health problems. 

In a decision dated August 6, 2012, the hearing representative found that the position of 

customer service representative represented appellant’s wage-earning capacity and that OWCP 

met its burden of proof to reduce appellant’s compensation benefits. She found that the weight 

of the medical evidence established that appellant was not totally disabled. The hearing 

representative stated that appellant had the adequate vocational preparation to perform the 

position and that the position was within his work restrictions and skills. She noted that the 

position was reasonably available and that the median pay rate for the selected position was 

properly determined. 

LEGAL PRECEDENT 

 Section 8115 of FECA2 provides that wage-earning capacity is determined by the actual 

wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning 

capacity, or the employee has no actual earnings, his or her wage-earning capacity is determined 

with due regard to the nature of his or her injury, the degree of physical impairment, his or her 

usual employment, his or her age, his or her qualifications for other employment, the availability of 

suitable employment, and other factors or circumstances which may affect his or her wage-earning 

capacity in his or her disabled condition.3

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning 

 2

 5 U.S.C. §§ 8101-8193, 8115. 

3

 5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991). 
5

capacity.4 The medical evidence OWCP relies upon must provide a detailed description of the 

employee’s condition and the evaluation must be reasonably current.5

 Where suitability is to be 

determined based on a position not actually held, the selected position must accommodate the 

employee’s impairment from both injury-related and preexisting conditions, but not impairment 

attributable to post-injury or subsequently acquired conditions.6

 

 When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by 

OWCP for selection of a position, listed in the Department of Labor’s Dictionary of Occupational 

Titles or otherwise available in the open market, that fits that employee’s capabilities with regard to 

his physical limitations, education, age and prior experience. Once this selection is made, a 

determination of wage rate and availability in the open labor market should be made through 

contact with the state employment service or other applicable service. Finally, application of the 

principles set forth in Albert C. Shadrick7 will result in the percentage of the employee’s loss of 

wage-earning capacity. The basic rate of compensation paid under FECA is 66 2/3 percent of the 

injured employee’s monthly pay.8

ANALYSIS 

The Board finds that OWCP met its burden of proof to reduce appellant’s compensation 

benefits based on his capacity to earn wages in the selected position of customer service 

representative. 

Appellant filed an occupational disease claim on March 8, 2008. OWCP accepted this 

claim for aggravation of bilateral scapulothoracic crepitus. It determined that the selected 

position of customer service representative represented appellant’s wage-earning capacity. To be 

an appropriate position for a loss of wage-earning capacity determination under 5 U.S.C. 

§ 8115(a) the position must be medically and vocationally suitable. The evidence must also 

properly document the position’s availability and the wages and OWCP must follow established 

procedures before reducing appellant’s wage-loss compensation. 

With respect to the issue of medical suitability of the selected position, OWCP relied on 

the report of the second opinion physician, Dr. Douthit. On June 6, 2011 Dr. Douthit limited 

appellant to no reaching over the shoulder and to pushing, pulling and lifting no more than 25 

pounds. Dr. Castro, appellant’s physician, found similar restrictions on December 7, 2009 

limiting appellant to no overhead lifting, no lifting, pushing or pulling more than 10 to 20 pounds 

occasionally. Dr. Reister, appellant’s physician, also found that appellant was only partially 

 4 M.A., 59 ECAB 624, 631 (2008). 

5 Id. 

6 N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: 

Determining Wage-Earning Capacity, Chapter 2.814.8d (October 2009). 

7

 5 ECAB 376 (1953). 

8 Karen L. Lonon-Jones, 50 ECAB 293(1999). 
6

disabled on July 15, 2009. He provided additional restrictions noting that appellant could 

perform no repetitive upper extremity use of the shoulders no reaching, reaching above the 

shoulder, bending, stooping or operating a motor vehicle at work. Dr. Reister also indicated that 

appellant could not push, pull or lift. 

The selected position of customer service representative is a sedentary position requiring 

occasional lifting of 10 pounds and occasional reaching. The physical requirements are within 

the restrictions provided by Drs. Douthit and Castro. While Dr. Reister indicated in 2009 that 

appellant could not reach or lift, this report predated the findings of Drs. Castro and Douthit by 

six months or more. On June 11, 2012 Dr. Castro indicated that appellant’s condition had 

worsened, finding that he was unable to perform activities out of the body or away from the body 

including moving his arms overhead or reaching away from his body. She further found that 

appellant had limitations on typing. The Board finds that the initial report from Dr. Castro and 

Dr. Douthit’s June 6, 2011 report are entitled to the weight of the medical evidence and establish 

that appellant could physically perform the duties of the selected position. Dr. Douthit provided 

a detailed, clear history of injury and medical treatment, detailed findings on examination and 

explained the basis for his opinion. He failed to adequately support the newly established 

restrictions. Contrary to counsel’s argument, the Board finds no conflict of medical opinion 

evidence and that the selected position was within appellant’s medical restrictions.9

The Board also finds that the selected position of customer service representative was 

vocationally suitable. The specific vocational preparation required for the position was six 

months to one year. The vocational rehabilitation counselor found that appellant met this 

requirement as appellant was a high school graduate with two years of community college and 

very good computer skills as well as several years of experience in supervisory, clerical and 

customer service capacities. The job was being performed in sufficient numbers as to make it 

reasonably available to appellant within his commuting area and the weekly wage was between 

$520.40 and $630.60. The recommendations of the rehabilitation counselor were reviewed and 

approved by a rehabilitation specialist. Because the vocational rehabilitation counselor and 

specialist are experts in the field of vocational rehabilitation, OWCP may rely on his or her 

opinion as to whether the job is reasonably available and vocationally suitable.10 The Board 

finds that OWCP properly reduced appellant’s wage-loss compensation based on his capacity to 

earn wages as a customer service representative. 

Appellant may request modification of the loss of wage-earning capacity determination, 

supported by new evidence or argument, at any time before OWCP. 

 9

 Counsel argued that OWCP failed to consider appellant’s emotional conditions in determining that the selected 

position was within appellant’s restrictions. As noted above, the selected position must accommodate the 

employee’s impairment from both injury-related and preexisting conditions, but not impairment attributable to postinjury or subsequently acquired conditions. The record indicates that appellant’s emotional conditions arose in 2009 

after his accepted employment injury in 2008. Therefore these conditions were subsequentially acquired and OWCP 

was not obligated to consider any limitations due to these conditions in evaluating appellant’s wage-earning 

capacity. See supra note 6. 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.816.6b (June 2013). W.D., Docket No. 09-188 (issued August 21, 2009). 
7

CONCLUSION 

The Board finds that OWCP properly determined that the position of customer service 

representative represents appellant’s wage-earning capacity. 

ORDER 

IT IS HEREBY ORDERED THAT the August 6, 2012 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 8, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board