United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 13-1895 

Issued: May 7, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 12, 2013 appellant, through his attorney, filed a timely appeal of a July 3, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding a loss 

of wage-earning capacity determination. 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 

this case.2 

ISSUE 

The issue is whether OWCP met its burden of proof to reduce appellant’s compensation 

benefits based on his capacity to earn wages in the constructed position of information clerk. 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that, following the issuance of the July 3, 2013 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

OWCP accepted that appellant, then a 48-year-old clerk, sustained a lumbar sprain on 

March 3, 2007 and subsequent recurrences on March 12, 2008 and March 22, 2010. He was 

placed on the periodic rolls and received monetary compensation benefits.3 

A functional capacity evaluation (FCE) dated June 17, 2010 found that appellant was 

capable of sustaining a light level of work, exerting 20.8 pounds of force occasionally and/or 

10.4 pounds of force frequently and/or 4.2 pounds of force constantly to move objects. 

On March 10, 2011 Dr. Jeremy Shore, a Board-certified orthopedic surgeon, advised that 

appellant was status post L4-5 microdiscectomy in 2006. He stated that appellant continued to 

have persistent low back pain and intermittent pain in the right posterolateral thigh. Appellant 

felt that he was not capable of any sort of sedentary duty. Dr. Shore opined that appellant had 

reached maximum medical improvement and advised that he was capable of working for eight 

hours a day with the following permanent restrictions: must be able to sit, stand and adjust based 

on level of pain; no pushing, pulling or lifting more than 20 pounds. 

On January 17, 2012 a vocational rehabilitation counselor identified the position of 

information clerk, Department of Labor’s Dictionary of Occupational Titles (DOT) No. 237.367-

022 as suitable to appellant’s work experience, physical restrictions and education. It was noted 

that he enrolled in courses at a local community college in keyboarding and Excel software. The 

information clerk position was identified as sedentary work, which involved exerting up to 

10 pounds of force occasionally or a negligible amount of force frequently or no amount of force 

constantly to move objects and the duties included: answering and routing calls, greeting visitors 

and answering questions from the public. The vocational rehabilitation counselor indicated that 

the position was reasonably available within the general labor market of appellant’s commuting 

area on a full-time basis. As confirmed by the state employment service. 

In a January 24, 2012 addendum report, Dr. Shore amended his work restrictions to 

include: lumbar support required; must be able to sit or stand based on pain; no repetitive 

bending, turning or twisting. 

Appellant enrolled in computer courses at a local community college, which he 

successfully completed. As of June 14, 2012, OWCP provided 90 days of placement assistance. 

Placement was not successful. 

On September 18, 2012 OWCP issued a notice of proposed reduction of benefits finding 

that appellant was capable of earning wages as an information clerk at the rate of $570.00 per 

week. It afforded him 30 days in which to submit evidence or argument regarding his capacity to 

earn wages in the constructed position. 

 3

 On April 30, 2010 OWCP made a preliminary determination that appellant received an overpayment of 

compensation in the amount of $518.49 because he returned to work for eight hours on February 23, 2010 and was 

paid on a loss of wage-earning capacity based on a six-hour workday until March 13, 2010. By decision dated 

July 22, 2010, it finalized the overpayment of compensation finding that he was with fault and deducted the sum of 

$50.00 from his continuing compensation payments. 
3

By decision dated October 22, 2012, OWCP finalized the proposed reduction of 

compensation benefits finding that appellant had the capacity to earn wages as an information 

clerk. It determined that he had a 53 percent loss of wage-earning capacity and his compensation 

was reduced to a net compensation of $1,524.00 every four weeks. 

On October 29, 2012 appellant, through his attorney, requested an oral hearing before an 

OWCP hearing representative. He submitted a January 25, 2013 report from Dr. Shore, who 

diagnosed chronic low back pain and a history of right L5-S1 herniated nucleus pulposus. 

Dr. Shore reiterated that appellant was capable of light-duty or sedentary work with the 

following restrictions: must be able to change positions frequently; reaching above the shoulder 

for six hours per day; sitting, walking, standing and operating a motor vehicle for four hours per 

day; reaching for two hours per day; pushing and pulling up to 30 pounds for two hours per day; 

lifting up to 20 pounds for two hours per day; squatting, kneeling and climbing for one hour per 

day. 

A hearing was held before an OWCP hearing representative on February 13, 2013. 

Appellant provided testimony and his attorney argued that the information clerk position was not 

suitable. 

By decision dated July 3, 2013, the hearing representative affirmed the October 22, 2012 

decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.4

Section 8115(a) of FECA,5

 provides in determining compensation for partial disability, 

the wage-earning capacity of an employee is determined by his or her actual earnings if his or 

her actual earnings fairly and reasonably represent his or her wage-earning capacity. If the actual 

earnings do not fairly and reasonably represent wage-earning capacity or if 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, his or her 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 and circumstances which may affect his or her wage-earning capacity in his or 

her disabled condition.6

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

wages in the open labor market under normal employment conditions.7

 The job selected for 

determining wage-earning capacity must be a job reasonably available in the general labor 

market in the commuting area in which the employee lives.8

 In determining an employee’s 

 4 See Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984). 

5

 5 U.S.C. § 8115. 

6 See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). 

7 See Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982). 

8 Id. 
4

wage-earning capacity, OWCP may not select a makeshift or odd-lot position or one not 

reasonably available on the open labor market.9 

OWCP must initially determine a claimant’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her wage-earning capacity. The 

medical evidence upon which it relies must provide a detailed description of the condition.10 

Additionally, the Board has held that a wage-earning capacity determination must be based on a 

reasonably current medical evaluation.11 

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 DOT 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. 

Shadrick12 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.13 

In determining an employee’s wage-earning capacity based on a position deemed 

suitable, but not actually held, OWCP must consider the degree of physical impairment, 

including impairments resulting from both injury-related and preexisting conditions, but not 

impairments resulting from post injury or subsequently acquired conditions. Any incapacity to 

perform the duties of the selected position resulting from subsequently acquired conditions is 

immaterial to the loss of wage-earning capacity that can be attributed to the accepted 

employment injury and for which appellant may receive compensation.14 

ANALYSIS 

OWCP accepted appellant’s claim for lumbar sprain and referred him to vocational 

rehabilitation. In its October 22, 2012 decision, it reduced his compensation benefits based on 

his capacity to earn wages as an information clerk. OWCP determined that this position was 

medically and vocationally suitable for appellant. It found that he was capable of earning 

$570.00 per week and had a 53 percent wage-earning capacity. The question is whether 

appellant had some capacity to earn wages and the Board finds that the weight of the evidence of 

 9 See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984). 

10 See William H. Woods, 51 ECAB 619 (2000). 

11 See John D. Jackson, 55 ECAB 465 (2004). 

12 5 ECAB 376 (1953). 

13 See Karen L. Lonon-Jones, 50 ECAB (1999). 

14 See John D. Jackson, supra note 11. 
5

record establishes that he had the requisite physical ability, skill and experience to perform the 

position of information clerk. 

On January 17, 2012 a vocational rehabilitation counselor advised that appellant would 

be capable of performing the position of information clerk, DOT No. 237.367-022, with an 

average weekly salary of $570.00 per week. The position was identified as sedentary work, 

which involved exerting up to 10 pounds of force occasionally or a negligible amount of force 

frequently or no amount of force constantly to move objects and was reasonably available on a 

full-time basis. The duties included: answering and routing calls, greeting visitors and 

answering questions from the public. Further, appellant was enrolled in a specific course of 

vocational rehabilitation at a local community college and completed seven computer courses. 

He had a prior 27-year history of work with the employing establishment. 

A June 17, 2010 FCE indicated that appellant was capable of sustaining a light level of 

work, exerting 20.8 pounds of force occasionally and/or 10.4 pounds of force frequently and/or 

4.2 pounds of force constantly to move objects. 

In support of his claim, appellant provided reports from Dr. Shore, whose reports 

provided findings which were not inconsistent with the duties required for the selected position 

of an information clerk. 

The Board finds that the evidence establishes that appellant was capable of performing 

the duties required for the selected position of an information clerk. Dr. Shore advised that 

appellant was capable of doing light-duty or sedentary work with restrictions. The vocational 

rehabilitation counselor determined that appellant was able to perform the position of an 

information clerk. She provided a job description which was comprised of sedentary 

requirements which involved exerting up to 10 pounds of force occasionally or a negligible 

amount of force frequently or no amount of force constantly to move objects and determined that 

the position fell within appellant’s medical restrictions. The position of information clerk 

conforms to appellant’s physical restrictions. The vocational rehabilitation counselor noted that 

the position was available on a full-time basis within his commuting area and that the wage of 

the position was $570.00 per week, in consultation with the state employment service. 

The Board finds that OWCP considered the proper factors, such as availability of suitable 

employment and appellant’s physical limitations, usual employment and age and employment 

qualifications, in determining that the position of information clerk represented his wage-earning 

capacity.15 The evidence of record establishes that he had the requisite physical ability, skill and 

experience to perform the duties and that the position was reasonably available within the 

general labor market of his commuting area. The information as set forth by the vocational 

counselor determined that the wages for the position of information clerk were $570.00 per 

week. Applying the Shadrick16 principles, the current pay rate for the date-of-injury position is 

compared with the wage-earning capacity of $570.00 per week and a percentage of loss of wageearning capacity is determined. OWCP determined that appellant had a 53 percent loss of wage-

 15 See James M. Frasher, 53 ECAB 794 (2002). 

16 See supra note 12. 
6

earning capacity and his compensation was reduced to a net compensation of $1,524.00 every 

four weeks. The Board finds that OWCP met its burden of proof to reduce his compensation in 

this case. 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. The 

Board finds that the record supports that the constructed position conforms to appellant’s 

medical restrictions, education and work experience. For the reasons stated above, the Board 

finds that the attorney’s arguments are not substantiated. 

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

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

CONCLUSION 

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 constructed position of information clerk. 

ORDER 

IT IS HEREBY ORDERED THAT the July 3, 2013 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: May 7, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board