United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.L., Appellant 

and 

U.S. POSTAL SERVICE, MIDISLAND 

PROCESSING & DISTRIBUTION CENTER, 

Islandia, NY, Employer 

__________________________________________ 

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Docket No. 13-1428 

Issued: September 25, 2014 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 29, 2013 appellant, through her attorney, filed a timely appeal of a May 3, 2013 

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 properly reduced appellant’s compensation effective May 5, 

2013 based on the constructed position of receptionist as representing her wage-earning capacity. 

On appeal, counsel argued that the loss of wage-earning capacity determination was in 

error as appellant lacked the necessary vocational and physical skills to perform the selected 

position. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On December 8, 2006 appellant, then a 58-year-old mail processor, filed an occupational 

disease claim2

 alleging that she developed torn rotator cuff tendons in both shoulders due to her 

federal job duties. 

OWCP accepted her claim for bilateral rotator cuff tears on December 4, 2007. 

Appellant filed a recurrence of disability on January 14, 2008 alleging that she was totally 

disabled and awaiting surgery. Dr. Philip L. Schrank, a Board-certified orthopedic surgeon, 

performed a right shoulder surgical repair on January 22, 2008. He completed a form report on 

January 18, 2011 opining that appellant was totally disabled due to right shoulder weakness and 

loss of range of motion. 

Dr. Sidney H. Levine, a Board-certified orthopedic surgeon, completed a report dated 

April 1, 2011 stating that appellant was unable to return to her date-of-injury position. 

In a report dated June 29, 2011, Dr. Levine stated that appellant could not use her left 

shoulder repetitively above shoulder level. He also stated that she should not perform repetitive 

pushing, pulling or lifting over five pounds. On February 6, 2012 Dr. Levine completed a work 

restriction evaluation and indicated that appellant could not return to her usual job. He did not 

indicate how many hours a day appellant could work, but found that she should sit, walk and 

stand for two to three hours each day. Dr. Levine also found that she could push and pull 

intermittently, however, she could not reach above the shoulder. 

On April 27, 2012 OWCP referred appellant for vocational rehabilitation services. It 

noted that as appellant’s work restrictions included a five-pound lifting restriction which was 

classified as subsedentary, the vocational rehabilitation counselor was directed to target job goals 

in the sedentary category and ask each employer in the labor market survey as to whether 

appellant would be required to lift more than five pounds. On May 18, 2012 appellant appeared 

for her first vocational rehabilitation appointment accompanied by her son who served as an 

interpreter. In the initial report, the vocational rehabilitation counselor noted that appellant was a 

native of Taiwan and spoke Mandarin, Taiwanese and English. Appellant obtained a Bachelor’s 

degree in German from the University of Taiwan in the late 1950’s and moved to the United 

States in 1975. She was employed as a postal clerk from 1997 to 2006 and prior to that she 

worked in real estate for a brief period and was a homemaker. 

Appellant underwent vocational testing evaluation on May 29, 2012. The tester noted 

that she spoke infrequently and that her right arm was visibly shaking. She also noted that it was 

difficult to tell if appellant understood verbal instructions it seemed she did not know what 

“close the door” meant. Appellant’s mathematical skills were at the sixth-grade level including 

the ability to perform simple addition, subtraction, multiplication and division as well as 

percentages. She had difficulties with more complex division, fractions and percentages. 

Appellant’s reading, vocabulary and comprehension were at the second-grade level or first 

percentile. She did not complete the reading comprehension portion within the normal testing 

 2

 The record reveals that appellant originally filed a traumatic injury claim for the same condition, under File No. 

xxxxxx113, which OWCP denied on April 25, 2006. 
3

time limit. The tester stated that based on her scores appellant would not be able to participate in 

any vocational rehabilitation training. 

In a memorandum to the file dated June 14, 2012, OWCP noted that the vocational 

rehabilitation counselor recommended a prevocational plan as appellant seemed to be struggling 

with English. 

In a report dated June 27, 2012, the vocational rehabilitation counselor researched 

sedentary jobs such as clerk and receptionist and noted that the English communication 

requirements exceeded appellant’s abilities. She began investigating English training options. 

On June 25, 2012 the vocational rehabilitation counselor met with appellant with an interpreter 

present. In a letter dated July 25, 2012, she noted that appellant was enrolled in English as a 

second language class. 

On August 6, 2012 the vocational rehabilitation counselor noted that appellant was 

initially placed in a beginning conversation class. However, this class filled before appellant was 

enrolled. In a letter dated September 14, 2012, the vocational rehabilitation counselor stated that 

appellant was placed in the pre-beginning English as a second language class. This class was 

described as appropriate for students who have had little formal education and do not read or 

write well in their native language. Appellant was to learn the English alphabet and basic 

English vocabulary and practice listening and speaking English. She began attending classes on 

September 17, 2012. 

In a September 9, 2012 letter to appellant’s counsel, Dr. Levine recounted the history of 

injury and his accompanying treatment. He opined that appellant remained totally disabled from 

carrying out her regular work activities. Dr. Levine indicated that she requires further surgical 

intervention to repair a torn rotator cuff but doing so will not improve her overall condition to 

allow her to return to her preinjury job. With regard to work activity, he found that returning 

appellant to some type of sedentary activity could potentially place additional physical stress on 

her shoulders. Dr. Levine noted that, even with simple activities of daily living, appellant 

experiences significant increase in her level of pain and soreness within her shoulders. He 

concluded that appellant would, therefore, be precluded from all forms of gainful employment, 

including sedentary work activity. 

In a letter dated October 21, 2012, counsel informed the vocational rehabilitation 

counselor that appellant had a brain tumor and must undergo brain surgery. He stated that she 

would not be able to attend her English language classes. 

The vocational rehabilitation counselor informed appellant by letter dated November 5, 

2012 that her file was in an interrupt status to allow her to undergo surgery and recovery. She 

stated that the file could be interrupted for only 90 days and that appellant was required to submit 

medical documentation. Counsel responded on January 30, 2013 and submitted medical 

evidence dated January 28, 2013 from Dr. Mon-Ta Tsai, a Board-certified internist, who 

diagnosed meningioma with excision of the tumor on October 31, 2012. Dr. Tsai stated that 

appellant was experiencing postoperative ataxia resulting in a lack of voluntary muscle 

coordination, trigeminal neuralgia, persistent dizziness and imbalance. In a letter dated 

February 13, 2013, the vocational rehabilitation counselor selected the positions of either a 
4

receptionist or information clerk. She stated that, in order to work as a receptionist, appellant 

required training in basic computer skills to supplement her existing knowledge and work 

experience. The specific vocational preparation was three to six months. The vocational 

rehabilitation counselor provided a labor market survey listing 10 receptionist positions, 5 of 

which did not require lifting over five pounds and one which provided help when such lifting 

was necessary. 

On March 1, 2013 the vocational rehabilitation specialist agreed that the two positions of 

receptionist and information clerk were medically and vocationally suitable and existed in 

sufficient numbers to be reasonably available within appellant’s commuting area. The 

vocational rehabilitation specialist stated, “I recommend either position with an entry level salary 

of $9.00 per hour be used. The claimant would have been qualified for either position at this 

entry level salary had she completed her English second language training and a complete 

vocational training program in office skills.” 

OWCP proposed to reduce appellant’s compensation benefits based on her capacity to 

earn wages as a receptionist (Department of Labor, Dictionary of Occupational Titles (DOT) No. 

237.367-038) earning $360.00 per week. It found that she was capable of light-duty work based 

on Dr. Levine’s February 6, 2012 work restriction evaluation indicating that appellant could lift 

five pounds and sit, walk and stand for two to three hours each. 

In a letter dated April 11, 2013, counsel disagreed with the proposed reduction on the 

grounds that appellant lacked the necessary English language skills as found by the vocational 

rehabilitation counselor and that appellant was unable to participate in an English program as a 

result of her brain tumor. 

By decision dated May 3, 2013, OWCP finalized the proposed reduction of appellant’s 

compensation finding that she had the capacity to earn wages as a receptionist effective 

May 5, 2013. It reduced her compensation based on her earning capacity in the constructed 

position at $360.00 per week. OWCP stated that the medical evidence established that her 

current disability was due to a postemployment injury brain tumor. 

OWCP finalized the reduction of compensation, finding that appellant had the wageearning capacity of a receptionist. It applied the Albert C. Shadrick3

 formula based on a weekly 

pay rate of $1,043.09, effective December 9, 2007 and found that appellant had the capacity to 

earn weekly wages of $360.00 in the position of a receptionist. OWCP divided her constructed 

earnings of $360.00 by the current pay rate for her date-of-injury job of $1,112.35 to find a 32 

percent wage-earning capacity. It multiplied that percentage by appellant’s December 9, 2007 

recurrent pay rate of $1,043.09, to find an adjusted wage-earning capacity of $333.79. OWCP 

subtracted her wage-earning capacity of $333.79 from the recurrent pay rate of $1,043.09 to find 

a loss of wage-earning capacity of $709.30. It then multiplied this amount by the appropriate 

compensation rate of three-fourths which yielded $531.97. 

 3

 5 ECAB 376 (1953). 
5

LEGAL PRECEDENT 

Section 8115 of FECA4 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.5 In determining an employee’s wage-earning capacity 

based on a position defined 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 postinjury or subsequently acquired conditions. 

Any incapacity to perform the duties of the selected positions 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.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 Where the employee has one or more dependents as defined in 

FECA, he or she is entitled to have his or her back compensation augmented at the rate of 8 1/3 

percent, for a total of 75 percent of monthly pay.9

ANALYSIS 

OWCP accepted appellant’s claim for bilateral rotator cuff tears. Appellant’s attending 

physician, Dr. Levine, opined that she could return to work with restrictions including a fivepound lifting limitation as well as restrictions on sitting, walking and standing of two to three 

hours each. OWCP found that the position of receptionist, DOT No. 237.367-038, in the 

 4

 5 U.S.C. §§ 8101-8193, 8115. 

5 Karen L. Lonon-Jones, 50 ECAB 293 (1999); 5 U.S.C. § 8105(a). 

6 D.N., Docket No. 13-38 (issued August 28, 2013). 

7 Supra note 3. 

8 Supra note 5. 

9

 5 U.S.C. § 8110(b). 
6

Department of Labor’s Dictionary of Occupational Titles, represented appellant’s wage-earning 

capacity. To be an appropriate position for a wage-earning capacity determination under 

5 U.S.C. § 8115(a), the position must be medically and vocationally suitable.10

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

the reports of Dr. Levine who limited appellant to three hours of sitting, three hours of standing 

and three hours of walking, no overhead reaching and lifting of no more than five pounds. The 

position is specifically described as a sedentary position.11 The Department of Labor’s 

Dictionary of Occupational Titles defines sedentary work as exerting up to 10 pounds of force 

occasionally (up to 1/3 of the time) to lift, carry, push, pull, or otherwise move objects, including 

the human body. Sedentary work involves sitting most of the time, but may involve walking or 

standing for brief periods of time. Based on the evidence of record, including the restrictions of 

appellant’s treating physician, the Board finds that the selected position was within appellant’s 

permanent work restrictions and was appropriate for a wage-earning capacity determination.12 

With regard to appellant’s lifting restriction, OWCP’s vocational rehabilitation specialist 

noted that appellant did not meet the physical requirements of lifting up to 10 pounds and that 

her physical abilities were subsedentary. The vocational rehabilitation specialist directed the 

vocational rehabilitation counselor to conduct a survey of the local labor market and determine 

whether the position of receptionist was available with a subsedentary lifting restriction of five 

pounds. The vocational rehabilitation counselor found that 6 of the 10 employers surveyed 

indicated that a five-pound lifting restriction could be met. The Board finds that this is sufficient 

to establish that the weight limit is reasonably available.13 

In his narrative report of June 29, 2011, Dr. Levine opined that appellant had the ability 

to perform sedentary work duties, but commented that she had lost 50 percent of her preinjury 

capacity for lifting, pushing, pulling, grasping, pinching, holding, torquing or performing other 

activities involving comparable physical effort as well as activities requiring repetitive pushing, 

pulling, lifting in excess of five pounds. More specifically, in an OWCP Form 5c dated 

February 6, 2012, Dr. Levine indicated that appellant was a candidate for retraining. He further 

indicated that she had a restricted work capacity with an ability to sit, stand and walk for three 

hours and the ability to push, pull and lift five pounds. In a September 6, 2012 letter to 

appellant’s counsel, however, Dr. Levine opined that returning appellant to some type of 

sedentary work could potentially place additional physical stress on her shoulders and as such, 

she would be precluded from all forms of gainful employment including sedentary work activity. 

The Board finds that the September 6, 2012 response of Dr. Levine does not fundamentally 

negate his prior opinion that appellant has a sedentary work capacity. OWCP met its burden of 

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

Chapter 2.814 (October 2009). 

11 A.L., Docket No. 12-1634 (issued May 7, 2013). 

12 Johnnie Hawkins, Docket No. 05-806 (September 23, 2005). 

13 R.P., Docket No. 13-236 (issued April 11, 2013) (finding that as seven of eight employers who responded were 

able to provide modified work for appellant within the selected position description, the position was reasonably 

available). 
7

proof to establish that the selected receptionist position was physically appropriate. The Board 

further finds that appellant had the necessary vocational training to function in the selected 

position of receptionist. Appellant was a college graduate and had worked at the employing 

establishment for eleven years. The Board finds that these educational and vocational skills 

would qualify her for the selected position, despite her inability to complete the English training 

and the office skills training due to the subsequently-acquired medical condition which limited 

her cognitive abilities.14 As appellant met both the physical and vocational skills necessary for 

the selected position of receptionist, OWCP met its burden of proof to reduce her compensation 

benefits. 

Finally, the Board finds that OWCP properly applied the principles set forth in the 

Shadrick15 decision to determine appellant’s employment-related loss of wage-earning capacity. 

OWCP calculated that her compensation rate should be adjusted to $531.97 per week using the 

Shadrick formula. 

On appeal counsel also argued that OWCP failed to meet its burden of proof to reduce 

appellant’s compensation benefits due to her inability to adequately communicate in English. 

The Board finds that appellant’s prior work experience and education clearly qualified appellant 

for the selected receptionist position. 

CONCLUSION 

The Board finds that OWCP properly determined appellant’s loss of wage-earning 

capacity based on the selected position of receptionist, as it was consistent with both her physical 

abilities and her vocational capacity. 

 14 OWCP did not reduce appellant’s compensation benefits due to failure to cooperate with vocational 

rehabilitation efforts, but based her capacity to earn wages on her physical condition and vocational abilities prior to 

her after-acquired medical condition. 

15 Supra note 3. 
8

ORDER 

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

Compensation Programs is affirmed. 

Issued: September 25, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board