United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Los Angeles, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1754 

Issued: January 8, 2015 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant, through his attorney, filed a timely appeal from a June 26, 

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 OWCP properly reduced appellant’s compensation based on the 

capacity to earn wages in the constructed position of information clerk. 

FACTUAL HISTORY 

On November 20, 2007 appellant, then a 50-year-old mail processing clerk, filed an 

occupational disease claim alleging bilateral carpal and cubital tunnel syndrome due to factors of 

 1

 5 U.S.C. § 8101 et seq. 
2

her federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome and a 

bilateral lesion of the ulnar nerve. On May 15, 2009 it authorized a left cubital tunnel 

decompression. OWCP paid appellant compensation for total disability beginning 

May 15, 2009. 

Appellant had a previously accepted claim for sustained left carpal tunnel syndrome and 

cervical strain under file number xxxxxx646. In a decision dated November 29, 1994, OWCP 

found that she had no residuals of her work injury under file number xxxxxx646. Appellant also 

had an accepted claim for bilateral carpal tunnel syndrome in file number xxxxxx324, which was 

in a closed status beginning December 2000. 

To determine appellant’s work capacity, on November 17, 2009 OWCP referred 

appellant to Dr. William C. Boeck, Jr., a Board-certified orthopedic surgeon, for a second 

opinion evaluation. In a report dated December 4, 2009, Dr. Boeck diagnosed postoperative 

bilateral carpal tunnel syndrome and postoperative left elbow cubital tunnel syndrome. He found 

that appellant had continued residuals of the work injury. Dr. Boeck also noted that she had 

preexisting neck, low back, and left shoulder complaints. He opined that appellant could work 

for eight hours per day performing repetitive wrist and elbow movements for two hours per day 

and pushing, pulling, and lifting up to 20 pounds for two hours per day.2

In a report dated January 19, 2010, Dr. Jacob E. Tauber, an attending Board-certified 

orthopedic surgeon, reviewed Dr. Boeck’s opinion and found “no basis to disagree with his 

findings on examination. He further found that Dr. Boeck provided reasonable work restrictions. 

On May 19, 2010 OWCP referred appellant for vocational rehabilitation. In a report 

dated August 10, 2010, the rehabilitation counselor noted that appellant had already attended 

junior college. On October 14, 2010 OWCP approved vocational training for appellant with the 

goal of gaining employment as an information clerk or customer complaint clerk. An OWCP 

rehabilitation specialist noted, on April 5, 2011, that appellant’s junior college had closed for the 

summer due to budget cuts. On April 19, 2011 OWCP approved a training program for appellant 

at the Larson Training Center from April 25 to July 14, 2011 in a general office clerk computer 

business skills program. 

By letter dated May 16, 2011, OWCP referred appellant to Dr. Richard P. Pollis, a Boardcertified orthopedic surgeon, to determine whether appellant could perform the duties of an 

information clerk. In a report dated June 3, 2011, Dr. Pollis found that appellant had a positive 

left Tinel’s sign and Phalen’s test. He advised that she had residuals of her cubital tunnel 

syndrome. Dr. Pollis opined that appellant could work as an information clerk. In a work 

restriction evaluation, he found that she could perform repetitive wrist and elbow movements for 

six hours per day and push, pull, and lift up to 20 pounds for four hours per day. 

 2

 In a supplemental report dated March 9, 2010, Dr. Boeck advised that appellant had no restrictions on lifting. 
3

In a progress report dated August 9, 2011, Dr. Tauber related that electrodiagnostic tests 

were negative but that a magnetic resonance imaging (MRI) scan study of the cervical spine 

showed “substantial pathology.”3

In a job classification from the Department of Labor’s Dictionary of Occupational Titles

dated March 2, 2012, the rehabilitation counselor advised that the constructed position of 

information clerk was sedentary and required occasional reaching, handling, and fingering. He 

found that appellant met the specific vocational preparation of 4 to 6 months based on her work 

as a mail processing clerk, her successful completion of a 16-week program in computer-based 

office skills, and her prior work as a general office clerk. The rehabilitation counselor advised 

that there were sufficient openings in appellant’s geographical area at a median wage of $13.02 

per hour. 

In a closure memorandum dated March 8, 2012, an OWCP rehabilitation specialist 

determined that the position of information clerk was within appellant’s work restrictions, that 

she had the vocational capacity to perform the duties, and that the position was reasonable 

available in her commuting area at a salary between $400.00 and $600.00 a week. 

On March 20, 2013 OWCP notified appellant of its proposed reduction of her 

compensation based on its finding that she had the capacity to work as an information clerk 

earning $520.00 per week. 

In a report dated February 26, 2013, received by OWCP on March 27, 2013, Dr. Tauber 

found that appellant had continued symptoms of her carpal and cubital tunnel syndromes. He 

stated, “[Appellant] is not currently working, but she could work at an occupation that did not 

require repetitive or strenuous duties with her upper extremities.” 

A February 28, 2013 nerve conduction study (NCS) showed mild compression of the 

ulnar nerve on the left. An electromyogram (EMG) was normal. 

On April 2, 2013 Dr. Tauber related that another physician recommended that appellant 

undergo surgery on her cervical spine. He indicated that he had reviewed the position 

description for the job of information clerk. Dr. Tauber stated, “Even though the job is 

sedentary, an individual with cervical issues will have difficulty carrying out such activities. It is 

my opinion that [she] should not be working as an information clerk on a full-time unmodified 

basis, due to the various head positioning that would be required that would aggravate her 

cervical issues.” He noted that appellant continued to have symptoms of cubital tunnel 

syndrome. Dr. Tauber opined, “It would be my recommendation that [she] be maintained on 

temporary total disability. [Appellant] should also not be carrying out repetitive reaching, 

handling, and fingering, which would include up to 21⁄2 hours of typing or repetitive use of her 

hands, due to her cubital tunnel syndrome.” 

By letter dated April 17, 2013, appellant, through her attorney, challenged the proposed 

reduction of compensation based on the April 2, 2013 report of Dr. Tauber. 

 3

 The record contains progress reports from Dr. Tauber dated 2007 through 2014. 
4

By decision dated August 1, 2013, OWCP reduced appellant’s compensation effective 

July 28, 2013 based on its determination that she could earn wages in the selected position of 

information clerk. It found that the opinions of Dr. Boeck and Dr. Pollis represented the weight 

of the evidence and established that she had the physical capacity to perform the identified 

position. OWCP applied the formula set forth in Albert C. Shadrick4 to determine her wageearning capacity. 

On April 7, 2014 appellant, through her attorney, requested reconsideration. Counsel 

argued that OWCP had not considered her preexisting cervical condition in determining her 

wage-earning capacity. He also noted that neither Dr. Boeck nor Dr. Pollis addressed appellant’s 

cervical condition. Counsel maintained that O*Net should apply rather than the outdated 

Department of Labor’s Dictionary of Occupational Titles and that O*Net provides a job 

description for information clerk that requires repetitive work activities. He also noted that as 

provided by the rehabilitation counselor, the job requires occasional fingering up to one-third of 

the time. Counsel maintained that a conflict in medical opinion exists and that the opinions of 

Dr. Boeck and Dr. Pollis were stale. 

Appellant submitted a description of the position of receptionist and information clerk on 

O*Net and a July 23, 1992 medical report from Dr. Patrick S. Zaccalini, a Board-certified 

orthopedic surgeon, who diagnosed bulging discs at C3-4 and C4-5 by MRI scan study and left 

carpal tunnel syndrome. 

By decision dated June 26, 2014, OWCP denied modification of its June 1, 2013 

decision. 

On appeal appellant’s attorney argues that OWCP relied on stale medical evidence from 

2009 and 2011 in reaching its August 1, 2013 loss of wage-earning capacity determination. He 

notes that the burden was on OWCP to produce a medical report with a description of her current 

condition. Counsel maintains that the subsequently obtained report from Dr. Edward O. 

Leventen, a Board-certified orthopedic surgeon, would not retroactively justify the reduction of 

compensation. He further argues that a conflict existed between Dr. Tauber and OWCP referral 

physicians. Counsel notes that the position of information clerk, which requires fingering, 

reaching, and handling for one third of the time exceeded Dr. Tauber’s restrictions on repetitive 

hand motion for 2.5 hours per day. He also contends that OWCP did not consider appellant’s 

preexisting cervical condition and erred in relying on the Department of Labor’s Dictionary of 

Occupational Titles instead of O*Net. Counsel finally argues that OWCP should have used 

entry level pay rather than the median salary for information clerks in determining her wageearning capacity. 

LEGAL PRECEDENT 

Once OWCP has made a determination that a claimant is totally disabled as a result of an 

employment injury and pays compensation benefits, it has the burden of justifying a subsequent 

reduction of benefits.5 Under section 8115(a), wage-earning capacity is determined by the actual 

 4

 5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403. 

5 T.O., 58 ECAB 377 (2007). 
5

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

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

her usual employment, age, qualifications for other employment, the availability of suitable 

employment, and other factors or circumstances which may affect wage-earning capacity in his 

or her disabled condition.6

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

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist 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 the employee’s capabilities with regard to his or 

her physical limitations, education, age, and prior experience.7 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. Shadrick8

 will result in the percentage of the employee’s loss of 

wage-earning capacity. 

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.9

ANALYSIS 

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and a bilateral 

ulnar nerve lesion causally related to factors of her federal employment. She had a previously 

accepted claim for cervical strain and left carpal tunnel syndrome under file number xxxxxx646 

and a closed claim for bilateral carpal tunnel syndrome under file number xxxxxx324. Appellant 

received compensation for total disability beginning May 15, 2009. OWCP reduced her 

compensation effective July 28, 2013 based on its determination that the position of information 

clerk represented her wage-earning capacity. It found that the opinions of Dr. Boeck and 

Dr. Pollis represented the weight of the evidence and established that appellant had the capacity 

to work as an information clerk. 

In order to be an appropriate position for a wage-earning capacity determination under 

section 8115(a), the position must be medically and vocationally suitable.10 The Board finds, 

however, that OWCP has not met its burden of proof to establish that the position of information 

 6 Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999). 

7 Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000). 

8

 5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403. 

9

 5 U.S.C. § 8123(a). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816 (June 2013). 
6

clerk was medically suitable due to a conflict in medical evidence between Dr. Tauber, 

appellant’s attending physician, and Dr. Pollis, an OWCP referral physician, regarding the extent 

of her work limitations. 

According to the Department of Labor’s Dictionary of Occupational Titles, the position 

of information clerk is sedentary and requires occasional lifting up to 10 pounds and occasional 

reaching, handling, and fingering. Initially, the Board notes that OWCP relied in part on the 

opinion of Dr. Boeck, an OWCP referral physician, in finding the position within appellant’s 

limitations. In a report dated December 4, 2009, Dr. Boeck provided work restrictions of 

performing repetitive wrist and elbow movements for two hours per day and pushing, pulling, 

and lifting up to 20 pounds for two hours per day.11 The position of information clerk, however, 

requires occasional fingering and handling, which is defined by the Department of Labor’s 

Dictionary of Occupational Titles as up to one-third of the time, or 2.66 hours in an 8-hour day. 

Consequently, as Dr. Boeck found that appellant could perform repetitive wrist and elbow 

motion for only two hours per day, his opinion does not support that she could perform the 

position of information clerk 

In a report dated June 3, 2011, Dr. Pollis found that appellant could work as an 

information clerk performing repetitive wrist and elbow movements for six hours a day and 

lifting, pushing, and pulling up to 20 pounds. In a report dated April 2, 2013, Dr. Tauber advised 

that she could only perform repetitive reaching, handing, and fingering for 2.5 hours per day, and 

thus the selected position of information clerk is also not within his work restrictions.12 While 

the position of information clerk is within the work restrictions set forth by Dr. Pollis, it is not 

within the work restrictions of Dr. Tauber.13 Due to this unresolved conflict of medical opinion, 

OWCP did not meet its burden of proof.14 

CONCLUSION 

The Board finds that OWCP improperly reduced appellant’s compensation based on its 

finding that she had the capacity to earn wages in the selected position of information clerk. 

 11 On August 9, 2011 Dr. Tauber, appellant’s attending physician, concurred with the finding of Dr. Boeck. 

12 Dr. Tauber also found that another physician had recommended cervical surgery and that a person with a 

cervical condition might have difficulty working as an information clerk. The Board notes that preexisting 

conditions are considered in determining the medical suitability of a position. See supra note 10 at Chapter 

2.816.4(b) (June 2013). 

13 FECA provides that, if there is a disagreement between an OWCP-designated examining physician and the 

employee’s physician, OWCP shall appoint a third physician who shall make an examination. 5 U.S.C. § 8123(a); 

20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309 (1994). 

14 Subsequent to OWCP’s August 1, 2013 loss of wage-earning capacity determination, it referred appellant to 

Dr. Leventen for another referral examination. Dr. Leventen determined that she could perform repetitive elbow and 

wrist movements for two to four hours per day and lift up to 10 pounds for one to two hours per day. His opinion is 

insufficient to resolve the conflict in medical opinion and, additionally, was not part of the record at the time OWCP 

issued its initial wage-earning capacity decision. 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 26, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: January 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board