United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

DEPARTMENT OF HOUSING & URBAN 

DEVELOPMENT, Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1459 

Issued: December 3, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 12, 2014 appellant, through counsel, filed a timely appeal of a March 13, 2014 

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 effective 

June 30, 2013 based on his capacity to earn wages in the constructed position of civil engineer. 

FACTUAL HISTORY 

On May 14, 2010 appellant, then a 49-year-old quality assurance inspector, filed a 

traumatic injury claim (Form CA-1) alleging that on May 11, 2010 he sustained cervical, 

lumbosacral, and left wrist sprains, left shoulder bursitis, left rotator cuff, a left slap tear, and left 

 1

 5 U.S.C. § 8101 et seq. 
2

biceps tendinitis when he slipped and fell down a soft incline onto his left side. OWCP accepted 

the claim for left wrist, lumbosacral, and neck strains, which was expanded to include a left 

rotator cuff tear. It authorized left arthroscopic rotator cuff repair surgery, which occurred on 

September 7, 2010. Appellant stopped work at the time of his injury. In an October 20, 2010 

letter, OWCP placed appellant on the periodic rolls for temporary total disability. 

On February 29, 2012 Dr. Kevin J. Paley, a treating Board-certified orthopedic surgeon, 

opined that appellant was unable to return to his date-of-injury position, but was capable of 

performing a light-duty job with restrictions. Work restrictions included limitations on standing, 

reaching, reaching above the shoulder, twisting, and no lifting more than 10 pounds. 

On March 19, 2012 OWCP referred appellant for vocational rehabilitation services. 

On April 16, 2012 a functional capacity evaluation (FCE) was performed to determine 

appellant’s work restrictions. The test indicated that appellant was disabled from performing his 

date-of-injury position, but was capable of performing light-to-medium physical demand 

category jobs. 

On July 6, 2012 appellant underwent a second FCE which showed that he was incapable 

of performing his date-of-injury position. The test noted that appellant was capable of 

performing in the medium-to-medium heavy physical demands category except for overhead 

lifting where his restrictions were consistent with light physical demands. 

On October 9, 2012 the vocational rehabilitation specialist and appellant identified the 

positions of mechanical engineer, Department of Labor, Dictionary of Occupational Titles

(DOT) No. 007.061-014 and civil engineer, DOT No. 005.061-014. The weekly wages were 

$1,357.20 for the mechanical engineer position and $1,452.40 for the civil engineer position. 

On October 12, 2012 OWCP received a September 26, 2012 report from Dr. Paley, who 

reviewed the FCE results and concluded that appellant was capable of working a job with the 

restrictions noted in the FCE. 

On October 15, 2012 OWCP received labor market surveys dated September 2, 2012 

from the vocational rehabilitation counselor containing information for the positions of 

mechanical engineer and civil engineer. The median hourly rate was noted as $36.31 (weekly 

wages of $1,452.40) for the civil engineer position and $33.93 (weekly wages of $1,357.29) for 

the mechanical engineer position as noted by information from the Ohio Labor Market Survey. 

OWCP also received a September 25, 2012 Individual Rehabilitation Placement Plan and Job 

Search Plan and agreement from the vocational rehabilitation counselor which identified Dayton, 

Ohio and Cincinnati, Ohio as the geographic region and within appellant’s commuting area. 

In a November 2, 2012 summary of contacts, the vocational rehabilitation counselor 

detailed contacts with appellant for the period October 1 to November 2, 2012. On October 17 

and November 2, 2012 the rehabilitation counselor sent appellant a list of six job openings on 

each date for a total of 12 job openings. 
3

On December 19, 2012 the vocational rehabilitation counselor provided an updated 

summary of contacts. On November 19, 2013 appellant was provided with six job openings and 

on December 12, 2013 a list of four job openings were provided. 

On April 11, 2013 the vocational rehabilitation specialist indicated that vocational 

rehabilitation was closed. She reported that she had identified the positions of mechanical 

engineer and civil engineer and that both positions were performed in sufficient numbers in 

appellant’s commuting area. The vocational rehabilitation specialist noted the weekly wages 

were $1,357.20 for the mechanical engineer position and $1,452.40 for the civil engineer 

position. She indicated that updated labor market surveys for these positions would be submitted 

by the vocational rehabilitation counselor to ensure that the information provided was current. 

On April 22, 2013 OWCP received labor market surveys dated April 22, 2013 from the 

vocational rehabilitation counselor containing updated information for the positions of 

mechanical engineer and civil engineer. The median hourly rate was noted as $36.39 for the 

civil engineer position and $34.78 for the mechanical engineer position as noted by information 

from the Ohio Labor Market Survey as of April 20, 2013. A 2011 state and national wages -- 

civil engineers for Ohio reported a median hourly wage of $34.19. The median hourly rate for 

mechanical engineers in Ohio was noted as $33.25. In an attached occupational wage survey 

estimate for civil engineers, the median hourly rates under Data for JobsOhio Network Regions 

were listed as $36.53 for the Cincinnati Region and $37.06 for the Dayton Region. An attached 

occupational wage survey estimate for mechanical engineer reported medial hourly rates under 

Data for JobsOhio Network Regions as $36.57 for the Cincinnati Region and $32.90 for the 

Dayton Region. 

On April 26, 2013 OWCP issued a notice proposing to reduce appellant’s compensation 

as it determined that the position of civil engineer was medically and vocationally suitable for 

him and represented his wage-earning capacity. It advised appellant that she had the capacity to 

earn wages as a civil engineer at a rate of $1,452.40 per week, in accordance with the factors 

outlined in 5 U.S.C. § 8115.2

 OWCP calculated that appellant’s compensation should be 

adjusted to $201.00 using the Albert C. Shadrick3 formula. It indicated that the salary for his job 

when injured was $1,437.22, that the current salary for his job and step as of April 25, 2013 was 

$1,535.85 and that appellant was currently capable of earning $1,452.40 per week, as a civil 

engineer. OWCP therefore determined that appellant had a 95 percent wage-earning capacity. It 

found that his current adjusted compensation rate per four-week period was $201.00. OWCP 

stated that the case had been referred to a vocational rehabilitation counselor who determined 

that the civil engineer position was suitable for appellant, given his work restrictions, and was 

reasonably available in his commuting area. It allowed appellant 30 days in which to submit any 

contrary evidence. 

In a letter dated May 14, 2013 appellant responded to OWCP’s proposal to reduce his 

wage-loss compensation. He noted that his cervical, shoulder, and upper back pain had become 

 2

 5 U.S.C. § 8113. 

3

 5 ECAB 376 (1953). 
4

more acute over the recent months. Appellant contended that as a result of this pain he is unable 

to sit or use his left hand and arm without pain and adversely impacts his ability to work. 

By decision dated June 24, 2013, OWCP reduced appellant’s benefits effective that date 

to reflect that he was capable of performing the duties of a civil engineer earning $1,452.40 per 

week. 

On July 5, 2013 appellant requested a review of the written record by an OWCP hearing 

representative. 

On July 15, 2013 appellant’s counsel changed appellant’s request for a review of the 

written record to a telephonic oral hearing before an OWCP hearing representative. The hearing 

was held on December 2, 2013. At the hearing appellant testified that he had accepted and was 

soon to start a new job with the employing establishment. He testified that OWCP should have 

afforded him more time to find a position as engineering positions were not readily available due 

to the slow economy and high number of applicants. 

On September 27, 2013 the employing establishment offered appellant the position of 

construction analyst, which appellant accepted on October 18, 2013. He returned to work with 

the employing establishment on December 9, 2013. 

By amended decision dated March 13, 2014, OWCP’s hearing representative affirmed 

the June 24, 2013 loss of wage-earning capacity (LWEC) determination.4

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.5

 An injured employee who is either unable to return to 

the position held at the time of injury or unable to earn equivalent wages, but who is not totally 

disabled for all gainful employment, is entitled to compensation computed on LWEC.6

Under section 8115(a) of FECA, wage-earning capacity is determined by the actual 

wages received by an employee, if the earnings fairly and reasonably represent his wage-earning 

capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is 

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

employee’s usual employment, age, qualifications for other employment, the availability of 

 4

 The hearing representative initially issued a decision on January 14, 2014 which referenced a female appellant. 

Counsel pointed out the mistake in a letter dated March 6, 2014. 

5 H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 

197 (2005). 

6

 20 C.F.R. §§ 10.402, 10.403. 
5

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

capacity in his disabled condition.7 

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, Dictionary of Occupational Titles or 

otherwise available in the open market, that fit the 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 labor market should be made through contact 

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

principles set forth in Shadrick8 and codified by regulations at 20 C.F.R. § 10.4039 should be 

applied. Subsection(d) of the regulations provide that the employee’s wage-earning capacity in 

terms of percentage is obtained by dividing the employee’s actual earnings or the pay rate of the 

position selected by OWCP, by the current pay rate for the job held at the time of the injury.10 

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.11 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. Additionally, 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.12 

ANALYSIS 

OWCP accepted appellant’s claim for left wrist, lumbosacral and neck strains, and left 

rotator cuff tear. It authorized left arthroscopic rotator cuff repair surgery, which occurred on 

September 7, 2010. By decision dated June 24, 2013, OWCP reduced his wage-loss 

compensation effective that day based on his capacity to earn wages as a civil engineer. An 

OWCP hearing representative affirmed the June 24, 2013 decision in an amended March 13, 

2014 decision. The issue on appeal is whether OWCP properly calculated appellant’s LWEC. 

OWCP procedures instruct that, in cases where a claimant has undergone vocational 

rehabilitation, the vocational rehabilitation counselor will submit a report summarizing why the 

 7

 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 584 

(1996). 

8 Supra note 2. 

9

 20 C.F.R. § 10.403. 

10 20 C.F.R. § 10.403(d). 

11 James Henderson, Jr., 51 ECAB 268 (2000). 

12 Id. 
6

vocational rehabilitation was successful and list jobs that are medically and vocationally suitable 

for appellant. 

Pursuant to the procedure manual, OWCP initially utilized the median wage rate which 

was correctly selected as appellant had a Bachelor of Science degree from the University of 

Cincinnati with significant experience in design software and applicable work experience. 

Under these circumstances, it is appropriate to assign a median hourly wage instead of the 

default entry wage.13 OWCP went on to determine that appellant had a wage-earning capacity 

with a median hourly rate of $36.31 per hour or weekly wage of $1,452.40 as a civil engineer. 

This determination was based upon an October 15, 2012 labor market survey. On April 13, 2013 

the vocational rehabilitation counselor provided an updated labor market survey which noted a 

median hourly rate of $36.39 or weekly rate of $1,455.60 for civil engineer. The attachments to 

his updated report contain conflicting median hourly rates for the position of civil engineer in 

Ohio. A 2011 state and national wages -- civil engineers for Ohio indicated a median hourly 

wage of $34.19 or weekly wages of $1,367.60 while an occupational wage survey estimates for 

civil engineers provided different median hourly rates. The occupational wage survey reported 

median hourly rates Data for JobsOhio Network Regions as $36.53 (weekly wages of $1,461.20) 

for the Cincinnati Region and $37.06 (weekly wages of $1,482.40) for the Dayton Region. It is 

unclear from the record how vocational rehabilitation counselor determined the weekly wage rate 

for the constructed position of civil engineer. The attachments submitted by the vocational 

rehabilitation counselor with an updated labor market survey contain weekly wage rates different 

from the wage rates originally given on October 9, 2012 and used by OWCP in setting 

appellant’s loss of wage-earning capacity determination. Moreover, the attachments report 

different wage rates for the Dayton and Cincinnati region. On September 25, 2012 the 

vocational rehabilitation counselor identified Dayton, Ohio and Cincinnati, Ohio as within 

appellant’s commuting area. However, the determination of the wage rate for the constructed 

position of civil engineer, remains unclear as to which city was used by the vocational 

rehabilitation counselor as appellant’s commuting area when calculating appellant’s wage rate. 

Thus, the Board is unable, from the evidence in the record, to determine what the actual weekly 

pay rate was for the constructed position of civil engineer and which city or cities were used in 

determining appellant’s commuting area. It is OWCP’s burden to establish wage-earning 

capacity and thus it failed to meet its burden of proof in this case. 

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

capacity based on the median wages for the constructed position of civil engineer. Accordingly, 

the case will be reversed. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof in reducing appellant’s 

wage-loss compensation based on the constructed position of civil engineer. 

 13 Federal (FECA) Procedural Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on 

Constructed Position, Chapter 2.816(5)(b) (June 2013). 
7

ORDER 

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

Compensation Programs dated March 13, 2014 is reversed.14

Issued: December 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.