United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.T., Appellant 

and 

U.S. POSTAL SERVICE, NORTH METRO 

PROCESSING & DISTRIBUTION CENTER, 

Duluth, GA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-2040 

Issued: March 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 22, 2014 appellant filed a timely appeal from April 2, July 17, and 

August 25, 2014 merit decisions 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. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to reduce appellant’s 

compensation benefits based on her capacity to earn wages in the constructed position of 

receptionist; and (2) whether OWCP properly denied modification of the April 2, 2014 decision. 

On appeal appellant asserts that the medical evidence is sufficient to establish that she is 

disabled from any work. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On October 22, 2005 appellant, then a 47-year-old mail handler, filed an occupational 

disease claim that was accepted for right lateral epicondylitis. On July 30, 2007 she filed a 

traumatic injury claim for a left elbow condition. The claim was initially accepted for left lateral 

epicondylitis and later expanded to include left elbow tenosynovitis and right shoulder strain. 

Appellant also filed a traumatic injury claim on December 22, 2007, accepted for left shoulder 

impingement syndrome and left shoulder rotator cuff tear. These three files were combined,2 and 

OWCP listed all the accepted conditions as bilateral/lateral epicondylitis; bilateral closed 

dislocation of elbow; bilateral lesion of ulnar nerve; bilateral rotator cuff sprain; bilateral wrist 

sprain; and left closed dislocation of shoulder, and left other affections of shoulder region. 

In an April 19, 2007 decision, OWCP determined that appellant’s actual earnings as a 

modified mail handler fairly and reasonably represented her wage-earning capacity with zero 

loss.3

 After an April 14, 2010 cubital tunnel release with ulnar nerve transposition and medial 

epicondylar release of the left elbow, she returned to modified duty on April 29, 2010. Appellant 

stopped work on July 13, 2010, received wage-loss compensation for total disability and was 

placed on the periodic compensation rolls in September 2010. She did not return to work. 

Appellant retired on disability effective January 24, 2011. 

In March 2011 OWCP determined that a conflict in medical evidence had been created 

between the opinions of Dr. Harold H. Alexander, a Board-certified orthopedic surgeon, who 

provided a second opinion evaluation for OWCP, and appellant’s attending physicians 

Dr. Brian E. Morgan, Board-certified in orthopedic surgery, and Dr. David W. Kunz, a Boardcertified family physician, regarding appellant’s work limitations. OWCP referred appellant to 

Dr. Jeffrey Wener, a Board-certified orthopedic surgeon, for an impartial evaluation. In reports 

dated April 21 and 27, 2011, Dr. Wener advised that appellant could work eight hours daily with 

permanent restrictions. 

OWCP determined that the weight of the medical evidence established that appellant 

could perform light duty, full-time work, and in June 2011 referred her for vocational 

rehabilitation services. Appellant had a psychological-vocational evaluation on June 28, 2011 

that demonstrated performance in the average/low average range in language arts and 

mathematics. A rehabilitation plan was developed and appellant began short-term computer 

training to upgrade skills. 

 2

 The 2005 occupational disease claim was adjudicated by OWCP under file number xxxxxx861. The July 2007 

claim was adjudicated by OWCP under file number xxxxxx069 and the December 2007 claim under file number 

xxxxxx009. OWCP combined the three claims, with the xxxxxx069 claim becoming the master file. 

3

 On April 26, 2007 appellant was granted a schedule award for one percent impairment of the right arm, and on 

January 27, 2009 a schedule award for six percent impairment of the left arm. On June 30, 2009 she was granted a 

schedule award for an additional two percent impairment of the right arm. In a December 13, 2010 decision, the 

Board found the case was not in posture for decision regarding the degree of impairment of appellant’s right arm. 

Docket No. 10-1008. In a February 7, 2011 decision, OWCP reiterated that she had three percent total right arm 

impairment. In a June 16, 2011 decision, it denied modification of the February 7, 2011 schedule award decision. 

In a July 10, 2013 decision, OWCP determined that appellant was not entitled to a schedule award for the left upper 

extremity greater than the six percent previously awarded. 
3

In reports dated October 13 and November 10, 2011, Dr. Morgan noted appellant’s 

complaint that her left elbow continued to hurt following surgery and that she also had right 

shoulder pain. He provided physical examination findings and advised that she could return to 

restricted duty with a 20-pound weight restriction and no reaching or working above shoulder 

level. 

Sheryl West, a rehabilitation counselor, indicated that placement services would begin in 

mid-April 2012 following appellant’s training. Appellant completed the computer training in 

March 2012 and began job placement. Dr. Morgan continued to submit reports in which he 

found her restrictions were unchanged. On May 5, 2012 Ms. West stated that appellant believed 

her “additional medical challenges” hampered job placement. 

On May 14, 2012 Dr. Morgan performed arthroscopic repair of the rotator cuff tear with 

distal clavicle excision of the left shoulder. Rehabilitation services were suspended. Dr. Morgan 

provided updates on appellant’s postoperative condition. On August 16, 2012 he reported that 

she could return to work with no use of the left arm, no reaching or working above the shoulder 

level, and that she had a 10-pound lifting restriction. 

Appellant elected FECA benefits, effective October 17, 2012. Rehabilitation services 

were closed on November 28, 2012, due to unresolved medical issues. 

On April 9, 2013 Dr. Morgan noted permanent work restrictions of no lifting, pushing, or 

pulling greater than 10 pounds and no outstretched reaching or working above shoulder level. 

In June 2013 OWCP referred appellant to Feryal Jubran, a rehabilitation counselor, for 

vocational rehabilitation services. In a June 24, 2013 report, Ms. Jubran related that appellant 

had been approved for social security disability on January 25, 2011, and received monthly 

benefits from social security and FECA benefits. Appellant reported additional health issues 

including grand mal seizures, sleep apnea, hypertension, depression, congestive heart failure, and 

carpal tunnel syndrome. On July 1, 2013 Ms. Jubran identified the positions of receptionist and 

customer service receptionist, as described in the Department of Labor’s Dictionary of 

Occupational Titles, as within appellant’s physical limitations. She advised that the positions 

were reasonably available in the local labor market at entry level weekly wages of $460.00 and 

$480.00 respectively. 

By report dated April 22, 2013, submitted on July 10, 2013, Dr. Marc I. Unterman, a 

Board-certified cardiologist, provided physical examination findings. He diagnosed chest 

discomfort, shortness of breath, hypertensive heart disease, hypertension, and multiple 

orthopedic injuries and surgeries. Dr. Unterman advised that appellant’s hypertension was 

controlled with medication and recommended a return visit in six months. 

A conference was held on August 2, 2013 between appellant and Nancy Sprague, an 

OWCP rehabilitation specialist. Appellant was informed that Dr. Unterman needed to provide 

current objective findings and medical reasoning explaining why appellant could not perform 

sedentary work. On August 30, 2013 Dr. Morgan stated that appellant had the same work 

restrictions and advised that she had a seven percent impairment of the right upper extremity. 

On October 8, 2013 he reported that appellant now complained of left wrist swelling, stating that 
4

this was not related to her work since she had not worked for several years. Dr. Morgan advised 

that there was no change in appellant’s restrictions. On an attached form report, he indicated that 

she could not perform repetitive duties. 

By letter dated February 19, 2014, OWCP proposed to reduce appellant’s compensation 

benefits based on her capacity to earn wages as a receptionist. It found that, based on the opinion 

of Dr. Morgan, she could return to full-time work, and that the receptionist position was within 

the permanent restrictions identified by him. OWCP further noted that the labor market survey 

prepared by the rehabilitation counselor indicated that the position was reasonably available in 

the local labor market and that the entry-level wage was $460.00. It informed appellant that she 

could submit additional evidence or argument within 30 days either in writing or electronically. 

Appellant did not respond to the proposed reduction.4

 By decision dated April 2, 2014, 

OWCP reduced appellant’s compensation benefits, effective April 6, 2014, based on her capacity 

to earn wages as a receptionist,5

 which yielded a 50 percent loss of wage-earning capacity. 

On May 20, 2014 appellant requested reconsideration, stating that she was medically 

disabled from any type of work. She submitted duplicates of evidence previously of record. In 

undated correspondence, the Office of Personnel Management (OPM) found appellant disabled 

for her position as a mail handler due to a meniscus tear of the right knee, left and right rotator 

cuff degeneration, and right and left elbow lateral epicondylar releases. In an August 14, 2013 

report, Dr. Unterman found appellant permanently disabled from even sedentary work because 

she had multiple orthopedic problems, atherosclerotic and hypertensive heart disease, dyspnea on 

exertion with severe shortness of breath, pulmonary disease, and diabetes mellitus. In reports 

dated May 5 and 15, 2014, Dr. Alain Czaykowsky, Board-certified in general and hand surgery, 

noted appellant’s complaint of left hand and wrist pain and her history of multiple other 

conditions. Physical examination findings including tenderness of the dorsal aspect of the first 

dorsal compart and a very positive Finkelstein’s test. He diagnosed de Quervain’s disease, 

advised that she was expected to improve, that she did not have a permanently disabling 

condition, and recommended conservative management. 

In reports dated May 16, 2014, Dr. Morgan indicated that appellant’s left wrist condition 

was not work-related because she had not worked in quite some time. Appellant’s present 

workers’ compensation work restrictions were found to be unchanged, but he recommended a 

job that did not require any repetitive motions, but that these recommendations were not part of 

her workers’ compensation claim. 

 4

 Appellant telephoned OWCP on several occasions to inquire about the proposed reduction and was told to 

submit additional evidence in writing. 

5

 The Department of Labor’s Dictionary of Occupational Titles description of the receptionist position states: 

Receives callers at establishment, determines nature of business and directs callers to destination: Obtains caller’s 

name and arranges for appointment. Directs caller to destination and records name, time of call, nature and business 

and person called. May operate PBX telephone console to receive incoming messages. May type memos, 

correspondence, reports and other documents. May work in office of medical practitioner or in other health care 

facility and be designated outpatient receptionist (medical ser.) or receptionist, doctor’s office (medical ser.). May 

issue visitors pass when required. May make future appointments and answer inquiries. 
5

In a merit decision dated July 17, 2014, OWCP denied modification of the April 2, 2014 

decision. 

Appellant again requested reconsideration on July 28, 2014 and submitted additional 

evidence. In an April 16, 2014 treatment note, Dr. Unterman noted appellant’s complaint of 

shortness of breath with any type activity or exertion. He stated that she had multiple orthopedic 

problems and that she could not work. On July 21, 2014 Dr. Czaykowsky noted that appellant’s 

cardiologist advised that she could not work. In a treatment note dated July 24, 2014, 

Dr. Morgan stated that appellant was having significant left hand pain. He diagnosed radial 

styloid tenosynovitis and advised that appellant should avoid repetitive motions with her left 

hand and thumb due to this condition, which was not employment related. On July 25, 2014 

Dr. Unterman reported that appellant had been under his care for the evaluation and treatment of 

cardiovascular disease, that she was totally and permanently disabled, and that she was unable to 

do sedentary work from a cardiac standpoint. 

In a merit decision dated August 25, 2014, OWCP denied modification of the April 2, 

2014 decision. 

LEGAL PRECEDENT -- ISSUE 1 

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

modification of compensation benefits.6 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 loss of wageearning capacity.7

Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is 

determined by the actual wages received by an employee if the 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 the employee has no actual earnings, 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 suitable employment and other factors or circumstances which may affect his or 

her wage-earning capacity in the disabled condition.8

 

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 OWCP relies must provide a detailed description of the condition.9

 

 6 James M. Frasher, 53 ECAB 794 (2002). 

7

 20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004). 

8

 5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id.

9 William H. Woods, 51 ECAB 619 (2000). 
6

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

reasonably current medical evaluation.10 

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 or her 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.11 Finally, application of the principles set forth in Albert C. Shadrick,

12 as codified in 

section 10.403 of OWCP’s regulations,13 will result in the percentage of the employee’s loss of 

wage-earning capacity.14

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 postinjury 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.15 

ANALYSIS -- ISSUE 1 

The Board finds that OWCP met its burden of proof in reducing appellant’s 

compensation on April 2, 2014 based on her capacity to earn wages in the constructed position of 

receptionist. 

The medical evidence, as characterized by reports from Dr. Morgan, an attending 

orthopedic surgeon, established that appellant was no longer disabled from all work. Following 

his May 14, 2012 repair of a left rotator cuff tear, in an April 9, 2013 report, Dr. Morgan found 

that appellant had permanent work restrictions of no lifting, pushing, or pulling greater than 10 

pounds and no outstretched reaching or working above shoulder level. OWCP then referred 

appellant to Ms. Jubran, the vocational rehabilitation counselor, in June 2013.16 Prior to the left 

shoulder surgery in May 2012, appellant was referred to vocational rehabilitation and was 

 10 John D. Jackson, supra note 7. 

11 Supra note 6. 

12 5 ECAB 376 (1953). 

13 20 C.F.R. § 10.403. 

14 Supra note 6. 

15 John D. Jackson, supra note 7. 

16 5 U.S.C. § 8104(a); see Ruth E. Leavy, 55 ECAB 294 (2004). 
7

provided computer training, which she completed in March 2012. In July 2013 Ms. Jubran 

identified two positions within appellant’s capabilities: receptionist and customer service 

receptionist. She determined that the positions were reasonably available in the local labor 

market with entry-level weekly wages of $460.00 and $480.00 respectively. OWCP determined 

that appellant had the capacity to earn wages as a receptionist, based on the opinion of 

Dr. Morgan. 

The physical demands of the receptionist position, classified as requiring sedentary 

strength,17 are within the restrictions provided by Dr. Morgan. Ms. Jubran, the rehabilitation 

counselor, advised that the position was reasonably available in the local labor market with 

entry-level weekly wages of $460.00. 

While appellant submitted an April 22, 2013 report from Dr. Unterman, an attending 

cardiologist, who diagnosed chest discomfort, shortness of breath, hypertensive heart disease, 

hypertension, and multiple orthopedic injuries and surgery, these conditions had not been present 

when appellant filed her 2005 claim. Impairments resulting from subsequently acquired 

conditions are immaterial to a wage-earning capacity determination.18

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

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

qualifications, in determining that the receptionist position represented her wage-earning 

capacity.19 The evidence of record establishes that she had the requisite physical ability, skill, 

and experience to perform the position and that such a position was reasonably available within 

the general labor market of her commuting area. OWCP therefore properly determined that the 

position of receptionist reflected appellant’s wage-earning capacity and, using the Shadrick

formula,20 properly reduced her compensation effective April 6, 2014.21

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

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

LEGAL PRECEDENT -- ISSUE 2 

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.22 Section 10.511 of OWCP regulations provide 

 17 Supra note 4. The Department of Labor’s Dictionary of Occupational Titles indicates that sedentary work 

involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary 

if walking and standing are required only occasionally and all other sedentary criteria are met. 

18 John D. Jackson, supra note 7. 

19 Supra note 6. 

20 20 C.F.R. § 10.403. 

21 James Smith, 53 ECAB 188 (2001). 

22 Katherine T. Kreger, 55 ECAB 633 (2004). 
8

that, if a formal loss of wage-earning capacity decision has been issued, the rating is left in place 

until that determination is modified by OWCP. Modification is only warranted where the party 

seeking modification establishes a material change in the nature and extent of the injury-related 

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original 

determination was, in fact, erroneous.23 The burden of proof is on the party attempting to show a 

modification of the wage-earning capacity determination.24 In addition, Chapter 2.1501 of 

OWCP procedures contains provisions regarding the modification of a formal loss of wageearning capacity.25

ANALYSIS -- ISSUE 2 

OWCP properly reduced appellant’s wage-loss compensation on April 2, 2014, based on 

her capacity to earn wages as a receptionist. On May 20 and July 28, 2014 appellant requested 

reconsideration, stating that she was medically disabled from all work. In support of her 

argument, she submitted medical reports from Dr. Unterman, a cardiologist, who advised that 

appellant was disabled from even sedentary work due to multiple problems including 

atherosclerotic and hypertensive heart disease, and from Dr. Czaykowsky, a hand surgeon, who 

described multiple orthopedic conditions. Appellant also submitted evidence indicating that 

OPM found her disabled from the mail handler position. Dr. Morgan also provided treatment 

notes, noting significant left hand pain which he opined was newly acquired and not employment 

related. 

In merit decisions dated July 17 and August 25, 2014, OWCP reviewed the case under 

section 8128 of FECA and section 10.609 of OWCP regulations, and denied modification of the 

prior decision. 

As noted above, OWCP had issued a formal decision of appellant’s wage-earning 

capacity, effective April 6, 2014, prior to the time she requested reconsideration on May 20 and 

July 28, 2014. Board precedent and OWCP’s procedures direct the claims examiner to consider 

the criteria for modification when a claimant requests resumption of compensation for total wage 

loss.26 While appellant used the term reconsideration in her requests, the Board finds that 

OWCP should have adjudicated the issue of modification of the wage-earning capacity 

determination.27 The Board will therefore remand the case to OWCP for proper adjudication, to 

be followed by an appropriate merit decision to preserve appellant’s appeal rights on this issue. 

 23 20 C.F.R. § 10.511. 

24 Stanley B. Plotkin, 51 ECAB 700 (2000).

25 Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Modification of Loss of Wage-Earning Capacity, 

Chapter 2.1501 (June 2013). 

26 Supra note 22; Sharon C. Clement, 55 ECAB 552 (2004); id. at Chapter 2.1501.2.b (June 2013). 

27 F.B., Docket No. 09-99 (issued July 21, 2010). 
9

CONCLUSION 

The Board finds that OWCP met its burden to justify reduction of appellant’s wage-loss 

compensation on the grounds that she had the capacity to earn wages in the constructed position 

of receptionist. The Board further finds that OWCP should have adjudicated appellant’s May 20 

and July 28, 2014 applications under the modification of wage-earning capacity standard. 

ORDER 

IT IS HEREBY ORDERED THAT the April 2, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. OWCP decisions dated August 25 and July 17, 

2014 are set aside and the case remanded for further proceedings consistent with this order of the 

Board. 

Issued: March 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board